Polygyny and Canadian Law

Today I was researching some more information regarding Polygyny in Canada and found a lengthy Legal Report from 2006 entitled: Polygyny and Canada’s Obligations under International Human Rights Law.  Prepared by: Rebecca J. Cook, M.P.A., J.D., J.S.D., F.R.S.C. Faculty Chair in International Human Rights Co-Director, International Reproductive and Sexual Health Law Programme and Lisa M. Kelly, B.A., J.D. candidate Faculty of Law, University of Toronto. It was presented to the Family, Children and Youth Section Department of Justice Canada.

I will attempt to follow their argument and comment on each of the sections relating to the “harms” of polygamy.

“Polygyny is practiced in various different ways depending on the religious, customary, cultural and socio-economic context.”

While this is essentially true, nowhere is it mentioned in the document that Polygamy can be practiced as a foundation to the sheer aspect of there being a loving and consensual desire to be bonded with more than one person irrespective of cultural, religious, customary or socio-economic contexts. This exclusion of Love being a component to Polygamy is a fundamental fault of the whole report.

“…Part II does not mean to be exhaustive nor representative of all polygynous unions, but rather suggestive of some of the harms associated with the practice.”

The above essentially nearly negates the usefulness and completeness of the study. By stating this they have admitted that not all aspects or instances of Polygamy have been researched and only those that suit the primary hypothesis of the report have been documented.

“… the question of a husband being able to unilaterally change a family’s composition can be addressed through spousal permission requirements. They maintain that questions surrounding wives’ capacity to consent (or refuse consent) to subsequent marriages points more toward the patriarchal social context of polygyny rather than the practice itself. Sexual stereotyping, male domination and the treatment of women as property, they argue, are neither limited to polygyny nor inevitable within it.”

While the report purports to respond to the harms of Polygamy, it only focuses on Polygyny. It maintains that all polygamous relationships are primarily the result of male dominated instances where women are subjected to the practice. There is no discussion regarding Polyandry or instances of consensual relationships of equality.

“Where polygyny exists, it often stereotypes women into reproductive and service roles. As a result of such stereotypes as well as its inherent structural inequality, women can never be truly equal in polygynous unions.”

It may be true that the predominance of religious-based Polygyny, at least the documented and sensationalized instances, do reflect the above situations, to make a blanket statement such this negates the value of an equal and consensual practice of Polygamy.  In addition, the statement could equally be said to be true in Monogamous relationships. In fact it is only recently in the history of North American marriage that women have become equal and respected members of a union.  In small and remote communities in India, where Polyandry is common, it is customary that the men are in charge of the child rearing and housework and assume much of the stereotypical roles that women have been known to have dominion over in North American society.

The report discusses some historical background to Polygamy, well, essentially restricted to Polygyny. It mentions practice as a tool to maintains some assistance to impoverished societies whereby economically stricken women are brought into Polygyny in order to “save” them. A form of “Social Security”. In addition it talks of practices brought forth in the Talmudic law where Polygyny was a form of protective responsibility where brothers of deceased husband. Finally it discusses the issue where Polygyny is used to ensure the longevity of the male dynasty.  As noted earlier, Love or consent do not play a role in the decision making of the equal partners.

There is some mention of the Qu’ran’s allowance of polygyny. This appears to be limited to the issue of fathers being killed in acts of violence or political upheaval.

“And if ye fear that ye shall not be able to deal justly with the orphans, marry women of your choice, two or three, or four…

This is the only mention within the text that talks of a compassionate reason for polygyny. While it again does not refer to choice or Love, it does distance itself from the Male dominated practice of Polygamy.

Dwelling on the past, the report describes the Mormon justification for Polygyny:

“Under the “law of priesthood” a man “cannot commit adultery with that that belongeth to him and to no one else. And if he have ten virgins given unto him by this law, he cannot commit adultery, for they belong to him… If any man have a wife… and he teaches unto her the law of my priesthood, as pertaining to these things, then shall she believe and administer unto him, or she shall be destroyed,” saith the Lord your God.

