Polys in Court - testimony of Prof Stephen Kent

From transcripts of January 19, 2011.

Stop Polygamy in Canada called Professor Stephen Alan Kent to the stand as an expert witness the sociology of religion including alternative religions, the sociology and history of fundamentalist Mormonism in North America, polygamy as practised in fundamental Mormon communities in North America including the harms caused by polygamy in those communities and qualitative research methodology.

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Professor Kent is a professor of sociology at the University of Alberta in Edmonton, Alberta. He holds a BA in Sociology (University of Maryland), two Masters degrees in Sociology (McMaster University) and in History of Religion (American University in Washington) and a PhD in Religion and Western Society (McMaster University).  He teaches courses in comparative religion, qualitive research methodology, sociology of religion, religion and society, deviance and conformity, and religious sects (including material on Fundamental Mormon groups in North America.

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

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

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

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

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

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

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



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


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


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

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

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

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

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

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

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

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

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

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

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

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

Poly in court - testimony of Prof John Witte Jr.

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

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

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

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

Highlighted points of the report:

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

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

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

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

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

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

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


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

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

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

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

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

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

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

Rarely

        

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

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

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

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

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

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


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

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

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

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

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

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


Regarding Canada’s obligations internationally Professor Cook said,

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

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

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

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

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

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

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

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

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

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

Cross-examination of Professor Cook by West Coast LEAF:

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

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

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


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

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


Cross-examination by the BC Teachers’ Federation:

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

Cross-examination by the Amicus:

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

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


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


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

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

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

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

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

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

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

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

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

(Belgium and Luxembourg)- same wording as France.

The website lists 50 countries where polygamy is recognized.


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

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

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

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

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

From transcripts of January 5, 2011.

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Polys in Court - week 4 - Prof Rose McDermott testimony

Summary of transcripts remainder of Dec 15 and morning of Dec 16,2010.
Professor Rose McDermott was called to the stand as a witness for the AG of Canada. She is currently a prof of political science at Brown University in Rhode Island. Among many other qualifications, Professor McDermott has held a research fellowship at Stanford studying an application of behaviour
 genetics to the origins of political ideology. Also she had a research fellowship at Harvard studying the biological basis of leadership comparing leaders and non-leaders looking at basically hormonal and genetic  underpinnings of leadership and political ideology.  Her area of expertise is political psychology with a focused interest in international elite decision making as opposed to mass politcal behaviour (ie - how voters react to economic downturn).
Professor McDermott has authored and co-authored several books in her area of interest as well as much involvement in academic organizations related. Through a series of unrelated coincidences began working on a research project to study polygamy about 10 yrs ago.
Her report was compiled specifically for this reference case and was to examine three points:
 1. the impact of polygynous relationships on women's equality
2. the influence of polygynous relationships on children including the health and welfare of children born of polygynous marriages
3. the influence of polygamy on various aspects of the nation state
The report has three parts:
 1. examination of existing literature on the topics
2.  the statistical analysis of the data from her 10 years of research which looks at 18 variables that are influenced by polygyny
3. discussion of some of the theoretical argument about some of the mechanisms that may help support the influence of polygyny
 Prof McDermott makes a distinction between polygamy (defined here as where one spouse has multiple partners whether male or female), polygyny (male spouse has multiple partners only), and polyandry (female spouse has multiple partners only) and she focused her report on polygyny which she states is the more prevalent as polyandry is extremely rare.

(My Comment:  I find it really interesting that the experts feel that polyandry is rare when it is a common configuration of relationship in polyamory communities in Canada. Perhaps we are just more willing to be identified as M-F-M families.)
In her report Prof McDermott has used several terms intermittently polygynous unions, polygynous relationships, and polygynous marriages but clarified that she restricted her report to polygynous marriages to determine the impact of legal marriages ("the institution of polygamous marriage")that are polygynous on things like parental investment strategy and does not include situations like a married man with mistresses or an unmarried man with several girlfriends.
Her findings from literature are as follows:
Impact on Women
- there was a statistically significant relationship between the degree of polygyny in a society and a whole
  host of specific outcomes which include with regard to women things like increased number of children, greater maternal mortality, shorter longevity.  Women in these societies are more subject to sex trafficking and female genital mutilation.
- fewer resources than monogamous counter parts (smaller plot of land, smaller house)
- in 22 countries where polygamy was banned there was a subsequent decrease in fertility by 40 percent, increased financial savings by 70 percent and a per capita outcome of an increase of 170 percent.
- higher rate of mental illness than monogamous counter parts
Impact on Children
- both boys and girls are less likely to receive both primary and secondary levels of
   education - more likely to fall into the criminal justice system
- 25 percent risk of increased mortality
- girls are more likely to get married early and suffer the consequences of prepubertal sex - girls more likely to be fertile at younger ages in polygynous communities than in monogamous communities
- children of young mothers have worse outcomes in life
- more likely to have shorter span between births - less than 24 months increases risk of birth defects - less than 12 months increases risks of child & mother mortality
Impact on Nation State
- higher levels of polygyny are correlated with greater discrepancy between what the law says on
   the books and hows it actually practised. There is a greater inequity in the treatment of men and women before the law. Larger amounts of money are spent on weapons procurement and arms expenditures and there are lower levels of political freedoms and civil liberties in societies with greater degrees of polygyny.
- ejection of boys from the community to preserve the gender balance for men to have multiple spouses causes problems for the state - boys are from poorer level of society without education or skills to survive and impact the criminal justice system - China is redirects them to monastery or mercenary activities.

