Archive for the ‘international’ Category
British Columbia Supreme Court bars prosecution against polyamorists unless they enter into “marriage” or contracts
Relationships between more than two people were ruled lawful in Canada – unless such a relationship is formalized with a commitment ceremony or relationship contract. Even those who attend a ceremony or assist with a contract sanctioning a relationship between more than two people could face criminal liability—so think twice before attending a polyamorous commitment ceremony in Canada.
On November 23, 2011, the British Columbia Supreme Court ruled Section 293 of Canada’s Criminal Code constitutional. Section 293 explicitly bans conjugal unions of more than 2 people and any form of polygamy. As explained in a previous blog post, many polyamorous Canadians were concerned they too, were subject to criminal penalty based on the text of the law:
“293. (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.”
In 2009, the Lieutenant Governor of BC asked the court for a ruling on whether it could use s293 to prosecute two leaders of the FLDS community in Bountiful, BC. The Canadian Polyamory Advocacy Association, concerned that the law could also criminalize consensual polyamorous relationships, intervened in the case, arguing that the law violates the Canadian Charter of Rights and Freedoms.
The British Columbia Supreme Court ruled that s293 is constitutional, and thus polygamy continues to be illegal in Canada. However, the court clarified that non-monogamous unmarried relationships are not subject to criminal sanction. While this statement served as a relief for polyamorists in the province, it also created a confusing legal ambiguity. Living in a multi-party marriage is illegal, regardless of the genders of the people involved, while living in an unmarried multi-party relationship is not. Since there is no way for more than two people to officially marry in Canada, how can a multi-party marriage be distinguished from a multi-party relationship?
Justice Bauman’s ruling assumes that there is such a thing as “marriage” that exists independently of law and into which people can enter without any legal approval or recognition. Since participating in a “marriage” could make polyamorous families into criminals, it would seem important to have clear guidelines for how to achieve this legally illegitimate state of “marriage” – and how to refrain from achieving it in order to avoid violating the law. Justice Bauman excuses himself from that task: “I am not definitively defining “marriage”; it is not my task on this reference to do so.”
Justice Bauman offers no elaboration beyond the text of s293 itself, which states: “Everyone who… celebrates assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship” is criminally liable for polygamy. According to s293, “sanction” by means of “rite, ceremony, contract, or consent,” is what separates an unmarried from a married relationship.
The implication is that polyamorous relationships are permitted, but holding a commitment ceremony or signing a cohabitation contract would create a “marriage” and make the “spouses,” guests, officiants, and lawyers into criminals. Sanction by “consent” implies that even a private verbal expression of commitment to a multi-person relationship constitutes a “marriage” and subjects the “spouses” to criminal liability.
Thankfully, neither B.C. nor any other province has demonstrated or expressed any interest in prosecuting polyamorous spouses so people probably do not need to worry about promising to love and care for their polyamorous partners and accidentally ending up “married.”
However, this law continues to criminalize many consensual adult polyamorous relationships, lumping them in with coercive polygamous marriages. One of Justice Bauman’s reasons for upholding this invasive law is to protect women and children in polygamous families from forced marriage, rape, abuse, and trafficking. However, these abuses are already crimes. Instead of encouraging law enforcement to prosecute these offenses, the court’s interpretation of s293 discourages healthy families from creating intentional commitments, celebrating these commitments with their community, and creating legal contracts to offer their families stability and legal protections. The danger is that the court’s ruling may harm many more families than it helps.
This battle is not over yet. The case may be appealed to the B.C. Court of Appeals and even Canada’s Supreme Court. In the meantime, polyamorous families in British Columbia may choose to practice civil disobedience of this law in the form of commitment ceremonies or legal contracts. If the law is ultimately ruled unconstitutional, it could pave the way for powerful recognition of the right to formalize relationships without state intervention.
For a great roundup of reaction articles on the case, see: http://polyinthemedia.blogspot.com/2011/11/canada-polygamy-ruling-win-loss-or-draw.html
Such sad news: Paula Ettelbrick died last week. She was a good friend to AtMP. Everyone in our community should learn about her wise work. Please take a few moments to read some of the widespread coverage, and join our heartfelt condolences to her family.
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.
South Africa considers cohabitation, quotes one of AtMP’s co-founders.
Iraq’s unmarried people especially lack security and face barriers to emigration.
Israel makes it somewhat easier for women to get divorced.
New York (not really a foreign country!) becomes the 50th state to allow no-fault divorce.
National Union of Activists for People who Live Alone: doesn’t that sound great? It sounds even better in French: Union Nationale des Groupes d’Action des Personnes qui Vivent Seules (UNAGRAPS). And it’s for real!
Even if you don’t read French, visit the website for the charming graphics of activists holding banners that say roughly “solo = more expensive,” “fighting for ourselves together,” etc.
