Polygamy hearing: Evidence so far shows polygamy inherently harmful
By Daphne Bramham
Vancouver Sun columnist
January 7, 2011
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.