Polygamy law 'could break up loving families'
Groups claim they 'fear' legislation
By Keith Fraser, The Province
The opening statements in the polygamy trial in B.C. Supreme Court wrapped up Thursday with two more groups calling for the controversial law to be struck down.
A lawyer for a group of fundamentalist Mormons in the community of Bountiful adopted prior submissions that the law was unconstitutional and violated their freedom of religion.
Robert Wickett, speaking for the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) and James Oler, one of its leaders, said the FLDS did not seek to explain or justify any evidence of social harms arising from polygamy.
Wickett told B.C. Supreme Court Chief Justice Robert Bauman that any such harms, such as forced marriages, should be investigated, but he argued that the polygamy law "lacks the nuance" to deal with any such harms.
Wickett said he would be calling 16 witnesses, most of them women and most of them wanting to remain anonymous.
Many of the FLDS members in Bountiful, which has a population of 550, fear that the law could rip their families apart, he said.
"That is the driving fear."
Some of the women married at the ages of 16 and 17, and "they will give the court their perspective on marriage at that age," he said.
"You will not hear the voices of victimized automatons. Some agree that marriage should not be before the age of majority."
Also calling for repeal of the law was the Canadian Polyamory Advocacy Association, which represents people engaging in multiple partnerships of various kinds.
John Ince, a lawyer for the association, said the polygamy law is "fundamentally flawed" and doesn't differentiate between the patriarchal polygamy of fundamentalist Mormons and polyamory, where no gender is dominant.
Ince said there was no evidence anywhere of social harms arising from polyamory.
The positions of both the B.C. and Canadian governments, which differ slightly but ultimately seek to uphold the law, were "deeply disturbing" to people engaging in polyamory, he said.
"This is a law that could break up loving families. It is as radical an intrusion into the private sphere of life as can be imagined."
Ince said there were thousands of people engaging in polyamory in Canada.
The first witness in the case is expected to be heard Monday. The trial is expected to run until the end of January.
The issue of whether the polygamy law is constitutional was referred to the court after Oler and Winston Blackmore, a second fundamentalist Mormon leader in Bountiful, had their charges stayed in 2009, the first such attempted prosecution in more than 70 years in Canada.
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The Vancouver Sun - B.C., Canada November 26, 2010
Should some kinds of polygamy be legal but not others?
by Daphne Bramham
Is there good polygamy and bad polygamy? That was the big question raised Thursday at the end of the first week of the constitutional reference case to determine the validity of Canada's polygamy law that's being heard in B.C. Supreme Court.
But it may be one of the simpler ones, since earlier in the week most of what Chief Justice Robert Bauman heard in opening arguments concentrated on more legalistic questions focused on how to strike a balance between competing rights.
On Thursday, the lawyer for North America's largest polygamous group told Bauman that his clients are only participating in the case to challenge the prohibition on plural marriage.
What Robert Wickett said his clients -members of the Fundamentalist Church of Jesus Christ of Latter Day Saints -are not prepared to do is debate their belief in patriarchal control and arranged marriages.
The FLDS believes in a patriarchal structure, its codes of conduct, and that marriage partners are determined by God, whose decision is then transmitted through the church leadership. Wickett told Bauman that FLDS members know that those beliefs are "rejected and indeed reviled by many Canadians."
But that's not up for debate, he said. (Not debating the tenets of a particular faith was supported earlier by another interested party. The Christian Legal Fellowship noted in its submission that the only inquiry appropriate for the court is whether the people making the religious claims do so in good faith. However, it has an entirely different conclusion from the FLDS about the law and will argue that polygamy is inherently harmful both to individuals and society and that monogamy is the only appropriate form of marital relationship.)
Yet while Wickett said the FLDS will not defend patriarchy and arranged marriages, he told the chief justice that its members "freely chose to consent to these practices because of their beliefs." And those very beliefs and the FLDS way of life, he argued, will be taken away if the court upholds the 120-year prohibition on polygamy.
