Monday, 6 April 2009

Susan Drummond, Polygamy, Correctitude

Up, Down.

Got interested in this woman last year when she published an opinion piece in the Globe, You really want them all charged? (below). What piqued my curiosity at the time was her forthright revelation of personal history: "Without going into details, two years after my separation, I entered another 'conjugal union' with my partner of the last seven years," and so on. Not deeply personal, but deeper than expected - and it revealed another trait viz. (at least apparently) operating out of your own reality rather than some theoretical ideology. And today she published another ... so here they are.

Susan DrummondSusan DrummondSusan Drummond

What adds to my interest is thinking of this person operating within (what I imagine to be) the fairly stupid intellectual environment at York University - hanging out with wazzername ... Gillary Massa and such like ... either face-to-face with correctitude, or somehow coexisting with it. Who knows? Some of the commenters on her latest Globe piece were suggesting (if you can call mindless ranting a suggestion) that she is one of these correct nitwits ... could be I guess ... can't say yet ... the pictures I could find of her and her use of mealy mouthed terms such as 'conjugal union' and 'partner' notwithstanding ... reminds me of Frye's quip, "If I were a primrose by a river's brim, I should feel insulted," in reference to Wordsworth's poem.

Anyway ... four articles in the Globe reproduced below, and two books: Incorporating the Familiar, at the publisher's site, McGill-Queen's University Press (MQUP), and (sort of) at Google Books, and,
Mapping Marriage Law in Spanish Gitano Communities, at the publisher's site, University of British Columbia Press (UBCPress), and at Google Books (not!).

I have ordered the books and will report later. Anyone needing insight into what Google is really good for can follow the links to the Google Book versions above. A joke, a bad joke ... I wish someone clever would hack their server and put it all out on uTorrent ...

Also remembering slurs from my days at McGill ... JAP, Jewish American Princess ... goes to show that nothing is ever fixed, nothing is ever gotten over, nothing overcome or sorted out ... the waste-bin you drag along and rediscover at your side again and again like Peer Gynt's troll child ... abiding proof that you have messed intimitely with ugliness at least once.

1. Short Bio on Osgoode/York site.
2. Not just Muslim women are exploited by 'religious' law, September 9, 2005.
3. Beyond cartoons, February 11, 2006.
4. You really want them all charged?, August 5, 2008.
5. A marriage of fear and xenophobia, April 6, 2009.

Short Bio on Osgoode/York site.

BA, BSW (Dalhousie), BCL, LLB, MSW (McGill), DEA (Aix Marseille) DCL (McGill)

Associate Professor Susan Drummond joined Osgoode’s faculty in 1999, and specializes in the areas of legal anthropology, comparative law, civil law, and family law. She was the first student in Canada to graduate with both a civil and common law degree as well as a Master's in Social Work. Her BA in philosophy and her postgraduate Diplôme d'Etudes Approfondies from the Université d'Aix-Marseille, specializing in legal theory and legal anthropology, make her a truly interdisciplinary scholar. She has published two books, Incorporating the Familiar: An Investigation into Legal Sensibilities in Nunavik, based on her undergraduate fieldwork in Inuit communities in northern Quebec, and Mapping Marriage Law in Spanish Gitano Communities,which won the Canadian Law and Society Association/Association canadienne droit et société 2006 Book Prize.

Areas of Interest: Family Law, Legal Theory, Comparative Law.

E-mail: Susan Drummond sdrummond [at]
Assistant: Hazel Pollock hpollock [at]

Not just Muslim women are exploited by 'religious' law, Susan Drummond, September 9, 2005.

A front-page story in yesterday's Globe and Mail drew attention to the case of "Shinaz," a Muslim woman who was coerced by religious law and her imam into forfeiting support and property rights in order to get a religious divorce.

The full facts are a little bit buried in the latter part of the story, so let me bring them to the fore again: Before going to the imam, Shinaz went to a Canadian lawyer, worked out a separation agreement and got a settlement on child support, property and child custody. She then also got a divorce in a Canadian court. Following this, she wanted a religious divorce, though absolutely nothing in Canadian law compels, or indeed urges or even suggests, that she do so. What followed in the religious arena illustrates a long-standing tension between religious law and state law -- a tension that is in no way exclusive to Islam.

