Let’s not criminalise forced marriage

List of bodies

Bodies endorsing existing guidelines

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.

Allan Norman (@CelticKnotTweet) is a registered social worker and a solicitor at Celtic Knot – Solicitors and Social Workers.

6 thoughts on “Let’s not criminalise forced marriage

  1. I find that knee jerk legislation is often so badly thought through that it achieves nothing. A few years ago I worked with a police unit dealing with people trafficking. They introduced the offence of trafficking for prostitution because of some news reports at the time. We never used it at all because it was so badly written – you needed to prove someone was being brought in for the purposes of prostitution which was almost impossible and there was no greater sanction. So all we did was charge with the original offence and get on with it.

    What should be done is better and more in depth marriage interviews before people get a UK visa. The husband and wife should be interviewed without each other or any other family member present and the spouse in question should be told that she can tell us if she’s unhappy about any of the situation and the visa can be refused without this information being revealed. But the process seems to be becoming much more of a paper exercise without proper in depth interviews being done.

  2. This proposal is just playing to the basically-racist gallery, to divert attention from bigger issues such as the stealth privatisation of the nhs and schools. And, as you say, doesn’t solve anything.
    But there’s a case for making it clearer that forced marriages are of their nature void, wherever they are carried out; “consent” given under duress isn’t consent, and marriage must be freely entered into by both parties.

  3. I have a concern, I may be wrong but when you say ” the way to go is to prosecute for these offences,” meaning rape, imprisonment, murder etc, Isn’t that going to be a bit late. Making forced marriages actually illegal may protect people before they experience those situations.

    • Julian –

      It is a characteristic of the whole of our criminal justice system that it is ‘after the event’. Whatever the crime, you have to prove that the criminal act has happened as part of securing the conviction for it. If you create an offence of forced marriage, you will have to prove the act of forced marriage, however that may be defined, actually took place. If you create an offence of breach of a FMPO, you will have to prove that that act took place. Which is just as well – I don’t think it would be an improvement on our criminal law to criminalise guilty minds in the absence of guilty acts.

      If you want to stop something happening, that is the natural function of the civil law rather than the criminal law, where you can talk about “likelihood” and “balance of probabilities” and get an injunction.

      If you want to use the civil law really imaginatively, you could tackle a different aspect of the law relating to forced marriage, the fact that the marriages are not ‘void ab initio’, only ‘voidable’. What this basically means is that the marriage is treated as valid until shown to be otherwise rather than vice versa. If forced marriages were void ab initio, then those forced into them could, at any time, demonstrate that they are not and never have been married, a position I think many of those doing the forcing would find somewhat uncomfortable.

      Back to criminal law, there may well be a case for ‘sending out a message’ which criminalisation does; but the message I would rather send out is that “forcing to marry is and always has been a seriously repugnant crime, moreover a forced marriage is not a valid marriage”.

      So, while taking the point, “isn’t it going to be a bit late?”, I’m not sure this advances the case for the proposed new offence.

  4. Candid revelation !!

    Transgressions involved in arranged marriages, taking forms of forced marriage in disguise, keeping apart marriage for convenience, in the context of Indian sub-continent, according to many social think tank, is silently gaining momentum and is poised to strike young lives to a deplorable extent.

    The UK parliament, for example, after taking so-motto cognizance of this fact, has, under the leadership of Mr Cameron, in mid 2012, made a bold statement that “this heinous, inhumane, oppressive act is never acceptable”. Forced Marriage Protection Orders 2008 (UK) is now equipped, empowered and enforced with provisions for immediate arrest, detention and prosecution – a criminal dimension.

    Why look UK, when we have enough of these in our own backyards !!!

    Crimes involved in arranged marriages in India is driven underground under vicious influence of greed, honour, pride, ego, crony capitalism and other forms of social evils. Indian sub-continent is, increasingly, seen as home of perpetrators of such crimes. Its true and happening now.

    The Indian parliament, having almost caught unaware, clueless and finding it awkward to fathom social repercussions of living in or exposed to a environment of hyper-capitalistic-social-designs and criminalization of arranged marriages in that context, of late, is slowly waking up to this reality. Sadly though, parliamentarians, at present, are contemplating on prioritising their time and efforts on mapping electoral strategies to obtain mandate for the upcoming parliamentary election 2014.

    Young lives are increasingly getting exposed to victimization – institutional stalking, coercing, identity-theft, abuse, ostracism, witching, harassment, threat, kidnapping and other form of crime, leading to murder, which remain oblivious to police intelligence and judiciary.

    In the absence of any law and social noesis to respect and protect domestic cohabitation, young couples in love are systematically restrained and prevented from getting married (legally), and if married (legally) are denied cohabitation, in the pretext of frivolous social conditions/circumstances based on socio-financial status, power to influence, caste, creed, race, and religion. With some of which, unfortunately, an individual has almost no control over, only except his/her finance.

    Using digital and print media as a vehicle, individuals/bodies, having vested interests, under cruel influence of crony capitalism and many other forms of social evils prevalent in our soceity, are spreading dodgy/peculiar beliefs about marriage and customs which was/is never ever found in our laws or in any religion practiced in our country.

    Judges are constrained/bribed/influenced, (even by media for the sake of news), by perpetrators of crime to deliver peculiar judgments on issues of recognizing/sanctioning even a legally valid marriage under shadows of abominable social conditioning in an utterly incapacitated state of lawlessness with no action or consideration from a callous/atrocious/demoralized/corrupt police force which is essentially provisioned/authorized/assigned to serve and protect people/society.

    The inherent underlying phenomenon, giving rise to this disingenuous social system, and the reasons it is being unwillingly, but slowly getting acceptance, is due to widespread socio-economic disparity, money-might, ignorance, poverty, inclusion of immigrants into our legislative process, indecisiveness of police to act upon intelligence inputs, lack of leadership/motivation/responsibility/knowledge of National Human Rights Commission and National Commission for Women to initiate/influence/steer legislative process/reforms and absence of a Social Security System that aim to protect an individual’s physical, financial, intellectual, sexual and spiritual needs.

    Considering our civilization, society, and technological advancement over these years and in the events of ever-changing social dynamics due to a changing economy and globalization, arn’t we increasingly finding it arduous to understand/accept a piteous state of governance catapulting our hopes and expectation in every front very often, when see :-
    (1) a system occupied with high-level scams, corruptions and day-light loot of money in the magnitude of or equivalent to annual budget of some under-developed/developing nations,
    (2) a system obstinate about sympathizing and protecting interests of capitalists/bania,
    (3) a system crippled with an indolent judiciary which is riding upon a Criminal Justice Delivery System as old as 100 years old with no symbolic urgency to reform it ???

    Can we expect the parliamentarians of this century, irrespective of their political affiliations or party-lines, oblige to deliver this nation a Social Security System that aims to protect an individual’s democratic existence, not in theory, but in practice?

    Marriage is a natural union of two souls, agreeably united, a social institution.

    Let us encourage, promote and protect it, may be for convenience, but also for love.

    © Subhash Nayak

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