But a number of other interested parties pointed out earlier that religious freedom is only one constitutionally guaranteed right. Others include women's equality, choice, freedom of association and expression, and the right to liberty and security.
Right after Wickett outlined the FLDS case, John Ince made opening remarks on behalf of the Canadian Polyamory Advocacy Association.
Ince and the association reject "traditional, patriarchal polygamy ... where men have dominance and women are inferior and where only men have the right to multiple partners."
But he and his clients want an exception made for their practice of polygamy, which is based on the belief of "conjugal freedom" to choose how many partners you have, their sexual orientation and how long you are willing to be with those partners.
What they want is a "surgical approach" that could criminalize folks like the FLDS, while leaving them free to be sexual explorers and innovators who are "incubating a new form of relationship."
Several of the examples Ince used to point out the problems with the law as it's written do give pause.
The attorney-general of B.C. argued earlier in the week that the law as it stands only applies to polygyny -men with multiple spouses, not women with multiple partners or homosexuals with multiple partners.
Using an example of three lawyers, Ince pointed out a male lawyer would be criminalized for having two conjugal partners, but a female lawyer could legally have two male spouses.
The attorney-general for Canada earlier in the week defined polygamy as any relationship involving more than two people that has been formalized by some sort of rite or ceremony.
By that definition, said Ince, three lesbians living together on Commercial Drive would be criminals if they had a party to formally mark their shared love. But if they didn't have a party, they'd be fine.
These broad definitions, he argued, are "as radical an intrusion into the private sphere of life as can be imagined."
Further, Ince said, it goes against Canada's long tradition of respect for diversity, social experimentation and individual freedom within the sanctity of their own home.
But is polygamy by any name really what Canadians have in mind when they think about diversity?
Is there a good kind of polygamy and a bad one?
Is polygamy in any form something that Canadians believe ought to be constitutionally protected?
There were so many questions at the end of week one of the trial that's supposed to last until the end of January.
Let's hope that as the days and weeks roll by with evidence given by experts on all sides that the answers become clearer, both for Bauman's sake and our own.
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Macleans - Canada November 26, 2010
Why should polygamy be a crime?
by Andrew Coyne
I’m going to go out on a limb here and say that I’m against polygamy. I think it’s wrong, and harmful, for all the usual reasons: that it devalues women, impairs the trust on which marriage and family life depends, upsets the sexual balance in society at large, and is broadly incompatible with the egalitarian, individual-based political values of Western civilization.
So when it came to opening statements in the landmark British Columbia Supreme Court reference on the issue, the government lawyer had all the best arguments, in my view. And yet I found myself agreeing with the conclusions of the amicus curiae, the lawyer hired by the court to represent the other side of the case.
The specific question the court is being asked to answer is whether the Criminal Code ban on polygamy is in violation of the Charter of Rights. But at bottom the issue is the role of the criminal law in regulating conduct. If the reference helps to clarify our thinking on that, it will have served a much broader purpose.
Society is confronted with all sorts of behaviour, aberrant or otherwise, which it must decide how to deal with. Broadly speaking, these break into four. There are things we encourage. There are things we tolerate. There are things we discourage. And there are things we prohibit.
These are separate and distinct ideas. Yet we are forever getting them mixed up. To tolerate something, say nose-picking, is not necessarily to encourage it. Nor, merely because we refuse to encourage something, for example by denying a subsidy to an arts group, can we be said to have prohibited it.
Likewise, even if we do not prohibit a certain type of behaviour, we can still register our disapproval in other ways. We can discourage it, not only by force of argument or social sanction, but by force of law—without going so far as to make it a crime. Can, and should. In a free society, we should always prefer the least intrusive means of correcting harmful behaviour, consistent with getting the job done.
