from transcripts of Dec 7, 2010
BC Supreme court - reference regarding Section 293 (Polygamy Law)
The Christian Legal Fellowship called Dr. Shoshana Grossbard to the stand. She is a professor of economics at San Diego State University specializing in labour economics, law and economics of household, economics of marriage including polygamy, gender studies, sociological and anthropological economics. Dissertation at University of Chicago was on the economics of polygamy based on a study of polygynous households in Nigeria. Published 6 articles and a chapter in a book on economics in marriage on the subject of the economics of polygamy.
Dr. Grossbard indicated that she was familiar with polygamy as practiced in most African countries, a majority of Asian countries and some parts of the Americas - North America in particular. Polygamy is found just in certain areas of some countries as a cultural phenomenon limited to certain tribes , certain ethnic groups or associated with certain religions. Muslims in African Arab countries, Canada, US & France; Christians (FLDS) US and Canada; and only amongst the Jews of Kortistan or Yemen as it is illegal in Israel. Mainly a cultural phenomena that is associated with religion. Dr. Grossbar was only familiar with FLDS in US and had not heard of Bountiful before becoming involved in this court case.
Dr. Grossbard discussed the theory of marriage market economics where by the demand for wives by men and the supply of wives by women is thrown when polygamy is introduced to the marriage market. The demand for wives increases but the supply remains the same which should make the women more valuable. The practice of paying a bride price is more common in polygamous societies than monogamous societies. This is where the men pay the woman's father at the time of marriage so the increased value doesn't benefit the woman and the men maintain control of the women as they negotiate the transactions. Female circumcision is also used in large parts of Africa to control women so that they don't dispute the amount of attention they get in a polygynous household. Muslim law has easy divorce for men with no rights to custody of the children to the divorced wife thereby controlling women who might be dissatisfied and making them afraid to complain or leave. Arranged marriages and young brides with older husbands maintains the supply of wives favouring arranged marriages and discouraging the ideal of romantic love so that the expectations of the women for a spouse are lower. The Muslim custom of perda or isolating the women from the outside world was also a way of controlling them that is seen worldwide in non-Muslim polygamous communities. The ability of women to participate in the labour market is limited and often non-existent. Dr. Grossbard noted studies that show a significantly higher prevalence of depression, obsessive compulsive disorder and a number of other mental illnesses amongst the senior wives in polygamous societies comparative to monogamous societies. This study was of Bedouins and the Palestinians of the Gaza and West Bank.
Dr Grossbard said that customs have been developed which are aimed at alleviating the problems caused by polygamy such as the Islamic prohibition on Muslim men having more than four wives. Other cultures institute a rotation schedule so to minimize the jealousy among the co-wives, senior wives may have specific roles or separate dwellings. In some societies the wives are real [natural born] sisters. Early widowhood and the availability of another husband to reassign the widow to or she will have no support is a problem. Lack of education for women especially but in general their is high fertility and the resources are spent on the quantity of children rather than investing in quality human capital. Related health problems, high mortality rates and limited literacy.
Justice Bauman asked Dr. Grossbard some questions with regards to the cultural or religious basis of polygamy in Africa and Muslim countries in particular. Dr. Grossbard said that Islam doesn't encourage polygamy but rather tolerates it. Muslim men then practice it despite their religion.
One of the lawyers on the Amicus' legal team covered cross-examination of this witness. He asked if Dr. Grossbard had conducted field research in Nigeria, Bountiful, Canada or North America. Dr. Grossbard said that she didn't conduct any field research as an Economist she would do her analysis based on the data collected by others. The Amicus asked what research or evidence was there that if polygamy were permitted in Canada there would be more of it as the doctor had stated and further what evidence was there in the doctor's report that prohibiting polygamy would decrease it - given that it was illegal now and still practiced.
The Amicus noted a section in the doctor's report where it was stated that in an industrial society there would be less demand for a polygamous scenario than in an agricultural society. He referred to a paper cited in Dr. Grossbards report that concluded that the personal incentives to become polygynous decline naturally with development as the ability to raise educated children and invest in human capital becomes more possible with a less intensive need to produce home products. Men will then seek out wives who can help them do that and naturally incline to monogamy. Dr. Grossbard then disputed the paper's validity and said she had only cited as reference to part of their argument and that she disageed with the author of the paper's conclusions.
Given the more prevalence of polygamy in less developed countries, the Amicus, asked Dr. Grossbard if there would then also be a greater prevalence of poor health, lower education, lower life expectancy, fewer civil liberties, gender inequality? Dr. Grossbard agreed that they would be associated with economic development but that doesn't mean they don't accompany polygamy although one can't say that they are caused exclusively by it.
On the point of early widowhood and financial hardship for the women, the Amicus asked if the removal of the male bread winner of a polygamous household because of imprisonment would increase the likelihood of financial hardship for the women in that polygamous relationship. The doctor agreed that this would be a negative factor. Several other points with regards to easy divorce, and arranged marriages were raised with regards to their prevalence in monogamous relationships in countries where polygamy is legal and in North American society where they have a different context entirely. The doctor stated that her sources about female circumcision were not Canadian but that there are cases of female circumcision in Canada mostly among immigrants from Africa.
Dr. Zheng Wu, professor of sociology at the University of Victoria was called to the stand by the Amicus. Dr. Wu's specialty is family demography which is the study of events in the family from marriage, cohabitation, separation, divorce, widowhood, child battering, child rearing and the well-being of family members. He has published a book on about cohabitation as an alternative form of family living and various articles on marriage, divorce, health and aging, immigration, medical sociology and mental health.
Dr. Wu's affidavit is a report of the demographic profile of conjugal life in Canada over the last several decades. His conclusion was that marriage although still a valid social institution has weakened with a delay and decline in marriage a high level or marital instability and a rise in non-marital cohabitation or common law unions. Most of his data was from Statistics Canada which in Dr. Wu's opinion is high quality data and the best possible in this country.
His report notes:
1. Spousal abuse and child abuse rates in Canada - a relative small percentage of criminal spousal violence gets reported to the police. According to available statistics 75,000 incidents of violent crime were committed against a family member in 2007, 40,000 were committed by a current/previous spouse or common law partner. There were 6,600 incidents of violent crimes were committed against a child within the family. Seven percent of Canadians who are married or live common law have experienced spousal abuse in the past five years. That's about 650,000 women and 540,000 men who have been victims of spousal violence. Predominantly monogamous relationships. Two percent of Canadians aged 18 to 59 (346,000 in 2005) identify themselves as being gay, lesbian or bisexual. In 2006, there were 1.4 million single parent families in Canada. 80 percent (1.1 million) were single mother homes and 20 percent single father homes. Also in 2006 census, there werer 4.8 million single/never married men and 4.3 single/never married women over age 15 living in Canada. There are, then, 550,000 more single/never married men than women. The same census showed 905,000 divorced men and 1.2 million divorced women. About 10,000 divorces occur annually in British Columbia. One third of marriages in Canada end in divorce within 30 years of initiation while 40 percent of marriages in BC end in divorce within 30 years of initiation. The average Canadian women has 1.59 children in her lifetime. The average Canadian man has 1.35 children in his lifetime. 5.8 percent of men and 4.6 percent of women are living with step-children.
Cross-examination by the BC AG was quite confusing focusing on areas that Dr. Wu declared no expertise and would comment only broadly or not at all. He was pretty focused on the decline of marriage not being so dramatic when one included common law relationships and LAT (where people maintain relationships but don't live together). Dr. Wu was unable to do any comparative analysis of polygamy or its impact as there is no data with Stats Canada. The AG of Canada's cross was a good half hour of discussion on the terminology of common law marriage, common law relationships and cohabitation.
The stats on spousal/family violence are very very sad and not at all surprising. The fact that so many men are victims of spousal violence is an important point that goes by the wayside with the focus on women and children. Male victims have a whole different set of issues when seeking help in Canadian society.
Thursday, December 16, 2010
Saturday, December 11, 2010
Polys in Court - Week 2 - Dr Lawrence Beall summary
from transcripts of Thursday Dec 2nd -
The court session began with a telephone conference call. One of the witnesses who's video testimony has been posted on the internet was calling to tell the court why this was upsetting for her. Justice Bauman had not yet rendered his decision on the BC AG's application to have publication banned of those videos.
Dr. Lawrence Beall then took the witness stand. He is a PhD of Psychology with a clinical practice in Salt Lake City. He has been a witness in 5 criminal cases with regards to polygamous relationships and written a paper called "The Effects of Modern Day Polygamy on Women & Children" that is to be published in an upcoming journal issue on polygamy. He has treated adults, adolescents and children who are recovering victims of domestic violence, vets from Iraq & Afghanistan, victims of gang violence, refugee trauma and torture victims. For the purposes of his paper and his expert witness in these proceedings his counseled 14 men and 16 women in a group of 30. 8 of the women were FLDS from FLDS communities in Utah and Arizona. He also counseled 11 more men and interviewed 6 more women from Hilldale/Colorado City area. He was able to do some background research of vital statistics data and correspondence in the Yearning for Zion Ranch.
From this Dr. Beall was able to say that the FLDS has a stronger emphasis on being saved by polygamy which is indoctrinated in the educational system and that there is a tighter network of control then found in non-FLDS homes. He said that there was a mental and emotional impact of underage girl marrying an older man. He noted a lot of travel between Short Creek (Hilldale/Colorado City area) and Bountiful mostin in young girls who were potential marriage partners.
