Non-Monogamous Families and the Law, Part 4: Summary of California Laws

Author's Note:

California's very short because of how non-mono friendly it is, VERY few laws have any affect on non-monogamists. Go golden state!

- Jason

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Non-Monogamous Families and the Law, Part 4: Summary of California Laws

Adultery:

California has no laws regarding adultery, and as such is very non-monogamous friendly. This absence makes the state very friendly to swingers and open relationship families in particular.

Bigamy:

California does possess bigamy laws; however, they lack the trappings of other states, for example a lack of co-habitation and/or purportation clauses in the bigamy laws (California State Legislature, 2011a). The simplicity of California bigamy laws makes for a relatively safer environment for non-monogamists. Strangely absent are solicitation, conspiracy and attempt laws that affect bigamy. This absence removes yet another level of liability for non-monogamists.

Despite this, in the event that there is a legal multi-partner marriage (and not just the appearance of such), Bigamy is still considered a criminal offence and is subject to up to one year of jail time and a fine between $5,000 and $10,000 (California State Legislature, 2011b; California State Legislature, 2101c). Liability for bigamy extends not only to the bigamous partner, but also to the partner being married in to the family, provided this person knows of the arrangement (California State Legislature, 2011c).

Cross-Relation between the Laws:

Due to the absence of adultery laws, and the simplicity of California’s bigamy laws, California shows itself to be a very non-monogamous friendly state. The only liability that non-monogamists have is under the bigamy laws, and that’s only if there is actually multi-partner marriages within the family unit. Since this is only a concern for polyamorists and polyfidelitists, swingers and open relationships have no liability under California law.

Non-Monogamous Strategies:

Because of the limited liability that exists in California for non-monogamists, there really is only one way to avoid liability entirely for non-monogamists: Make sure you’re only married to one person at a time. As long as no one in the family possesses a legal marriage to more than one person at a time then there is no liability under California law.

References

California State Legislature. (2011a). (California Code 281). Sacramento, CA: California State Legislature.

California State Legislature. (2011b). (California Code 283). Sacramento, CA: California State Legislature.

California State Legislature. (2011c). (California Code 284). Sacramento, CA: California State Legislature.

Non-Monogamous Families and the Law, Part 3: Summary of Arkansas Laws

Non-Monogamous Families and the Law, Part 3: Summary of Arkansas Laws 

Adultery:

Arkansas shows itself to be quite friendly in regards to adultery, in that it doesn’t have any criminal law regarding adultery. The only references made to adultery in Arkansas are in regards to divorce (Arkansas State Law, 2011m; Arkansas State Law, 2011n). There is even some level of internal equity protection in that consensual adultery (called collusion in Arkansas law) cannot be grounds for divorce (Arkansas State Law, 2011o). This frees up a tremendous liability for non-monogamists.

Bigamy:

Arkansas Bigamy law is unfortunately strong against non-monogamous families, compared to its absent adultery laws. Bigamy in Arkansas is based on the appearance of more than one marriage (Arkansas State Law, 2011l). Though this wouldn’t affect swingers and open relationships very much, it is likely to affect polyamorists and polyfidelitists. Bigamy is considered a Class A misdemeanor in Arkansas, a mid-level criminal offence, that is subject to jail time of up to one year and/or a fine of up to $2,500. As written, only the person(s) purporting to have multiple marriages are subject directly under Arkansas bigamy laws (Arkansas State Law, 2011j; Arkansas State Law, 2011k; Arkansas State Law, 2011l).

However, like most states, Arkansas possesses criminal inchoate/supportive laws around attempt, solicitation and conspiracy. This opens up the liability so that many others could potentially be liable both within and associated with the polyamorous or polyfidelitous family. The laws are broad enough (especially the conspiracy laws) that anyone supporting, helping or assisting in the appearance of a multi-partner marriage situation is liable under Arkansas’s inchoate laws. This would be considered a Class B misdemeanor and is subject to jail time of up to 90 days and/or a fine of up to $1,000. As standard for conspiracy laws, not all individuals involved need to know each other to be liable (Arkansas State Law, 2011a; Arkansas State Law, 2011b; Arkansas State Law, 2011c; Arkansas State Law, 2011d; Arkansas State Law, 2011e; Arkansas State Law, 2011f; Arkansas State Law, 2011g; Arkansas State Law, 2011h; Arkansas State Law, 2011i; Arkansas State Law, 2011j; Arkansas State Law, 2011k).

Fortunately Arkansas puts bigamy under the misdemeanor category, so it is not subject to escalation from repeat offences, each successful charge of bigamy (or inchoate bigamy) carries the same liability.

Cross-Relation between the Laws:

The absence of criminal adultery laws in Arkansas frees up most swingers and open relationships from liability, and the laws disallowing divorce on the grounds of consensual adultery also help to maintain a level of internal equity within these relationships. Unfortunately the gains for swingers and open relationships are lost with polyamorists and polyfidelitists due to Arkansas bigamy laws.

Arkansas bigamy laws specifically focus on the appearance of multiple marriages, which can be dangerous for polyamorists and polyfidelitists depending on how they present their family. With Arkansas criminal inchoate laws as well, not just the members of the family are liable as well, but anyone associated who also purports that there is a multi-partner marriage, which expands beyond any outside partners that a polyamorous family would have.

This would be especially dangerous to polyamorous and polyfidelitous families of religious background that allows multi-partner marriage (some wiccan and pagan traditions, for example) because a ceremonial marriage could be argued to qualify as purporting to a multi-partner marriage, and fall under Arkansas bigamy laws.

Non-Monogamous Strategies:

Swingers and open relationships have it very easy in Arkansas, as long as they don’t appear to have a multi-partner marriage going, they have no criminal liability. Unfortunately polyamorists and polyfidelitists suffer from the constant need to check the public presentation of their family. Things like ceremonial marriages, referring to each other as married, co-habitation, and anything that appears to be a marriage-like arrangement puts both the family and anyone associated with creating that public perception under criminal liability. Because of the lack of adultery laws, this impact can potentially affect both polyamorous and polyfidelitous families equally.

