Mormon Polygamy on Trial : Day 16 courtroom notes

Unofficial transcript - warning - there are likely many omissions and errors in the recording.

Jan 10, 2010 - Witte (pronounced like woody)

(commenced 10:03) Craig Cameron lawyer for AG Canada: seeks to qualify in marriage, history, family law and religious freedom.

Mr. Wickett from FLDS and BCCLA are not present.

John Witte Jr. -Received his education at Harvard. historical marriage, family law, religious freedom and legal history.

Currently professor of law at Emory law school. Emory law school has 50 faculty and 250 students. Emory is one of top 5 universities in US.

Witte co-founder of religion and law center at emory. teaches graduate courses in criminal law and family law. courses in comparitive religious liberty and the law.

Currently director of the religion and law center at Emory. The center specializes in the area of the religion and law. Issues of religion and human rights, sexuality, etc. Recently work on religion and the pursuit of happiness. Primarily focused on Abrahamic traditions but also attempting to include more information from eastern religions.

What approach does center take on its work. Seeks to be interdisciplinary, international and Inter-religious.

about 22 disciplines are represented.

Looks for comparison and flashpoints between various cultures and religions. Looking at aspects of individual freedom.

Attempt to give an open lectern to any voice that has a valid argument.

Center is non-partisan, non-aligned with any causes, etc...., The center itself is not associated with any individual causes but members can testify as experts in various cases.

Try to forgo any source of funding that expects pre-ordained results. Only want funding that allows for serious research into valid causes. Money will be sent back if benefactor expects results to move towards a specific outcome.

Editor or co-editor of several publication on law and religion. One is on marriage, religion and family. This series of publications is only on the issues of marriage, religion and society. Other publications are on religion and the state.

Received many awards and grants that led to projects under law and religion center. Some are joint venture projects with benefactor providing funds and emory providing scholarship.

Received funding from Pew foundation of 3.2 M$ in yr 2000 to do project on sex, marraige and family in the religions of the book and the other on children. Both projects were designed to sponsor a major interdisciplinary and inter-religious research effort to yeild 20 public forums, workshops, etc. and a major international conference. Out of project produced 32 volumes to date. the child project has same design and produced 24 volumes. each designed to look at the subject from ground up to look at how the tradtions of jewish, muslim and christian faiths compare to what is now known from modern sciences (pscych, sociology, etc).

religion culture and family- recently wrote a book on these issues - shifting models of marriage in the west from sacramental of medieval times, to culminating in the contract of marriage. overview. translated into 5 languages.

Written 180+ book chapters and publications. Tries to write 10 to 15 articles per year and a book per year.

Written extensively on religion, rights and liberties. Religious freedom questions under US constitutional law with comparison to other traditions.

Studies free exercise rights and whether a person’s freedom of thought, conscience and belief require exemptions under state law. recognizes both importance of and limitations to rights and exemptions. Looks at limitations on religious freedom claims that do harm to others and harms to democratic society.

Previous research is linked to the report on polygamy and monogamy in that this question is always present in the study of marriage history. Had not previously studied polygamy systematically.

qualfies as expert in legal history, religious freedom, religion and family law, diadic marriage law and the history of polygamy prohibitions.

Amicus : Professor Witte is not familiar with areas Canadian law. His expertise does not extend to Canadian legal history.

Primary duty is to assist the court and not be an advocate of any position.

testimony starts 10:40

Task included 4 things:

1. history of dyadic marriage in the west - starting at 5 or 6th century BCE in the west

2. look at treatment of polygamy in the west especially at law - why was polygamy specifically singled out against other sexual practices

look at the rise of impediments in the pre-contract phase as an impediment of subsequent engagement or marriage.

look at claims that have been made historically to engage in polygamy regardless of criminal prohibition of the same.


Report was structured in terms of chronology first - then identify major watershed periods where ideas where challenged and in transition.

More than 2500 yr tradition of treating marriage as dyadic relationship between man and woman.

started with rome in 6 Century BCE to 6C CE. Also unearthed biblical material and the early interpretation by church fathers from 2 to 6 century CE. looked at Catholic church justification where sources were taken from roman law.

looked at reformation era where common law was separated from canon law (post henry VIII - Witte reminds us that the English reformation was caused by a dispute over marriage sovereignty) and traces the emergence of prohibition against polygamy into criminal law in 1604.

ALso spent time working through enlightenment philosophers who looked at traditions vs natural law.

looked at the american story - how america perpetuates the history of western teachings on monogamy. also looks at history of those who sought religious exemption of criminal prohibitions against polygamy (mormons and also others).

Professor attempted to summarize to the very nub the concepts of monogamy and polygamy.

What were overall conclusions?

Western tradition has taught for 2500 yrs that marriage is a dyadic union between a man and a woman. in some jurisdictions, extended recently to same sex unions. consistently concluded that polygamy is not a valid union. after 9th century, polygamous unions became a serious capital offense - leading to execution in some cases. Thought that polygamy resulted in serious harms to women, children and society and could not be risked.

In fist section of the report, most important GrK and Roman period writings include a repeated core understanding of marriage that is then rationalized by philosophers - marriage is between man and woman - first by engagement contract and then by marriage contract. most often celebrated by party or celebrations. elaborate economic contracts are often between the engagement and the marriage. these contracts often survive past death or divorce. understood as a public and private institution that is consensual between the man and woman and also between the families. divorce requires a further contract and public acknowledgement.

The goods of marriage for the couple provides mutual friendship, support, love and mutual protection against wandering sexually. protection from assaults and also the only way to produce “legitimate children” and legal inheritances.

also thought to produce public goods because the household provides for the internal welfare and teaching for children. aristotle says man is a political animal but politics begins in the household.

roman marriage law began to formulate towards monogamy before the time of christianity - in the time of caeser augustus - and began to focus on crimes that undercut the goods that marriage provided to the community. singled out were adultery, incest and polygamy. these were un-natural ways of reproducing. Roman law created prohibition against polygamy among Jews, and north africans many yrs before christianity. initially, if parties were polygamous, they could not testify in court, hold military positions, hold political positions, etc. in 9th century, polygamy became a capital crime and was considered such until the 19th century. polygamy considered dangerous to society.

in what ways did greeks see dyadic marriage as useful for the state. saw dyadic structure as the only place were men and women could have equal offices and play equal roles to “complete each other” and to provide role models for children, etc. This balance creates children who can see how mercy and justice, equality and charity can be balanced. Aristotle saw this marriage as the first school of justice.

why are greek and roman thinkers relevant to today? Greeks and romans are forefathers and foremothers of our current democratic state. architects of western organized society. roman legal code is 1000 yrs old and deals with complex legal issues. Putting greek and roman law side by side shows that roman law incorporates concepts from greek philosophy. provides the source for church canon law and western law.

Prior to speaking to biblical foundations, explain to what extent the bible is in line with the greek and roman laws.

Bible is very consistent with greek traditions even though the hebrew bible was not influenced from the greek traditions. they developed independently but track similar teachings. preference towards monogamy are pre-biblical and pre-christian in origin.

the normative push of the biblical text is toward monogamy. starting in genesis, from 6 BCE, teachings are that 2 will become one flesh. Adam is incomplete without a woman. god creates a woman for adam and man becomes complete. therefore a man will leave mother and father and cleave unto his wife. Genesis 2:6 is echoed 6 times in the biblical text. overall, the biblical texts use a running metaphor of marriage as like the relationship between jahweh and his covenant people. It stresses the union of two - not 3 or 4 or 5.

IN new testament, marriage is used as a metaphor of the relationship between Christ and his church.

Problem is that there are about 12 stories of great biblical heroes who participate in polygamy. the church fathers, in his opinion, took the stories of woe within these great households as evidences of the harms from polygamy.

Two of those stories are famous and have been repeated by lawyers up to the 20th century. First is the story of Jacob who wanted to marry Rachel but was tricked and given Leah first. he was then in an incestuous relationship and and polygamous relationship. leah fertile and rachel not. leah lords this over rachel. concubines are then given to jacob to further the conflict. Then gives example of judah who has sex with his daughter in law. reuben has sex with his mother in law. there is sex, intrigue, slavery, violence associated with this story (*I’m pretty sure that this is a fairly good representation of what Witte said - however, there are a few mistakes in the story* for example, the first polygamist mentioned was a son of Adam, not Jacob. He also didn’t mention Abraham himself as the prototype patriarch polygamist, It is also difficult to say how Jacob marrying two sisters constituted incest - however, Isaac was told to marry his first cousin - and there was considerable incest (on the cousin level) in the early Jewish genealogies*)

the second example is from the story of king david. david’s psalms still very popular. david is polygamous and is inflamed in his passions. notwithstanding all his wifes and concubines, he falls for bathsheba. takes bathsheba during mestration - against torah. then david has bathsheba;s husband - uriah - killed. eventually leads to rape, incest, in david’s family and eventually leads to civil war. these stories can be seen as cautionary tales as to how polygamy leads to serious harms - perhaps ultimately violence and civil war.

