Polygamy's Inscrutable Secular Mischief

Abstract

This paper attempts to decipher the specific mischief in the offense of polygamy in-and-of-itself. It examines whether the offense coincides any longer with the contemporary substratum of values about the family and sexuality that have emerged over the last forty years in Canadian law and society. The relevance of formal conjugality - triggered by marriage, extinguished by divorce, and shielded in-between by privacy - has been turned inside/out by the sociological and legal significance of functional conjugality. For the latter construct the content of intimate and familial relationships has become a substitute focus of legal scrutiny. Meanwhile, the contemporary range of normalized sexual and familial diversity has voided functional conjugality of the bright line coherence of its antecedent. Conjugality itself appears to be collapsing into uncertainty and incoherence in its most familiar domain: family law. These parallel developments in the socio-legal conception of family and intimacy have outpaced a polygamy offense that has sat virtually unused since the first Criminal Code of 1892. As a result, the polygamy offense itself has collapsed into the disintegrating concept of conjugality, rendering the harm that it targets all the more inscrutable. In the result, the polygamy section is void for vagueness and resultantly an infringement on liberty rights guaranteed in section 7 of the Canadian Charter of Rights and Freedoms. The inscrutability of polygamy's mischief suggests that criminal law is the wrong instrument for addressing worries about the vulnerabilities of women and children within plural family arrangements. These legitimate anxieties can be addressed through a plethora of alternative regulatory means, none of which assail fundamental principles of justice entrenched in the constitution.