Published online by Cambridge University Press: 18 July 2014
This article develops research strategies designed to access and record the narratives of women within a plural marriage society, with a view to enhancing legal and popular knowledge about polygamy in Canada. It achieves this end through reliance on scholarship that explores methods for conducting reflexive research from a feminist viewpoint. Two particular research strategies explored in the feminist scholarship are considered here with particular reference to Bountiful, British Columbia, a community where plural marriage is openly practised. These strategies require the researcher to (1) hear and give credence to the narratives of women regarding their experiences as polygamous wives; and (2) engage in critical self-reflection about her own cultural and normative reference points and assumptions. These strategies are relied on here to formulate a distinctly juridical inquiry that rejects any presumed preference of state over cultural “law” while at the same rigorously testing claims about gender and tradition grounded in cultural norms. Applying this inquiry to the study of polygamy in Bountiful should serve to enrich our understanding of how women are affected by plural marriage, and by law's response to this practice, in this distinct place.
Cet article développe des stratégies de recherche pour obtenir et consigner les récits de femmes qui vivent dans des sociétés pratiquant le mariage plural, et ceci, dans le but d'approfondir les connaissances légales et populaires sur la polygamie au Canada. Pour parvenir à cet objectif, l'article fait appel à la littérature qui explore les méthodes utilisées pour mener des recherches introspectives d'un point de vue féministe. Deux stratégies de recherche étudiées dans la littérature féministe sont considérées, notamment en référence à Bountiful, Colombie-Britannique, une communauté où le mariage plural est ouvertement pratiqué. Ces stratégies exigent de la chercheuse : (1) qu'elle écoute et ajoute foi aux récits des femmes relatant leurs expériences en tant qu'épouses polygames; et (2) qu'elle procède à une autoréflexion critique de ses propres références et a priori culturels et normatifs. Ces stratégies sont utilisées ici pour formuler une enquête proprement juridique, qui rejette toute préférence présumée du droit étatique par rapport au « droit » culturel, tout en examinant de façon rigoureuse les arguments à propos du genre et des traditions fondées dans les normes culturelles. La mise en application de cette enquête dans l'étude de la polygamie à Bountiful devrait enrichir notre compréhension de la manière dont les femmes sont affectées par le mariage plural, ainsi que par la réponse du droit envers cette pratique, à cet endroit précis.
1 Campbell, Angela, “How Have Policy Approaches to Polygamy Responded to Women's Experiences and Rights? An International, Comparative Analysis,” in Polygamy in Canada: Legal and Social Implications for Women and Children: A Collection of Policy Research Reports (Ottawa: Status of Women Canada, 2005)Google Scholar.
2 Canadian law generally rejects polygamy. The Criminal Code, R.S.C. 1985, c. C-46, prohibits the practices of “bigamy” (s. 290(1)) and “polygamy” (s. 293(1)). Bigamy involves participating in the ceremony of marriage while already married, or with someone who is known to be married. Rather than the act of marriage, polygamy centres on the status of having more than one spouse, or being in a conjugal union with more than one person, simultaneously. See Campbell, “How Have Policy Approaches,” 1. In this article, the term “polygamy” refers to the simultaneous sharing of a husband by two or more women. Canada's civil laws also resist the idea of plural marriage. See Civil Marriage Act, S.C. 2005, c.33, which limits the number of spouses who may marry to two.
3 Two logistical constraints limited my ability to base my SWC research in part on interviews with the women of Bountiful. The first of these was time, given that the SWC reports were prepared in just three months. A second obstacle was financial: because my budget from SWC did not include funding for travel to Bountiful to conduct empirical research, I was unable to pursue this avenue of investigation.
5 For a discussion of the centrality of women's experiences to a feminist research inquiry focused on the interface between state law and religious law, and on the normative plurality within each of these frameworks, see Van Praagh, Shauna, “The Chutzpah of Chasidism,” Canadian Journal of Law and Society 11 (1996), 193CrossRefGoogle Scholar.
