Closed religious communities, like the one in Bountiful, pose special challenges in liberal democracies. They are not integrated into the broader community, nor do they wish to be. They typically do not recognize the rights and duties of citizenship that most of us take for granted. As a result, they have, at best, a deeply ambivalent attitude toward recognizing any legitimate government authority to regulate their affairs.
Attempts by government to intervene in these communities therefore require careful judgment. For if outsiders are to have any dialogue or productive role in coming to terms with and addressing problems within the community, they need to enlist at least the grudging cooperation of a significant number of its members.
In a welcome announcement made this week, Attorney General Geoff Plant indicated the provincial government has undertaken to investigate a number of serious and credible allegations of child and sexual abuse, a failing education system in Bountiful, and inability to access social services and family law and property rights. Plant added that government would act with sensitivity toward the community’s culture and history. This is essential, but will require careful thought.
The key issue is whether the government will seek to prosecute polygamy in Bountiful, which Plant implied it would do. There are compelling practical and principled reasons to think that this would be a terrible and, potentially tragic, error in judgment.
To begin with, members of Bountiful will regard a test case of the Criminal Code polygamy law as a direct attempt to forcibly dismantle their community, which is founded on polygamous principles. Consequently, a test case is bound simply to shut the door on any prospect of meaningful dialogue or cooperation.
Having any sort of effective access to the community will be difficult in any event. But it is unrealistic to think that members would have any reason to cooperate, if they believe that the government aims to dismantle the foundations of their community. Thus, the government’s whole project may be undermined before it gets started.
As well, any attempt to use the law to forcibly dismantle polygamous relations will only further traumatize those who are already victims.
Despite the fact that many of these relationships may not have been established by anything resembling informed consent, the parties and their children may be as emotionally committed to each other as you or I are to our own families. Enforcing the separation of these families would be an almost unspeakably ugly, distasteful process. Worse, the psychological costs would be borne entirely by those who are least equipped to bear them. Such double harm is bound only to confirm members’ worst fears about the outside world and further alienate them from agencies that could offer assistance should they need it.
Efforts to use the criminal law to dismantle polygamous communities have been attempted elsewhere already. The result has been to drive polygamous relations further underground. That has placed them further away from any sort of public regulation. Hence, abuses may actually increase if anti-polygamy laws are enforced.
In the worst case scenario, we may have another Waco at our doorstep. This is not to be discounted. The Bountiful sect believes that Armageddon is imminent. It is anyone’s guess as to what their response will be if they perceive an attempt to forcibly dismantle their community.
The prosecution itself is also bound to be ineffective. The current polygamy statute is a Victorian anachronism. It is drafted so broadly that any conjugal relationship between more than two persons counts as polygamy. Thus, the likely best case outcome for anti-polygamy activists is that government will be asked to draft and pass a new law after 5 to 8 years of court battles. What is the point, then, of going to these efforts when the outcome is so uncertain and the practical risks and costs are so great?
These are compelling practical reasons to avoid prosecuting polygamy. But there are equally strong principled reasons to avoid this approach. For the state has no legitimate interest in telling adults who they can have conjugal relations with as long as their actions do not directly violate the rights of other citizens. Contrary to what is often argued, polygamy per se does not do this.
In a recent report, this newspaper described the putatively new phenomenon of “polyamoury” among mainly young adults, including members of the middle class. Polyamoury is simply a word coined by bourgeois urban bohemians for what are committed long-term conjugal relations involving more than two persons – that is, polygamous relationships.
The report illustrated two points. First, these individuals’ lifestyles are not inherently abusive and do not deserve to be criminalized, although they would certainly be criminal under any existing definitions of polygamy. Second, it is not polygamy that is inherently exploitative but frequently it is the context in which polygamy is practiced that is exploitative.
The obvious response, then, is to address the problems of context that give rise to exploitation and abuse. In the case of Bountiful, this includes acting to ensure that children receive an adequate education, that sexual exploitation and child abuse are not permitted, that people or families who are forced to leave the community are protected by family law and other legal instruments to protect their property rights, and that specialized social services are available.
Addressing these issues will involve sober, wise judgment on the part of government. This should begin by recognizing that there will be no quick fix for any problems that are to be found and, in particular, that prosecuting polygamy is bound to be counterproductive and diverting from the careful deliberations about how to address more pressing, substantive problems.
This appeared in the July 28, 2004 edition of the Vancouver Sun.