Even by the standards of the wheels of justice, coming to grips with the polygamous community in Bountiful, B.C., has been an achingly slow process. And with last week’s conviction of polygamous leader Warren Jeffs in Utah, the years of indecision at the B.C. Attorney-General’s office have been brought into even sharper focus. While successive governments in Victoria have fretted over whether Canada’s polygamy ban would survive a challenge under the Charter of Rights, their counterparts in Utah and Arizona have appeared far more inventive in prosecuting sexual assault cases against polygamists. A jury in Arizona convicted 38-year-old Kelly Fischer of having sex with a minor last year despite never hearing from his victim. Jeffs was convicted as an accomplice to the rape 14-year-old Jane Doe by her 19-year-old first cousin, in that he had arranged their marriage, even though the “rapist” himself wasn’t charged.
Polygamy has been illegal in Canada since the first Criminal Code was enacted in 1892, and Section 293 of the Criminal Code makes clear just how much the government prefers monogamy. It threatens five years’ imprisonment for anyone who “in any manner agrees or consents to practise or enter into … any kind of conjugal union with more than one person at the same time” – or, indeed, anyone who “celebrates, assists or is a party to a rite, ceremony, contract or consent that purports to sanction [such] a relationship.” A 2005 poll showed upwards of 95 per cent of Canadians disapproved of the lifestyle, which is commonly associated with everything from poor educational achievement to physical and sexual abuse, the abandonment of male children and human trafficking.
Jeffs isn’t just the prophet of the fundamentalist Mormon communities in Utah and Arizona, but also of Bountiful. And his trial won’t have set any Canadian minds at ease about what might be going on in B.C. “I wasn’t completely sure what he was doing,” Jane Doe told jurors, describing the night her husband first demanded she perform her matrimonial duties. “But I said, ‘Please don’t do this.’ He just ignored me and came over and undressed me and undressed himself. . . . I was sobbing. My whole entire body was shaking because I was so scared.”
Feeling unable to tell her mother about the experience, Doe says she went to Jeffs and asked that she be released from her marriage. “He said I was not living up to my vows,” Doe told the courtroom. “I was not being obedient, not being submissive. … He told me I needed to go home and give myself to [her husband] mind, body and soul.” If a single set of “Canadian values” exists, it seems safe to say fundamentalist Mormon ones run afoul of them.
“I don’t normally cheer convictions; I think it’s somewhat unseemly to do that,” says tough-talking B.C. Attorney-General Wally Oppal. “But in this particular case I’m encouraged by what has taken place because of the potential social consequences—the whole idea of these communes where children are being abused—and from that perspective I think the jury’s verdict might well send a message to the people in those communities that the law and right-thinking people will not stand by while all this is taking place.”
In Canada, more concrete messages—i.e., prosecutions—will have to wait. Oppal has proudly cast himself as the man who will deal with Bountiful once and for all. But, according to critics, his accomplishments thus far look more like business as usual. Special prosecutor Richard Peck, a senior Vancouver lawyer appointed by Oppal to study the legal implications of polygamy in B.C., recommended that charges not be pursued as convictions were unlikely. Instead, he suggested that Section 293 be referred to the B.C. Court of Appeal as a reference case. Oppal’s next move was to turn around and ask yet another lawyer, Leonard Doust, to review the file. “I’m a little perplexed by the fact that the Attorney-General keeps on wanting more and more opinions,” says Queen’s University law professor Nick Bala, who supports Peck’s recommendation. “It doesn’t really matter if advisers or lawyers or law professors are giving their opinions; what matters is a ruling from the courts.”
In light of multicultural and libertarian arguments against the outright prohibition of polygamy, others wonder why the “side effects” of fundamentalist Mormon polygamy—most notably sexual assault—aren’t a more fitting target than polygamy itself. “While the issue of polygamy is important, what is much more important is the protection of children,” Leonard Krog, the NDP’s Attorney-General critic, said earlier this month. “And the Attorney General’s decision to restrict the terms of review to polygamy gives the wrong message.” Oppal agrees that sexual assault is a “far more serious” offence, but echoes the received wisdom that such prosecutions are impossible when the victims are unwilling to testify—which they almost invariably are.
The Fischer case in Arizona has been something of a chink in that armour, in that the victim did not testify. The conviction was based on birth and paternity records proving he had impregnated his victim at an age at which she was unable to give legal consent. Canadian critics were quick to push for a similar approach in B.C. “[T]he RCMP has already gathered the birth records from the midwifery clinic in Bountiful,” Vancouver Sun columnist Daphne Bramham—a fierce critic of the apparent timidity at the Attorney-General’s Office—wrote after Fischer’s conviction. “There are former members who have already publicly stated that they have witnessed both celestial marriages of under-age girls and births of children to mothers as young as 14, and would be willing to testify.” Among them was midwife Jane Blackmore, who, since leaving Bountiful in 1999, has talked of delivering babies to mothers as young as 15. (Jane is the first wife of Winston Blackmore, who was Bishop of Bountiful until Jeffs excommunicated him. She testified at Jeffs’ trial, having treated Jane Doe for a miscarriage in 2002.) “So what’s the hold-up here?” Bramham demanded to know.
“Nobody’s been more creative and adventuresome than I have,” Oppal insists. “We tried that method, but unfortunately all the birth records involved people over the age of 14. And if we had anybody under 14, that being the legal barrier, we would charge in a heartbeat.” Because the young women in question were over the age of consent, in other words, they would need to testify that the sexual contact had been against their will. Instead, says Oppal, “they’ve told our investigators that if they testified they would say that they in fact wanted to involve themselves in these relationships with much older men.” They would “deep-six our case,” he says, noting that more options might emerge if and when the B.C. government raises the age of consent to 16.
It may not be quite that cut and dry. Indeed, as Peck notes in his report, the RCMP recommended in 2006 that charges be laid under Section 153 of the Criminal Code, which “prohibits an adult from having sexual contact with a young person between the ages of 14 and 18 toward whom the adult is in a ‘position of trust or authority.’ ” The Criminal Justice Branch found little likelihood of a conviction on those grounds, but critics such as Bramham would clearly like prosecutors to take their chances with a jury. And while Bala stresses that he hasn’t seen the Attorney-General’s or the RCMP’s files, he says it’s up to a judge to determine whether an adult is in such a position over a child between 14 and 18 years old. “The victims saying ‘this wasn’t abuse of authority’ is not determinative,” he says.
But for now, it seems the Attorney-General has hitched his wagon to Section 293—the law against polygamy itself. We will know relatively shortly whether that law will be referred to the Court of Appeal or tested with a prosecution, Oppal says, pointing to Winston Blackmore as an obvious first target. Either would be a major step forward, relatively speaking. But in the meantime, it also highlights just how long the dreadful accusations against polygamists in Bountiful have stood. Even in the United States, where the courts have consistently and recently upheld the prohibition against polygamy itself, prosecutors have generally opted to pursue sexual assault charges instead. Whether out of necessity or by design, British Columbia is forging off in a very different direction.