The sticky wicket of regulating violence against women in polygamy: Feminist perspective on the constitutional challenge in Canada

In 2010, the Canadian Supreme Court of British Columbia embarked on an unprecedented reference case to test whether Canada’s prohibition against polygamy is consistent with the freedoms guaranteed by the Canadian Charter of Rights and Freedoms. A central concern of the case is whether polygamy perpetuates inherent harm to women, children, and society by increasing their risk of and exposure to physical and psychological forms of violence. Both the Attorney General of British Columbia and of Canada argued that polygamy increases men's ability to control the reproductive capacity of women and perpetuates a rigid, patriarchal system that increases the likelihood of harm and violence to women and children. On the other side, the Amicus argued that some women freely choose to enter into polygamous relationships, and that criminalizing this family form offends their dignity. In 2011, Justice Bauman ruled that, although the law violates the religious freedom of fundamentalist Mormons, the harm against women and children outweighs this concern. He concurred with the attorneys general that the understanding of harm to women specified in international treaties like CEDAW is consonant with the harm of polygamy. A consequence of this ruling means that, in the name of protecting women from the harm of violence and patriarchy that is possible in polygamous relationships, women who practice polygamy are made criminal under the law. Feminist scholars in their theorizing and activism against gender violence have long grappled with the tensions between victimization and agency that this court case brings to light. Using a critical discourse analysis (CDA) of data collected from legal documents, this paper will examine the ways that violence against women and women’s agency is addressed in the court case and the consequences of this formation of harm and agency for social justice.