Sunday, February 27, 2011

Polys in Court - testimony of Prof Stephen Kent

From transcripts of January 19, 2011.

Stop Polygamy in Canada called Professor Stephen Alan Kent to the stand as an expert witness the sociology of religion including alternative religions, the sociology and history of fundamentalist Mormonism in North America, polygamy as practised in fundamental Mormon communities in North America including the harms caused by polygamy in those communities and qualitative research methodology.
Professor Kent is a professor of sociology at the University of Alberta in Edmonton, Alberta. He holds a BA in Sociology (University of Maryland), two Masters degrees in Sociology (McMaster University) and in History of Religion (American University in Washington) and a PhD in Religion and Western Society (McMaster University).  He teaches courses in comparative religion, qualitive research methodology, sociology of religion, religion and society, deviance and conformity, and religious sects (including material on Fundamental Mormon groups in North America.

Prof Kent identifies and restricts his report to the following fundamental Mormon groups in North America:

- FLDS under Warren Jeffs  estimated at about 10,000 members centered in Hildale, Utah and Colorado City,Arizona with a branch in British Columbia under Winston Blackmore and the split group in that community

- The Apostolic United Brethern ( the Allred group) with a community of 1500 in Pinesdale, Montana and some satellite groups around Salt Lake in Utah. 

-  The Kingston group (Kingston family members being the leadership) based in Salt Lake with membership of 1500 and some scattered all over the US northwest.

- True and Living Church (TLC) under Jim Harmston in Manti with 300-400 members.

- Centennial Park, Arizona - a break off of the Colorado City FLDS about 1500 members and a further split off from this group.

- Smaller groups: A splinter off group from the Allred group. Another group that lives in caves in Utah.
Alex Joseph's group which was active for a long time before his death.  Tom Green's small independent group which received a lot of media attention. And many other small quiet groups that we don't know much about.

Prof Kent's report discusses the following harms associated with polygamy:

1. Incest and Inbreeding - Prof Kent references books by Todd Compton, Fanny Stenhouse, Ann-Eliza Young which are historic discussions of the lives of Joseph Smith and Brigham Young published in the 1870's.  He also references scientific and social science Journal articles from 1915 regarding incest and mormonism, more current newspaper articles from the Salt Lake Tribune and a  book by Janet Bennion on the Allred's published in 2008. His conclusion was that in a number of groups there have been incestuous celestial marriages where the wives of one husband were also mother and daughter or sisters initially or marriages will be dissolved and the leaders will rearrange those marital partners such that people wind up married to close relatives ( cousins, a niece married to her uncle, step-daughters etc).

2. Genetic disorders and unmarked children's graves - Prof Kent reviewed accounts from former members, a book by Flora Jessop, Janet Bennion's book, materials from the Phoenix News Times, and some university medical library follow up with regards to genetic disorders cited in this literature review. 
-  fumarase deficiency - rare outside the FLDS but high incidents in the Jessop and Barlow families which effects the formation of the brain
- Kingston group - birth defects that  appear to be different - multiple uterus & vagina with no vaginal or bowel openings - no outwards sexual organs
- don't register births or deaths and have their own grave yards so extent of the birth defect issue is not clear
- Janet Bennion talks about birth defects effecting mental development and that these situations and the deaths of these children was hush hush amongst the Allreds

3. Arranged marriages -  Prof Kent referred to Altman & Ginat's study of polygamous families, newspapers, Benjamin Bistline's The Polygamist History of Colorado City, a couple of biographies of Warren Jeff's and some accounts by former members.

4. The  "lost boys" - Prof Kent referred to  several media sources from the New York Times to Salon, a couple of books by former members several of which were young men who had left the group, Daphne Brahmin's book, Salt Lake Tribune, Los Angeles Times, and Wall Street Journal,

5. Working conditions for youth-  Prof Kent cited one article which talked about working conditions for the young men and women in the Kingston group which operates several corporations including a trash removal company and there were 235 safety code violations.  Blackmore's companies have also been cited with unsafe working conditions and code violations.  Blackmore has construction and lumber related businesses and the young men who misbehaved were sent there to work as work hands.

Prof Kent agreed that these harms could be found in monogamy but that these abuses are structurally based and necessarily related to the on-going operation of various types of polygamy.

Welfare fraud and dependence on the State -  Prof Kent found references in historic works and more recent newspaper accounts for a term "bleeding the beast" which he said was consistent with Hebrew bible concept called "Spoiling Egypt" used by the Children of God group and similar ideas used in sectarian groups where a  group will be hostile to society but use society resources to maintain its lifestyle and sees the members as justified in doing this because they are unique or special.  This pattern is seen in writings on the Allreds, Kingstons and Tom Green's group.  He found it particularly surprising in the Kingston group as they are over all fairly wealthy but the members live in dire poverty. 

Polygamy as a danger to the state-  Prof Kent relies on accounts of commuities in Utah and Colorado. Communities where welfare and social services benefits for airports and schools. Small communities where political and social power is only granted to the men in good standing with the leadership and these hold all  the major positions in the town from school board, local doctor, judge, and police force.  If a member of the community were having abuse problems there would be no where to go for help.  He quotes in his report a police officer who received some two dozen complaints of sexual abuse and did not pass them along to any social services.

