1 Feb 2011

Another week of conflicting expert testimony as constitutional hearing on Canadian polygamy law continues

The Vancouver Sun - Canada January 4, 2011

Polygamy trial resumes with FLDS expert


Things are about to get very interesting at the constitutional reference hearings to determine whether Canada's polygamy law is legal.

When the hearing resumes Wednesday, the first witness for the Fundamentalist Church of Jesus Christ of Latter Day Saints will testify before Chief Justice Robert Bauman in B.C. Supreme Court. [articles covering this week's witnesses follow below]

The FLDS is the largest religious group to practise polygamy in North America.

John Walsh is being put forward as an expert and he will outline the religious basis for what is called either plural or celestial marriage within the Mormon tradition as he has done on several occasions in Texas when FLDS men were on trial for bigamy and charges related to sex with under-age girls.

His affidavit doesn't indicate that Walsh has any personal opinion about polygamy.

However, in a piece published on an internet site called All About Mormons, Walsh makes it clear that he does.

“There is no doubt in my mind that your attitude toward plural marriage will determine your place in eternity,” he writes.

Those who choose 'plural' or 'celestial' marriage have a chance at the highest realm of heaven – the celestial kingdom – while those who don't may find themselves alone for all eternity.

Walsh calls it “the natural order of things” that men would have multiple wives (polygyny) and women would not have multiple husbands (polyandry) because polyandry would not result in the greatest number of children.

“When a man is limited to only one wife, some women will have the choice of marrying a worldly, carnal man or remaining unwed,” Walsh writes. “If men were eternally limited to only one wife each, some women would never have the opportunity for exaltation.

“Plural marriage remedies these penalties by enabling every woman the opportunity to have a righteous husband, enjoy the blessings of motherhood and fill the measure of her creation.”

He goes on to dismiss suggestions that women should have multiple husbands.

“If sexual gratification were the primary purpose of marriage and sex (i.e. Satan's perspective), then a woman having multiple husbands would be the preferred method from a biological perspective.”

Over the next four weeks, it's mostly polygamists and former polygamists who will testify. Many of the FLDS witnesses will not be seen and their names will not be disclosed because of Bauman's order allowing anonymity so that what they say can not be used in future prosecutions.

However, James Oler, the bishop of the Fundamentalist Church of Jesus Christ of Latter Day Saints has waived anonymity.

Oler was charged in 2009 with one count of polygamy along with former FLDS bishop Winston Blackmore. Listed on Oler's indictment were the names of three women. Blackmore's indictment listed 19, although in a video affidavit filed in this case one of Blackmore's former wives says that he has had 26 in total and has 136 children.

It was after those charges were stayed because the court ruled that they had been improperly laid, Attorney General Mike de Jong asked the court to determine whether the law itself is valid.

In addition to hearing from current FLDS members, Bauman will hear from Carolyn Jessop who has written two books about her experience within the FLDS, her dramatic middle-of-the-night escape and life outside the group.

Also testifying last this month will be Brenda Jensen, whose father founded the community in Bountiful.

This article was found at:



The Vancouver Sun - Canada January 5, 2011

Mormons split over polygamy practice, expert says at trial


Even though the Church of Jesus Christ of Latter-day Saints officially renounced polygamy in 1890, a religious studies expert says that mainstream Mormons are nearly evenly split over whether it should continue to be practised. W. John Walsh said Wednesday in B.C. Supreme Court that the LDS church's official position remains that polygamy is banned, but that it's possible that somewhere between 50 and 60 per cent of the church's members "would like a return of polygamy, which they see as a holy practice."

The other half would not like to see a return of polygamy and deem it to be "an archaic practise," said Walsh, who was testifying as an expert on behalf of the Fundamentalist Church of Jesus Christ of Latter Day Saints in a constitutional reference case that will determine the validity of Canada's law prohibiting polygamy. (The FLDS split from the mainstream church over the practise of polygamy and the FLDS is the largest group of so-called "fundamentalist Mormons" in North America. Walsh estimated that there are 50,000 fundamentalist Mormons in North America, 10,000 of whom belong to the FLDS.)

If Walsh is right, that suggests that if Canada's law is struck down, it could cause a major schism in the LDS church and would likely mean a large contingent of disaffected Mormons wanting to immigrate to Canada. Membership in the LDS church is estimated at about 13 million worldwide with 6.7 million living in the United States.

Prior to his testimony, Walsh's academic credentials were questioned by lawyers for the attorneys general of B.C. and Canada. As part of his challenge, Craig Jones for B.C. read portions of two articles that appear on an Internet website under Walsh's name. One is entitled What is the Purpose of Plural Marriage? and the other is Why Did the Church Abandon Polygamy?

