The limits of sexual freedoms: polygamy

Winston Blackmore with some of his children and grandchildren

There is a trial ongoing in the Canadian province of British Columbia that raises some interesting questions about sexual freedoms in our liberal 21^st century society. It’s the trial of Messrs Blackmore and Oler who between them have 28 wives; Mr Blackmore has the lions share having amassed 24 of the wives and having sired an impressive 145 children – I bet he can’t remember all their names.

Both men have been members of the Bountiful community, which is a religious sect that has been on the Mounties list of people to prosecute for a quarter of a century now. Both men have previously been tried on charges of bringing young teenage girls across the border to marry sect leader Warren Jeffs. Blackmore and one of his wives were convicted while Oler was acquitted.

While the previous trial involved child brides there is no suggestion in the current trial that the women to whom Blackmore and Oler are married are anything other than consenting adults. The Canadian state has previous tried to prosecute Blackmore in 2009 but that charge was dismissed due to procedural irregularities in the prosecution case, which appear to have involved the state shopping around multiple special prosecutors until they found one who was willing to bring charges.

Laws against polygamy are some of the oldest in existence tracing their roots back at least as far as the Bible where in Matthew 19:4-6 Jesus says:

“Haven’t you read,” he replied, “that at the beginning the Creator ‘made them male and female,’ and said, ‘For this reason a man will leave his father and mother and be united to his wife, and the two will become one flesh’? So they are no longer two, but one flesh. Therefore what God has joined together, let no one separate."

From the Bible comes the notion that men and women should marry and that their marriage should be exclusive to them. But it’s not only Christians who insist on monogamous marriage – about 100 years before Christianity became the main religion of Rome, and a year after being proclaimed Emperor of Rome, Diocletian passed laws outlawing polygamy.

In England, we can trace our modern bigamy laws to the Offences Against the Persons Act 1828, which was subsequently repealed and replaced with our current law, section 57 of the Offences Against the Person Act 1861 – it’s lasted 156 years so it must be a good’un.

According to section 57 any marriage that takes place anywhere in the world during the life of the former husband or wife will be a crime. The Act excludes people re-marrying following a divorce and provides a defence where the first spouse has been continually absent for seven or more years and it is not known whether he or she is still alive. The Act also excludes marriages taking place outside of England or Ireland by people who are not subjects of Her Majesty. Does this mean that a polygamous marriage between a French couple would be a crime in London but not in Cardiff?

Bigamy is not a crime where the bigamist has an honest belief that his first marriage was not valid, R v King [1964] 1 QB 285 and R v Gould [1968] 2 QB 65, so we can say that although bigamy looks like an absolute offence there is an element of mens rea included in it.

Although bigamy is not an offence if you are not a subject of Her Majesty and the marriage takes place outside of England, section 11(d) of the Matrimonial Causes Act 1973 tells us that the polygamous marriage will nonetheless be void if it took place after the 31^st July 1971 and either of the parties were domiciled in England or Wales at the time of the marriage. If the marriage occurred outside England and Wales and was in accordance with the laws of the country in which it was celebrated then it will be recognised in the UK, for the purposes of immigration law at least.

Sex and marriage are inextricably linked both in fact and in law. Section 12 of the Matrimonial Causes Act 1973 makes a marriage voidable if either party is incapable of or refuses to consummate the marriage, where the respondent was suffering from a communicable venereal disease or was pregnant by another man at the time of the marriage or where the respondent changes gender during the marriage. Although, it’s worth saying that an inability or refusal to consummate a marriage is not a reason to void a same sex marriage.

So, we can say that English law places restrictions on marriage, which in part reflect the biblical definition that it is a union that is exclusive between two people (although no longer between a man and woman). We can also say that the law places an obligation on both partners to consent to sex with the other, at least once, or face the risk of the marriage ending prematurely.

Now, what of Messrs Blackmore and Oler? If they lived in the UK, they would have the protection of the Human Rights Act, which enshrines the European Convention on Human Rights into our domestic law. Article 8 of that tells us that the state must respect private and family life except where interference is necessary in the interests of security, safety, economic wellbeing, prevention of crime or for the protection of health, morals and rights of others:

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Let’s apply the test to Mr Blackmore living in a rural community with his 24 wives and Mr Oler and his 4 wives. So far as I am aware there’s no suggestion any of these women have been forced into these marriages or were underage at the time they were married.

I’ll go out on a limb and say that 30 people living in a rural community present no threat to national security, public safety or the economic wellbeing of the nation. I’ve seen no suggestion that their lives cause disorder or crime (save for multiple counts of bigamy). I’d argue that this sort of family presents no danger to other people’s rights and freedoms.

There is clearly an argument that engaging in sex with multiple partners increases the risk of sexually transmitted infections spreading, although you might also consider that if none of the participants have an STI to begin with and all only have sex within the same uninfected group the chances of a serious STI spreading are no higher than if the relationship were between a single man and woman. Certainly, there is no risk of any infection spreading beyond the group.

There is also the argument that a prosecution for bigamy falls within the exception that allows interference with a family for the protection of public morals. This is very much the same argument Mary Whitehouse and friends employed when campaigning in the 1970s and 80s against all the beastly things being shown on TV and at the pictures: this stuff is bad… let’s ban it. But at this point we need to stop and look at some comparisons.

If Mr Blackmore and his merry band of wives decided to live as a family here in the UK without marrying they would commit no offence. Equally, if Mr Blackmore were married to one woman and they agreed to multiple affairs with the remaining 23 women that would also be legal as there is no law criminalising adultery. In either situation, they could have as many children as they liked and live, in effect, as husband and wives for the rest of their lives. There would be not a thing the state could do to punish them. This is also true in Canada.

So, we must ask ourselves the question: why is it immoral, such that the state needs to interfere, for these 25 people to live as a family unit under the banner of marriage but not when they forego the marriage ceremony? There is, to my mind, no sensible answer to that question. There is no argument that says the Blackmore’s behaviour is immoral when married but not when unmarried. If we then accept that the state does not need to interfere with non-married people living the same lifestyle we must conclude that there is no moral imperative that provides the state with an exception to the right to respect for private and family life. If that is correct, we must conclude that the offence of bigamy is one that breaches Article 8 of the Human Rights Act.

The reality is that polygamy is a frowned upon practice and people engaged in it are considered abnormal so I do not expect to see any serious challenges to the bigamy law any time soon. But, we know the status quo will change for the great oracle that is Simpsons creator Matt Groening has spoken and told us so. For was it not written that Colleen O'Hallahan would have multiple boyfriends and that Phillip J. Fry would come to accept her lifestyle choice when he became Tentacle Pope of the Universe?

What? If a fictional book is a good basis for creating laws then why shouldn’t a fictional TV show become one too?