There are two kinds of harm associated with polygamy. There are the specific harms done to the women and children of actual polygamous marriages, as in the breakaway Mormon sect in Bountiful, B.C., whose decades-long flouting of the law finally provoked the government, unwilling or unable to prosecute for fear the law would be overturned on religious freedom grounds, to seek the court’s guidance. These include allegedly forced marriages, sexual abuse of children, exploitation, and confinement. And there are the more general, what-if harms to society at large: the presumed effects, if polygamy were to become widespread, on marriage, the status of women, and so on.
Of neither type of harm, as I said, am I in any doubt. But the practices listed under the first type of harm, it will be noticed, are all crimes in their own right, under other sections of the Criminal Code. We don’t need to ban polygamy to ban rape: it’s banned already. Granted, there are practical concerns about the chances of successful prosecutions in these cases, given the exploitive nature of polygamous relationships and the difficulties in getting witnesses to testify. But the ban on polygamy is too crude a proxy.
(Indeed, the second question in the reference seems to acknowledge this. It asks whether the code’s general proscription on polygamy, though it does not say so, should be understood to apply only in cases involving a minor, or “in a context of dependence, exploitation, abuse of authority, a gross imbalance of power, or undue influence?” Should the court find that it does, it could narrow the law’s scope without invalidating it altogether. Better yet, the federal government might take the hint and redraft the law.)
As for the broader harms that many fear would arise if polygamy were not a crime: again, just because we do not prohibit something does not mean we have to tolerate it. We can still discourage it. Specifically, we can discriminate against it, withholding the social and legal status we confer on monogamous marriage. We don’t need to ban polygamy. We can just refuse to recognize it.
It is the solemnization of polygamy, after all, that the law forbids, not the practice. It is not a crime for a man to have sex with three women, or to live with them. He just can’t marry them (or live in “conjugal union,” which I suppose puts Hugh Hefner in some jeopardy). Indeed, he still couldn’t lawfully marry them, even if the polygamy ban were overturned. Though it would no longer be a crime, it still wouldn’t be legal.
I can hear the harrumphs already: how long until that bar fell, too? Didn’t we just legalize gay marriage? Didn’t the courts say it was illegal to discriminate between one type of marriage and another? Well, no. They said it was illegal to discriminate between two types of monogamous marriages. They did so, not because discrimination can never be justified, but because in this case it could not—because there was no persuasive evidence of the harm that would follow from recognizing gay marriage in law.
Perhaps some will argue that polygamy is no less benign in its effects, and that as such it should be as lawful for five people to marry as two. Perhaps they expect the courts to adhere to what Mencken called “a foolish consistency.” I rather doubt the courts will oblige them.
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CBC News - Canada November 26, 2010
Crown wants polygamy testimony off internet
British Columbia's government wants video testimony of former wives and children from polygamous communities kept from the public, the B.C. Supreme Court has been told.
Nearly all of the 14 people who gave their affidavits via video are highly critical of the polygamous way of life and all have left their communities.
But while the content of what they have to say will remain public, the B.C. Crown wants to ensure their images don't end up on the internet unless the witnesses consent.
The lawyer for the province, Craig Jones, also asked the judge in the case being heard in Vancouver to order a local newspaper that has already posted edited clips from four of the videos to remove them.
Jones said the witnesses have volunteered to tell their stories, but that doesn't mean they've consented to having the videos circulated online.
"There has to be a difference between a witness accepting that they will be reported on, that the judicial process will be scrutinized [by reporters] on the one hand, and on the other hand, that their image and voice will be broadcast for eternity on the internet," said Jones.
The affidavits have been filed as part of a landmark court case determining whether Canada's prohibition against polygamy is constitutional.
Jones said witness Ruth Lane, who was once married to Bountiful leader Winston Blackmore, had complained that her video was posted to the internet. In contrast to the other witnesses, Lane argues that polygamy shouldn't be illegal.
Appeared on U.S. TV
But Dan Burnett, a lawyer for several media outlets challenging the Crown's request for a publication ban, said Jones had failed to demonstrate any harm from allowing the public to see the videos.
He noted Lane has made numerous magazine and television appearances, including appearing on the Dr. Phil daytime TV show in the U.S.
