Polygamy: The down side to it

Polygamy is practiced in most African countries, the majority of Asian countries and some parts of North America. Polygamy however has been illegal in Canada since 1890, although there hasn't been a prosecution in the past 50 years. Canada is now either going to legalize polygamy or strengthen the 120-year prohibition against multiple marriage.

That’s what is at stake in the constitutional reference case that will begin Monday in B.C. Supreme Court and is scheduled to last at least until the end of January.

The case will weigh whether Canada’s anti-polygamy law is constitutional. The reference case was initiated by B.C. attorney general Mike de Jong to finally get a clear legal lens through which to examine the fundamentalist Mormon community of Bountiful in southeastern British Columbia.

If Chief Justice Robert Bauman agrees with those in favour of legalization, Canada would be the first country in the developed world to lift the prohibition on multiple marriage. It would be swimming against a tide of criminalization in developing countries in Africa and Asia.

It would also likely be interpreted as Canada putting out a welcome mat for fundamentalist Mormons, who have been largely rooted out of Utah and Arizona and are under attack in Texas, as well as to Muslims, Wiccans and to secular polyamorists.

Still, the judge’s decision is unlikely to be the last word. Regardless of what he decides, the ruling will likely go to the B.C. Court of Appeal en route to the Supreme Court of Canada. And even if Canada’s highest court strikes down Section 293 of the Criminal Code, Parliament would still have an opportunity to remedy that, if it wishes to do so.

Although the case is being heard in a trial court, it is a hybrid, the first reference case that has been heard outside an appellate court.

What is being heard in the Supreme Court of British Columbia is neither a civil case nor a criminal one. It’s neither a public inquiry nor a commission. Because it’s unique, the rules are being made up as the case unfolds.

The hearing (for want of a better word) is giving witnesses to testify under oath about their experiences within polygamous communities, some of whom will testify anonymously or behind screens so that they aren’t subject to future prosecution based on their testimony. That is academic because everyone in Canada who testifies under oath at any trial or hearing is protected by the Charter of Rights not to have his or her testimony used against them unless they perjure themselves.

There will also be academics testifying to their research on polygamous communities both in B.C. and around the world. And there will legal experts discussing Section 293 as well as relevant sections of the Charter of Rights and Freedoms.

Even if the polygamy section limits any of those freedoms, the judge could decide that the breach of those rights is justifiable if the practice is harmful. Or as the B.C. attorney-general’s lawyer describes it, "The main task facing this court will be assessing and weighing evidence respecting harm: the harm of polygamy versus the harm of prohibition."

At the heart of this case are long-standing allegations of child brides, sexual exploitation, forced marriage, abuse of public funds and human-trafficking in Bountiful, a community that split in 2002 over the succession within the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS). Roughly half the 1,500 people stayed with the FLDS and prophet Warren Jeffs, while the remainder continued to follow the disgraced bishop, Winston Blackmore.

In January 2009, Blackmore and FLDS bishop James Oler were charged with one count each of polygamy. Those charges were subsequently stayed because a B.C. Supreme Court justice determined that then-attorney-general Wally Oppal had improperly hired the special prosecutor who recommended the charges. Rather than appealing that decision, Oppal’s successor — de Jong — filed the reference case and asked two questions:

• Is Section 293 consistent with the Charter? If not, why not?

• What are the necessary elements of an offence under this section? Does it require that the polygamous union involve a minor or occurred in the context of dependence, exploitation, abuse of authority, a gross imbalance of power or undue influence?

Like all trials, there are two sides in the reference case. But unlike criminal and civil trials, there are also interested parties, who have registered in order to be able to make opening and closing statements, file evidence, call and cross-examine witnesses.

The attorneys general of British Columbia and Canada will both argue in favour of the existing law. They’ll be first up when the case begins next week.

Their “allies” include: Stop Polygamy in Canada, Christian Legal Fellowship, B.C. Teachers Federation, West Coast LEAF, Real Women Canada, Canadian Coalition for the Rights of the Child and the David Asper Centre for Constitutional Rights.

To make the opposing case, the chief justice appointed Vancouver lawyer George Macintosh as the amicus curiae — friend of the court — to advance the striking down of the law.

Allied with Macintosh are: the Fundamentalist Church of Jesus Christ of Latter Day Saints, Canadian Polyamory Advocacy Association, B.C. Civil Liberties Association and the Canadian Association for Free Expression.

The anti-polygamy arguments

Child brides, teen pregnancy and the men and boys who by accident or design are driven from the community. Among the statistics filed in the court is the FLDS’s own census at Bountiful that shows adult women outnumber men 104 to 79. Joseph Henrich, an expert witness who teaches at the University of British Columbia, testified that 30 per cent of the adult men who should be living in the southeastern B.C. community of Bountiful appear to be missing.

