By Aimee Bouchard
Canada is in the midst of a long legal battle addressing the constitutionality of a federal law banning plural marriage. Oral evidence began in the British Columbian Supreme Court in November 2010 and is still ongoing. The main focus of this court case has been a small Fundamentalist Latter Day Saints community in Bountiful, British Columbia. The local government asked the British Columbian Supreme Court to examine the constitutionality of the federal law, presumably so that they can then prosecute the members of this small community. While many couch this argument as a Freedom of Religion argument versus The rights of women and children to live free of abuse, the constitutionality of s.293 of the Canadian Criminal Code is also of significant interest to the polyamorous community in Canada and elsewhere.
While this legal battle is focusing on the FDLS community, this federal law impacts those in the polyamorous community as well. Canadian Criminal Code S. 293 bans polygamy, but is worded so broadly that “Any kind of conjugal union with more than one person at a time,” falls under the law. It is easy to see how this can cause difficulty for any polyamorous union, regardless of whether or not they have attempted any sort of marriage ceremony. The Canadian Polyamory Advocacy Association, “http://polyadvocacy.ca”polyadvocacy.ca, formed in 2009 in response to the court case. They filed evidence as an Interested Person in this case, filing six affidavits describing polyamory and polyamorous families.
The full text of Section 293 is as follows:
1. Every one who:
(a) practices or enters into or in any manner agrees or consents to practice or enter into
(i) any form of polygamy, or
(ii) any kind of conjugal union with more than one person at the same time, whether or not it is by law recognized as a binding form of marriage, or
(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (i) or (ii),
is guilty of an indictable offense and liable to imprisonment for a term not exceeding five years.
2. Where an accused is charged with an offense under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or on the trial of the accused, nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse.1
The way I read this statute, even showing up at a ceremony celebrating the relationship of your friends in a poly triad could potentially land you in prison for up to five years. Is that likely? Of course not. But the stigma of having simply the existence of your relationship being illegal is hard to stomach. And for many that fear can impact your daily life, affecting the way you interact with neighbors, doctors, or teachers.
Bountiful does have some issues that most would find objectionable, including child abuse, teen pregnancy, domestic violence, and a significant lack of high school graduates. It is easy to see why local law enforcement would like to be able to prosecute some members of this community. But the way I see it, the ban on marriage isn’t targeting the actual harm, it is a catchall that unfortunately encompasses many more families and relationships than the abusive situations that hit the media.
Why not prosecute the harmful elements of polygamy, the child abuse and domestic violence, not the marriage? Is the marriage, in and of itself, the harm that the government is seeking to avoid? I think no. It is coercion, lack of consent, and the forced marriages of underaged brides that is the real harm. Address the issues of teen pregnancy and the lack of high school diplomas, not the concept of plural marriage. Why punish those who are not participating in the more objectionable practices?
Another argument for decriminalizing polygamy is that it could then give women and children in abusive relationships more power to break free. If they were no longer afraid of being arrested for violating the law against plural marriage, women could go to the police without fear of prosecution when issues of domestic violence and child abuse do occur.
I think that the broad wording of this statute will make this a very interesting case for polyamorous people to watch. Although the law was intended to ban Mormon polygamy, the law as it is written could be used against anyone engaged in an open relationship. And if Canada finds this law unconstitutional, could poly marriage be on its way to the United States as well?