10:35: the notion that polygamy is a cause of many harms has been seen as the valid reason to prohibit polygamy for more than 15 hundred yrs. Calvin also used these harms as a reference against polygamy.

Taking an argument from 13th century thomas aquinas - weaving philosophical insights with his own observations, makes an argument in a apologetic text against jews and other non-christians. First notes that humans produce fragile, dependent offspring that are dependent for long periods of time on parents support. Second, notes that humans do not have a “rutting season” with a following season of calm unlike other animals. Third, argues that human males must be induced to care for their offspring. females bond to their child naturally through pregnancy and nursing. men can be induced to care children only if they are convinced that they are his own offspring. If there was a unknown helpless child abandoned on the road, a woman would naturally pick it up and care for it but 99 men out of 100 would simply walk by and abandon the child (Witte seems to be paraphrasing something from Aquinas)because of these 3 facts of human sexual nature, humans have produced a system of pair bonding. aquinas allows that same investment and certainty can occur in polgyamous household. however, from natural justice, children are harmed because they do not have enough opportunity to bond with their fathers. their fathers have a long series of children. It also violates the rights of the wife because it violates the womans rights to mutuality and leaves her in a perpetual state of competition with other wives. this become the anchor argument of the enlightenment. the arguments becomes that hte child has the right to be raised by the natural parents that gave it birth, The woman has the natural right to her husband and not to be relegated to the position of slave in her household.

how did the enlightenment thinking differ from christian thinking?

beginning with john locke and others - enlightenment is post christian and sometimes anti christian. seeking by design to create a new school of thought. their arguments are now formed on philosophical grounds and not theological grounds. They seek to develop a philosophcial argumet based on natural law, philosophy, natural justice, etc. Many of them have rejected christianity as a working idium of thought. many were also working on a principle of human rights, etc. they use a differnent methodology but come to the same conclusions that polygamy is a cause of harm to women, children and society.

Justice bauman - does this invariably refer to polygyny rather than other forms of polygamy.

W; yes - they did not have these linguistic refinements available. whether using bigamy or polygamy, were assuming multiple wives for one husband.

Christianity recognized that marriage was monogamous and that is was an institution that had economical, social and sacramental aspects. Christian marraige was greco-roman marraige with a twist - because it had a push towards greater equality for women. in conrinthians, paul states that each has a right to the body of the other. in ephesian, it states that each one has an obligation to care for the body of the other.

Major enlightenment thinkers on the topic of polygamy and why they are significant for our western tradition. to take out a few who speak with authority on common law. First, henry Home - a lord of the scottish high court and a philosopher - offered several critical opinions in family law, marriage and sexuality - that were also on a-religious grounds. Why is polygamy a dangerous institution? gives a list of harms caused by polygyamy - it is bad for children because they do not have resources at their disposal. 25 children produced from 5 men gives more resources than 25 children by 1 man. Polygamy is a patriarchal fraud that renders women as indentured slaves who are in perpetual competition with the other wives. one wife is singled out as favourite and this leads to jealosy, competeition and eventually violence. It is bad for men, because it inflames a mans passion - ineviteably, if a man is allowed to have 2 wives, he will always want to take on a 3rd and 4th and 5th wife. Then the women will retailite by sleeping with other men and this will bring illegitamate children into the household.

Next is david hume - who is anti-christian - says that not one reed of christianity should stand unless it is backed up by other reasons. However strongly supports monogamy and condemns polygamy. it inevitably leads to a bad education for children. Humes was awre of polygamy because of knowledge of the british colonies. Humes states that the man will go to great lengths to confine, isolate and render their wives unattractive to other men to keep them under control.

William haly from cambridge gives a utilitarian justification - on the harms of polygamy - produces competition between the wives, corrupts the natural affection of the husbands, degrades women because they become simply instruments of pleasure for the males. the community gains nothing - while the man gains more children, each woman only has the same number of children as if each one had a single husband. if each women were divided into a single family, each woman would have more resources and children would have better care, support and inheretences.

Jeremy bentham says in regard to polygamy in general, it is not of the least service to mankind. not to either sexes the one that is abused or the one that is abused. the children do not have the same benefit of the attention of their parents. it is also bad for men because their passions are inflamed and once they have an additional wife, they will always desire more. Men’s desires, once unleashed, will not be tamed.

If we want to respect rights, dignity, etc. it is critical to support monogamy and criminalize polygamy.

These enlightentment arguments find their way into commonlaw writings about polygamy. This leaves monogamy as law and polygamy as crime.

Common law draws on a variety of sources including Anglo Saxon laws until the 7th century. after 1066, confirmation of saxon laws with additional of norma laws which came from roman laws. these laws are complemented by a body of canon law from the caltholic church. All of these systems prohibited polygamy. Two complementary systems from the 12th to the 16th century supported the ban on polygamy. after henry the VIII, whose break from the catholic church was related to marraige jurisdicion, marriage became the juristiction of the state alone. Since 1600s, there is a very firm capital crime prohibition against polygamy. When a man held more than one wife- whether bigamy or polygamy - , he could be convicted of a capital crime and put to death. The english common law prohibitions, from 1604 king james courts, were carried into the american colonies. after 1776, when english authority was cast aside, each state independently adopted criminal prohibtions against polygamy or bigamy. Jefferson instituted a comprehensive marraige law that included polygamy as a capital crime.

Regarding rights, responsibilities and obligations of marriage under common law - in 19th century efforts were made to describe marriage in terms that did not include theological canon law. Marriage becomes a status - this is more than a simple contract. Common law jurists go back to same formulations as roman law. Marriage is the union between a man and a woman presumably for life. triggers a set of natural rights and duties. man has duties to wife, wife has duties to husband that are over and above all other relationships. Parents have duties to children. these duties remain after death or divorce. presumption that spouses are required to care for each other first, and their loved ones. Marriage is a status that once acquired it cannot be removed. it is entered into by consent, but once entered into, it’s responsibilities are not negotiable.

Expanding on notion as both a private and public institution- this is an ancient teaching. It depends upon a contract, depends on mutual consent between the parties, private in these respects. However, also public responsiblity in terms of pro-creation, nurture and education for civil life for children, negotiated means of controlling distribution of wealth. This is celebrated by public announcements so that the public could weigh in on the validity of the unions. It is also a warning to all others against sexual advanced by others. society is invested in marriage - involves husband and wife, parents of partners, governments, religious institutions.. Divorce is also regulated - it is a public instition and it is a public decision on whether a marriage is dissolved. this is absolutely essential to society. these laws are essential - we might be inclined towards pair bonding and care for children but we are “wobbly” in these commitments. We need the stability of state law to insure we behave in the way that we should and do not simply follow our natural proviliclivities.

Lock saw this as part of the classic liberal understanding of a liberal society. Marriage is fundamental to the nation state. It performs a layer between the individual and the State. If marriage is not nurtured by the state, you lose the nurture of children, you lose the caring of husband and wife, you lose the means of conveying inheritance and property.


Court reconvenes at 2:02

Mr. Cameron: Can professor Witte comment on what the term conjugal union meant during in the formation of the common law.

Justice Bauman - is this necessary - I asked about the definition of polygamy.

Amicus - this would have been helpful earlier but not possibly now

Justice Bauman - can I get this information from the Brandize brief? - continue-

Cameron: Going back to the formation on the common law, polygamy and bigamy prohibitions go back to the 19th century -

Witte - No - it goes back to the 7th century. then it was continued up until the 19th century where we left off before lunch.

Prior to the Mormons - all of the states after the revolutionary war had to decide if they would adopt the pre-revolutionary laws. They all adopted prohibitions against bigamy universally until the mormons.

These bigamy laws were commonly used when one party to a marriage abandoned their spouse and went to another state. Or they were used when one party went overseas abandoning their spouse. If they were found-out, they were prosecuted and sent back.