A common diagnosis for the people in this survey was Post Traumatic Stress Disorder
which is where a psychologically traumatic experience in the past presents now usually in flash backs or nightmares. Memories of an event or events intrude on current functioning of the individual. This diagnosis was expressed in anxiety and depression in the women who shut down and internalized their anger as guilt and shame. The young men externalized it with anger and behaviour problems. The young men expressed a sense of unfairness as they were told to obey and be faithful and they would be rewarded with a wife but found themselves competing for wives with men who were much older and had more financial resources. Treatment was difficult because of their belief that mental health problems were a sign of weakness.
These people were taught not to question and this is key to an adolescent developing their sense of identity and critical thinking for adulthood. They were left with doubts about their own thinking and feelings and an inability to clearly state them, self-esteem issues, lack of ability to exercise judgment and make plans for the future. An adolescent's pre-frontal cortex is still forming and has insufficient cognitive capacity to make decisions like who to marry.
He discussed his discovery of sexual grooming in the communities which is a gradual relationship building that leads to a sexual content. The process involves increasing trust and affection; and a sense that this relationships is unique and special; secrecy and isolation of the victim from her support system;breaking down the victim's defenses with fear and guilt. All of this makes if difficult for the victim to say no when sex enters the picture and gives the illusion of consent. He said he would call this structured sexual grooming because it is endorsed by doctrine and teachers including her own parents. Treatment involved cognitive restructuring to get passed the indoctrination and conditioning. It also involved teaching basic life skills for survival in the general population community.
The description of sexual grooming sounds like what a battered women or child sexual abuse victim experiences in a monogamous setting as well. The sense that you somehow brought the abuse upon yourself and thus consenting or participated willingly feeds the fear and the guilt. He only hits me cause I'm a bad cook and should learn to do better. etc. Indoctrination doesn't need a prophet to be effective. The battery of the self-esteem and sense of being trapped doesn't need polygamy either. Both are found too frequently in monogamous households.
Barriers to girls leaving FLDS communities were:
1. needing to be ready to flee with her children when a brief opportunity arose
2. needing to have set up a place to run to with support people to help her
3. needing to find work and get established with medical and social supports for herself and children in a new community that you were raised to see as threatening and dangerous.
4. resulting legal issues of a fight for child custody, support & access while still remaining safe from her husband
Barriers for young men leaving were similar but they don't have the issues regarding children. They also have some skills for the labour market that the women don't have.
I have to say that these barriers are also there and substantial for thousands of women and men across Canada who flee from abusive monogamous relationships every year. I myself had to flee from Ontario to BC to get away from a husband (monogamous) who didn't see that even divorce should interfere with his control, treatment and rights over myself and our children. All of those barriers are contributed to by the average person's disengagement with the domestic abuse that is rampant and unacceptable all around us. Let's have zero tolerance for it and proper supports for victims and perpetrators in ALL relationship structures - monogamous or multi-partnered. NO ONE should have to live like that.
Cross-examination of Dr. Beall revealed that he had not familiarized himself with individual notes of these 30 people and was commenting from the memory of interactions of several years ago as HIPA (a US federal law that says you can't disclose information based on clinical notes without the written consent of the patients). His memory of statements made about these recollections during testimony for other cases was questioned and found failing several times. His generalizations were highlighted as being likely from opinion more than stated fact. He stated that he knew nothing of the FLDS before counseling his first of many FLDS clients and yet acknowledged that he was LDS himself. The fact that the majority of the men in his survey were sent to him via an organization that is a primary party in the Lost Boys litigation in the US and that this organization paid for their treatment. His comments were with regards to comments made but some but not all of is survey group and no access to persons who were in the FLDS communities.
In redirection Dr. Beall indicated that he also has a Masters in Education and he opinioned that the education in the FLDS communities was inferior because of the narrow scope of approved education, lack of resources and lack of teacher training and students were not able to develop critical thinking.
Finally discussion of the day was around scheduling of closing statements and that looks like it may be in March.
On a personal note: I apologize for being behind on these summaries and will try to catch up on things this weekend. Thank you for your patience.
The court session began with a telephone conference call. One of the witnesses who's video testimony has been posted on the internet was calling to tell the court why this was upsetting for her. Justice Bauman had not yet rendered his decision on the BC AG's application to have publication banned of those videos.
Dr. Lawrence Beall then took the witness stand. He is a PhD of Psychology with a clinical practice in Salt Lake City. He has been a witness in 5 criminal cases with regards to polygamous relationships and written a paper called "The Effects of Modern Day Polygamy on Women & Children" that is to be published in an upcoming journal issue on polygamy. He has treated adults, adolescents and children who are recovering victims of domestic violence, vets from Iraq & Afghanistan, victims of gang violence, refugee trauma and torture victims. For the purposes of his paper and his expert witness in these proceedings his counseled 14 men and 16 women in a group of 30. 8 of the women were FLDS from FLDS communities in Utah and Arizona. He also counseled 11 more men and interviewed 6 more women from Hilldale/Colorado City area. He was able to do some background research of vital statistics data and correspondence in the Yearning for Zion Ranch.
From this Dr. Beall was able to say that the FLDS has a stronger emphasis on being saved by polygamy which is indoctrinated in the educational system and that there is a tighter network of control then found in non-FLDS homes. He said that there was a mental and emotional impact of underage girl marrying an older man. He noted a lot of travel between Short Creek (Hilldale/Colorado City area) and Bountiful mostin in young girls who were potential marriage partners.
A common diagnosis for the people in this survey was Post Traumatic Stress Disorder
which is where a psychologically traumatic experience in the past presents now usually in flash backs or nightmares. Memories of an event or events intrude on current functioning of the individual. This diagnosis was expressed in anxiety and depression in the women who shut down and internalized their anger as guilt and shame. The young men externalized it with anger and behaviour problems. The young men expressed a sense of unfairness as they were told to obey and be faithful and they would be rewarded with a wife but found themselves competing for wives with men who were much older and had more financial resources. Treatment was difficult because of their belief that mental health problems were a sign of weakness.
These people were taught not to question and this is key to an adolescent developing their sense of identity and critical thinking for adulthood. They were left with doubts about their own thinking and feelings and an inability to clearly state them, self-esteem issues, lack of ability to exercise judgment and make plans for the future. An adolescent's pre-frontal cortex is still forming and has insufficient cognitive capacity to make decisions like who to marry.
He discussed his discovery of sexual grooming in the communities which is a gradual relationship building that leads to a sexual content. The process involves increasing trust and affection; and a sense that this relationships is unique and special; secrecy and isolation of the victim from her support system;breaking down the victim's defenses with fear and guilt. All of this makes if difficult for the victim to say no when sex enters the picture and gives the illusion of consent. He said he would call this structured sexual grooming because it is endorsed by doctrine and teachers including her own parents. Treatment involved cognitive restructuring to get passed the indoctrination and conditioning. It also involved teaching basic life skills for survival in the general population community.
The description of sexual grooming sounds like what a battered women or child sexual abuse victim experiences in a monogamous setting as well. The sense that you somehow brought the abuse upon yourself and thus consenting or participated willingly feeds the fear and the guilt. He only hits me cause I'm a bad cook and should learn to do better. etc. Indoctrination doesn't need a prophet to be effective. The battery of the self-esteem and sense of being trapped doesn't need polygamy either. Both are found too frequently in monogamous households.
Barriers to girls leaving FLDS communities were:
1. needing to be ready to flee with her children when a brief opportunity arose
2. needing to have set up a place to run to with support people to help her
3. needing to find work and get established with medical and social supports for herself and children in a new community that you were raised to see as threatening and dangerous.
4. resulting legal issues of a fight for child custody, support & access while still remaining safe from her husband
Barriers for young men leaving were similar but they don't have the issues regarding children. They also have some skills for the labour market that the women don't have.
I have to say that these barriers are also there and substantial for thousands of women and men across Canada who flee from abusive monogamous relationships every year. I myself had to flee from Ontario to BC to get away from a husband (monogamous) who didn't see that even divorce should interfere with his control, treatment and rights over myself and our children. All of those barriers are contributed to by the average person's disengagement with the domestic abuse that is rampant and unacceptable all around us. Let's have zero tolerance for it and proper supports for victims and perpetrators in ALL relationship structures - monogamous or multi-partnered. NO ONE should have to live like that.
Cross-examination of Dr. Beall revealed that he had not familiarized himself with individual notes of these 30 people and was commenting from the memory of interactions of several years ago as HIPA (a US federal law that says you can't disclose information based on clinical notes without the written consent of the patients). His memory of statements made about these recollections during testimony for other cases was questioned and found failing several times. His generalizations were highlighted as being likely from opinion more than stated fact. He stated that he knew nothing of the FLDS before counseling his first of many FLDS clients and yet acknowledged that he was LDS himself. The fact that the majority of the men in his survey were sent to him via an organization that is a primary party in the Lost Boys litigation in the US and that this organization paid for their treatment. His comments were with regards to comments made but some but not all of is survey group and no access to persons who were in the FLDS communities.
In redirection Dr. Beall indicated that he also has a Masters in Education and he opinioned that the education in the FLDS communities was inferior because of the narrow scope of approved education, lack of resources and lack of teacher training and students were not able to develop critical thinking.
Finally discussion of the day was around scheduling of closing statements and that looks like it may be in March.
On a personal note: I apologize for being behind on these summaries and will try to catch up on things this weekend. Thank you for your patience.