Cross-examination by the BC AG:
Prof Kent was asked to recommend the best reading on polygamy and especially in Canada.
He listed the following books -
The Polygamist - A History of  Colorado City, Arizona  by Benjamin Biastline
A Mormon Presence in Canada by Carmen Hardy
Secret Lives of the Saints by Daphne Brahmin

Cross-examination by the lawyer for the FLDS:
Prof Kent uses the term polygamy in his report but acknowledged that "polygyny" or one man with several wives would be the correct term for what is being discussed in his report.  In his report he said that in hia opinion polygyny as practiced by certain fundamentalist Mormon groups involves certain violations of  human rights.  Prof Kent has an article he's written coming out shortly on polygamy in which he mentions the issues of polyamory and same sex marriage and that a court decision should not impact them as "polygny involves separate sorts of human rights abuses".  He confirmed that he had researched the paper for this reference with a conclusion that fundamental Mormon groups constitute harms to society already in mind and selected material that confirmed that hypothesis.   Of his 96 footnoted references, 25 were newspaper articles, 29 were books, some academic journals and a medical report on fumarase deficiency. 

Prof Kent was questioned at length about his use of newspaper articles to make major point in his paper with regards to welfare fraud. He said that sociological theory was that if the newspaper and reporter were reputable then they were a worthy source.  He was asked if he had looked for any articles contrary to the ones he had quoted. He said no and was provided with an article from the Salt Lake Tribune in 2009 discussing as US Judiciary Committe Hearing in which  claims that there was rampant welfare fraud in Mormon community  was raised and says that welfare data from Texas, Utah and Arizona do not support the claims.  None of the 600 or so residents of the Yearning for Zion ranch received any form of welfare according to state officials.  Cash assistance is almost non-existance in the twin towns of Hildale, Utah and Colorado City, Arizona.  Those who receive food and medical assistance qualify under the program guidelines and there hasn't been a single case prosecuted in the last decade.  The article goes on to relate testimony to the committee from Carolyn Jessop talking about the idea of "bleeding the beast" which is applying for every form of government assistance possible and that the community of Hildale received eight times the assistance of any other town its size and that the state records did not sustain that claim.  Draper, a former FLDS is quoted in the article as saying that the term "bleeding the beast" comes from Anti-FLDS disidents and is not part of their doctrine which infact encourages members to be self-sufficient and provide for themselves with their own resources.  The lawyer asked if this article from the same reputable newspaper as the professor had referenced would be acceptable to him as a source and change his viewpoint on the issue.  Prof Kent said that the issues of irregularity of leadership handling of funding for airports and schools was not addressed in that article and he still felt that there were issues of financial handling.  Asked again if he'd concede that his article about widespread welfare fraud in Hildale was contracticted by the one just presented and thus the theory that Hildale has such a high rate of welfare fraud was incorrect  - the professsor said he'd want to see if there were subsequent articles or confirm with Utah officials first.  The lawyer for the FLDS said that this would highlight the problem with using newspaper articles as reference.

With regards to points in his paper regarding unreported child abuse and disobedient wives being sent to psychiatric facilities in Flagstaff or and widespread use of Prozac, Prof Kent referenced Carolyn Jessop as quoted by Daphne Brahmin, Flora Jessop and articles about Dr. Barlow of Yearning for Zion ranch being charged with failure to report child abuse.  Asked if Prof Kent knew if the allegations against Dr. Barlow were confirmed, he didn't know. He felt that while it wasn't definative, it was suggestive enough with him being charged with the offense to merit mention and leave it for others to do more research.   Regarding use of what the FLDS lawyer referred to as "double heresay" evidence from Carolyn Jessop and Flora Jessop about women being sent to psychiatric facilities in Flagstaff, Arizona, Prof Kent was asked if he had confirmed that there were psychiatric facilities in Flagstaff.  He replied that he had not done so.  The lawyer indicated that there were two and both were licensed by the state of Arizona.  In his report, Prof Kent compares this alleged practice to that of Stalinist Russia and Communist China where dissidents are institutionalized as insane.  Prof Kent was asked if he felt that the state of Arizona was comparative to Russia and China and would they not have regulations in place regarding the incarceration of persons with psychiatric illnesses. Prof Kent admitted that he hadn't researched those regulations. Prof Kent felt that the power of the police or a physician might be able to override those regulations.  He said that the police have already violated their oath to support the laws of the state by supporting and practicing polygamy and that their loyalty is to the FLDS leadership. 

The lawyer for the FLDS  noted that Prof Kent's research methodology has been the subject of some criticism by his peers.  He has been the subject of several articles criticizing his methodology in other contexts.
In the book, "Misunderstanding Cults - Searching for objectivity in a controversial field" there is a chapter entitled "Raising Lazurus - a methodological critique of Stephen Kent's revival of the brainwashing models" which was written by Lorne Dawson (professor of sociology at University of Waterloo).  The article discusses a paper written by Prof Kent on the brainwashing done in the Church of Scientology.  Prof Kent's opinion being that the church is violating the human rights of its members by brainwashing them.  Prof Dawson's comments being that
"Indeed with good reasons sociologists generally treat the evidence of a sect's theological opponents of the agreed relative sectarians and of the diseffective and apostate with some circumspection."  He goes on to say that a process of triangulation is strongly recommended and accepted standard  and practice for sociologists conducting research.  Triangulation is described as utilizing a number of data sources simultaneously by gathering data from members, ex-members, detractors, leaders, members parents and children of the group weighing the claims against each other and the more neutral and exacting observations of the researcher.
Prof Kent felt that he had in fact triangulated data in his report to the court but admitted that he had not sought data from within any of the fundamental Mormon communities. He said that was because interviewing them would put them at risk of punishment which compromised their reliability as well as safety.  When asked if he'd confirmed the reliability of the former FLDS members he'd referenced, Prof Kent was unable to indicate any such work done.