Couples who lived together without legal marriage were charged with fornication, adultery or prostitution. Common-law marriages became a defense to these charges when couples were charged with these offenses would claim that they thought their previous marriage was dissolved - spouse died for example - and they had been living together as if married in this belief.

Congress passed anti-polygamy laws because they had jusistiction over the territories that were not yet states. After the Mormons announced their practice and preaching of polygamy, they determined that a law was required over the territories that was consistent with the laws that were over the states.

Can you comment on the rhetoric in the anti-polygamy laws?

There was ugly rhetoric on both sides of the debate. One must be aware of the context of the day. This was during the civil war, it was during the women’s property movement, this was during slavery, this was during the time when the native americans were being “reservated”. Many of the laws of the day used ugly rhetoric of this nature.

Concerns were related to the exploitation of women, the priviliging of the rich men over men who did not have capital, exploitation of women in the household - favoring of some and discrimination against others. concerns about coercion of the young, especially young women, and exposing children to violence and stresses in the household.

In speaking to common-law prohibitions on polygamy and the mormon challenge. Because of the distinctive placement of mormons in the 19th century, congress put in place its own laws for polygamy. when these laws were resisted, additional laws were put into place. in 1887, congress passed a law after armed conflict between mormon officials and federal marshalls, additional laws were put into place that confiscated the property of the mormon church until polygamy was abolished. after 1886, the mormon prophet, wilford woodruff received a new revelation that prohibited polygamy. After this, a small group of fundamentalist mormons have broken away from the main church and continued to practice polygamy. (*I know I did not get all of Witte’s own words recorded properly transcription, but it should be noted that he made several objective and verifiable factual errors in his narrative on the history Mormon polygamy - this is consistent with some of his later confusion on the subject. For anyone interested in his level of misunderstanding, the official transcript should be out in a few days.*).

Relating to the Green case (1980?s), a fundamentalist mormon was married to 9 wives, two of them under the age of consent. Some of the girls were under the age of 13. Green attempted to use the claim that the polygamy law violated his constitutional right to religious freedom. The Utah supreme court decision stated that whoever violated the anti-polygamy statute for religious or for secular reasons is liable for prosecution. The polygamy law serves the state’s rights to protect the vulnerable - in this case women and children. The religious freedom objection is not sufficient to balance the prevailing harms.

Judge Bauman comments that it is interesting that the Utah supreme court took such a short time to look at this item that we are taking months to discuss.

Witte: there are 4 sets of harms that are consistently identified with polygamy.
1)harms against women
-vulnerable women - orphans, etc are subject to stat. rape. arranged marriage, etc
-commodification of women - women are sold into marriage, women fathered into polygamous homes
-isolation of women - confining them to their homes, confining to small communities, women are bound in their homes - sometimes physically and sometimes through impoverishing them into bondage in the homes
-enslavement of some women and deification of other - jealously, scheming, etc
-objectification of women - they become vessels of procreation without the long term meaningful relationships
-impoverishment of women - women are not given opportunity or incentive to bring in their own resource. the spreading of one pot over too many women and children. Problems with legacy - post death provision is inadequate because the estate must be divided between many heirs.
-polygamy betrays fundamental ideals of companionship, women are unequal to each other and to their husbands. in modern language, polygamy offends the dignity of women


harms against children
Vulnerable to the years of discord and violence in the marital home. this is due to the inevitable violence and jealousy, intrigue and strife in the homes. Like in king davids household, these patterns frequently repeat
-harm to the development of democratic citizenship abilities. A child with a mother who is oppressed or virtually enslaved cannot develop these skills
-economic harms because of smaller child support
-harms the natural rights of the child


harms against men
One harm is often repeated is that richer, older men take multiple wives even if they are inferior in integrity or moral qualities, etc.
-polygamy causes the austracism of younger men
induces in them a false appetite in patriarchy, becoming a law unto themselves
-polygamy inflames the lusts of men - he is never satisfied with a second wife, he will always want more
-deprives a man of the bond of fellowship of mutual love. a man and woman should find their “other half”. refers to greek ideals (he does not go so far as to call soul mates - but this is certainly the context). Men in plyg rlationships are precluded from this benefit they are degraded because they can not find their other “half”.


4) harms against society
forms of violence, stat rape, sex assault, assault, are consequence of polygamy in society
polygamy has a second harm because it produces impoverished women, lacking opportunity to leave home, in post divorce or death women cannot cope independently. Men leave modest legacy and have limited resources for alimony and child support and this leaves women and children as a burden on society. Society often has to pay through welfare, etc.

Cross-examination: Only from Amicus (starts at 2:40)

On page 11 of report: paragraph 29 speaks of prohibition of polygamy - in 1604, parliament declared polygamy a capitol crime punishable by secular courts alone. To identify these laws- (hands out copies of the act of 1604) is this the law that you are speaking of?

W: yes - i believe it is.

A; Hands out the 1828 version of the law - is this the version you are speaking of

W: yes - i believe it is

A: a further consolidation was made in 1861 (hands out copies)
W: it is the same law

A: Law is repealed by the 1925 and 1967 legal provisions

W: for the 1925 repeal, it is my understanding that this only removed the statutory punishments. I don’t know what happened in the 1967 revisions.

A: Would France and the laws of France be considered the western legal tradition?
W: yes, france would be considered in this tradition

A: Would Belgium, france, luxemborgh be considered western
W: yes - all western european countries are part of this tradition. prior to the protestant reformation, they were all subject to canon law. After this period, i focused on england only. I do not claim to be able to speak about the divergence of laws of the continent.

A: In the laws of the continent, the definition is that one cannot enter into a marriage prior to the dissolution of the first.
W: yes, this would be a violation in the pre-contract phase of a marriage. It is a secular equivalent of the polygamy law.

A: are you familiar with the case of Hyde and Hyde in england. - you reference it in your report.
W: This is a case of where a mormon case trickled into an english court.

A: Are you familiar with this case?
W: I have not read the case recently. I did not cite the case elsewhere.

A: To summarize the opinion of the case, from the probate and divorce of England, the case involved a mormon couple married in Utah. Husband left the faith and went back to england. His wife did not. In england, he attempted to dissolve the marriage in an english court so he could re-marry. the english court did not recognize the husband’s case. The marriage was not considered valid because it was contracted in a state where polygamy was considered legal. The decision stated that the court only dealt with Christian marriage.

W; argued that something had to be wrong - polygamy was always against the law in the US territories. Witte challenged the amicus lawyer that something was wrong - confused or in error. Amicus stated that he was just reading from the decision. Witte objected again.

Finally Justice Bauman intervened that the English Hyde v Hyde case was from 1856. Witte accepted this and did not comment further.

A: marriage is more than a contract - it also creates a specialized status in all christian nations. it is of common acceptance on a universal basis and in christendom it is considered as being between one man and one woman. Would you consider this to be the standard statement on the definition of marriage until recently in canada?

W: Do not have ability to speak on laws of canada. however, this is identical to language used in a US supreme court case. this is kind of language is frequently used.

A: did you not testify on a supreme court case in ontario on same-sex marriage?
W: yes

A: going to court transcript - “when i refer to the west.... it is my understanding that these laws go back to canon law. when i refer to canon law, i am referring to christian law... divided into RC and protestant .... canon law dominated western legal understanding ... “ are these statements true?

W yes

A: In the 2005 transcript from the Supreme court of Canada case on same-sex marriage, you described the legal roots of marriage, development of marriage in christian tradition, early christian thought on marriage , explained how 19th century american law was influenced by protestant views of marriage. is this not what you are doing here?

W; yes

A: is not the western christian tradition informed by roman and greek law together with enlightenment philosophies.
W: yes

A: Quoting something by Witte that goes something like “ neither my scholarship or this document is a theological definition. however, it is necessary to examine religion and law considering the overwhelming influence of religion on marriage law.” is that true
W: yes

A: regarding the halperin case (same sex marraige case in ontario from 2005) - from the decision Witte gave the history of the framework of marriage in north america and the west - he sets marriage as the framework for procreation and being between two sexes.That is only reference to Witte’s work in the decision - do you know of any others.

W: no - i have not read the decision

A; from the decision, on page 22 - uses the reference from the Hyde v Hyde case. discusses how “this came at a time when the society was homogenous in shared christian values. this is no longer the case”. This is part of the decision of the supreme court of canada in the same-sex marriage case.

W: have you spoken about polygamy the past. given a radio interview with a ? adrea ??lucene?