In the religious forum to which Shinaz voluntarily submitted, she found herself up against a potentially very exploitative wall.

Orthodox Jewish women have found themselves in that position for decades.

The Canadian state allows for civil divorce with all of its corollary relief (support, custody etc.). Orthodox Jewish law (the form of religious law that governs family law matters in Israel) demands that, if an Orthodox woman also wants to be released to remarry or to bear future children that would not be bastards (mamzarim) in Jewish law, she must go through a religious procedure to do so. Until she gets a Jewish bill of divorce -- known as a gett -- she is a bound woman, an agunah -- with potentially dire consequences associated with both Jewish law and Israel. The odd Jewish husband has long been exploiting this vulnerability by threatening to withhold the gett unless the wife, who is civilly divorced, agrees to forgo a long list of civil rights that she has already acquired (custody of the children, child support etc.) or is in the clear position to acquire according to Canadian law. I should state that this exploitation by a small number of Jewish men is also a thorn in the side of both Orthodox Judaism and the state of Israel.

Recognizing the extraordinary vulnerability that these Jewish women (analogous to Shinaz) find themselves in, the Canadian state and the provinces have long intervened to circumvent this kind of "religious" exploitation of state law -- or rather the exploitation of the intersection between the two. And, as multicultural as Canada is, we have done so in a way that is both creative and religion-neutral. Federal legislation allows for judges to stay civil divorces (e.g., of the Jewish man who wants to remarry but who wants to bind his wife for eternity in a religious marriage) if all barriers to religious marriage have not been removed. Under provincial and federal legislation, the civil courts will, if asked by one spouse, prevent the other from litigating on any issue pertaining to the divorce or separation (even, for example, preventing him from entering a defence to an astronomically high child- support claim) unless the latter has done all that is within his power to remove all religious barriers to remarriage.

In my opinion, Shinaz would have done well to do what countless Jewish agunot have done: Sue her husband for, say, a gargantuan increase in child support against which her ex-husband cannot raise a defence until all religious barriers to remarriage are removed. If it's important to Shinaz to remain devout to her religion and its institutions, she could have followed the letter of the latter's law while invoking the letter of Canada's parallel secular law -- all the while showing herself to be a devoutly law-abiding citizen.

With Canada's long and creative history of accommodating cultural and religious differences within the bosom of a secular state, Canadians have generated an ever-evolving model of the modern multicultural state that should be an inspiration to the world. The laws to which I allude have been around for a while to deal with the interaction between state law and Jewish religious law. If they need some tinkering to deal with other religions (again in language that does not single out a particular religion), then let's do that rather than single out the Muslim religion for a singular form of paranoia.

Susan Drummond, professor of family and comparative law at Osgoode Hall Law School at York University, holds a federal research grant to look into marriages within Israel's mixed legal jurisdiction.

Beyond cartoons, Susan Drummond, February 11, 2006.

There's a lot we can learn about ourselves from the discomfort of others, says law professor Susan Drummond.

The recent furor over cartoons depicting the Prophet Mohammed brings to mind the admonition of French philosopher Simone Weil, who had debilitating migraines: "When I behold evil in the world, I must recollect to myself that when I am suffering from one of my headaches, I am overcome with the urge to strike out and hit somebody in the exact same spot in my head that I am hurting."

The whole cartoon debacle, which lamentably appears to be not fully spent, reminds me of another moment when the atmosphere was electrified with a similar climate of devastation, anguish, animosity, and suspicion.

A week into the first time I taught comparative law, the twin towers of the World Trade Center came down in front of the eyes of the students, staff, and faculty who gathered, aghast, in front of the electronic message board in the lobby of our law school. Ten minutes later, I was supposed to start teaching a diverse group of students the intricacies of common law, civil law, aboriginal law, Talmudic law, and Islamic law. Speechless myself, I cancelled the class and told the students who dribbled in, hollowed out, that I would be available if anybody wanted to talk. Somehow, we managed to get the course back on track over the next several weeks. And then, an interesting thing happened, not unlike the current debate about the relationship between the values of the secular and religious worlds.

