The more the merrier?

By Legal Eagle

Keysar Trad has written an article in The Age today calling for Australians to reconsider their attitudes to polygyny (where a man has multiple wives). He says:

Who someone marries first is an accident of history. If a man who has an affair had met his mistress before his wife, he may have married her. Why maintain the facade that is the Justinian doctrine of monogamy knowing it has failed as a social experiment?

A man can have multiple girlfriends. Why not formalise that into a commitment for life? Why should “bigamy” be a crime?

Now, I’ve never been a great fan of Keysar Trad, as a previous post explains. I think he often ends up bringing the causes he champions into disrepute. And this article doesn’t change my opinion in that regard. The bit that really made me feel like shaking him was the part where he said:

…But in a caring and sharing world where we become euphoric when we give to those in need, sponsor orphans and provide foster care, the ultimate in giving is for a woman to give a fraction of her husband’s time and affection to another woman who is willing to share with her. It is a spiritually rewarding experience that allows women to grow while the husband toils to provide for more than one partner.

Anyway. {Deep breaths. Restore myself to calm before going on.}

I’m not quite sure what Trad’s argument is. Is he simply arguing that bigamy should be decriminalised? Or is he arguing that we should have legal mechanisms to recognise polygyny as a relationship which is equal to a monogamous marriage? The first option is a different kettle of fish to the second.

Bigamy is a criminal offence in Australia (see eg, s 64 of the Crimes Act (Vic) in my home state). Bigamy means going through a marriage ceremony with another person when one’s original spouse is still alive. Therefore, anyone who enters into a polygamous marriage in Australia is committing a crime.

As a 2006 Report for Status of Women Canada concluded, there are liberal and feminist arguments for decriminalising bigamy. The Report, entitled Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada is available to download at SSRN here. The Report recommended that Canada should repeal its criminal provision outlawing polygamy, but that other criminal laws and civil laws be used to combat the harms associated with polygamy. Interestingly, as this Washington Post article notes, some of those who advocate the legalisation of polygamy also advocate the legalisation of same-sex marriage, on the basis that the law should not tell people what to do in the bedroom.

In fact, polygamy and bigamy are rarely prosecuted because of the practical difficulties involved in doing so. The difficulty is that the consensus seems to be that women and children in polygamous relationships are disadvantaged, and may face abuse and other wrongs. However, prosecution for bigamy may further harm these women and children rather than fixing the problem.

Let’s stop there at the disadvantage point. We need to address a prior issue. Does polygamy necessarily result in disadvantage for women? The UN Committee on the Elimination of Discrimination against Women (CEDAW) certainly takes the attitude that polygamy leads to disadvantage for women. In CEDAW General Recommendation 21, paragraph 14 states:

…Polygamous marriage contravenes a woman’s right to equality with men, and can have such serious emotional and financial consequences for her and her dependants that such marriages ought to be discouraged and prohibited. The Committee notes with concern that some States parties, whose constitutions guarantee equal rights, permit polygamous marriage in accordance with personal or customary law. This violates the constitutional rights of women, and breaches the provisions of article 5 (a) of the Convention. [emphasis added]

Many, if not most, societies practiced polygyny (one man having multiple wives) in the past. However, Western societies have generally moved to ban polygamy generally. Polyandry (one woman having many husbands) is rare, and is practiced in some parts of Tibet and India.

Polygyny has been generally associated with gender inequality. Apparently  studies of polygynous societies indicate women in such societies are oppressed, threatened or disempowered. Usually only “high status” men can afford to support multiple wives and children. By the same token, usually educated and well-off women do not choose to enter into polygynous relationships. Most social scientists argue that polygamy is designed to ensure male reproductive success, and it is a result of a man’s choice, not a woman’s choice. Often subsequent wives are much younger than their husbands. In addition, subsequent wives are often lower in the pecking order than “primary wives”. Nonetheless, other social scientists argue that women are in a position to demand choice in marriage, and thus if polygyny is the practice, it must be as a result of female choice, perhaps to maximise help with child rearing or the like. In the Washington Post article I linked to above, one Mormon indicates that his wives had to work to convince him to take more than one wife, saying:

“Usually the women tend to be the biggest advocates of this way of life and men enter it more timidly. …If you are going to do it right, it’s a huge responsibility.”

So it seems to be true that some women choose to enter such a relationship freely.

In some places, polygamy has been used in place of divorce where there are limited grounds for divorce. In fact, well back in our own family tree, my mother has found a couple of instances of bigamy. Presumably, the bigamous party was not able to divorce his or her spouse, and so seems to have concealed the existence of a previous spouse in order to marry again. In one case, as far as we can work out, one of my forebears seems to have had two wives simultaneously who lived a few houses away from each other, and who both had children by him. Unless there were two men of that name living in the same street?

Social scientists have various explanations for the practice of polygamy. Multiple wives seem to be a status symbol for powerful and sexually dominant men. Some social scientists argue that once societies become more democratic, there is a “male compromise”. Wealthy, powerful men surrender polygamy in exchange for political support from poor men. This means that men now have equality of reproductive opportunity. There is a strong correlation between liberal democracy and monogamous marriage.

This brings into relief the problems of cultural relativism. There can be two feminist arguments here. What do we prioritise, gender equality or religious/cultural practice? Secular feminists, of course, tend to prioritise to gender equality, whereas multicultural/religious feminists tend to prioritise religious freedom.

