Polygamous marriages have been illegal in Canada since 1892[1], and constitutes an offence under the Criminal Code of Canada. Today’s question is therefore simple: should polygamy be legal?
First, note that polyamory is not illegal in Canada (nor, for that matter, is adultery). You are allowed to be in relationship with however many people you wish. You just can’t marry more than one of them. Marriage is both symbolically and practically significant. The symbolic value I think is mostly self-evident to my audience, so I’ll just talk briefly about the practical tax implications. Marriage in Canada comes with a variety of tax benefits, which mostly entails transferring tax credits and liabilities between partners to reduce their overall joint tax burden (for some of my thoughts on Canadian taxation, see Canadian Taxation is Too Damn Complicated). Legalized polyamory would not easily fit into this framework and could enable new avenues for tax avoidance if not handled properly. However, I would like to put this aside. It is a practical issue that would need to be solved but has little bearing on the justice of legalizing polygamy.
Why is Polygamy Illegal?
Why is polygamy illegal? The 2006 research report Polygyny and Canada's Obligations under International Human Rights Law notes the following regarding polygyny (a marriage with a man and multiple wives):
Under international human rights law, there is a growing consensus that polygyny violates women's right to be free from all forms of discrimination. Where polygyny is permitted… it often relies on obedience, modesty, and chastity codes that preclude women from operating as full citizens and enjoying their civil and political rights. Within this framework, women can often be socialized into subservient roles that inhibit their full participation in family and public life.
In 2009, following the failed prosecution of two polygamous men in BC, the provincial government asked the B.C. Supreme Court to evaluate whether the prohibition of polygamy in Canada was consistent with the Charter of Rights and Freedoms. The 2011 response upheld the illegality of polygamy, with the judge concluding:
I have concluded that this… is essentially about harm…. More specifically, Parliament’s reasoned apprehension of harm arising out of the practice of polygamy. This includes harm to women, to children, to society and to the institution of monogamous marriage.
It is worth noting that though polygamy is illegal by law, there have been very few people who have actually been prosecuted under the Criminal Code’s section on polygamy. Prior to the failed 2009 prosecution, the last attempt was in 1937 (where it was ruled an adulterer was not in a polygamous relationship). Most attempted prosecutions were also directed at Aboriginal men, which suggests a racialized and colonial component to the provision.[2]
Evaluating the Risk of Harm
When I first started thinking about polygamy, my initial sentiment was that it should remain illegal in line with the reasoning above. Though I have no inherent issue with polygamy, it does open up avenues for abuse and harm, particularly against women and children. However, I have since changed my mind.
The primary question that I have posed to myself is this: is polygamy likely to result in significantly more harm than our current institution of marriage? It would be a monumental task to meaningfully evaluate data on this subject, but my intuition is that the differences would be minimal. If polygamous marriages are subject to the same restrictions as monogamous ones (e.g., willing, above a certain age, etc.), then I do not think polygamy will be notably more harmful than monogamy. It is not difficult to find examples of harmful monogamous marriages, of course. I was primarily persuaded not by the harmlessness of polygamy so much as the harmfulness of monogamy: if we allow monogamy, do we really stand on firm ground to deny polygamy? The precedence has already been set, and it seems inconsistent to allow one but not the other, at least on the grounds of preventing harm.
Summary
Polygamy is illegal in Canada. In recent years this has been reaffirmed and justified on the grounds that polygamy is harmful to women and children. I am not persuaded by this argument. It seems unlikely to me that polygamous marriage would cause significantly more harm than monogamous marriages.
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