State v. Fischer, 2008 WL 2971520 (Ariz. App.), upholds a
statutory rape conviction of Kelly Fischer, a member of the
Fundamentalist Church of Jesus Christ of Latter-Day Saints. Fischer was
married, and then took a second wife, Lujean, though of course she was
not recognized as a wife legally. Lujean's daughter J.S., who was
thirteen our fourteen at the time, moved in with them; some time later
(it's not clear when) Fischer took J.S. as a third wife. J.S. gave
birth to Fischer's daughter when she was 17, so it's clear that he had
sex with J.S. when she was 17, or even younger. J.S. was prosecuted for
statutory rape, the age of consent in Arizona generally being 18.
Here's the complicating factor: In Arizona, as in most other
states, sex with under-18-year-olds is not a crime if the
under-18-year-old is a spouse; and in Arizona, as in most other states,
people may marry under-18-year-olds (at least when they're 16 or older,
though perhaps even younger if there's court approval) so long as a
parent or guardian of the minor approves. So if Fischer's marriage with
J.S. were recognized by law, then his sexual acts with J.S. wouldn't be
statutory rape (assume for now that J.S. was indeed 17, and not, say,
13, at the time of the first sexual act).
Fischer demanded an exemption from Arizona's ban on polygamy,
under the federal Free Exercise Clause, but naturally lost under Smith.
Nothing in the opinion suggests that he demanded a similar exemption
under the Arizona state RFRA-like statute, but perhaps this is because
Arizona bans polygamy (and even "polygamous cohabitation") in its state
constitution.
But let's say that Fischer were in Texas, which has a state RFRA
and to my knowledge no similar state constitutional provision, and say
that he demanded an exemption under the RFRA either from the state
polygamy ban, or from state statutory rape law. Say also that Lujean
was not already his wife, which casts some extra doubt on her
independent judgment in deciding whether J.S. would be allowed to marry
Fischer. And say that J.S. was indeed 16 or 17 at the time of the
sexual conduct. Protecting children from sexual exploitation, Fischer
would say, is generally a compelling interest. But about 40 of the 50
states have an age of consent of 17 or lower, and about 30 of the 50
have an age of consent of 16 or lower. What's more, Arizona itself
recognizes an exception for sex within a non-polygamous marriage.
Therefore, Fischer argues, applying the law to him doesn't pass
strict scrutiny. The experience of most states, he argues, suggests
that there is no compelling interest in using the criminal law to
protect 17-year-olds or even 16-year-olds from underage sex (citing Boos
v. Barry, which used a similar argument to strike down a content-based
speech restriction under Free Speech Clause strict scrutiny); in fact,
Arizona is in the small majority of states on this score. What's more,
Arizona itself provides an exception for 16-year-olds and 17-year-olds
who are in nonplural marriages with the defendant (as well as an
exception for 15- to 17-year-olds when they are within two years of the
defendant's age). The law is thus either not necessary to serve a
compelling interest, or in any event underinclusive with respect to the
supposedly compelling interest.
How should we analyze this argument? I should stress that I
don't think Fischer's case is particularly morally appealing, nor do I
think that he'll likely win under a RFRA. I just wonder how a candid
application of RFRA would go here, and what that tells us about (for
instance) underinclusiveness analysis, and identification of compelling
interests, under RFRAs.
Eugene
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