By Jodi A. Shaw
Last week, Angela Campbell, a professor of law at McGill University, testified at a constitutional reference case examining Canada’s current polygamy law that the practice ought to be decriminalized. I wasn’t sure if I should gasp or applaud.
Campbell visited Bountiful, B.C. in 2008 and 2009, interviewing 22 women over a total of approximately 11 days. The small polygamist community near Creston has been the centre of much criticism, after questions were raised regarding child brides and forced marriages.
The women, who volunteered to be interviewed, told Campbell they were happy, healthy, and had control over their body and reproductive decisions. So where’s the harm, right?
Polygamy has been illegal in Canada since 1890 and not without just cause. Historically, polygamy has often ignored the rights of women, treating them instead as voiceless, husband-pleasing baby-makers. And most women will not argue with a law that attempts to save them from oppression.
By contrast, the women of Bountiful, in Campbell’s opinion, are not oppressed by their husbands but by the law. The anti-polygamy statute renders them silent and fearful to reach out for services or speak out against other crimes, for fear of exposing themselves as members of a polygamist family and put them at risk of having their children taken away.
It is a fear shared by other polygamists, including acquaintances of mine, who live a normal life, in a normal house, far from any polygamist community.
They live a life of secrets, Steve* told me. In order to feel safe and accepted in their community, they disguise their relationship and discuss it with few people. Not that they like it that way.
Steve and Laura* have been together for over 15 years, and have a child. Almost four years ago, Megan joined the family. While one of the women is more outgoing than the other, they are far from submissive, and Steve is not remotely sexist or domineering. All three entered the relationship respectfully and willingly.
I can’t personally imagine myself sharing my husband with another woman, but Laura and Megan seem comfortable and happy in their lives. When on their own with Steve, they are affectionate, jovial, and immersed in each other’s company. As a family, they go on bike rides and do yard work together, though they have to refrain from affection or anything else that would reveal their dynamic.
Since Steve and Laura are more established as a couple, have been together longer, and are parents to the child, Megan often has to take a back seat when they are in public or around people who recognize Steve and Laura as a couple, but are unaware of Megan’s role. It’s a step back that leaves her feeling somewhat ostracized and alone. That’s where the real oppression occurs, according to Steve.
They worry that if they are open about their relationship, the child will be taken from the home — from the happy, healthy home in which they all live. So they hide.
All three entered the relationship as individuals and consenting adults, and all three report that, while they may sometimes deal with issues and struggles that do not exist in monogamous relationships, they feel content and loved. The secrecy is taxing, but they do not complain. They acknowledge, though, that many of the complications and stresses in their lives would be resolved if polygamy were legal.
So a part of me would like to see the law changed, for their sake. However, there’s a big difference between three adults down the street choosing to live in a multi-member relationship, and religious fundamentalists living in polygamous communities like Bountiful.
Grilled by lawyers for the attorneys-general of Canada and B.C., as well as the organization Stop Polygamy in Canada, Campbell admitted that she had not determined whether the women she interviewed had been told what to say by their husbands or their religious leader, Winston Blackmore. (In 2009, Blackmore and another Bountiful leader were charged with polygamy; after the charges were quashed, the Province of B.C. asked for the current examination of the law.) Campbell said she was concerned about insulting the women, but the history of fundamentalist polygamy suggests that hard questions need to be asked.
Before we sanction polygamy we need to know a lot more about allegations that girls as young as 13 have been brought to Bountiful to become brides (Blackmore denies the charge), about the teenage girls who become pregnant at the settlement, about tales told by Debbie Palmer and other apostates’ of sexual molestation and forced marriage. Until we do, decriminalizing polygamy across the board, while it would make life happier for my acquaintances, is not the solution. Not yet.
* Not their real names
“As the formation of a common-law relationship does not require the solemnization of a marriage, there is no risk of violating the criminal sanction against bigamy.”
“The formation of a common-law relationship is not hindered by the existence of a subsisting marriage.
Mutual intention of the parties consummated by their conduct, perhaps with an expressive public component, is all that is required for the formation of the relationship.”
The above judicial finding in a provincial family court of law, does indicate that provinces can “declare” consent” and authorize multiple spouses under family law. Using these words as justification, 2 married women in Saskatchewan were authorized to be spouses of other men, prior to divorcing their civilly married spouses.