Under oath, Walsh said he didn't recall having written either, noting that he wrote "hundreds and hundreds" of articles 15 to 20 years ago after he first converted to Mormonism. Some were posted on Internet bulletin boards and have since been posted on other websites in full or in part. None of those, he said, reflect his scholarly work.

In the first one, Jones characterized the author as "a big cheerleader for polygamy". In it, Walsh writes, “There is no doubt in my mind that your attitude toward plural marriage will determine your place in eternity.” Those who choose 'plural' or 'celestial' marriage have a chance at the highest realm of heaven – the celestial kingdom – while those who don't may find themselves alone for all eternity.

Walsh went on to call polygamy “the natural order of things” that men would have multiple wives (polygyny) and women would not have multiple husbands (polyandry) because polyandry would not result in the greatest number of children.

“When a man is limited to only one wife, some women will have the choice of marrying a worldly, carnal man or remaining unwed,” Walsh writes. “If men were eternally limited to only one wife each, some women would never have the opportunity for exaltation.

“Plural marriage remedies these penalties by enabling every woman the opportunity to have a righteous husband, enjoy the blessings of motherhood and fill the measure of her creation.”

Under questioning, Walsh said Wednesday that as a general principle, he believes polygamy should be legal with "reasonable restrictions" as long as it is between consenting adults. He also said that he believes it's unlikely that the U.S. Supreme Court would today uphold that country's anti-polygamy law as it did in the Reynolds case, which resulted in the mainstream Mormon church renouncing polygamy in 1890.

The U.S. Supreme Court had the opportunity to hear a constitutional challenge to its law in 2007, but the justices declined to hear it.

This article was found at:



The Vancouver Sun - Canada January 6, 2011

Decriminalizing polygamy would be a breach of Canadian obligations


Canada would be breaching its obligations under various international human rights conventions and treaties if it were to legalize or even decriminalize polygamy.

In its most recent report, the United Nations human rights committee described polygamy as “inadmissible discrimination against women and definitely should be abolished,” according to Prof. Rebecca Cook, who chairs the University of Toronto’s human rights law section.

Cook was testifying Thursday in BC Supreme Court in the constitutional reference case to determine whether Canada’s ban on polygamy is a breach of constitutional guarantees of religious freedom and freedom of expression.

She told Chief Justice Robert Bauman that none of the treaties consider polygamy as anything other than harmful.

As a signatory to the treaties, Cook says Canada is not only obligated to eliminate gender discrimination but also take measures to eliminate stereotyping.

The reason, she says, is that the patriarchal structure of polygamous marriages — which are almost universally men with multiple spouses — “offends the women’s dignity” because it places women in a position of inferiority and is “inadmissible discrimination.”

Under cross-examination, Cook said none of the treaties deals directly with the issue of polygamy, although it is addressed in concluding comments by the committees charged with tracking states’ compliance.

In her summary of committee comments, Cook noted that the trend is toward abolishing polygamy as inherently harmful to the rights of women and children.

Should the court strike down Canada’s polygamy law, Canada would be the only western liberal democracy to decriminalize its practise.

However, it was pointed out by Ludmilla Herbst — a lawyer for the court-appointed amicus curiae who is arguing in favour of decriminalization — that Canada would still have a criminal sanction against bigamy.

This article was found at:



The Vancouver Sun - Canada January 7, 2011

Polygamy hearing: Evidence so far shows polygamy inherently harmful


If it were a sporting competition, the governments of B.C. and Canada could be described as leading at the midway point of the constitutional reference case to determine the validity of Canada's polygamy law.

But as the sports guys say, there's still a lot more to come.

Unlike a civil or criminal trial, there is no strict order to the evidence with the governments going first, followed by the court-appointed amicus who is arguing for decriminalization. Instead, it's been divided into experts first with them appearing somewhat randomly and dependent on their schedules.

The second part of the evidentiary phase will be witnesses who have had direct experience with polygamy as members or former members of polygamous communities.

The final phase will be the closing legal arguments, which is where the governments may be set back on their heels.

Evidence so far has been overwhelming that polygamy is inherently harmful both to individuals and to society. That's the bar that the attorneys general for both B.C. and Canada must leap in order for Chief Justice Robert Bauman of the B.C. Supreme Court to conclude that it's okay to override the constitutional guarantees for religious freedom and freedom of expression.

So far, the experts called to support the governments' position have held up best both in examination and cross-examination.