Research portion of report: 
 Professor McDermott reviewed the data analysis of 18 variables from statistics of 170 countries with populations of over 200,000 in a PowerPoint presentation.  She developed a 5 point scale (0 no polygyny to 4 25% or more of female population is in polygynous marriages) looking at polygyny in every country and whether or not it was legal in that country and secondly how prevalent it was in that country.  In cases where the two conflicted (instances where polygyny is legal but quite uncommon or where it's illegal but quite common) she gave priority to prevalence over legitimacy to see the institutional impact.
Her findings:
As the prevalence of polygyny increases:
- the birth rate per thousand increases from 15 (zero women in polygynous marriages) to 25 (25% of women in polygynous marriages)
- increase in birth rate of mothers who are 15 - 19 yrs of age
- girls enrolled in primary education has a slow decline while minimal decline for boys
- girls enrolled in high school education has a sharp decline with a sharper decline for boys
- increase in infection rate of HIV in females
- age of marriage of females declines - zero polygyny has an average age of 25 yrs and declines to average of 20 yrs at higher levels of polygyny prevalence
- maternal mortality rate rises steadily
- female life expectancy decreases - zero polygyny has an average of 78 or 79 yrs and higher rate of polygyny is average of 60 years
- increase in domestic violence - from 20% (zero polygyny) to 60% (highest polygyny prevalence)
- female genital mutilation - at highest level of polygyny prevalence 90% probability that 50% of the women are suffering this procedure with 25% of women in polygynous marriages
- substantial increase in inequality under the law where the highest prevalence of polygyny exist
- substantial decrease in civil rights and political freedom
- sex trafficking as practiced and willingness of the country to enforce laws forbidding it - prevalence of polygyny correlates to increase of sex trafficking and decrease in enforcement.
- increase in the discrepancy between what is the laws state and what is practiced
- increase in size of defense budget and military expenditure
Prof McDermott's summary:
- patriarchy is supportive and permissive of polygynous structures which involve typically the financial dependence of women on men and male control over female reproductive choices and options.
- men in patriarchal polygynous marriages obtain both social status and economic welfare from their control over female productive and reproductive benefits.
- sex ratio imbalances which exacerbate polygyny but reflect actually a slightly different underlying statistical reality as many more older women which are typically not of reproductive interest.
- while some individuals certainly claim to benefit from being in a polygynous union there has been no statistical demonstration that polygyny benefits most men or women, boys or girls or society considered as a whole.