Monday, February 21, 2011

Poly in court - testimony of Prof John Witte Jr.

Summary of transcripts of BC Supreme court session on January 10, 2011.

The Attorney General of Canada called as their next witness Professor John Witte Jr. as an expert in American and English (but not Canadian) legal history, marriage and historical family law and religious freedom to provide evidence consistent with his report relating to the historical development and evolution of the dyadic marriage structure and the prohibition of polygamy in the western tradition.

Professor Witte received his JD from Harvard Law School in 1985 and is currently a professor at Emery College Law School and Director of Emery College's Law and Religion Center. Prof Witte teaches exclusively graduate level course in the law, theology, arts and sciences schools. His courses are concerning constitutional law, legal history in first amendment religious freedom, comparative religious liberty, American and European legal history. The Law and Religion Center focuses on issues of religion and human rights comparative religious freedom, issues of Islamic law, Jewish law, Christian canon law,marriage, family, sexuality and children.
The centre's work manifests itself in six different joint degree programs that a student can pursue a JD and another degree concurrently and there are a series of clinical internships for students to work with organizations that cultivate legal and theological understanding of a given topic. The Center also publishes books adn sponsors a variety of public forums from individual lectures to panel discussions to
one-day conferences and every three or four years and they have major international conferences that involve several days, several dozen speakers and several hundred audience members. The Center has culminated all of these in a series of major research projects that have produced over 340 published volumes in the last 25 years.

In this report for this reference case, Prof Witte discusses:
- Greco Roman and biblical sources for the origins of monogamy and polygamy
- early Christian and medieval teachings on protestantism and the Protestant reformation of monogamy and polygamy laws
- modern common law views of monogamy and polygamy

Highlighted points of the report:

1. - for 2500 years the western tradition has taught that marriage is a monogamous dyadic union exclusively between a man and a woman
- that union is formed in a two-step process with an engagement contract and then a marriage contract. The marital contract is usually celebrated in a wedding or in some kind of public ceremony in which the public is involved including the families of the respective parties. In some instances between the engagement and the wedding there are elaborate economic negotiations. There's an exchange of property between the parties.
- a set of duties is attached to the status of "married" for the spouses to each other and between parents and children - these duties survive divorce and death
- in a few common law jurisdictions today that has been extended to include a dyadic union between same sex parties

2. - the western tradition has taught throughout that 2500 years that polygamy is not a recognized form of marital union.
- any attempt in the first 800 years from the 6th century BCE to the 3rd century BCE to have a polygamous union recognized as a marriage was voided
- after the 3rd century polygamous unions were criminalized
- 6th century Roman law began to systematize a set of crimes that were considered to be serious sexual crimes that eroded the institution of marriage and under cut the private and public good that marriage sought to achieve for the community. Amongst things that start getting singled out adultery, incest and polygamy.
- polygamy was a persistent practice amongst a set number of Jews and other conquered people and Roman law set to stamp it out by stating the concerns bout the lack of mutuality between the man and the multiple women and the lack of stable structures for children that are produced in these unions
- by the 9th century in much of the west polygamous unions were considered to be capital offences that gave rise to execution
- biblical texts from Adam and Eve in Genesis shown to be a divinely encouraged dyadic coupling to and the concept of two becoming one flesh promotes the preferred arrangement of monogamy.
- the Hebrew Bible in particular records about a dozen stories of patriarchal households by heros of the faith who have multiple wives and keep a wife and multiple concubines and those stories include Abraham and Jacob and David and Solomon and some of the other titans of the faith each of them participates in polygamy and each of their households is riven with internal turmoil in Prof Witte's opinion the church fathers will take those stories as indication that polygamy is unnatural and that it's the cause and the consequence of a number of harms sometimes serious crimes.
- The notion that polygamy is a cause and a consequence of harm was considered to be a sufficient ground among many later theologians for its prohibition in the
western tradition.

3. The function of marriage as its described by the philosophers is that marriage is a source of both private goods and of public goods.

- private goods for the couple are mutual friendship,companionship,love and support, as well as mutual protection from the temptations to wander sexually.
- public goods being the vehicle for the production of legitimate children through which a party can pass his or her property, legacy or name - the family unit provide nurture,care,support,education and internal welfare from generation to generations and that's good for society.

4. Philosophers of the enlightenment and late medieval scholars described monogamy as the better protector of natural rights of the child to be raised by the parents that gave it birth, the natural duty of the parents to raise the child they produced,the natural rights of women to be treated with equality and dignity in her relationship with her husband and not rendered an indentured servant or slave.  Natural rights, natural law, natural duty are language seen in the 15th and 16th century texts as the discussion of a new paradigm of thought set apart from religion began the enlightenment period. Monogamous marriage is seen as a good institution and polygamy is seen as a dangerous institution in the west. Monogamy is seen as the preferred source of reproduction as it encourages the male to protect a fragile infant with ensured paternity rights.