References

Arkansas State Legislature. (2011a). Liability for conduct of another generally. (Arkansas Code 5-2-402). Little Rock, AK: Arkansas State Legislature.

Arkansas State Legislature. (2011b). Accomplices. (Arkansas Code 5-2-403). Little Rock, AK: Arkansas State Legislature.

Arkansas State Legislature. (2011c). Conduct constituting attempt. (Arkansas Code 5-3-201). Little Rock, AK: Arkansas State Legislature.

Arkansas State Legislature. (2011d). Complicity. (Arkansas Code 5-3-202). Little Rock, AK: Arkansas State Legislature.

Arkansas State Legislature. (2011e). Classification. (Arkansas Code 5-3-203). Little Rock, AK: Arkansas State Legislature.

Arkansas State Legislature. (2011f). Conduct constituting solicitation - Classification. (Arkansas Code 5-3-301). Little Rock, AK: Arkansas State Legislature.

Arkansas State Legislature. (2011g). Conduct constituting conspiracy. (Arkansas Code 5-3-401). Little Rock, AK: Arkansas State Legislature.

Arkansas State Legislature. (2011h). Scope of conspiratorial relationship. (Arkansas Code 5-3-402). Little Rock, AK: Arkansas State Legislature.

Arkansas State Legislature. (2011i). Classification. (Arkansas Code 5-3-404). Little Rock, AK: Arkansas State Legislature.

Arkansas State Legislature. (2011j). Fines – Limitations on Amount. (Arkansas Code 5-4-201). Little Rock, AK: Arkansas State Legislature.

Arkansas State Legislature. (2011k). Sentence. (Arkansas Code 5-4-401). Little Rock, AK: Arkansas State Legislature.

Arkansas State Legislature. (2011l). Bigamy. (Arkansas Code 5-26-201). Little Rock, AK: Arkansas State Legislature.

Arkansas State Legislature. (2011m). Divorce or separation. (Arkansas Code 9-11-808). Little Rock, AK: Arkansas State Legislature.

Arkansas State Legislature. (2011n). Grounds for divorce. (Arkansas Code 9-12-301). Little Rock, AK: Arkansas State Legislature.

Arkansas State Legislature. (2011o). Effect of collusion, consent, or equal guilt of parties. (Arkansas Code 9-12-308). Little Rock, AK: Arkansas State Legislature.

Non-Monogamous Families and the Law, Part 2: Summary of Arizona Laws

Author's Note:

Yes, I skipped Alaska, their website is a nightmare and I can't seem to find an easy way to look through their laws. If anyone's familiar with the Alaska State Legislature website, or where I can find a copy of their laws, please tell me.

- Jason

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Non-Monogamous Families and the Law, Part 2: Summary of Arizona Laws

Adultery:

Arizona’s adultery laws are fairly strong, affecting both participating parties (Arizona State Law, 2011j). This gives increased liability to all non-monogamists; for swingers, open relationships and polyamorous families this is reflected in the increased liability that outside partners possess under Arizona law.

One fortunate protection that non-monogamists do have from adultery in Arizona is that adultery charges can only be brought up by an offended partner (Arizona State Law, 2011j). Though this doesn’t eliminate adultery as a liability for non-monogamous families, it does make it so that an outside agency (neighbor, schoolteacher, minister, etc.) can’t initiate any legal proceedings based solely on the non-monogamous lifestyle. There is still liability from within a non-monogamous family however, in that a begrudged partner can use the adultery laws as legal leverage within the family.

Adultery is considered to be a class 3 misdemeanor, a low-level criminal offence, and is punishable with up to thirty days of jail time and/or a fine of up to $500 (Arizona State Law, 2011c; Arizona State Law, 2011e; Arizona State Law, 2011j). As a criminal offence, adultery is subject to any other liability associated with criminal offences, which is beyond the scope of this paper.

Like other states, Arizona has criminal attempt, solicitation and conspiracy laws, as well as the addition of laws covering criminal facilitation. Under solicitation and conspiracy, many different kinds of non-monogamous families, and their partners, could possess liability under these laws. Solicitation would cover direct requests between two parties, such as an outside partner asking for sex with someone with a legal marriage within the family (Arizona State Law, 2011g). Conspiracy is the more dangerous of the two, as conspiracy can cover many, if not all, of the individuals in the family and their outside partners. Activities such as scheduling time and planning trips among multiple partners, if there is sexual activity involved, falls under criminal conspiracy (Arizona State Law, 2011h). As a standard caveat not all individuals within the arrangement need to know of each other to be liable.

Additionally Arizona’s criminal facilitation law serves as a catch-all for who may not be covered under solicitation and/or conspiracy. Facilitation makes liable anyone who assists someone else in committing a criminal offence (Arizona State Law, 2011i), so this could actually extend to people outside of one’s relationship network, such as having a friend drive one to visit an outside partner. Solicitation, conspiracy and facilitation would all be considered a class 3 misdemeanor for adultery, so everyone involved suffers the same level of liability as the individuals directly liable under adultery (Arizona State Law, 2011g; Arizona State Law, 2011h; Arizona State Law, 2011i).

Arizona’s criminal attempt laws are fairly standard, in that it would make individuals in a non-monogamous family, and their partners, liable for even attempting to have a sexual relationship outside of any marriage(s) that exists in the family. The difference here is that attempt would have a reduced liability, as it is considered a petty offence for attempted adultery (Arizona State Law, 2011f). Petty offences do not have jail time, but can have up to a $300 fine liability (Arizona State Law, 2011c; Arizona State Law, 2011e).

Arizona law also possesses escalating punishment for repeat offences on misdemeanors. The escalation is limited to one level, so if there are repeated adultery charges brought up, then it could be treated as a class 2 misdemeanor, subject to up to four months of jail and/or a fine of up to $750 (Arizona State Law, 2011c; Arizona State Law, 2011e).