Using history as a basis for its hypothesis it notes that the practice of Polygyny is predicated on the assumption that women are dependent and obedient beings whose proper place was in the domestic sphere raising children helped to reinforce polygamy. In addition it notes Joseph Smith’s revelation as a noteworthy characterization of men  as having strong and “inexhaustible” sexual needs further perpetuated the theology of plural marriages.

They assert that while Polygamy, for the most part began with some worthy rationales, the modern practice encourages and reinforces a patriarchal conception of family. It quotes the following as a foundation for the “harms” of Patriarchal Polygamy:

“…any kind of group organization in which males hold dominant power and determine what part females shall and shall not play, and in which capabilities assigned to women are relegated generally to the mystical and aesthetic and excluded from the practical and political realms, these realms being regarded as separate and mutually exclusive.”

Again, Love and informed consent does not play a part in the acceptance of a Polygamous marriage. What if it is not predicated on the sole will and desire of the Man in the case of Polygyny? If so, the above does not apply.

As proof of their argument, they appear to have found one of the most socially inept and backward examples in a French man from Mali who stated:

“…when my wife is sick and I don’t have another, who will care for me?… [O]ne wife on her own is trouble. When there are several they are forced to be polite and well behaved. If they misbehave, you threaten that you’ll take another wife.”

How does one argue against this? One can not refute that there are those in society that are somewhat ill-informed or socially inept. However, one cannot base ones whole perception of a worldwide practice on the views of this person. This would be tantamount to saying that all people from the American South are racists after interviewing on Klu Kluts Klan member.

It is argued that the threat of a man taking another wife is used as a deterrent and tool to keep women “in their place” within the home. Therefore even within Monogamous relationships, Polygamy is a equated as a fearful option that women would be essentially scared of. However, it has been documented within none-commune related Polygamous marriages within the LDS that some wives prefer to have the man take another wife to lessen the burden on them and to assist in the family duties. This is outside the religious arguments for Polygamy.

“Where [Polygyny] stereotypes women into reproductive or service roles, polygyny operates under an assumption of masculine superiority and feminine inferiority.”

Again this is a rather large assumption and blanket statement with no real foundation except to look at a limited number of examples.

“As a party to the Women’s Convention, Canada has an obligation to ensure that it protects women’s human rights in the “private” realm, and in doing so acknowledge the connection between private subordination and an inability to fully exercise one’s rights publicly. Article 3 of the Convention, which requires States parties to take:

all appropriate measures, including legislation… for the purpose of guaranteeing [women] the exercise of human rights and fundamental freedoms on a basis of equality with men,”

Agreed. However what does this have to do with the actual practice of Polygyny. And as such, what if a Polygamous relationship does promote equality between men and women? How then does this act as an infringement on any Canadian Law?

“In addition, Article 5 imposes a specific duty on States parties to take all appropriate measures:

(a)   To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”

Again: Agreed to an extent. It could be argued that what would the State have a right to say if a Woman (or a Man for that matter) decides, on their own volition, to accept a stereotypical role? What if a Woman decides to stay home with the children and do the housework? Should be denied the right to do so by the State because it supports stereotypes? On an even larger note, what right does the State have to “modify the social and cultural patterns of the conduct” of anyone?

“Where patriarchal practices such as polygyny are legally or de facto permitted through a lack of enforcement, women’s ability to freely and fully participate in society is undermined.”

This is a rather amateur assumption with no basis of ascertaining its validity.

“In particular, polygyny denies couples exclusive sexual intimacy and the opportunity to build an exclusive life together. Moreover, it hinders the equal sharing of both material and emotional attention. In turn, it precludes the opportunity of creating something unique with another partner because of the expectation or at least the prospect of another party being introduced into the marital union and interrupting the relationship.”

All I can say to this is: WHAT? Where does it say that exclusivity is always beneficial? What is the definition of “an exclusive life together”? How does Polygamy negate the ability to share both material and emotional attention? This is based on the assumption that Love is a finite commodity and that there can only be so much to share. Many instances of consensual and equality-based Polygamy will argue this point as being false. A parent has every ability to Love all of their children equally no matter how many there are. Why would this not be possible for marrital partners?