The FLDS denies that men and boys are expelled. But if that is so, then where have they gone?

Prof. Henrich is a tenured professor in both economics and psychology at the University of B.C. and an expert witness at the constitutional reference trial in Vancouver to determine the validity of Canada’s polygamy law.

He said the figures — which are included in one of two affidavits he has filed with the court — indicates that even if the data are adjusted to account for some demographic imbalance because women live longer, at least 20% of the men are missing. The deficit is seen specifically among 16- and 17-year-olds. Of the 22, there are nearly three times as many girls as boys — 16 girls and six boys.

The data Prof. Henrich drew his conclusions from is a self-census done by the Fundamentalist Church of Jesus Christ of Latter Day Saints, which has 548 members in Bountiful. Another 500 or so people live in Bountiful, practise polygamy and follow Winston Blackmore, another fundamentalist Mormon leader. Prof. Henrich called Bountiful “highly polygamous” by global and historical standards. he said that a third of the men from the settlement have more than one wife.

During the Second World War, many men died and communities had a disproportionate number of women left in the communities. One could understand a number of those women wishing to live with the few men that were left but in Canada and the United States, the ratio is 50 men to every 51 women so the need is no longer there.

As with incest and obscenity, it has been argued that many harms exist regardless of whether it is directly harmful to the participants and irrespective of the participants’ consent.

The harm has been described as ‘marketplace harms,’ borrowing from the evidence of one of B.C.’s key witnesses, Prof. Joseph Henrich. Among the harms Henrich ascribes to polygamy are: early sexualization of girls, and higher crime rates and social disorder because of higher numbers of single men.

But legal precedent requires expert witnesses to address more general harms to the moral and democratic essence of society, equality and interests of vulnerable groups as well as harm to the participants and children of polygamous relationships, which some argue can include increased intrafamily violence and negative mental health outcomes for women and children, as well as reduced opportunities for schooling.

Canada’s lead lawyer, Deborah Strachan, will point out in her opening — which has been filed in advance — that it’s not necessary to provide conclusive evidence of harm. Rather, she says, "The court may rely on a reasonable apprehension of that harm." Strachan contends that not only is the law valid, but it applies to multiple marriages that were legally valid under foreign law.

She will also argue that the Supreme Court of Canada has emphasized the importance of looking to Canada’s international human-rights obligations under various laws and treaties, including the Convention on the Elimination of Discrimination Against Women.

Citing research by Prof. Rebecca Cook, who will be called as an expert witness, Strachan notes that if polygamy is legalized, "Canada would be taking a step contrary to international obligations that explicitly recognize the individual and societal harms that are inherent in the practice of polygamy."

The pro-polygamy arguments

George Macintosh — the lawyer appointed to argue in favour of polygamy — will come out with guns blazing: He says the anti-polygamy law, which was enacted in 1890 and revised in 1954, was "aimed at defending a Christian view of proper family life and was employed in the state’s cultural colonization of aboriginal peoples."

His opening statement, filed in advance, says Section 293 "is based on an assumption that polygamy is a practice uniformly associated with harm; essentially, that it is ‘barbarous.’ The law is based entirely on presumed, stereotypical characteristics, is not responsive to the actual characteristics of the particular polygamous relationships, and has the effect of demeaning the dignity of practitioners of polygamy."

In constitutional terms, the lawyer will argue that the polygamy prohibition breaches the sections that guarantee freedom of religion, association, equality (in terms of both religion and marital status) and liberty. He will also argue that it is over-broad and its penalty of up to five years in jail is disproportionate.

But at the centre of Macintosh’s case is the slippery-slope argument that Canadians (and Americans) opposed to same-sex marriage have long asserted.He’ll argue that Canadian law condones casual group sex, but criminalizes committed, group relationships, point out that marriage is no longer only between a man and a woman, adultery has never been a criminal offence and group sex and partner-swapping were legalized in 2005 following a Supreme Court of Canada ruling.

In his opening statement, Macintosh boldly states that "polygamy is not inherently harmful to children." However, he cites no evidence to support that. In fact, there appears to be a great deal of evidence of child abuse occurring in polygamy communities.

The lawyer also says there is no evidence that "polygamy is inherently associated with social disorder, although the evidence suggests that the criminalization of polygamy tends to cause polygamous communities to become more insular."

Besides, if the intent of the criminal prohibition was to end polygamy, Macintosh says that has not been the result. Instead, criminalization has led to many of polygamy’s negative aspects.

Among those, he says, are: offending the dignity of women who choose polygamy, impeding the open expression of religious values, stigmatizing members of polygamous communities and further isolating them from the mainstream, and jeopardizing the financial viability of polygamous families because of fines, incarceration or legal costs.

