BC Supreme Court Polygamy Decision

Excellent.

Yeah, we'll I think women's equality rights trump religious "conscience" and other such quirky "rights". 

I think it is a bad decision, and one which is is likely headed for the supreme court.

If the government can't make a case stick on child abuse, assault or forcible confinement, too bad. Why are they criminalizing something that, in and of itself, should be a free choice and does no harm?

And it's not quirky conscience and religious rights. It is an accepted family form in many parts of the world, and there are enough people who live that way right here in Canada, and not for religous reasons.

Yes Unionist. So if we are talking about abuse then they should make charges based on laws which criminalize that abuse - not something which is incidental, and which is practiced around the world.

I think the point of marijuana criminalization that NS brought up is quite relevant - as in, why dope stayed illegal, but laws against the drug of white people - alcohol - somehow could not stand.

THis law has been on the books for ages and is based on the same religious prudery that you rail against all the time. Why the switch in this case?

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And actually, the two partnerships that I know personally are both one woman, and two men. Again - if there is harm being done, criminalize the harm.

The judge found the law constitutional, in part, because polygamy "offends Western values" and its prohibition has always been motivated by concern over harm to women and children.  Yeah. Even in Greco-Roman times.  The antipathy to Mormons in 1892 is nothing more than a coincidence.

Yet on his reading polygamy includes both polygyny and polyandry, and there is no requirement to prove harm.  It captures everyone, even the women who are "owned" and enslaved.  In his own words:

"I question whether the consenting capable spouse is a "victim". To the contrary, she can be seen to be facilitating an arrangement which Parliament views as harmful to society generally."

This is an extremely dangerous decision.

I don't like the idea of using criminal law to sanction things that are "offensive".  "Harmful", ok.

How can it be dangerous, when all it does is uphold a law which has existed (and not been enforced much) for over a century?

Notwithstanding some anecdotes on this discussion board, polygamy in virtually every society in the world is one man many women, and it invariably goes hand in hand with the subordination and inequality of women. Is equality of women a "Western value"? Or Christian? Or Canadian? or québécois? I don't much mind how it's qualified - as long as it's rigorously defended here in Canada. If other societies choose to organize their social relations differently, we must not interfere.

Well, they did arrest Warren Jeffs, who is now serving a life sentence for raping several young girls in the name of exercising his religious freedom.

I rather like how religious rights were trumped by human rights. And the ruling specified that polyamourous relationships are legal.

Except that the judge defined "polygamous marriage" in a way that is totally opaque.  You don't need a specific ceremony to be married; conjugality obviously is not required; intent of the parties "may" be relevant.  I have no idea how a trial judge or jury is supposed to apply his definition.

I find that part of the decision to be grossly dishonest.

Religious rights were never in danger of trumping human rights here.  Rather, human rights were trumped by moral triumphalism, and rankly speculative scare-mongering about hordes of foreign polygamists who would seek refuge in Canada.

Disgusting.

Think about what you are saying, and what it invites.  Your sense of "right and wrong" is very unlikely to be the one that governs how the criminal law is shaped and applied.

How did this turn into a poll as to whether they like the judge's wordy decision and everything he said, or not? He refused to endorse the anti-woman practice of polygamy. He said the harm to women and children outweighs the harm to religious freedom. That's good enough for me, besides being correct, right, and good in general.

Yeah, pookie, I agree. The crap about advancing the hallowed institution of monogamous marriage in the "West" is just that - crap. That's what he gets for writing 355 pages. That whole part should just be excised. As for precedent, well, I guess you can't stop one judge from quoting another, which I guess is how the common law works. But he's right on the point that I posed - the harm to women and children. And I'm fine with the right conclusion, even though some of the reasons may be wrong. What's the alternative? Legalize polygamy until someone comes up with a perfect refutation? Non merci.

Thanks for your perspective here, pookie. What do you expect to happen when this case goes to the SCC?

Does legalizing same-sex marriage solve the problem of homophobia? Do laws against assault stop spousal abuse? Does having a Charter mean people can demonstrate against the G20 without fear of repression? Does the long-gun registry stop gun crime? Let's get rid of all that governmental intrusion on our lives.

Same old argument as above. If it were enforced (which it isn't), it would give authorities the ability to discover situations of abuse which otherwise go unreported. If it's repealed for the libertarian reasons you're citing, then it would be a statement by society that we don't mind women being treated like chattel - "voluntarily". Did you know that slavery is banned, even if the slaves swear on a stack of bibles that it's "voluntary" and they're happy?