It is important to remember that an adultery charge cannot be brought up by an individual outside of an affected marriage. This seriously limits the direct liability under these laws, as only problems within the relationship can trigger adultery charges. Adultery is still considered criminal behavior and can be used in support of other legal cases however, such as child custody cases. The extra protection that Arizona law provides non-monogamous families still requires that the family have a clean record in other ways, and that the internal family relationship needs to be smooth, otherwise there is a great deal of liability to be had among all individuals involved, and possibly beyond.

Bigamy:

Arizona law is very straightforward in regards to bigamy: Anyone who marries a second spouse while the first is alive is guilty of bigamy, with the only exception being the 5-year abandonment rule (Arizona State Law, 2011k). There is no cohabitation clause in Arizona’s bigamy laws, thus freeing polyamorists and polyfidelitists from the largest potential liability, however the existence of the bigamy law does, as expected, block the expected workaround for the adultery laws.

Bigamy in Arizona is considered a class 5 felony, a mid-level criminal offence. Liability includes prison time between 273 days (3/4ths a year) and 2 years, and a fine up to $150,000. Arizona also has escalating punishments for repeat felony offences, as follows for bigamy: First repeat, 1.5 to 3 years of jail time. Second repeat, 4 to 6 years of jail time. Third repeat, 4 to 7.5 years of jail time (Arizona State Law, 2011a; Arizona State Law, 2011b; Arizona State Law, 2011l).

Cross-Relation between the Laws:

As expected, the combination of adultery and bigamy laws puts some measure of liability on all forms of non-monogamous family, by making multi-person marriages illegal (bigamy laws) and criminalizing sexual contact outside of that two-person union (adultery laws). The challenge comes in with the broad base of liability that the adultery laws can cause to a non-monogamous network. Because of the multitude of criminal support laws (attempt, solicitation, conspiracy, facilitation) there is a great deal of liability to spread around.

Because of the broad-base of people, polyamorists have the most liability under Arizona laws. Since polyamorists can have the most complex networks of individuals, and because there are many variations of criminal support laws, there is a great deal of liability to go around within a polyamorous network. Of course all other forms of non-monogamous relationship also have degrees of liability, however swingers, open relationships and polyfidelity are much less likely to have the complex networks that polyamory does.

Fortunately there are only a few people who can bring an adultery charge on any of these liable individuals: those in legal marriages in the family. This reduces the odds of adultery, or supportive adultery, being brought against any of the liable individuals, however Arizona law still considers it criminal behavior even if it isn’t charged on, so it can be used in other charges or situations, such as a child custody case.

Due to how simple and straight-forward Arizona’s bigamy laws are, the bigamy laws themselves are unlikely to have an effect, unless there is actual bigamous marriage(s) within the family.

Non-Monogamous Strategies:

Arizona’s simple bigamy laws, combined with the requirement that any charges of adultery must come from the affected party only, shift the primary focus of concern for non-monogamists away from the outside world and onto those within the relationship. A disgruntled spouse, or partner who has a spouse, possesses a great deal of inequitable power in the relationship, as any such participants in a non-monogamous arrangement could bring charges amongst almost the entire network. Though this is a problem with non-monogamy in other states, Arizona’s laws focus more attention onto this fact because outside adultery charges cannot be brought against the family, or associated partners. Non-monogamists would be well-advised to pick partners carefully, as anyone who’s involved in a legal marriage and a non-monogamous relationship has a great deal of power with everyone involved in the relationship in some way.

Additionally, because adultery is considered a criminal offence, regardless of whether or not it’s prosecutable, it can still be used to support other charges from outside agents, such as a disgruntled landlord or family member. IT’s important for non-monogamists to either keep their behavior extremely discrete and/or to make sure that they are not doing anything else that would draw a legal gaze on the family.

References

Arizona State Legislature. (2011a). First time felony offenders; sentencing; definition. (Arizona Code 13-702). Phoenix, AZ: Arizona State Legislature.

Arizona State Legislature. (2011b). Repetitive offenders; sentencing. (Arizona Code 13-703). Phoenix, AZ: Arizona State Legislature.

Arizona State Legislature. (2011c). Misdemeanors; sentencing. (Arizona Code 13-707). Phoenix, AZ: Arizona State Legislature.

Arizona State Legislature. (2011d). Fines for felonies. (Arizona Code 13-801). Phoenix, AZ: Arizona State Legislature.

Arizona State Legislature. (2011e). Fines for misdemeanors. (Arizona Code 13-802). Phoenix, AZ: Arizona State Legislature.

Arizona State Legislature. (2011f). Attempt; classification. (Arizona Code 13-1001). Phoenix, AZ: Arizona State Legislature.

Arizona State Legislature. (2011g). Solicitation; classification. (Arizona Code 13-1002). Phoenix, AZ: Arizona State Legislature.

Arizona State Legislature. (2011h). Conspiracy; classification. (Arizona Code 13-1003). Phoenix, AZ: Arizona State Legislature.

Arizona State Legislature. (2011i). Facilitation; classification. (Arizona Code 13-1004). Phoenix, AZ: Arizona State Legislature.

Arizona State Legislature. (2011j). Adultery; classification; punishment; limitation on prosecution. (Arizona Code 13-1408). Phoenix, AZ: Arizona State Legislature.

Arizona State Legislature. (2011k). Bigamy; classification; exception. (Arizona Code 13-3606). Phoenix, AZ: Arizona State Legislature.

Non-Monogamous Families and the Law, Part 1: Summary of Alabama Laws

Author's note:

This will be the inaugural post of my 52-part series on non-monogamy in relation to United States laws on adultery and bigamy. I am using my BA senior project work on the same topic (here) for the foundational work on which this assessment is made, specifically using the 4-category description of non-monogamous families (swingers, open relationships, polyamorous, polyfidelitous).

