Law and Non-Monogamy: Addressing Inequity within the Law
It’s April 16, 1999 in Tennessee. The family of April Divilbiss, Shane Divilbiss and Chris Littrell is about to be torn apart. The Honorable Herbert Lane orders that April’s 3 year old daughter be taken from the family and given to the Tennessee Department of Children’s Services. The reason: The family is polyamorous, which Lane determined did not fit with the child’s best interests (Black, 2006; Emens, 2004; Melby, 2007). In making this determination, Lane dismissed evidence of four court-appointed experts, refused to allow April Divilbiss to testify and told her to “make a choice” between her partners if she wanted to see her child again (Black, 2006; Emens, 2004).
Though an extreme example, the Divilbiss case is hardly an exception to the kind of treatment that non-monogamists receive, nor is it the only case where the judicial system has drastically affected a family due to non-monogamous lifestyle (Rambukkana, 2010). Non-monogamists face discriminations from: hostile workplace environments (Anapol, 2010), denial of hospital visitation rights for loved ones (Easton & Hardy, 2009) and pathologization by mental health professionals (Barker, 2005; Kleese, 2006a). These, and more, are in addition to suffering from general stigma, discrimination and prejudice (Anapol, 2010; Block, 2009; Easton & Hardy, 2009). As indicated by the Nearing (2000) study, 93% of the 1,010 non-monogamous individuals surveyed for the study identify discrimination and prejudice against non-monogamous individuals, with 52% indicating a personal fear of such discrimination and 47% having personally witnessed or experienced such discrimination.
The root cause of much non-monogamous discrimination lies with what Robin Bauer (2010) identifies as mono-normativity. Mono-normativity is a shared cultural assumption about the correctness and naturalness of monogamous relations. These assumptions systemically and socially exclude any relationship structure that does not fit into the monogamous relationship standard. Mono-normativity informs the formation, and sustainment of other social structures, such as social services, medical diagnoses and, the focus of this paper, the law. Mono-normativity reflects in the law through existing policies, such as marriage laws, adultery and bigamy laws, which craft state-legitimized monogamy reinforcing structures and rules of conduct within those structures (Black, 2006; Emens, 2004). Legal support for mono-normative structures also has the effect of legitimizing those structures to individuals, and reinforcing the correctness and naturalness of discrimination towards non-monogamists.
The result of mono-normativity’s entrenchment in the legal system is a combination of direct legal discrimination by laws that punish non-monogamists for their lifestyle, and indirect discrimination by allowing discriminatory behavior. These laws and legal allowances put non-monogamists at the whims of private ideologies held by individuals in authority, such as judges, landlords and employers.
In identifying the specifics of these legal discriminations and their current effects on non-monogamous families, recommendations for addressing laws affecting non-monogamists or further research prior to addressing the laws will be identified.
Identifying Non-Monogamies
Supporting an assessment of the effects that existing laws have on non-monogamous families is an identification of the different kinds of non-monogamous structures. As identified by the variety of literature and studies on the topic there are several conflicting ways of identifying non-monogamists (Anapol, 2010; Barker & Langdridge, 2010; Block, 2009; Easton & Hardy, 2009; Frank & deLamater, 2010; Haritaworn, Lin & Kleese, 2006; Kleese, 2006b), of which one of the only common themes is that they all share the idea that some form of sexual contact can happen outside of a monogamous relationship.
For the purposes of this paper non-monogamies will be identified by the axes that Emens (2004) uses to evaluate non-monogamy legal liability: by the number of individuals within the family, and how the family interacts with external sexual relationships. These are not meant to be authoritative categories of non-monogamies, but meant as a framework to understand non-monogamies through the ways the law interacts with the various types of non-monogamous structures.
There are other forms of non-monogamy than what is covered here, such as gay male relationships, adolescent relationships and non-consensual non-monogamy. As this is primarily a legal assessment, the categories used here can extend to cover most, if not all, missing structures of non-monogamy.