Tuesday, December 7, 2010
Polys in Court - Week 2 Professor Angela Campbell summary
Reminder that I am not in court for the next few weeks but I am commenting based on transcripts.
The case of constitutionality of section 293 of the Criminal Code of Canada or "the polygamy law" was heard Tuesday to Friday this week(Nov 30 to Dec 3).
The BC AG and the court staff have set up a room in the court house for print copies of all the materials submitted as evidence in this case for reference only (not to be removed from the room) and copies can be requested of anything not on the internet.
The first day was a "voir dire" with Professor Angela Campbell of McGill University on the stand being questioned on her qualifications as an expert witness. She is a professor of law, Director of McGill law school and the Institute of Comparative Law. The latter is a graduate studies program that compares law across jurisdictions, legal traditions and disciplines. She also conducts academic research most recently in the area of women in Polygamy. She has written many papers and been published in academic journals. While doing one such paper commissioned by the Status of Women Commission she observed that there was very little primary source research regarding the experiences of women in polygamy in North American and especially in Canada. Prof Campbell had been contacted by some women of the Bountiful area when working on that paper and was not able for time and budget reasons to pursue interviews with them at the time. When she received funding to do a second paper she contacted those women again and others who had been outspoken on websites and in the media via Canada 411. As she began interviews in Bountiful others came forward. She did not seek assistance from community leaders for suggestions on participants in her research. 22 women in total were interviewed about their experiences of polygamy.
The next day the court heard the testimony of Prof Angela Campbell, having ruled that she did qualify as an expert. Prof Campbell discussed her affidavits of observations while doing research at Bountiful. She said that the background of polygamy in the context of the FLDS religion is where polygamy was seen as one of the steps towards Celestial glory and that the law of God would have more influence than the law of the land if there were a conflict. She learned that historically it was not uncommon for adolescents of 15 or 16 to be married but that this had been discouraged in recent years to age of adulthood or later. Historically the marriages were arranged and the new spouses did not necessarily know each other at all prior to the wedding but this has also changed and spouses will most often choose each other after a long period of courting each other. This is seen as resulting in happier marriages. Regarding family planning and contraception, she observed that the women talk amongst themselves and manage families such that the wear of too many children too close together is kept under control. Younger women have busier lives and don't have the time to handle families as large as their mother's and grandmother's and this is acknowledged.
The children of the community expressed strong bonds with their biological mothers but also a bond of protection was indicated with relation to their biological mother's sister wives who they refer to as Mother X or Mother Y etc. Children within a household whether full or half-siblings viewed each other as siblings with the same commonalities and rivalries as found in monogamous households. The bond between sister wives was noted as something of importance for the women interviewed. A division of labour occurs in the household and in the community as well as the support and companionship amongst the women. Some of the hard parts of being in a plural marriage were expressed as jealousy and competition amongst the women for the time, attention and resources of the shared husband. Lack of space of one's own is an issue and sometimes resolved by one of the women moving to a house of her own with her children. And thirdly, while the sense of sharing responsibilities and labour is strong it stops at disciplining another women's children. That is not a welcomed behaviour and causes much conflict. She noted that the women of the community do not all dress in the traditional fashion seen in the media but that some wear jeans and t-shirts, have pierced ears and wear minimal makeup. Work and education were seen as in the context of what is good for the community and what is good for the prophet so that you plan to generate your own wealth or educate yourself but as a way to give back to the community. Common vocations for women were nursing, midwifery, teaching, care giving, and service industry or working in the shops in nearby towns. Higher education is pursued by women but usually after they've had their children. The other wives support the study of each other which happens in neighbouring communities and US institutions. The people of Bountiful also access services in neighbouring communities like groceries that are benign and would not spot light them as being polygamists so they won't access marital counseling for instance.With regards to the fundamental inequality of polygamy in that one man may have many wives but the wives may have only the one husband shared, Prof Campbell noted that her interviewees did not see that way but felt sorry for the man who is outnumbered and if the women want something in solidarity they get it.They valued this plural arrangement for its religious and social context. As to abuse and sexual assault, they respondents said that it should be targeted and dealt with appropriately with law enforcement. In discussion of the children and youth, Prof Campbell said that she did not hear of an effort to push young men out of the community nor did she notice any disproportionate number of females to males.
The remainder of the day was spent cross-examining Prof. Campbell and while interesting, those points will come up in primary testimony with other experts and I'll not note them here.
The case of constitutionality of section 293 of the Criminal Code of Canada or "the polygamy law" was heard Tuesday to Friday this week(Nov 30 to Dec 3).
The BC AG and the court staff have set up a room in the court house for print copies of all the materials submitted as evidence in this case for reference only (not to be removed from the room) and copies can be requested of anything not on the internet.
The first day was a "voir dire" with Professor Angela Campbell of McGill University on the stand being questioned on her qualifications as an expert witness. She is a professor of law, Director of McGill law school and the Institute of Comparative Law. The latter is a graduate studies program that compares law across jurisdictions, legal traditions and disciplines. She also conducts academic research most recently in the area of women in Polygamy. She has written many papers and been published in academic journals. While doing one such paper commissioned by the Status of Women Commission she observed that there was very little primary source research regarding the experiences of women in polygamy in North American and especially in Canada. Prof Campbell had been contacted by some women of the Bountiful area when working on that paper and was not able for time and budget reasons to pursue interviews with them at the time. When she received funding to do a second paper she contacted those women again and others who had been outspoken on websites and in the media via Canada 411. As she began interviews in Bountiful others came forward. She did not seek assistance from community leaders for suggestions on participants in her research. 22 women in total were interviewed about their experiences of polygamy.
The next day the court heard the testimony of Prof Angela Campbell, having ruled that she did qualify as an expert. Prof Campbell discussed her affidavits of observations while doing research at Bountiful. She said that the background of polygamy in the context of the FLDS religion is where polygamy was seen as one of the steps towards Celestial glory and that the law of God would have more influence than the law of the land if there were a conflict. She learned that historically it was not uncommon for adolescents of 15 or 16 to be married but that this had been discouraged in recent years to age of adulthood or later. Historically the marriages were arranged and the new spouses did not necessarily know each other at all prior to the wedding but this has also changed and spouses will most often choose each other after a long period of courting each other. This is seen as resulting in happier marriages. Regarding family planning and contraception, she observed that the women talk amongst themselves and manage families such that the wear of too many children too close together is kept under control. Younger women have busier lives and don't have the time to handle families as large as their mother's and grandmother's and this is acknowledged.
The children of the community expressed strong bonds with their biological mothers but also a bond of protection was indicated with relation to their biological mother's sister wives who they refer to as Mother X or Mother Y etc. Children within a household whether full or half-siblings viewed each other as siblings with the same commonalities and rivalries as found in monogamous households. The bond between sister wives was noted as something of importance for the women interviewed. A division of labour occurs in the household and in the community as well as the support and companionship amongst the women. Some of the hard parts of being in a plural marriage were expressed as jealousy and competition amongst the women for the time, attention and resources of the shared husband. Lack of space of one's own is an issue and sometimes resolved by one of the women moving to a house of her own with her children. And thirdly, while the sense of sharing responsibilities and labour is strong it stops at disciplining another women's children. That is not a welcomed behaviour and causes much conflict. She noted that the women of the community do not all dress in the traditional fashion seen in the media but that some wear jeans and t-shirts, have pierced ears and wear minimal makeup. Work and education were seen as in the context of what is good for the community and what is good for the prophet so that you plan to generate your own wealth or educate yourself but as a way to give back to the community. Common vocations for women were nursing, midwifery, teaching, care giving, and service industry or working in the shops in nearby towns. Higher education is pursued by women but usually after they've had their children. The other wives support the study of each other which happens in neighbouring communities and US institutions. The people of Bountiful also access services in neighbouring communities like groceries that are benign and would not spot light them as being polygamists so they won't access marital counseling for instance.With regards to the fundamental inequality of polygamy in that one man may have many wives but the wives may have only the one husband shared, Prof Campbell noted that her interviewees did not see that way but felt sorry for the man who is outnumbered and if the women want something in solidarity they get it.They valued this plural arrangement for its religious and social context. As to abuse and sexual assault, they respondents said that it should be targeted and dealt with appropriately with law enforcement. In discussion of the children and youth, Prof Campbell said that she did not hear of an effort to push young men out of the community nor did she notice any disproportionate number of females to males.
The remainder of the day was spent cross-examining Prof. Campbell and while interesting, those points will come up in primary testimony with other experts and I'll not note them here.
Saturday, November 27, 2010
Polys in Court - first hand report - Day 4 and issues held (Day 5)
Day 4 or Thursday November 25 began later than usual at 11 am. It was a good thing as there had been some snow fall overnight and roads were a bit slick in Vancouver. There was a decided lack of media as we arrived at the court house. Once we were inside the court room stragglers began to appear notebooks in hand and the mood of those in attendance was a quiet excited anticipation of the last few opening statements which would likely be the more controversial.
Before the court heard the these opening statements the BC AG sought the advice of Justice Bauman with regards to his application for a publication ban on the video affidavits which have been posted to the Vancouver Sun's website and one other location. Justice Bauman asked the lawyer for the BC AG to determine which media outlets had been served notice of the application and when so that adequate time to respond was offered to them. Mr Jones, lawyer for the BC AG removed himself from the court room with the Judge's leave to find that out.
