Friday, January 7, 2011

Mormon Polygamy on Trial : Day 15 courtroom notes

Reader Beware: This is not an official court transcript and I am not a trained reporter. There are likely many errors in this transcript - perhaps more than others in the series because the witness and the lead lawyer for AG Canada did not speak very clearly. Also, there was a tremendous amount of detailed legal discussion that seemed very repetitive and is difficult for someone like me, who is not fluent in legalize - especially the international dialect - to understand.

AG Canada called Professor Rebecca Johnson Cook as an expert witness specializing in international human rights law - especially in issues relating to women.

Relative to qualifications, Dr. Cook received a doctorate of law from Columbia university in 1994. her doctorate focused on the women's convention - aimed at eliminating all types of discrimination against women. Her Msc was also focused on issues of discrimination against women. She was called to the bar in washington dc.

Currently she holds the chair in international human rights law at university of toronto. She teaches international women’s right, reproductive and sexual rights law, etc. these are graduate level courses. The course on international women’s rights includes a class on polygamy.

In addition to being a professor international law, she is also a professor of medicine, teaching medical ethics.

SHe also teaches a course at an academy of human rights in washington dc on international women’s rights. she has taught at his academy since 2005. She has also been teaching and doing research on health and human rights at a university in south africa. She is also supervising a student at that university on youth student rights.

She is on the editorial advisory board for a major journal for international human rights. She is also on the advisory board for a major mexican journal for human rights.

She is on several academic and political advisory boards relating to health and human rights laws. She is also associated with the World Heath Organization - mostly concerned with pregnancy related deaths and mortality. She was made a fellow of the Royal Society of Canada in 1999. This honor signifies that she is recognized by her peers to have made a significant contribution in her field. There are significant responsibilities with this position to insure that your scholarship continues to make additional contributions to your specific field. She is the author of more than 50 book chapters, more than 110 published papers, etc.,etc. Many of these publications have been translated into other languages. All of these publications are related to human rights law, and the State’s obligation to protect the human rights of women and children.

Her research on polygyny was designed to study the structural discrimination against women in marriage. It enabled her to think about another form of discrimination against women that states could protect against. The only other report that she is aware of was written by lisa kelly on the role of polygamy in hiv aids.

Canada has tendered Dr. cook as an expert in human rights law and polygyny. There is no objection to her qualifications as an expert.

She is prepared to assist the court in understanding and not to act as an advocate. She had assistance from Lisa Kelly, a former student who is doing her doctorate at harvard. Dr. Cook is solely responsible for the contents of the report.
In making the report, she was asked to address the harms of polygyny as viewed from the perspective of human rights law, the treatment of polygyny in international human rights laws and the obligation of canada with respect to these laws.

she first addressed the harms of polygyny, next she looked at state practice regarding polygyny - how states feel obligated to address. further looked a immigration restrictions. looked a Canada's obligations to insure marriage equality, rights to health and security, children rights, etc. also looked to arguable limitations, including freedom of religion. looked at canada;s obligation to comply with international agreements.

she uses the term polygyny - polygamy is gender neutral. human rights law only deals with polygyny (one man taking many wives).

In referring to polygyny, she is referring to one man taking several wives. this asymmetrical relationship in the marriage is what they are looking at. she looked a solemnized and unsolemnized marriages.

The first major conclusion is the patriarchal structure that allows a man to take many wives and does not allow the converse is the inherent wrong.

these inherent wrongs include harms to women’s physical and mental health, material harms in these relationship and the harms to children in polygamous relationships. The international treaty bodies recognizes these harms as reflected through international law.

the dominant practice among states is to prohibit polygyny through criminal or family law. recent criminal prosecutions have ?not? been successful - despite religious freedoms.?

canada is obligated to oppress polygyny as part of their obligation to protect the equality of women.

regarding Principles of international law: sources of international law, according to art 38 of international court of justice. general practices of law, international conventions, international ...

International conventions are at the top of the hierarchy. international treaties, covenants and conventions are interchangeable.

relative to treaty based international law is developed by the bodies that have been established under international conventions.