Jodi A. Shaw says
jbash — thanks for the great reply. I must note that my use of polyandry was an oversight on my part. More a typo. I meant to use polyamorous, as that is a) how my friends refer to themselves most frequently and b) a term I understand and should have been more careful to catch the error! Thank you though, for the explanation, because the terms are confusing and easy to misuse (as I can attest to) and clarification aids in understanding and the more people that understand, the better.
I’m very glad that your family is able to live without hiding your relationship and I hope that one day my acquaintances can enjoy the same.
Back after a couple of days with a couple of responses.
Jodi: For what it’s worth, my family is in the same legal situation as your friends. And many, many poly families feel the pain of hiding things that should be sources of pride.
Many fear losing children, although I don’t think it’s ever happened to an egalitarian poly family in Canada.
Sometimes, when we see the anti-polygamy stuff in the media, we forget that, to most of the people behind it, “polygamy” doesn’t mean us. They may not be sympathetic to us. They may be willing to make us collateral damage in a war on what they mean by “polygamy”. They may not even believe we exist. It’s still not their priority to go after loving families who aren’t hurting anybody. They’re thinking about something different. I know; I’ve talked to some of them.
I think that’s even more true for law enforcement and child services than for activists. We are harmless. They are really busy with really bad people doing really bad things. I know that’s not a guarantee of safety. I know that there’s always a chance some official could decide your friends, or any poly family, are a heinous threat to morality, and go after them. That danger is one reason we’re challenging section 293 in court. I’m not saying there’s no risk. Nonetheless, it’s something to remember; we are not a priority target.
My own family is “out”. Our neighbors know, our families know, the people who take care of our daughter know, and you can read all about us in court papers. I still check “single” on a tax form, and I don’t see that as a lie. In every way that the tax authorities care about, I *am* single. They’re not asking me who I love, just which tax table to use. They only care about officially recognized relationships (common-law relationships are officially recognized). My family truly doesn’t exist for tax purposes. That may be wrong, but I don’t think it’s a lie to acknowledge it as as a fact. The same applies for many other cases. I think maybe Megan is being too hard on herself about that.
Fyodor Larue: The 1928 case was about “personhood” in a bit different sense. As I remember, it was specifically about interpreting some rules on who could be a magistrate. Anyway, given the way section 293 is worded, if “person” didn’t include women, it would end up explicitly forbidding multi-man conjugal unions rather than multi-woman ones… the exact opposite of what the BC AG claims it was supposed to mean.
Jodi again, a detail (but a long-winded one):
Actually, “polyandry” is about the only term you definitely can’t apply to your friends.
“Polyandry” means one woman with more than one man. “Polygyny” is one man with more than one woman”. “Polygamy”, according to the dictionary, is any form of multi-person marriage. But they’re tricky terms to use.
The word “polygamy”, although technically correct, has to be approached with care. For some people “polygamy” means not so much “multi-partner marriage” as “abusive, institutionalized patriarchal polygyny”. There are people out there sending that message every day.
With “polyandry” and “polygyny”, especially “polygyny”, there’s a risk of confusion between individual relationships and social systems. A specific relationship may be, say, polygynous. But “polygyny” also means an institutionalized system where all multiple relationships are expected, or required, to be polygynous.
It’s one thing for a group to happen to have two or three women with one man. That’s common in polyamorous families. It’s another thing for a community or institution to set up a rule saying that’s the only way it can go. That sort of rule is totally rejected by egalitarian polyamorists (but it’s pretty fundamental for patriarchal polygynists).
The same confusion applies for polyandry, although that’s less politically charged.
So your friends are techically both “polygamy” and “polygyny”, but using either word casually will almost always give the wrong impression. They’re also “polyamory”, but polyamory covers a whole panoply of less committed or just plain more complicated relationships. We don’t have a lot of words that are descriptive and at the same time aren’t loaded.
Perhaps we can just call them a “nice poly family”.
Fyoder Larue says
Ok, we’ll give you gay marriage, but multi-spousal marriage? Waaaay too complicated 😉 Hopefully we’ll get around one day to redefining the nature of marriage and family to be more inclusive of non-traditional arrangements, and gay marriage may be looked back upon as the first step, but I’ll bet the final stumbling block will be issues of rights to property, children, etc… Visions of old King Solomon suggesting the baby be cut in two.
BTW, jbash, in Canada women officially became persons in 1929. This was after the Supreme Court in 1928 ruled that they weren’t persons. Back then the Supreme Court wasn’t the last appeal, and their ruling was overturned by the Judicial Committee of the Privy Council in England. http://canadaonline.about.com/cs/women/a/personscase.htm Consequently, it could be argued that in 1890 the status of women as persons was, at best, uncertain.
