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Ban on polygamy upheld by BC Supreme Court

The B.C. Supreme Court has upheld the criminality of polygamous relationships, in a decision released today.

In a 300+ page judgment, Chief Justice Robert Bauman wrote that while Section 293 of the Criminal Code -- which prohibits polygamy -- "offends" religious freedom, the infringement is justified on the basis of polygamy's harm to women, children and the "institution of monogamous marriage."

Craig Jones, principal counsel for B.C.'s Attorney General, called the ruling "of strong precedential value."

Bauman's decision also includes an important exception for underage participants in polygamous unions, strongly suggesting children aged 12-17 be excluded from future prosecution. At 18, the exemption no longer applies.

"I have concluded that this case is essentially about harm," Bauman writes in the introduction to his judgment, adding that the harms are serious enough to violate individual and group rights in the interest of society at large.

These harms range from elevated rates of teen pregnancy (in Bountiful B.C., where a well-publicized community of polygamists resides, the rate is nearly seven times that of the rest of B.C.) and sexual abuse, to high infant mortality and the potential for domestic violence.

While a decision has been eagerly awaited since the start of proceedings in November 2009, the case will likely remain in the spotlight for some time. Outside the Vancouver courthouse, George Macintosh, the amicus curiae (friend of the court) appointed to represent the polygamist groups, noted there are 30 days in which an appeal can (and likely will) be made.

Opponents of polygamy hailed the opinion as a stand against abuses they say are intrinsic to patriarchal polygamy. Still, few are completely satisfied with the judgment. Kasari Govender, executive director of the West Coast Women's Legal Education and Action Fund (West Coast LEAF) hailed Bauman's focus on polygamy's harm to women and girls, but had previously argued that the provision should "only apply in exploitative circumstances," a narrowing explicitly dismissed in the judgment.

Sarah Kramer is freelance journalist based in both Vancouver, B.C. and Salt Lake City, Utah.

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