Forced Marriages: What Are You Criminalising?

By: NAZMIN AKTHAR*

Forced Marriages: What Are You Criminalising?

There can be no debate as to forced marriages being a violation of an individual’s human rights and should be treated as such. That the UK government is considering plans for criminalisation of forced marriages is therefore welcoming. (At the time of writing, the government has not made it clear exactly what the provisions for criminalisation will be. See further: Forced marriage to become criminal offence, David Cameron confirms.) Criminalisation sends a strong message to perpetrators that forced marriage is unacceptable and will not be tolerated. Despite this however, there are some concerns as to the extent to which such a measure will be effective in truly tackling forced marriages. Is our criminal justice system capable of dealing with the criminalisation of forced marriages?

Understanding

With any criminal offence, and on the assumption that the government is not pursuing criminalisation as a strict liability offence, the burden of proof is “beyond reasonable doubt”. Forced marriages occur when a “marriage is conducted where consent of the bride, groom or both has been obtained through emotional pressure or physical abuse. In an arranged marriage, both the bride and groom consent to marry the person suggested to them by their families”. The distinction is clear cut — the latter includes consent, the former does not. However, is our criminal justice system clear on the distinction and able to gauge the relevant actus reu from the varying circumstances of each case? Is there an understanding of what is being criminalised?

There seems to be an overwhelming focus on the clear cut scenarios but forced marriages are not limited to cases where violence is involved, where a parent is giving ultimatums, where someone is taken abroad or where someone is under 16–18. Forced marriages cannot be eradicated without a true understanding of the differing circumstances; understanding and awareness is vital to ensure that victims are not ignored or overlooked.

As an example, consider the situation of a 21 year old British woman who has recently graduated from university and has aspirations of pursuing a career in the field she has completed her degree in. Her parents, or indeed other relatives, however feel that now is the perfect time for her to get married and propose a suitable candidate as a groom. She is not threatened with violence and she is not taken abroad. However, she does face considerable emotional pressure. Her parents tell her they wish to see her settled — and a marriage is the definition of being settled. Her mum may remind her that her dad is going old and may not be alive forever. Her relatives may remind her of all that her parents have done for her, including their support of her education, and that she has a duty towards her parents and should repay them for the ‘sacrifices’ they have made for her. Family friends may tell her that her parents are much more wise and she should trust their choices. Someone may quote religious references which have been wrongly manipulated or even made up to fit their preferences; others may highlight how great a prospect the proposed groom is and how lucky she is at being asked to marry him. Violence or threats are not always needed for someone to feel emotionally blackmailed and any form of emotional pressure turns an arranged marriage into a forced marriage. Is there sufficient understanding of this point?

How will these different scenarios be dealt with in court? How will the situation be dealt with when a relative states that they were merely providing advice and they had no idea the victim felt this way? Or that they would have not carried on with the marriage if the victim had said so (despite the fact that the victim was forced to agree to the marriage due to emotional pressure)? What if the victim never voiced their disagreement but the silence was out of fear, due to the circumstances they were in (for example, a family member has a history of directing physical abuse towards them and they knew that refusing to get married would result in abuse?) Will it be harder for graduates and professionals to prove they were emotionally pressured than for example, people under 18 years old? Will it be easier to prove that fathers are perpetrators than mothers? Will it be harder for male victims to prove force than female victims?

The solution is of course to place victims at the heart of our considerations and believe them when they say they were emotionally pressured into marriage or were silent out of fear, but how will it play out in court? It is important to deal with the differing forced marriage cases appropriately and with the requisite understanding. Criminalising forced marriages will be pointless if it does not deter perpetrators, and deterrence will not occur unless perpetrators are sure that the criminal justice system will hold them accountable.

Support mechanisms

Many have already commented on the fact that potential victims may not want to put their family members in prison. Not only is it difficult to take such a step against someone you care about but there is also the added concern that doing so will lead to disownment by the family with no prospect of future reconciliation. They will also be ostracised by the community (not just because they took their parents to court but perhaps also because they did not agree to what the rest of the community perceive as a perfectly acceptable arranged marriage). In fact, parents may end up attracting sympathy. Isolation and accompanying mental health issues are a serious concern for those surviving a forced marriage and it is important for support mechanisms to be put in place to assist them. There may also be financial impacts to consider, including homelessness, which restricts victims from being able to seek help. The combination of this will only add to stopping potential victims from coming forward, who may be reluctant to put their family members in prison to begin with. It is therefore important to take all these issues into account and make the necessary resources and support systems available to assist victims if we wish to see an end to forced marriages.

It is also vital to change attitudes towards forced marriages in the communities where forced marriages are prevalent and tackle the patriarchal practices therein. Anyone defending forced marriages and any other forms of violence against women and girls and human rights abuse must be challenged. Unfortunately, instead of concentrating on eradication, it appears that certain sections of such communities have become too busy in defending themselves, which rightly or wrongly can stem from the way in which cases of forced marriage have been portrayed by the media. Whilst attention must be brought to these cases, in some instances an anti-immigrant or anti-minority faith group rhetoric can ensue and such “othering” alienates the communities to the detriment of the cause of tackling forced marriages. It is important for everyone committed to the cause of ending forced marriages, including the media, activists, community organisations and governmental bodies, to work together — not against each other. Education and awareness strategies need to be a priority and it needs to be made clear that forced marriages are unacceptable. The stigma needs to be shifted onto the perpetrators of abuse, instead of the victims and survivors. Most importantly, victims need to be able to feel that they will be believed, support and helped.

Conclusion

Criminalisation is an important step in tackling forced marriages. Even if forced marriages are only practised by a small percentage of differing communities it needs to be eradicated; one forced marriage is one too many. However, for criminalisation to work properly it is necessary to understand the differing circumstances that can be involved in each case and proceed with a victim-centred approach. It is also important to ensure relevant support mechanisms are in place as well as prioritise education and awareness raising; everyone needs to take responsibility and work together to eradicate forced marriages.

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*Nazmin Akthar is a trustee of Muslim Women’s Network UK, which work on issues such as domestic violence, forced marriage and sexual exploitation: www.mwnuk.co.uk