By Alvin Starkman, M.A., J.D.
Based on an example from a Oaxacan village within the Zapotec culture, a convincing case can be made for utilizing a couple’s mothers and fathers to resolve spousal disputes, rather than western courts. I’ll draw on the literature of social anthropologist Laura Nader, and my experience as a Canadian family law litigator. I want to confront western world ethnocentrism, which suggests that we know better than what “primitive” societies do to resolve disputes.
Let’s begin with how Ontario has tried to resolve allegations of spousal abuse. We’ll then take a look at an “unsophisticated” Zapotec village system, in order to consider the more appropriate method for advancing social and economic goals and values. While one might disagree with my conclusion given the politically charged nature of the topic, keep the thesis in mind.
About two decades ago the provincial government directed that once an allegation of spousal abuse had been made, criminal charges could not be withdrawn, and plea bargains based upon what the couple wanted were out of the question. Criminal trials were to run their course, except if a guilty plea was entered, in which case there would be a range of predictable results, including a criminal record. If the verdict was not guilty, the family could re-unite – until the next incident.
Upon receiving a complaint, the police would haul the alleged abuser off to jail pending bail, or require he leave the home while the victim and children were encouraged to remain. A shove or a push within the context of a heated argument and a precipitous 911 call would set in motion an unstoppable freight train. A criminal complaint made by a vindictive spouse, at times egged on by an overly zealous lawyer, provided a fast and inexpensive interim resolution.
Family court proceedings progressed concurrently, with custody and support orders made. The possibility for reconciliation diminished daily; spouses could not communicate with one another except through lawyers. Old school judges believed that their work was not to foster compromise but to decide between diametrically opposed claims. The parents of the litigants would rally around their own children. Conflict escalated with affidavits containing the nastiest allegations often based on hearsay and half-truths. Even court-mandated mediation was positional and contextualized by the goal of “winning.”
The criminal court result became inconsequential within the broader context of the separation, the precipitating event all but forgotten. Back in family court, the literature suggested to judges that joint custody ought not be ordered except in the rarest circumstances, fathers relegated to alternate weekend surrogates and babysitters. Restraining orders gave one spouse power and leverage over the other. And women became permanently impoverished relative to their former spouses, despite equal division of assets and alimony orders
Let us turn to that indigenous Oaxacan village, where material wealth and intra-village availability of sexual partners were conspicuously absent. There was, however, a complex system of intricate social groups. There were two legal systems able to resolve spousal abuse or abandonment, the wife typically being in the more powerful position of being able to choose. She would decide based on specific strategies, that is, which mechanism to initially pursue, without foreclosing her ability to utilize the other.
In the first instance, the wife could convene a meeting of both sets of parents who could both mediate and arbitrate a resolution. She retained the option of staying in the home or moving in with her parents, before or after enlisting the families’ assistance. Both sets of parents, could make decisions regarding all aspects of the relationship, and the precipitating event in particular. If the familial system failed to bring about a resolution with which the wife agreed, she could appeal to the community court, an annually elected president and judge. It could correct the husband’s behaviour by penalizing him. The court was not foreclosed from considering reconciliation. However, the wife typically only sought out the court to affirm severing the relationship.
Though not precluded from doing so, the husband rarely applied to the community court, except if the return of bride-price money was sought. He would usually apply to the wife’s parents (often with input from his parents) for a resolution. Without reconciliation, he would often search for a new partner in the village, in vain, or leave the community. The wife retained the option of forcing him to appear before the court.
Community court officials resolved most cases if the families were unable to do so. The wife, in appealing to this court, perhaps after the parents had failed to facilitate a resolution, kept all her options open: reconciliation, simply severing the relationship, or severing with penalty.
Both Ontario and Zapotec systems empowered the victims and made the perpetrators pay. Beyond this, the similarities end. I suggest that the Oaxacan village mechanisms serve both individual and societal interests. The Ontario courts did everything possible to inhibit reconciliation and non-confrontational issue resolution. Though mediation was mandatory, by the time it arose positions had become entrenched. Family was used to fuel the flames, in stark contrast to its utility in rural Oaxaca. The Ontario process was slow, even if support and division of property were not issues.
Economics is a valid consideration in both systems. But the approach and how financial matters impact on resolution options are strikingly different. In the Zapotec village, relevant factors for third-party decision-makers dealing with the issue of reconciliation include availability of scarce resources such as food and sexual partners, parents as a support system, and family inheritances. While it is hoped that Ontario family law lawyers always consider such factors when negotiating for clients, the courts, at least through the 20th century, typically did not.
While both the Ontario system and the dual Zapotec options appear to acknowledge the same desires and values for the individual and society, our modern sophisticated western world seems to be floundering. In contrast, this one micro-society, at least, continues to resist changing toward a formal state system in favor of staying focused on the particular situation at hand. Now, using a more relativistic cultural lens, consider your preconceived notions of “primitive” cultures and the concept of employing mothers and fathers to resolve marital disputes. Who best to know the spouses and their interests?
Alvin Starkman runs Mezcal Educational Excursions of Oaxaca (www.mezcaleducationaltours.com).
The foregoing should not be relied upon as constituting legal advice or opinion.