Religion and Human Rights (31): Polygamy, Right or Rights Violation?

In the U.S., 9 states – including Utah, the center of Mormonism – make polygamy a crime, while 49 states have bigamy statutes that can be used to prosecute polygamous families. Polygamy is only legal in North Africa and most of the Muslim world. Does it make sense to promote the right to same-sex, interracial and interreligious marriage, and at the same time oppose polygamy? (By the way, polygamy usually means polygyny: one husband, multiple wives – the opposite, polyandry, is extremely rare).

Marriage is a recognized human right, but does the word “marriage”, as it is used in human rights language, also cover polygamous marriage? From the texts of human rights treaties and declarations, it’s not even clear that it covers same-sex marriage – although it undoubtedly covers interracial and interreligious marriage. The word “marriage” isn’t clearly defined in the texts. Article 16 of the Universal Declaration merely states the following:

1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

2. Marriage shall be entered into only with the free and full consent of the intending spouses.

3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Polygamy or same-sex marriage aren’t specifically mentioned as being forms of marriage that are included in the right to marry, but neither is it the case that sexual orientation or the numbers of partners are stipulated as unwarranted limitations to the right to marry. So the phrasing as it stands neither includes nor excludes polygamy or same-sex marriage as a right. Article 23 of the International Covenant on Civil and Political Rights isn’t much clearer.

However, the case for same-sex or interracial marriage can be based on other articles, such as the non-discrimination provisions. Article 2 of the International Covenant states:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Sexual orientation is not mentioned but it is accepted that the list given here is a list of examples and not exhaustive. “Without distinction of any kind” is clear enough. Article 3 states:

The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant.

And Article 26:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

It’s not clear whether polygamists can invoke the same non-discrimination provisions. Perhaps the right to privacy can help them. Article 12 of the Universal Declaration:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence… Everyone has the right to the protection of the law against such interference or attacks.

However, apart from the question whether polygamy can be defended or not on the basis of existing human rights law, there are some good reasons why perhaps there shouldn’t be a right to polygamous marriage, even if it can be established that there is such a right. Wives may be pressured into polygamous marriages or prohibited from exiting them; they may suffer inequality and oppression in their marriage; and young girls may be forced to marry. The same risks exist of course in normal monogamous marriage, but are perhaps more important in polygamous marriage.

Moreover, polygamous marriage poses certain risks that are non-existent in normal marriage: excess boys in polygamous communities are often ostracized and condemned to a life of poverty and homelessness; and there’s a risk that marriage as an institution and as a general right may suffer when polygamy becomes widespread:

Polygamy is bad social policy for exactly the reason gay marriage is good social policy: everyone should have the opportunity to marry. Broad access to marriage is important not only for individual wellbeing but for social stability. And, to oversimplify only a little, when one man gets two wives, some other man gets no wife. There’s no better path to inequality, social unrest, and authoritarian social structures than polygamy. (source)

And yet, if it’s the case that

  • polygamy remains a fringe custom
  • polygamists are generally exercising their free choice and informed consent
  • no children are forced to marry or are sexually abused
  • and excess boys are not ostracized

then why would anyone oppose polygamy? Monogamous marriage isn’t illegal because some wives are beaten or because there are some cases of monogamous child marriage. One could oppose polygamy for religious reasons, but those aren’t sufficient in liberal democracies. Polygamy can only be problematic when it’s a practice that regularly and intrinsically leads to rights violations, as it does when child brides are common, when wives are commonly forced into marriage or when widespread polygamy makes it very difficult for men to find brides and marry.

Another thing to consider is gender equality. Even if polygamy is rare enough not to deny men a reasonable chance of marriage, and even if all polygamous wives are adults who freely consent to their marriage and who have equal standing within their marriages, then it’s still the case that the practice itself can signal gender inequality and hence perpetuate it. The reason is that polygyny, by its very nature, signals that men have more rights than women: a man can take several wives, but not vice versa. A legal right to polygamy would of course also entail a right to polyandry, but it’s unlikely that the risks to gender equality created by polygyny would be offset by many cases of polyandry. The more likely result is that polygyny fosters preexisting misogynistic prejudice because polygyny will always be more common that polyandry.