Canada has ratified several treaties and is obligated to take all appropriate measure to implement the treaties. There is a committee for each convention that monitors how states have come into harmony with their specific convention. each of those bodies monitors states on an annual basis on how the specific state has made progress in implementing the specific treaty. The treaty bodies make general comments to guide states in implementing the treaties.

The other type of international law is customary. it is evidenced by general practices that states follow out of a sense of legal obligation. This sense of legal obligation is often defined by jurists.

in preparation of the report, Dr. Cook reviewed general recommendations of treaty bodies relative to polygamy, concluding observations on state reports which deal specifically with polygamy, also reports from committees on cultural rights and traditional practices. They also reviewed some law review articles and some of the social science literature. The concluding observations on state reports were most heavily weighted.

All of the material that she studied concluded that polygyny was harmful. Patriarchal structuring of family life offends women’s dignity. this term is used specifically in several reports. Human rights law is directly focused to maintaining the dignity of persons. this phrase is used in several international conventions on human rights.

regarding the women’s convention - in the general recommendation 21 - in para 10 - the committee specifically said that polygynous marriage directly contravenes women’s rights, economic standing, etc. and these marriages should be discouraged. Significantly, gen rec. also notes that states that allow polygyny marriages contravene statements in their constitutions that guarantee equality for people. polygyny is clearly considered a form of discrimination that considers women inferior and this is very significant.

Human rights cmtee general comment 28 on equality rights between men and women states that equality of treatment to men and women regarding rights to marry makes polygamy inherently wrong. considers this to be inadmissible discrimination against women that should be abolished where ever it exists.

each cmtee has a different way to define the specific harms.

why have international treaty bodies called for abolition of polygyny? as you look at concluding observations of the human rights cmtee and women's cmtee consistently question and raise concerns about the inherent wrongs and harms of polygyny. HRC sees inherent wrongs in terms of the asymmetry and an offense to women’s dignity. women's’ committee thinks not only about the unequal structure leads to negative stereotypes that diminish what they think they can do in the family and in the community.

Justice Bauman asks “ are these simply guidelines or are they legally binding?”

Dr Cook - all the concluding observations specifically deal with polygyny - these guidelines are persuasive and are not strictly rule of law.

however, trends in these conclusions often reflect what is evolving as customary in international law.

appropriate time for a break (10:05) - returned at 10:20

Going back to general comments on the recommendations of the committees - these general comments determine the meaning of a particular theme in the treaty. they are somewhat more binding that a recommendation. three principles are law creating and the fourth is law determining. these recommendations are law determining and get used in a way that ultimately can become law creating. they are used in international and domestic courts and also regional human rights courts and other treaty bodies as references. the domestic analogy is not like being under a statute because they are non-binding. there is a distinction between hard law and soft law on the international stage and there is a range of debate about how “hard” these laws have become.

international law has no police force. it is enforceable out of a sense of obligation to keep the pacts that you have made. the international equiv. of a police force is shame. this is important because if countries do not keep the obligations that they agree to, then they are shamed on the international stage and no country wants to be a pariah.

regarding associated harms of polygyny as identified by international treaty bodies, are primarily articulated in the reports to state bodies and also in concluding observations. the first area is in terms of the mental health harms which have been identified - family stress, low self esteem, depression, and increased likelihood of physical harms. these harms are also noted by the UN special reporter as harms articulated.

More specific about types of harms - in terms of the harms identified by UN in terms of violence against women - the ability of men to take a second wife means the first wife must be more obedient. the threat to take a second wife is used as a way to control women.

polygyny is termed a harmful traditional practice that exposes women to increased risk of sexually transmitted diseases like hiv. this is noted by the UN general assembly committee on hiv aids.

in terms of harms relating to competitive co-wife relationships, harms have been identified relating to inheritance rights and the way that this affects children.

in terms of material harms, treaty bodies have recognized in a state report regarding the economic strain on polygynous relationships. this is particularly serious in societies that are increasingly urbanized because you need cash. In agricultural settings, marriage is not in a cash setting as it is in an urban setting. in an urban setting, it is more difficult for each wife to get what they need.