Each post will give a detailed overview of the adultery and bigamy laws in one of the states of the United States. These will largely be in draft form at this point, and I will be cleaning up each individual post as I go along, so please bear with me. I will be using each state's laws, directly, as my main references, with other references as applicable.

I will be doing this largely alphabetically, but may drift from that occasionally. The final post will be an overall summation of the results of the entire study. I am hoping to have two of these done per week at a minimum (with most of the work done on the weekends), with a completion date sometime in the Spring of 2012.

Ladies and gentlemen, kick back and enjoy the ride (-:

- Jason

P.S. if anyone knows the PROPER citation format for state laws, please do share, I'm just kinda winging it here.

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Non-Monogamous Families and the Law, Part 1: Summary of Alabama Laws

Adultery

Alabama law states that Adultery is engaging in “sexual intercourse with another person who is not his spouse” (Alabama State Legislature, 2011k) with the additional caveat that the offender must also live “in cohabitation with that other person when he or that other person is married.” (Alabama State Legislature, 2011k) This can be interpreted in two ways, as an ‘and’ or as an ‘or.’ As an ‘and’ Alabama’s adultery law will only affect non-monogamous families consisting of three or more people co-habiting, assuming there is at least one legal marriage involved in the family. As an ‘or’ this law is very broad and covers both the typical form of adultery (the first indicated) and any cohabitation with an outside partner, which affects 2-partner married non-monogamous families and any cohabiting partners. This also affects multi-partner non-monogamous families that contain at least one legal marriage.

There is an odd exception to Alabama’s adultery laws that disallows divorce on the grounds of adultery if the adultery was consensual, or as specifically worded, that the offence was consented to by the offended party (Alabama State Legislature, 2011l). This provides some level of legal protection for disputing non-monogamous families in that one spouse in a legal marriage isn’t allowed to use the violation of the adultery laws as grounds for a divorce, other grounds must be used.

Alabama considers adultery to be a “Class B misdemeanor,” (Alabama State Legislature, 2011k) which is a lesser form of criminal offence. Alabama does have criminal solicitation and conspiracy laws (Alabama State Legislature, 2011a; Alabama State Legislature, 2011c) that can make all parties liable to Alabama’s criminal laws that are involved in, or with, a non-monogamous family. Alabama’s criminal solicitation law specifically indicates that anyone who “solicits, requests, commands or importunes” (Alabama State Legislature, 2011a) another to commit a criminal act is liable under criminal solicitation. Under criminal conspiracy laws, all parties involved in/with a non-monogamous family could be liable. Additionally criminal conspiracy will cover all parties regardless if they are all known by each other (Alabama State Legislature, 2011c), which could affect larger non-monogamous networks and non-monogamous families that contain ‘don’t ask don’t tell’ agreements.

As an additional concern, Alabama law is written in such a way that it doesn’t matter whether or not the non-monogamous relationship is within the state, or national/international (Alabama State Legislature, 2011d). For example, Bob and Susan are living in Alabama in an open relationship; Susan visits Jeff who lives out of state. Susan and Jeff have a sexual relationship, and that’s explicitly a part of the trip. Bob knows and is supportive of this. Despite that the actual sexual act would be out of Alabama, Bob and Susan are liable under criminal conspiracy because they were in Alabama when the plans were made. Due to the communication-heavy nature of most non-monogamous lifestyles it is almost certain that at least one other person involved in/with a non-monogamous family would be liable under criminal solicitation, and highly likely that several people in/with a non-monogamous family are liable under criminal conspiracy. Alabama law would consider both of these offences to be a Class C misdemeanor (Alabama State Legislature, 2011a; Alabama State Legislature, 2011c).

There is also a criminal attempt law in Alabama that could affect a non-monogamous family even if there was no actual sexual contact involved outside of a legal marriage (Alabama State Legislature, 2011b). For example, say that a man in a newly opened relationship goes on a date with another partner. If there is an attempt at sex, but not a follow-through, that act is criminally liable for both him and his other partner. Alabama law would also classify this as a Class C misdemeanor (Alabama State Legislature, 2011b).

Alabama law allows for a prison sentence in a county jail for a Class B misdemeanor of up to 6 months and/or a fine up to $3,000, and a Class C misdemeanor of up to 3 months and/or a fine up to $500 (Alabama State Legislature, 2011f; Alabama State Legislature, 2011i).

Bigamy:

Alabama defines bigamy as “A person commits bigamy when he intentionally contracts or purports to contract a marriage with another person when he has a living spouse.” (Alabama State Legislature, 2011j) Unline the adultery laws, Alabama bigamy laws do not contain a cohabitation clause. Alabama bigamy laws do include a section on the appearance of a second marriage, however . This could impact non-monogamous families if there is a legal marriage existing in the family, and there is the appearance of a marriage between non-married members of the family (Alabama State Legislature, 2011j). This requires non-monogamous family members to be very careful in distinguishing who they are and aren’t legally married to, as an incorrect impression could make some of the family members liable under Alabama bigamy laws. For example, a polyamorous triad where two members are legally married, but all three have had a ceremonial marriage and present themselves as all being married would be liable under Alabama bigamy laws.

Alabama classifies bigamy as a Class C felony (Alabama State Legislature, 2011j), which is a mid-level criminal offence and punishable with a minimum jail time of 1 year and 1 day and a maximum of 10 years, and a fine up to $15,000 (Alabama State Legislature, 2011e; Alabama State Legislature, 2011h). Bigamy is subject to the same criminal solicitation, conspiracy and attempt laws that adultery is (Alabama State Legislature, 2011a; Alabama State Legislature, 2011b; Alabama State Legislature, 2011c), with the offence considered a Class A misdemeanor and subject to jail time of up to 1 year and/or a fine of up to $6,000 (Alabama State Legislature, 2011f; Alabama State Legislature, 2011i).