Cross-examination by the Amicus:
- stats analysis specific to Canada from McDermott report quoted by Amicus - "we have found no evidence that polygynous marriages are a national issue and at the top of the page they do not even appear to be a cultural or regional occurrence. Other evidence may be found in the future but as of this comment the practice appears to be extremely minimal or non-existent." Prof McDermott confirmed that would be her knowledge of Canada.
- McDermott referenced website chart shows Canada as a zero polygamy prevalence which is defined for that chart as "monogamy is the rule and wide spread".  Prof McDermott confirmed this as her understanding.
- Amicus asked McDermott for some stats on polygynous,polyamorous and polyandrous marriages in Canada, Prof McDermott sited  BBC reports indicating 10,000 polygynous marriages in Canada and was unaware of polyandrous marriages.
- in regards to the use of Ms. Jessop's book ("Escape" by Caroline Jessop and Laura Palmer) as a source for her report - Amicus questioned the weight placed on it as it isn't a peer reviewed piece of literature comparative to other sources  - Amicus asked Prof McDermott if Jessop wanted the polygamy decriminalized. Prof McDermott said no that Jessop wanted the law to stand.
- Amicus produced transcripts from "the source of all knowledge" (Oprah Winfrey) and the show on which the author of the book was interviewed.  
- "I think decriminalizing polygamy is the answer because it's more middle of the road...A blanket prosecution is disastrous and sets up the elements I came from. It set up the elements and stage for the very abuses to occur that are occurring now...and so if there was a way to decriminalize it so people could live honestly in the open and their children could be more mainstreamed."  Prof McDermott was unaware of that statement although a similar quote is in the promotional materials for Jessops book  and was also made in a speech to the US House Judiciary committee.
- in regards to the use of Brent Jeff's book as a source for her report, Amicus confirmed with Prof McDermott that peer reviewed quality was not applied to books but only articles in this report. She hadn't read a chapter of the book that he wanted to question her on though.
- regarding her scale of prevalence of polygyny and negative outcomes, there was some lengthy discussion on whether she was saying that polygamy was a cause of these outcomes and how each country made it into the category assigned particulary placing Canada as a country where the polygamy law was enforced when that is not historically the case.
- Amicus noted that in several examples at the low end of the chart (Canada scoring "1" versus El Salvador scoring "0") might also in fact show that where there is more polygamy there is also better educations and better opportunities for education.
- after some discussion the professor agreed that many other factors beside Gross Nation Product (the variable Prof McDermott had used to level the economic playing field of the countries reviewed) could influence the effects on all of these outcomes but deemed none of them more effective to all then GNP and did not consider war (for instance) in various countries as relative.
- regarding the correlation of polygyny to male aggression as displayed through larger defense budgets by various nations - her study began after 911 following some discussions with Al Gore and a team of 12 senior Harvard academics seeking to understand male aggression and the theory that polygyny was a factor which was not supported by 10 of the 12 but persued as a study anyway.

Cross-examination by the BC Teacher's Federation:
- primary education for this report is defined as grades 1 to 8 as many countries don't have kindergarten
- secondary education or high school for this report is defined as grades 9 to 12
- enrollment is the the criteria - completion of that education level is not noted

Polys in Court - week 4 - Professor Todd Shackleford testimony

Summary of transcript of testimony on Dec 15,2010.

Professor Todd Shackleford was called to the stand by a lawyer on the legal team of the Amicus. Professor Shackleford is a professor of psychology and the chair
of the department of psychology at Oakland University in Rochester,Michigan. Formerly a professor at the Atlantic University in Florida where you founded and were chair of the PhD program in evolutionary psychology. He has published 226 articles and chapters of 173 were articles in scientific journals and all
of which were peer reviewed publications. He acted as editor on a number of publications for Oxford University Press in the fields of evolutionary psychology,and family psychology as well as a number of other books on evolutionary cognitive neuro-science published by MIT press. Professor Shackleford has been conducting research on conflict in monogamous relationships for the past 20 years focusing on men's violence, aggression, and their psychological and sexual abuse against their partners. The research features surveys of men and their partners and
determining the reliability of comparative statistical results.

Professor Shackeford's points:

1. while Prof Henrich has summarized various correlations and apparent consequences, negative correlations and apparent consequences can be seen in any kind of mating or marriage structure

2. causation and correlation are separate issues and cannot be assumed because of the implications of any third variable that may be present without your knowledge - for instance if you measured the consumption of ice cream and the number of drownings in a particular area you might find that as people eat more ice
cream there is an increase in the frequency of drownings but people aren't drowning because they ate too much ice cream. An increase in temperature encourages people to buy more ice cream and also to do more swimming.

3. in any mating structure where people of different interests are involved you will find conflict

4. his research of male sexual jealousy in the context of monogamous relationships has found that male sexual jealousy is a very good predictor of all sorts of undesirable consequences including violence against mens' partners, psychological abuse, sexual coercion, rape and men actually killing their partners.

5. something that has been documented now cross culturally is that the rates of child abuse neglect and killing for children who live with one stepparent relative to children who live with two genetic parents can be as high as 40 to 100 times
greater.

"I was providing in this affidavit a summary of my own work that indicates that in short that polygyny doesn't have the market cornered so to speak on some of these negative correlates and consequences." (Prof Todd Shackleford)

6. the challenge in undertaking cross-cultural research is that in order to compare relationship processes dynamics in one culture to another culture one has have to be very sensitive whether or not there might be differences in that other culture
that might impact the very processes you're attempting to investigate.

7. RE: violence among unrelated family members - is found in monogamous relationships where the husband and wife are typically unrelated

(MY COMMENT: - in a monogamist context - a man would be more likely to beat his wife than he would his sister or his mother as they are genetically related to him.)