A; not academically - but once

a; goes to emory law website information -
w; i have not seen this

a; is this your webpage?
w; yes - i will accept it is

a; quotes reference stating how polygamy is not legal but it may be in the future.
w; i have not seen this - not being evasive - just haven’t seen it

a; you will see that this is a 2008 Q and A interview - Q: you have been following the case about the raid in texas. do any of the legal issues there concern polygamy? will there be any charges on the basis of polygamy “ A: (from Witte) i doubt it - however, i suspect that the charges will largely be on abuse of women, underage marriage, child abuse, etc. Does this sound familiar?

w: yes - I could have said that

a; reading from Witte’s document “there has long been documentation of 30000 mormon fundamentalist and now there are muslim communities as well. rarely are these laws prosecuted because of the constitutional freedom of religion questions that it will undoubtedly raise. “ (or something like that...) Did you say that?
w: generally agrees it is possible

a; reading from interview “the rational used to be from a biblical basis ... it is harder to press that case today given the first amendment prohibition against the promotion of religion.” Did you say this?
w:yes - or at least it sounds familiar.

a: regarding reynolds decision - and considering other marriage laws in the USA - Were not inter-racial marriages illegal in many states?
b: yes

a; misagenation law struck down in 1886 and reynolds case from 1879. was not adultery also on the criminal code? and fornication on the criminal statute books? but you do not speak to these issues in your report

w: i do speak about adultery because of harms caused to women and children. there are also harms caused by no-fault divorce. these harms are very similar to those caused by polygamy.

a sodomy was also illegal in most states?
w; yes until lawrence case in texas

a; from texas of statute, laws against sodomy were deemed unconstitutional because it violated other statutes. in the lawrence case, the majority held that - from the Baur’s case - that because a state’s governing majority has held something is morally wrong does not mean that it should be illegal. Justice Scalia dissented - “the texas statutes seeks to further? or express? the moral values of the texas majority” from majority decision states “no legitimate state interest should violate freedom of the individual in these matters .. end of moral laws... “

A: did you cite the lawrence case.

w; no - sodomy is now considered to be a victimless crime, polygamy has victims - the women and the children. the victims are women, children, men and the state. it is now understood that same sex couples receive many of the same goods as heterosexual couples. it is still a dyadic marriage. with new forms of reproductive technology - children can even be born to same sex couples. putting sodomy aside, which some consider immoral - or morally repugnant.

moral repugnance is a legal term - mala in se - something bad and in and of itself - something grossly unnatural. Now the umbrella term for something like polygamy - or incest or bestiality. these things are the cause of over-riding harms.

a: turning to same sex marriage debates - in halperin case - and appreciate it has shifted - AG canada was, at that time, seeking to uphold the traditional definition of marriage as between one man and one woman - Canada now embraces same sex marriage. in the usa, this debate rages on. Is this true.

w; yes this is changing state by state. 38 states now have prohibitions against same-sex marriage.

a; from a online article by witte - do you accept it is your article? \
w; yes

a; quoting from Witte’s article; “states have reduced marraige to a individual sexual contract between individuals. states have allowed parties to define their own status and obligations. criminal prosecutations for adultery, fornication, etc. have long ceased. Many states are hard pressed to resist the next logical step to same sex marriage. Is this true?

w; yes -

w; as social science literature has demonstrated, today's easy-in and easy out form of marriage (from no-fault divorce, lump sum payments, etc) has led to the feminization of poverty.

a;

Mormon Polygamy on Trial : Day 15 Summary and Media links

Dr. Rebecca Cook, distinguished professor of international law from University of Toronto, was called by the AG of Canada to testify as an expert witness regarding Canada's international treaty obligations to uphold the anti-polygamy law. Dr. Cook pointed out that several international committees are focused on eliminating systematic and structural discrimination against women. Many of these committees have explicitly referred to the "structural asymmetry" of polygamous marriages because the vast majority of cultures allow men to have multiple wives but do not allow women to have multiple husbands. On at least two occasions, Professor Cook cited the inequality inherent in patriarchal marriage systems that allow husbands to have more than one wife. She also stressed that Canada, as a signatory country to at least 5 relevant international treaties, is obligated to take any and all measures possible to eliminate all structural systems of discrimination that stereotype women as being inferior to men. She also testified that there is a discernible and systematic trend in the recommendations made by the international committees to prohibit or restrict polygyny in countries where it is practiced.

On a side note, the media reports tend to ignore some interesting items that came out under cross examination. First, none of the international treaties or agreements specifically refer to polygamy or polygyny. All of these bodies specifically refer to the elimination of all structural systems that systematically discriminate against women - and since polygamy tends to do this, she automatically considers it is a subset under these restrictions. Nevertheless, it is safe to say that many more Canadian women are discriminated against and suffer a loss of dignity at the hands of monogamous patriarchal systems than those who suffer under polygamy. For example, the Catholic church, LDS Mormons, fundamentalist evangelical Christians, conservative Jews and most Muslims all practice religious systems that uphold men as the head of the household and restrict women from leadership roles in their religious communities. Members of some cultural groups within Canada are actively practicing arranged marriages, invoking dowry obligations and in extreme cases, enforcing these structural inequalities through "honor killings". Almost all of these patriarchal communities are not polygamous - yet they are certainly problematic for discriminating against women.

International law, in itself, seems to be a paradox. Professor Cook often compared Canada's laws against other countries like Australia, the UK, France, Belgium and the USA. She argued that none of these countries have legalized polygamy so it would be extremely unusual to do so. However, it turns out that the UK and Australia only have a law against bigamy and have never explicitly criminalized polygamy. The Amicus even presented information from the same authoritative texts that had been quoted by professor Cook that suggested that these countries may not even consider polygamy to be a criminal offense under the bigamy prohibitions. They are even questioning whether to drop the bigamy offense. In fact, Canada is the only country that has federal laws against bigamy and polygamy. If we dropped section 293, the anti-polygamy law, we would have exactly the same protections as the UK and Australia. It is also very difficult to understand how to compare legislation and international committee recommendations for countries as diverse as Canada, Uzbekistan and South Africa. The same committee general recommendations that criticize polygamy in Uzbekistan seem less concerned on the criminalization of homosexuals. Where would Canada stand on that?

Dr. Cook also conceded that there is no police to enforce international laws. The system is honor based - States, like people, should follow through on their commitments. If not, they should be "ashamed - and no country wants to be a pariah".

Finally, Dr. Cook conceded that the world community is not really paying much attention to women's issues on the international stage - lamenting that most of the diplomatic efforts are focused on issues like global warming. And I'm sure everyone will agree that international shame and embarrassment have been very effective in persuading Harper's government to honor Canada's Kyoto treaty agreements.

If the collective international action on global warming, genocide and war crimes are any indication of the effectiveness of international law, I confess that I really can't take international law very seriously.

Polygamy on the decline worldwide: Law professor

Polygamy hearing: Evidence so far shows polygamy inherently harmful

Polygamy subject to rights law: Prof

Decriminalizing polygamy would be a breach of Canadian obligations - Think Tank

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.

Mormon Polygamy on Trial : Day 14 Summary and Media links

The BC Supreme court reconvened on Jan 5, 2011 to hear testimony from independent Mormon scholar Dr. W. John Walsh. Dr. Walsh was requested as an expert witness by Mr. Wickett, the attorney for the FLDS in Canada. Dr. Walsh brought an important perspective to the proceedings - and the media reports do a good job of covering that.

However, before offering my personal slant on Walsh's testimony, it is worth noting some of the important things that the media sources have not mentioned. The most interesting of these points came from the video interviews with Brent Jeffs (Grandson of former FLDS prophet Rulon Jeffs) and Ruth Lane (ex-wife of Winston Blackmore - who is one of the current fundamentalist LDS leaders) that were shown in the afternoon. Both Brent and Ruth have left the FLDS church, and both of them experienced significant abuse of various forms while in that church. However to their great credit, they did not exhibit the one-sidedness and bitterness that often accompanies these traumatic events.

Brent Jeff's concludes that the restrictive and abusive treatment that he experienced has its' roots in Joseph Smith's own teachings. However, in spite of this, he does not hold animosity towards any church. Rather his statements have been consistently targeted towards his own uncle, Warren Jeffs - the current FLDS prophet, who is responsible for an un-precedented reign of abuse where he has torn families apart and forced church members to leave their homes and communities.