Swingers
The first category addressed is swingers, who have the most in common with a traditional monogamous family. In some cases the family will even identify as completely monogamous (McDonald, 2010; Phillips, 2010). As identified by McDonald (2010) and Phillips (2010), swinger families consist of a dyadic heterosexual couple that, often as a couple, will engage in sexual encounters with other couples and/or individuals within the swinger community. Their interaction is limited to sexual encounters, with emotional attachments being reserved for the core dyad. Emotional attachments beyond the dyad are strongly discouraged and considered to be a form of infidelity to swingers. This creates a family that is less externally identifiable as non-monogamous.
Open Relationships
The next category is open relationships, which share the dyadic unit of swingers, but are open to both sexual and emotional encounters outside the relationship (Block, 2009; Emens, 2004), however the core dyad is still prioritized over external relationships (Block, 2009). Open relationships differ from swingers by identifying as non-monogamous, and by having a noticeable overlap with polyamory (Anapol, 2010; Block, 2009; Easton & Hardy, 2009; Frank & deLamater, 2010). Also the lack of mono-normative self identification makes open relationships more externally identifiable than swingers.
Polyamory
As the next category, polyamory has one of the most contested and varied definitions among non-monogamies, Identification of polyamory is done in contrast to the other categories. Polyamory consists of a unit, whether dyadic or not, that is open to forming a non-dyadic unit. Polyamorists are open to external sexual and emotional connections, and will often weave highly complex networks of relationships (Anapol, 2010; Easton & Hardy, 2009). With a high level of overlap between polyamory and open relationships, differentiation between them is made mostly on how individuals in polyamorous and open relationships view the dyadic unit. Open relationship families have no intention of expanding the family beyond a dyad, whereas polyamorous families are open to that option. The result is that polyamorous families are potentially more externally identifiable than open relationships, especially if the family unit is non-dyadic.
Polyfidelity
The final category, polyfidelity, consists of a non-dyadic family unit that is sexually and emotionally exclusive from outside parties (Black, 2006). In regards to the sexual and emotional interactions outside the family unit, there is little difference between a polyfidelitous family and a monogamous family. Mormon polygamy also fits within this category, though the motivation behind Mormon polygamy is radically different than with other polyfidelitists. (Black, 2006; Canadian Polyamory Advocacy Association, 2011; Kelly, 2007). Since polyfidelitists maintain a non-dyadic unit, and with the associations to Mormon polygamy, polyfidelitous families are more externally identifiable than open relationships, and may also be more so than polyamorous families.
Adultery and Bigamy
Through these four types of non-monogamies, legal discriminations on non-monogamists can be more accurately identified. Building from Emens (2004) work in identifying two areas of criminal law that put non-monogamists at risk (adultery laws and bigamy laws) an assessment can be done to determine the effect of these laws on each non-monogamy type. Emens (2004) provided the framework to do this by identifying adultery laws as a regulating force on how the family unit relates to members outside of the family. Emens (2004) also identifies that bigamy laws, also referred to as polygamy laws, are a regulating force on the construction of the family unit. What follows is an assessment of how these laws affect each form of non-monogamy.
Possessing a high level of conformity to mono-normative behaviors, swingers have the least amount of liability of all four types. As swingers do not have non-dyadic families, they are only affected by the adultery laws. Also relevant is that not all states criminalize adultery (Emens, 2004). This allows for certain jurisdictions that are safe for swingers on criminal law issues. Given the low external identification of their lifestyle, swingers have a reduced the chance that criminal charges will be brought against them in jurisdictions that do have adultery laws.
On initial inspection, open relationships appear to have the same liabilities as swingers. Despite this open relationships do run a greater risk of being externally identified because they do not always have the same insulation from external identification as swingers (Block, 2009; Pallotta-Chiarolli, 2010). Additionally, the extensive overlap between open relationships and polyamory makes it possible for an open relationship to have enough elements of a polyamorous relationship to expose an open relationship to some of the same liabilities that affect polyamorous relationships.
As polyamorous families are open both to external partnerships and to non-dyadic family units, polyamory shoulders the bulk of criminal liability burden through their liability under both bigamy and adultery laws. Due to the complex relationship webs that exist in polyamorous communities, that liability can be spread through a community. Polyamorists should also be aware of bigamy laws, which will be covered in more detail when addressing bigamy and polyfidelity.
