Archive for the ‘polyamory’ 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
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.
What does the Alternatives to Marriage Project have to do with Prop 8? Very little! But we were mentioned during cross-examination anyway, so let’s clear up some misunderstandings and provide some context here.
One live-blogger described it like this:
Thompson begins making the case that because Cott supported an organization called Alternatives to Marriage, started by a heterosexual couple to validate cohabitation as a valid choice, that this implies she is also a proponent of poly-amorous relationships.
Cott –“I don’t support poly-amorous marriages.”
The tension is thick. Cott is clearly annoyed by Thompson who is firing off question after question with smug intent to make her look stupid.
The San Francisco Chronicle heard it a little differently:
In cross-examination, David Thompson, lawyer for the Prop. 8 campaign committee, sought to portray Cott as a biased advocate who had once endorsed a statement by a group advocating “alternatives to marriage,” which he said included multiple partners.
Cott said she had only been endorsing the right not to marry.
Thompson’s attempt to make something good sound bad revives the attacks that Professor Cott and other withstood many years ago, for signing AtMP’s 2000 Affirmation of Family Diversity. It is similar to the attacks withstood by Professor Chai Feldblum for signing the 2006 Beyond Marriage statement, before her Senate confirmation to serve on the Equal Employment Opportunity Commission in late 2009.
Many AtMP members are uncomfortable with the idea of polyamory, while some see it as not only a valid but their own alternative to marriage. Similarly, many AtMP members are uncomfortable with the idea that couples are treated differently than individuals, while some would never question that.
Our official practice, like that of many of our members, is to use the term different-sex instead of heterosexual (or straight), recognizing that one can’t tell a couple’s sexuality by their sex (picture a lesbian legally married to a gay man).
Finally, AtMP does not advocate any particular lifestyle or relationship structure. We advocate fairness and equality for all, whether or not people are married or in romantic relationships.
Anyway, we’re delighted to be connected (if only very minimally very long ago) to Professor Cott and highly recommend her book Public Vows: A History of Marriage and the Nation.