It is also worth noting that while Ruth Lane has concluded that the FLDS church is not consistent with her concept of a loving God, and that she would no longer even consider living in a polygamous marriage, she still believes that the polygamy law should be repealed. From her perspective, the criminalization of polygamy only makes the FLDS community more isolated and this makes it more difficult for everyone - men, women and children - in the community. She also believes that people should be allowed to live as they see fit as long as everyone's rights are protected. However, as an interesting caveat, Ruth believes that no one under the age of 21 should be allowed to enter a polygamous marriage. She was 18 when she married Winston Blackmore - who was 17 years her senior and already had 9 other wives - and she believes that this was too young for anyone to make a decision of that significant nature.

Back to Dr. Walsh, his earlier background was in the business world, but over the past years it seems he has retired and begun a serious scholarly focus on religious studies. According to his testimony, Walsh was a convert to the LDS church more than 20 years ago. He went to BYU, was involved in the LDS CES seminary program and has published several articles on the FAIR LDS (mormon apologist) website.

His participation in the FAIR on-line community rose to haunt him during his testimony. Craig Jones, chief lawyer for the BC AG, challenged his qualifications to testify as an expert witness. Primary among these objections, Jones read from on-line postings attributed to Walsh and characterized him as a "cheer-leader for polygamy". Walsh seemed uncomfortable with these postings, and said he does not specifically remember writing them. However, he conceded that they reflect a valid understanding of LDS mormon doctrine and he wrote many similar articles during his early years in the Mormon church.

It also seems that Dr. Walsh has matured in his viewpoints as he has pursued his PhD in religious studies. To his credit, he took his masters level course in religious studies under a supervisor who is a Jewish Rabbi. His PhD thesis is on the theology of Joseph Smith in comparison to other major theologies. Currently, he is sitting in on classes in a Catholic seminary.

Dr. Walsh clearly favors a repeal of the polygamy law. In direct response to the AG BC question, Walsh stated that he did not personally agree with the 1878 US Supreme court decision on the Reynolds case, which effectively led to the forced cessation of Mormon Polygamy. However, contrary to conventional Mormon doctrine, Walsh also offered that he is also a supporter of same-sex marriage. He believes that people should be allowed to associate as they see fit. If a woman chooses to live with 5 men, or if a man chooses to live with 5 women, he stated that he believes the State should not prohibit this - as long as everyone is a freely-consenting adult and people are not abused.

Dr. Walsh's testimony opened the door to an uncomfortable question. Under oath, he stated his opinion that the FLDS and LDS church's have about 95% in common doctrine and 75% in common practice. He also gave an accurate history of the evolution of the mainstream mormon church and the attendant rise in the fundamentalist movement. Probably even more controversially, he stated that a divide exists the present-day Mormon church between those who believe polygamy is a "holy principle" that will one day be practiced again (either on earth or in heaven) and those who believe that polygamy is an "archaic practice" and a stain on the history of the church.

From my personal experience, I believe that Dr. Walsh is correct in this assessment. However, Daphne Branham has taken this statement and made a very unreasonable extrapolation. Stating that close to 6 million LDS live in the USA, she estimates that if our polygamy law were rescinded, that it could provoke a schism in the LDS church. The pro-polygamy faction - which could be as high as 3 million latter day saints, could flood into Canada.

I personally believe that Daphne has left out two major factors from her analysis. First, this was the same argument that was used against Canada's decision to legalize same-sex marriage. Since about 10% of any population is gay, and there are 300 million American, if Canada legalized gay marriage, we would be flooded by 30 million gay Americans who would naturally want to move here. Did that happen? Second, the Mormon church already operates in many countries where polygamy is legal. However, the church explicitly states that polygamous families in these countries cannot become members of the LDS church and if any member becomes polygamous - even in these countries - they are subject to immediate ex-communication.

This is obviously a big inconsistency. The Mormon church doctrine still endorses polygamy as a sacred eternal principle, yet it does not allow the practice because it is "against the laws of the land" - even in countries where it is not against the law. Personally, I suspect that this is because the LDS church has become profoundly American - therefore, the only constitutional law that concerns the church is American constitutional law.

This may be a secondary motivating factor in the LDS church's support for a US Federal constitutional amendment defining marriage as being between "one man and one woman". In the short term, it serves the purpose of prohibiting same-sex unions and in the long term, it reduces the chances that polygamy will ever become legal in the USA - where it really matters. If polygamy were ever legalized in the USA, where there are many influential and powerful LDS families with deep polygamous roots, it could potentially lead to the kind of split that Daphne suggests.

It is also interesting to note that Mormon polygamy did not end with the federal anti-polygamy prosecutions. This only served to drive polygamy into a secret, underground practice among a elite inner circle of church leaders. What really ended polygamy in the LDS church was the appointment of Mormon Republican Reed Smoot to the US senate in 1903. Now, a little over a century later, Mitt Romney has a reasonable chance of becoming the first Mormon to become President of the United States. Romney is the first man since the prophet Joseph Smith to run for that most powerful office - I don't believe the LDS church will allow polygamy to stand in the way of that.


Mormons split over polygamy practice, expert says at trial - Think Tank

Forced polygamy a 'deviation' from Mormonism, scholar testifies

Mormons denounce forced polygamous unions, expert says

Forced polygamous relations against Mormon beliefs, court told - The Globe and Mail

Mormon Polygamy on Trial : Day 14 courtroom notes

Please Note: These notes do not represent an official transcript. There are likely many errors and omissions, perhaps more than usual because I am out of practice typing and the court proceedings seemed to be rather rough and uneven this morning.

Dr. W. John Walsh called as an expert witness by Mr. Wickett on behalf of the FLDS.

Holds Doctorate of religious studies, which is a scientific study - cross disciplinary between humanities and social sciences as opposed to theology which is the study of dogma and doctrinal absolutes. Graduate of LDS CES church Education System seminary training system. Graduate of Arizona state university, LDS institute. CES is considered theological training. Received a degree in Jewish religion. Phd is on religious studies and thesis was on the theology of Joseph Smith.

Currently attending Catholic seminary classes in Texas.

Walsh is currently working on a major book, and testifying as an expert witness in court cases relating to mormonism. Provides background information on mormonism to media, etc. Been qualified as an expert witness on mormonism in two cases in texas.

Cross examination by Craig Jones AGBC on qualifications:

On page 2 of affidavit: questions as to professional experience -

is currently a full time scholar. Only income is from court testifying and investment income. Professional background was with Ford motor company. Most university has been distance education.


Craig: Why would you pursue a degree on mormonism from a university in wales while living in the United States?

The University in Wales was one of the few universities that would sponsor a PhD in Mormon theology. However, all of the research materials for mormonism are in the united states.

Craig: As far as your professional experience, have you only testified in favour of FLDS as a professional witness?

Dr. W. No - has testified on various aspects of Mormonism depending on what was required by attorneys. Testified in the eldorado child custody case.

Craig: your article “Are Jesus and Satan brothers?” is in a peer reviewed journal however, this journal is hardly a leading journal in the field as it has only been in print since 2008.

Dr. W. This is one of the first major attempts towards an academic journal for mormonism which is a very specialized field.

Craig: Normally with an expert witness there is a long list of bursaries, awards, scholarships, etc. Have you received any of these?

Dr W. no

Craig: are you a member of the flds, or is there any part of your family members?

W: no

Craig: You are more familiar with Flds theology than day to day practice

W: yes

Craig: Would it be fair to say that you have no expertise in the harms of polygamy?

W: no - it would not be fair to say because very familiar with literature on the subject

Craig: over the course of your studies - have you interviewed people from the flds faith

W: over the past 20 years, perhaps in discussions with 50 to 100 people from flds tradition. not formal interviews

craig: Is it fair to say that you are not qualified to assess the sociological harms or psychological harms?

W; sociology is best for social harm, psychologist is better for psych harms however religious studies is important for the interface between these.

Craig: Do you recognize this essay from the internet as being something you wrote?