Alabama also has additional penalties for “repeat offenders,” which is when an offender repeats the same offence after a prior conviction, which can increase the penalties in the following ways: First repeat is considered a Class B felony punishable with 2 to 10 years of jail time and a fine up to $30,000. Second repeat is considered a Class A felony and is punishable with 10 to 99 years of jail time and a fine of up to $60,000. Third repeat is punishable with 15 to 99 years of jail time (Alabama State Legislature, 2011g). These would only apply in circumstances like the one previously mentioned where the family continues to maintain the appearance of a marriage.

Cross-Relation between the Laws:

Due to the confusing text of the adultery laws, this response will be based on the ‘or’ interpretation of the law, opening up possible liability to all participants in the relationship, whether in the family or just interacting with it.

The combination of bigamy and adultery laws create the expected catch-all for non-monogamous families, providing all four identified forms of non-monogamy (swingers, open relationships, polyamorists and polyfidelitists) some level of criminal liability due to their lifestyle. Swingers and open relationships are only liable under the adultery laws, however open relationships have an added level of liability that swingers would not possess. Because swingers are largely normative relationships outside of the non-monogamous swinging element there is little possibility for outside partners to be co-habiting with the partner they are in relationship with, thus exempting them from liability under adultery laws. Due to the more flexible nature of open relationships there is the possibility of the primary relationship co-habiting with one or some of the outside partners. In this event those outside partners would share in the liability under the adultery laws. Because of the existing bigamy laws, it is impossible to incorporate more than two people into a marriage, or to maintain more than one marriage which would provide a way around the adultery laws.

As expected, polyamorous and polyfidelitous families get the lion’s share of liability from this arrangement, with a few saving graces and pitfalls specific to Alabama. Due to Alabama’s bigamy laws not including a cohabitation clause, the bigamy laws just prevent one from possessing more than one legal marriage. However, because Alabama law does include the appearance of a marriage under bigamy, this does require polyamorous and polyfidelitous families to be very careful how they publicly present themselves. Like in the example cited previously, depending on how a polyamorous or polyfidelitous family presents themselves, all members of the family could potentially be liable under bigamy. Because bigamy is considered a felony in Alabama, there is a mandatory amount of prison time, as well as escalating punishment for repeat offences.

Because polyamorous and polyfidelitous families are very likely to have cohabiting arrangements they are both fully liable under the adultery laws, and because of the cohabitation clause in the adultery laws, anyone who is involved with and cohabits with one of the members in the legal marriage is liable as well.

An additional concern for all four forms of non-monogamous relationship is the criminal solicitation, conspiracy and attempt laws. Because of this it is possible for anyone who is involved with a non-monogamous family to be liable under these laws, regardless of their residence as long as the solicitation, conspiracy and/or attempt took place in Alabama.

As with all criminal laws, violation of them opens up the individual to all other liabilities related to criminal law, which is beyond the scope of this paper.

Non-Monogamous Strategies:

There is no possibility for a non-monogamous family to be exempt from liability under Alabama law. There are a few things that can be done to minimize the liability however. For polyamorous and polyfidelitous families, care must be heeded when presenting the relationship publicly. Public impression must be that the legal marriage arrangements are not bigamous, thus excluding liability under the harsher bigamy laws. Partners of those in polyamorous and open relationships should be wary of cohabiting, as if there is a legal marriage involved they are liable under the adultery laws. The lowest amount of liability exists with swingers and open relationships, provided that all activity related to the non-monogamous lifestyle is done out of state (including planning and coordination).

References

Alabama State Legislature. (2011a). Criminal solicitation. (Alabama Code 13A-4-1). Montgomery, AL: Alabama State Legislature.

Alabama State Legislature. (2011b). Attempt. (Alabama Code 13A-4-2). Montgomery, AL: Alabama State Legislature.

Alabama State Legislature. (2011c). Criminal conspiracy generally. (Alabama Code 13A-4-3). Montgomery, AL: Alabama State Legislature.

Alabama State Legislature. (2011d). Conspiracy formed in this state to commit crime elsewhere indictable here. (Alabama Code 13A-4-4). Montgomery, AL: Alabama State Legislature.

Alabama State Legislature. (2011e). Sentences of imprisonment for felonies. (Alabama Code 13A-5-6). Montgomery, AL: Alabama State Legislature.

Alabama State Legislature. (2011f). Sentences of imprisonment for misdemeanors and violations. (Alabama Code 13A-5-7). Montgomery, AL: Alabama State Legislature.

Alabama State Legislature. (2011g). Habitual felony offenders – Additional penalities. (Alabama Code 13A-5-9). Montgomery, AL: Alabama State Legislature.

Alabama State Legislature. (2011h). Fines for felonies. (Alabama Code 13A-5-11). Montgomery, AL: Alabama State Legislature.

Alabama State Legislature. (2011i). Fines for misdemeanors and violations. (Alabama Code 13A-5-12). Montgomery, AL: Alabama State Legislature.

Alabama State Legislature. (2011j). Bigamy. (Alabama Code 13A-13-1). Montgomery, AL: Alabama State Legislature.

Alabama State Legislature. (2011k). Adultery. (Alabama Code 13A-13-2). Montgomery, AL: Alabama State Legislature.

Alabama State Legislature. (2011l). Divorce to be refused where collusion between parties, condonation, etc. (Alabama Code 30-2-3). Montgomery, AL: Alabama State Legislature.

Polyamory as a Social Paradigm

Exerpt from an academic correspondence:

I've been playing around with a concept of polyamory in regards to social paradigms.

I got triggered on this path after reading the latest Poly in the News (http://polyinthemedia.blogspot.com/2011/09/some-next-generation-voices.html), specifically the third excerpt, from Bitsy at Boston U:

"One of the things polyamory teaches you is to be comfortable with emotional pain, knowing you'll move through it, knowing you have a larger goal. Moving through emotional pain allows you to grow into a better person, to be more in touch with yourself, and better able to deal with life's curveballs. You learn to communicate clearly, directly, and proactively, a skill that's applicable not just to your personal life but to academic and professional pursuits."