Prof Witte discussed several 17th Century jurists who's opinions have been foundational in the formation of English and early American common law.  These all concur that one of the consequences of having one man with multiple wives is that the children do not have resources at their disposal the way they would in a monogamous relationship.  Polygamy was seen to result in children who become impoverished, malnourished, and under educated.  One man with 25 children was far less efficient than 25 children produced by five men with one wife each.  Polygamy was referred to as a patriarchal fraud because it betrays the fundamentals of what marriage namely mutuality and companionship of husband and wife and renders the women indentured servants or slaves.  Polygamy was seen to spawn jealousy and competition between wives and between children in the home. Polygamy was also bad for men as it inflames the passionate lust of the man and by encouraging him to take a second wife, he will lust after a third, fourth and fifth.  It gives him opportunity to take a step on that slippery slope.  (My Comment:This phrase has been around for 3 centuries too long IMHO) Further, these slippery sloped men will seek additional wives by devious means and their enterprising women feeling neglected will retaliate by taking male lovers and begat illegitimate offspring. 

(My Comment:  WHERE, WHERE, WHERE is all this sex people go on about?  Seriously, folks ...we poly people do NOT get laid as much as y'all think we do.)

5. All 13 original states had laws prohibiting bigamy and/or polygamy prior to the American revolution and prior to the formation of the Mormon church.  The laws as they came down through time tended to combine the idea of any multiple partner situation  bigamy being two wives and polygamy being two or more wives.
 Those charged under these laws were men who had deserted one wife and moved to another to marry another woman or left a wife in England to marry another in the United States.  The men were sent back to the jurisdiction of the original marriage for prosecution.

6. Marriage contracted through a license of the state or church or through common law marriage which was an open continuous uninterrupted living as if husband and wife for seven or more years.  Couples would plead common law marriage in defense of a charge of fornication.  Any parties living together in a non-marriage relationship were charged with aggravated fornication or prostitutio

7. US Congress began to pass its on statures making it a federal crime in the territories and only the territories to practice polygamy in response to the announcement  in 1852 by the Mormon Church that new churches on the frontier were preaching and practicing polygamy while invitingh new immigrants to the community who would maintain Mormon lifestyles including the lifestyle of polygamy. In 1887 Congress passed a law allowing for the confiscation of the property and lands of the Mormon church until such time as the polygamy prohibition law was enforced in Utah.

Cross-examination by the lawyer for the FLDS:
This meandered around a bit but one interesting point was that Prof Witte also gave expert testimony in the Halpern case of the Ontario Supreme Court challenge of theheterosexual definition of marriage in Canada on the grounds that it discriminated against same sex unions.  Prof Witte gave evidence for the AG of Canada on  the history of marriage in the West.  The AG of Canada was trying to uphold the heterosexual definition of marriage.

Web content with regards to a blog discussing polygamy and the law where Prof Witte is interviewed in a Q & A fashion.  He is quoted as commenting that the prosecutions in Texas would likely be under laws such as child abuse, coerced under age marriage and statuatory rape and that polygamy laws are rarely prosecuted when there is not added evidence of child coercion, statuatory rape or other missusses of women or children in a household.

Adultery, fornication, sodomy were also crimes in US law which are either no longer prosecuted or removed from the statutes depending on the State.  There followed a lengthy discussion where the lawyer produced quotes from Prof Witte and the Emery College website with regards to the same sex marriage debate in the states where Prof Witte clearly sides with a very traditional view of marriage and sexual freedoms.

There was some interesting discussion of "Covenant marriage" which is an alternative form of marriage currently available in three states:  Louisiana, Arkansas, and Arizona.  Participants are presented with two options:
1. contract marriage - easy in easy out marriage formed with a certificate which has a one day waiting period and a period of time where a no-fault divorce can be obtained
2. covenant marriage - six months of pre-marital counseling and more limited grounds for separation and divorce
Prof. Witte favours the covenant marriage and appears to see the advance of recent liberal sexual freedoms as being the downfall of the institution of marriage.


Sunday, February 6, 2011

Polys in Court: Summary of testimony - Professor Rebecca J. Cook

From transcripts of BC Supreme Court sessions on January 6, 2011.

The Attorney General of Canada called Professor Rebecca Johnson Cook to the stand as an expert in international human rights law with a particular focus on women’s rights and the obligations of States under international human rights law.

Professor Cook has a Doctorate in Law from Couple Bow in New York and her dissertation is on the application of the International Convention on the Elimination of All Forms of Discrimination Against Women (aka the women’s convention). Professor Cook also has a Masters of Law from Columbia University, a Law Degree from Johnstone, a Bachelors of Public Administration from Harvard and was called to the bar in Washington, D.C. in 1983. She is currently a professor of Law and the Chair of International Human Rights Law in the Faculty of Law in the University of Toronto. She teaches courses in international women's rights, reproductive and sexual health law, international human rights law and a class on polygamy. Professor Cook is also a professor in the faculty of medicine in the University of Toronto where she teaches medical ethics and health and human rights. She was made a fellow of the Royal Society of Canada in 1999 which is a distinction of academic excellence and fellows are elected by their peers for an outstanding contribution in their field. She listed 17 books which she has authored or co-authored, 33 book chapters, 11 legal briefs ranging from courts from the US Supreme Court and constitutional court of Columbia European court of Human Rights and the Supreme Court of Mexico. All these publications have focused on aspects of international human rights law including state's obligations and responsibilities women's rights and health issues. She co-authored a report called “Polygyny and Canada’s Obligations Under International Human Rights Law” with Lisa Kelly which was published in 2006. This report discussed the structural discrimination in marriage and family life as opposed to other forms of discrimination.