In addition polyamorists tend to be more publically active than other non-monogamists, appearing on television (MTV, 2009), on podcasts (Minx, 2005) and even producing their own independent documentaries (Finch, 2002). This extra exposure, on top of the existing exposure that comes from the non-normative behavior and potential non-dyadic unit, serves to highlight the lifestyle behaviors and allows for easier external identification of polyamorists. The end result is polyamorists have an increased chance of facing criminal charges.
At first glance it would seem that polyfidelitous families only need to worry about bigamy laws. On deeper inspection, due to bigamy and marriage laws restricting the family unit to a dyad, polyfidelitous families are subject to adultery laws in addition to bigamy laws. With differences in each jurisdictions, the actual liability of bigamy laws varies. For example, in Utah and Massachusetts a married couple can co-habit with another individual and this would be in violation of the bigamy laws (Massachusetts General Laws, 2011; Utah State Legislature, 2011). In contrast, California law makes no reference to co-habitation in its bigamy laws (California Penal Code, 2011). Other states have their own interpretations which may or may not include a co-habitation clause. The extra scrutiny on polyfidelitous families by common associations to Mormon polygamy gives polyfidelitous families similar, if not greater, risks to what polyamorous families face.
Despite criminal liabilities that non-monogamists have with adultery and bigamy laws, these laws are rarely enforced on their own. Adultery and bigamy laws do end up creating an additional level of vulnerability for non-monogamists due to their effect on other charges, such as child abuse, domestic violence and fraud (Black, 2006) to name a few. The implication is that being non-monogamous will serve as evidence against the accused in these cases, regardless of the relevance of their lifestyle to the case.
It should be noted that because of variations on the wording of both bigamy and adultery laws, as well as the non-universal application of adultery laws, it is currently impossible to get an overall and/or detailed assessment on the specific impact of these laws on each form of non-monogamy. Individual study of each jurisdiction would be needed to ascertain detailed impacts, as well as additional study on the effects of creating a standardized national law.
Other Legal Issues
Beyond adultery and bigamy, the discrimination present and allowable by law is less specific to the type of non-monogamy practiced, and has the potential to equally affect all non-monogamous families. In reviewing laws outside of adultery and bigamy, a general assessment will be provided of the effect on non-monogamists.
Children and the Law
The effect of non-monogamy on child custody issues is clear in the Divilbiss case, where the child was taken away based on Lane’s assessment of the child’s best interests. Riggs (2010) indicates that the best interests of the child argument serve to reinforce the hegemony of mono-normativity, by privileging a normative family (heterosexual married couple, biological parents to the child) over families that falls outside of this norm.
Since the presiding judge has final say about the best interest of the child (Black, 2006), as well as the ability to dismiss evidence in favor of mono-normative ideologies (as evidenced by the Divilbiss case), a great deal of the liability that non-monogamists face as parents stems from the ideology of the presiding judge, and how much weight that judge puts in the legal precedence of the Divilbiss case.
Discrimination: Observations of Workplace Disclosure
In addition to child custody, the law allows for normative ideologies to influence the livelihoods of non-monogamists through a lack of anti-discrimination laws. It is not illegal for an employer to fire an employee based on relationship style (Emens, 2004).
Non-monogamists show an awareness of the possibility of being fired in the workplace for their lifestyle, as the respondents in the Nearing (2000) study indicated only 16% informed their boss about their lifestyle. This is in contrast to workplace associations to co-workers who don’t have hiring and/or firing authority, whom 43% of respondents indicated informing their co-workers of their lifestyle.
The broader implications of a lack of anti-discrimination protections are not fully explored and should be researched. This would include being refused service, being refused membership/affiliation in organizations and housing related discriminations.
Adultery and Bigamy Revisited: Housing Policies
In addressing housing discriminations there is an additional layer of discriminatory effect from the law due to the criminality of adultery and bigamy laws. With the common practice for rental agreements to include a clause where the owner can evict a tenant for committing criminal acts on the property, and because adultery and bigamy are a criminal offence, a non-monogamous family runs the risk of being evicted from their home solely on the basis of violating adultery and/or bigamy laws due to their non-monogamous lifestyle.