6 Arguably, the use of the term “cultural practices” is problematic; all practices can be traced to some idea of culture, and distinguishing between behaviours adopted for “cultural” reasons and those adopted for other reasons (e.g., economic or social) is next to impossible. See the discussion in note 56 below and the accompanying text. In this article I use the terms “culture” and “cultural practices” as they appear in legal scholarship and in popular discussions in Canada pertaining to multiculturalism and approaches to accommodating diversity. At the same time, I recognize that this use leaves aside some of the most important and complex questions inherent to the notion of culture, such as what exactly it embraces and what ends can and should be effected by invoking this term.
7 For academic studies see Cook, Rebecca J. and Kelly, Lisa M., Polygyny and Canada's Obligations under International Human Rights Law (Ottawa: Department of Justice Canada, 2006)Google Scholar; Peters, Marla, Pearls Before Swine: Secrecy in a Mormon Polygynous Colony (unpublished MA thesis, University of Alberta, 1994)Google Scholar; Bala, Nicolas, Duvall-Antonacopoulos, Katherine, MacRae, Leslie, and Paetsch, Joanne J., “An International Review of Polygamy: Legal and Policy Implications for Canada,” in Polygamy in Canada: Legal and Social Implications for Women and Children: A Collection of Policy Research Reports (Ottawa: Status of Women Canada, 2005)Google Scholar; Alberta Civil Liberties Research Centre, “Separate and Unequal: The Women and Children of Polygamy,” in Polygamy in Canada: Legal and Social Implications for Women and Children: A Collection of Policy Research Reports (Ottawa: Status of Women Canada, 2005)Google Scholar.
Similar insights are offered in popular accounts of polygamy: see Committee on Polygamous Issues, Life in Bountiful – A Report on the Lifestyle of a Polygamous Community, funded by the BC Ministry of Women's Equality (April 1993); Palmer, Debbie and Perrin, Dave, Keep Sweet: Children of Polygamy (Lister, BC: Dave's Press, 1994)Google Scholar; Krakauer, Jon, Under the Banner of Heaven: A Story of Violent Faith (New York: Anchor Books, 2004)Google Scholar; Jessop, Carolyn, Escape (New York: Broadway Books, 2007)Google Scholar. For media reports on the topic see Richard C.C. Peck, Report of the Special Prosecutor for Allegations of Misconduct Associated with Bountiful, BC: Summary of Conclusions, http://www.canada.com/vancouversun/news/extras/bountiful.pdf; Levitz, Stephanie, “Prosecutor tells BC: find out once and for all if anti-polygamy law stands,” Maclean's, August 1, 2007Google Scholar; Bramham, Daphne, “A win for those who want to halt abuses at Bountiful: Activists don't get all they want from Victoria, but it's a start,” Vancouver Sun. August 21, 1997Google Scholar.
8 As Marie-Claire Belleau indicates in her work on mail-order brides, even apparently mundane questions—Does the bride drive, run errands, shop, and have money, a social network, and the ability to speak the language of the mainstream?—can allow us to access women's narratives about the rationale underlying their adherence to practices that seem to undercut their liberty. Belleau, Marie-Claire, “Mail-Order Brides in a Global World,” Alberta Law Review 67 (2003), 602Google Scholar.
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14 Some feminist scholars have noted that it is not only women but also children who are typically the most vulnerable members of minority groups. See Van Praagh, Shauna, “Faith, Belonging and the Protection of ‘Our Children,’” Windsor Yearbook of Access to Justice 17 (1999), 154Google Scholar; Malik, , “The Branch on Which We Sit,” 215Google Scholar.
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16 Bunting, Annie, “Theorizing Women's Cultural Diversity in Feminist International Human Rights Strategies,” Journal of Law and Society 20 (1993), 18CrossRefGoogle Scholar, observes that “we should be wary of speaking for women whose culture is the object of scrutiny” and would distinguish between recognizing alliance and solidarity among women as “keys to feminist politics,” on the one hand, and an imposed politics, on the other.
17 Abu-Lughod, Lila, “A Community of Secrets: The Separate World of Bedouin Women,” in Feminism and Community, ed. Weiss, Penny A. and Friedman, Marilyn (Philadelphia: Temple University Press, 1995)Google Scholar.