Professor Cook prepared a report specifically for this reference case. She was asked to address the harms of polygyny as viewed through the perspective of international human rights law.
- Review state practice and case law on polygamy in comparative western democracies including but not limited to Australia, UK, US and France
- Review the treatment of polygamy in international human rights law
- Review Canada's obligations with respect to polygamy

The report considers this review in three sections:
1. Harms of polygyny – inherent wrongs of polygyny and associated harms
2. State practices in opinion juris or the practice and the way the State feels obligated to address polygyny – out right prohibitions, legal restrictions, and immigration restrictions.
3. Canada’s obligations to comply with international law with regard to polygyny specific to women’s equality in marriage and family life, women’s rights to health and security of person, and children’s rights.

Professor Cook said that “Polygamy is a general term. It's a sex [gender]
neutral term that applies both to men and to women taking multiple spouses. Because international human rights law only deals with polygamy in a sex [gender] identified way, that is one man taking many wives, we use -- I use to be accurate the term polygyny which is one man taking many wives.”

Conclusions of Professor Cook’s report are as follows:
1. The patriarchal system of family life that allows a man to take multiple wives and not vice versa offends women's dignity and thus is inherently wrong. It's the actual structuring of the marriage in an unequal way that is inherently wrong.

2. As a general matter there are harms that are associated with the patriarchal system of family life that include harms to women's health,their physical and mental health, the material harms that both women and children suffer in these unions and then the harms, the particular harms to children having polygynous mothers. It is the inherent wrongs and the associated harms that the international treaty bodies the international
community have recognized.

3. The dominant practice that is now common among states is to prohibit polygyny either by criminal or family law provisions but recent prosecutions to enforce criminal prohibitions of polygyny have not been successful despite claims of freedom of religion.

4. Canada has an obligation to take all appropriate measures to eliminate polygyny under international human rights law as a form of did discrimination against women. There are collateral obligations as well. One is to dismantle prejudices and harmful stereotypes as well as ensuring that women in polygynous unions ensuring their rights are protected.

(My comment: She defines polygamy as a gender neutral term which agrees with the AG of Canada’s definition for this law but focuses on patriarchal polygyny which is the BC AG’s definition and the focus of international considerations as well. The first conclusion regarding inequality would also apply to men’s rights in polyandry but would not apply to egalitarian polyamory family structure. The associated harms and thus international obligations would also not apply to egalitarian polyamory. This law therefore restricts behaviour in agreement with the international conventions but also arbitrarily restricts behaviour that is NOT in contravention of the international conventions. Criminal law cannot be arbitrary.)

Regarding Canada’s obligations internationally Professor Cook said,

“Treaty based international law is international law that has been developed by the bodies that have been established under the international conventions. Sometimes this law is persuasive. Sometimes it's considered dispositive and it varies from treaty to treaty and issue to issue.”

Each convention has a committee or a body for that monitors how states have brought their laws, policies and practices into compliance with the convention. Customary international law is evidence by general practice that states follow out of a sense of a legal obligation. As the treaty bodies considered the harms of polygamy their review of materials was limited to those discussing the harms. “...they did not think about polygyny as anything but harmful”

Treaty based International Law to which she referenced for this report:

The convention on the elimination of discrimination against women (the
women's convention);the international covenant on civil and political rights;
the international covenant on economic and social rights; the convention on the rights of the child.

(My comment: I’m pondering the Harper government’s record with regards to the Kyoto accord. I also note that the treaty bodies did not review materials discussing benefits of polygyny or other multi-partner relationship models while developing these conventions.

Chief Justice Bauman may have been wondering similarly because he asked Professor Cook if the views of these committees under the various conventions or treaties are simply guidance to the states who have signed the document or carry the force of law. Professor Cook said that only two of the committees have issued general recommendations that deal specifically with polygamy and they are for guidance but not a part of the rule of law. She said that they might become customary international law because states are acting against polygynous forms out of a sense of obligation.)

Professor Cook said
“So international law becomes enforceable out of a sense of obligations and a
commitment to keeping the treaties and pacts you have made but the international human rights equivalent of a police force is shame so where these general comments and general recommendations are used say in reporting to countries are very important because where countries do not comply then they are shamed internationally. And no country wants to become a pariah state.”

(My comment: Canada has precedents in inclusiveness in human rights most recently with the same sex marriage legislation and the world is watching us now.)

International Polygamy laws:
There was much discussion of various countries and how they have treated polygamy under their laws which are best read in the full transcripts of this testimony. Regarding polygamy ban versus the right to freedom of religion, Professor Cook sited Bhewa vs The Government of Mauritious where article 18 of the political convenant was applied to rule that a prohibition of polygamy was a reasonable limit on the freedom of religion. Canada is a party to that same covenant. Also in the US convictions for polygamy in Utah have been upheld despite claims of exercising freedom of religion.

Professor Cook was not aware of any state that has decriminalized the practice of polygyny or polygamy and felt that it would be contrary to the trends of human rights law.

Cross-examination of Professor Cook by West Coast LEAF:

The treaties listed are posted on the internet and the countries that are parties or have ratified them are listed as well. Canada has done an accession or ratification to all of the treaties listed in Professor Cook’s report which means those countries have a positive obligation to take all appropriate measures. While general comments or recommendations may not be binding on state parties, they might in some circumstance be bound by treaties.
“If a state party failed to enact some kind of prohibition against polygyny or polygamy would that constitute non-compliance” with several recommendations in the sited treaties.