This got me thinking about how polyamory and the dominant 'independent person' paradigm interact, and I realized that they don't do so very nicely. Everything I've read, and seen, about successful approaches to polyamory indicate that there is something of a self-yeilding that must occur for each individual for the betterment, growth and health of the relationship.This seems to be in complete contradiction to the self-efficacy that dominates modern society, where it's through one's individual capacity that we are able to grow and better ourselves, not through our yeilding to something larger than ourselves.

Actually now that I postulate this, polyamory (in this context) has some parallels with religion too.

So this got me thinking more, could polyamory be a symptom/cause of a paradigm shift away from self-efficacy as king, to community as king? Perhaps this is one of the core problems in many poly relationships I've seen today, as it addresses a common fear I hear through many people, the fear of loss of self, as if self-efficacy is tied inextricably to self-identity. Seriously though, the most common non-monogamous relationships are those that mirror a traditional monogamous one as much as possible (swinging, primary/secondary, etc). Is this connected with people clinging to a paradigm of self-efficacy as the dominant factor in their identity?

Consider too, how unhealthy it is to live with self-efficacy as such a core tenant of self-identity. If people value themselves only on how capable they think they are, unless capability is measured by how one is able to help others, it becomes easy to disconnect the individual's identity from others, and through that to create a form of external negligence, where he individual can dismiss and ignore the effects that their behaviors and actions have on others. In economic terms, this is called externalities. If my sense of self is tied to how capable I feel I am, then what does it matter how my actions affect you if they improve me? Very competitive, very masculine, very meritocratic.

Looking on the other side, a model that's more poly-friendly, where the self is defined in context of the community ('I'm a cog in the wheel'), then self-identity becomes inextricably tied to the effect that one has on others. If I define myself by how I affect you, then by helping you I improve my self-image. Now it's not to say that society doesn't have a form of this already, but it's a communalism that's ensnared within self-efficacy. I'll help you only so long as I benefit from it. I'm thinking the real deal is much more akin to what Bitsy's talking about, where it's more of a surrender of self to something greater, a 'larger goal.' I can see this reflected in one of the reasons that I often hear for why people are poly: 'I want that sense of community.' Ironically those are also some of the most self-efficacy focused individuals too, but that may be my own biases speaking there.

- Jason

Polyamory and Sustainability: Synchronicity with the World

Polyamory and Sustainability: Synchronicity with the World

            Polyamory has seen a phenomenal growth of attention since the turn of the century, with a slew of literature and cultural analysis having developed in that time (Barker & Langdridge, 2010). Yet, most of the attention is in explaining, qualifying and/or justifying the non-normative behavior in polyamory. Is this just a transitory culture, or does it have the staying power to sustain itself in the modern world? To answer this question, the concepts of cultural and social sustainability will be used to help identify what unique challenges that the polyamorous community faces to help determine the potential staying power of he culture of polyamory.

Identifying Social & Cultural Sustainability

            There is no existing standard of social and cultural sustainability for this kind of analysis, so this paper will be borrowing elements from Enyedi (2002) and Kong (2005) in their assessments of the social and cultural sustainability of cities to form a functional analytical framework, in addition to Kallstrom & Ljung’s (2005) analysis of social sustainability on farmers.

Kong’s (2009) identification of how cultural product sustains city culture provides the foundation for this analysis, with the production and proliferation of in-group cultural product as a key element to cultural sustainability. It is with cultural product that culture is given the opportunity to integrate into individual behavior, routine and lives. By becoming a part of individual lived experience, cultural product helps sustain culture. The proliferation of Shakespeare in the modern discourse of dramatic theater is an example of this.

            Kong’s (2009) cultural sustainability also ties in with social sustainability, forming the beginning of the model of socio/cultural sustainability that this paper will be using. Kong (2009) describes social sustainability as the sustained social interaction that holds community together both within and without, and is often expressed through physical locations that cater to social engagement. Additionally, to connect social and cultural sustainability together, these spaces must be cultural epicenters as well, where socialization can occur both between members of a group, and between individuals outside of the group to those within it. In much the same way that theaters help produce cultural product by providing space for theatrical performances, coffee shops help produce social product by providing space for social interaction, and both will often cater to particular cultures, providing the necessary cultural conglomeration of in-group and access by out-group individuals to create a sustained space for supporting larger social and cultural product.

            Kong (2009) also hints at an inverse correlation between economic sustainability and cultural sustainability. Kong (2009) identifies that a lack of local cultural product can occur due to the higher economic value of having more internationally mainstream product instead. This hurts local cultural production, and limits cultural sustainability. The implication is that to be fully culturally sustainable, a group must constantly balance the economic viability of their product with the cultural value of their product.

Moving from cultural product to how that product is distributed and integrated nto individual lived experience, Enyedi (2002) identifies social and cultural sustainability through the interactions not just between the in-group and out-group, but also between individuals within the in-group to the in-group as a whole, as well as individuals within the in-group and the out-group. In addition these interactions are analyzed with a perspective on how the in-group affects the out-groups sustainability, as well as vice versa. The inter-relatedness of this system is observed through issues of access by asking the question ‘How does where in-group individuals live/work/eat/play/etc. affect their access to cultural product?’ Through this, we can begin to ask, in what way do the spaces that polyamorous individuals use, support them in the distribution and accessibility of their cultural product.

            Access alone, however, cannot fully explain the interaction between the individual, the in-group and the out-group. By incorporating Kallstrom & Ljung’s (2005) individual-to-group relation model, it is possible to complete the socio/cultural sustainability model. Kallstrom & Ljung (2005) identify a category of three needs for social sustainability within any group. Care: is there unconditional value placed on the group? Rights: does the group have the ability to have input on decisions that affect them? And solidarity: is the group recognized for their accomplishments? The more these needs are provided for, for both the group and the individuals within the group, the more involved the group, and the individuals within, will be in the production of the group’s social and cultural product, and the more those individuals will themselves be socially and culturally sustainable.