Yeah, same with tax evasion and insider trading and burglary. Might as well legalize them and let people do them in the light of day!

And by the way, minimum wage laws, health and safety legislation, etc. force some people to keep their heads down when they violate them too. We as a society don't care if a worker is perfectly happy to accept a buck less than minimum wage if it means getting a job. We tyrannically ban that practice.

I'm inclined to agree. And I'd agree even about polygamy, were it not for the fact that it is overwhelmingly a one man many women arrangement, and associated with inequality of women. Indeed, the evidence seems to show that the women don't actually have much of a say over which other women, or how many, get the privilege of serving their same husband. Abuse is notoriously difficult to prove where the abused are socially or religiously indoctrinated or otherwise pressured into silence. If that situation can be effectively addressed, then why not broaden the marriage definition to embrace multiple partners?

You say it's "not just an anomaly" etc. I assume you mean, not just an anomaly outside certain religious and cultural milieus where it is blessed by custom. I'm not sure I've seen a significant political movement of ordinary folk lobbying to legalize polygamous marriage. I'm impressed that one babbler personally knows two polyandrous households. I believe I also saw some hen's teeth once.

I would agree with you, were it not for the undeniable association of polygamous marriage with the subordination of women. Please don't misunderstand me. If 50 or 40 or 30 percent of such relationships involved multiple men instead of women, I would unhesitatingly adopt your viewpoint - that it's ridiculous to not recognize them. I just don't believe any of the anecdotal declarations to that effect, however.

I agree with the ruling for the reasons previously mentioned here. Communities should have the wherewithal to intervene in situations where abuse is taking place; where young girls are being indoctrinated and groomed to satisfy the urges of adult men, and where women have been brought up from childhood in religious sects for that very purpose. These situations are not voluntary regardless if the females caught up in them have attained adult status, because in many cases they have been involuntarily conditioned from a young age to believe that all the practices which surround them and which are presided over by men constitutes a normal existence.  In that sense, we only diverge from the everyday norm of our society by a matter of degrees. 

On the other hand, the state has been known to cast it's suspicious gaze upon all sorts of platonic or other mutually beneficial living arrangements which to my mind, the people who engage in them have every right to do so, regardless of any 'law' steeped in traditional western religious values, and where for so many generations a certain model was imposed upon everyone.

It's hard to say.  This is one of the problems with a reference that is conducted like a trial.  The government commissioned research to prove that on an index of societal development polygamy is associated with worse outcomes like higher rates of rape and murder.  This is precisely the kind of reasoning that was and is still being used against same sex marriage - countries (like the Nordic ones) that have legalized same sex marriage are associated with higher crime rates and other measures of social deviance.  There was an amicus (friend of the court) who did a great job, but I doubt very much he was in a position to commission his own research.  So we have this hodge-podge of a record.  The evolutionary psychology stuff may be pooh-poohed by some here, but it is really stunning stuff - all sorts of "reasonable apprehensions' of what happens when you have pool of unmarried males (which somehow only becomes of interest when polygamy is decriminalized, as opposed to, say, right now) Appellate courts don't pay a lot of deference to a lower court's conclusions of fact, but in a way the argument has already been set.

I do think some of the judge's analysis may come back to bite him.  His conclusion that in 1892 our anti-polygamy laws were somehow motivated by concern for women and children is...well, laughable.  And his insistence that there is some profound distinction between "polygamy" and "polyamory" (for example, a ceremony although you CAN have a polygamous "marriage" without one) is totally arbirtary because it undercuts his argument that the social model of monogamous marriage is what basically keeps our society afloat.

What is really unbelievable about his opinion is that he has no problem applying the law to everyone (except 12-17 years olds)  in the polygamous marriage, even though he spends 200 pages talking about its devastating impact on women.  This is because the harm of polygamy is societal, so even if YOU are being harmed, you are still culpable in the moral disintegration of our society.

- Globe & Mail

- Ottawa Citizen and follow-up.

It would be interesting to see a test case, though, where this distinction is blurred. Suppose Alex and his wife Beth, consenting adults and bi/pansexual, want to bring Claire into their relationship in a legally recognized way - and to clarify, this is a mutual relationship, such that Claire wants to marry both Alex and Beth. And then they take this test case to the courts. What now? Is it still an anti-woman practice if the two women are in love with each other and in a conjugal relationship as well?

For me what's interesting is, through all this legal wrangling about whether polygamy should be legal, I haven't heard much discussion of what the legal consequences would be if it were legal. How would the legal obligations of the marriage, during or after dissolution, be different under various circumstances?