(My Comment: see Amicus cross notes below. She’s talking about recommendations regarding alleged discrimination of women not polygamy or polygyny specifically.)

When a state party ratifies or accedes to a treaty they are entitled to enter a reservation to the treaty which allows them to reserve their obligation to implement a certain aspect of the treaty. Canada has not entered a reservation to the women’s convention, has taken a leading role in implementing it and conscientiously reports every four years.

Clarification on term “patriarchal structuring of family life” – the man, the patriarch, is privileged in family life privileged with respect to rights and duties. It means the man is superior and the woman is inferior in family life.

Clarification on term “negative gender sterotypes” - direct discrimination, indirect discrimination and structural discrimination. States are are obligated to modify those social and cultural practices of gender and cultural practices of conduct of men and women with a view to eliminating prejudices and other practices that are based upon the inferiority or superiority of either of the sexes. So where women are treated in an inferior way through the social practice of gender or they're treated according to stereotype roles in other words predetermined or prejudged roles they are obligated to change those practices.

Cross-examination by the BC Teachers’ Federation:

Regarding harms to children of polygamous unions: the harmful gender stereotypes, exclusion of boys, early marriage for girls, lower levels of socioeconomic status, reduced academic achievement and self esteem as well as higher levels of reported family dysfunction and drug use and you also refer to neglect by fathers. These are in violation of the Convention of the rights of the child which says that that state parties shall take all appropriate legislative administrative social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect negligent treatment maltreatment or exploitation including sexual abuse while in the care of parents legal guardians or any other person who has the care of the child.

Cross-examination by the Amicus:

International treaties: Of the four treaties sited and noted by Professor Cook to be at the top of the hierarchy of international law, none of them contains the words “polygyny” or “polygamy”. The international treaty bodies comprise of about 20 delegates (predominantly women) who are selected by the party states to represent expert capacity (human rights). These bodies meet three times a year. None of the four committees have examined the issue of polygamy or polygyny comprehensively enough to have developed a recommendation on it because polygyny is not considered a significant diplomatic issue even comparative to other human rights issues.

Polyamory – is not dealt with in Professor Cook’s report except to distinguish it from polygyny.

Reports filed by countries to detail the legislative judicial administrative and other measures state party have taken to give effect to the treaty. Professor Cook referred to various countries such as Togo, Nepal and Nigeria on their obligations with respect to polygamy but none from Canada. Professor Cook indicated that the last report by Canada was filed in 2007 and there were no observations on it with respect to polygamy.

State practice on polygamy in comparative western democracies: Professor Cook identified countries as comparable in government and culture to Canada specifically the United Kingdom, France, Australia and the United States. Professor Cook sites national legislation and compares them amongst these countries.

Canada – section 290 (bigamy law – requires going through a form of marriage ceremony), section 293 (polygamy law – does not require going through a form of marriage ceremony)
Section 293 catches some relationships that section 290 does not.

United Kingdom – English criminal law prohibition on bigamy has been used to prosecute polygamist as the second wife and any subsequent wives are illegal. Amicus quoted from Professor Cook’s referenced source on this where further along it was noted that a marriage ceremony is required to prosecute under this law and if polygamists do not use the legal formalities that normally produce legal marriage then they commit no offence.

Australia – federal statute quoted by Amicus - a person who is married shall not go through a form ceremony of marriage with any person who is married knowing or having reasonable grounds to believe that the latter person is married. (bigamy) Amicus quoted from Australian law reform commission report which is sited in Professor Cook’s report:

“It can be argued that the offence of bigamy itself is therefore no longer necessary to deter the conduct against which it is directed. It is creating anomalies although the marriage is not valid the parties may be in a de facto relationship and certain consequences may follow from this. The commission recommends that further consideration should be given to the question of whether the policy that a person may not marry legally while already married should be enforced by a criminal offence.”

France, Belgium, Luxembourg, Switzerland: one prohibition in each country

Quoting from the website listing their legislation as referenced by Professor Cook:

(France) “On ne peut contracter un second mariage avant la dissolution du premier.” (one can’t enter into a second marriage before dissolution of the first.

(Switzerland) “Toute personne qui veut se remarier doit etabilr que son precedent marriage a ete annule ou dissous.” (Everyone who wants to remarry must establish that his or her
prior marriage has been annulled or dissolved)

(Belgium and Luxembourg)- same wording as France.

The website lists 50 countries where polygamy is recognized.

The cross-examination continued with discussion of various references used by Professor Cook most interestingly were

Uzbekistan, a Muslim country sited as being one of the countries with restrictions on polygamy (and thus a human rights leader on that issue)criminalizes consensual activities between adult males.

The Law Reform Commission of Canada’s working paper on bigamy describes polygamy as a
marginal practice which corresponds to no meaningful or sociological reality in Canada.
It also recommends removing the criminal prohibition on polygamy.

Authors, Bailey and Kaufman of one referenced book and Shana Sigmund author of another all recommend decriminalizing polygamy. Professor Cook confirmed that she was aware of this.

Tuesday, February 1, 2011

Polys in Court - week 5 - Dr. W. John Walsh's testimony

From transcripts of January 5, 2011.

Dr. W. John Walsh was called to the stand by the lawyer for the FLDS Church.