the problem of internalizing harmful gender stereotypes is recognized by several bodies. the denial of family life from the lost boys have also been identified by some of the international bodies. another report references depriving children from much-needed parental guidance. It is also noted that children from polygamous families (in cmtee on rights of child) that are neglected or deprived of access to fathers and this leaves them vulnerable.

regarding state practices on the practice of polygyny -

generally speaking it falls into distinct categories
general prohibition
regulation on polygyny practices through other - like religious court bodies
restriction on immigration on polygyny families

regarding outright prohibition, criminal law is often used to prohibit. family law is also used are non-legal measures such as is education, rural outreach programs etc. these programs have be be justified as being effective in eliminating polygyny

the majority of states prohibit polygyny or bigamy by criminal law - on on increasing basis, in africa, states are outlawing polygyny. In french countries, it was shown that the family law courts were not guaranteeing equality of men and women. previously, laws were based on protecting women and the state from fraud. more recently, laws are being interpreted to protect children.

in australia, there was a movement to recognize the legal status of polygyny. in 1992, it was recommended that this should not be done in order to protect the equal rights of women.

in france, polygyny families were initially allowed to immigrate to france. in 1993 it was decided to ban these families from immigrating. in 2003, the prohibition of polygyny was constitutionally included for one of their territories.

in turkey, polygamy has been outlawed there and also in tunisia. in tunisia, under islamic law it is stated that polygyny is only allowed if you can be fair to all wives - now the rational is that it is impossible to be fair to all wives.

in western asia - the observation of reports indicate that criminal prohibition exist in these countries but the bodies are recommending that they enforce these prohibitions.

there is a discernible and growing trend towards the prohibition of polygyny. in south africa, restrictions on polygyny have been justified because women in polygamous and monogamous marriages needed to be treated equally in terms of inheritance law.

in terms of countries where polygyny is not prohibited, there are increasing levels of requirements that the first wife must be notified and agree or this becomes grounds for divorce with divorce benefits. there are also authorization requirements that the government must authorize the taking of a subsequent wife. it is often dependent on the financial requirement to maintain additional wives. restrictions on polygyny make it more difficult to have these types of unions.

in 2007, there was a challenge in Indonesia to spousal and legal restrictions and these restrictions were upheld. in Morocco, a family law initiative in 2004 did not outright prohibit of polygyny but it was explicitly forbidden where it was not possible to treat all wives equally.

in many african countries, you can either marry according to civil law or in a parallel traditional or religious law system. often polygyny is restricted in civil law, men will then marry one wife in the civil law system and then take another wife in the non-civil law system.

The women's committee noted with concern - which is the diplomatic language for condemning - the pattern of using parallel law systems because this undermines women’s equality rights.

in terms of immigration laws and policies - polygyny is a bar to immigration in most western states. in france this is very significant. in 1993 the law was changed to bar polygyny families because polygyny wives and children could not access the medical system, the family benefit system, etc. these families were forced to live in very small urban households and this was very stressful and problematic. this ultimately led to france banning immigration to these families. there is still work to be done in protecting the rights of pre-1993 polygyny families.

Currently not commented on in treaty bodies, canada and australia only allow the first wife of a polygyny family to be considered for immigration potential. The man cannot automatically select the second wife - he must show that he has officially divorced the first wife before he can bring the second.

Criminal conduct is the basis for exclusion under most immigration laws and since polygyny is illegal, it makes this an effective bar against immigration of these families.

as for Canada's obligation under international law - canada is obligated to take all appropriate measures to eliminate polygyny. this is different from taking any appropriate measures. this obligation comes from the wording of the women's convention and other international human rights treaties. what’s important is that the burden is put on the state to justify why the measures are appropriate. the ultimate arbiter is the women's committee itself as to whether a particular measure is appropriate.

what do they view as all appropriate measures? for measures to be appropriate, for example, they have to address the ways that polygyny denies women their rights and they have to address the rights of women in polygyny relationships and they have to address the underlying stereotypes in the system. they have to address equality and the rights of women in the existing unions.

