Some of my friends who are paying particular attention to the marriage equality issue have asked for my opinion on recent concerns about whether recent legislation has made it a criminal act for same sex couples to apply for a marriage license.
While, I certainly would not call the General Assembly a friendly place for marriage equality, I don’t think there was a plan in this case to single the issue out for special, negative treatment.
As I understand it, the concern is with the penalties in IC 31-11-11. Those penalties were part of the massive criminal law reform bill, HB 1006, that (for the most part) goes into effect on July 1, 2014.
SECTION 307. IC 31-11-11-1 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 1. A person who knowingly furnishes false information to a clerk of the circuit court when the person applies for a marriage license under IC 31-11-4 commits a
Class DLevel 6 felony.
SECTION 308. IC 31-11-11-2 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2014]: Sec. 2. A person who knowingly furnishes false information in a verified written consent under IC 31-11-2 commits a
Class DLevel 6 felony.
This raises concerns because, when coupled with forms with specific gender designations on marriage applications, it might be regarded as a felony if two males are applying for a marriage license and one of their names is placed in a field labeled “female.” (Those designations facilitate execution of IC 31-11-1-1 requiring that marriage is limited to heterosexual couples.)
My thoughts are these:
First, this is not a new concern. The law regarding false information has been in place for years. The redesignation from “Class D” felony to “Level 6″ felony isn’t some new enhancement for this particular crime; rather it is part of the larger overhaul of the criminal law. I don’t know the particulars, but it appears as if a great many Class D felonies are being redesignated as Level 6 felonies.
Second, when individuals are using paper forms, they could almost certainly take themselves out of risk of this particular crime by simply crossing out the incorrect gender designation and replacing it with the correct ones.
Third, when it comes to electronic forms where one cannot strike through incorrect information, things get trickier, but I have a hard time concluding that a prosecutor would prosecute, a jury would convict, and a reviewing court would uphold a conviction where, for example, in the field with the incorrect gender designation, the applicant put the correct gender in the name field. (For example “JOHN SMITH (MALE – NOT FEMALE)”). The burden is on the state to show beyond a reasonable doubt that the applicant was knowingly furnishing false information. I’m not sure how anyone could say the burden was met in such a situation.