Dr. Walsh holds a PhD in religious studies from the University of Wales. He also holds a Bachelor of Science (Business) from New York State University, an MBA from Brigham Young University, and a Masters of Science and Jewish Studies from Spartus Institute of Religious Studies. He also completed seminary training with the LDS church. His PhD dissertation was on the essential theology of Joseph Smith who was the first Mormon prophet and founder of the church. He did a post doctoral study at St Mary’s Seminary in the University of St Thomas where he sat in with the seminarians training for Roman Catholic Priesthood.
Dr. Walsh retired from a career in corporate business (Ford Motor Co. and others)to pursue full-time religious studies. He currently is working on a book on Mormon mysticism and working as an independent scholar. He is an expert witness and media consultant on background information about Mormonism.

“I believe, as a general principle subject to reasonable restriction, if a woman wants to live in a house with five men or a man wants to live in a house with five women, as long as they are consenting adults, it's not the business of the government...That’s my personal feeling.”

Dr. Walsh’s testimony was with regards to a report he prepared for this court case and the points highlighted are as follows:

1.FLDS and LDS common heritage:
LDS – referring to the church of Jesus Christ of Latter-day Saints quartered in Salt Lake Utah.
- today the FLDS and LDS share about 95 a percent on theology and about 75 percent common practice.
Both groups were part of the same group prior to a division and they enjoyed 100 per cent common theology then. There has been a slight evolution in theology since and I used 95% as an estimate because the variation is very slight. It is mainly in the area of priesthood institutional type issues. In common practice is it more noticeable and readily apparent in several areas.
Polygamy - the FLDS and other Mormon fundamentalists have maintained polygamist relations while the LDS no longer practices polygamy.

Communal living - the FLDS live in the kind of a manifestation of the united order principle taught by Joseph Smith the LDS teach the principle of the law but do not actually practice it as a community at the present time

Dress - the LDS maintain somewhat mainstream dress standards they blend in more easily with society even though they also have standards of modesty but the FLDS have a more rigid modesty standard and they wear clothes that obvious make them stand out more because they are trying to keep more of their body parts covered from other's views
Theological Texts - both churches accept the Bible, the Book of Mormon, the Doctrine and Covenants and the Pearl of Great Price. The Book of Mormon purports to be a translation made by Joseph Smith of an ancient text Smith found recorded on golden plates. It’s formatted as a collection of books like the Bible and written in a similar scriptural language. The Doctrine & Covenants is a collection of revelations received by Joseph Smith.
The Pearl of Great Price was originally put together for Mormons living in England who did not have access to LDS literature and it contains the articles of faith which was an excerpt of a letter that Joseph Smith wrote that describes the basic beliefs of Mormons and excerpts from the Joseph Smith history, and several scriptural excerpts.

1890 Manifesto – President Woodrough of the LDS church formally announced the cessation of polygamy as a practice in the LDS church. The church made a practical realization they would not be able to continue as a community under the pressure they were receiving from the American Federal Government and therefore they decided that they would cease the practice of
polygamy due to this pressure. At that time they maintained that they still believed in the
principle of polygamy. This position has officially never changed but informally the
millions of members of the LDS church are divided into those two camps. One group would like the return of polygamy and I believe that's a holy principle that should be eternally practised. Another large group possibly each larger than the first group would like to see polygamy not returned they believe it's an archaic practice and so they would like it not to return.

1911 to 1920 The practice of polygamy had not entirely ceased and American Federal government came back to the LDS church and said that as there were still practicing Mormon polygamists and the agreement was not being honoured the sanctions would be reinstituted. There was new leadership in the LDS church mostly from the east who had not practiced polygamy and felt it was best left in the past. The LDS church had a new focus on international growth and embracing polygamy might cause some issues with international governments.

1920 to 1930 – LDS church began a program of purging the church of the problem and excommunicating of anyone in a polygamist relationship. This is what led to the division of the church and the formation of the FLDS and other groups as members who had been willing to go along with the public stance as long as they were left to privately practice it broke away to form loose associations. Some scholars estimate that there may be as many as 50,000 people in these groups with 10,000 of those in the FLDS.

Other fundamentalist groups – Dr. Walsh had interactions with the United Apostolic Brethern and a number of individual Mormon fundamentalists. He attended their worship services, read their literature and asked questions of the leaders and lay people about how they interpreted various common doctrines and what books and prophets they considered authoritative. He reviewed meeting minutes, personal journals and any other written materials available to observe how they were interpreting Mormon belief and practice. He had the same type of interactions with the FLDS.

2. Civil marriage versus celestial marriage – FLDS view civil marriage as a relationship sponsored by government with rights, responsibilities and privileges established by the government that sanctions it. FLDS theology talks about a heavenly family linked in family chains that start at God and goes through all the generations of Adam and Eve to the current including pre-mortal spirits that have not yet been born. The purpose of celestial marriage is to bring every person in the faith community into that family chain because by being part of the family chain they are enabled to inherent the highest degree of glory in the kingdom of heaven. Celestial marriage gives them a place in the chain. The covenant of celestial marriage does not always imply a sexual relationship within the FLDS. An example would be where a widow did not have a family. FLDS believe that everyone is to be part of a family group so she might be sealed in a celestial marriage to a family who would take care of her until she passed away. FLDS don’t being in nursing homes or other people taking care of family members. She might be much older than the man to whom she is sealed and there would not be contemplation of a sexual aspect for her.
The law of placement/placement marriage – The nature and extent of the members’ participation in polygamy is not determined soley by the members themselves but through an arranged matchmaking system within the FLDS community under the authority of the President/ Prophet of the church or the head of the priesthood in the community or someone he had delegated with this authority. The vast majority of pair bonding that is done within fundamentalism are self-selection placement marriage is unique to the FLDS and not practiced prior to the split with the LDS. It began to be practiced in the mid 1950’s as a moved to bring the members of the community back from worldly ways to the basic spiritual values. It was implemented by leaders as a way to make marriage more spiritual if the selection was a prayerful selection by the Prophet.