"The suggestion that there is any [negative effects from publishing the videos], when she has said the same thing to a mass national audience is a stretch to say the least," said Burnett.
"It's not even a remote and speculative danger, it's just a whim, a preference by a witness."
Jones said the justice system must respect the privacy of witnesses to ensure they will be comfortable coming forward. He said that's particularly important for the polygamy case because witnesses can't be compelled to testify and have instead volunteered to do so.
The court had already permitted the media to access the videos, but Jones argued that isn't the same as obtaining permission to publish them.
He said news outlets should be forced to seek permission from the court — and obtain consent from individual witnesses — before broadcasting such video testimony.
Judge questions restriction
Chief Justice Bauman, who is hearing the polygamy case, repeatedly questioned why reporters shouldn't be able to publish a video if the court has already allowed them to make a copy of it.
"What good is access if there is no right to publish the results of the access?" Bauman asked Jones.
"[The media] have to be able to describe them and say what's in them," Jones replied.
"But they have no automatic and constitutional right to publication. At the very least, they have to ask somebody."
The constitutional reference case began on Monday and has so far heard opening statements from government lawyers and about a dozen interveners arguing for and against the current law.
The B.C. government launched the case after the failed prosecution of two leaders in Bountiful.
Blackmore and James Oler, who lead separate, divided factions within Bountiful, were each charged last year with one count of practising polygamy. Those charges were later thrown out on technical legal grounds.
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National Post - Canada November 26, 2010
Ex-wife’s tale tars ‘celestial’ picture of polygamy
by Brian Hutchinson
Some of the women to come forward despise it. Polygamy is synonymous with abuse, they say. Mental punishment. Rape and torture. They ran from it and they’ll never go back.
Other women insist they could ask for no better life. Their fulfillment and happiness on Earth and in heaven depend on plural marriage, an arrangement they call godly and “celestial.” They want Canada’s 120-year-old anti-polygamy laws struck down, and they’ve agreed to appear — without being publicly identified — at a constitutional reference case now being heard in B.C. Supreme Court.
Witness No. 4 is 23 years old. She’s from Bountiful, the fundamentalist Mormon community in the B.C. Interior where polygamy has long been practised but has never been successfully prosecuted. Not for lack of wanting; the Attorney-General of B.C. has tried to launch proceedings and police have made arrests, but none has led to a criminal trial.
The polygamists in Bountiful have their Charter rights, their religious freedoms. But these haven’t been fully tested, hence the court reference to determine if Canada’s anti-polygamy laws are constitutionally sound.
“Some years ago I was given the opportunity to be married,” Witness No. 4 writes in an affidavit, sworn last month and entered in court ahead of her live testimony, to come soon. She does not reveal at what age she was betrothed, nor does she describe her husband. Lawyers acting for the province allege that Bountiful’s two middle-aged leaders, Winston Blackmore and James Oler, have married “a number of children.”
Witness No. 4 does describe how her marriage was arranged: “One night I had a dream and in the dream I saw the person I was to marry,” she says in her affidavit. “So when the Prophet [a fundamentalist church leader] revealed who I was to marry and it was the same person I had seen in my dream, it renewed my testimony of this work and the Prophet and I know the Lord leads our Prophet right. I believe my marriage was a match made in heaven.”
She now has one child and says she is “privileged to have four sweet and loving sister wives to live with. Getting along with them and learning to love them is a challenge I enjoy. By saying a challenge I mean it is a challenge for me to see if I can, no matter what others do around me, maintain a kind and peaceful nature all the time.”
She has ventured from her “loving home and a happy community” to attend the College of the Rockies, a post-secondary institution with a campus in Creston, near Bountiful. She considers this “a wild and unstable world. Out there, people were behaving in ways that are not in accord with my beliefs; fighting, impatient, yelling, dating and breaking up, drinking, using foul language, making rude comments.”
