Monday, 19 January 2009

Polygamy in Bountiful

Two weeks ago, criminal charges were brought against two men living in the community of Bountiful, British Columbia, on the grounds of polygamy. The Attorney General of the province and other government officials justified this move arguing that it was needed to ensure protection for the women and children of this community. Public concerns revolve around the belief that Bountiful, as an openly polygamous community, is a place where child abuse, forced marriages, child brides, and sexual assault are common.

Ever since I began researching the topic of polygamy, I have been bothered by the idea that this practice is justifiably criminalized because it is associated with the ills I have just listed. However, within our Criminal Code, we have clear and specific provisions to target these offences, which are clearly harmful, and which any reasonable person considers intolerable and deserving of criminal sanction. So why, then, does s. 293 of our Criminal Code (banning polygamy) remain, a provision which, by the way, is almost never invoked and, when it has been used, have led to few convictions that carried relatively minimal sentences?

Nearly 18 months ago, one of the special prosecutors named by B.C.’s Attorney General to investigate the “polygamy problem” in Bountiful released a report acknowledging that a prosecution on the bases of sexual exploitation or sexual assault against any of Bountiful’s residents would fail. In particular, he found no “substantial likelihood” of a conviction because of insufficient evidence of such offences. At the same time, he concluded: “I have come to the conclusion that polygamy itself is at the root of the problem. Polygamy is the underlying phenomenon from which all the other alleged harms flow, and the public interest would best be served by addressing it directly.

Polygamy will be directly addressed when the two men arrested in Bountiful on January 7 are tried for this offence. There will most certainly be a challenge raised by the accused, maintaining that the charges unduly interfere with their freedom of religion, equality rights, liberty, personal security, and possibly also, their freedom of association, all of which are protected under the Canadian Charter of Rights and Freedoms. It would be shocking if the defence did not succeed in establishing that s. 293 compromises at least some of these guarantees. The onus will then shift to the government to establish that such interference with the accused’s rights and freedoms is justified pursuant to s.1 of the Charter. The arguments raised with respect to s.1 will, in my opinion, reflect the nub of the controversy over plural marriage.

The first question the Crown will need to address is whether a pressing and substantial objective exists to justify the ban on polygamy. This will present a major hurdle for the government. Can it point to the popular assumptions drawn about sexual exploitation and abuse in polygamous communities like Bountiful? This will be unlikely, since several independent investigations have revealed no evidence of systemic abuse or coercion. Moreover, my own field research in Bountiful last summer indicated that women today in this community exercise a relatively significant level of choice and autonomy when it comes to deciding who and when they will marry, and also, whether their marriage will remain monogamous. These women are also committed to the value of ensuring that young people reach at least the age of majority before they wed. And last, we have independent provisions for addressing sexual exploitation and assault, so this will beg the question of why we need the polygamy offence.

Another tack that the government might pursue is to marshal arguments about the moral sanctity of monogamous marriage, and the need to use criminal law to ensure its primacy in the place of Canadian law and Canadian society. But that, too, will be an uphill battle. For one thing, it is pretty difficult to argue that Canadians view marriage as something sacred, given current divorce rates of about 38 percent, and given the elevated numbers of couples who opt to remain cohabiting (unmarried) partners (35 percent of couples in Quebec, 13 percent in the rest of Canada). Moreover, the act of adultery has never had criminal consequences in Canada, and has barely any consequences any longer in determining divorce outcomes. Canadian courts have also indicated that practices associated with open sexual relationships and “swinging” are beyond criminal law’s reach, provided that those involved are consenting adults.

How then, to justify the banning of polygamy when the practice defined in the Criminal Code under s. 293 is broad enough to include not only formal marriages between more than two people, but “any kind of conjugal union” with more than one person, “whether or not it is recognized by law as a binding form of marriage.” Could the person separated but not divorced, who begins to cohabit with a new partner be caught? Could the divorced individual still in a religious marriage who then remarries civilly be arrested? And what about the “cheating spouse” whose relationship with the “other woman/man” starts to look a little too conjugal?

The question of course is whether the state is prepared to enforce the polygamy provision against all those caught within the sweeping definition of the offence. As others have argued (e.g., Susan Drummond at Osgoode Hall Law School), the real risk in all of this is that it is those who “stand out”, the “others” the “them” and “not us” – that is, religious and cultural minorities – who are at real risk of being snared by this provision. There is no doubt that a careful look at who was just arrested for polygamy (and, of course, who was not) supports this hypothesis.

No comments: