That’s right, this is the case against the proposed new criminal offence. The case roughly is: it’s mere political posturing, it’s unnecessary, it won’t work, and it will have unfortunate side effects.
In 2009, Multi-Agency Practice Guidelines on Forced Marriage were published. They had an impressive pedigree, endorsed by all of the branches of government in the image shown. And one thing I especially liked about this document is that, even before the contents page, it asserted boldly and memorably, citing in support no less than five international conventions, that
Forced marriage is an abuse of human rights and an abuse of the rights of the child.
I agree. That’s not why it’s unnecessary to create a new criminal offence. This is, from paragraph 2.12 of the same document:
Although there is no specific criminal offence in England and Wales of “forcing someone to marry”, criminal offences may nevertheless be committed. Perpetrators – usually parents or family members – could be prosecuted for offences including threatening behaviour, assault, kidnap, abduction, theft (of passport), threats to kill, imprisonment and murder. Sexual intercourse without consent is rape, regardless of whether this occurs within a marriage or not. A woman who is forced into marriage is likely to be raped and may be raped until she becomes pregnant.
That paragraph sets out a series of well-established offences, offences that the public-at-large recognise to be seriously criminal. If we want to be serious about using the criminal justice system to deter forced marriage, the way to go is to prosecute for these offences, sending a message to the public-at-large that forced marriage already is serious and criminal. We are forever inventing new offences, many of which are rarely prosecuted. They grab a headline for a day when they are invented – the political posturing bit – then lapse into desuetude [see Wikipedia] having never commanded the respect of the population like the old common law offences of rape, assault, kidnap, and the like.
The proposed offence is stated to be modelled on the criminalisation in section 1 of the Domestic Violence Crime and Victims Act 2004 of breaches of non-molestation orders. At the time this crime took effect, Women’s Aid offered this analysis of the advantages and disadvantages:
This process means that the woman becomes a witness in a criminal case rather than an applicant – and that potentially has both advantages and disadvantages.
The advantages of this change are that:
- it relieves the woman herself of the burden of taking action
- it should provide a stronger sanction – particularly for those cases in which (in the past) a power of arrest has not been attached
- the woman is not liable for any costs of a prosecution.
The disadvantages are that:
- it takes the process out of the woman’s hands, and the CPS will be able to pursue proceedings against her wishes – so it may be disempowering, and have consequences which she is powerless to stop
- she may be unhappy about criminalising her (ex-)partner – who may, for example, be the father of her children. This may be a particular concern for women from Black and Minority Ethnic communities, who are often particularly reluctant to seek help from the police, because of fear of racist or discriminatory treatment
- breaches of occupation/exclusion orders will not be a criminal offence – meaning that where an offender breaches both an occupation order and a non-molestation order (a relatively common situation), the woman will presumably be faced with appearance at two separate courts (except in those very few areas where there is one integrated Domestic Violence Court)
- criminal cases are normally open to the public and the press – in contrast to applications made in the family court, which are held in chambers (i.e. only people involved in the case are allowed in the room). Although there is a provision for reporting restrictions to protect the identity of victims/witnesses in criminal courts (both magistrates’ and Crown courts), this has up to now been used only rarely in domestic violence cases
- if she chooses not to report a breach to the police (because of the above) legal aid may not be available for her to pursue committal proceedings in the county court
Leaving aside the obvious observation that the disadvantages form the longer list, it is clear that there are disadvantages that emanate from the very nature of criminal offences. The breach moves from the private arena to the public arena; criminal law requires proving the mens rea (the guilty mind) and not only the actus reus (the guilty act) beyond reasonable doubt; the status of witness rather than applicant means the victim loses control over the decision-making; criminal legal aid is available to defendants, not witnesses, while civil legal aid is available to applicants; and so on.
Does it not seem all too predictable that a process that results in a person subject to a forced marriage being potentially subject to a hostile public cross-examination in a procedure that may well not be capable of proving beyond reasonable doubt the guilt of a family member or partner, may not be popular with those it is intended to protect, however popular it is as a political gesture when first announced?
Don’t the two strands of my argument – the pre-existence of serious offences that could be used, and the difficulty of persuading victims to engage with the criminal justice system – cancel each other out? Well, in one sense, yes: there are already well-documented difficulties persuading victims to stay engaged with prosecutions. But in another sense, no: my strong suspicion is that the use of well-established ‘mainstream’ offences to criminalise forced marriage would maximise the chances of engagement, while the use of new and ‘niche’ offences would not.
Time will tell.