09) BAUMAN RULING STRIKES A BETTER BALANCE

By Kimball Cariou

     The legal ruling on Canada's law banning polygamy, handed down by BC Supreme Court Chief Justice Robert Bauman on Nov. 23, continues to draw both praise and criticism. Bauman was rendering a highly complex decision on matters which seem related, but are actually very different.

     Written in 1890 to target Mormon settlers, S. 293 of the Criminal Code has been unenforced for decades. This vague but sweeping statute provides up to five years in prison for more than two people who are in "any kind of conjugal union."

     The case was launched to test the validity of S. 293 as a tool to address the practices of the patriarchal FLDS Mormon cult based in Bountiful, British Columbia. But the broad scope of the legislation means that it could potentially be used by the state to criminalize large numbers of Canadians who are "guilty" of nothing more than non‑monogamous sexual activity, or of participating in family forms which differ from the model promoted by the capitalist state and many religious outlooks.

     The Bauman ruling will likely be appealed, perhaps directly up to the Supreme Court of Canada. But it would be unfortunate if a lengthy appeal process delayed prosecutions of the Bountiful patriarchs. The evidence presented to Justice Bauman, and the long history of the FLDS cult in Canada and the U.S., makes it clear that the "plural marriage" Mormon doctrine has long become a convenient cover for a shocking pattern of child rape. The beneficiaries have been a handful of powerful men who supply themselves with "celestial wives" to satisfy their personal desires for sex with young girls. Other victims include the young non‑elite males of Bountiful, who are poorly educated, and often must leave their homes and families to seek employment and the chance of normal human relationships elsewhere.

     The Bountiful cult is supported financially by the taxpayers of British Columbia, who have unwillingly subsidized the FLDS religious schools for many years. This scandal is a clarion call to end public funding of private religious schools, which violates the principle of separation of church and state. Those who engage in child sex abuse must be prosecuted under relevant Canadian legislation, and the Bauman ruling helps establish that the human rights of women, youth and children trump "religious beliefs".

     The Bountiful cult is an extreme form of patriarchal control over women and children. On one level, this form of "polygamy" parallels the social system under which we live. Capitalism is also a form of human relations based on control by a tiny minority of (mostly male) bosses, who impose a range of forms of exploitation on working people. Unfortunately, the Bountiful abuses have sometimes been lumped together with ideas and practices which are the opposite of patriarchy.

     To give one example, a literal reading of S. 293 would seem to open the prosecution of individuals who practise non‑monogamous forms of family relations commonly known as polyamory. Such people reject the patriarchal control of women which is sometimes reinforced through marriage, the very institution which Justice Bauman presents as a "core value" of western society.

     This part of the ruling raises troublesome questions. Just because a social institution has ideological hegemony, is it above criticism? Given the figures regarding divorce rates, infidelity, violence, and abuse within families, the monogamous nuclear family model is no guarantee for happiness. As Frederick Engels recognized, the subordination of wives and the shift towards the nuclear family from larger kin networks were associated with the historic development of private property.

     Other family forms must be considered on their own merits. The Canadian Polyamory Advocacy Association (CPAA) was a key intervenor in the case, arguing that many polyamorous women, as well as men, freely choose to have more than one partner. They fear that the wording of the 120-year-old statute might be used to criminalize egalitarian, secular, long-term relationships. Justice Bauman's decision clarifies that S. 293 does not apply to unformalized polyamorous relationships, although other questions are left unresolved.

"Polyamorists are relieved they can be in loving, egalitarian, conjugal relationships without criminal sanction," said CPAA legal counsel, John Ince. "Polyamorists who are dealing with immigration or family custody issues for instance now need no longer worry about being considered to be criminals".

     In the CPAA's view, the real issue is not the number of people in any given relationship; the health of the relationship and family is what matters.

     This should be the focus of debate if and when Parliament rewrites polygamy laws. Will a new law be used to impose certain narrow religious precepts on the entire population, at the expense of those who establish non-traditional but freely-chosen relationships? Given the influence of fundamentalist views within the Harper Tory caucus, this could pose serious implications.

     In the meantime, the Bauman ruling, on balance, advances the rights of Canadians to be protected against patriarchal exploitation, while also

(The above article is from the January 1-31, 2012, issue of People's Voice, Canada's leading communist newspaper. Articles can be reprinted free if the source is credited. Subscription rates in Canada: $30/year, or $15 low income rate; for U.S. readers - $45 US per year; other overseas readers - $45 US or $50 CDN per year. Send to People's Voice, c/o PV Business Manager, 706 Clark Drive, Vancouver, BC, V5L 3J1.)