3.Doctrine of Agency – differs from traditional concept that since God created human being from nothing and they have no inalienable rights of their own only those that God gives them and free will is bestowed upon them. Mormons believe that humans are co-eternal with God and have agency of their own that has always been with them and that is an inherent part of their nature and will not be taken away by God nor by other people. And it would be against the theology of the religion to take away someone's agency by either forcing them to enter polygamy or forcing them to do anything else. Forcing and coercion are directly contrary to the theology.

Cross-examination by a lawyer for the AG of BC:

With regards to doctrinal differences between the FLDS and LDS - Dr Walsh was asked if her knew of a collection of works of the FLDS leaders called “In Light and Truth” and compiled by Rulon Jeffs. Dr Walsh was familiar with it and said that it is not used in mainstream LDS religious instruction.

Dr Walsh indicated that he had testified in a court hearing in Texas where he indicated that he had never been to the Yearning for Zion ranch or spoken with any of the people who had been resident there.

He indicated that he was not familiar with any of the testimony file in this reference case but knew who Dr. Larry Beall was.

Description of the marriage ceremony – man and woman think they are representing Adam and Eve and their offering to God which is the practice that was laid out by Joseph Smith and noted in journals of FLDS members. The officiator at the marriage ceremony believes that the declarations of willingness are made in good faith and without duress according to the doctrine. Dr. Walsh indicated that he has not attended an FLDS marriage ceremony and observed this for himself.

No one should be forced into polygamy – Dr. Walsh confirmed that theologically a priesthood holder cannot seal a man and woman together if neither of them wants to be sealed as the act would not be recognized by God. It would be an abuse of power and a deviation from the normative standards.

Returning to the book, “In Light and Truth” – a exerpt was quoted which was attributed to Leroy S Johnson,the leader of the FLDS community from the 50s until late 70s, early 80s.
The quote discussed the responsibilities of men and women of the community and indicated that there were women who were set by good men and refused them. These women were to be cast out for their disobedience. Dr. Walsh confirmed that if a woman’s choice was to refuse marriage arranged for her, there would be spiritual consequences for that disobedience including being cast out from the community. The AG BC lawyer wondered if fear of being cast out might not effect a girl exercising her free will or agency with regards to a marriage arrangement. Dr. Walsh said that in every community there's a symbiotic relationship between the members of the community and what they accept and will not accept as behaviour. In the FLDS if either males or females are exhibiting behaviour that is not up to the community’s expectations, they can and sometimes are cast out. A refusal to accept a marriage arrangement is most often part of a pattern of disobedience that is not conducive to a harmonious community.

Women and self-determination and autonomy – FLDS accept the Bible and it teaches that women should submit themselves to their husbands and fathers. In the book In Light and Truth there is reference to training young wives to love God and their husbands or they will lose them. Dr. Walsh said that training is meant as in teaching. Husbands are responsible for making sure their wives and children have received the right teachings of the Lord and are following them. If the husbands fail in their duty they will face their own spiritual consequences.

Again referring to “In Light and Truth” and a excerpt attributed to Rulon Jeffs who was President and Prophet of the FLDS until he died about 9 or 10 years ago. In this excerpt the man is to be honoured as the head of the household and whether the woman feels he is worthy of her or not, he is her Lord and she is to keep that in mind and ensure happiness in her family. The AGBC wondered if this didn’t indicate forcing a relationship on the woman. Dr. Walsh said that both the husband and wife are instructed that their spouse may have imperfections but it is the job of both spouses as part of celestial marriage to do everything you can to help redeem to the other person. Accept him as your husband and work with him as the man he should be instead of maybe as a man he actually is.

Age of marriage – nothing in the LDS or FLDS doctrine prescribes a specific age of marriage according to Dr. Walsh. A member marries when the Prophet indicates it is time but there is a negotiation between the Elders, the parents and the child involved. The age at which a girl marries varies from family to family. Elders have stated varied opinions of what is a good age to marry from 18 yrs to 16 yrs to first menses.

In evidence from the case in Texas, the AGBC noted that 1 in 4 girls is married under age which would indicate something organized if not doctrine. Dr. Walsh said that this is one out of four girls within a very select community at the Eldorado Ranch in Texas. He said that if you looked at the 10,000 FLDS spread over the US and Canada, one out of four girls has not been married at those ages (12 – 15 yrs). He had no statistics to quote but from his reading of large amounts of literature, journals, personal histories and talking to people he confirmed that a marriage at the age of 12 would be a deviation from historical FLDS practice and most FLDS members would be shocked by it.

Cross-examination by lawyers for one of the interested parties revealed nothing further and centred on the age of marriage and whether there was any formal writings regarding the sanctioning of underage marriage. Dr. Walsh continued to say that while he’d heard some rumours of this occurring had no personal knowledge and had observed nothing in his reading to indicate this was formal doctrine.