have many states felt obligated to criminalize polygyny as part of these appropriate measures.?

yes - many states have felt that criminalization of polygyny is an appropriate measure.
the specific obligation is the elimination of polygyny and the more general obligation is the obligation to eliminate inequality against women and the more general obligation is the elimination of negative stereotypes against women.

you can't really abolish polygyny unless you address collateral discriminations - these include the dismantling of structural forms of discriminations in families and before the law.

obligations in terms of stereotyping as a form of discrimination is a very significant aspect of the women's convention. the obligation is to address prejudices and cultural stereotypes that foster the inferiority of one sex relative to another. Anything that suggests that women are restricted to specific family roles and social roles is a matter of concern. international law regarding negative gender stereotypes has progressed significantly in the past few years. there is a parallel development in international law regarding these negative cultural stereotypes is a significant development in parallel to the actions on polygyny. most recently the european court, in a case against russia, looked at a military case of discrimination against women.

there are also obligations to insure equality in marriage and family life to make sure that a the duties and benefits of marriage are not unequal. States have been called upon to make sure that women are treated equally in marriage and family life. marital forms which distribute duties and rights unequally between the sexes has been recognized by the committees as violating women's rights in marriage and family life.

the comtee on cultural, social and family rights requires states to insure access to health care services. where polygyny allows multiple sexual partners, it increases risk to STDs. a significant goal of the women's cmttee is to reduce this risk to women. there are also mental health factors because women are less able to develop their own plan for their life. in terms of children, children's rights cmtee has looked at the problems of early marriage and early pregnancies. when women have children at less than 18 yrs of age, there is a significantly increased risk of death in child-bearing. since early marriage increases this likelihood this is discouraged.

(now 12:20 : court adjourned till 2:00)

Report also discusses the obligation to balance the elimination of polygamy with the obligation to protect religious freedom, protect family life, protect rights to privacy, etc. How do the international courts balance these items?

In a case before the international committees, there is an example called DB vs UK where a child of a second polygyny wife petitioned to force the uk to allow her mother to immigrate into the country. this was done on the basis of the right to have her family together. the committees determined that the ban against polygamy was a reasonable reason to over-come her claim to have the family unified.

IN a case from Mauritius, it was determined that the obligation to eliminate polygamy was of greater force that the free-exercise of religion.

Two cases from Utah also have come before the panels and it both of these cases were decided against the free exercise of religion in favor of prohibiting polygamy.

What trends have you identified in international human rights relative to polygamy.

There are clear trends to eliminate polygyny as a clear form of discrimination against women. This pattern of prohibition against polygyny is a clear

there is a discernible trend to prohibit or uphold bigamy and polygamy convictions against claims for freedom of religion.

are you aware of any recent cases where a state has decriminalized polygamy. No.

it would be contrary to the existing international trend to decriminalize polygamy.

(2:10) Friendly cross-examination from diane gaffar from West Coast Leaf

On para 8 and 9 in her report - in the introduction she discusses various international treaties which are applicable to this case. However, Canada has ratified all the treaties or made accession all of these agreements.

There is no formal legal difference between ratifying or acceding directly to a treaty. in both cases, states are obligated to take all reasonable measures to implement the treaties.

While not all treaties are legally binding, it is fair to say that all countries are bound by treaties.

On the core obligations to state parties under general recommendations for the SEDAR treaty (on page 3) on para 10 - state parties are obligated to not allow acts or omissions that perpetuate discrimination against women. Discrimination can occur through the failure of states to implement laws to protect rights of women or to fail to enforce relevant laws.

If a state party fails to enact some kind of prohibition against polygyny, it would be non-compliance with 2 different treaties.

In article 2, this focuses on general obligation to eliminate discrimination and article 5 focuses on the obligation to eliminate stereotyping. There are family rights, religious rights, cultural rights, privacy right, etc. that must be balanced against anti-discrimination rights and in all cases, the obligation to eliminate polygyny has been given the higher priority.