- Diane marries Edgar and Frank. Six years later, Diane divorces Edgar. What happens to marital property that came under jurisdiction of all three, since Edgar and Frank were never married to each other?

- Diane marries Edgar and Frank, and then a year later Edgar marries Frank too. Five years later, Edgar divorces Diane, but Frank remains married to both Diane and Edgar. Are there any support obligations triggered by this change?

- If Diane marries Edgar and then ten years later she also marries Frank, the nature of her relationship with Edgar changes substantially. Does this trigger any support obligations or redistribution of property?

I certainly agree that misogynistic and abusive practices deserve to be prosecuted, and I doubt anyone on this form will disagree. But I feel like, rather than declaring that multiple marriage is illegal, we should be considering what sort of precedents or regulations it would require to make it acceptably equitable under the law.

What if, in order for a multiple marriage to be legal, all parties married to both spouses must consent to it? So if Glen is married to Helen, and then he also wants to marry Irene, then Helen would sign a document indicating that she fully consents to how that will change her relationship to Glen, and Irene would sign a document indicating she fully consents as well. And moreover, both Helen and Irene have a right to be parties to a pre-nuptial agreement that spells out the terms under which the relationships would continue and what obligations might be triggered by either's dissolution, or if any party to the marriages takes another spouse. Let's even have Glen be obligated to sign a document that indicates his willingness to enter marital counselling if either of his wives should demand it at any point during the marriage. And any multiple marriage conducted in a non-Canadian jurisdiction would only be recognized here for the purpose of support & custody obligations until such time as all the spouses have met the qualifications set forth by the Canadian Multiple Marriage Equality Act.

And suppose the law would set a higher age standard for multiple marriages - let's arbitrarily say 21 - such that it is illegal to take a second spouse below that age, and it is also illegal to take a second spouse of any age if your first spouse is under 21, and any contravention of this rule would constitute marital fraud. Let's set an even higher bar for marital immigration to allay fears of trafficking - if you are in a multiple marriage and you sponsor one of your spouses to come live in Canada, then all your spouses worldwide (including the one you want to sponsor) must be at least 23 years old, and all your spouses worldwide must consent by signing an additional document that would be attached to the immigration papers.

Does any possible legal context exist, by which Glen marrying Helen and Irene would be no more exploitative than Glen marrying Henry and Ivan?

But which also means that the law is just not ready or willing to deal with these very real situations.

The scenarios that theleftyinvestor mentions above already exist. Not just in personal partnerships, but in business arrangements as well. They aren't all that outlandish. And to just keep it under the table for some presumed sake of convenience is nothing but burying one's head in the sand. 

Non-married couples are already legally equivalent to married in most respects. Saskatchewan's Family Property act even recognizes that a person who is married to one person can enter into a spousal relationship with someone else - so long as they do not put the relationship on paper. 

How long will government use the law to enforce what is essentially a moral taboo, (since there seems to be nothing inherently wrong with the relationships) while on the other hand using bandaid solutions when the courts are compelled to deal with them?

or worse.... people getting fucked around when they run afoul of those laws.

I haven't gotten around to reading the decision yet (it's #19 on my list) so I've tried to stay out of this. But isn't it important to canvass the "consequences" of any kind of behaviour before deciding whether or not it should be criminalized? 

Of all the social, cultural, and religious pressures stopping these women from speaking out about abuse... you think the fear of being charged with a criminal offence has been a significant factor? Do you have any evidence for that belief? My intuition tells me it would be at the bottom of the list of considerations going through a victim's mind, given the non-existence of criminal polygamy convictions.

Having said that, the least Parliament could do would be to amend the law accordingly - namely, that any woman coming forward to complain of abuse or coercion should be automatically exempt from prosecution. In fact, I'd go further and apply that to any woman simply reporting a man for illegally maintaining several "wives".

I don't agree, as I've said, with the sanctity of monogamy. What I believe, and have seen no evidence to the contrary, is that polygamy is almost always a cover for subordination of women (whether "abuse" or "coercion" in the criminal sense are present or not), and that its prohibition must not be lifted without first addressing that reality. But the prohibition must not act as a disincentive to victims stepping forward - on the contrary.

My point was very different. The vast majority of women who enter into polygamous relationships do so in social, cultural, and religious circumstances which create that kind of practice and expectation. They will have far more to overcome than (non-existent) prosecution if they want to break out of that mould. And when was the last time families were "ripped apart" and children dispersed to the winds because of Canada's polygamy laws?