I had just passed out a photocopied page of the Talmud so that students could see, graphically, how the spiralling and open-ended commentaries of one of Judaism's religious and legal texts contrasted with both Napoleon's and Justinian's efforts to bring all commentary to an end once their civil codes had been promulgated. During the break, I could see, out of the corner of my eye, one of my very devout Muslim students approach a very devout Lubovitch Jewish student. They had a small confabulation, and then they approached me. I was informed, by both, that passing out a page of a Jewish Holy Book was a particularly insensitive thing to do as it contained the name of God upon it and could be subjected to all manner of disrespectful treatment, even unwittingly, by those insufficiently versed in its holiness. I was further informed that the reproduction of the Koran on the cover of the comparative law text that I had selected that year was also prone to cause offence, reproducing, as it did, an image of the Koran. The Muslim student informed me that he felt compelled by his religion to cleanse himself each time he read the text and added, tongue in cheek I assume, that he could not take the book into the washroom with him as other students might.

I was completely taken aback by the intervention of these two students. I asked them what they wanted me to do in response to their concerns. They suggested I should ask the rest of the students to return the photocopied sheets of the Talmud to the Jewish student so that he could dispose of them in a manner consistent with the significance they held for him. I invited them to make the request of their colleagues. At the end of class, each student respectfully complied.

The exchange left me uneasy and unsettled about what had just taken place, and I remain so to this day. Osgoode is a secular institution, resting upon centuries of the same cherished traditions that infuse the value of freedom of speech. I am not teaching about any legal tradition under the assumption that its core tenets are inherently worthy of respect. I am teaching about each of them from the vantage of a critical distance cultivated over millenniums. Consistent with deeply entrenched values within the academy, I urge students to subject their understandings -- from the most commonplace to the most sacrosanct -- to the light of critical scrutiny.

And yet, I am aware that the familiar academic stance of detachment has the potential to objectify and thereby distort the object of its inquiry, particularly when the subject relates to an aspect of human society. I am also aware that such detachment is itself a deeply held and historically conditioned value, for which some of us have been prepared to die. One hears echoes of the virtues of that detached stance in recent commitments to the right of freedom of speech, some heartfelt and thoughtful, others callow.

I believe that things were resolved that day in an admirably pacific (and prototypically Canadian) manner. Indeed, Omar, the ever-mischievous Muslim student who initiated the exchange, presented a paper with me on the event at an international conference on law and society the following spring.

What if, however, there had been students who, within their rights (I believe), felt that the request that they treat religious texts with reverence was disconsonant with their own deeply held beliefs? What if they further argued (with reason, I believe) that the request was not wholly appropriate to the diverse and overarchingly secular law school environment? What if they declined to submit to the request of those two devoutly religious students?

I still don't know what I would have done, though I am almost certain that the ensuing conflict would have been fuel, propelling us to a deeper and more fine-grained understanding of each other. Comparative law begins from the premise that she who understands one legal tradition understands none, or to quote script from a sculpture on the campus of York University, a fish only recognizes water when it discovers air. Taking into account that the study of law touches upon values that also embody different senses of injustice, I urged my students that year not to simply understand unfamiliar texts and traditions from the vantage of a cold and purportedly neutral detachment, but to follow another of Simone Weil's admonitions: to understand the self from the point of view of the other's affliction.

I continue to be buoyed by the very fact that, in the electrified atmosphere that shot through the law school, the campus and, indeed, the world in the weeks following 9/11, a devout Muslim student felt moved to approach a devout Jewish student to query him about whether he felt pained by the way that a secular professor had handled one of his holy books -- and that they respectfully approached me and their colleagues with their concerns.

In the spirit of that year's comparative exercise, I hope we continue to shore up the compulsion to understand that keeps the ivory tower of the university, along with many of the other foundational structures of human society, in place.

Susan G. Drummond is a professor of comparative law at Osgoode Hall Law School at York University in Toronto.

You really want them all charged?, Susan Drummond, August 5, 2008.

You might be surprised who would get caught in the dragnet.