The lawyer for Oler and the FLDS church spoke first. His viewpoint is that this law prohibits the binding agreement not the activity that is described. The crown must prove that the accused entered into a multiple partner relationship and believed it to be binding upon themselves for a period of time. The law does not prohibit living with, having sex with, having children with nor loving more than one person. It prohibits the contract. A criminal offense cannot be described in such a way as that it depends on the activity of a third person. The idea that the law kicks in when an authority sanctions unrelated a voluntary act of the accused people in the relationship. So the situation becomes an offense when a third party (authority) sanctions it which is contrary to basic criminal law where a criminal offense is a voluntary act of the accused. Section 293 is merely a crime of status by prohibiting the status of two or more persons who are in a conjugal union behaving in an otherwise perfectly legal manner. The FLDS are not participating in this reference to defend their beliefs which they understand are observed with scorn by many Canadians but they wish to challenge the prohibition on plural and arranged marriages as the law applies to them. The members of the FLDS freely choose to enter into plural marriages because of their beliefs and in contrast to a secular view of rights and brain damage as others would suggest. He indicated that there are 550 people in the FLDS part of the Bountiful community which does not include those aligned with Blackmore. 183 of those are over 18 years of age, 115 of those are married, 60 in monogamous marriages and 55 in plural marriages. Of the 68 unmarried adults, 13 are formerly married. There are 22 youth aged 16 or 17 and none are married. He discussed the evidence of witnesses that he will bring forward to speak to the motivation and experience of polygamy from men and women within and having left the community. He will not file the affidavits of Oler and Palmer at this time and some 12 of his witnesses have sought anonymity. He said that the prohibition on polygamy ostracizes community members from medical assistance as fear of prosecution under the law is feared and legal assistance is costly. He indicated that his witnesses will testify that they do not want to live separate from society and want to ensure that when help is needed in family breakdown that it can be safely accessed. He then entered his evidence for the record and numbering identification.
John Ince, lawyer for the Canadian Polyamory Advocacy Association spoke next. John said that the doctrin of reading down a law to find a interpretation indicates a narrower or a surgical approach not the blanket approach of the AG's positions and contrary to the charter. His position is that the law is flawed because it targets people beyond the primary focus of fundamentalist communities. The focus of the AG's is on a patriarchal system where there is an imbalance of power in multiple partner relationships and in the general community which may well be impacting social problems. They have not restricted themselves to these communities but have included a large number of people who likely dwarf the number of people in partriarchal communities and he will be presenting evidence as to the size of the non-partriarchal community which he will refer to hereafter as the polyamourous community. There are key differences between these communities: conjugal freedom (to chose who, how many, what gender, and the length of the relationship); no religious tradition to the relationship form; a modern relationship structure having been coined as polyamory only 30 or 40 years ago; and occurs in the mainstream community. The idea that if a relationship is celebrated and formalized it becomes illegal regardless of the fact that in no other way have the participants harmed themselves or anyone else is discriminatory. He gave several examples of otherwise law abiding neighbours in similar relationship structures would be open to prosecution for throwing a party to celebrate their relationship and said that this law could break up loving families. This is deeply disturbing to the polyamourous community. It is inferred that women if not protected by this law will wander off into polygamous households and cannot be left to make their own choices. These arguments were used to prevent women from having the vote and gays from having relationships as unnatural activities. We now know that this is the embodiment of prejudice and nothing to do with harms. He discussed the issues raised by the BC AG around determining whether one could easily determine the patriarchal nature of a plural relationship or not. He indicated that several key questions asked by a border guard to three people attending at his station would determine an attitude of egalitarianism in the relationship that would negate patriarchal philosophies. Also he said that three people listing the same address might be assumed to be polygamists when in fact they are college roommates. The blanket inclusion approach causes huge problems where a more surgical approach would not. By allowing for this law to break up loving families the AG's have lost their moral compass.
I particularly like that last image.
Mr Ince entered his exhibits for the record and numbering identification. The BC AG reported to Justice Bauman that there is one lawyer representing most of the media affected by his application for a publication ban and that while he could proceed today would be better suited and prepared if it were held over for tomorrow. Justice Bauman set a hearing on the issue for 10am the following day.
On Friday morning, BC AG's application for a publication ban on the video affidavits indicated that Daphne Brahmin had approached the court for access to these affidavits and she as well as other media were given copies by the court. The BC AG's understanding was that this was approved access to report on contents not approval to publish the videos themselves. The media response was access came with an assumption of publication in total. Justice Bauman asked if this were an intrusion on the case and a contempt issue. There was some discussion as to whether the tapes were the property of the BC AG until they were actually presented in open court or if once submitted to the court registry they were then the property of the court which I think means public domain. As once my affidavit was submitted to the court registry it was available for anyone to ask for a copy and thus our written affidavits are all posted by the Vancouver Sun to the internet as well. BC AG quoted case law and procedural directives where a witnesses video testimony could not be broadcast without their specific consent. Justice Bauman reserved his decision for Monday morning and would not issue and injunction requiring them to be taken down and no others posted before Monday.
It was a really interesting look at the etiquette of the Supreme court and the things that do not appear in transcripts or reports. The humour of Justice Bauman is very subtle and his quick comments that question even the most aside comment of the lawyers keeps them focused on task and in line. He most assuredly has a good grasp of what polyamory is and asked several times about the impact of the various positions on people practicing polyamory. We must keep the issue alive in the media and jump on the comments and opinions online and in the media.
On another note, I am privy to the financials of the Canadian Polyamory Advocacy Association and have been elated at the donations rolling in from all over the world. It is most encouraging to see that kind of support.
Down the street from my hotel, in the next block actually, is a store with a huge sign on the back wall behind the counter. Its a wall mural of sorts that features a photo of Pierre Elliot Trudeau in his salad years as my dad would say. Big grin and the rose in lapel. This photo is easily 10 foot tall by 8 foot wide with the quote super imposed "there's no place for the state in the bedrooms of the nation". I considered this a good omen as I passed it every day and nodded a greeting to old P.E.T. I was very lucky to have had my posse of wonderful loving family and friends with me this past week. I'm exceptionally glad to be home but proud to have been present and accounted for in this moment of history. I have no further vacation time and so will be reporting based on transcripts until the New Year.
Before the court heard the these opening statements the BC AG sought the advice of Justice Bauman with regards to his application for a publication ban on the video affidavits which have been posted to the Vancouver Sun's website and one other location. Justice Bauman asked the lawyer for the BC AG to determine which media outlets had been served notice of the application and when so that adequate time to respond was offered to them. Mr Jones, lawyer for the BC AG removed himself from the court room with the Judge's leave to find that out.
The lawyer for Oler and the FLDS church spoke first. His viewpoint is that this law prohibits the binding agreement not the activity that is described. The crown must prove that the accused entered into a multiple partner relationship and believed it to be binding upon themselves for a period of time. The law does not prohibit living with, having sex with, having children with nor loving more than one person. It prohibits the contract. A criminal offense cannot be described in such a way as that it depends on the activity of a third person. The idea that the law kicks in when an authority sanctions unrelated a voluntary act of the accused people in the relationship. So the situation becomes an offense when a third party (authority) sanctions it which is contrary to basic criminal law where a criminal offense is a voluntary act of the accused. Section 293 is merely a crime of status by prohibiting the status of two or more persons who are in a conjugal union behaving in an otherwise perfectly legal manner. The FLDS are not participating in this reference to defend their beliefs which they understand are observed with scorn by many Canadians but they wish to challenge the prohibition on plural and arranged marriages as the law applies to them. The members of the FLDS freely choose to enter into plural marriages because of their beliefs and in contrast to a secular view of rights and brain damage as others would suggest. He indicated that there are 550 people in the FLDS part of the Bountiful community which does not include those aligned with Blackmore. 183 of those are over 18 years of age, 115 of those are married, 60 in monogamous marriages and 55 in plural marriages. Of the 68 unmarried adults, 13 are formerly married. There are 22 youth aged 16 or 17 and none are married. He discussed the evidence of witnesses that he will bring forward to speak to the motivation and experience of polygamy from men and women within and having left the community. He will not file the affidavits of Oler and Palmer at this time and some 12 of his witnesses have sought anonymity. He said that the prohibition on polygamy ostracizes community members from medical assistance as fear of prosecution under the law is feared and legal assistance is costly. He indicated that his witnesses will testify that they do not want to live separate from society and want to ensure that when help is needed in family breakdown that it can be safely accessed. He then entered his evidence for the record and numbering identification.
John Ince, lawyer for the Canadian Polyamory Advocacy Association spoke next. John said that the doctrin of reading down a law to find a interpretation indicates a narrower or a surgical approach not the blanket approach of the AG's positions and contrary to the charter. His position is that the law is flawed because it targets people beyond the primary focus of fundamentalist communities. The focus of the AG's is on a patriarchal system where there is an imbalance of power in multiple partner relationships and in the general community which may well be impacting social problems. They have not restricted themselves to these communities but have included a large number of people who likely dwarf the number of people in partriarchal communities and he will be presenting evidence as to the size of the non-partriarchal community which he will refer to hereafter as the polyamourous community. There are key differences between these communities: conjugal freedom (to chose who, how many, what gender, and the length of the relationship); no religious tradition to the relationship form; a modern relationship structure having been coined as polyamory only 30 or 40 years ago; and occurs in the mainstream community. The idea that if a relationship is celebrated and formalized it becomes illegal regardless of the fact that in no other way have the participants harmed themselves or anyone else is discriminatory. He gave several examples of otherwise law abiding neighbours in similar relationship structures would be open to prosecution for throwing a party to celebrate their relationship and said that this law could break up loving families. This is deeply disturbing to the polyamourous community. It is inferred that women if not protected by this law will wander off into polygamous households and cannot be left to make their own choices. These arguments were used to prevent women from having the vote and gays from having relationships as unnatural activities. We now know that this is the embodiment of prejudice and nothing to do with harms. He discussed the issues raised by the BC AG around determining whether one could easily determine the patriarchal nature of a plural relationship or not. He indicated that several key questions asked by a border guard to three people attending at his station would determine an attitude of egalitarianism in the relationship that would negate patriarchal philosophies. Also he said that three people listing the same address might be assumed to be polygamists when in fact they are college roommates. The blanket inclusion approach causes huge problems where a more surgical approach would not. By allowing for this law to break up loving families the AG's have lost their moral compass.