“…although de facto “serial polygyny” exists within many cultures through adultery, divorce, and re-marriage, it is not something that marital law should promote de jure.”

One cannot include adultery, divorce and re-marriage in the realm of Polygamy. Not only is this a contradiction in terms and they do not go together, it could be argued that Polygamy can remove the threat of adultery, divorce and re-marriage by allowing the consensual and aware communication between all partners. By being open to communicate ones needs and desires within a marriage is key. By keeping this openness , trust and communication alive within the relationship(s) negative aspects, normally associated with Monogamy, can be avoided.

There is a significant section within the report that deals with Co-Wife competition.

“The interruption of an exclusive emotional and material relationship is often exacerbated by competitive co-wife relationships. A review of anthropological literature suggests that jealousy, tension, strain, and competitiveness are common among plural wives. While there are many examples of cooperative co-wife relationships, the majority of accounts emphasize negative feelings between wives in polygynous families. Cooperative polygynous relationships are evident, however, among the Masai of Africa where co-wives sometimes have close and supportive relationships.[55] Likewise, the senior wife within polygynous unions among the Mende of Africa may nurture a junior wife in an almost maternal fashion. Polygynous unions within other cultural contexts may also be typified by both collaboration and competition. Among the !Kung of Africa, for example, co-wives may cook together or take turns cooking, share fire and shelter, and even nurse one another’s infants. Conflict can nevertheless arise in other aspects of day-to-day life including access to their husbands and resource distribution.”

Somehow, despite the numerous examples above, the authors still maintain their assertion that Polygamy, or in their case Polygyny, promotes harm to the relationships between co-wives.  Again, as mentioned earlier, the promotion of solid basis of communication and trust and respect can alleviate the issues of jealousy and competitiveness.  As mentioned in a National Geographic video article on the practice of Polyandry in India, many polygamous relationships rely on a strict aspect of equal scheduling and cooperation. This, coupled with fair and equitable respect and communication, as demonstrated in the examples noted above, can argue for the beneficial aspects of Polygamy.

The examples used for the negative aspects of Polygamy with regards to combativeness are shown to primarily be that of the inability of the Male in the relationship to divvy up his time among his wives and of harbouring favouritism for a particular wife (usually the new one). This can not be an argument for the illegality of Polygamy. It can be an argument for educating the Male better and perhaps counseling them on how to better serve the family but it cannot be argued that all Polygamous relationships are this way.

“Polygyny has long been associated with family stress and mental illness among women. As mentioned above, the practice can lead to co-wife jealousy, competition, and an unequal distribution of domestic resources—all tending to create acrimony among wives and between children of different wives.  These factors are believed to explain the greater prevalence of mental disorders among women in polygynous families in comparison to those in monogamous marriages and relative to the general population.”

It is unclear where their information is coming from when they say that Polygamy has “long” been associated with these negative aspects. The authors go on to provide several statistics relating to the prevalence of mental disorders and poor showing in scholastic achievement in children due to Polygamy. Most of their statistics come from Third World countries where social and economic concerns can easily outweigh and cloud the results of statistical research. When a woman is asked about her self-esteem and prevalence of depression and stress, it would be hard to separate the causal factors when confronted with hunger, drought, political upheaval and social prejudices. In addition, the questions that were asked of the study participants are not related in this study. How are we to be sure the questions were asked in a non-ambiguous manner.  Finally, what bearing do these studies have on the argument that Polygamy should be banned within Canadian society? The social and political aspects are far removed from the Third World socio-economic issues. There can be no correlation.

“Of particular significance in these findings of low self-esteem and loneliness were the reasons reported by polygynous women for why their husband took a second wife. The four common reasons for Bedouin-Arab remarriage used in the study included:

  1. an exchange marriage (where two men marry each other’s sisters)
  2. the number of daughters the first wife had
  3. the age of the first wife (that she was seen as “old”), and
  4. other factors including situations where husbands were persuaded to marry a woman by his extended family.”

