Angela Campbell is a law professor at McGill University and author of Sister Wives, Surrogates and Sex Workers: Outlaws by Choice?
The B.C. Supreme Court's recent decision refusing to quash polygamy charges against Winston Blackmore, a leader in the fundamentalist Mormon community of Bountiful, B.C., may be in line with the current state of Canadian criminal law. But, despite what public officials involved with this case will argue, his prosecution and possible conviction for polygamy are not legal developments that serve the interests of women.
For decades, the controversial criminalization of polygamy under the Criminal Code has been politically and publicly rationalized as a means of protecting vulnerable people, notably women and children. Mr. Blackmore is said to have more than 20 wives and scores of children; it is further reported that some of his brides were not yet adults when they were married by religious or "celestial" ceremony.
It would seem clear that he is no champion of contemporary feminism. The prospect of his encountering a criminal trial, or even jail time, won't strike many as a travesty of justice. Just the same, how convincingly can his prosecution for polygamy be heralded as yielding justice for women, whether in Bountiful or in other polygamous communities, or within Canada more broadly?
Prosecuting polygamous men will invariably bring their wives into direct contact with the criminal justice system. They may be viewed as complicit in their husband's marital arrangements, and the terms of Canada's polygamy ban are broad enough to capture husbands and wives alike who are involved in polygamous marriage or co-habitation.
For years, criminal prosecution loomed like the sword of Damocles over Bountiful. The current case brings this threat to bear on the community in a real and concrete way. Given the implications of this, a polygamous wife may be loath to seek out necessary public resources for herself or her children if doing so risks self-exposure as a plural wife. And if her domestic situation really is abusive or coercive, odds are strong that she will refrain from seeking support from the police, health-care providers or social workers.
Her reticence will be especially acute given that parents who face criminal investigation and prosecution are likely to see child-welfare authorities become involved in their families.
A legal response to polygamy that genuinely seeks gender equality and the protection of women would do more than prosecute a handful of men who likely will be valorized as heroes and martyrs in their own circles.
Instead, it would promote the recognition of polygamous unions if only to ensure that spouses can claim and benefit from the property sharing and alimentary support obligations that accompany monogamous partnerships.
Moreover, it is incongruent to argue that women are victimized by polygamy while also holding them criminally liable for the practice. Thus, there is some serious thinking to do about whether a plural wife who seeks required public resources for herself or her children should benefit from prosecutorial immunity against polygamy charges.
None of this suggests that criminal charges are inopportune for offences that are unequivocally harmful, such as sexual assault, sexual exploitation or sexual interference with a minor. Rather, the issue is whether prosecution for polygamy itself can legitimately continue to be touted as a feminist move.
As the Blackmore case develops in the months to come, we would do well to be wary of the claim that his prosecution for the offence of polygamy is moving forward in the name of the women of Bountiful, or women more generally. A more earnest and compelling justification is necessary.
Alternately, if the state is truly concerned about women in polygamous families, other more viable routes are open to it, none of which involve criminal prosecution for polygamy.