Dr. Cook objects that the right to privacy is not part of these rights have been considered inferior to the discrimination rights.
If a country enters a reservation, they reserve the right to exclude a certain part of the treaty until the country has brought their laws up to a standard where they are in compliance with the treaty.

If a state determined that their constitutional right to freedom of religion was of more importance that certain elements of the treaty, could they enter a reservation to exempt them from certain paragraphs of the treaty. - yes

The patriarchal structure of family life that allows a man to marry more than one woman while not allowing women to do the same violates women’s equality rights.

patriarchal structure means that the man is superior and the woman is inferior in family life.

the object and purpose of the women's convention is to address direct discrimination, indirect discrimination and structures that lead to discrimination. State parties should take all appropriate actions to modify the cultural conduct of men and women with a view to remove patterns that treat women in an inferior way or according to pre-determined cultural roles.

in a study of wife abuse among sunni muslim women in america it is concluded that women are disempowered because of the threat that the husband may be able to take another wife. This is worse in rural communities because of isolation. Women and girls are limited in their self-expression because of the need to conform to specific gender cultural roles and norms.

Cross-ex from Robin from the BCTF

Questions relating to the rights of the child. In paragraph 61 to 67 in her report, harms to children in polygamous unions are identified. Early marriage for girls and exclusion of boys, higher levels of family disfunction, drug use, neglect by fathers, etc. are mentioned.

Keeping in mind the harms, are there other elements that can be engaged? Art. 19, : state parties - other harms such as subjecting children to violence, sexual abuse, etc. allowing these to occur are also in conflict with these treaty positions. Underage marriage is a form of sexual abuse? yes

Polygynous unions stereotype women into inferior roles and female children internalize these observations into their internal self-perceptions. This conflicts with treaty obligations.

Cross-ex ends @ 2:40

Cross-ex by Amicus:

On page 2, paragraph 8, four main treaties have been selected as important relating to polygyny. None of these 4 treaties actually contain the words “polygyny” or “Polygamy”.

This is correct.

On these committees, the vast majority of members are women.

None of these treaty bodies have comprehensively studied polygyny as a separate subject, however, they have systematically responded in a comprehensive way when it comes before the committee.

Dr. Cook is on the board of directors of the board of reproductive rights. This board has put forward a report called on the “rights to bear”. On the summary assessment on the 2nd page, it states that polygamy has been discussed frequently in the CEDA committee however, they have not systematically and exclusively analyzed polygamy.

There is no general recommendation entitled “polygamy or polygyny” from any of the committees.

There is much more diplomatic traffic around subjects like global warming than there is about women’s rights and polygyny is a subset of women’s rights.

International treaties have not addressed any differences between polyamory and polygyny. They have not made any comment at all about polyamory.

In the last report on Canada’s treaty obligations, there was no concluding statements relative to polygamy.

Canada has been directly compared to the USA, Australia, France and the UK. These countries are seen as being comparable in terms of state practice. Regarding the criminal code prohibitions on bigamy and polygamy from these various countries, the United Kingdom only has one item in their criminal code from offenses against the person in 1851. The UK court has decided from this law that the bigamy law prohibits polygamy as well. However, this law does not distinguish between solemnized marriages and people living together. In the conclusion of the appraisal of England’s bigamy law, it states that if the couple does not enter into an official marriage, then no offense is committed.

AG BC objects that the witness is being asked to testify outside of her stated expertise. She has been asked to discuss international law and not the nuanced elements of English law.

Amicus objects that the witness has been asked to compare Canada’s laws against international law and in this case has brought to us comparisons with the laws of England, France, etc. The question is therefore precisely in order.

Justice Bauman allows the question as being in order and calls for a 10 minute break for Dr. Cook to review the associated text (3:10).

Court reconvenes at 3:20

Document (chapman text on english bigamy law) is entered into evidence.

Chapman text argues that the legal prohibition against bigamy is designed to prohibit fraud and deception where as polygamous unions which do not deceive are not subject to this law. This law was the predecessor to Canada’s bigamy law.

Dr. Cook states that she is not an expert in English Law and she is not willing to answer the question.