UNAGRAPS has 10 local chapters, in all corners of France. It tackles issues of taxation, social security and retirement, succession rights, and some leisure costs like the single supplement. It demands recognition of solo singles as an interest group (apparently not a dirty word in Europe), and won interest group registration under the European Union in August 2009.
As Ulla Anderson, UNAGRAPS’s President, emailed me in English (several communications excerpted and compiled here):
Our pursuit pertains to the difference between single without children (one person household) and married people without children.
French tax is calculated according to number of persons in a household. A one person household has one “part”; a couple without children has two parts. In a majority of situations this leads to higher tax for the single person than for each member of the couple.
It is widely accepted that the French system is particularly unfavourable for single persons as most countries tax couples separately.
[Nonetheless, in] Europe there are [similar singles' rights] associations in … Norway, Finland and Holland. There may be more that I haven’t found yet.
We recently read about singles rights organizations in India. We’re often asked if there are any in Canada, but we haven’t found one. Do you know any other international (or U.S.) organizations working to make laws and economics more fair for singles and unmarried households? Please click Comments to help us get connected!
A must-read article from Women’s ENews! quick highlights:
Formerly-married women in India outnumber the entire population of Canada. Ever-single women haven’t even been counted. But 58,000 women belong to single women’s organizations in 8 of India’s federated states. These organizations have lobbied for economic support, equal pay, and the right not to be burned as witches.
The article includes several organizations’ names and link – I hope our many readers in India will follow up with them!
Several AtMP members around the county used their winter holidays to scour the news for interesting stories about marriage and its alternatives. Here are just a few of the many worth talking about:
Ann was the first to spot the efforts of different-sex unmarried couples to be included in domestic partner coverage being offered to employees of the U.S. State Department. (Yay! if you have a connection to Mr. Howard or Ms. Ros-Lehtinen, please let us know!) According to the L.A. Times,
Supporters of extending benefits to unmarried heterosexuals include such key Congress members as House Foreign Affairs Committee Chairman Howard L. Berman (D-Valley Village) and the committee’s top Republican, Ileana Ros-Lehtinen of Florida.
Thomas was the first to point out the ironies of Karl Rove’s divorce, as Rove worked to build connections between the Bush II administration and religious/political figures who favored marriage promotion.
Stephanie was the first to share the news that Virginia’s statewide Advance Health Care Directive Registry is set to go live for individuals on February 17, 2010.
Marisa pointed out CNN’s approach to covering the “people get married for health insurance” story. Hardly news, but a good summary of the issues with lots of relevant and not too obnoxious comments.
I really appreciate AtMP members sending these tips, which always go beyond what I catch via key words on Google Alerts. I also pick up interesting news from other organizations’ email lists. Just before the new year, folks at Smartmarriages shared the Onion’s trenchant predictions on cohabitation, and Women’s Enews publicized fascinating legal reforms around marriage and divorce in Uganda and Nepal.
Their lonely-hearts faces peer out of the advertisements, hangdog and looking for love. …In matrimony-mad India, where marriage is the central event of a lifetime, these posters could easily be for lovelorn, small-town bachelors, pasted up by anxious parents seeking a bride. But the suitable girl these single fellows seek is of the furry, four-footed variety. Finding one, though, is not easy. “I have been searching for months, but no luck,” said Kunal Shingla, who is looking for a mate for Foster, his 2-year-old basset hound.
This “only in August” article in today’s New York Times caught my attention for several reasons.
1 – A dear friend is preparing to move to New Delhi. As she packs she is also planning how to manage / hide / present her non-traditional relationship in this largely traditional society.
2 – Despite our U.S. focus, AtMP frequently hears from unmarried Indians seeking community.
3 – “What’s next, marrying your dog?” Real, normally intelligent, people have actually asked me this rude and thoughtless question upon hearing the mission of the Alternatives to Marriage Project.
At the moment, the best I can offer them all is a deep and compassionate sigh.
Dozens of people on AtMP’s email list live in India, but most of our work pertains to the USA. We’d like to help our Indian members connect to other Indians who are interested in alternatives to marriage.
During July and August, AtMP will host an experimental email discussion list just for people in India. We hope folks will take advantage of this opportunity to organize an on-going conversation. We could continue to host the list if there is strong interest; but we’d rather see folks create a new system that works better and more locally. Either way, we hope we are starting something that is helpful!
Technical details: People can join the list by checking the India Listerve box on our sign-up page. Everyone on the list will receive every email message that is approved for release to the list, and anyone on the list can respond to any message. All messages will be marked [Alt2MarriageIndia]. (Please keep an eye out for them, in case they land in your junk or spam file.) For the first two months, Rajiv Garg will moderate the list (he’ll approve or reject each message before everyone sees it). Every message will include an unsubscribe link at the bottom – clicking that link will give you the option of leaving only the India Listserve, or leaving AtMP altogether (but we’d hate to see you go!).