The evidence

Over the two months set aside so far for the hearing, a wide range of opinions and voices will be heard. Some of those voices will be anonymous and even disembodied, since the chief justice has agreed that FLDS witnesses can testify without using their names and screened from everyone in the courtroom.

It’s their stories that people will most likely remember from this trial. What these witnesses have to say — whether they choose to live in polygamous relationships or chose to leave — will offer at least a glimpse of what it must be like to have 30 or more siblings and two or more wives. And it will be a view largely unobstructed by scriptwriters, nor edited for television.

There is no doubt about it. Polygamy brings out the worst in many of the men who practice it. Here is the story of one of the victims of a polygamist.

Rena Mackert says her childhood ended at the age of three, when her father forced her to perform oral sex on him. "I cried and begged and pleaded. He slapped me and pulled my hair," the former Utah woman recalled during a video affidavit played in B.C. Supreme Court on December 9th 2010.

"He spanked me and told me what a bad girl I was, to be quiet," she said. "So from the onset of the sexual abuse with my father it was very clear to me that I was a bad, evil person."

Ms. Mackert was testifying to a court hearing to determine the constitutionality of Canada's 120-year-old law banning polygamy. Her testimony is being put forward as evidence of the damage polygamy does to women and children; her own father had four wives and 31 children. If he abused Ms. Mackert when she was three years of age, did he do the same to other children in his family?

Ms. Mackert, a 56-year-old mother of three, said the sexual abuse continued until a year before she was forced into an arranged marriage, at the age of 17--to her stepbrother. "I sat there stunned. I didn't want to get married. I just wanted out. It was like a knife that stabbed me in the heart."

Ms. Mackert said she had three children in five years before her divorce. She said the religious leaders in her fundamentalist Mormon community told her that she was to marry another man, who was in his late 50s and was already married to her sister. She refused and was banished. She had to leave the community without her children.

"My father grabbed me and led me out the door and told me what an evil, vile person I was. I was not his daughter and I was to never set foot on God's property again," she said.

Not only is her father an evil man, he is also a nut case.

Asked whether she considered going to the police, she replied, "That's the last thing I would have done.

"First of all, I didn't know I had legal custody of my children. The program, the indoctrination, no matter what, you don't call the authorities. They're the enemy."

Her children were told that their mother didn't want them and that she had just left them, she said. She said she tried going back to pick up the children several months later but her mother came out and told her "what a willful, disobedient" child she was and "it would have been better that I'd never been born."

Ms. Mackert said she got legal advice and returned 11 months later, with a stack of legal documents, and told her father that she was leaving with her children or he was going to prison, she said.

She said she had trouble adjusting to life outside the polygamous community and abused drugs and alcohol. "I developed a drug addiction, another way to numb out. It has been a constant struggle for years."

A similar tale of grief was told by Ms. Mackert's sister, Kathleen Mackert. Her sexual abuse at the hands of her father began at the age of five, she said. "It devastated me as a child growing up," she said.

The abuse stopped when she was 17, when she warned her father that if she would tell the priesthood if he didn't cease his attacks.

Her family and local religious leaders began preparing her for marriage at the age of 14 and she saw her sisters all being married off to much older men. One sister at the age of 16 married "the prophet"--a religious leader in his late 80s -- and never had any children.

What is significant about having a large pool of unmarried men is that research from India and China shows that crime rates rise sharply. In China, when the number of “surplus” men doubled as a result of selective abortion related to the one-child policy, the crime rate rose 90%.

Using that information plus other research studies and applying it to Bountiful, Prof. Henrich predicts the murder rate rising by 11 per 100,000; rapes up by 22 per 100,000; and robberies up by 180 per 100,000.

Using other data, he has concluded that in highly polygynous societies — one man, multiple wives — women’s equality is substantially reduced. Using data from the UN Development Program, he showed that the empowerment measure for women in Bountiful is one-quarter that of mainstream Canadian women.

Other statistics and studies that he reference indicate that in polygynous societies, the marriage age of females drops, the age gap between spouses rises as does infant mortality and reduced health and education outcomes for women and girls.

The Fundamentalist Church of Jesus Christ of Latter Day Saints, (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. The FLDS is a breakaway sect of the mainstream Mormon church, which renounced polygamy more than a century ago.

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 government 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 21st , 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.

It turned out that 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 new friend who helped her to escape the FLDS.

Four years ago, after being 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.”

Dr. Shoshana Grossbard, a professor of economics at San Diego State University, testified during a constitutional reference case that could rewrite the country's polygamy laws that there would be a number of unintended consequences if Canada allowed polygamy.