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20 Kim, , “Toward a Feminist Theory,” 92Google Scholar, notes that such internal reform prompted by female activists has frequently been ignored by human rights groups resistant to engaging with matters of “culture.” Madhavi Sunder also illustrates how women's activism in the Muslim world challenges the binary divide between law (typically viewed as a public space), on the one hand, and religion and culture (usually seen as private zones), on the other. Such activism within cultural communities allows women opportunities to reclaim both spheres. Sunder, Madhavi, “Piercing the Veil,” Yale Law Journal 112 (2003), 1399CrossRefGoogle Scholar.
22 “Bustup in Bountiful” (Winston Blackmore, interview by Hana Gartner), The Fifth Estate, CBC, January 25, 2006, http://www.cbc.ca/fifth/bustupinbountiful/interview.html.
23 In May 2006, CBC reported that Citizenship and Immigration Canada had ordered the deportation of three American women married to Winston Blackmore, These women, who among them have 16 Canadian children (all of whom are permitted to remain in Canada), saw their immigration claim on humanitarian and compassionate grounds denied. They are not eligible to immigrate to Canada as spouses, since their marriages are not legally recognized, and they do not qualify as skilled workers or students. “3 Bountiful wives ordered out,” CBC (British Columbia), May 12, 2006, http://www.cbc.ca/bc/story/bc-bountiful20060512.html. Blackmore stated that he had filed a complaint against immigration authorities, alleging that his wives were being discriminated against because of their polygamous marriages. See “Bountiful wives ready for immigration fight,” CBC (British Columbia), May 16, 2006, http://www.cbc.ca/bc/story/bc-bountiful-wives20060516.html. The final outcome of this process is not known.
24 See note 44 below and the accompanying text.
25 Careful deliberation about practical methodological skills and approaches is required before the actual initiation of fieldwork in a place like Bountiful. A reflection on the most appropriate and effective qualitative research techniques is beyond the ambit of this article, but a body of writing on feminist methods for carrying out interviews and discussions within fieldwork will be invaluable to this later stage of my research. See, e.g., Mauthner, Melanie, Birch, Maxine, Jessop, Julie, and Miller, Tina, Ethics in Qualitative Research (Thousand Oaks, CA: Sage, 2002)CrossRefGoogle Scholar; Mauthner, Melanie, “Snippets and Silences: Ethics and Reflexivity in Narratives of Sistering,” International Journal of Social Research Methodology 3 (2000), 287CrossRefGoogle Scholar; Seidman, I.E., Interviewing as Qualitative Research: A Guide for Researchers in Education and the Social Sciences (New York: Teacher's College Press, 1991)Google Scholar. Moreover, ethnographic studies that have investigated maligned cultural practices and groups, especially those that have focused on women, will be equally important sources. See, e.g., Harding, Susan Friend, The Book of Jerry Falwell: Fundamentalist Language and Politics (Princeton, NJ: Princeton University Press, 2000)Google Scholar; Brown, Karen McCarthy, Mama Lola: A Vodou Priestess in Brooklyn (Berkeley: University of California Press, 2001)Google Scholar.
26 The radical feminist would say that such failure to perceive male dominance is linked to the overpowering influence of patriarchal ideology. See MacKinnon, Catharine A., Toward a Feminist Theory of the State (Cambridge, MA: Harvard University Press, 1989), 115–17, 204Google Scholar; MacKinnon, Catharine A., Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard University Press, 1987), 40–41Google Scholar.
27 This language is used explicitly by Susan Moller Okin, who suggests that older women are especially vulnerable to subjugation that colours their ability to identify oppression in their community's cultural practices. Okin, Susan Moller, “Is Multiculturalism Bad for Women?” in Is Multiculturalism Bad for Women? ed. Cohen, Joshua, Howard, Matthew, and Nussbaum, Martha C. (Princeton, NJ: Princeton University Press, 1999), 24Google Scholar; see also Kim, “Toward a Feminist Theory,” 94.
29 Bartlett, Katharine T., “Feminist Legal Methods,” Harvard Law Review 103 (1990), 875CrossRefGoogle Scholar; Kim, , “Toward a Feminist Theory,” 99–100Google Scholar; Sheppard, Colleen, “Equality Rights and Institutional Change: Insights from Canada and the United States,” Arizona Journal of International and Comparative Law 15 (1998), 167Google Scholar.