In previous testimony heard by the court, Prof Heinrich contends that you'd expect to find this more so
with more unrelated adults in a polygynous home - Prof Shackleford said that he wasn't sure that it made sense to consider three unrelated women who happen to be co-wives as a random set of unrelated people given that we know there may be pressure on these co-wives in that cultural context to attempt to
get along better and treat each other's children reasonably. He wasn't sure that it was reasonable to simply apply full force data collected in one context to data collected in what may well be a qualitatively different context.


8. RE: conflict among co-wives - Prof Heinrich indicates that there is evidence of conflict among co-wives which will lead to violence among siblings who do not share the same mother. Prof  Shackleford said that while there may be conflict amongst co-wives there is also cooperation,friendship and love. Conflict is

not the defining or single feature of these relationships. Again comparing data to data that is qualitatively different.

9. children of polygynous relationships have negative outcomes -  Henrich reviewed article by Salman Elbedour - Prof Shakleford says that isn't what he took from the article - it cites some research that indicates children in polygynous relationships may have a variety of outcomes that are more negative than children

of monogamous relationships but it also cites studies that indicate children in polygynous relationships actually have a variety of outcomes that are more positive than children in monogamous relationships. Prof Shackleford felt the research was mixed on the issue.

10. RE: the role of sexual jealousy and age disparity - Prof Heinrich noted that where there is an age disparity between husbands and wives there tends to be greater sexual jealousy on the part of husbands toward their wives and that greater sexual jealousy in turn is related to a higher frequency or higher risk

of older husbands inflicting violence on their partners and this should be more so in polygynous relationships. Prof Shackleford questioned the assumption that what is found in monogamous relationships can be applied full force without regard to potential cultural or contextual differences.

Cross-examination by the BC AG began with a discussion of a book by Stephen Pinker (who is known to Prof Shakleford) and his evolutionary psychology based theory of monogamy versus polygamy.

- RE: if legal men especially wealthy, powerful men who could afford to it would choose polygamy as a general rule and give in to biological bent toward multiple partners - Prof Shakleford said that it isn't a given that men who have the opportunity will pursue it. He noted that some men are especially sensitive to

the costs involved in doing so in terms of maintaining social status which means maintaining a relationship with their regularlong term partner.

- RE: excess of young males would increase crime - Prof Shakleford agreed that males and most especially young males are disproportionately responsible for crime and anti-socialbehaviour in society. It would follow that the more unmarried young men there are the more crime and anti-social behaviour.

- RE: unrelated adults in the home - BC AG cited a study in Australia that showed that women were more likely to seat belt their genetic children in than children who were not their own and asked if it would not be reasonable to assume that if the presence of women who were not the genetic mothers would not

increase the risk of child abuse in the home. Also that the unrelated issue was not just in the parent/child and

parent/parent relationships but also in unrelated sibling relationships. Prof Shackleford said it was the risk of an unrelated male that was substantial in his studies and that just because there are more unrelated people it may or may not follow that the risks were greater.

RE: serial monogamy as experienced in our society is repressed polygynous urges or defacto polygyny and thus polygamy might spread quickly if the option were available - Prof Shackleford had issues with the possible variables in that scenario but amongst high status individuals "as opposed to impossible it's

plausible....terribly unlikely but plausible".

(My Comment: There is an interesting feel to this cross-examination. Initially, in consideration of Prof Shackleford's qualifications, the BC AG lawyer said that he was well aware of Prof Shackleford's work and it was an honour to have him involved in this reference case. During cross-examination, this lawyer
consistently referred to the witness as Dr. Shackleford which is also accurate, if not more so, as the professor is a PhD holder. The feel of the cross-examination - even in the text transcripts
- is of attempted camaraderie - as though the professor were a witness for the BC AG not the "opposing side". Reminds me very much of chit chatting with a sciences teacher in high school who was a brilliant man and qualified to teach university but preferred to work with the minds of teenagers and inspire them to higher educational options. He had various obsessions in his personal studies and one of my classmates (likely a lawyer now) was very adept at side tracking the teacher off on one of these tangents. The discussion was quite facinating but nothing to do with what we were doing and most definitely left no time for homework assignment. The attempt in this cross-examination seemed to be to get the esteemed professor to pontificate (outside his area of expertise) on the possibilities that his findings regarding monogamy would be more prevalent in polygamy thus making it something we should guard our society from experiencing in the onslaught of rampant polygamy that would follow decriminalization of this relationship form.)

Cross-examination from the AG Canada centered around the sexual jealousy of men causing them to create various controlling behaviours such as treating women as sexual and reproductive commodities and how this might become a community norm leading to increased levels of violence within that community. Age disparity between spouses being greater than 13 years is an indicator of possible violence between spouses.  The younger the wife the more likely she'll kill her husband.  Prof Shackleford agreed to these as possibilities and probable outcomes. 