Again, what bearing does the above not only have on Canadian Society but on instances where a second or third partner is brought into a loving and consensual relationship? The above reasons do not apply.

“… Adolescent girls and women in many countries lack adequate access to information and services necessary to ensure sexual health. As a consequence of unequal power relations based on gender, women and adolescent girls are often unable to refuse sex or insist on safe and responsible sex practices. Harmful traditional practices, such as …polygamy… may also expose girls and women to the risk of contracting HIV/AIDS and other sexually transmitted diseases.

Again, their examples come predominately from Polygynous marriages within the Third World. They talk of the spread of HIV and other sexually transmitted diseases. The lack of Education and Sexual Awareness is much less a concern within the Canadian population. And when the negative proponents of Polygamy that foster the practice of marrying underage girls are removed from the argument, there is little within the report’s findings that can be related soundly to Canadian Law.

Later, within the Canadian Context, it is argued that LDS related forms of Polygamy result in women not being able to decide on getting pregnant or that having too many babies is harmful to Women. In terms of the first argument, we are not concerned with the issue of religious-based Polygamy. And even if we were, is it not within their rights to decide not only for what reason they are having sex but how many children they have within a consensual relationship?  Finally, in the late 1800s and early 1900s it was common for Monogamous marriages to produce upwards of twelve children from a single mother. By choice. How is this any different from the practice of Polygamy?

The report supplies a section on the economic harms of Polygamy. In every instance they are referring to instances of Polygyny where women are not allowed to work and do not contribute to the household income. In all instances, the women are left to keep the house and raise the children and the burden is on the Man to bring home the income. Of course this could present a problem in terms of the economic stability of the family.

However, what if all partners do work and share the economic responsibility and run their household and family like most monogamous modern couples? This argument and example is not studied within the report and as such is not an accurate or exhaustive study of the practice of Polygamy.

In a section entitled “Harms to the Enjoyment of One’s Citizenship” the authors sole response and arguments are derived from religious-based sects that practice Polygamy. They use Bountiful, BC, as prime example of this. It is argued that women within these situations are deprived of their civil rights to be a part of society. This may be the case, however, again we are not arguing that the practices of Polygyny within societies such as Bountiful, BC, should be accepted. We are arguing that Polygamy within equal and consensual relationships be allowed to exist. In instances where Women (or Men) are considered equals within the relationship and openly practice there Civic Rights to such things as religious and political freedom, right to assembly and freedom of speech, how then do the examples brought forth from Bountiful and others apply?

“Beyond the harms to women associated with polygyny, studies also indicate that adolescents from polygynous families have lower levels of socio-economic status, academic achievement, and self-esteem, as well as higher levels of reported family dysfunction than children from monogamous families.”

Following from the comments above related to the rights of the partners within the area of citizenship, the examples of such communities as Bountiful are brought forth to argue the above statement.

It is argued that Polygamy (again in this instance Polygyny) is to blame for the poor economic and social prowess of children and their ability to adjust to Life. Again, one must not look to Polygamy as the cause but to the insular aspect of the commune-like compounds of such communities as Bountiful. Having multiple partners does not logically result in the poor performance of children and stunted upbringing. A removal from society and a lack of proper guidance and interaction in the world around them, however does.  One can not separate the aspects of Polygamy from the overall qualities of life within a Religious-based compound such as Bountiful. This is impossible to do as all aspects of life within this type of system are interlinked and inseparable.

In all the list of harms related to Polygamy can not be attributed to all forms. However, despite this and other faults within the report, these “harms” are used as a rational for the support for maintaining that Polygamy should be illegal.

Perhaps the fault is not totally with the authors of this report although their sheer bias, Militant Feminism and lack of an objective approach to the subject does undermine the reports validity. It can be argued that there are just not enough documented examples of well-functioning, equal, consensual and healthy Polygamous relationships. This problem lies with the practitioners of such relationships. We need to bring ourselves forward in order to balance the perspective and bring light to the positive aspects and remove the reliance on examples for far remove social climes as those found in Africa and Asia.