30 See Engle, Karen, “Female Subjects of Public International Law: Human Rights and the Exotic Other Female,” New England Law Review 26 (1992), 1525Google Scholar. See also Engle, Karen, “International Human Rights and Feminisms: When Discourses Keep Meeting,” in International Law: Modern Feminist Approaches, ed. Buss, Doris and Manji, Ambreena S. (Portland, OR: Hart Publishing, 2005), 57–58Google Scholar; Bunting, , “Theorizing Women's Cultural Diversity,” 18Google Scholar.
31 In taking this position, I am cognizant that it is always possible to argue that what we commonly call “culture” would affect the discourse of any narrator sharing her viewpoint as to the tolerability of the practices and habits that shape her everyday life.
33 Macdonald, Roderick A., “Pluralistic Human Rights; Universal Human Wrongs” (unpublished essay, 2007)Google Scholar.
34 A multiplicity of rules—often incompatible with one another—will operate simultaneously in any normative framework. Those subject to these rules become “legal actors” by attributing varying degrees of significance to these rules and by constructing for themselves the particular normative rubric that will shape their lives and relationships. See Macdonald, Roderick A. and McMorrow, Thomas, “Wedding a Critical Legal Pluralism to the Laws of Close Personal Adult Relationships,” European Journal of Legal Studies 1 (2007), http://www.ejls.eu/index.php?mode = present&displayissue = 2007-04>Google Scholar Macdonald, “Vieilles Gardes.”
36 This discussion of the form and substance of exit rights intersects with the historical juridical discourse surrounding domestic violence. Shachar, ibid., thus critiques exit arguments by paralleling them to the historical claim that through the act of marriage a woman communicated her implied consent to maltreatment of virtually any kind at her husband's hand. See also the discussion of Wilson, J. in R. v. Lavallee,  1 S.C.R. 852 at 887Google Scholar, which identifies how affective bonds and environmental factors can impair women's ability to leave violent relationships.
40 Bartlett, , “Feminist Legal Methods,” 863–64Google Scholar. Other descriptions of consciousness-raising are offered in the literature. For example, Elizabeth Schneider's perspective is influenced by her perception of a dialectical relationship between theory and practice or experience; she thus states that within consciousness-raising experiences, “learning starts with the individual and personal (the private), moves to the general and social (the public), and then reflects back on itself with heightened consciousness through this shared group process.” Schneider, Elizabeth M., “The Dialectic of Rights and Politics: Perspectives from the Women's Movement,” New York University Law Review 61 (1986), 602Google Scholar.
42 However, a search for the common experiences of women might be considered problematic, as representing an essentialist understanding of women's conditions in particular cultural settings. But, as feminists have pointed out, essentialism—while problematic when imposed by a dominant group—can be instrumental when it is identified and used by subordinated groups to challenge dominant and oppressive ideologies. That is, relying on a basis of shared experiences and perspectives can be an important strategy for political mobilization and empowerment. See Bunting, , “Theorizing Women's Cultural Diversity,” 12Google Scholar; and Malik, , “The Branch on Which We Sit,” 221Google Scholar.
44 See “B.C. mulling charges against polygamist sect,” CBC News, May 10, 2007, http://www.cbc.ca/canada/story/2007/05/10/polygamy-community.html; D'Amour, Mike, “Sect greets abuse probe,” Calgary Sun, July 27, 2004)Google Scholar; D'Amour, Mike, “Sect wives defend lives: Women say polygamy choice is theirs,” Calgary Sun, July 29, 2004Google Scholar; “B.C. polygamists want age of consent raised,” CTV News Online, February 19, 2005, http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/1108760102803_29/?hub = CTVNewsAtl 1; “Cdn. polygamy laws need to be reviewed: Activist,” CTV News Online, January 26, 2005, http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/1106749304265_34?s_name = &no_ads.
47 Merry, Sally Engle, Human Rights and Gender Violence: Translating International Law into Local Justice (Chicago: University of Chicago Press, 2006), 17–18Google Scholar.