I particularly like that last image.
Mr Ince entered his exhibits for the record and numbering identification. The BC AG reported to Justice Bauman that there is one lawyer representing most of the media affected by his application for a publication ban and that while he could proceed today would be better suited and prepared if it were held over for tomorrow. Justice Bauman set a hearing on the issue for 10am the following day.
On Friday morning, BC AG's application for a publication ban on the video affidavits indicated that Daphne Brahmin had approached the court for access to these affidavits and she as well as other media were given copies by the court. The BC AG's understanding was that this was approved access to report on contents not approval to publish the videos themselves. The media response was access came with an assumption of publication in total. Justice Bauman asked if this were an intrusion on the case and a contempt issue. There was some discussion as to whether the tapes were the property of the BC AG until they were actually presented in open court or if once submitted to the court registry they were then the property of the court which I think means public domain. As once my affidavit was submitted to the court registry it was available for anyone to ask for a copy and thus our written affidavits are all posted by the Vancouver Sun to the internet as well. BC AG quoted case law and procedural directives where a witnesses video testimony could not be broadcast without their specific consent. Justice Bauman reserved his decision for Monday morning and would not issue and injunction requiring them to be taken down and no others posted before Monday.
It was a really interesting look at the etiquette of the Supreme court and the things that do not appear in transcripts or reports. The humour of Justice Bauman is very subtle and his quick comments that question even the most aside comment of the lawyers keeps them focused on task and in line. He most assuredly has a good grasp of what polyamory is and asked several times about the impact of the various positions on people practicing polyamory. We must keep the issue alive in the media and jump on the comments and opinions online and in the media.
On another note, I am privy to the financials of the Canadian Polyamory Advocacy Association and have been elated at the donations rolling in from all over the world. It is most encouraging to see that kind of support.
Down the street from my hotel, in the next block actually, is a store with a huge sign on the back wall behind the counter. Its a wall mural of sorts that features a photo of Pierre Elliot Trudeau in his salad years as my dad would say. Big grin and the rose in lapel. This photo is easily 10 foot tall by 8 foot wide with the quote super imposed "there's no place for the state in the bedrooms of the nation". I considered this a good omen as I passed it every day and nodded a greeting to old P.E.T. I was very lucky to have had my posse of wonderful loving family and friends with me this past week. I'm exceptionally glad to be home but proud to have been present and accounted for in this moment of history. I have no further vacation time and so will be reporting based on transcripts until the New Year.
Friday, November 26, 2010
Polys in Court - first hand report - day 3
I confess to have slept in on Day 3 and arrived in time to hear the Amicus begin his opening statement. The morning had begun with an issue raised briefly on Day 1 by the BC AG who had some concern about video testimony being aired on the Vancouver Sun website and he felt it should be taken down. He discussed the process of notification of the media that he would be making that application with Justice Bauman.
The day began with the BC AG officially introducing and numbering its evidential materials. The lawyer for the BC AG indicated that he wouldn't be entering the affidavit of Sgt Terry Jacklin which had been disputed by the FLDS's lawyer. A report on polygamy from the Status of Women committee in Quebec is in French with selected portions translated to English and the BC AG doesn't want to finance the translation of it all but the Amicus and the Chief Justice were not happy with that. Although it is in an official language and thus admissible neither the Amicus nor the Chief Justice are bilingual.
The AG of Canada's lawyer entered her evidence in the record for numbering and the opening statements continued with the Canadian Coalition for the Rights of the Child & David Asper Centre up next.
CCRC's lawyer position is focused on the rights of children in polygamous households. Exploitation of children is contrary to the UN Convention and the Canadian Charter of Rights and Freedoms. BC and Canada are obligated to protect children from harm and from risk. It was asserted that the practice of polygamy particularly endangers children and puts them at undue risk. Section 293 is necessary but insufficient as a remedy for this situation. They do not take a position on the situation of consenting adults in polyamourous relationships but would see the law read down as West Coast LEAF suggested to include only situations where abuse was occurring and that no one under the age of 18 should be found criminally liable under the law. Their evidence was entered in the court record.
The Christian Legal Fellowship's lawyer began his presentation with a description of touring a former Sultan's polygamous harem housing and stating the tour guide's theory that polygamy was the cause of the fall of the Ottoman Empire in 1910. He said that the harms of polygamy had nothing to do with poverty but it was equally as oppressive and exploitative in an atmosphere of wealth. He cited the various harms associated with polygamy of child coercion, trafficking in young girls, inequality for women with the impacts going beyond the affected women and children to an impact on society as a whole. They feel that the law should stand if polygamy is harmful to one or more Canadians. If the law as a general prohibition violates the charter rights of others in other varied types of relationships then it is up to them to present their individual cases to the court. Their evidence was then entered into the record for numbering.
Justice Bauman discussed again the idea of having a library of documents that are before the court in the this case so that the material is accessible to legal staff and media. The lawyer for the BC AG raised the idea of a cloud site on the internet with key access for most of the material with the exception of the Brandeis Brief which includes copyrighted materials.
The BC Teachers Federation 's lawyer presented next. They concern themselves with polygamy as practiced at Bountiful and say that where two sets of rights come into conflict one does not trump the other there must be a balance achieved. Religious freedom does not justify harm to others. Their concerns include a lower level of education attained by girls impacting upward mobility and economic independence; no accomodation for children with special needs; higher than normal rate of teenage pregnancy; underage brides with decades older husbands; and boys forced out of their primary community. They entered their evidence for numbering.
The lawyer for Stop Polygamy in Canada presented his position next. The form of polygamy practiced in Bountiful denies dignity to women and children and affords for their mental and physical abuse; creates a structure of inequality and is contrary to the purposes of a free and democratic society as entrenched in the charter. The law should be upheld because rather than intrude on the bedrooms of the nation it protects the vulnerable. Although their focus is on Bountiful, they refer to evidence to be presented regarding Muslim polygamy. Stop Polygamy's evidence was entered for numbering.
The Amicus Curiae began his opening statement with advice to the court that by striking down the law the court would be making it so that a polygamist is no longer a criminal. It would not be making polygamist unions legal. Similarly to the case of striking down the section of the code with regard to gay sex which made it no longer a criminal offense but same sex marriages were not legal for another 36 years when new legislation was enacted. He noted the contradiction of definition between the BC AG (the enforcer of the law) and the AG of Canada (the author of the law) and that in today's society the breadth of the laws meaning is staggering in terms of relationship configurations potentially included. It also differs from the rest of the criminal code by making the victim (spouses) co-defendants to the crime. He addresses the idea of coercion by indicating the he will bring evidence to show that many women enter multiple partnerships because they want to do so and it is of their own freewill. Most Canadians know nothing about polygamy nor know anyone who has such a relationship and our opinions are couched in ignorance. This is exactly where constitutionality must kick in and that's the only reason for it. Conventional people living conventional lives don't need protection of their rights. He further said that while abuses of various sorts may exist in this community of polygamists, it also exists in the context of monogamy in the greater national community. Where such abuse exists there is a greater inclination to refrain from calling in authorities with a law in place that makes the victim a criminal by being party to a polygamous relationship. The criminalization of polygamy serves to seclude Bountiful from the greater community. With regards to the underage marriages, child and spousal abuse and other forms of criminal misconduct cited by the AG's, the Amicus indicated that there are a wealth of other laws in the criminal code more aptly applied to those situations. He said using Section 153 (exploitation) to define and interpret polygamy in this law to be only in the case of exploitation is redundant as section 153 is a perfectly good law to use on its own to deal with these situations. The harms would come from criminalizing these relationship structures which are clearly anything but monogamy. He concluded by saying that adultery, swinging and casual group sex are not illegal in Canada but forming a stable group relationship is illegal. Criminalizing polygamy offends the dignity of women who choose that lifestyle, impedes religious expression, and creates insular communities making women and children more vulnerable.
He continued by highlighting evidence he will bring forward of happy polygamist families to show that the cited harms are not inherent in the polygamist relationship structure. There was much more and the evidence to be presented was very heartening. The Amicus entered his evidence for numbering identification as well.
The lawyer for Beyond Borders presented following the lunch break. Their position is that where polygamy involves a minor or undue influence the law should stand. The solidarity amongst the adults and fear in the children in this community make reporting of child abuse difficult. Expulsion or shunning has occurred where individuals have gone against the wishes of the community elders to bring child abuse protection information in or get reports out of the community. His evidence was entered.