Her life would improve if Canada’s courts ruled the anti-polygamy laws invalid, writes Witness No. 4. “O I would sing and dance with rejoicing if celestial marriage was no longer considered criminal..… We would be able to live in peace and not have the outside world peering down our necks and ridiculing us for the way we believe and chose to live our lives.”
Ten other fundamentalist Mormons have filed affidavits with the court; most are strikingly similar in their conclusions. All of these unnamed witnesses are from the same Bountiful faction, the Fundamentalist Church of Jesus Christ of Latter Day Saints, directed in Canada by Mr. Oler.
The FLDS is notorious in the United States for alleged sex crimes committed under the leadership of its prophet Warren Jeffs, who is now imprisoned in Utah and facing more charges in another U.S. state.
Leading Bountiful’s other faction is Winston Blackmore. He has chosen to avoid the hearing. So, apparently, have members of his flock. According to B.C.’s Attorney-General, Mr. Blackmore’s counsel has instructed the ministry not to contact Bountiful residents under his leadership.
But ministry lawyers did contact people who have left Bountiful, and others who once lived in FLDS communities in the United States. Some will appear as witnesses at the court hearing that’s now underway. They include Mr. Oler’s younger brother, Truman, who says in an affidavit that he has come to consider the FLDS as “like a cult and that it is damaging for children to grow up in that environment. The FLDS does not permit anyone free choice. You are told what to do.”
Another former church member to come forward is Susie Barlow, an American raised in FLDS communities in Utah and Arizona.
Ms. Barlow is just a year older than Witness No. 4. She grew up in a polygamous home; her father had two wives, who bore 22 children between them. Her story has some resemblances to the one told by Witness No. 4. But the differences are vast, and they are alarming.
Ms. Barlow was nine years old when her father was removed from their home, apparently at the whim of FLDS authorities. Three years later, her mother learned she was to become the 12th “spiritual wife” to an “Uncle Fred.” Ms. Barlow remembers how her mother took the news. “She sat on the floor by the phone crying,” Ms. Barlow writes in an affidavit filed in B.C. Supreme Court. “She seemed both sad and stunned. My first thought was that someone had died.”
Ms. Barlow was married off herself, at age 16. “Warren Jeffs assigned me to enter into a ‘spiritual marriage’ with my cousin,” she says in her affidavit. “My husband … was 51 years old.… I became his second wife on December 21, 2001. That day was supposed to be the shortest day in the year, but it was the longest for me.”
Her account contradicts claims made by other FLDS women that their consent is required for marriage.
The man whom Ms. Barlow married already had 11 children with his first wife. Four of those children were older than her.
Ms. Barlow says that she initially refused to have sexual relations with her husband; she submitted after two years, and only after Warren Jeffs “commanded” her. “The pressure on me became so intense I eventually had to hide in the canyon above our town for a few days to get away,” she says in her affidavit.
Once, she agreed to go on a camping trip with her husband’s son, who was six months older than her. “[He] took me up to a small town north of Salt Lake City about 350 miles from my home in Arizona,” she says. “I was there three nights and four days. I was raped four times.”
Rather than alert police, she called on her husband to come pick her up. “I was told by my brothers that I don’t deserve to see a doctor,” she says.
Ms. Barlow was unable to complete the ninth grade; as a young wife, she says, she was too busy. Eventually, she was removed from her husband’s house and placed in a “guest house” in another town. She was being “corrected.”
She could not be “corrected.” She started to drink and to smoke, and was moved to another house, in yet another town. There, she made a friend who helped her to “escape” the FLDS.
Four years ago, a free person, Ms. Barlow obtained her high school general equivalency degree. She obtained a general nursing assistant’s licence. She’s now with a caring and loving man. The FLDS does not permit her to contact her mother and her siblings, she says.
She describes her experience as “very typical for an FLDS child.”
Others will say it’s not. But settling that question is not up to the B.C. Supreme Court. It must judge the law. And in this case and context, that may well favour the polygamists.
The hearing resumes Monday.
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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