Jodi A. Shaw says
Thanks for all the great comments. This was a challenging article to write and I appreciate the depth with which you have all responded. Some afterthoughts I’d like to share …
Steve, Laura and Megan’s polygamy, or polyandry, a more apt term, stems not but from the belief that you can love, romantically, more than one person at the same time. If they have any religious inclinations regarding their relationship, it’s unknown to me.
And I did not acknowledge in the article that no one in the house is married, and where things get tricky, legally, is that only one common-law relationship can be claimed. So if Laura and Steve are declared common-law, then Megan has to declare herself as single (ticking the ‘single’ box on tax and insurance forms seems a simple enough thing to do, but from Megan’s perspective it is not true and it puts her in a position where she has to lie about her life) in order to stick to the letter of the law. However, should both women be honest and claim Steve as their common-law partner, insurance companies and tax agencies may take legal action and may inform the appropriate authorities given that an infant is involved, which is where their fear comes from. Their fear is the child being taken away and so rather than try to explain their relationship to other people in the hopes they will be able to distinguish between a multi-marriage relationship and a multi-partner relationship, and have it accepted, they have taken the safe road and kept it secret.
I would like to see a more in-depth examination of the role that religion plays in polygamy — where religion is used to justify child brides, statutory rape, and incest — and to not allow religion to be a justification for crimes to be committed. I think decriminalizing polygamy is worth considering, but I think doing so now could be potentially dangerous to the women who belong to polygamous religious groups.
I see no problem with Steve, Laura, and Megan’s relationship. Sure, it’s inherently complicated,but that’s their choice, they aren’t hurting anyone and most importantly, they’re all in it because they want to be.
Um, Johnstone? You’re wrong.
Here’s the actual text, rather than a loose paraphrase:
“Conjugal union” (the important phrase in the law) means, and meant in 1890, behaving as if you’re married. You don’t have to say “we’re married”, you don’t have to have a ceremony, and no authority has to recognize you. You do have to have a relationship with some of the attributes or social functions of marriage. Basically you have to do whatever would make you “common law married”.
Factors that have been considered under modern family law include living together, having sex, child rearing, commitment, financial interdependence, and even watching TV together in the evenings. Claiming to be married is also a factor, but far from definitive. Same for ceremonies. You don’t have to do any particular one of those; you just have to do “enough” of them.
Common law couples in Canada absolutely are in conjugal unions, so are the people in Bountiful, and so are many polyamorists, including me.
It’s also wrong to claim that protection of property rights is a significant purpose of s.293. I’ve read the minutes of the Parliamentary debates. The subject did not come up; basically everything they said was about showing the Mormons who was boss. If you were talking about s. 290, you might have a point. I can understand why the AG wants to say that it’s about property… they’re desperately searching for a constitutionally defensible purpose for the law. I don’t know why anybody else would believe it.
You’re right that both the AGs have odd interpretations of the statute. I very much doubt that has anything to do with some shadowy conspiracy to change family law. They’re simply hoping to find readings they can actually defend in court, since the plain meaning of the words is not defensible under the Charter.
BC’s reading is simply fanciful. I can’t believe they think any judge will swallow their contention that an 1890 Parliament intended to not outlaw polyandry or didn’t know the difference between “person” and “woman”. I assume they’ve grabbed onto the “polygyny only” view because they hope that interpretation will somehow make Joe Henrich’s social darwinist speculations into a valid section 1 justification for the law… not that it would.
Canada’s reading focuses on a questionable interpretation of the word “polygamy” in s.293 (making more or less the same misinterpretation as you do about ceremony), and tries to sweep the much broader “conjugal union” prohibition under the rug. Again, they’re trying to narrow the thing enough that they think they can defend it.
None of the lawyers for any of the dozen or so parties to the reference, on either “side”, have advanced your interpretation or even given it any consideration.
Canada’s current laws do NOT make it illegal to have sex and cohabitate with others. It always amazes me that people do not seem to read the polygamy law before interpreting it. s.293 of the Canadian criminal code makes it illegal to:
1) lay legal claim to having more than one conjugal union /spouse ( married like state of being) in law or claims to rights of law, at the sametime. These conjugal unions can be civil marriages or recognized cohabitation marriages. As long as provincial family courts and social instituions do not recognize them, there is no trangression, unless the parties lay CLAIM to polygamy (multiple spouses). Any authorities that do recognize them, is in trangression and subject to prosecution.