So, in the end a lot depends on how often polygamy results in rights violations. Is polygamy more like child marriage, which by definition is a rights violation (it involves pedophilia, the denial of education, health problems resulting from pregnancy at an early age etc.)? Or is it more like monogamous or same-sex marriage, which may produce rights violations such as domestic violence, but not intrinsically so? If some practice by definition violates rights, it should obviously be prohibited. If the practice only does so by accident and exceptionally, then it should in general be protected, especially when the practice itself is a human right. I claim that there is nothing inherently wrong with polygamy, as long as it’s not set up in such a way that it violates rights – as long as in most cases the wives consent (in an informed way), children are left alone, boys aren’t ostracized, and the practice isn’t so widespread that men can’t marry or that women feel they are second class citizens.

In this respect, polygamy is similar to hate speech. In the case of hate speech we are also dealing with a presumptive right, but one that can be abrogated when its exercise becomes too widespread with negative consequences for the rights of others. When a small black minority for instance is overwhelmed by hate speech, to such an extent that black people can’t go outside for fear of constant insult, then their right to freedom of movement should trump the speech rights of the haters.

For a more pessimistic view on polygamy, go here.

Hate (7): Should Hate Crime Laws Cover Attacks on Pedophiles?

I won’t repeat my somewhat hesitant argument in favor in hate crime laws (you can go here, for instance). The more limited question I want to talk about today is whether such laws should not only cover hate attacks against blacks, gays etc. but also attacks against pedophiles. (I guess some of those attacks, when they occur, follow publication of the addresses of pedophiles in so-called registers, a topic of a separate post). In case you’re wondering, there are some jurisdictions that have included attacks on pedophiles in their hate crime laws (New South Wales in Australia is an example).

At first sight, it would seem reasonable to include attacks on pedophiles. Hate crime is a crime that is motivated or aggravated by prejudice, hate or contempt for a specific group of people. People can be victims of hate crime, not just because of their mere membership of a group – sometimes, people get beaten up just for being black, for instance – but also because of the activities that they engage in and that are deemed immoral by the wider community – attacks on gays fall under this heading. You could claim that attacks on pedophiles are similar. But I don’t think they are.

Before I say why, let me be absolutely clear: I don’t approve of mob attacks on pedophiles or vigilante violence against them. Far from it. I merely believe that such attacks shouldn’t be covered by hate crime laws. They should be illegal as any other violent attack, but the sentencing or penalties shouldn’t be increased on account of the incontestable hatred of the motivations, as is usually the case in hate crime.

Now, why do I believe that hate crime legislation can often be beneficial but not in the case of pedophiles? Not because I think that pedophiles are less “deserving” than other groups that do and should enjoy the protection of hate crime laws. Obviously they are less deserving but that’s not the reason. Remember the rationale behind hate crime laws: they are intended to avoid situations in which hate crime can stigmatize and terrorize discriminated minorities. By punishing violent attacks against such minorities more severely than actions that are similar but otherwise motivated (i.e. the stabbing of a black person for his wallet rather than because of his race) we can discourage intentional stigmatization and intimidation of an entire group, and we therefore contribute to the ultimate equality of those groups and to the ideal of a tolerant and diverse society. Hate crime laws signal that the larger society is behind the minorities and willing to protect them and elevate them to equal rank. They signal not only that violence as such is wrong, but also violence directed at the marginalization and intimidation of entire groups.

We don’t want any of this for pedophiles. We don’t want them to suffer violent attacks, but neither do we want to grant them equal standing. Moral condemnation of their activities is not unjustified, and they aren’t a persecuted minority. Their activities harm non-consensual parties, which can’t be said of gays, blacks etc. and hence they do not deserve equal standing.

