Wednesday, June 29, 2005

Codified: "...unless p or not-p."

File this under "the Texas Legislature doesn't know how to draft laws". SB 6, the child protective services reform bill, increases the legal punishment for bigamy: it used to be a Class A misdemeanor; now (after September 1 of this year) it is a felony. But felonies fall into various degrees, depending on their severity. How serious a crime is bigamy? Here's the new version of the text:
An offense under this section is a felony of the third degree, except that if at the time of the commission of the offense, the person whom the actor marries or purports to marry or with whom the actor lives under the appearance of being married is: (1) 16 years of age or older, the offense is a felony of the second degree; or (2) younger than 16 years of age, the offense is a felony of the first degree.
So in English: it's a third degree felony, unless the second spouse is 16, or older than 16, or younger than 16. Huh.


  1. I think there's a situation in which a bigamist could be convicted of a third-degree felony under this statute. Remember that all elements of a crime must be proven beyond a reasonable doubt. For the second degree felony, an element of the crime is that the second spouse is 16 or over; the first degree felony requires as an element that the spouse be younger than 16.

    Both of these crimes have as a lesser included offense (an offense with a subset of their elements) third-degree bigamy. If the state can prove double marriage beyond a reasonable doubt, but cannot adequately meet its burden of proof as to which age range the purported spouse falls into, then it has a conviction for third-degree bigamy. It hasn't made out proof of the additional element of second-degree bigamy, though, so the conviction can only be for the lesser included offense. (Of course, neither has it made a case for first-degree bigamy, and the same logic applies.) This is true regardless of the fact that either first- or second-degree bigamy necessarily took place; neither has had all its elements proven beyond a reasonable doubt.

    Does this make sense as a matter of sound policy? Of course not. But as a matter of the logic of criminal law, it is a possibility.

  2. If what Dave says is true, then I think the logic of criminal law is no logic at all. Even if there is no proof of age of the person, the person who's the bigamist must either have committed a second-degree felony or a first-degree felony, so you ought to at least be able to convict them of a second-degree felony.