The Canadian Association for Free Expression's lawyer spoke next. Their viewpoint is that the law cannot be read down and violates the charter right to freedom of religion and freedom of association. They see it as a wedge issue which will impact many things beyond polygamy as the state intrudes on religious freedoms and religious practice with value laden judgments and anti-religious bias. The harms of polygamy cited exist as well in monogamous settings and there are ample laws in the criminal code to address them. The harm of allowing the government to read down and define "exploitation" is that once given that power it will be hard to rest it from the grasp of government. He compared the harms cited to the same harms cited against the Catholic church and indicated that the breadth of this law went beyond "this little fringe group in British Columbia".
The last opening statement for the day was by the lawyer for the BC Civil Liberties Association. Their position is that the law includes all forms of multi-partner relationships and cannot be read down to mean anything else. The interpretation must come after a plan and grammatical reading of the language that is in the law. The language cannot sustain the reading down interpretation suggested by others and it amounts to a suggested rewrite of the legislation. The law violates the charter right to liberty and security of person. The intent of the law was not to ensure the rights of women and children but to impose a moral judgement on a relationship form and irrespective of the various forms that it blindly includes. I liked this phrase the best: "...the purported relationship between plural unions and social disorder is simply not born out in the Canadian experience." The law is grossly disproportionate in its blanket inclusion of relationships that are not harmful and this is unjustified in a Canadian culture where we not only tolerate differences but encourage them.
Much discussion happens in the hallways and dining room of the court house and I'm hearing and seeing the frustration of people who are privy to life at Bountiful and want so desperately for drastic changes and help for the people of Bountiful to have healthy happy lives. The descriptions are very upsetting and I in my heart of hearts I feel for them and know that change must happen. I know what battered women endure. I know what it is to be that afraid. My memory has not faded that much and I know that you will feel the same when you hear it. Hear also that the upholding of this law will not fix that. There needs to be huge societal changes in that community and imprisonment of those men and women practicing polygamy could leave some 400 children in foster care. There needs to be transitional change that comes from within the community and a mediated involvement of police, medical, and psychiatric professionals. The scope and depth of it and the impact of a deeply patriarchal history is staggering. My hope is that decriminalization of polygamy will free us all.
The day began with the BC AG officially introducing and numbering its evidential materials. The lawyer for the BC AG indicated that he wouldn't be entering the affidavit of Sgt Terry Jacklin which had been disputed by the FLDS's lawyer. A report on polygamy from the Status of Women committee in Quebec is in French with selected portions translated to English and the BC AG doesn't want to finance the translation of it all but the Amicus and the Chief Justice were not happy with that. Although it is in an official language and thus admissible neither the Amicus nor the Chief Justice are bilingual.
The AG of Canada's lawyer entered her evidence in the record for numbering and the opening statements continued with the Canadian Coalition for the Rights of the Child & David Asper Centre up next.
CCRC's lawyer position is focused on the rights of children in polygamous households. Exploitation of children is contrary to the UN Convention and the Canadian Charter of Rights and Freedoms. BC and Canada are obligated to protect children from harm and from risk. It was asserted that the practice of polygamy particularly endangers children and puts them at undue risk. Section 293 is necessary but insufficient as a remedy for this situation. They do not take a position on the situation of consenting adults in polyamourous relationships but would see the law read down as West Coast LEAF suggested to include only situations where abuse was occurring and that no one under the age of 18 should be found criminally liable under the law. Their evidence was entered in the court record.
The Christian Legal Fellowship's lawyer began his presentation with a description of touring a former Sultan's polygamous harem housing and stating the tour guide's theory that polygamy was the cause of the fall of the Ottoman Empire in 1910. He said that the harms of polygamy had nothing to do with poverty but it was equally as oppressive and exploitative in an atmosphere of wealth. He cited the various harms associated with polygamy of child coercion, trafficking in young girls, inequality for women with the impacts going beyond the affected women and children to an impact on society as a whole. They feel that the law should stand if polygamy is harmful to one or more Canadians. If the law as a general prohibition violates the charter rights of others in other varied types of relationships then it is up to them to present their individual cases to the court. Their evidence was then entered into the record for numbering.
Justice Bauman discussed again the idea of having a library of documents that are before the court in the this case so that the material is accessible to legal staff and media. The lawyer for the BC AG raised the idea of a cloud site on the internet with key access for most of the material with the exception of the Brandeis Brief which includes copyrighted materials.
The BC Teachers Federation 's lawyer presented next. They concern themselves with polygamy as practiced at Bountiful and say that where two sets of rights come into conflict one does not trump the other there must be a balance achieved. Religious freedom does not justify harm to others. Their concerns include a lower level of education attained by girls impacting upward mobility and economic independence; no accomodation for children with special needs; higher than normal rate of teenage pregnancy; underage brides with decades older husbands; and boys forced out of their primary community. They entered their evidence for numbering.
The lawyer for Stop Polygamy in Canada presented his position next. The form of polygamy practiced in Bountiful denies dignity to women and children and affords for their mental and physical abuse; creates a structure of inequality and is contrary to the purposes of a free and democratic society as entrenched in the charter. The law should be upheld because rather than intrude on the bedrooms of the nation it protects the vulnerable. Although their focus is on Bountiful, they refer to evidence to be presented regarding Muslim polygamy. Stop Polygamy's evidence was entered for numbering.
The Amicus Curiae began his opening statement with advice to the court that by striking down the law the court would be making it so that a polygamist is no longer a criminal. It would not be making polygamist unions legal. Similarly to the case of striking down the section of the code with regard to gay sex which made it no longer a criminal offense but same sex marriages were not legal for another 36 years when new legislation was enacted. He noted the contradiction of definition between the BC AG (the enforcer of the law) and the AG of Canada (the author of the law) and that in today's society the breadth of the laws meaning is staggering in terms of relationship configurations potentially included. It also differs from the rest of the criminal code by making the victim (spouses) co-defendants to the crime. He addresses the idea of coercion by indicating the he will bring evidence to show that many women enter multiple partnerships because they want to do so and it is of their own freewill. Most Canadians know nothing about polygamy nor know anyone who has such a relationship and our opinions are couched in ignorance. This is exactly where constitutionality must kick in and that's the only reason for it. Conventional people living conventional lives don't need protection of their rights. He further said that while abuses of various sorts may exist in this community of polygamists, it also exists in the context of monogamy in the greater national community. Where such abuse exists there is a greater inclination to refrain from calling in authorities with a law in place that makes the victim a criminal by being party to a polygamous relationship. The criminalization of polygamy serves to seclude Bountiful from the greater community. With regards to the underage marriages, child and spousal abuse and other forms of criminal misconduct cited by the AG's, the Amicus indicated that there are a wealth of other laws in the criminal code more aptly applied to those situations. He said using Section 153 (exploitation) to define and interpret polygamy in this law to be only in the case of exploitation is redundant as section 153 is a perfectly good law to use on its own to deal with these situations. The harms would come from criminalizing these relationship structures which are clearly anything but monogamy. He concluded by saying that adultery, swinging and casual group sex are not illegal in Canada but forming a stable group relationship is illegal. Criminalizing polygamy offends the dignity of women who choose that lifestyle, impedes religious expression, and creates insular communities making women and children more vulnerable.
He continued by highlighting evidence he will bring forward of happy polygamist families to show that the cited harms are not inherent in the polygamist relationship structure. There was much more and the evidence to be presented was very heartening. The Amicus entered his evidence for numbering identification as well.
The lawyer for Beyond Borders presented following the lunch break. Their position is that where polygamy involves a minor or undue influence the law should stand. The solidarity amongst the adults and fear in the children in this community make reporting of child abuse difficult. Expulsion or shunning has occurred where individuals have gone against the wishes of the community elders to bring child abuse protection information in or get reports out of the community. His evidence was entered.
The Canadian Association for Free Expression's lawyer spoke next. Their viewpoint is that the law cannot be read down and violates the charter right to freedom of religion and freedom of association. They see it as a wedge issue which will impact many things beyond polygamy as the state intrudes on religious freedoms and religious practice with value laden judgments and anti-religious bias. The harms of polygamy cited exist as well in monogamous settings and there are ample laws in the criminal code to address them. The harm of allowing the government to read down and define "exploitation" is that once given that power it will be hard to rest it from the grasp of government. He compared the harms cited to the same harms cited against the Catholic church and indicated that the breadth of this law went beyond "this little fringe group in British Columbia".
The last opening statement for the day was by the lawyer for the BC Civil Liberties Association. Their position is that the law includes all forms of multi-partner relationships and cannot be read down to mean anything else. The interpretation must come after a plan and grammatical reading of the language that is in the law. The language cannot sustain the reading down interpretation suggested by others and it amounts to a suggested rewrite of the legislation. The law violates the charter right to liberty and security of person. The intent of the law was not to ensure the rights of women and children but to impose a moral judgement on a relationship form and irrespective of the various forms that it blindly includes. I liked this phrase the best: "...the purported relationship between plural unions and social disorder is simply not born out in the Canadian experience." The law is grossly disproportionate in its blanket inclusion of relationships that are not harmful and this is unjustified in a Canadian culture where we not only tolerate differences but encourage them.
Much discussion happens in the hallways and dining room of the court house and I'm hearing and seeing the frustration of people who are privy to life at Bountiful and want so desperately for drastic changes and help for the people of Bountiful to have healthy happy lives. The descriptions are very upsetting and I in my heart of hearts I feel for them and know that change must happen. I know what battered women endure. I know what it is to be that afraid. My memory has not faded that much and I know that you will feel the same when you hear it. Hear also that the upholding of this law will not fix that. There needs to be huge societal changes in that community and imprisonment of those men and women practicing polygamy could leave some 400 children in foster care. There needs to be transitional change that comes from within the community and a mediated involvement of police, medical, and psychiatric professionals. The scope and depth of it and the impact of a deeply patriarchal history is staggering. My hope is that decriminalization of polygamy will free us all.