Some would say that the case of the pedophiles undermines the whole idea of hate crime because it shows that hate crime laws inexorably lead to a widening of protected groups and put us on a slippery slope towards an increasing criminalization of society (“what next: make it a hate crime to slash the wheels of SUVs?”). But I don’t think that’s correct. Slippery slope arguments are too easy.

Limiting Free Speech (35): Publishing Lists of Pedophiles on the Internet, Ctd.

A follow-up from this previous post on the same subject. We should of course do our utmost to protect people, and especially children, from sexual predators. In the U.S., and to a lesser degree elsewhere, “utmost” means publishing so-called “registries” of sex offenders on the internet. These registries contain the names, addresses and offenses of people convicted for sex crimes. The purpose of the registries is to inform people about the whereabouts of convicted sex offenders and allow them to take measures to protect their children. (A few examples of registries are here, here and here; some of those are government sites, others are not).

By definition, since the purpose is protection, these registries should contain only information on people who are likely to offend again, and to offend in a way that is dangerous to children (and possibly adults). People who have been convicted in the past but are not deemed to be possible repeat offenders, or people convicted for sex crimes that are not dangerous (flashers for example) shouldn’t be included, but regularly are.

These registries are an exercise of free speech. The question here is: should they be allowed, or are they doing more harm than good? In other words: should this case of freedom of speech be restricted in order to protect other rights? (we’ve seen before how human rights can be limited when they come into conflict with other human rights). Which other rights could possibly be harmed by this exercise of free speech? One could say the right to privacy of the offenders (it’s not because you’re a convicted criminal that you automatically lose your right t privacy). But that’s not obvious. Someone’s address and criminal record aren’t private information. So registries of sex offenders aren’t, by definition, violations of the right to privacy. Hence, the right to free speech of publishers of such registries can’t be limited because of the right to privacy of the offenders.

But there are other reasons why the rights of those publishers can be limited. Registries can (and did) lead to

  • harassment of offenders, violent attacks and even murder
  • ostracism, including their family members and children (some registries even have button to print a mugshot that can be posted on the offenders’ doors)
  • violations of their right to freely choose a residence: they are either chased away, or legally prohibited from living near certain places (schools, playgrounds…); sometimes these prohibitions are so restrictive that people are forced to be homeless (in Miami, exclusion zones have created a camp of homeless offenders under a bridge)
  • violations of the right to work: people whose names are in registries are often fired from their jobs or have difficulties finding a job.

These are obviously rights violations that are serious enough to at least make us consider whether the right to free speech of the publishers of registries should be maintained.

And even the right to privacy can become a problem. As noted, addresses and criminal records aren’t private. However, many registries contain a lot of “noise” – people who do not pose any threat (some U.S. states requires registration of people who have visited prostitutes, who have had consensual sex as teenagers etc.). Not only does this label harmless people as “predators”, with often devastating consequences for them. Another result of this noise is that the registries become useless. As a consequence, those who defend the registries ask for more information to be included so that they can judge which “predator” is a real one:

I agree that a man who exposes himself to a woman may not pose the same danger as a convicted child-molester or rapist. All represent a threat, however, so the solution is thus not less information but more detailed information. Give me the facts about the offence and let me decide the level of risk to me and my family. As the parent of two young children I would like to know who my neighbour is going to be before I buy that new home. Adrian Kendall

Taken to its logical extreme, such a view will defend putting everything “bad” about everyone in a super-register. Perhaps registries could be used on a need-to-know basis only.

Limiting Free Speech (21): Publishing Lists of Pedophiles on the Internet

I know from experience that it’s not useless for a human rights defender to make this clear from the start: sexual activity with children is despicable and must be punished severely, but this punishment doesn’t imply the abandonment of all human rights by the convicted pedophiles. When you’ll read the rest of this post, you may rush to the conclusion that we pay more attention to the rights of criminals than to the rights of victims. Nothing is further from the truth.