Yes, absolutely - but not because the victim is afraid of being charged with some criminal offence. That's the evidence I'm looking for.

Exactly. The shame that comes from the community's expectations of female docility and second-class status; the fear that the abuser will exact revenge and that society will not succeed in stopping him; the concern for children; etc. All these are concerns that will continue to exist whether polygamy is de-criminalized or not. As I said before, we should discuss changing the law to provide absolute immunity to any woman that comes forward in such an instance. That won't overcome the religious and social and other pressures - but it will address the concern about criminalization of the relationship.

Unionist the pictures I posted are from the early 1950's in a community not far from Creston. Communal societies in the Kootenay are not stupid they know about the intern camps for Japanese in the Slocan and the intern camps for the Doukhobors.  The Doukhobors had their communities destroyed. The point I am making in posting the Doukhobors pictures is the law has not been enforced but if it is then the consequences are obvious. This community will be ripped apart and the children will be thrown into a foster care system that is already toxic from being over taxed.

So the question to me is not when was the last time but will there be another time when a communal society gets ripped apart because the dominant society thinks they are inherently immoral.

I think it is really manly of you Unionist to tell the women of Bountiful that they will not be held responsible for marrying into a polygamous relationship. Deary me they don't really know what they are doing and we know what is best for them. Please you deluded women who have been brain washed into submission just go sit in a corner while the nice judge deals with your nasty husband who you foolishly think you love and respect. Maybe a deprogramming camp based on curing gays would work with the woman who just don't acknowledge their previous sin against society. Sinning against god is an evil concept but sinning against society is one that cannot be tolerated and must be eradicated in the name of motherhood and apple pie.

This thread is about polygamy. If you want to advocate eliminating truancy laws, or allowing every "communal society" to determine its own moral codes irrespective of the laws of the overall society, go ahead. But make sure we are specific. What would you do about a "communal society" in Canada where it's ok to stop girls from going to school - or to abuse women - or to refuse to pay taxes - or to conspire against employees getting unionized - or to hire "volunteer" labour and flout minimum wage laws? No, NS, I don't advocate violence or repression against them. I do, however, suggest that just as we have no right to send soldiers to enforce such moral codes in Afghanistan or Libya or anywhere else, we (i.e. the Canadian people) have every right and duty to ensure respect for the laws that we determine are the proper ones. Naturally there are exceptions for Indigenous people, who have recognized hereditary and sovereign rights. Self-designed religious or other "communities" have no such special rights that you and I don't have.

Oh, I didn't say that. I said the law should be amended to ensure that the victims of such situations be immunized from prosecution. Why, you don't agree with that?

You see, I don't care if they "know what they are doing" or not. I know young people who will work for less than minimum wage if they can get away with it, because they really need a job. They will also sometimes not exercise their right to refuse unsafe work for similar reasons. I know a few (very few) workers who don't buckle up when they drive. This is unlawful. Am I showing some disrespect for the intelligence and autonomy of workers? No, NS, you see, I believe in the "nanny society", where we look out for our fellow members of society whether they like it or not.

Don't know this god character, but I believe I'm on safe ground that without rules obeyed by all, society is impossible. We should discuss which are the appropriate rules and exceptions, and how society should determine and enforce them - not ridicule those who advocate that they must exist.

I'm surprised you would fail to grasp what I was talking about. So I guess we're both surprised.

You said:

Forgive me if I misunderstood, but it appeared you were saying that Justice Bauman was wrongly making an issue of whether polygamy should be legally recognized, and you offered in support of this observation the fact that he chose to favour the expert evidence dealing with the "consequences" of polygamy. I took that to mean you believed the "consequences" of polygamy were not relevant to the real issue, which is, as you said,  "whether polygamy should be a crime". I thought that the "consequences" of polygamy were a legitimate source of enquiry in determining whether polygamy ought to be a crime. Hence my post.

I was not referring to the "consequences" of decriminalizing polygamy, but to the "consequences" of polygamy itself, whatever the "expert witnesses" might have described them to be.

To use your example, I would have thought that consideration of the "consequences" of homosexual activity would be relevant to the issue of whether it ought to be criminalized, just as one would consider the "consequences" of bank robbery or of kite flying before deciding whether those acts ought to be criminalized.

MSpector, I said Justice Bauman wrongly considered  "the consequences of polygamny in jurisdictions where it IS legally recognized."  Obiously in such jurisdictions polygamy would not be a crime either.  I maintain that it was not within Justice Bauman's jurisdiction in this reference to put so much stock into the consequences of legalizing polygamy, as opposed to decriminalizing it. He, himself, admits that the dire consequences he portends are "speculative".