From “What is purpose of plural marriage” - credited to W. John Walsh on
http://www.lightplanet.com/mormons/daily/history/plural_marriage/menvswomen.htm

Craig (AGBC) read the following:
“Occasionally, I have met people, both men and women, who have objected to the sacrifices required by plural marriage. To put it simply, many women don't look forward to sharing their husbands emotionally, spiritually, or physically. Many men don't look forward to supporting multiple families emotionally, spiritually, or physically. To help people understand the goodness of plural marriage, I have used a simple techninque which almost always works:
For Women:
I hate plural marriage and will never accept it!
 Let me ask you a question. You are close to your sister, are you not?
 Yes, we grew up together, and now that we are grown, we love to call and visit one another.
 What if your sister were in a situation in which she had no hope of a righteous marriage partner unless she were to live the law of plural marriage? The only way she could enjoy the blessings of marriage and children would be if she was taken as a plural wife. Would you let her live single, knowing that she wants marriage and family, while enjoying your own marriage and children? Furthermore, would you stand in the way of her being sealed for eternity to a righteous man and risk her marrying a man would is faithless and lose her exaltation? Or would you change your mind about plural marriage and let her marry your husband?
 Well, I would hate to watch her suffer. I love her too much for that. And I would feel terrible if she married outside of the covenant, just because I refused to let her marry my husband. I guess we have such a good relationship that I would not mind so much under those circumstances. 
 Since you can see that plural marriage would be acceptable in some circumstances, what makes other circumstances different? What if your best friend were in that situation instead of your sister? Could you accept plural marriage to help your best friend receive these important blessings?
 I love my best friend too. It wouldn't be so bad to have her in my household. We could have so much fun together. I guess that would be okay too. But I wouldn't just do it for anybody.
 Why did you draw that line? You know that people asked to live the principle of plural marriage are righteous people, so you know that your husband's plural wife would not be wicked. She would be trying to live the gospel of Jesus Christ. Should not all of your gospel sisters be truly loved as sisters and friends? Could you let some women suffer and deny them marriage and children, while letting others enjoy the blessings you enjoy? What does that say about your own Christ-like feelings and behaviors?
For Men:
I could never accept plural marriage! The whole idea is repugnant to me.
 Let me ask you a question. Do you love your family?
 Of course I do. I'm close to all of my family. 
 How would you feel if your sister or daughter could not find a righteous husband? The only way they could receive the blessings of marriage and family with a righteous man is if they were to live the principle of plural marriage. Now, what if they would only do it if you accepted the marriage? Would you still reject plural marriage, denying your sister or your daughter the blessings of righteous family life? Would you risk letting them marry a faithless man just so they could have marriage and family, rather than living singly and alone? Or would you accept their plural marriages?
 Well, those are pretty stark circumstances. But, if that were to ever happen, I would be grateful that they had a righteous husband, regardless.
 Now, what if your wife's sister were in the same circumstance. What if your wife came to you and told you of her sister's longing for a husband and children, how she loved the Lord, and how she could not find a righteous husband and feared she may never marry in this world. Then your wife were to ask you to consider marrying her sister, someone she loved so much and suffered watching her suffer, so that her sister could receive the blessings she desired. Could you reject such a plea?
 I never thought my own wife would make such a request, but I can see why she would in such circumstances. If she felt that way about it, I guess I could not refuse her sister's desire for righteous family.
 Now, what if your wife came to you and told you about her best friend in the same circumstance. Could you reject this woman's righteous desires?
 No, I guess I could not.
 Now, if you would do this for someone that you and your wife both had great love for, why is plural marriage so repugnant? Do you think that you would not love a righteous woman who desired husband and children and loved the Lord?
 When you put it that way, I think I would love her, or learn to love her. But there's still issues to consider: personality conflicts, having so many children that I couldn't provide for them, not having enough time for everyone, I have a hard enough time just pleasing my own family.
 If marriage is a way we prepare for eternal life, would more family life help you prepare even better? I think so. Personality conflicts can be overcome through righteous living, repentence, forgiveness, and patience. Large families help you prioritize your time, money, and efforts. You can't waste time doing things of little worth. You must spend your time focusing on raising your family, teaching them how to work and about the Gospel. The traits you develop in this family can only further your development as you strive to become more like the Father of us all.
 I never thought about it that way. I thought plural marriage was mostly about sex, but I can see it is actually designed to make us more like our heavenly parents.”

Dr W: I don’t remember specifically writing this - however I may have written this many years ago when I was a new convert to the mainstream mormon church. However, the article, in context, is representative of traditional LDS doctrine and beliefs.

Craig: Does this embarrass you?

W: anything i wrote prior to my phd embarrasses me - however, I wrote many, perhaps hundreds of articles between 10 and 20 years ago as a new convert to mormonism.

Craig: Does this document represent your personal view as a scholar?

W: Not as a scholar - no

Craig - goes to another article but there is alot of unclarity between what Walsh wrote and when. Dr. Walsh also commented that on the internet, many of the things that he wrote were in the form of postings on bulletin boards and these may have been edited, added to and changed by other people who reposted his comments.

Craig - going to article about why the mormon church abandoned polygamy (http://www.lightplanet.com/mormons/response/qa/plural_revelation.htm ) - asks whether Dr. Walsh believes that polygamy was abandoned by the mainstream church because of revelation or because they bowed to the laws of men.

W: currently has no opinion on this

Craig: Is it your view that the Reynolds decision should be overturned?

W: as a scholar, i have no opinion - personally, i don’t agree with the reynolds decision - i believe people should be able to associate as they see fit.

Craig: Do you believe strongly that members of the LDS religion should be able to practice polygamy?

W; I believe that people should be able to live as they see fit - my views are not the same as flds or lds church. For example, i personal believe in samesex marriage while those churches do not. I also believe that if a woman wants to live in a house with 5 men, that is her business or if a man wants to live in house with 5 women that is his business. There should be reasonable limits on relationships, like age of consent, but otherwise people should be able to associate as they freely choose.

AG Canada: Relating to the informal research that you have conducted - the interviews that you have conducted with flds are not official qualitative interviews

W; correct

AG Canada challenges Dr. Walsh’s qualifications.

AG Canada: You do not have any training in conducting social science interviews

W: I have taken some courses in research techniques - stats, interviewing, etc - but this is not relevant because I have not conducted these types of interviews with FLDS members.

AG Canada: please restate the difference between theology and religious studies

W: theology studies and re-enforces dogma : religious studies is a subset of anthropology which details the religious aspects of man. religious studies is primarily focused on comparative religions, etc.

AG Canada: Does any of your published work relate to how religious beliefs affect the quality of people’s lives?

W: no

Craig (AGBC interjects): Absolutely has no reservation relating to Dr W ability to testify relating to doctrinal issues, etc. However, is not comfortable in that Dr. Walsh is not qualified to speak to how things are implemented in practice. For example, he may say that it is not doctrinal to force someone into polygamy - however, this may be done in practice - and he can not say whether or not this is true.

AG Canada: Backs up AG BC comments - would insist that testimony should be restricted matters of doctrinal nature.

Justice Bauman: Qualifies Dr. Walsh as expert witness

Direct examination by Mr. Wickett (FLDS attorney)

On paragraph 10 or report on page 3 - where you describe the common heritage between LDS and FLDS you say that about 95% of theology remains in common while there is only 75% similarity in practice.

W: FLDS continue to live in polygamous marriages where LDS do not. LDS continues to believe in law of consecration but do not live it while the FLDS members continue to live in communes. LDS dress more like broader society while FLDS dress more modestly with a separate identity.

Mr. Wickett: You state that both churches share the same scriptures - bible, book of mormon, doctrine and covenants, pearl of great price - please explain.

W: describes scriptures of the LDS churches

Mr. W. Referring to the polygamy manifesto - please describe how this was treated doctrinally in the church

W: Officially there has been no change in the LDS church’s theological position on the doctrine of polygamy. However, practically, the LDS church is divided into two main groups. One group believes that polygamy is a holy, Celestial principle and it should be re-instated. The other group believes that polygamy is an archaic principle and should be removed completely from the church.

Mr. Wickett: How has the practice of polygamy led to schism in the LDS church?

DR. W. traces the way that the mormon leadership moved away from polygamy - including the way that the church embraced mainstream social values, changes in leadership, the international expansion of the church -

traces how the church moved towards monogamy and how in the 1930s they began to excommunicate polygamous families. These families initially formed loose associations and eventually these groups became the core of the FLDS and other fundamentalist Mormon groups.

Mr. W: you have stated that there are about 50000 fundamentalist LDS and of these, 10000 are in FLDS. Have you met with people from the other groups?

Dr. W: Attended church services with AUB, independents, FLDS, etc. and studied how they have interpreted mormonism in their practical lives.

Mr. W: How do the flds interpret civil marriage vs celestial marriage.

Dr W: Cilvl marriage is a function of the established government that provides certain rights for the married status. Celestial marriage is a way to link people into a chain of family structure that includes everyone from Adam downwards. FLDS believe that everyone needs to be sealed to be part of a celestial group.

Wickett: do FLDS believe that all sealings require sexual relations?