The Alternatives to Marriage Update article Single Women in India: Rarer, Riskier, and Happier Than in the U.S. by Kay Trimberger has generated some good discussions, and we invite others to read and respond.
Rajiv Garg (who recently joined AtMP’s board of directors) wrote this letter:
The conclusion that single women in India are happier needs more scrutiny. Moreover, due to the significant social and cultural differences it is unclear how we can better understand the obstacles and advantages single women face in the US by comparing the situation to single women in India.
Growing-up and living in India in the Hindu culture for twenty four years and visiting often, I have seen very little change (especially in rural areas and small towns in India where most people live) in the status of women. Even though lifestyles are changing, there are very few women, mainly in progressive big cities, who are happy being single. They are rarely accepted by the society (even less by their immediate friends and family since they see it as a shameful act and disgrace to the family) and often stigmatized and ostracized. Women past the “marriage-able age” (34+) are often subject to ridicule and assumed to have major personality or physical disorders even though arranging marriage is a family enterprise and the family takes part of the blame. These unmarried women are rarely happy.
It is true that single women in India do not have the pressure of finding a suitable match but this putative advantage is far overshadowed by very low-self esteem, fear of getting married to an incompatible groom, fear of being part of a new, often hostile and potentially violent family, being able to adjust to a new family and home environment, constant worry of how parents will accumulate dowry and pay for future gifts to the groom’s family…the list goes on. Even though some women may be happy (for a very short period of time until they are married) it will be naïve to conclude that they are happier than their American counterparts.
There is mention of Hindu culture having a positive image of celibacy. I must point out that celibacy is only revered in the religious context – the special space and respect for unmarried women and the act of voluntary abstinence is bestowed only if they become part of the religious system and hierarchy (similar to the celibate priests in the Western societies). Absent any religious affiliation, no special status or respect is granted to a celibate woman.
Also, contrary to the assertion in the article I believe that there is a cultural imperative in India that marriage/coupling should bring happiness. Even though personal happiness is not valued as much as happiness of the entire family, most people understand that if the couple is not happy, they cannot bring happiness to the family at large. The concept of finding a “soul mate” may be rare but most families compare astrological charts of the bride and groom and make efforts to ensure compatibility that would lead to happiness. In fact this cultural imperative is more pronounced in India as the bride is under constant pressure to not only please the husband but to bring happiness to the entire family.
There are local and regional feminist groups in India fighting for women’s rights but these efforts are primarily focused towards obtaining social and economic equality. It is encouraging to see that life for singles is changing in India but the change is very slow and limited to a very small segment of the society. Due to the relatively close knit social structure of friends and family, singles may not feel as lonely and desperate (even though that is debatable) as their American counterparts but to impute that single life is psychologically easier for Indian women (for the reasons mentioned above) would be a mistake. Single women in India face discrimination, live in subservience, and deal with a variety of tough challenges and hardships; I cannot imagine a scenario where we can say that generally they are happier than their American counterparts.
This makes me wonder about the interesting commentary and reporting by feminist intellectuals and journalists in India, perhaps they are focusing and reporting on a very exclusive group of single women that do not really represent the majority of single women in India.
Kay Trimberger responded:
Dear Rajiv, Thanks for your interesting comments on my article. Some of your comments I agree with and some I don’t. I did not choose the title, and I don’t think I use the word “happier” in my text. But I also have not objected to the editors about the title. I think my position is clarified in two other blogs I have written, and I’ll provide you with the links here.
“Single Women in India: A Conversation with Kay Trimberger”
“Single Women and the U.S. Women’s Movement : Insights from India”
Best regards, Kay
Chitra also sent a note in response to Kay’s article:
I am from India, and we do not have an equivalent of ATMP here, as most Indian women are expected to get married
However there are many women who dare to defy convention and are living happily as single women, or in live-in relationships. I for one have a boyfriend but just do NOT want to marry or get into a live-in relationship. It does not make sense to my peers or my parents – and this just goes to show that the pressure to get ‘coupled’ in America is as strong as the pressure to get married in India.
I liked the article on how single women in India are probably happier than their American counterparts. But in urban India that mostly tries to ape the west, celibacy is slowly beginning to be looked upon as ‘weird’ – and that is upsetting to the small minority that still choose to be celibate.
I liked reading about asexuality – and I know for a fact many Indians will be able to relate to it. I don’t think it is weird – if abstinence is acceptable, what’s wrong with asexuality?
The irony about being an Indian is – even though this is the land of the Kamasutra (and a high population clearly shows everyone is having sex) – you are expected to be celibate till you get married. And yet, as I mentioned, if celibacy is something you choose- you are frowned upon as someone ‘weird’. It gets confusing sometimes.
In any case, here I am , mailing you, letting you know that your website gives me so much hope and happiness.
Thank you ATMP!
btw I have written a funny article on why I do not want to marry on my blog.