The late Susan Moller Okin, a feminist author, wrote a paper entitled “Is Multiculturalism Bad For Women?” She argues that there is a tension between feminism and a multiculturalist commitment to group rights for minority cultures. This is in part because many culturally-based customs aim to control women and make women serve men’s desires and interests (especially sexually and reproductively). Okin notes that most of the “cultural defences” in the criminal law relate to men’s cultural power to control women:

  • The Hmong “marriage by capture” defence, employed by Hmong men who kidnap and rape women;
  • The cultural provocation defence – i.e. men were provoked into killing their wife because the woman committed adultery or treated the husband in a way which lacked “respect”, and that this is particularly provoking in the culture from which the man came;
  • The mother-child suicide defence – mothers from Japanese or Chinese backgrounds who kill their children, but fail in their attempt to kill themselves, undertook this action because they were shamed by their husband’s infidelity;
  • The argument that some cultures should be allowed to practice clitoridectomy.

I would add to this:

  • The “honour killing defence” – the idea that a man killing a female relative is explicable because the woman has dishonoured him by engaging in a relationship with a man who was not acceptable to her family; and
  • The “child marriage” defence – the argument by some indigenous communities that young women who have been raped by elder men were “promised” in marriage in an allowed cultural practice.

Okin argues that the cultural message in all these cases is gender-biased: women (and children, in the case of the mother-child suicide cases) are ancillary to men, and should bear the blame for any departure from monogamy. Whether it is the man or the woman who is guilty of infidelity, Okin argues it is the woman who suffers. This propogates the idea that women are first and foremost sexual servants of men whose only real worth comes from their virginity before marriage and their fidelity within marriage. As a result, Okin argues that minority group rights should be treated with care by feminists, and care should be taken to ensure that there is gender equality within groups and that women have adequate say.

Okin was criticised by a number of other feminist theorists, who argued that her approach was inappropriately oppositional, that she did not consider how women in minority cultures may resist patriarchy, and that human rights law contributed to the problem by seeing religion as “other”. (See eg, Leti Volpp and Madhavi Sunder mentioned here).

Cultural relativism is a problem for liberals such as myself. I like to think myself tolerant of others, but to what extent should I tolerate someone else’s illiberal practices? These questions come to the fore with arguments about polygamy and polygyny.

From my perspective as a feminist, polygyny and polygamy can only work if the women involved in such relationships choose freely to enter into it. Also, women in polygynous relationships must also have a right of divorce which is equal to the man’s right. Unfortunately, in many polygynous societies, men are free to divorce their wives, whereas women cannot divorce their husband. And women in such polygynous relationships say that there is always a threat – “If you don’t behave, I’ll get another wife.”

It’s a very difficult question. On the one hand, I tend to think that what people do in the bedroom is up to them, and the State should intervene as little as possible. I find the concept of polygamy abhorrent, but why should I stop others from doing what they want? On the other hand, when a particular practice tends to generally harm women and suggest that they should be relegated to a secondary status as a sexual object, I cannot feel comfortable with it.

Ultimately, I think bigamy should be decriminalised because it is not enforced or workable, and if it is enforced, the prosecution of bigamy as a crime may end up harming women and children who are made vulnerable by the practice. But I’d rather not promote it or offer it as an alternative form of marriage.

Nonetheless, as Trad notes, perhaps we’re not too far off. As a result of the amendments to the new s 4AA of the Family Law Act 1975 (Cth) (which I’ve discussed previously here) a mistress is almost a “constructive concubine”. Those provisions worry me, because there is no formal act of “entry” into a relationship, no moment of “choice” where the parties are forced to say what they want out of the relationship. A person might be in a de facto relationship without realising it, or vice versa. Perhaps we would be better off looking to the Roman laws as to concubines than enacting s 4AA. I seem to recall one rule about residing together for a year and a day for a certain relationship to be recognised – so if your partner moved out the day before D-Day, you knew where you stood.

{Aside: SL, I’d be interested to hear your opinion of Trad’s comments on Justinian, and Roman law generally.}

Update:

J.F. Beck deconstructs Trad’s claim in The Age article that he was misquoted by AM.

Pavlov’s Cat on Keysar Trad’s utter writing FAIL.

Update 2:

Now cross-posted on Online Opinion.

7 Comments

  1. HeathG
    Posted October 8, 2009 at 5:47 am | Permalink

    @JC (38).

    You’re still fixated on the Trad model of poly household.

    In a more egalatarian poly household, the women in the household could/would be working too. If we take LE’s example of the ‘V’ poly setup described previously, one adult could stay at home looking after the children whilst the other two worked.

    A 9 child household with 3 (or 4) adults could (if they coordinated themselves and took the right mix of jobs) actually have all 4 adults earning income during the week whilst still having at least 2 adults at home…

    As I think I said to LE above… people seem to be fixated on the Trad (tradtional stereotype) polygny rather than thinking about what might be also be possible.

    Granted its not an arrangement for everyone and the government shouldn’t be artificially incenting it – but I’d liek to see people think outside the box a bit more.

  2. davd bath
    Posted October 8, 2009 at 9:14 am | Permalink

    [email protected] the 50 is based on contribution. Two wives, 33; 3 wive 25, i’d rckon.

  3. davidp
    Posted October 13, 2009 at 2:24 pm | Permalink

    LE @51 “(a) the wives freely choose to enter the marriage”
    Beware of economic/social coercion: inequality of opportunity leads to
    a) women with minimal economic or social opportunity except as a wife
    b) poor men unable to support a wife
    resulting in strong economic pressure to become a wife

    A book well worth reading is The Bookseller of Kabul by Åsne Seierstad.

  4. Posted October 14, 2009 at 6:16 pm | Permalink

    This via Legal Theory Blog, a paper at SSRN on Texas polygamy and child welfare

One Trackback

  1. By skepticlawyer » O Mistress Mine! on November 9, 2009 at 8:07 pm

    […] course, as discussed in my post on polygamy, generally only well-off, high status men can afford to have more than one wife (or a wife and […]

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