Dr W: No, for example some older widows may be sealed to younger men as a way of providing for their care. They do not believe in nursing homes, etc.

Wickett: How is Priesthood authority understood in the FLDS?

Dr. W; the only things that are in effect are things that are sealed by the holy spirit of promise. this is a safety valve in the priesthood because if a man claims to have the priesthood but is not acting righteously, his priesthood actions have no authority.

Mr. W: How are marriage partners chosen in the FLDS tradition?

Dr. W: from the outside perspective, FLDS marriages are match-making or arranged marriages. within FLDS these assignments are seen as revelations from God through the prophet. Vast majority of marriages in other fundamentalist mormon marriages are self-selecting.

Mr W. Have the FLDS always had arranged marriages -

Dr. W. No - this placement system was incorporated as part of a re-trenchment system that occurred in the 1950s because a leader felt that the group was becoming too worldly.

AGBC: this is going beyond affidavit evidence - should be restricted

Justice Bauman : agrees

Mr. W. relative to your statement on free agency in FLDS

Dr W: mormonism has a higher understanding of free agency. in christianity, judaism, islam, humans are created. they have only rights to the extent god grants them. In mormonism, human beings are co-eternal with God and have rights that not even God can contravene.

Mr W: completes examination

Cross-examination by AGBC:
AGBC; are you familiar with collected writings of Rulon jeffs called light and truth ?

Dr W; Yes - i have read part

AGBC - is this book used by mainstream lds?

Dr. w: no

AGBC: you stated that 75% of the practice is in common - where does this come from?

Dr. W: this is a personal observation based upon attending fundamentalist and mormon worship services and talking to people about how they interpret the religion in their lives. it is an estimate only.

AGBC: are you familiar with the evidence relative to harms in this constitutional question?

Dr. W: no

AGBC; In your affidavit, you describe an FLDS marriage service. have you ever attended one?

Dr W; No - this description comes from descriptions of the way Joseph smith performed marriages and this has been compared to writings from journals from flds members and this seems to have remained consistent.

AGBC; You state that both parties to the sealing must come of their own free will. how is this determined?

Dr W: this comes from the theology. if either party is forced, then god would not approve of the sealing and it would not be in force

AGBC: would this be abuse of authority if one party was not willing

Dr. it would be abuse of power and god would not authorize

AGBC; turning to page 54 of life and truth - the writings of leroy johnson, “there is no place in the celestial kingdom for a bachelor or someone who has not care for those who the lord has given them .... - cast out” Does this mean that being cast out of the community or being destroyed is a spiritual consequence?

Dr. on a theoretical or practical level?

AGBC practical

Okay - if a person behaves in ways that is not accepted by the community they can be cast out. this happens in every community in one way or another

AGBC does this happen if someone does not agree to get married?

not normally - not at first - however, if anyone is causing a great deal of harm to the harmony of the community they may be asked to leave.

AGBC you have testified that you are not familiar with dr beals testimony where he has stated that a young man or woman can not freely give consent within these communities - do you agree?

Mr. W: objects because it is not appropriate for a witness to evaluate information provided to the court by another witness

AGBC; Relating to the trial transcripts from texas - is there anything in flds theology that indicates that women should submit to men in their community. yes - from first timothy in bible - flds, mormon and methodist women have interpreted this in various ways over time.

AGBC; referring to light and truth - from leroy johnson - “unless a man can take these young girls and train them to love their husband and love the lord they will lose them” does this allow freedom for women in these situations?

W; yes - where that says training, it means teaching - unless a man can teach a woman properly it will have spiritual consequences for him.

AGBC _ quoting “there must be order in families as there is in the priesthood - from ephesians - women must submit themselves to their husbands as you would to the lord - even if your husband is not worthy of you

Dr. W; the way i read this in the context of lds theology is that men and women are imperfect but unless there is some major abuse in the marriage - which has separate rules in the community - that the sealing needs to be held and people need to work to make the marriage work.

AGBC- I disagree with you that the marriages are entered into willingly - you and i both know...

Is there anything in LDS theology that indicates the age for marriage?

Dr. W: there is nothing that says that the lord says that you must marry at a specific age.

AGBC; quoting from transcript - relative to the age of marriage - some flds leaders have said in meetings that 18 is the correct age, others say 16, still some when a girl has her cycle” did you say this?
Dr W; yes

AGBC: reading from summary of the YFZ case, table shows that 1 out of every 4 underage girls where involved in a marriage. so if one in 4 girls is in an underage marriage is this not something more than doctrine. there must be another reason.

Dr. W; there is no doctrine about this - it is a deviation from traditional lds and flds practice. For example, in this example, 12 yr old girl was married here and most FLDS members would be shocked and troubled by this occurrence.

AGBC: if there is evidence in this court that the flds have typically engaged in underage marriage, do you have any evidence to contradict this?

Dr. W: i have no specific information about flds in canada, i can only say that this is not what i have experienced in my research and experience.

AGBC: could birth records be used as a way to determine marriage age in the community?

Dr. W. yes - provided it is an accurate statistical survey

Cross examination by AG Canada:

AGC; celestial marriages in the flds community must be performed by someone who is recognised as having priesthood authority and these marriages involve the exchange of certain vows between the parties. is this correct?

Dr. W: yes

AGC: from a trial in utah,reads from transcript - describing a marriage between holms and ruth stubbs performed by warren jeffs ... does this describe a typical marriage ceremony in the flds tradition

Dr. W: this description contains all the typical elements

agc: after this ceremony, the couple considered themselves husband and wife - is this typical?

Dr W: yes, this is typical - however, not all sealings are marriages.


AGC: Is it true that sexual intercourse is only sanctioned within a sealed relationship within these communities?

Dr. W yes

agc: within the theology, is there any specification of the appropriate age of marriage. Is there anything to prevent underage marriage?

Dr. W: there is nothing specific in the theology to restrict the age of marriage. no dogmatic statements are given on this. however, the members of the flds community would generally be shocked by marriages of girls 12 or 13 years old.

AGC: are you aware that girls of this age have been married?

Dr: W. I am aware of these allegations

AGC: reads from court transcript which claims that marriage is talked about in the home, in the family in the church. their whole lives are centered around marriage, families, etc. In the transcript it states that warren jeffs has performed marriages for girls as young as 13.

Dr. W. yes - i have heard of this.

AG Canada completes Cross examine. No other cross-examination. Court dismisses for lunch.

2:00 court returns

video testimony from Brent Jeffs filmed in Salt Lake

Son of Warren and Susan Jeffs. Grandson of Rulon Jeffs - grew up in compound near Sandy Utah - about 20 mins out of Salt Lake. His father had 3 wives and he has 20 siblings. His father always taught to be yourself - however, with so many siblings it was difficult to get attention from the parents. There was a frequent problem with other wives being jealous and taking this out on the children of the other mothers. Even though he was the grandson of the prophet, he only saw him on a few occasions (he was one of 300 grandchildren) and thinks the prophet did not know his name. By the time Rulon died, he had approximately 80 wives. About 16 yrs ago, his father found out that the 3rd wife was very abusive to the other children and when he confronted her, she left and returned to Colorado city. Shortly after, his father and mother sheltered an older brother who had been cut-off by Warren. The family was confronted for “harbouring Gentiles” and when his father stood up against Warren Jeffs, he was threatened with ex-communication. His father then left the church to live in Sandy Utah - and now lives with only one of the three wives. His father could either stay in the church, live alone and have his family given to another man or leave the church with this family.

One of Brent’s main goals in trying to stop Warren Jeffs was because of Warren’s policy of re-assigning families and tearing children from their parents.

Growing up, Brent went to school at Alta academy which is an FLDS school in Salt lake. All the children from the compound went to Alta for an education. No other children went to the school except FLDS. Kids came from families who lived all over the salt lake valley.

At school, the hour long morning class was all about the teachings of the church. Strict odedience was taught because the leaders were led by god and perfect faith and obedience was all that was required of the membership. Boys were taught that they must grow up, work for their priesthood and then god would talk to the prophet and tell him who his wife would be. The closer you are to the prophet, the more wives that you get. The higher ranking men got the first choice of the younger women. that is part of the reason why there are so many lost boys.

Exposure to the outside world was threatening because it could provide a means to form a different opinion about the church. about 4th grade, boys and girls were separated in school. boys were taught that girls were like snakes and you had to wait until you are married before you could talk to girls. Brent was in trouble with the principle (Warren Jeffs) many times for talking to girls - because he liked girls.