We can close the cycle of socio/cultural sustainability here, by arguing that with the acquisition of care, rights and solidarity, a group will generate more cultural product, since they are afforded enough regard by out-groups to do so. That regard also makes the cultural product more economically viable, and as economic viability increases the mass saturation of cultural product increases. The added regard also allows for easier creation of dedicated socio/cultural spaces that allow for in-group members to interact, and for out-group members to socially engage with in-group members. These interactions serve to reinforce the existing care, rights and solidarity already afforded to the in-group, thus closing the cycle.

Identifying Cultural & Social Sustainability within Polyamory

            In looking specifically at the polyamorous community through the socio/cultural sustainability system that has been described, it can be pointed out that the amount of cultural product that is made by the polyamorous community is limited. There is a slew of self-help literature on polyamory (Easton & Hardy, 2009; Linssen & Wik, 2010; Simpere, 2011; Taromino, 2008) and a small but growing amount of media coverage in the form of documentaries (Finch & Marovitch, 2002) and news media coverage (Barawacz & Fleszar, 2011; MTV, 2009), however production and/or integration into mainstream entertainment media has been limited at best, with the chief example being HBO’s recently ended series Big Love (Knoller et al., 2006) despite Big Love being about polygamy and not polyamory.

            Due to a lack of comprehensive academic research on polyamory (Barker, 2005; Barker & Langdridge, 2010; Haritaworn, Lin & Kleese, 2006; Noël, 2006) it is currently not possible to conclusively identify the specific cause of this lack of cultural product. However, there is sufficient information to make a fair conjecture. As exampled by Ernie Joseph’s experience (Wagner, 2009), there is a mainstream resistance to incorporating any association with polyamory in the media, thus denying the polyamorous community access to a mass cultural outlet. This is crucial because there is no specifically identified forum for polyamorists to create cultural product. Though there are polyamorous artists, actors and singers, there are no polyamory galleries, theaters or music halls. This mainstream resistance combined with a lack of poly-specific localities for producing cultural product force the community to production along the existing line available: self-help literature.

            This self-help literature does have the potential to positively impact polyamory socio/cultural sustainability. As socio/cultural sustainability includes creating spaces for social interaction both inter- and intra-group, the polyamory self-help books can serve both these functions by allowing for cultural producers to create dialog with other members of the poly community, while simultaneously, because of the mass market distribution of these books, have a dialog with the outside culture. This is not fully equivalent to a dedicated space where polyamorous individuals can interact with each other and with the outside culture, but it does provide a limited means of dialog. It is worth noting that the polyamory community also has internal social spaces that are temporarily created and dismantled in the form of conferences and workshops. Though not usually exclusive to the polyamorous community, these events do not possess the same level of accessibility that self-help literature has to allow for effective in-group to out-group interaction in these venues.

There is the potential for the effectiveness of polyamory literature to plateau in sustaining this social function, as a key dependency in the literature to sustain itself is its economic viability. After enough market saturation, it is likely that the interest in polyamory literature will decline, leaving the ability to publish new material for mass distribution limited. This would harm one of the essential components of socio/cultural sustainability by cutting off the interaction between in-group and out-group, as well as reducing the amount of cultural product that is generated by the polyamorous community.

Inter-related Systems: How Helping Poly’s Sustainability Helps Everyone

            The deficiency of polyamorists access to mainstream cultural product outlets is harmful to the polyamorous community as well as the larger culture. With an inter-relation between the poly community, the larger outside community and individual’s ability to create cultural product, a denial in one area begins a segregative process between the poly community and the larger society. The denial of access to means of cultural production and distribution communicates to the polyamorous community a lack of care from the larger culture, effectively the larger culture telling the polyamorous community that it lacks anything of value to contribute. This hampers the ability for the larger culture to provide effective rights and solidarity to the polyamorous community. Because the polyamorous community is receiving this ‘push back’ message from the larger culture, cultural product is distributed more exclusively within the polyamorous community, and not within the larger culture. This removes the benefits to the larger culture that the polyamorous community can provide, namely in the realm of self-reflection, communication and emotional processing skills (Whitehouse, 2010).

            Because there is little-to-no physical separation between the polyamorous community and the larger culture, understanding polyamorous socio/cultural sustainability becomes even more complex. Returning to the question of what the effect of where the in-group (polyamorous individuals, in this case) live/eat/work/play/etc. has on sustainability; because the polyamorous community is intertwined within larger society, a full cultural separation becomes impossible. The poly community doesn’t provide any easily recognizable and economically valuable resource. Though self-reflection, communication and emotional processing skills are valuable in their own right, and can be a valuable commodity to the larger cultural market, these contributions end up taking a sideline to resources such as food. Because of this diminished public value of what the polyamorous community offers, the ability for the polyamorous community to produce cultural product is completely dependent on the outer economic viability of their product. Through this is their capacity to receive care, rights and solidarity. Yet since the community cannot extricate itself from the larger culture, it ends up in a self-defeating cycle of receiving a constant push-back from the larger culture that de-values polyamory, thus dissuading polyamorists from creating cultural product, such as poly theater, TV, movies, etc. What ends up being sustained is not the polyamorous culture, but instead a larger cultural resistance to the polyamorous culture. What then would a culture that supports polyamorous sustainability look like?

Signs of a Sustainable Polyamory

            Starting with cultural product, a socio/culturally sustainable polyamorous community would include a reversal on the block-out that polyamorous individuals and the culture at-large have on cultural product distribution. Polyamory would become integrated into the larger culture and be included in mainstream cultural product distributories (theaters, cinema, literature, cultural events, etc.). The ability for all polyamorous cultural producers to produce and distribute would mimic what is currently only available to authors of polyamory self-help literature.