As the discretion of eviction rests solely on the decision of the owner, non-monogamists put their residential welfare in the hands of the bias, ideology, and judgment of the owner. This parallels the liability that non-monogamists suffer from judges in child custody issues. Emens (2004) additionally identifies, but does not go into detail, about zoning laws that limit the number of non-related persons co-habiting. Potentially these laws could support an eviction without evidence of adulterous or bigamous behavior, however further research needs to be done to verify this as a possibility.
Due to the criminality of adultery and bigamy laws, discrimination from housing contracts (or similar contracts) is contingent on the liability that a non-monogamous family has from those laws, as outlined previously, with the caveat that breaching these laws in regards to a rental agreement is not a matter of degree (beyond the discretion of the owner), but of a binary yes/no. If a non-monogamous family has any liability under adultery and/or bigamy laws they are at risk of being discriminated against because of these kinds of agreements.
Roundup of Other Legal Issues
As outlined, a lack of anti-discrimination protections for non-monogamists not only raises major concerns for non-monogamists (Anapol, 2010; Easton & Hardy, 2009; Nearing, 2000), especially when their children are involved (Pallotta-Chiarolli, 2010), but demonstrates a clear threat to their residential livelihood, employment security and ability to raise a family. The full extent of this liability has not been identified and should be studied, with a specific focus on the effects of reform in child custody cases and anti-discrimination laws. Additionally the criminality of adultery and bigamy should be included on the aforementioned studies in those areas.
Exposure
A common theme among all of the aforementioned laws and discriminations is that they require external identification of, and action on, a non-monogamous family. The critical point of exposure is when the family’s lifestyle is found by an individual holding a legally-protected form of leverage on the non-monogamous family. This could be a landlord with a non-criminal behavior clause in the rental agreement, a manager with an employment contract, or, as was the case of April Divilbiss, a grandparent with a custody challenge.
As previously identified, different forms of non-monogamy have varying levels of external exposure, with swingers having a lower risk of exposure and polyamorists/polyfidelitists having a higher risk of exposure. Regardless of the level of exposure, once the lifestyle of the non-monogamous family is exposed to a legally-empowered individual (judge, employer, landlord, etc.), those individuals have the capacity to deprive the family of family members (children), work and/or living arrangement. Non-Monogamists would seem to be aware of the liabilities of their lifestyle being exposed to legally-empowered individuals, as shown by the Nearing study with the low amount of respondents that indicated they had informed their boss, direct parents, neighbors, church associates, medical practitioners and especially notable was the low amount who had informed their landlords (4%). Though the Nearing study is not conclusive, it does indicate motivations for not informing these individuals, and follow-up study is recommended to specifically identify the reasons behind non-monogamists not informing these individuals of their lifestyle.
Addressing Laws
In beginning to address legal liabilities that non-monogamists face, each of the aforementioned categories of law will be addressed independently, to provide specific social and political context around potential changes to each law.
Adultery
For adultery law reform, Emens (2004) recommendations revolve around modifying adultery laws to provide a discoursive mechanism for prospective partners. By making adultery laws succeed to private contracts, adultery becomes an issue to be negotiated around instead of one to be adhered to. In addition, Emens (2004) recommends setting the default legal framework for adultery to a minority opinion of adultery, thereby forcing partners to engage in a discussion around adultery.
Out of both of Emens (2004) recommendations the first one is the most crucial. Allowing adultery laws to be overridden by private contract would immediately free up swingers and open relationships from their liability under criminal law. It would also ease the liability for polyamorous and polyfidelitous families; however with bigamy laws still in place it would not eliminate their liability. Politically this is a viable step, as the trend has been towards repealing adultery laws (Emens, 2004).
Bigamy
As most of the world has anti-bigamy laws, in addition to bigamy being seen as a human rights issue (Kelly, 2007), changing or repealing these laws would be difficult at best. However, the current review of Canada’s anti-polygamy law in the British Columbia Supreme Court indicates that bigamy laws are starting to develop a national level of cultural conversation. In their closing statements to the British Columbia Supreme Court, the Canadian Polyamory Advocacy Association (2011) recommended that the court strike down the anti-polygamy law, and recommend to the legislature that marriage laws be revised to properly facilitate the realities of non-monogamists in today’s world.
