CRIMINAL ISSUES – BIGAMY – DEFENSES – “IF IT’S VOID....” In what some may condemn as a triumph of law and expediency over pure reason, the Court of Appeals affirmed (probably not for the first time) rejection of a defense to felony bigamy that it doesn’t take a particularly imaginative lawyer to think of, and which may even be more appealing to the most linear and literal-minded among us. As for marrying another woman without being divorced from one’s present wife, the defendant argued that if bigamous marriages are void, then he didn’t commit any crime. Indeed, didn’t commit any act at all. The appeal to the Court of Appeals called it “legally impossible” by simple logic to be convicted of bigamy since the defendant never “married another person” as declared felonious and punishable under §18.2-362. I.e., a void act never happened, as the law understands it, so he committed no crime. Really, the Court of Appeals explained, it takes an interpretation of other Code sections which declare bigamous marriages – or “marriages” – void (such as §§20-38.1, 20-43 and 20-45) to fully understand this. What they clearly state is that the second ceremony doesn’t create a legal relationship, and that’s what the defendant criminally entered into. Thus none of the statutes declaring it void make §18.2-362 bigamy unpunishable. An Eighth Amendment argument against cruel and unusual punishment was also rejected. Cole v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___, 26 VLW 275 (8/2/11).