Over the 8 hour school day, approximately 2 hours were committed to church teachings. however, science did not included dinosaurs anything like that, and history was more about the history of the church, rather than the history of the world.

There was a strong dress-code. Very little skin should be shown. The long under-garments were recommended but not strictly enforced by all families. As warren became stronger, the rules about dress-code, behaviour, etc, became more and more strict. His parents were born and raised in Salt Lake City, but his father had travelled prior to having a family.

When his father left the church, Brent was very afraid and confused. He had always been told that he would burn in hell if he left. He contacted a friend in colorado city - when he was about 15 yrs old - and went to stay with his family to see if the church was for him. After a few months, he decided the church was not for him - he had been treated very badly. Eventually he started to talk to girls and warren found out. The girl was sent to canada to the “reform camp” up there and he was kicked out of the church by warren. He then returned to salt lake with his family.

When he got back to salt lake, he went back to public school (in the 9th grade) because his parents insisted. During his time in Colorado city, he did not go to school, but instead worked on tractor maintenance. He was paid very little money and had to pay rent to the family where he lived.

Living in the church community, he did not have freedom of choice, everyone was trying to get attention. Polygamy was a form of control and it was like brain-washing. everything was based upon fear. if you do anything wrong, you will burn in hell. they are taught the same thing over and over - and everything is controlled by the leader of the church.

What are the girls taught about marriage? As far as he knows, when they reach their teenage years they are supposed to wait for the phone to ring to see who they should marry. Once a woman is married, she is supposed to give up every part of herself except what her husband approves of. She is supposed to give up her individuality and become a part of her husband.

Brent has written a book (with help from a co-writer). He has also filed a law suit against Warren because Warren abused him when he was a child. Two of his older brothers were also molested by Warren and they have since committed suicide in their adult years. Warren lost the law suit and since then it has turned into other charges that resulted in Warren’s arrest.

What are the harms of polygamy? The first is trauma to children. Children grow up in a terrible environment. The law of polygamy is nothing more than the rule of men who try to control everything to get what they want. It has been like that since the beginning - starting with Joseph Smith. He holds nothing against any church, but it should not be like that.

Video testimony from Ruth Lane: Her father had two wives. She grew up in Colorado City and she really enjoyed her time growing up there. She describes the FLDS church as the church that remained true to the fundamentals that the Mormon church was based on.

Ruth had 13 siblings. Her second mother had 3 children. Ruth was in the middle of the birth order. Growing up in Colorado city, she was taught that God knew who each person should marry and He would tell this to the prophet. When she grew up, the average age for first marriages was around 20 to 25. When her mother was growing up, women were younger when they were married - often 17 to 20. Rulon was responsible for raising the marriage age. She became aware of Bountiful during her teen age years. Bountiful leaders would speak in their church during conferences. When Ruth grew up, she went to a public school, but the children were 98% FLDS - both run by and attended by primarily FLDS. Marriage was not spoken openly about in school, but it was all around school.

When she was 17, she left colorado city to live with a sister who had left earlier. During this time, she became involved with a boy who had also left the FLDS community and became pregnant. She went back to her parents home and the Bishop and her parents were very understanding and happy to have her back in the fold. In the FLDS tradition, a legal/government sanctioned marriage is inferior to a celestial marriage because these marriages are only for this life. Ruth’s father always taught the fundamental church doctrines, however, he also told his daughters that they would never have to marry anyone that they did not want to. Not all families are the same.

Ruth considers it a miracle that she was able to get married - especially to a church leader - since she had been sexualy active before marriage. She had a spiritual experience that suggested that she and her child should be with Winston. She went to the prophet - Rulon Jeffs at the time - and he approved that she should be married to Winston. Two weeks before her marriage, she asked to be married to Winston. She had never actually married to him. A week later, Winston married two sisters in Colorado City, then a week after that, Ruth was married to Winston (by Rulon Jeffs) in Salt Lake City. Winston then drove Ruth, the two sisters, and Ruth’s child all back to Canada. Ruth was Winston’s 10th wife. The house was very cramped, but each woman had a bedroom. They were married in 1994. She is 17 yrs younger than Winston.

Winston required special permission from all of his other wives to marry Ruth because she had a child out-of-wedlock. Winston did not have to ask permission to marry any of the other women. Jane was still living in the house when Winston married her. After Ruth, more wives were added and as the number of children grew, the situation grew more stressful. The next wife, Ruths actual younger sister, was married to Winston only a few months later. Her family had come to Canada for a visit and Winston was looking for women to marry the young men. Ruth does not understand why Winston decided to marry her rather than marrying her to one of the younger men. She spoke with Wink about getting married and then ended up marrying him. She was about 19 yrs old at the time. By June, Winston married two more sisters. There was a lull for a year or two and then a couple of more sister pairs. Then there were a few “hodge podge” women. There were a couple of older women who were added to the family.

When Rulon had the stroke, marriages were made with younger women. Winston married two 15 yr olds and this was a big burden for the family. After the split, Winston started losing wives. Jane left about the same time as the split - then some other women left shortly after - just because they were fed up. About the time of the split, Winston had about 80 children. Currently he has about 136 children. Ruth believes that Winston loves them all and can name them all. However, there is just not enough time in the day for Winston to spend quality time with each kid. Financially, it is not too difficult for women who are legal in Canada and can receive child tax credit. Also before the split, Winston’s company was doing very well and there was enough money. After the split, half the company went to the Warrenites and money got much more difficult to come by. For a period of time, Ruth and her sister lived on a small farm outside of bountiful by themselves with their children. THis was very good. After the split, they were moved back to Bountiful and the situation was total chaos (around 2005). Many of the children were out of control, undisciplined, destructive, etc. Everyone was trying to get along, but cliques formed among the women who got along better.

When the split happened, Ruth was not living in the community. She came back around 2004 or 2005. Jane left at that time. Other women went back to their families in colorado city. Some left the flds altogether. Two of them became a warrenites and went back to colorado city. One is still there - married to another man - and another left the flds altogether. Ruth left the FLDS in 2006. It was out of sheer frustration. She was pregnant again, but she felt like she was doing this all by herself. Winston had already said that he would not work on a relationship with any one of them. Winston sent her to Utah for education and did not contact her. She felt abandoned and decided to leave him. She was going to school in Cedar City and living in hurricane. Ruth indicated that she got more time from Winston when she was not pregnant. Perhaps if she had not gotten pregnant, she would still be with Winston in Canada. Her older children live in Canada with their dad. Her other kids are with her in Utah. She would be shocked if her children wanted to get into a polygamous marriage. She does not desire for her children to get involved in polygamy but she will continue to love them no matter what.

For the past 4 years, she still has to provide for their children, but she does not have to answer to anyone else about the decisions that she makes. She feels more connected to her children and she really values her freedom. During her time in Canada, she had disagreed with Winston on some issues and he always won because he was the head of the household. Ruth had many questions about the FLDS theology before she left the church. Many teachings did not seem consistent with the idea of a loving God. She questioned the whole idea of placement marriage. Too many things were about looks and appearance. On a business or family basis, your options were often dependent on how you looked on the surface.

Would you ever see yourself in a polygamous relationship again? “Maybe reversed.... No, really don’t see that would ever happen again.” Ruth feels that things might have been better if Winston would have quit after having 10 wives. She noticed that most of the smaller families tend to take better care of everyone both on an emotional and physical basis. Ruth believes that Winston truly loves all his children. Even the ones who he only sees very rarely.

Ruth does not totally agree with the polygamy situation. She does not agree with under-age marriages. However, she does not want the law to be upheld because she would like people who choose to live that life-style to be able to do so in the open. IF the law is upheld, Ruth believes that it will drive polygamy into secret again. Communities will return to being more isolated and closed off. This will tend to increase the level of control and abuse.

For Ruth’s law, she would like to see something where people have to be 21 years old before they can enter into a polygamous marriage. From her own experience, she doesn’t believe she was old enough at 18 to make an life-long “free” choice. That is why she wants a higher age limit. At that time, if they freely choose to be a part of a polygamous marriage they should be able to do so. For Ruth, underage marriage is a perversion of plural marriage. When people have freedom of choice , they should be able to choose the lifestyle they want. If a law were implemented with better boundaries, like age limits, etc. - it would be much easier for law enforcement to prosecute cases were abuse occurs. If the law were clarified, so women could be actual plural wives, it would make it easier for some women to stay and make their lives and other women would actually find it easier to leave.