22 Jan 2011

FLDS lawyer in Canadian constitutional case on polygamy claims members freely consent to plural marriage, abuse survivors disagree

Vancouver Sun - Canada November 25, 2010

Criminal sanction against polygamy offends guaranteed rights, FLDS tells Vancouver hearing

by Daphne Bramham

VANCOUVER -- North America's largest polygamous group says it's not seeking to have polygamous marriages legalized in Canada, only to have the practise decriminalized.

In an opening statement filed in B.C. Supreme Court for the constitutional reference hearing into the validity of Canada's polygamy law, the lawyer for the Fundamentalist Church of Jesus Christ of Latter Day Saints says his clients believe the criminal sanction against polygamy offends a variety of guaranteed rights, not only freedom of religion.

The FLDS has an estimated 15,000 members in North America and 550 in the B.C. community of Bountiful.

Of the 550 in Bountiful, 183 are over 18 and 115 of them are married, 68 are unmarried and 13 are single parents or widows. Of the married FLDS members, 60 live monogamously and 55 are in polygamous relationships.

(Although the FLDS shares the same roots as the mainstream Mormon church, it is not affiliated with the mainstream church, which renounced the practise of polygamy in 1890, the same year that the Canadian government passed the anti-polygamy law.)

In his opening statement, FLDS lawyer Robert Wickett says that Canada's law prohibits making a binding agreement for a plural marriage.

Yet, he notes there is no criminal sanction against living with more than person, having sex with more than one person, having children with more than one person or loving more than one person.

Wickett counters concerns about child brides, sexual exploitation and abuse by saying that the polygamy law "does not (and could not) require that the prohibited agreement involve a minor, occur in the context of dependence, exploitation, abuse of authority, gross imbalance of power or undue influence.

"All of those matters, if proven, would indicate a lack of consent to the marriage or the marriage-like relationship. Without consent, there is no agreement and without an agreement... there is no breach of Section 293 [the polygamy section of the Criminal Code]."

Over the course of the trial which is expected to run until the end of January, the FLDS will argue that the law was improperly enacted in 1890 because it was aimed directly at spiritual marriages practised by Mormons. And even though the specific reference to Mormons and spiritual marriage were taken out in a 1954 rewrite of the law, it continues to infringe on fundamentalists' rights to freedom of thought, belief and expression.

Additionally, the group plans to assert their members' decision of who to have as a marriage partner is protected by the right to association, conscience and belief and limiting that deprives them of their rights to liberty and security.

Wickett describes the law as overbroad, arbitrary and "disproportionate to the state's legitimate interest in the protection of children and in equality of all persons."

The law as it stands "creates [a] regime of acceptable and unacceptable marriages based upon stereotypical assumptions about polygamous unions," Wickett says in his written opening statement.

What the FLDS concedes is that the patriarchal structure of the religion, its codes of conduct and members' belief that marriage partners are determined by God and those decision transmitted through the church leadership is "rejected and indeed reviled by many Canadians."

But they argue that if they are forced to conform to mainstream Canadian standards, "their way of life and their beliefs will be taken from them."

And they argue that their participation in the reference case is "not to defend partriarchy and arranged marriages which exist elsewhere in society, but to challenge the prohibition on plural marriage".

The opening statement goes on to say that the essence of the FLDS's challenge is that its members "freely chose to consent to these practices because of their beliefs."

As for former members who will testify to abuses and bad experiences, the opening statement makes clear that the church will not "seek to justify or explain their mistreatment"

This article was found at:



The Vancouver Sun - November 24, 2010

Abused sisters stand as witnesses to harms of polygamy

by Daphne Bramham

This story contains graphic descriptions that some readers may find objectionable.

When lawyers talk about the harms of polygamy, there's scarcely one that Kathleen and Rena Mackert haven't personally endured.

The sisters have had front-row seats in B.C. Supreme Court for the opening week of the constitutional reference case to determine whether Canada's anti-polygamy law is valid.

"It's a redemption to feel that we can make a difference," Kathleen said during the Tuesday afternoon break. "To go through all the abuse we endured for most of our lives and turn it around for future generations is very redemptive."

Rena agrees and says it's also part of her long healing process.

Both are witnesses for the B.C. attorney-general, who has filed their video affidavits as evidence. Both support Stop Polygamy in Canada and run a non-profit in Anacortes, Wash., that helps victims of domestic violence and polygamy.

The sisters are seventh-generation polygamists. Their ancestors have practised polygamy since soon after Joseph Smith had his revelation in 1843.

Their father had four wives, 27 children and four stepchildren. Their mother was his third wife and she had seven children. Rena is one of her older children and she was born in a chicken coop near the Utah-Arizona border.

That's where their mother lived and was grateful for a place of her own, even if it was unheated and had no running water or electricity.

Rena says her father began molesting her when she was three.

Kathleen can't recall when her father began molesting her. But by the time she was six it had become so intense that she tried to kill herself by taking an overdose of pills. Later, she remembers her mother turning a blind eye to the blood in another sister's diapers.

The children were also neglected. No doctor was called when Rena had measles, mumps and chickenpox all at the same time, or when her ear infection was so severe that it left her profoundly deaf in one ear. Her father blamed the illnesses on Rena and her mother lacking faith and being disobedient.

Their mother, who remains a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints, never spoke up when the prophet arranged for both Rena and Kathleen to marry their stepbrothers. Rena had only 36 hours to adjust to the idea that her stepbrother was soon to be sharing her bed; Kathleen had a week.

Rena was able to finish high school and was the first female FLDS member to get a driver's licence, but only because her husband granted his permission.

On the eve of their fifth wedding anniversary, Rena's husband left her and the group. It was 1977 and a few months later, 23-year-old Rena fled, after the prophet tried to force her to marry a man in his mid-50s. She left her children behind, believing what the prophet told her: that the children didn't belong to her, but to him because they were the product of plural marriage.

Nearly a year later, Rena went back in the middle of the night with a sheaf of legal papers and demanded that her father hand over her children. She grabbed them and "drove like the devil was on my tail."

She was the first woman to leave the FLDS and take her children with her. Nine years later, Kathleen followed her sister's path and left with her children.

Rena has spoken against polygamy as has another sister, Laura Chapman, co-founder of the American group Tapestry Against Polygamy.

Both have received death threats, which is why Kathleen -- whose children are younger -- stayed out of the controversy until two years ago.

But now she's fully engaged. "It's important for Canada and the U.S. as well that the law is upheld," says Kathleen.

"If the law is repealed, you will see an increase in trafficking of girls ... as well as an increase in child labour and increased violations of human rights and civil liberties."

As pleased as they are that the issue is before the court, both sisters know that the law could be declared invalid because it breaches the guaranteed rights to freedom of religion, association and expression.

If that happens, the sisters won't be happy.

But, they say, at least they will be content knowing that they have done everything they could to make people understand what polygamy looks like from the inside.

This article was found at:



Stop Polygamy in Canada website has notes taken by observers in the courtroom as well as links to most of the affidavits and research the court is considering in this case.

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