Jesse Kline [Jesse Kline is a Comment Editor and Writer at the National Post in Toronto, Canada] on polygamy: State shouldn't interfere in consensual adult ... http://bit.ly/vTSsdx
Jesse Kline on polygamy: State shouldn’t interfere in consensual adult relationships
Nov 24, 2011
On Wednesday, the British Columbia Supreme Court released its judgment in a reference case on Section 293 of the Criminal Code, upholding Canada’s legal ban on polygamy.
Justice Bauman does, however, say that it’s overly broad because it criminalizes children who find themselves in polygamous relationships, whereas it’s the adults that are forcing the arrangement upon them who should be held criminally liable.
Although this reference is not binding on Parliament, the Chief Justice is at least partially correct: It should be assumed that children below the age of majority have been forced into such relationships and should not be held criminally responsible for their involvement. Parliament should certainly consider changing the law so that minors are not treated the same as their abusers.
But this is where the argument falls apart. The standard criticism of the Mormons living in Bountiful, British Columbia, Canada, is that women and children are forced into marriages against their will, which has nothing to do with polygamy. It doesn’t matter if a child is forced into a monogamous or polygamous relationship — it is illegal and should be prosecuted to the full extent of the law.
The real problem is coercion, not the type of relationship people are forced into. It wasn’t long ago that this country had a similar debate about gay marriage. And although people are not forced into homosexual relationships, there certainly were people trying to make a connection between homosexuality and pedophilia.
But the truth that most Canadians have come to realize is that no one is harmed by two adults engaging in a consensual relationship. People in heterosexual relationships have not lost anything and gay people are now free to get married if they so choose.
Like gay marriage, the central question in the polygamy debate is whether the state should be dictating the domestic arrangements of consenting adults. That we’re talking about more than two consenting adults, is not a rational basis for changing our answer. But this issue is far from settled.
The case could still be appealed to the Supreme Court of Canada and, regardless of the outcome, can still be changed by Parliament. Although it is unlikely that the current government would legalize polygamy, this does not mean it won’t happen in the future. And one thing is certain: This issue is not going away.
Most cultures have historically been polygamous, including Judeo-Christian society. But societies change and such changes are not generally the result of government policies. In fact, governments usually lag behind societal changes, only making substantial legal reforms long after there has been a shift in public opinion.
Western society has gone through two important changes in this respect. First, we have become more open, inclusive and tolerant of a variety of lifestyle choices. Although far from perfect, Canadians no longer have to be afraid to be openly gay, or to show off their individuality in a variety of different ways.
Society has also evolved from biblical times when having multiple wives was a common practice, to today, where it is taboo. Allowing consensual adults to engage in polygamy without the threat of being thrown in jail is not going to change that.
Furthermore, it is unlikely that most people who have been in a serious relationship with one person would think it a good idea to double down on the arrangement. Arguments that polygamy causes societal harm by taking too many women off the market become a moot point, because there is nothing to suggest that there would be widespread adoption of the practice. (Not to mention that if it were adopted by secular society, there would be no reason not to see relationships involving one woman and multiple men).
Others will argue that most women who enter into polygamous marriages have been brainwashed into thinking it is acceptable. There is likely a lot of truth to this, especially in cults, such as the one operating in Bountiful. We should do everything possible to ensure this doesn’t happen, but it is not a valid reason to restrict our liberties. After all, where does the argument end? Is there any activity we freely choose to engage in that couldn’t be argued is a product of our societal upbringing. Very few.
As Justice Bauman wrote, “this case is essentially about harm,” including “harm to women, to children, to society.” This is the only possible rationale for polygamy laws, but the harm is not caused by polygamy itself and the things that cause harm will remain illegal, regardless of the status of polygamy.
Police should fully investigate and prosecute cases where there is evidence of women being forced into relationships against their will. Likewise, it should be assumed that children who are getting married are doing so against their will, regardless of whether they are the only bride, or one of many. Until kids reach the age of majority, they should not be allowed to make such life-altering decisions, and their spouses should be prosecuted for child abuse.