2) lay religeous claim to having more than one spouse at a time, same thing as above.
3) assist or authorize any persons to believe they have more than one recognized spouse, condone this or provide consent for this.
Stop polygamy Canada and others are attempting to make this reference side show into a polygyny matter when clearly the intent of the law is to stop any gender polygamy. Womens and mens equality rights and the protection of Canadian institutions such as marriage, divorce, inheritence, social welfare and other matters are at stake here.
The attorney general of BC claims the secondary purpose of s.293 is to protect marital type property from fraudulent multi-spouse claims of “spousal hood”. He is correct. What he is incorrect about is that s.293 applies only to polygyny. The Federal AG has that part correct. Both the AG’s are incorrect in stating s.293 should apply only to “religeously coerced” polygamy. Simple reading of the polygamy law clearly indicates it is intended to stop polygamy which includes polyandry and same sex polygamy as well. The AG’s don’t want people to know that the provinces intend to introduce legislation that will allow married women to take more than one spouse under provincially regulated family law. In short, a woman will be allowed to take another spouse in cohabitation, without divorcing first. It will not matter whether she lives with both spouses at the same time. Divorce will be a thing of the past for many and lawyers are going to love the new revenue stream from multi-spouse family property litigation. Speedy no-fault divorces will be a thing of the past, something family law lawyers want to see go away too. After time, men will learn that maried women living with them are their spouses in provincvial law within 24 months, whether the women are divorced or not.
Certain activists have done a great job of identifying “polygamy” with certain groups, notably the FLDS and Bountiful, and with abuse in those groups.
Their error is understandable. Many of those activists have personal experience in the FLDS and related groups. In their minds, “polygamy” really does mean the FLDS, and is inseparable from the other parts of the FLDS way of life. Other activists have seen institutionalized, patriarchal polygyny as practiced in other very sexist cultures, and they often believe that “polygamy” means a system of oppression of women, similar in many ways to the FLDS system.
The problem is that they are wrong.
ALL of the people describing abuse in recent court testimony come from a small group of closely related fundamentalist Mormon sects, notably the FLDS in Bountiful. Bountiful, the only “significant” fundamentalist Mormon colony in Canada, is a microscopic community that’s been isolated from the surrounding society for decades. It has about 35 polygynous families, and about 120 spouses in those families.
It wouldn’t be too far from the mark to say that all these people are describing the same extended family. To take their experience as definitive of “polygamy” is no more valid than to take the experience of any of the other abused children in Canada as definitive of “monogamy”.
There are almost certainly thousands of of egalitarian polyamorist “polygamist” families living in Canada. We share essentially no unusual values, practices, or cultural roots with fundamentalist Mormons or any other patriarchal group. Among other differences, we have many women who have multiple husbands, mixed-sex groups, and groups all of the same sex, as well as nontraditional genders. We outnumber the fundamentalists enormously, but are made invisible by sensational depictions of abuse around Bountiful.
Even among patriarchal polygynists in Canada, there are many more families who claim the permission of Islam to practice polygynous traditions than there are fundamentalist Mormons. These “Muslim polygamists” aren’t emphasized simply because they are neither as desirable as “poster children” for the anti-polygamy movement, nor as dramatic for the press.
Megan, Laura, and Steve may come from a “soft” patriarchal tradition, perhaps “Christian polygamy”. It’s even more likely that they created their own rules, and would find themselves most at home with the individualized, negotiated approach of polyamorists. There is support for them. There are polyamorous social and support groups in every major city in Canada. They should try the Canadian Polyamory Advocacy Association at http://polyadvocacy.ca , the poly group registry at http://www.polygroups.com, or Loving More at http://www.lovemore.com .
What I find interesting about this is that many people keep talking about Bountiful. What about the woman who has two partners who is leading this case? What about the wording of our current laws that makes it illegal to have two sexual partners if you co-habitat with them (married or not, short term or long). What about relationships were all involved are also all involved sexual with each other, not just like this one woman with two partners but where each is eachothers partner. And why is this about isolated polygamous communities when polyamory (polygamy is a man with multiple wives… polyamoury is any multipartner relationship) when these relationships exist in all cities and regions.? Child brides and incest are illegal along with many other issues that supposedly are a direct result of loving more than one person… why aren’t those being enforced instead of preventing consenting adults from making their own decisions about who they love (not that they have much of a choice when it comes to picking who you fall in love with… and how many people at that). I’m sorry, but aren’t we supposed to be a free people?