The more the merrier?

Keysar Trad has written an article in The Age on October 5, 2009 calling for Australians to reconsider their attitudes to polygyny (where a man has multiple wives). He says:

Who someone marries first is an accident of history. If a man who has an affair had met his mistress before his wife, he may have married her. Why maintain the facade that is the Justinian doctrine of monogamy knowing it has failed as a social experiment?

A man can have multiple girlfriends. Why not formalise that into a commitment for life? Why should “bigamy” be a crime?

Now, I’ve never been a great fan of Keysar Trad, as a previous post explains. I think he often ends up bringing the causes he champions into disrepute. And this article doesn’t change my opinion in that regard. The bit that really made me feel like shaking him was the part where he said:

… But in a caring and sharing world where we become euphoric when we give to those in need, sponsor orphans and provide foster care, the ultimate in giving is for a woman to give a fraction of her husband’s time and affection to another woman who is willing to share with her. It is a spiritually rewarding experience that allows women to grow while the husband toils to provide for more than one partner.

Anyway. (Deep breaths. Restore myself to calm before going on.)

I’m not quite sure what Trad’s argument is. Is he simply arguing that bigamy should be decriminalised? Or is he arguing that we should have legal mechanisms to recognise polygyny as a relationship which is equal to a monogamous marriage? The first option is a different kettle of fish to the second.

Bigamy is a criminal offence in Australia (see e.g., s 64 of the Crimes Act (Vic) in my home state). Bigamy means going through a marriage ceremony with another person when one’s original spouse is still alive. Therefore, anyone who enters into a polygamous marriage in Australia is committing a crime.

As a 2006 Report for Status of Women Canada concluded, there are liberal and feminist arguments for decriminalising bigamy. The Report, entitled Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada is available to download at SSRN here. The Report recommended that Canada should repeal its criminal provision outlawing polygamy, but that other criminal laws and civil laws be used to combat the harms associated with polygamy. Interestingly, as this Washington Post article notes, some of those who advocate the legalisation of polygamy also advocate the legalisation of same-sex marriage, on the basis that the law should not tell people what to do in the bedroom.

In fact, polygamy and bigamy are rarely prosecuted because of the practical difficulties involved in doing so. The difficulty is that the consensus seems to be that women and children in polygamous relationships are disadvantaged, and may face abuse and other wrongs. However, prosecution for bigamy may further harm these women and children rather than fixing the problem.

Let’s stop there at the disadvantage point. We need to address a prior issue. Does polygamy necessarily result in disadvantage for women? The UN Committee on the Elimination of Discrimination against Women (CEDAW) certainly takes the attitude that polygamy leads to disadvantage for women. In CEDAW General Recommendation 21, paragraph 14 states:

… Polygamous marriage contravenes a woman’s right to equality with men, and can have such serious emotional and financial consequences for her and her dependants that such marriages ought to be discouraged and prohibited. The Committee notes with concern that some States parties, whose constitutions guarantee equal rights, permit polygamous marriage in accordance with personal or customary law. This violates the constitutional rights of women, and breaches the provisions of article 5 (a) of the Convention. [emphasis added]