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3 Responses to Polygyny and Canadian Law

  1. rodgerlevesque says:

    I’m going to think about this for a bit before writing.
    With this, I’m just letting you know that your post has been read and has got me thinking…

  2. Thanks George for bringing this report to my attention, and for your thoughts on the report. I am limiting my remarks. When you write “All I can say to this is: WHAT?” you should have stopped there. That paragraph you pulled contains the kernel of the report’s error. I’d like to go on about this, but I think it’s important to keep comments short and to the point. (You can see already I have difficulty with this…)

    In the service of brevity of comment, I’ve reduced your post to three lines.

    This exclusion of Love being a component to Polygyny is a fundamental fault of the whole report.

    On an even larger note, what right does the State have to “modify the social and cultural patterns of the conduct” of anyone?

    …their sheer bias, Militant Feminism and lack of an objective approach to the subject does undermine the report validity.

    It might be my Militant Feminism firing up but I tend to agree with the report. I think you might agree with it as well, but for your sheer bias and lack of an objective approach to the subject.

    What is the object/subject of the report? And what is your object/subject. Your subject is Love-based “well-functioning, equal, consensual and healthy Polygynous relationships.” This is not the subject of the report. The report is dealing with patriarchal religion-based unions. There is nothing equal or consensual about the subject/object of the report.

    I would argue that the states right to modify the conduct of anyone is reciprocated and validated by anyone’s right to modify the conduct of the state. I recognize that we do not currently live in a democratic state, but the goals of this report are conducive to a future democracy. The goals of the report are the practical exercise of equal rights. Their argument is that that actually practiced polygyny (many wives) is unequal and should, in the interest of equality, be prohibited. I , in my militant feminism follow their argument to it’s logical conclusion.

    I also recognize their bias toward monogamous marriage. When they write:

    “In addition to interfering with the right to private and family life, polygyny as practised in many cultural contexts also violates women’s rights to be free from all forms of stereotyping.
    Article 5 of the Women’s Convention requires States parties to: take all appropriate measures to modify the social and cultural patterns of conduct of men and women,
    with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”

    their cultural bias blinds them to the stereotyped roles for men and women in traditional western marriage. A truly militant feminist would call for the abolition of marriage in all forms. We are opposed to domination in all forms mutual of otherwise.

    But I wonder if the household you seek to see legalized might not conform to the conditions sought in the report? Again the institution of marriage, even in Canada, is a bastion of inequality, and stereotypical roles, so the scapegoating of polygynous cultures, smacks of Muslim bashing. We have our own problems to deal with before outlawing African practices. I do not defend these practices, but to go after others before dealing with the inequality and cultural roles enmeshed in our own practices, seems more like dodging responsibility. But I was saying that the household you seek might conform to the equality and role-based freedom called for on the international stage.

    “It is this commitment to a real transformation of institutions, such as polygyny, that provides the greatest protection for women within the family. Where States parties legally encourage, condone, or simply ignore unequal familial practices of polygyny, they perpetuate male paradigms of power, resulting in women’s de facto and de jure inequality.
    In striving to achieve this transformation, particularly within the familial realm, Article 16 of the Women’s Convention requires States parties:
    To take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular [to] ensure, on a basis of equality of men and women:
    (a) The same right to enter into marriage;
    (b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;
    (c) The same rights and responsibilities during marriage and at its dissolution;
    (d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;
    (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;
    (f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;
    (g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;
    (h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.

    The only problem here is the “both” in (h), but ignoring that, if the man can choose a second wife, and the woman can equally choose a second husband, the household would conform to the call for equality. And if all living within the household, regardless of sex, had equal rights and freedom to choose roles, the household would not perpetuate male power and female inequality. And such a household, which may even conform to Aristotelian ethics, should not be illegal.

  3. Pingback: A Household of Equality and Freedom « Not Left To Chance

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