I did not qualify the word "consequence" with the modifier "necessary", or, at least, "very likely", but will here in order to properly frame this discussion.  Certainly, that is how the Court proceeded.

The decriminalization of homosexual sodomy was obviously a necessary precondition to the legal recognition of same sex marriage in Canada.  That does not mean that same sex marriage was a necessary or very likely consequence of decriminalization.

In the same way, I argue that, while decriminalization of polygamy obviously is necessary to the legal recognition of polygamy as a form of civil marriage, the latter is in no way a necessary or even very likely consequence of decriminalization.  And, since Justice Bauman places so much emphasis in his opinion on the social consequences of polygamy where it is widespread, to the extent he relies on that as justification to reject the charter argument, I think he is utterly wrong.

Remember, Bauman does not require proof of harm to any individual, or of exploitation or abuse, as a necessary element conviction.  He says "polygamy" can be criminalized because it causes societal harm, and because it offends the very basis of Western civilization.  On his own argument, that is what must be established as following from decriminalizing polygamy.

Unionist, I think my earlier posts capture most of my dismay at this ruling.  But to recap, I think the Court was utterly disingenuous to try and whitewash the true state objective behind this law in 1892.  I think its use of "Western civilization" as a legitimizing feature for criminal law is frightening; its scare-mongering about hordes of polygamists breaching our shores is utterly offensive to Charter values; its statutory interpretation of section 293 is strained beyond belief and renders the provision competely arbitrary; its utter disregard for vulnerable women in such relationships is shocking; and its use of evolutionary psychology to determine the likely social consequences of rendering the law less punitive (ie., that it will lead to more rape and murder) is both stupid and highly regressive.

I'm trying to keep an open mind, but I don't see a good argument put forward that polygamy automatically hurts women and children. It's entirely credible that such arrangements are enjoyed and preferred by the women in such cultures. To suggest "they don't know any better" is to assume that someone else does. I don't  know how anyone could realistically make that assumption. The "it's for their own good" argument is also the same argument used to justify the imposition, via invasion and occcupation, of Western-style "democracy" on other nations. That's not a set of reasoning I can support.

The polygamy laws do indeed appear to be based on morality, and may, in some corners, be based in xenophobic or anti-Muslim sentiment as well. As for the legal protection arguments, it has already been pointed out that the Criminal Code already covers offences such as sexual exploitation, human trafficking and kidnapping. As others have pointed out, pushing poly unions further into informal, legal grey areas could make the attendant problems worse, not better.

Just wondering: does polygamy legalized or decriminalized have the potential to greatly affect individual/family taxation? 

[ETA: posted before reading pookie's post above. I agree with Michelle; I've enjoyed Pookie's, and others', analyses of this.]

Yes, of course, But current support of the laws could find some extra sympathy with Islamophobes as well.

Are there any countries in the world where polygamy is legal *and* where a human rights code that includes gender equality exists and actually has teeth?

I am genuinely curious. Is this new ground or has it been tread before?

In Ontario, "In the definition of “spouse”, a reference to marriage includes a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid." Both or all wives have valid spousal support claims. How equalization works . . . "the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them" . . . sounds like first come, first gets half. If a spouse second to separate makes an equalization claim too, I guess she gets half of what's left. Just like serial polygamy.

Bountiful doesn't look very communal to me. In the last federal election poll 146 in Kootenay--Columbia (which includes Bountiful School) voted Conservative 64%, NDP 26%, Green 7%, Liberal 4%. Poll 147, which I think also partly or mainly includes Bountiful, voted Conservative 67%, NDP 26%, Green 5%, Liberal 2%. Granted the Conservative won the riding 56%, NDP 33%, Green 6%, Liberal 3%, but Bountiful was worse.

It's called the United Order. 

http://en.wikipedia.org/wiki/United_Order 

Mormons didn't invent it, but they did run their communities by it at first. It is part of the reason why their neighbours got so pissed off at them that they got kicked repeatedly across the country. The LDS Church still runs its own social assistance program, including canneries, and other food production.

The way (in the article) they go to great lengths to distinguish themselves from communism is amusing.

I would guess that the system Hutterites operate by is similar, if not the same thing. As far as I understand it, theirs is an international network. I do know that those resources have been drawn upon to establish new colonies, and for other matters.

But that is not the same as telling people how to vote.