My point is that the practice of publishing lists of pedophiles on special websites on the internet (also called “outing pedophiles”) may be well-intentioned but it is inappropriate and even dangerous, especially when such lists include addresses of pedophiles who have been released from prison and have done their time.

It’s not because you’re a convicted pedophile that you lose all your human rights, including your right to privacy. Of course, the fact that you are or have been a pedophile isn’t a private fact. You have been convicted in an open and fair trial, and hence your crime is in the public domain. There’s no reason to keep judicial verdicts secret. On the contrary. The facts of your crime may also be very relevant to people not immediately concerned with the crime or the trial, such as the children of your new wife. And perhaps your new neighbors should be informed, especially when there’s a risk that you’ll repeat your crime. (But then why have you been released?)

So the information regarding your crime isn’t private, and can be used in a targeted way to inform people who may need to know. But there is a difference between a fact being part of the public domain (and circulated in a targeted way), and the use of this fact in a sensationalist manner, by people who will never have anything to do with you, and directed at people who likewise will never be involved. (A very large majority of child molesters attacks relatives or the children of friends).

Your crime isn’t private, but what can be gained by publishing your whereabouts and informing people who will never be likely victims? It seems to me that websites that publish the whereabouts of pedophiles are part of a retrograde style of “justice”, in which it is important to name and shame, to publicly expose a felon, and ridicule him or her. And when the public starts to react, and start to call the alleged pedophiles to see “if they still rape children”, then there is an unjustified invasion of privacy. And maybe other rights will suffer as well, such as the right to physical security and bodily integrity of the pedophiles. In certain cases the “naming and shaming” amounts to incitement to violence. There have been cases of attacks on pedophiles following the publication of their names and whereabouts.

I suspect that the people who create these sites, rather than “protect the public”, intend to whip up a scandal, and hopefully get some attention. They also imply that the justice system is inadequate, and they want to cultivate public mistrust in institutions and politics. Institutions are never perfect, but fostering negativity isn’t the way to make them better.

Another problem: the lists that are published often contain people who are merely accused of pedophilia (and not yet convicted), or people who are, to some, suspicious. Imagine what it must be like for an innocent person to appear on such a list. A court deals much better with the presumption of innocence than an angry mob.

The rationale behind rules prohibiting the outing of pedophiles, and explicitly limiting the right to free speech of the “outers”, is the protection of the rights of the pedophiles (such as the right to privacy, inviolability of the home, and physical security). Some may find it difficult to accept that pedophiles have rights, and that some people pay attention to these rights, rather than to the rights of the victims. But it is fair to say that a defining part of our shared humanity is precisely the limits we impose on the ways in which people can be punished.

And, of course, we do pay attention to the rights of victims. That is why pedophiles are put into prison. And we have to try to balance the pedophiles’ rights against those of their victims and possible victims even after they leave prison. That is why I stated above that it should be possible to inform neighbors and new family members. This kind of information is a limitation of certain rights of pedophiles – such as the right to form a family, the right to choose a residence etc. – for the sake of the rights of possible victims. We rightly believe that such limitations are less harmful than a new attack on children.

So-called zoning laws are also justified in certain cases. Pedophiles are then prohibited from entering a certain zone, or loitering and living in a certain zone (e.g. close to schools or playgrounds). These laws limit the right to choose a residence and the right to freedom of movement of the pedophiles in question, but if there is a high probability that these laws will prevent future attacks on children, then they are justified because the rights of the children that would be violated by an attack are more important than the cited rights of the pedophiles.

Of course, zoning laws aren’t always the answer, and may create more problems than they solve. They can make it harder for law enforcement officers to keep track of the pedophiles, and make it harder for the pedophiles to receive treatment for their condition. Hence, zoning laws may be counter-productive.