Wednesday, November 24, 2010
Polys in Court - first hand report - day 2
I was interviewed Monday afternoon by CBC and a few of my comments, none of which were what I'd hoped would have been used, appeared in their article found here
I was interviewed Tuesday afternoon by CTV and one of my comments from the 10 minutes of chatting (and several takes of re-entering the building I did so they could have film) got into the accompanying video clip seen here
It's a bit frustrating that nothing I say of key importance gets picked up. Having sat and read all the comments on the CBC article and seen clearly that the general public doesn't realize the far reaching impact of leaving a law this vague on the books. I apologize for the delay in posting this summary as I just didn't have the bandwidth last night.
Day 2 began with the BC Attorney completing his opening statement to the court. He had given a really in-depth discussion of the history of polygamy as practiced within the context of Mormonism, First Nations and Muslims and the early history of the development of section 293. He began by discussing the legal significance of a religious context to a law. He compared the development of the incest laws in Canada to the polygamy law development and that religious freedom is not enough of a context to void a law rooted in moral principle. He disagreed with a shifting purpose of this law and said that the harms to society outweigh the individuals right to religious belief. The BC AG then moved to defining criminal polygamy. He cited his experts and the conclusion that criminal polygamy means polygyny (MFF) and that the difference between polygamy and polyamory would be too difficult to determine thus the same gender configuration of polyamory would be considered criminal polygamy under this law as well. The BC AG's presentation is lengthy and high lights quotes from experts and witnesses that he intends to call. I will leave that for future notes.
The lawyer for the AG of Canada presented her opening statement by adding to what the BC AG had already said on many points and adding that she disagreed that criminal polygamy was limited to MFF relationships but would include all forms of multiple partnered relationships. Prosecution would be dependent on a ceremony, rite or contract having been performed. Interestingly enough Justice Bauman asked the lawyer for the AG of Canada how this impacted polygynous polyamory and other configurations of polyamory and the people who had provided affidavits for the Canadian Polyamory Advocacy Association. She said that would depend on the definition and form of polyamory but all forms could be prosecuted under this law if the participants have entered into a ceremony, rite or contract or otherwise formalized their union.
Next up was the lawyer representing REAL Women of Canada. He indicated that their position is that the law is constitutional in that if freedom of religion is infringed on it is justified. He cited harms to functioning society and women & children in polygamous homes. The exploitation of children and coersion of child brides was raised as substantive harms worthy of justifying the infringement of the charter in several sections.
West Coast LEAF's lawyer presented their position last of the day. LEAF's position is that the law should be read down to apply where there is exploitation and further that the court should use section 153 which defines exploitation.
The day's presentations made it clear that polygamy is seen as responsible for a wealth of abusive situations and that polyamory and any multiple relationship structure cannot be separated from this evils in the breadths of this law.
I was interviewed Tuesday afternoon by CTV and one of my comments from the 10 minutes of chatting (and several takes of re-entering the building I did so they could have film) got into the accompanying video clip seen here
It's a bit frustrating that nothing I say of key importance gets picked up. Having sat and read all the comments on the CBC article and seen clearly that the general public doesn't realize the far reaching impact of leaving a law this vague on the books. I apologize for the delay in posting this summary as I just didn't have the bandwidth last night.
Day 2 began with the BC Attorney completing his opening statement to the court. He had given a really in-depth discussion of the history of polygamy as practiced within the context of Mormonism, First Nations and Muslims and the early history of the development of section 293. He began by discussing the legal significance of a religious context to a law. He compared the development of the incest laws in Canada to the polygamy law development and that religious freedom is not enough of a context to void a law rooted in moral principle. He disagreed with a shifting purpose of this law and said that the harms to society outweigh the individuals right to religious belief. The BC AG then moved to defining criminal polygamy. He cited his experts and the conclusion that criminal polygamy means polygyny (MFF) and that the difference between polygamy and polyamory would be too difficult to determine thus the same gender configuration of polyamory would be considered criminal polygamy under this law as well. The BC AG's presentation is lengthy and high lights quotes from experts and witnesses that he intends to call. I will leave that for future notes.
The lawyer for the AG of Canada presented her opening statement by adding to what the BC AG had already said on many points and adding that she disagreed that criminal polygamy was limited to MFF relationships but would include all forms of multiple partnered relationships. Prosecution would be dependent on a ceremony, rite or contract having been performed. Interestingly enough Justice Bauman asked the lawyer for the AG of Canada how this impacted polygynous polyamory and other configurations of polyamory and the people who had provided affidavits for the Canadian Polyamory Advocacy Association. She said that would depend on the definition and form of polyamory but all forms could be prosecuted under this law if the participants have entered into a ceremony, rite or contract or otherwise formalized their union.
Next up was the lawyer representing REAL Women of Canada. He indicated that their position is that the law is constitutional in that if freedom of religion is infringed on it is justified. He cited harms to functioning society and women & children in polygamous homes. The exploitation of children and coersion of child brides was raised as substantive harms worthy of justifying the infringement of the charter in several sections.
West Coast LEAF's lawyer presented their position last of the day. LEAF's position is that the law should be read down to apply where there is exploitation and further that the court should use section 153 which defines exploitation.
The day's presentations made it clear that polygamy is seen as responsible for a wealth of abusive situations and that polyamory and any multiple relationship structure cannot be separated from this evils in the breadths of this law.
Monday, November 22, 2010
Polys in Court - first hand report - day 1
We were up early this morning and had a brisk quick walk to the BC Supreme Court building. We were quite a bit early but I wanted to be able to find the correct court room and have a seat. It was interesting to watch the various factions enter the court room. One of the other CPAA members was able to pick out familiar faces and identify people for me. Daphne Brahmn approached me and said that she'd received my email and would correct some errors in a recent article. And yes, I thanked her.
When Justice Bauman entered the room you could feel a ripple of excitement pass through the courtroom of some 150 people. The huge number of lawyers present caused them to have to seat a few lawyers in the jury benches. Justice Bauman spoke about how historic this reference question case is and that we are on a journey together into new territory.
The morning was spent hearing the lawyer for the CBC present his application to have two internet cameras set up in the court for a live feed of the proceedings with two regular cameras and operators to be used sporadically. This would require four to six hours of downtime for the court in order to set it up. The CBC also requested a change allowing them to film interviews in the corridors of the court house.
There is a directive (PD 123) in place since 2002 which is a strict policy about media access to the court room and media coverage. This application of the CBC was to seek to set that policy aside as this is a matter of tremendous public interest and their was a desire for television media to be able to report whatever is reported by other forms of media. Consent of witnesses to being televised was discussed and Justice
Bauman asked about delayed broadcasting and having his legal representative review the footage before its release.
Justice Bauman then heard from the various parties and found that the AG of Canada, West Coast LEAF, CCRC were opposed to televising the proceeding and the BC AG, the Amicus and the FLDS had reservations but most others were willing to consent or took no stand on the issue.
The BC AG said that personal witnesses should not be on camera without their expressed consent and that he felt that the video clips of testimony that have been uploaded to the internet should be ordered taken down. He suggested that their might be an invitation to television media to apply to film the closing statements of this case where evidence would be summarized and identities protected. He indicated that the schedule of some 36 witnesses and experts was locked in for timing and that a shift in this schedule to allow for installation of cameras at this late date of the case would not be optimum.
The Amicus did not object to a shared feed of opening and closing arguments but witnesses should have to provide approval individually with no burden of proof on them. As the CBC's submission came in on Friday having had months to gather this proposal, it was not acceptable and it should not be allowed to throw off the schedule of witnesses as set out and agreed upon by the legal representation of all the parties. The Amicus indicated that the issue of witnesses needing approval would take 3 or 4 days of court time which is simply not possible. This viewpoint was echoed by the lawyer for the BC Civil Liberties Association.
Canadians for Freedom of Expression's lawyer said that their viewpoint was that if someone sitting in the court room could see and hear the evidence or presentation then the televised version should be accessible to those unable to be in the court room.
West Coast LEAF's lawyer was very impassioned and said that the "Dajeuner-Mentach test" (can anyone define that reference?) did not apply because the media was seeking an expanded coverage not a lifting of a publication ban. She felt that oral testimony of witnesses should not be televised and she sited an Ontario decision indicating it would create a chilling effect on other proceedings. She said that live broadcasting was unacceptable as this court has no control of what happens in cyberspace. She expressed concern that errors may be made releasing names or comments identifying witnesses and those errors cannot be corrected with a live internet feed. These sentiments were echoed by the lawyer for CCRC and he referred to the UN Convention on Rights of the Child article 3.1 where a consideration was whether it was in the best interest of a child to proceed. He said an error or misspoken word might put a child at risk.
The lawyer for the FLDS expressed concern for his witnesses and their ability to remain anonymous while taking the stand or just sitting in the court room awaiting their time to testify and that some processes would have to be put in place.
The AG for Canada's lawyer said that she opposed the whole CBC application with exception to access to exhibits. A similar case is currently before the Supreme Court of Canada (CBC vs AG of Quebec) and the decision is pending.