The law, however, should not be so broad as to criminalize behaviour that hurts no one and is engaged in by consenting adults.
Jesse Kline: • email@example.com |
Posted in: Canada, Full Comment, Social Issues Tags: Abuse, B.C. Supreme Court, Bountiful, Charter, Charter Of Rights And Freedoms, Child Abuse, Consent, Jesse Kline, Libertarian, Liberty, Polygamy, Rights, Robert Bauman,Sexual Abuse
The problem with the movement to decriminalize polygamy in Canada, such as it is, has always been a lack of victim heroes. Nobody’s rights were being trampled upon by Section 293 of the Criminal Code, which prohibits “any kind of conjugal union with more than one person at the same time,” except polygamists. And people don’t like polygamists. A 2007 Angus Reid poll found 84% Canadians believe the lifestyle is “morally wrong.” For Canada, that’s remarkably judgmental.
One could argue that Section 293 was so neglected, prosecutors and politicians so mortally afraid of using it, that nobody’s rights were being trampled upon at all. But there are people who insisted they could be victims of the law — polyamorists, for example, living and in some cases raising children in groups of more than two.
Polyamorists were among the groups whose views were heard at the British Columbia Supreme Court’s reference case on the polygamy law, the result of which — somewhat surprisingly — was the upholding of Section 293, contingent upon narrowing its scope to shield children from prosecution. (The current law concerns itself with every member of a conjugal union, no matter how young. In addition to being nonsensical, this is potentially a formidable deterrent for victims of abuse to come forward.)
The swinger issue was just one matter the court very helpfully cleared up. “In my view, the concept of ‘conjugal union’ in s. 293 is intended to capture a union which is a marriage,” wrote Chief Justice Robert Bauman. “That is made plain by the closing words of ss. 1(a), ‘whether or not it is by law recognized as a binding form of marriage.’ It is also made plain by dictionary meanings of the two words.”
Shacking up isn’t conjugal as the law envisions it, in other words; getting “married” is conjugal. But let’s face it: Even if our silk robe-wearing friends do exchange some kind of freaky deaky group vows, the chances of their being put on trial are always going to be slim. Clarity is nice to have, but what we’re talking about here — what we’ve always been talking about — is the Fundamentalist Mormons in Bountiful, B.C.
Clarity there is the most important thing — even more important than what the Court actually decided, or what superior courts decide if this ruling is appealed. If it wasn’t for the social ills that attend this lifestyle in Canada — the trafficking, forced marriage and sexual exploitation of young women; educational deprivation; the biologically imperative abandonment of surplus male children by their parents under the psychologically traumatizing pretense of their moral deficiency — this would be just another hermetic religious community that nobody knew much about.
The worst of these problems concern activities whose illegality has never been challenged. With the legal status of polygamy definitively determined, police, prosecutors and education officials should be able to abandon the squeamish approach they’ve hitherto employed. One of the most pressing examples concerns girls older than the age of consent (16, previously 14) but under 18, which is the age of consent when one party is in a “position of trust or authority” over the other. Most reasonable people would apply that description to a man, in a fiercely patriarchal culture, with a bunch of other wives, to whom a 17-year-old girl has been assigned as a bride by a clergy member. To date, prosecutors have not agreed. Especially if Section 293 is upheld, they should now feel free to conduct full and aggressive investigations, and lay charges where necessary.
Pleasing as Wednesday’s ruling will be to many Canadians who abhor polygamy and the conditions in Bountiful, Section 293 itself will probably still only apply, functionally, to polygamous leaders like Winston Blackmore and Jim Oler, and not to rank-and-file men and their adult wives. That’s as it should be, really. The alternative — locking up every adult — isn’t a great way to start what amounts to a large, complex and delicate social re-engineering project. It’s a project that can’t start soon enough.
Chris Selley: • firstname.lastname@example.org