Could being non-monogamous be a crime?
BY: DIANA ADAMS, ESQ. and JESS GAFKOWITZ
Should the government be able to criminalize your relationship style? Could being non-monogamous be a crime? Presently a major trial in Canada asks this question with a challenge to Section 293 of Canada’s Criminal Code, which criminalizes polygamy but also any form of multiple person relationship. While the statute is considered a tool to target polygamists (with multiple spouses, and more specifically polygynists with multiple wives) it could also be used to send others to jail for nontraditional relationship styles, which could be a breach of Canadian Constitution’s Charter of Rights and Freedoms.
Section 293 reads as follows: Polygamy
(1) Every one who
(a) practises or enters into or in any manner agrees or consents to practise or enter into(i) any form of polygamy, or
(ii) any kind of conjugal union with more than one person at the same time,
whether or not it is by law recognized as a binding form of marriage, or
(b) celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship mentioned in subparagraph (a)(i) or (ii),is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.Evidence in case of polygamy
(2) Where an accused is charged with an offence under this section, no averment or proof of the method by which the alleged relationship was entered into, agreed to or consented to is necessary in the indictment or on the trial of the accused, nor is it necessary on the trial to prove that the persons who are alleged to have entered into the relationship had or intended to have sexual intercourse.
When this statute was written in 1890 to limit polygamy, modern polyamorous relationships were surely beyond contemplation. Polyamory is a relationship style that allows consenting adults to have more than one romantic partner with full honesty and fully gender egalitarianism.
Polyamory is fundamentally different than polygamy and does not present the concerns that polygamy presents. It does not give special rights to men, there are no concerns about lack of consent in assigned spouses or underage spouses, nor does it teach customs inside closed communities without members seeing a realm of options. Polyamorous people are also not attempting to enter into multiple legal marriages in Canada.
However, Section 293 may inadvertently criminalize these consensual polyamorous people for being in a romantic conjugal relationship with more than one person. If three or four people choose to live together in a romantic relationship, should they face criminal penalties?
In the current Canadian case, a tiny Mormon-derived polygynous commune of 120 spouses called Bountiful represents the example of those who would be criminalized by the law. Many Canadians may be led to believe that similar small patriarchal communities of Mormon or Muslim people with multiple wives are the only ones who are affected by this law. In fact, the Canadian Polyamory Advocacy Association (CPAA) has become involved in the case because, (although there are no definitive statistics on the number of polygamous versus polyamorous people in Canada) there are many more polyamorous Canadians affected by the law who have not been accused of any wrongdoing and who deserve freedom to choose their relationship structure. If Section 293 is declared unconstitutional, it is likely that both polygamy and non-marital cohabitation would be legalized in Canada.
Are there any comparable American laws? Although the United States does not have a federal law like Section 293 encompassing nonlegal conjugal partnerships of more than two people, many states do criminalize bigamy and polygamy where a person already has a legal spouse.
Moreover, many Americans might be disturbed to learn that ‘unlawful cohabitation’ statutes making it illegal to live with an unmarried partner still exist in five states: Florida, Michigan, Mississippi, North Carolina and Virginia. Although criminal charges in these cases are rare, these unlawful cohabitation statutes are regularly used against non-married couples in child custody cases, employment, housing, and parole to incriminate non-married people because they are technically breaking the law.
As the legal challenge to Canada’s Section 293 unfolds this spring, perhaps leading to Canada’s Supreme Court, we anticipate an exciting historical moment when Canada could acknowledge that laws restricting relationship structure violate civil rights.