We adjourned for lunch and upon our return Justice Bauman rendered his decision. He said that the CBC's application amounted to a last minute request to revisit and revise a policy established in 2002 and raised some very great privacy issues. He was unwilling to open up a policy debate for a submission that appeared on the eve of this case. He denied the CBC access to televise the proceedings but indicated that they may reapply to televise the closing statements. Their access to exhibits is same as is current at the discretion of the parties and he will consider their request for hallway interviews and advise them of his decision.
The BC AG spent the remainder of the afternoon expansively presenting his opening statement. There have been six reported prosecutions under this law since 1892. Most of these were actually adultery cases but one was Bearshinbone who was a First Nations man with several wives. All of these cases were acquitted. In 1982 the acceptance of the Charter of Rights and Freedoms brought many calls to revisit this law. In the late 1980's complaints began to filter out of Bountiful and investigations began. In 1992 the BC AG decided that prosecution was not justified under Section 1 of the Charter and asked the federal government to amend the law. The federal government refused the request. In 2002, the BC AG again found that the law was not constitutional and asked the federal government to review the law with no results. In 2006 and 2007, Special Prosecutors were appointed and each found the law was not viable for prosecution and the BC AG referred it to the Court of Appeal with no results. In 2008, a third Special Prosecutor decided to prosecute Blackmore and Oler from the community of Bountiful under this law. In 2009, the court quashed the charges as an abuse of authority. The history of this law is frustrating for those seeking to remedy the alleged abuses occurring the FLDS community of Bountiful and I one could hear that frustration in the voice of the lawyer presenting this background information to the court.
The BC AG's position has three central issues: harm, purpose and interpretation.
Harm succinctly is the idea that polygamy itself is harmful. The idea that multiple women including young girls under the patriarchal influence of one man would be coerced to accept abusive harmful treatment and young men deprived of wives to keep them from a rampage of crime would also harm the community at large. He sites anthropological research that societies of partial polygamy practiced as polygynous households (MFF) being the standard, polyandry is "vanishingly rare" (FMM) and universally monogamous societies the exception. He equates a democratic society and lower crime rates with more monogamy being practiced.
Purpose is a reference to the designed purpose of this law. The BC AG indicates that the law is meant to deter and punish behaviour that is harmful to women and children, women's equality and the peace and order of the greater community. It has a secondary purpose of selective immigration, resolving succession, divorce, remarriage and distribution of benefits in non-monogamous unions as well as harmonizing Canadian policy with other nations. The BC AG is adamant that this purpose has not shifted from the original intent of the law.
Interpretation refers to the BC AG's sense that this law can be read down to be applicable only to polygynous marriages (MFF) where it is binding on any of its participants via a rite or ceremony. He feels that one cannot differentiate between polyamory in a MFF relationship and polygyny and thus would see it included under this law. FMM, MMM, and FFF relationships do not produce the same harms or if they do these are temporary relationships and not binding in the same way to create the noted harms.
Presentations of Opening Statements of the Parties will continue tomorrow.
It has been most interesting to watch the workings of this court and see the interaction of the various participants in the court room as well as behind the scenes. Impressive to observe the wheels of justice grinding along.
When Justice Bauman entered the room you could feel a ripple of excitement pass through the courtroom of some 150 people. The huge number of lawyers present caused them to have to seat a few lawyers in the jury benches. Justice Bauman spoke about how historic this reference question case is and that we are on a journey together into new territory.
The morning was spent hearing the lawyer for the CBC present his application to have two internet cameras set up in the court for a live feed of the proceedings with two regular cameras and operators to be used sporadically. This would require four to six hours of downtime for the court in order to set it up. The CBC also requested a change allowing them to film interviews in the corridors of the court house.
There is a directive (PD 123) in place since 2002 which is a strict policy about media access to the court room and media coverage. This application of the CBC was to seek to set that policy aside as this is a matter of tremendous public interest and their was a desire for television media to be able to report whatever is reported by other forms of media. Consent of witnesses to being televised was discussed and Justice
Bauman asked about delayed broadcasting and having his legal representative review the footage before its release.
Justice Bauman then heard from the various parties and found that the AG of Canada, West Coast LEAF, CCRC were opposed to televising the proceeding and the BC AG, the Amicus and the FLDS had reservations but most others were willing to consent or took no stand on the issue.
The BC AG said that personal witnesses should not be on camera without their expressed consent and that he felt that the video clips of testimony that have been uploaded to the internet should be ordered taken down. He suggested that their might be an invitation to television media to apply to film the closing statements of this case where evidence would be summarized and identities protected. He indicated that the schedule of some 36 witnesses and experts was locked in for timing and that a shift in this schedule to allow for installation of cameras at this late date of the case would not be optimum.
The Amicus did not object to a shared feed of opening and closing arguments but witnesses should have to provide approval individually with no burden of proof on them. As the CBC's submission came in on Friday having had months to gather this proposal, it was not acceptable and it should not be allowed to throw off the schedule of witnesses as set out and agreed upon by the legal representation of all the parties. The Amicus indicated that the issue of witnesses needing approval would take 3 or 4 days of court time which is simply not possible. This viewpoint was echoed by the lawyer for the BC Civil Liberties Association.
Canadians for Freedom of Expression's lawyer said that their viewpoint was that if someone sitting in the court room could see and hear the evidence or presentation then the televised version should be accessible to those unable to be in the court room.
West Coast LEAF's lawyer was very impassioned and said that the "Dajeuner-Mentach test" (can anyone define that reference?) did not apply because the media was seeking an expanded coverage not a lifting of a publication ban. She felt that oral testimony of witnesses should not be televised and she sited an Ontario decision indicating it would create a chilling effect on other proceedings. She said that live broadcasting was unacceptable as this court has no control of what happens in cyberspace. She expressed concern that errors may be made releasing names or comments identifying witnesses and those errors cannot be corrected with a live internet feed. These sentiments were echoed by the lawyer for CCRC and he referred to the UN Convention on Rights of the Child article 3.1 where a consideration was whether it was in the best interest of a child to proceed. He said an error or misspoken word might put a child at risk.
The lawyer for the FLDS expressed concern for his witnesses and their ability to remain anonymous while taking the stand or just sitting in the court room awaiting their time to testify and that some processes would have to be put in place.
The AG for Canada's lawyer said that she opposed the whole CBC application with exception to access to exhibits. A similar case is currently before the Supreme Court of Canada (CBC vs AG of Quebec) and the decision is pending.
We adjourned for lunch and upon our return Justice Bauman rendered his decision. He said that the CBC's application amounted to a last minute request to revisit and revise a policy established in 2002 and raised some very great privacy issues. He was unwilling to open up a policy debate for a submission that appeared on the eve of this case. He denied the CBC access to televise the proceedings but indicated that they may reapply to televise the closing statements. Their access to exhibits is same as is current at the discretion of the parties and he will consider their request for hallway interviews and advise them of his decision.
The BC AG spent the remainder of the afternoon expansively presenting his opening statement. There have been six reported prosecutions under this law since 1892. Most of these were actually adultery cases but one was Bearshinbone who was a First Nations man with several wives. All of these cases were acquitted. In 1982 the acceptance of the Charter of Rights and Freedoms brought many calls to revisit this law. In the late 1980's complaints began to filter out of Bountiful and investigations began. In 1992 the BC AG decided that prosecution was not justified under Section 1 of the Charter and asked the federal government to amend the law. The federal government refused the request. In 2002, the BC AG again found that the law was not constitutional and asked the federal government to review the law with no results. In 2006 and 2007, Special Prosecutors were appointed and each found the law was not viable for prosecution and the BC AG referred it to the Court of Appeal with no results. In 2008, a third Special Prosecutor decided to prosecute Blackmore and Oler from the community of Bountiful under this law. In 2009, the court quashed the charges as an abuse of authority. The history of this law is frustrating for those seeking to remedy the alleged abuses occurring the FLDS community of Bountiful and I one could hear that frustration in the voice of the lawyer presenting this background information to the court.
The BC AG's position has three central issues: harm, purpose and interpretation.
Harm succinctly is the idea that polygamy itself is harmful. The idea that multiple women including young girls under the patriarchal influence of one man would be coerced to accept abusive harmful treatment and young men deprived of wives to keep them from a rampage of crime would also harm the community at large. He sites anthropological research that societies of partial polygamy practiced as polygynous households (MFF) being the standard, polyandry is "vanishingly rare" (FMM) and universally monogamous societies the exception. He equates a democratic society and lower crime rates with more monogamy being practiced.
Purpose is a reference to the designed purpose of this law. The BC AG indicates that the law is meant to deter and punish behaviour that is harmful to women and children, women's equality and the peace and order of the greater community. It has a secondary purpose of selective immigration, resolving succession, divorce, remarriage and distribution of benefits in non-monogamous unions as well as harmonizing Canadian policy with other nations. The BC AG is adamant that this purpose has not shifted from the original intent of the law.
Interpretation refers to the BC AG's sense that this law can be read down to be applicable only to polygynous marriages (MFF) where it is binding on any of its participants via a rite or ceremony. He feels that one cannot differentiate between polyamory in a MFF relationship and polygyny and thus would see it included under this law. FMM, MMM, and FFF relationships do not produce the same harms or if they do these are temporary relationships and not binding in the same way to create the noted harms.
Presentations of Opening Statements of the Parties will continue tomorrow.
It has been most interesting to watch the workings of this court and see the interaction of the various participants in the court room as well as behind the scenes. Impressive to observe the wheels of justice grinding along.
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