Monday, January 10, 2011

Expert Witness - Dr. John Witte Jr.

 In today's Vancouver Sun Daphne Bramham wrote:

There is a consistent, 2,500-year tradition of marriage as the monogamous union of two people and a 750-year tradition of polygamy as a crime that has, at times, been punishable by death.

That is the conclusion of John Witte, Jr., the director of the Law and Religion Center at Emory University, who is testifying in the constitutional reference case in B.C. Supreme Court that will determine the validity of Canada's polygamy law.

Witte traced Western marriage laws and traditions back to Greco-Roman times and then followed the evolution through to the 21st century when the definition of monogamous, dyadic union was expanded in some jurisdictions to include same-sex couples. He noted that throughout all of that time, harms to women, children and polygamous men themselves were regarded as both a cause and a consequence of the practice.

From Aristotle to the Hebrew Bible to Christianity's New Testament to Thomas Aquinas in the Enlighten to jurist David Hume to utilitarian philosopher Jeremy Bentham on into the 20th century, Witte says all have argued that polygamy is damaging both to individuals as well as to the society at large.  Among the harms Witte cited are: violence, intrigue, rivalry, envy and enslavement. Those harms are prevalent not only within families, but spread out to the society at large.

More specifically, the professor outlined how polygamy harms women, children, men and society noting that over the millennia the descriptions of the harms have been consistent.
The harms to women are: exploitation of the vulnerable including young orphans coerced into arranged marriages where they are often raped or battered; commodification of women who are sold or bartered by their fathers or guardians including divorced women and widows left destitute; isolation of women by confinement to their homes (i.e. harems) or by keeping them away from regular society because of prohibitions on working or being otherwise involved in society; 'instrumentalization' which reduces women to objects of seduction, lust or vessels for child-bearing; and, impoverishment because they can't participate in public life or because their husbands have less capacity to provide for them post-divorce or post-death. 

Additionally, Witte said polygamy "betrays the ideals of mutuality, love and devotion" that are associated with marriage and is "a violation of the fundamental dignity and rights of women."
The physical harms to children include inequity because of preferential treatment to another mother; rivalry and violence involving half-siblings as well as other mothers/wives; fewer economic and educational resources.

But Witte says philosophers and legal scholars over the ages have also written how polygamy harms the development of "democratic citizenship capacity." Children see their mothers are powerless and enslaved by a powerful man and they reproduce that behaviour in their own lives.

Men are harmed because they don't have equal opportunity to have a marriage partner. But over the centuries, Witte says polygamy has also been said to have induced a false appetite for patriarchy and inflamed the lust of men who continually want more wives.

For societies, the longstanding examples of harms have included child brides, sexual exploitation, assault and violence as well as a disproportionate need for social welfare because the polygamous men are not able to provide for their wives and children.
Examples of those harms that he pointed to in Jewish and Christian texts are the stories of Jacob and King David from the Old Testament. Both of the patriarchs were polygamous and the discord sowed in their families by polygamy led not only to jealousy, but incest, children sold into slavery, wives becoming slaves (and vice versa) and violence. In the story of King David, the inter-family murders eventually led to a civil war in Israel.

In his testimony, Witte went through the various epochs, referring to texts from the period. And among his conclusions is that there have been very few exceptions from Greco-Roman times to the present that polygamy has any merit.  But he said, "The longstanding consensus [of the harms] underscores that the prohibitions are both pre-Christian and post-Christian."

Witte was testifying as a witness for the attorney general of Canada, who takes the position that the law is valid and does not breach the constitutional guarantees of religious freedom and free expression.

Under cross-examination, Witte was questioned about his views on same-sex marriage. Witte was an expert witness in the high-profile Ontario case that ultimately resulted in the Supreme Court of Canada deciding that it was unconstitutional to deny same-sex couples to marry.

He noted that sodomy and prohibition on same-sex relationships were "an invention of Christendom" that were unheard of in Greco-Roman times.

Tim Dickson, a lawyer for the amicus curiae appointed by Chief Justice Robert Bauman to argue that Canada's law ought to be struck down, suggested that polygamy is also a Christian-inspired offence.  Witte rejected that characterization referring back to his early comments about Greco-Roman laws and traditions.

But if same-sex marriage is okay, why not polygamy? Dickson asked.

Because, Witte said, polygamy is not dyadic - it involves more than two people - and it provides none of the classical "goods" associated with marriage. Those include mutual companionship, love, protection against sexual sin or harm to the household as well as protection and support for vulnerable children.

Dickson then asked his opinion of a hypothetical, conjugal relationship involving three consenting adults. Would that be inherently harmful?

No, said Witte. Not every case exhibits harms.

My Comment: 

Shortly after Dr. Witte  began to offer testimony this morning, I reached the conclusion that he is the most outstanding expert witness so far on either side.  A tall man, with an imposing presence, he took control of the situation, and gave what amounted to a two-hour lecture on the origins of monogamy in the western world, his words flowing without reference to notes, his composure assured but respectful, his delivery articulate but not condescending, totally at ease (when Judge Bauman sneezed, Dr. Witte wished him "Gesundheit, My Lord!"), and his vocabulary a marvel.

We were treated to a succession of seldom-used but totally precise and appropriate terms - leit-motif, polity, dyadic, normative import, disquisition, empirical, cruciform, nice (in its original meaning).  It was a joy to listen to someone at the top of his game , and I and many others present found him truly impressive.  As a practitioner of the English language, I consider him without peer.  

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