In providing an example of what those revised laws would look like, Kelly (2007) indicates that just opening up marriage to include multiple parties is the wrong answer. Kelly (2007) recommends creating additional policies and frameworks for non-monogamous families within the existing marriage laws, allowing for a larger degree of parity between individual members in non-monogamous families. In addition, Kelly (2007) recommends allowing for legal cases dealing with non-monogamous families to address the actual relevance of non-monogamy on a case-by-case basis, instead of using a mono-normative rubric.
Child Custody
Child custody is a place of great concern and liability for non-monogamists. As existing law allows for the judge to have the final say in determining the best interests of the child, and as the Divilbiss case examples, a judge can go so far as to dismiss evidence of the child’s best interests in making that determination. This places non-monogamists in a dangerously liable position where they are subject to the biases, cultural influences, and ideology of the presiding judge.
As this liability is centered on the judge having a final say on the child’s best interests, further research should be done into locating alternative ways of determining the best interests of the child in a non-monogamous family. This should also take into account the hegemony around normative family structures (Riggs, 2010).
Unfortunately since there is no current research into the effects of this change, and no recommendation can be formulated without a better understanding of the full repercussions of changing the judge’s influence and/or role in deciding child custody cases when dealing with non-monogamous families, no recommendation can be made beyond that individual families should review existing literature that discusses the pros and cons around non-monogamous parenting (Anapol, 2010; Easton & Hardy, 2009; Pallotta-Chiarolli, 2010; Strassberg, 2003), and to make a decision that is best for their specific familial arrangement.
Anti-Discrimination
As no current laws exist that prevent discrimination based on familial arrangement, this leaves the proverbial door open for non-monogamists to have their job at risk (Emens, 2004), their living situation jeopardized (Anapol, 2010; Emens, 2004) and even their academic work threatened (Anapol, 2010).
Because some discrimination issues are linked to the criminality of adultery and bigamy, addressing these laws would alleviate discrimination issues that are tied to adultery and bigamy. The full extent of addressing adultery and bigamy laws is currently unknown, and should be examined.
Discrimination issues not connected to criminal law can be resolved by extending anti-discrimination laws to cover familial arrangements. However, prior research should be done to determine the effect this change would have on other existing laws to determine if this is the best course of action.
Legitimacy of Non-Monogamy Issues
Relevant to the political climate that non-monogamous discrimination faces is establishing a political and legal legitimacy in addressing these discriminations. A conservative argument would claim that advocacy of non-monogamist issues as a part of a slippery slope started by the LGBT movement, leading to the corruption of the marriage institution (Kurtz, 2003). Concerns come up about the impact of non-monogamists on their children as well (Kurtz, 2003), reinforcing existing mono-normative ideology and providing judges with something they can point to beyond their own ideology to justify mono-normative decisions.
However, these child development arguments do not stand up very well to scrutiny. There is currently no evidence that children in non-monogamous families end up any differently than those in monogamous families, and there are indications that non-monogamous families may provide additional levels of support that normative monogamous families may not be able to (Pallotta-Chiarolli, 2010; Sheff, 2010).
Additionally, as Kelly (2007) identified for Canadian laws, there is a possible United Nations human rights issue with existing adultery and bigamy laws. Though United States laws are different in specificity, a similar potential for violation of human rights exists, and research is recommended to assess the potential human rights issues with existing United States laws on adultery and bigamy.
Towards Equity
Unfortunately there is nothing among existing legal or policy recommendations that can post hoc address situations like the Divilbiss case. All current recommendations to the legal discriminations that non-monogamous families suffer from would address future cases. Additionally, a lack of research on non-monogamies (Barker, 2005; Barker & Langdridge, 2010; Haritaworn, Lin & Kleese, 2006; Noël, 2006;), especially in the context of law, hampers current efforts to provide recommendations on legal reform, and in implementing those reforms (Black, 2006; Emens, 2004). As such, the future direction in addressing legal discriminations within, and supported by, the law is by understanding the full effects of the existing discrimination, and studying ways to correct those discriminations. In some areas, such as adultery and bigamy, work has already been done to this effect. In others, such as in anti-discrimination laws and child custody, much work still needs to be done.
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