48 Similar questions are raised by Isabelle Gunning in relation to a Western feminist's ability to consider critically “culturally challenging practices”:
As I analyzed the practice [of female genital cutting] and my reactions, I was confronted with two major problems: 1) by what right did I, as a Western feminist, have to criticize as right or wrong the practices of an entirely different culture? and 2) should and can law, with its attribution of right and wrong, exoneration and punishment, be used to eradicate a cultural practice?
Gunning, Isabelle R., “Arrogant Perception, World-Travelling and Multicultural Feminism: The Case of Female Genital Surgeries,” Columbia Human Rights Law Review 23 (1992), 189Google Scholar.
50 Cossman, Brenda, “Turning the Gaze Back on Itself: Comparative Law, Feminist Legal Studies, and the Postcolonial Project,” Utah Law Review 1997, 525Google Scholar.
51 This approach is also suggested by Malik, who considers the value of connecting practices cast as “different” to “a similar or analogous home practice.” Malik, , “The Branch on Which We Sit,” 228–29Google Scholar.
54 Slack, Alison T., “Female Circumcision: A Critical Appraisal,” Human Rights Quarterly 10 (1987–1988), 463Google Scholar. An important distinction that Slack does not discuss is that the Western practices she considers are generally chosen by adult women, whereas genital cutting is a practice decided for girls by their parents.
55 See Savell, Kristin, “Sex and the Sacred: Sterilization and Bodily Integrity in English and Canadian Law,” McGill Law Journal 49 (2004), 1093Google ScholarPubMed. See also “Parents defend treatment to keep girl child-sized,” CTV News Online, January 5, 2007, http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20070104/ashley_treatment_070104/20070105?hub = Health.
56 Andrews, Penelope, “Women's Human Rights and the Conversation Across Cultures,” Alberta Law Review 67 (2003), 613Google Scholar. See also Merry, Engle, Human Rights and Gender Violence, 10–12, 228–29Google Scholar, who posits that human rights—often pitted against culture—are best imagined as a cultural practice; and Rorty, Richard, “Human Rights, Rationality and Sentimentality,” in Truth and Progress: Philosophical Papers, vol. 3 (Cambridge: Cambridge University Press, 1998), 167CrossRefGoogle Scholar, who adopts the language of a “human rights culture.”
57 Gunning thus writes, “just as a Westerner may view the [genital] surgeries as a cultural challenge, the street runs two ways: non-Westerners too can view Western practices as culturally challenging.” Gunning, , “Arrogant Perception,” 212Google Scholar.
59 The importance of situating one's perceptions about culture in a historical context is emphasized by Gunning, who demonstrates how this analysis reveals facts that might otherwise be neglected. In this connection, she critiques Western ideas about genital cutting in view of the acceptance and performance of this practice in the United States and England during the late nineteenth and early twentieth centuries. Gunning, , “Arrogant Perception,” 205–11Google Scholar.
60 See Boyd, Susan, “Legal Regulation of Families in Changing Societies,” The Blackwell Companion to Law and Society, ed. Sarat, Austin (Oxford: Blackwell, 2004), 255CrossRefGoogle Scholar; Eichler, Margrit, Family Shifts: Families, Policies, and Gender Equality (Toronto: Oxford University Press, 1997)Google Scholar; Sheppard, Colleen, “Uncomfortable Victories and Unanswered Questions: Lessons from Moge,” Canadian Journal of Family Law 12 (1995), 283Google Scholar; Williams, Joan, “Is Coverture Dead? Beyond a New Theory of Alimony,” Georgetown Law Journal 82 (1994), 2246–53Google Scholar; Kay, Herma Hill, “'Making Marriage and Divorce Safe for ‘Women’ Revisited,” Hofstra Law Review 32 (2003), 71Google Scholar; Post, Dianne, “Why Marriage Should Be Abolished,” Women's Rights Law Reporter 18 (1997), 283Google Scholar.
63 See Fournier, Pascale, “In the (Canadian) Shadow of Islamic Law: Translating Mahr as a Bargaining Endowment,” Osgoode Hall Law Journal 44 (2006), 650Google Scholar.
