But this was no ordinary day in the history of the modern polyamory movement, now some 25 or 30 years into its development. Attorney John Ince, representing the Canadian Polyamory Advocacy Association, delivered the most direct and specific defense of polyamory as a legitimate way of life ever presented before such a high court (as far as I'm aware).
By evening the news was all over Canada. On the website of the Globe and Mail, Canada's largest national newspaper and often called Canada's newspaper of record:
Polygamy law a 'radical intrusion into the private sphere of life', court hears
By WENDY STUECK
Polyamorist and FDLS lawyers present arguments
The thorny constitutional questions around Canada's polygamy law were highlighted Thursday in B.C. Supreme Court, where lawyers for a polygamous sect and the Canadian Polyamory Advocacy Association ripped into government arguments in support of the law.
Calling the federal interpretations of the law a "radical intrusion into the private sphere of life", CPAA lawyer John Ince said Section 293 of the Criminal Code — if interpreted and applied in the way supported by the federal attorney-general — would turn polyamorists into criminals.
"This is deeply disturbing to the polyamorous community," Mr. Ince said on the fourth day of a landmark reference case that is weighing the constitutionality of Canada's long-standing — but rarely-used — law against polygamy.
Section 293 would "turn them into criminals for living together in a multi-party, loving relationship," he added...
The article also quotes the lawyer for the Fundamentalist Mormons, who also gave his opening statement today. Read the whole article, later updated (Nov. 25, 2010).
From the Canadian Press news service, and also CBC News:
...The court also heard from a lawyer representing the Canadian Polyamory Advocacy Association, which represents people involved in multiple relationships that aren't connected to a specific religion.
John Ince urged the court to distinguish between the harms alleged to be occurring in Bountiful and polyamorous relationships involving consenting adults who choose to be in relationships with multiple partners.
"There is no evidence in any of the thousands of pages filed (with the court) that polyamory is attracting any social stigma; there have been no prosecutions against polyamorists," said Ince.
"What an enormous harm this is to suggest that the many, many people in Canada who are involved in multiple conjugality situations are criminals and have the risk of having the forces of the state break up their family."
See article (Nov. 25).
In Vancouver itself, The Province has a similar article (Nov. 25).
Columnist Daphne Bramham, a longtime polygamy opponent at the Vancouver Sun, considers the CPAA's side carefully:
Is there good polygamy and bad polygamy? That was the big question raised Thursday....
...Right after [the Fundamentalist Mormons' lawyer Robert] Wickett outlined the FLDS case, John Ince made opening remarks on behalf of the Canadian Polyamory Advocacy Association.
Ince and the association reject "traditional, patriarchal polygamy ... where men have dominance and women are inferior and where only men have the right to multiple partners."
But he and his clients want an exception made for their practice of polygamy, which is based on the belief of "conjugal freedom" to choose how many partners you have, their sexual orientation and how long you are willing to be with those partners.
What they want is a "surgical approach" that could criminalize folks like the FLDS, while leaving them free to be sexual explorers and innovators who are "incubating a new form of relationship."
Several of the examples Ince used to point out the problems with the law as it's written do give pause.
The attorney-general of B.C. argued earlier in the week that the law as it stands only applies to polygyny — men with multiple spouses, not women with multiple partners or homosexuals with multiple partners.
Using an example of three lawyers, Ince pointed out a male lawyer would be criminalized for having two conjugal partners, but a female lawyer could legally have two male spouses.
The attorney-general for Canada earlier in the week defined polygamy as any relationship involving more than two people that has been formalized by some sort of rite or ceremony.
By that definition, said Ince, three lesbians living together on Commercial Drive would be criminals if they had a party to formally mark their shared love. But if they didn't have a party, they'd be fine.
These broad definitions, he argued, are "as radical an intrusion into the private sphere of life as can be imagined."
Further, Ince said, it goes against Canada's long tradition of respect for diversity, social experimentation and individual freedom within the sanctity of their own home....
Read the whole article (Nov. 26, 2010).
Xtra, Canada's chain of gay & lesbian papers, posts an extensive story:
Don't criminalize consensual polyamorists: lawyer
By Jeremy Hainsworth
By criminalizing consensual polyamorists along with patriarchal polygamists, the BC and federal governments will break up loving families, a Canadian Polyamory Advocacy Association (CPAA) lawyer said Nov 25.