"Were Canada to legalize polygamy one can expect that this would negatively affect education achievement (for women) wherever polygamy is found in the urban centres," she told B.C. Supreme Court Chief Justice Robert Bauman, the judge tasked with deciding whether Canada's polygamy law is constitutional. He said, "It would also cause all women to be under the constant threat their husbands are going to take another wife."

Grossbard, the third witness to testify in the case, said more competition for scarce women by men leaves many men unmarried, resulting in social problems, such as crime.

"In the cultures and societies worldwide that have embraced it, polygamy is associated with undesirable economic, societal, physical, psychological and emotional factors related to women's well-being," she said.

She said "market value" for women will rise if polygamy is permitted, but women don't necessarily capture their increased market value, with men having an incentive to create institutions that lower women's bargaining power, she added.

A clinical psychologist from Utah, testifying Thursday at court hearing testing the validity of Canada's polygamy law, described the dark side of plural marriages in fundamentalist Mormon communities. Dr. Lawrence Beall was the second witness called in a case being heard in B.C. Supreme Court on whether Canada's polygamy laws are constitutional.

Beall told B.C. Supreme Court Justice Robert Bauman that he had counselled 30 "polygamy survivors" — 16 men and 14 women. He said the women, aged between 27 and 42, had fled their communities while the men, aged 16 to 21, had been expelled. Many of the people he treated had suffered from post-traumatic stress disorder and had difficulty leaving their communities and adjusting to the outside world, he said.

Many had suffered physical or sexual abuse while in their communities, and tended to suffer from feelings of guilt and shame, he added. "Another thing that the young women had that seemed unusual was a robotic type of presentation," he told the judge. "They shut down on their feelings, a numbness. I never saw anger in the women, but I did see anger in the men."

Older men in the community engaged in "sexual grooming" of the younger girls, a process in which they first tried to win their trust before making sexual contact, Beall said. "When the older man is a church leader, it's much more problematic. She believes he would never harm her because he's close to God. She believes to deny him what he wants is the equivalent of denying God."

Beall described the difficulties experienced by women with children leaving the communities."These people have been taught that if they don't give complete compliance, they will lose their salvation," he told court. "None of us can probably appreciate that. It means they're losing everything." When the women come to him for treatment, safety is often an issue because "they're often pursued after they leave the community," said the psychologist.

Under cross-examination from a lawyer representing fundamentalist Mormons, Beall expanded on that theme, saying women were often afraid and "some feared for their lives."

The same supply-and-demand forces that drive the economy ensure women are worse off in societies where polygamy is practiced, a professor testified.

Shoshana Grossbard, an expert in the economics of marriage from San Diego State University, said allowing men to have multiple wives inevitably leads to a reduced supply of women, increasing demand.

But rather than making women more valuable in such communities, she said that scarcity encourages men in polygamous societies to exert control over them to ensure they have access to the limited supply.

"In the cultures and societies worldwide that have embraced it, polygamy is associated with undesirable economic, societal, physical, psychological and emotional factors related especially to women's well-being," said Grossbard, whose research has primarily focused on polygamous cultures in Africa.

Grossbard was the latest academic to testify in B.C. Supreme Court in a reference case to determine whether Canada's polygamy law is consistent with the religious guarantees in the Charter of Rights and Freedoms. The court will also hear from current and former residents of polygamous communities.

Grossbard said there are fewer women available to men in societies that permit polygamy — even for monogamous men, because they are drawing from the same pool of women. Since that scarcity could increase what she describes as the women's "bargaining power," men in such societies have an incentive to ensure they retain control over who the women marry.

To that end, Grossbard said polygamy is associated with teenage brides, arranged and forced marriages, payments to brides' fathers, little emphasis on "romantic" love and poor access to education or the workforce — all designed to restrict women's ability to choose who they marry. "The men in polygamous societies want these institutions to help them control women," said Grossbard.

Other unintended consequences of polygamy include jealousy among plural wives and psychological or health problems, she told the court. While Grossbard acknowledged it's difficult to attribute any single issue to polygamy, the fact that so many of these problems consistently appear in polygamous societies — and at much higher rates than in monogamous ones — suggests they are caused by polygamy. "I conclude that polygamy actually causes some of these institutions to be created," she said.

"The fact that so many of them are present in cultures that also have polygamy, my conclusion is that men in polygamous societies will manipulate the social institutions in ways that will facilitate their control of women."

My own opinion

Based on the foregoing, I think it would be a gross mistake for the Canadian government and the members of parliament to sanction polygamy. Polygamy is really about the desires of older men and not the women and children in the communities that practice polygamy. Legalizing polygamy would undermine gains Canadian women have made in education and will have a negative impact on society. There is also the great risk of incest and rape to consider and equally disturbing, the breakup of families when one spouse is ordered out of the community.