There is a general rumbling afoot in Canada about laying polygamy charges against individuals within certain religious communities across Canada. But there are some things Canadians need to know about our Criminal Code's "Offences Against Conjugal Rights" before we can be sure we really want to open that particular Pandora's box. One thing to ask may be whether you, or anyone you care about, has committed one of these indictable offences carrying liability of up to five years in prison. In the spirit of the poem "They came first for the communists...," let me say that I have committed polygamy.

How is it that a Canadian professor of family law violated a very grave criminal prohibition - and yet remains on the lam; teaching the law, no less?

The first thing to know is that Canadians are not a morally squeamish group when it comes to sex - or sex and marriage. Group sex, the Supreme Court of Canada has held, even group sex in swingers bars in downtown Toronto, does not offend Canadian moral sensibilities. Nor does it offend the institution of marriage. For a divorce based on adultery, neither spouse can have condoned the other's extramarital sex - and swinging with your spouse at Ménage à Quatre almost certainly constitutes condonation. Swingers who want a divorce have to wait out one year's separation like the rest of us.

The second thing to bear in mind is that the polygamy provision has been invoked exactly once in the past century - in 1937. A man was charged with polygamy because he had an adulterous affair. The court held that adultery is not inconsistent with monogamy - and both he and the rest of our society have been free thereafter to have adulterous affairs with criminal impunity. Since the Divorce Act of 1986, spouses also have been free to commit adultery without consequence to determining child custody, support or division of property. Canadian law has left the adulterous to little more than the wrath of their spouses.

The third thing to know is the actual definition of both bigamy and polygamy in the Criminal Code. Amongst other elements, the offences include everyone in Canada who, being married, goes through a form of marriage with another person (bigamy) and everyone who enters into any kind of conjugal union with more than one person at the same time, whether or not this conjugal union is by law recognized as a binding form of marriage (polygamy).

Religious marriage (Catholic, Hindu, Muslim, Jewish etc) is a "form of marriage." Canadians can be civilly divorced and yet remain religiously married. The state, having no place in the religions of the nation, carries out only civil divorce. All Canadians, regardless of religious background, have equal access to the Divorce Act that allows for divorce on the grounds of the breakdown of the marriage (established by living separate and apart for one year, or by the adultery or cruelty of the other spouse). Catholics can never divorce religiously - and yet they can (and do) divorce and remarry civilly. Those who have done so (along with other Canadians who have not put an end to their religious marriage before remarrying civilly) are both in multiple conjugal unions and multiple forms of marriage. So, should the state decide to sweep up all those polygamists, many of us might be astonished at how many of our acquaintances and loved ones would be carted away.

Where I, and countless other Canadians, unwittingly committed polygamy derives from the inclusion of "any kind of conjugal union" in the definition of polygamy.

Like 38 per cent of Canadians, I both married and divorced. Like many Canadians, I was somewhat nonchalant about the institution of marriage. As common-law relationships gather about them all of the benefits of marriage and increasingly little social stigma, marriage has become a principally symbolic institution. While sorting out the incidentals of divorce (custody, support, etc.) was important to me, getting the actual divorce was not. Unlike the other weighty elements of Canadian family law, all a divorce enabled me to do was to remarry civilly. As I had no desire to remarry, I was living separate and apart from my "husband" for six years before I got a divorce (in order that he might remarry). My marriage was, if nothing else, the paradigmatic "conjugal union."

Without going into details, two years after my separation, I entered another "conjugal union" with my partner of the last seven years. This was not hard to do. The definition of "conjugal union" in Canadian law is broad enough that just about any kind of detail has the potential to be simultaneously sordid and banal.

What is "any kind" of conjugal union? On this point, the criminal law is silent. In family law, the definition of conjugal union used to include things such as the sharing of meals, sexual exchange, watching TV together (I kid you not) and the delivery of domestic services. With sexual and domestic services sitting uncomfortably with the obligations of conjugality, eating pizza with someone, while watching Sopranos reruns, could catch quite a few of us off guard.

In all fairness, I might call myself in to Crime Stoppers. If I am free to go, then with the current gapingly broad definition of an Offence Against Conjugal Rights, doesn't the state have an unfettered discretion to indiscriminately go after religious communities and individuals?

Susan Drummond is Professor of family law at Osgoode Hall Law School.