Economics ends up being an interesting regulating factor in this situation, forcing the poly community to incorporate in cultural product from the larger culture in order to economically sustain the polyamorous cultural product. This has the advantage of allowing for a co-relatability between the polyamorous culture and the larger culture, thus encouraging social interaction within social venues of polyamorous discussion. Without the economic pressures, the polyamorous community could potentially become self-absorbed and culturally segregative from the larger culture. This would end up de-valuing polyamorous cultural product and would produce the same negative result as if the polyamorous community had been cut off from cultural production.

With cultural production and distribution fully open to the polyamorous community, polyamorists then have the capacity to share their cultural talents (the aforementioned self-reflection, communication and emotional processing skills) with the larger culture in a way that is valued. If the larger culture does denote a value to the polyamorous community then this opens up room for both care-based and solidaritous interactions between the polyamorous community and the larger culture. This, in turn, opens up the potential for rights to develop for polyamorists by giving the poly community a fair commodity to exchange for their rights. Because care, solidarity and rights needs are being met in these circumstances, polyamorists are encouraged to be engaged in the production and sustainment of the polyamorous socio/cultural interaction.

Creating Social & Cultural Sustainability for Polyamory

            The process of moving from a socially and culturally stifling environment for polyamory to the ideal environment described previously is, to say the least, a challenge. However, a few feasible objectives can be identified. First and foremost, in order to open up cultural production and distribution to polyamorists, there needs to be an economic viability in what polyamorists can contribute to the larger culture. This could mean either re-framing the existing resources of the community by ‘marketing’ self-reflection, communication and emotional processing skills to the larger culture, or by developing new resources that can contribute to the larger culture. Once there is a sustainable economic incentive for the outside culture to invest in the polyamorous cultural product, the polyamorous community can begin to build cultural production that blends poly cultural product with mainstream product, thus promoting cultural sustainability and encouraging the creation of social interaction between polyamorists and the larger culture. At this point polyamorists would want to start forming places of poly-to-poly and poly-to-mainstream social interaction, thus encouraging socio/cultural sustainability.

            During this process, because of the interconnectedness of cultural product and social interaction, the levels of care, solidarity and rights that exist between polyamorists and the larger culture will be growing. It is important to see this process not as a ‘step A to step B to step C to conclusion’ but instead as a continuous cycle. As the larger culture sees more value in what the polyamorous community can provide, the economic incentive will grow, which will increase polyamorous access to create and sustain cultural production, which will increase the level of care, solidarity and rights between polyamorists and the larger culture.

            This is an ongoing process which is reflected in the production of self-help literature. The danger in this, as mentioned previously, is that the production of self-help literature alone is not sustainable enough to keep this cycle going for an adequate amount of time to allow for other avenues of cultural product distribution to open up more naturally in the process. To remedy this, additional avenues of cultural production need to open up now, or additional areas of value need to be identified by the larger culture in order for the economic viability of polyamorous cultural product to be enough to actually reach a point to allow for socio/cultural sustainability.

References

Barawacz, B. & Fleszar, C. (2011, May 26). Grand rapids news [Television broadcast]. Grand Rapids, MI: WZZM 13.

Barker, M. (2005). This is my partner, and this is my…partner’s partner: Constructing a polyamorous identity in a monogamous world. Journal of Constructivist Psychology. 18, 75-88. Retrieved November 6, 2010, from EBSCOHost.

Barker, M. & Langdridge, D. (2010). Introduction. In M. Barker & D. Langdridge (Eds.) Understanding non-monogamies (pp. 3-8). New York, NY: Routledge.

Easton, D. & Hardy, J. (2009). The ethical slut: A practical guide to polyamory, open relationships & other adventures (2nd ed.). Berkeley, CA: Celestial Arts.

Enyedi, G. (2002). Social sustainability of large cities. Ekistics, 69(412-414), 142-144. Retrieved from http://www.ekistics.org/EJournal.htm

Finch, D. & Marovitch, M. (Producers). (2002). When two won’t do. [Documentary film]. Canada: Picture This.

Haritaworn, J. & Lin, C. & Kleese, C. (2006). Poly/logue: A critical introduction to polyamory. Sexualities, 9, 515-529. Retrieved April 25, 2011, from Sage Journals Online.

Kallstrom, H. N. & Ljung, M. (2005). Social sustainability and collaborative learning. Ambio, 34(4/5), 376-382. Retrieved from http://www.springer.com/environment/journal/13280

Knoller, D. et al. (Producer). (2006). Big love [Television series]. New York: HBO.

Kong, L. (2009). Making sustainable creative/cultural space in Shanghai and Singapore. Geographical Review, 99(1), 1-22. Retrieved from http://www.amergeog.org/gr/grhome.html

Linssen, L. & Wik, S. (2010). Love unlimited: The joys and challenges of open relationships. Scotland, UK: Findhorn Press.

MTV. (2009). I’m polyamorous [Television series episode]. In S. H. Sirulnick et al. (producers) True Life. New York City: MTV.

Noel, M. J. (2006). Progressive polyamory: Considering issues of diversity. Sexualities, 9(602). Retrieved April 25, 2011, from Sage Journals Online.

Simpere, F. (2011). The art and etiquette of polyamory: A hands-on guide to open sexual relationships. New York, NY: Skyhorse Publishing.

Taormino, T. (2008). Opening up: A guide to creating and sustaining open relationships. San Francisco, CA: Cleis Press Inc.

Wagner, A. (2009, February 6). “Family” poly web series actor fired [Web log comment]. Retrieved from http://practicalpolyamory.blogspot.com/2009/02/poly-family-web-series-actor-fired.html?zx=8ec7b191c4b93612

Whitehouse, M. (2010, August 5). What monogamists can learn from polyamorists [Web log comment]. Retrieved from http://smarter-love.blogspot.com/2010/08/what-monogamists-can-learn-from.html

Law and Non-Monogamy: Addressing Inequity within the Law

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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