"The attorneys general have lost their moral compass," John Ince told a BC Supreme Court reference on the constitutionality of Section 293 of The Criminal Code.
A British Columbia court began hearings Nov 22 to determine whether Canada's law prohibiting polygamy violates basic human rights.
The polyamorists maintain Section 293 infringes on their constitutional rights of association, religion, equality, and the life, liberty and security of the person as outlined in the Charter of Rights and Freedoms.
A subsection of the law prohibits 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 celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction a relationship.
Ince was one of several lawyers addressing BC Supreme Court Chief Justice Robert Bauman this week.
The case stems from BC's failed attempts to prosecute leaders of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) community in Bountiful, known for its polygamous marriages.
FLDS lawyer Bob Wickett told Bauman the law forces his clients to live as pariahs unable to access legal or health services for fear of being jailed due to their marital status.
...George Macintosh is the amicus curiae, or friend of the court, with the job of arguing on behalf of those who oppose Section 293 of the Criminal Code.
As the law sits now, he told Bauman on Nov 24, "it encompasses polygamy, it encompasses polyandry and it encompasses polyamory."
"The law ignores casual group sex but it criminalizes relationships," Macintosh said.
"This law is not aimed at protecting anyone," he added. "It criminalizes all involved in such relationships.
"Freedom of association is infringed when it is illegal for three or more people to perform what is legal for two people to perform," Macintosh said.
Ince called the polyamorous community a secondary target of the law. The focus of the law is on patriarchal polygyny, he says, where a man has two or more wives simultaneously.
He said that form of relationship puts women in an inferior position, not the case in polyamorous relationships.
Polyamorous relationships of whatever configuration are based on egalitarianism, he maintained.
He said the governments' approach would criminalize loving relationships entered into freely. "This is deeply disturbing to the polyamorous community."
There has been no evidence to show polyamorous relationships cause harm, he continued.
"They are proposing to criminalize a whole group of people without having done any research," Ince said.
Lawyer Doug Christie of the Canadian Association for Free Expression warned the court of the danger of letting government define relationships....
...A host of Christian, children's advocacy, freedom of expression and women's groups are expected to make submissions.
...Polygamy charges currently carry a maximum penalty of five years in prison.
Read the whole article (Nov. 25, 2010).
Also, a discussion with Ince appears in The Georgia Straight, the Vancouver area's alternative paper ("Canada's largest urban weekly"):
Polyamory threatened by B.C. polygamy case
By Shadi Elien
The attorneys general of Canada and B.C., Rob Nicholson and Michael de Jong, want to “criminalize loving families”, according to Canadian Polyamory Advocacy Association director John Ince.
...“This is staggering to us not only legally, but more so politically,” he told the Straight by phone. “We think it’s completely untenable — the charter was created to protect precisely that sort of intrusion into the domestic sphere.”
The B.C. attorney general’s opening statement declares that Section 293 of the Criminal Code — which bans polygamy and threatens offenders with five years in prison — should also apply to cohabiting polyamorous families. According to a statement filed by B.C. government lawyer Craig Jones, the problem with leaving polyamory out of the Criminal Code is that “the distinction [between polygamy and polyamory] is not capable of definition for identification and enforcement purposes”.
Ince asserts that it’s ridiculous to think the government can’t distinguish between a patriarchal sect in which women have no rights and modern polyamory.
“Simply ask them one question: ‘do women have the right to marry more than one man?’ ” he said. “And if the answer is no, then bang, it couldn’t be any simpler.”
Federal and provincial lawyers have advanced the position that multiple conjugal relationships are harmful to the state, and in particular to women and children.
But Ince pointed out that the same concerns were once expressed about same-sex and interracial marriages. He called the governments’ arguments in this case a “huge step backwards”.
Read the original (Nov. 25, 2010).
At one point this evening the CPAA posted on its Facebook page, "Yikes! We're so popular that our bandwidth on the website has been exceeded."
CPAA people are also making a request:
An unprecedented amount of attention is being given to polyamory in our national media. Outlets such as CBC, CTV, the Globe and Mail, and numerous local papers have been running stories about the proceedings and about the Canadian Polyamory Advocacy Association's involvement as an intervenor.
