Polyamorists, who practice a form of open relationship that promotes full disclosure, gender equality, and multiple intimate partnerships, have long tried to distance themselves from their kissing cousins, patriarchal polygamists like the FLDS Church. But on November 22, a trial will begin in Canada that puts them on the same side of a constitutional legal challenge that will determine the criminality of both of their chosen lifestyles.
(Part 1 of a 2-part series)
On November 22, while various jurisdictions in the United States continue to battle over gay marriage, Canada will begin a trial to determine the constitutionality of a law forbidding polygamy. BC Attorney General Wally Oppal hopes to use the over-100-year-old statute to prosecute James Oler and other elders of the FLDS Church in Bountiful, British Columbia, who have been accused of polygamy and of arranging the marriages of minor girls to much older men. Feminist activists and others have long sought a way to get around the question of religious freedom and stop the exploitation of women and children that often occurs in situations of patriarchal polygamy. But the law in question, Section 293, could have serious repercussions for another population in Canada: polyamorous families, who live in multi-adult, cohabiting relationships with full consent and equality. Should this law be proven constitutional, such loving adult families could be subject to five years in jail.
“This ancient law”
Said law forbids not only multiple marriage, but “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.” It also punishes any celebrants or parties to such a union (did you bring a dish to your friends’ poly potluck wedding?), and does not require any “proof of the method by which the alleged relationship was entered into,” nor any proof that the people involved had or intended to have sex. That’s right: if you are living in a multi-adult household in Canada, you could get a five-year prison sentence, with no evidence required as to whether your entry into the union was consensual or whether you’re engaging in sex.
The law is so broad, so vague, and so antiquated that no prosecutor would agree to take on a case with the law as its basis, but BC Attorney General Wally Oppal wanted to find a way to get at Bountiful and its members. And so he brought a reference to the court, to determine whether or not the law is constitutional.
Canada’s constitution, incidentally, is fairly clear on such matters: beginning in 1967, the country underwent wide-ranging constitutional reform, which guaranteed many sexual and social rights and decriminalized private sexual behavior. But that doesn’t guarantee that those who are intent on prosecuting Bountiful’s leaders won’t find a way to make the law stick. As part of the reference question, however, Oppal is asking interested groups to come forward and provide evidence against, or in favor of, the existing law.
The result is an ironic situation – a trial with no defendants, but where non-religious, non-patriarchal polyamorists find themselves on the same side as the FLDS Church, from whom polyamorists have long sought to differentiate themselves. Enter the Canadian Polyamory Advocacy Association (CPAA), a group that formed to represent the interests of the Canadian poly community, who will bring evidence against Section 293.
CPAA member and spokesperson Zoe Duff makes it clear that they do not support what is allegedly going on in Bountiful. “We have seen a need to clarify that we do not condone child brides, coercion, nor abusive treatment of women and men of any age,” says Duff, a mother in her 50s who loves and lives with two men. But the organization stresses that a multiple relationship structure should not be seen as the sole predictor of an abusive situation. “We have submitted evidence to the court showing that multiple relationships have many positive examples and configurations and that relationship structure is not the issue and should not be criminalized,” adds Duff.
"Any law that criminalizes people simply for living together in a loving relationship because they have more than one sexual partner is definitely unconstitutional," says John Ince, the attorney for the CPAA. A sexual freedom activist, author, and leader of a bona fide political party called (and yes the innuendo is intentional) The Sex Party, Ince is a bit more careful about how he presents his attitude toward the Bountiful case. “Our position on polygamy is no position,” he states, adding, “We can see that it's a patriarchal system with many problems. [But] there are other countervailing factors such as religious freedom.”
It would be tempting and obvious to try to prove that harm or abuse is being caused in patriarchal polygynous (many women, one man) systems, whereas such harm is not endemic to polyamorous groupings. Revising the existing law to make it more specific to patriarchal polygamy might be one avenue in this case, for as Ince exasperatedly notes, “This ancient law…would capture roommates!”
But while Ince and the CPAA want to maintain a distance from FLDS, they aren’t interested in participating in their prosecution. The problem, says Ince, is how difficult it is to assess harm from a standpoint of more than physical abuse. “If you have a social practice … where generations of children … are deliberately denied an education … and they basically ghettoize their community so that they have no real option to inform themselves of alternatives, and if they do they are very heavily penalized, I think there is grounds there to say that there is significant social harm in patriarchal polygyny,” he says. But “whether freedom of religion trumps that is an incredibly complex question.” And without the expertise to address that question, he is taking another tack: throw out the law altogether, decriminalize multi-partner families, and let the courts find another way to prosecute in Bountiful.
Next week: Part 2: “Poly is the new gay”