Amicus points out that Australia has very similar language and culture to Canada.
Dr. Cook agrees.

Regarding legislation in Australia, it is an offense to commit bigamy. In Australia’s consolidated marriage act of 1961, it states that a person who is married should not go through a marriage with another person. Australia, like England, has only one law that deals with the issue of bigamy. Australia has released a recent significant report on multiculturalism and the law. In the section on marriage and other relationships - the Australian law reform commission considered polygamous marriages and rejected that polygamous unions should be legalized or considered as a valid marriage. However, the same report concludes that further consideration should be given as to whether the offense of bigamy should continue to be considered a criminal offense. Especially when no parties are deceived.

Regarding the laws of Switzerland, Belgium and France, there is a provision that one can not enter into a second marriage until the first one is dissolved. In the Swiss law, it states that the first marriage must be resolved before a second marriage can be contracted. The laws of Luxembourg are also considered and in these laws it states that polygamy is legally recognized in about 50 countries.

It is correct to say that one way of determining if a practice is contrary to international law is to consider how frequently a law is prosecuted.

Dr. Cook seems to generally agree

In Canada, there have only been to prosecutions of the polygamy law in the past hundred years. Is this significant?

Dr. Cook questions what is meant by significant.

In the UN special recontour? report, Dr Cook had quoted that women are compelled to be obedient in some marriages through a “threat that the husband may take another wife...”. However, in the remainder of this quote, it lists the threat that the man may take another wife, threaten that he may divorce the wife, etc. In Canada, divorce is not illegal.

State parties have a great deal of flexibility to choose ways to eliminate discrimination, so long as the ways that they choose to use are effective. This is determined by the committee members.

International treaty bodies have been consistent in requiring states to protect the rights of women who are in pre-existing polygynous relationships. The state has an obligation to protect women by not recognizing polygynous legal unions and also the right insure women have the rights to resources to leave. Does not the continued criminalization of polygamy make it more difficult for women in plural unions to access help.

Dr. Cook argues that this is not always the case.

Amicus quotes from a text called “polygamy in a monogamous world” by amy? and hoffman? that was cited in Dr. Cook’s report. Asking if this is a well-researched book on the subject of the effects of polygamy on women, Dr, Cook responds that this is a well-researched comparative law book on polygamy but but it does not come from an international law perspective.

Providing Dr. Cook with a copy of the book, and turning to the section on international human rights law, the Amicus reads that “the criminalization of plural marriage can also prevent plural wives from accessing necessary assistance without risking prosecution for herself and her community”.

Dr. Cook does not agree with their conclusion on this item. She does not believe that they have an adequate understanding of the way that international law works.

The Amicus then turns to a human rights report from Uzbekistan and then reads that in the concluding observations inequalities persist between men and women in many areas of life. The committee further states that the criminal code criminalizes sexual relations between adult males.

Professor Cook then reasserts that she is not qualified to talk about specific countries.

Amicus asks whether Canada is considered by the international committees to have a serious systemic problem with polygamy.

Dr. Cook responded: No, not serious but “grave” (she mentions something about a scale of wording in the international agreement where the existence of any polygamy in Canada would be considered “grave” on this scale.)

Amicus; Referring to recent Canadian law reform report reads that polygamy in canada is a marginal practice that is culturally foreign and recommends decriminalization.

Dr. Cook responds that she does not agree. Any presence of polygamy in Canada may be seen as a grave concern to international committees.

Amicus: is there is any mention of polyamory in any international law.

Dr. Cook: no mention of polyamory exists in international law.

Amicus then refers to another paper entitled “Lawyers - everything you know about polygamy is wrong (or something like that)” that was quoted in Dr. Cook’s report and asks about their conclusion that suggests that polygamy should be decriminalized in Canada.

Dr. Cook does not agree with their conclusion - does not state why.

Amicus points out that the only polygamous community in Canada is Bountiful. Dr. Cook says that there may be more. Maybe Muslims. But she does not know. but there might be.

Amicus ends questions at 4:10. no further questions for Dr. Cook.

court dismissed.

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