As controversial as British Columbia's key expert Joseph Henrich was with his contention that monogamy may be the underpinning of both democracy and liberalized economies, the UBC professor was largely unassailable.

At least one witness for the other side, which is being argued by the amicus, helped bolster Henrich's argument.

Todd Shackelford, a respected psychology professor from Oakland University in Rochester, N.Y., outlined his 20 years of research that suggests that male sexual jealousy is the leading cause female-directed psychological, physical and sexual abuse (including rape) and that having a step-father is the best predictor of child neglect, abuse and filicide or the killing of a child by a parent or parent substitute.

However, the violence against children in blended families dovetails with Henrich's contention that there is a greater potential for violence in polygamous families because of large number of half-siblings.

Experts for the other side didn't fare well. Despite her excellent legal credentials, McGill law professor Angela Campbell barely made it through being qualified as an expert on the community of Bountiful, where fundamentalist Mormons have been practising polygamy for more than 60 years.

Although she has excellent legal credentials, Campbell has no training for the kind of research she has done in Bountiful. That research consists of interviews with 22 women done over eight days on two separate visits.

Another - religious studies professor Lori Beaman from the University of Ottawa - ended up conceding that she may misread and mis-cited some of the information on which she had based her own opinion.

Beaman also admitted that even though she had concluded that a raid by child protection services on the FLDS compound was unfounded, she had not read the final report by the Texas authorities. That report says 12 girls aged one to 15 were victims of sexual abuse and that their parents knew of it. Of those 12 girls, two were married at age 12; three were 13; two were 14 and five were 15.

In all of those cases, the sexual abuse was perpetrated by a parent or the husband.

Already the chief justice has heard video testimony from former members of the FLDS. Bauman will hear more of those next week, followed by testimony given anonymously by current FLDS members. Bauman has agreed that FLDS witnesses' identities can be protected by screens so that they are not subjected to future prosecution.

As interesting as that testimony will be, it's not likely to yield many surprises. Former members - several of whom have written books - will outline the harms they suffered. Current members will describe polygamy's joys and likely assert their right to practise their religion freely.

(No 'experiential' witnesses from any other polygamous groups are scheduled to testify.)

Yet even if Bauman finds that the governments have proven that polygamy is inherently harmful, he must determine whether the Criminal Code sanction is the appropriate remedy.

The amicus - George Macintosh - will argue that it is not. How he intends to do that was hinted at during this week's cross-examination of Rebecca Cook, an international human rights law expert called by Canada.

Cook testified that Canada would be the only western country to decriminalize polygamy, breaching human rights conventions it has signed and it would be going against the international trend to abolish the practise.

But as Macintosh's associate Ludmilla Herbst pointed out, most western countries don't have laws against polygamy only bigamy.

So, why does Canada need to outlaw polygamy when it already has a criminal sanction against bigamy?

Herbst pointed to the 1985 report of the Law Reform Commission of Canada said we don't if the bigamy law is properly rewritten. Cook disagrees.

Herbst also introduced two articles by legal scholars.

One published in the Cornell Journal of Law and Public Policy in 2006 argues that anti-polygamy laws are seldom enforced yet the historical criminalization of polygamy has created barriers to enforcing criminal provisions related to the real harms of polygamy - abuse, sexual exploitation, sexual assault and child neglect.

The other was a chapter from Polygamy in the Monogamous World by Queen's University law professor Martha Bailey and Amy J. Kaufman published last year.

They recommend decriminalizing polygamy, but with conditions that would reduce psychological and financial dependence so that entering, staying or leaving polygamous relationships would be a freer choice.

Those conditions include: family law provisions being extended to cover plural wives leaving marriages; shelters for women and their children; social workers and child protective services working daily in polygamous communities; a requirement for public (rather than private schools) in those communities; inspections of home schools; scrutiny of any legal trust arrangements; routine inspections of community-owned businesses to ensure workplace standards are met.

Cook disagreed, saying that would still put Canada at odds with the international conventions it has signed.

But Bauman may not.

The chief justice may decide that 120 years after the polygamy law was first passed and 74 years since the law was last prosecuted, it's time to modernize even at the risk of offending international treaties.

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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Polygyny and Canada’s Obligations under International Human Rights Law (pdf)

Research paper submitted to B.C. court in constitutional case documents harms associated with polygamy

Man from Bountiful says girls in Mormon polygamist communities "treated like poison snakes", taught to obey men and have many children

Bountiful evidence that polygamy harms women and children - constitutional case likely to reach Canadian Supreme Court

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Senate hearing: "Crimes Associated with Polygamy: The Need for a Coordinated State and Federal Response."

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