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Prosecution and Punishment

The territorial principle of criminal law is that criminal jurisdiction depends on the place of perpetration.  This means the state on whose territory an offence of bigamy is committed has the jurisdiction to try the offence.

Bigamy is the act of marrying while a lawful spouse by a former marriage is still alive and the former marriage still in force.  Bigamy is committed when the second marriage ceremony is completed.  In the case of bigamy, ordinarily the law of the state where a bigamous marriage occurred has jurisdiction to prosecute the crime.  Some statutes, however, provide that an accused may be convicted in the state where a bigamous cohabitation takes place, even though the marriage occurred elsewhere.  Generally, state laws have no extraterritorial force and cohabitation is not an essential element of the crime[i].  Therefore, only the state in which a second marriage was solemnized will have jurisdiction to charge a person on the offence of bigamy[ii]. One who contracts a bigamous marriage in one state is not subject to indictment and punishment for bigamy in another state[iii]. Moreover, a party to a bigamous marriage contracted in one state cannot be indicted as an aider and abettor thereto in another state in which the parties to the marriage later cohabit.

However, a state can enlarge the crime of bigamy in certain cases to include cohabitation within the state in addition to marriage outside of the state.  Two conditions must be satisfied for enlarging the offences to certain class of cases:

  • there must be a marriage outside the state after a divorce was granted and during the six months period before the decree becomes final; and
  • the offending parties must return to the state and cohabit with each other during said prohibited period[iv].

In many jurisdictions, bigamy is expanded to prohibit bigamous cohabitation, in cases where marriage or the cohabitation may support prosecution.  Even so, bigamy generally contemplates a marriage ceremony rather than a continuing relationship[v].

Thus it can be concluded that the celebration of a second marriage completes the offense of bigamy.  The state of celebration of the marriage exercises exclusive jurisdiction over the offense.  A state can penalize the further act of cohabitation within its borders following the bigamous union.  Statutes punishing further cohabitation do not punish the foreign offense but confirm the sovereignty of the forum state.  The purpose of punishing the cohabitation of a man and woman begun under a bigamous marriage is to protect good morals and to punish indecency[vi].

Prosecution of the offense of bigamy can be conducted in the following counties:

  • Where an offence of bigamy was committed;
  • where an accused is apprehended or in custody;
  • where an accused resides; or
  • where cohabitation occurred.

When the offense is committed in one county and the defendant is apprehended in another, prosecution can be in either county.

A defendant’s honest belief that his/her prior marriage was terminated by divorce is immaterial for determining the guilt of bigamy.  However, a contention of belief of termination of an earlier marriage is admissible for mitigation of punishment.  A person who knowingly commits bigamy is guilty of the crime.  Bigamy is illegal in all states and territories of the U.S.  The crime is punishable either by a fine, imprisonment, or both, according to the law of the individual state and the circumstances of the offense.

[i] People v. Hess, 207 Misc. 520, 522 (N.Y. County Ct. 1955)

[ii] Ex parte Ward, 85 Okla. Crim. 281, 284 (Okla. Crim. App. 1947)

[iii] State v. Vandiver, 265 N.C. 325 (N.C. 1965)

[iv] Ex parte Gresham, 53 Okla. Crim. 425, 429-430 (Okla. Crim. App. 1932)

[v] United States v. Lee, 32 M.J. 857, 860 (N-M.C.M.R. 1991)

[vi] State v. Stewart, 194 Mo. 345 (Mo. 1906)

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