What to do about polygamy?

Winston Blackmore has more than 24 wives and has fathered more than 145 children. There is nothing about the man that makes me want to know him or to think he has any regard whatsoever for women’s equality or well-being. I certainly don’t want to marry him.

That said, I am not sure that finding him guilty of polygamy is the best way to address the many problems that arise as a result of this practice.

To be sure, I approach this problem from a somewhat anarchist perspective. While I am a lawyer, my anarchist roots run deep, and I generally look for solutions to social and political problems outside the sphere of criminal law.

We have lots of laws in Canada and we spend a lot of money on so-called law enforcement. Still, people do many things that cause harm to other people, animals and the environment.

Polygamy and women’s equality

Polygamy is problematic for anyone who cares about women’s rights, given that it is almost always men who have multiple wives.

What better way for one man to have 145 children? But polygamy is about more than reproduction. It is about male power; the domination, submission and, often, outright abuse of women. It is the ultimate real life fantasy of the man as king of his castle.

Many women in polygamous unions are, in effect, imprisoned. They are subservient to their husband, are economically dependent on him, have almost no independence and are subjected to physical, sexual and emotional abuse.

Girls are trained from a young age to expect nothing more from life than to become one of the wives of an often much-older man and to have his children.

Boys are summarily kicked out of their communities: when every man is expected to have at least several wives, there is just not enough room for all the boy children.

Polygamy and the law

In 2017 in Canada, polygamy is against the criminal law. Section 293(1) of the Criminal Code makes it a criminal offence to enter into a conjugal union with more than one person at the same time. This is an indictable offence, and a person found guilty can face a prison sentence of up to five years.

Nonetheless, some family laws, including Ontario’s Family Law Act, provide legal protection for people in polygamous marriages with respect to spousal support and the division of property.

And, while it is against the law to participate in polygamy in Canada, until Winston Blackmore and James Oler were found guilty in British Columbia in July of this year, it had been more than 60 years since the charge had been successfully prosecuted.

Although Blackmore and Oler were found guilty, it is uncertain how long those judgments will last, since Blackmore at least is already poised to bring a challenge, claiming that his prosecution is a violation of his Charter-protected right to freedom of religious expression.

Law reform recommendations

The Law Reform Commission of Canada, recommended the decriminalization of polygamy in 1985:

“Abolishing the crime of polygamy does not amount to condoning the practice.”

Almost two decades later, the Law Commission of Canada felt similarly:

“Further study is required on the effects of polygamy and the appropriate governmental response, for example, around inequality and balance of power issues which may exist within the relationship. However, it is reasonable to question whether use of the Criminal Code is the best way to respond to these issues.”

Where does this leave us?

A small number of religious groups engage in the practice of polygamy in Canada. Women and children in many of those families, like women and children in many other families in Canada, are subjected to physical, sexual, emotional and financial abuse.

Polygamous marriage in small communities can result in complicated family relations. As Debbie Palmer, who fled the fundamentalism community in Bountiful, B.C. to escape her polygamous marriage, said of her family:

“My father had six wives and I have forty-seven brothers and sisters. My oldest daughter is my aunt and I am her grandmother. When I was assigned to marry my first husband, I became my own step-grandmother since my father was already married to two daughters of my new husband.  . . . I will be a step-grandmother to many of my own brothers and sisters.”

To avoid marriages of people who are closely related by blood, some communities traffic girls and women across international borders. Some communities force underage girls into marriage.

In other words, polygamy supports underage marriage, forced marriage and human trafficking and leads to families where there are high levels of violence against women and children.

Given all of this, why do I support decriminalization? I have at least two reasons.

First, there is danger in criminalizing and, potentially, imprisoning those who engage in practices they argue fall within their right to freedom of religious expression.

As Daphne Brahmam, author of “The Secret Lives of Saints: Child brides and lost boys in Canada’s polygamous Mormon sect,” said after Blackmore and Oler were found guilty, they may well become martyrs to the cause and heroes to others who support similar notions of religious freedom.

But the main reason I support decriminalization is because I don’t think another law is the answer. We have lots of laws in place already that could be used to bring an end to the problematic aspects of polygamy; criminal laws against sexual assault, the sexual exploitation of children, domestic violence and human trafficking, child protection laws to protect children from harm within the family and family laws to create some measure of equality for husbands and wives when they end their marriages.

I don’t know how much public money has been spent to get to where we are now: two men found guilty of polygamy who are launching an appeal that, in all likelihood, will go to the Supreme Court of Canada. I am sure it is in the millions of dollars with more spending ahead.

I have no doubt, if the real goal of those who have pursued these prosecutions is to improve the lives of women and children in polygamous communities, that money could have been better spent enforcing the laws that already exist.

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