Polys in Court - week 4 - Professor Lori Beaman

from transcripts of Dec 13, 2010 - BC Supreme court

Professor Lori Beaman was called to the stand by the Amicus' team of lawyers. She is currently a professor of classics and religious studies at the University of Ottawa and holds a research chair there. Professor Beaman has a PhD in Sociology and a law degree from the University of New Brunswick. She practiced family law in Sussex, New Brunswick for five years. Professor Beaman also edits a series called the "Sociology of Religion" for Brill press and has done several research projects for the Social Sciences and Humanities Research Council of Canada. Most recently a 2.5 million dollar grant for a 7 year project which investigated religious identity and the limits on religious freedom, more or less in the realms of law and policy. She currently teaches in the area of religious freedom, identity construction (how the members of a religious group view themselves and how others view them)and qualitative research practice. Prof Beaman has also studied, taught, and written a book on the subject of violence against women in the religious context. Her dissertation looked at women's own experiences in a church setting while the book focused more on evangelical family life and looked at how conservative Christians understand things like the doctrine of head ship and submission. She also interviewed Transition House workers and was active in the Transition House movement in New Brunswick while researching how religious groups respond to violence against women. She has done no field research on polygamy for this report but a great deal of literature research.

Professor Beaman’s discussed the following points:
Re: Harms of polygamy
- in defining the harms of a religious practice to the individual or society the practice that is flagged as harmful is usually that of a minority religion. She noted the Niqab (Muslim dress for women) or the Sikh kerban (ceremonial dagger) as examples. The practices of majority religions are not under the same scrutiny.
- a broader historical and social context would be best in reviewing potentially harmful practices.
- sited three different researchers that have done qualitative research from several perspectives on polygamy and noted that all three had concluded that "while there are some unique or unusual problems that can arise within the context of polygamous relationships some people live quite contentedly within the context of polygyny".
- a researcher must be careful of the weight given to anecdotal information (ie if she used the stories from interviews in transition houses in her research she might have concluded that these horror stories were reflective of monogamous relationships. We can't extrapolate generalities about relationships from such data.
- sited studies where question was raised about the impact on anecdotal data by the concept of disaffiliation. This is found in people who have left religious groups or in people going through divorce. The feelings of fear and anger can come to overlay their understanding of the entire experience of their relationship. While there are abusive relationships and horrible experiences, we need to be careful not to generalize the group as a whole.
Re: polygamous societies in other areas of the world
- these pieces of research can raise important questions but that we should not import them directly into what in many cases is a completely different socio cultural historical context.
- studies of polygamy outside of North America have produced mixed results and where some attribute harms to polygamy , others are positive about the benefits or show that the harms can be overcome.
- historical context of the evolution of polygyny laws in the US and Canada coming out of a Christian moral panic in reaction to the growth of the Mormon community in North America.
Re: women brainwashed to consent
- noted several studies of women in conservative religious groups specifically evangelical Christian groups, Latter Day Saints, Orthodox Jewish women, and Amish women regarding their gender roles and the idea that they may be duped into submission and that this is not an accurate stereo type
- In her own research of evangelical women – they were aware of the criticism and insisted that they do participate in decision making processes and she found that there was a great deal of mutuality
- Studies found these women engaged in the daily process of making financial, child rearing and daily life decisions often instead of the male head of the household.
- Women in majority religions tend to be more insulated from this criticism
- Roman Catholic Nuns choose celibacy accept that they have less authority than priests and don’t participate in the authority structure as men do – they are socialized to accept the Roman Catholic way and yet we don’t hear people talking about wanting to rescue Nuns.
- Orthodox Jewish women have a similar situation
- Important not to assume that because it is a minority religion the women are therefore duped or brainwashed simply because the choice they make isn’t one we’d make.

Cross-examination by the BC AG, AG of Canada and the Canadian Coalition of Rights of
Children and the David Asper Centre for Constitutional Rights shot some holes in the depth of her research but she held up well. The BC AG questioned her on the raid of Warren Jeff’s group in 2008. He took exception to her comment in her affidavit that the charges were “largely unfounded”. BC AG said that there were 91 charges laid where she had noted only 23 in her media search with 12 convictions. I suspect she was seeing data on primary charges where he was noting correlated charges (other adults who knew about abuse but didn’t prevent or report)but still Prof Beaman said that she’d have to review better documentation to revise her opinion especially since 91 charges with only 12 convictions is still largely unfounded and she found that peculiar.