A marriage of fear and xenophobia, Susan Drummond, April 6, 2009.

Canada signed the international Women's Convention in 1980, and thereby committed itself to "take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations." The convention recommends that states acknowledge that "polygamous marriage contravenes a woman's right to equality with men." Is there a way to square the decriminalization of polygamy with our international commitment in a way that does not prey on our fear of those who are different from us?

The Criminal Code's polygamy section, from its inception through its bizarre history of virtual non-use, has always been shrouded in an aura of xenophobia and racism. The provision itself was drafted in 1892 under pressure from the U.S. government, busy enacting its own criminal law targeting fundamentalist Mormons. We had no shame in similarly tailoring our polygamy law to single out this religious minority - a piece of blatant religious discrimination rectified only in 1954.

As American scholar Martha Ertman notes, the leading American case on polygamy from 1879 held that polygamy was "odious among the northern and western nations of Europe" and "almost exclusively a feature of the life of Asiatic and of African people."

One of the rare convictions under the polygamy section was against an aboriginal man who was living in a customary marriage with two women. The judge noted in the 1899 case: "It is plain that among the savage tribes on this continent marriage is merely a natural contract and that neither law, custom nor religion has affixed to it any conditions or limitations or forms other than what nature has itself prescribed." Under Canadian common law, for aboriginal people alone, consent constitutes marriage and living together constitutes consent - an understanding that was sufficient to tear Bear's Shin Bone from his family and community for five years in prison.

The conjunction of Canada's lonely conviction of an aboriginal man under the polygamy provision and this view of fundamentalist Mormons as race traitors should signal to us that the "family values" underpinning the section are poised to operate as a form of discipline for socially and politically marginalized people.

There are other ways of protecting women and children from abusive marriages (polygamous or monogamous) that don't lead us into these perilous waters. Many of these mechanisms are already at our disposal.

The Criminal Code clearly prohibits sexual activity between adults and children under the age of 16. If there is a shred of credible evidence that this criminal activity has been going on in Bountiful, B.C., then it is woefully lamentable that charges were not laid under these provisions. If wives are vulnerable to abuse in Bountiful, domestic abuse is a criminal offence under our assault provisions in the Criminal Code. Yet, the only charges coming out of Bountiful are under the anachronistic polygamy section.

Canadian child-support laws already go further than other countries in imposing obligations on biological parents and those who, like step-parents, stand in place of parents. No matter what the antecedent family configuration, both biological and psychological parents owe child support when separate households result. Both parents in polygamous and monogamous marriages are in this position. Indeed, some wives who think they are in monogamous marriages may be surprised to find that their husband's income (and potentially the household income) will be unequivocally diminished by his children with a mistress, whether or not she consents.

Some provinces already have laws in place that require spouses in polygamous marriages to divide up marital assets equally on separation, as per the default regime for monogamously married spouses. These laws have yet to be used, but the legislative framework is in place for divvying up a husband's pension and other assets among his wives.

Courts have already generated some surprising decisions on spousal support in which both mistresses and wives are entitled to their conjugal partner's support following separation - whether or not the wife was aware of the mistress's existence.

Women in polygamous marriages have fair and effective notice of their economic vulnerabilities to sister wives and their children. How many wives, whose husbands are surreptitiously in a conjugal relationship with a mistress, are aware of their financial exposure? One of the other rare prosecutions in the past 100 years under the polygamy provision established (through an acquittal) that adultery is perfectly consistent with monogamy. The sighs of relief from monogamously, but loosely, married husbands should be accompanied by a gulp of anxiety from their respectably married wives.

If we are serious about eliminating discrimination against women in all matters relating to marriage and family relations, how about instituting a national daycare program that would provide some assurance to mothers leaving any kind of crappy marriage that they might be able to afford decent child care while they work, train or educate themselves into financial independence? Research indicates that astonishing numbers of single mothers will return to abusive relationships rather than suffer the degradations and deprivations of welfare.

Maybe it's time we put some money where the solicitous mouth is. Meantime, decriminalizing polygamy and protecting women need not be mutually exclusive aspirations.

Susan Drummond teaches family law at Osgoode Hall Law School.


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