Many allow comments and are running surveys. If you support polyamory, please get involved by adding your voice to these discussions. There is a lot of confusion and a lot of nonsense about who we are and what we stand for. Please help us explain our positive and constructive reality to Canadian society!
P. S.: The CPAA needs donations.
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Except that, as I've noted before, Polyandry is just as patriarchal as Polygyny. Because there is no such thing as consent, in either case, for the woman. The central distinction between Polyamory and Polygamy is, actually, whether both parties have an equal ability to consent. This is how we define laws that distinguish between sex and statutory rape, after all. I think we should look to Netherlands as a model. Some of its laws seem to be based on this premise of consent.
ReplyDeleteAlthough, I am the one who believes that neurobiology arises from social evolution, an evolution that takes place, whether great or small (usually the latter), amongst all organisms on a continuum. So, it doesn't surprise me that both forms of polygamy are rather advantageous towards the male sex. Nature's sexism has guaranteed a circular argument for itself, after all. It places the role with the largest physical burden on the female in the majority of the species on this planet. This allows the male sex (of the human population) to more easily control and socially regulate the female population, especially because of where they are situated on that continuum. The female and male populations develop neural characteristics that are categorized as female or male. Any variation from these traditional schools, results in further oppression for the female (which includes the movement from gylaneous/matriarchal, to patriarchal, societies), creating more and more taxing burdens on her physically.
And, even if Polyandry was matriarchically based, that doesn't mean, even though it may be less oppressive, that it's any more desirable or, even, that it's not oppressive, at all.
But, now, I believe it has come to the point where there is no place to go, except... up (ie, more and more egalitarian societies).
Polyamory is consent based, polygamy is not. This is the fundamental difference. Although the two systems can lead to superficially similar outcomes, in terms of partnership configurations, the process is what matters. If the court can recognize the need to consider the process and position of the parties involved it would be a major step towards protecting consent based lifestyle choices while taking a legitimate public stand against regressive and abusive social practices.
ReplyDeleteUntil the court can recognize that the society's interest is not in the specific outcomes, but the ability of all parties to enter into relationships as they see fit without coercion and when the are in a position to give free and informed consent, I hope that the judiciary can go after abusive polygamists by other means. Statutory rape, sexual assault and sexual abuse will be harder charges to prove, but they will be ultimately more durable. These problems are also more in keeping with what I believe are most people's objections to polygamy. The elements of abuse, coercion, the marriage of minors have no place in a modern society. They have no place in polyamory either. We need to push to draw a legal distinction between adult, consensual and free expressions of love, and coercive, manipulative and nonconsensual practices.
I'm poly/non-mono and I hope that polygamist groups can be undermined as they do seem to foster abuse, a lack of respect to women and children and situations for abuse of "surplus" young men. I want to protect myself as a non-mono person, but I also want to protect the children being born into polygamist communities. We need to protect ourselves by showing the non-harm caused by consent based non-exclusivity, while illustrating how non-mono/polyamory is utterly different than polygamy.
"Polyamory is consent based, polygamy is not"
ReplyDeleteReally! Is that so? While we are not polys or polygs, some of our friends are alt lifestyles. I have also spoken with some FLDS women, they tell me their marraiges were completely consensual. If they say they consented, who are we to say "No, you didn't consent, you were brainwashed."
Also, an FLDS woman could choose to have 2 husbands, she may have to leave the church to do it, just as a Fundy Baptist or Pentecostal woman would be likely be exed from their congregation for making the same choice.
I have to agree with the 2nd Anon commenter at 10:28 AM - there is no way to distinguish between a consenting and non-consenting relationship based on the number/nature of those involved, how they are interconnected, or how they decided to declare their love and commitment to each other. Polyandry is found in certain areas of Tibet and Nepal, where women often marry all the brothers of one generation ("Fraternal polandry"). It's also found in the Masai people of Africa, India, Pacific Islands and South America. Polygamy is practised in many cultures - FLDS, Islam (where the equal treatment of all wives is specifically mandated in the Qu'ran) and so on. Are all of these asymmetric one-to-many poly relationships ALL non-consensual? I doubt it very much.
ReplyDeleteIF a relationship is abusive, and if a woman (or man) is being abused, forced, cajoled or coerced in any way by her other partners, regardless of their genders, then surely there are other more appropriate criminal charges that the authorities can lay than accusing them of being polygamous?