If a married man fathers a child from an affair with an adult woman, and persuades his existing family to accept mistress and child into his own home, should he be prosecuted? While many people would probably see this de facto polygamous household as offering a butt for delicious gossip, only the most moralistic would say it warranted government intervention.
As far as family structures go, we live in tolerant times. Over the past generation the social and even legal boundaries between heterosexual marriage, cohabitation, and other long-term sexual relationships have gradually dissolved.
Open marriages, de facto marriages, single parent families, gay and lesbian families, extended families, and blended families have all become more or less accepted components of our much touted social and cultural diversity. It is the nuclear family which is in decline, with a recent study from KPMG Consulting indicating that this type of family now comprises only 19 per cent of Australian households, a drop of 7 per cent since 1976.
Given that this situation is common to all English-speaking Western nations, it is surprising that bigamy continues to be treated as a criminal offence. In Australia, bigamists can be sentenced to five years in jail; in some other countries the punishment is even more severe. In Utah, Tom Green, a fundamentalist Mormon with five wives, faces up to 25 years in prison because last week a jury found him guilty of four counts of bigamy.
Certainly, Green does not sound like an endearing sort of fellow. He took his "head wife" in 1986 when she was 13, and as a result he is also facing statutory rape charges, although a trial date has not yet been finalised.
And while he had a job, it did not pay enough to support his twenty-five living children, with another three on the way. So he has been involved in a long-running welfare scam which allegedly netted $US54,000 over a four year period.
Green would marry a woman, then go to neighbouring Nevada for a quick divorce after she gave birth. The "ex-wife" would then become eligible for welfare benefits as a single mother, even though she continued to live with him as his "spiritual wife". This also enabled Green to claim that he wasn't a bigamist in the legal sense, although this argument failed because the law in Utah -- unlike Australia -- treats cohabitation as equivalent to marriage in cases of bigamy.
Green also flouted the authorities by going public. For the past half-century Mormon-dominated Utah has adopted a "don't ask, don't tell" policy towards polygamous unions. But Green appeared on a number of national television programs with his wives, arguing that mainstream Mormons had abandoned their heritage.
Invoking the precedent of the Old Testament prophets, the fathers of the Mormon Church believed that only polygamists could enter the most exalted levels of heaven, although initially they were rather duplicitous about this aspect of their theology. But in order to assist Utah's bid for US statehood, the church disavowed polygamy in 1890, and a few years later began excommunicating people in plural marriages. Fundamentalists like Green argue that they are only returning to the founding doctrines of their faith.
As unpalatable as it may be to argue points of principle around the case of a child molester and welfare cheat, Tom Green has some claim to be thought of as a martyr to his religion. He believes he is following a path laid down by God, and can provide what he sees as scriptural authority for his beliefs. He decided to challenge a hypocritical state policy by going public.
His case, and that of the estimated 80,000 other fundamentalist Mormon polygamists living in Utah and other parts of North America, raises an important civil rights issue. Given the latitude now accorded to all kinds of private behaviours that were once thought iniquitous, and the unwillingness of most politicians and opinion leaders to celebrate the traditional nuclear family, why should polygamy involving consenting adults continue to be a crime?
American anti-polygamy groups such as Tapestry Against Polygamy, which largely comprises women who have escaped from plural marriages, argue that such marriages are often accompanied by incest, wife and child abuse, forced and underage marriage, as well as welfare and tax fraud. Perhaps this is true, but these crimes are not necessarily an inherent part of polygamy. And some of them also accompany other family forms.
The great majority of human cultures have permitted, and even encouraged polygamy, at least in the form of polygyny, where a man takes two or more wives. (Polyandry, where a woman takes several husbands, is extremely rare). After over fifty years of studying Pacific cultures, the veteran American anthropologist Douglas Oliver wrote that he had been unable to discover a single traditional society in the Pacific or Aboriginal Australia which censured polygyny. Indeed, had Tom Green been a Native American attempting to revive his polygamous heritage, it is hard to believe that he would have been prosecuted.
Don't get me wrong on this. Personally, I believe that as well as providing the best environment for rearing children, the nuclear family is the structure most compatible with gender equality and liberty.
But that doesn't mean other forms of the family should be illegal -- provided, of course, that they do not involve taking child spouses, as Green did. And if adults wish to place a polygamous union on a more secure footing by entering into some kind of long-term contract which they want to call marriage, it should be no one else's business but their own.
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