4 min

Can we get rid of Canada’s polygamy laws?

Sexual freedom, charter vulnerability & women's rights at stake

I pick fights.

Last week, I got more than I bargained for when I asked one of my on-again, off-again partners for his opinion about the Fundamentalist Church of Latter Day Saints in Bountiful, British Columbia.

There wasn’t even a pause. We should prosecute Winston Blackmore and his odious cult for polygamy, he said. By some stroke of serendipity, Bountiful had been the subject of his law exam the previous week, and he’d written a long paper urging intervention.

So the guy I was dallying with while I was embroiled in a least two other semi-stable sexual relationships — who was literally walking me from dinner with him to my boyfriend’s apartment — is saying to nail Blackmore using the poly laws.

Needless to say, it caused a bit of non-monogamous cognitive dissonance, a short argument, and I was late for my rendezvous with my main squeeze.

Here’s the crux of the law we’re talking about:

“Any kind of conjugal union with more than one person at the same time — whether or not it is by law recognized as a binding form of marriage — is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.”

Nearly from the grave, this obscure bit of the criminal code has been resurrected in recent weeks. Ever since authorities raided the Eldorado ranch of Bountiful’s American cousins, headlines in the conservative press have taken turns asking, “Why aren’t we prosecuting polygamy in Bountiful?”

Indeed, Canada hasn’t prosecuted polygamy in more than 60 years. Folks on both sides of its ideological divide have pointed at the law, prodded it, and found it wanting.

Rightwingers have sneered at its susceptibility to a charter challenge. The less astute among them ask, “What? Do we have a constitutional right to more than one wife?”

Of course, the vulnerability of the polygamy laws has nothing to do with equality rights, as my whiny, rightwing straw man suggests. The polygamy law’s legal faultline is a good, old-fashioned Section One challenge, based on the circumscription of law to “reasonable limits prescribed by law as can be demonstrably justified.”

It’s a matter of freedoms, not equality. By now, anti-terrorism legislation is every politician’s little black dress, so the idea that limits to our freedom must be justifiable has fallen a little out of fashion. But here we are.

If the goal of the polygamy laws is to protect women from being brainwashed into odious, unhappy lifestyles, we have (paternalism aside) a classic case of a law that’s both overly broad and insufficiently specific. It covers a host of relationships (including many, many gay relationships) that are neither coercive nor exploitative. Moreover, it misses the thousands of relationships that are monogamous but filled with domestic strife and psychological abuse.

Indeed, this isn’t a law that’s specifically about having multiple wives — it’s about multiple partners, period. The egalitarian, social-justice minded, lesbian thruple down the street? Yep, they’re definitely covered under this law. And that’s enough to get my antennae twitching.

It gets worse, because you don’t have to be plural-married to be targeted by the law. You don’t have to be married at all. If you live in Canada, any plural marriages you undertake are a legal void — they don’t exist, so necessarily, non-marriage relationships must be considered under its scope.

And because of the law’s lax wording, prosecutors don’t have to prove that there was sex involved or that a marriage ceremony was actually performed. So, it’s a muddy, muddy law.

If the RCMP were to arrest Blackmore and his followers under the polygamy laws, their polygamy would be treated as proxy for what many believe is child and spousal abuse. In addition to being a cruel and unfair portrait of poly people, it’s lazy police work. Laws against child and spousal abuse are on the books. If the folks in Bountiful are abusers, arrest them for that. Leave poly out of it.

Incidentally, the warrant that caused all the drama in the US has been dropped. The teen who called a help line to complain about abuse at the hands of Dale Barlow was never found. After physical exams of the 464 children and teens, authorities now say 41 have histories of broken bones, although none have yet been linked to child abuse. Or, for the record, to polygamy.

In fact, the US example is increasingly looking like a case of charge first, investigate later. Polygamy is a wedge used to pry open access to the cult’s inner workings. They’re hoping that they’ll find spousal-, child- and sexual-abuse cases that they can prosecute. But they really ought to have evidence of the crime first, as police have learned over the last month.

With their case gently unravelling and FLDS prophet Warren Jeffs on suicide watch, you’ve got to wonder whether the polygamy proxy is useful at all.

In a feminist analysis of the polygamy laws, Queens professor Martha Bailey points out the negative consequences of the prohibition. Some members of the marriage have no legal standing — which leaves them out in the cold when it comes to marital property division, inheritance, divorce and immigration. By not recognizing polygamous marriages (her argument focusses on foreign poly marriages), we may be leaving women in a worse position than if their marriages were legal.

Now, ideally, the state should be getting out of the business of marriage altogether. If everyone were afforded transitional support instead of the crucible that is Canadian divorce proceedings, we might be able to lure more women out of their unhappy nuptials. I’m not sure state recognition of poly relationships is where we should be going. But in the meantime, we’ve gotta get the polygamy laws off the books. Decriminalization, in other words, not legalization-and-regulation.

Imagine a scenario where the harems of Bountiful were recognized by the state. Now, when a second wife leaves her marriage, she’s entitled to very little. But if she could sue for her part of the farm, well, let’s just say that would reduce her barriers to leaving. Over time, the ex-wives could end up owning the lion’s share of Bountiful. And wouldn’t that be a breath of fresh air?