64 While only a few Canadian decisions have assessed criminal charges based on bigamy or polygamy (see notes 65–66 below), courts have considered the legality of polygamous marriages formed in foreign jurisdictions in a number of cases. See Kaufman, Amy J., “Polygamous Marriages in Canada,” Canadian Journal of Family Law 21 (2005), 318–21Google Scholar; Campbell, , “How Have Policy Approaches,” 31Google Scholar.
65 See R. v. Clarke (1959), 124 C.C.C. 284 (Man. C.A.); R. v. Moore (2001), WL 596386 (Ont. Ct. J.); R v. Moustafa,  O.J. No. 835 (Ont. Ct. J. (Prov. Div.)); R. v. Sauvé,  A.J. No. 525 (Alta. Prov. Ct.); R. v. Young,  O.J. No. 498 (Ont. C.A.). Although the accused in Moustafa was described as “of the Moslem religion,” the judgment does not suggest that his decision to marry polygamously was propelled by faith. In other cases listed here, no reference is made to the religious beliefs of the accused.
66 In the cases listed in note 65, the sentences were of the following nature: imprisonment for six months (Clarke) and 2.5 years (Young); a conditional sentence of three months (Moore); time served (31 days) and three years' probation (Moustafa); and a $1,000 fine coupled with 12 months' probation (Sauvé).
67 Provincial family law and successions legislation may extend the effects of marriage to polygamous spouses. See, e.g., Ontario's Family Law Act, R.S.O. 1990, c. F.3, s. 1(2), and Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 1(2), both of which include within the definition of “spouse” partners to a polygamous marriage if that marriage was celebrated in a jurisdiction “whose system of law recognizes it as valid.” See also Yew v. British Columbia (A.Gl.),  1 D.L.R. 1166 (B.C.C.A.); Kaufman, , “Polygamous Marriages in Canada,” 333Google Scholar.
68 See, e.g., Civil Code of Quebec, art. 382, para. 1; G.P. v. B.M. (2002), IIJCan 602 (QC C.S.).
69 There is no criminal sanction linked to adultery or infidelity, despite the potential lack of moral approbation for these practices. However, until 1985 the Criminal Code did include a qualified offence related to adultery, which required the Crown to show that the action occurred in a child's home and compromised the child's moral well-being. Criminal Code, s. 172(1), as rep. by R.S.C. 1985, c. 19 (3d Supp.), s. 6.
70 R. v. Labaye, 2005 SCC 80.
71 For a discussion of how polygamy is broadly perceived in Canada as morally problematic, see Calder, Gillian, “Penguins and Polygamy” (unpublishedessay), 18–20Google Scholar.
72 Committee on Polygamous Issues, supra note 7.
74 See Immigration and Refugee Protection Regulations, S.O.R./2000–227, s. 117(9)(c).
75 See discussion in note 23 above.
76 Because polygamous marriages are generally not recognized under the federal Divorce Act, R.S.C. 1985, c. 3 (2d Supp.), or under provincial family law legislation, the wives of a polygamist (except the first he formally married) generally cannot claim spousal support. Financial dependence on a husband may thus be an important deterrent to leaving a marriage.
It is worth noting that some legislation may allow polygamous wives to make simultaneous claims against a shared husband as dependants. Consider s. 85.1 of British Columbia's Estate Administration Act, R.S.B.C. 1996, c. 122, which recognizes that two or more persons may be recognized in law as “spouses” entitled to share in the spousal portion of an intestate's estate. This provision envisages the situation of a person who, before his death, set up a common law relationship with a partner without having formally terminated a prior marriage. But this structure for spousal entitlement might also extend to polygamous circumstances in which a man was legally married to one woman but “celestially” married to one or more other wives with whom he cohabited.
77 Law's decision to remain outside a family or community can have an impact on women by reinforcing gendered power dynamics within it. Boyd, , “Legal Regulation of Families,” 256Google Scholar. The legal community's decision to accept the status quo in Bountiful is thus problematic, not necessarily because prosecutions for polygamy should be pursued but because the state's neglect of the community risks solidifying its hierarchies at women's expense. For a discussion of law's privatization of religion and the potentially, nefarious effects of this for women, see Sunder, , “Piercing the Veil,” 1424Google Scholar.