Chained together

Many  women from some ethnic minority groups and a smaller number of men enter marriage without any say in the matter. Some are forced into marriage at an early age and are too inexperienced to make an informed decision about their partner or about the implications of marriage itself. They may give what passes for “consent” in the eyes of custom or the law, but in reality they are not qualified to do so. Others may consent on their behalf or persuade the prospective marriage partner to give their consent.

In 2004 the government signalled its intention to introduce a specific law to combat forced marriages and, as a first step, has attempted to define the concept.

Forced marriage is defined as a marriage performed under duress without the full and informed consent or free will of both parties.1 Being under duress includes feeling both physical and emotional pressure. Victims may fall prey to forced marriage through deception, abduction, coercion, fear or inducements. A forced marriage may be between children, a child and an adult, or between adults.

Although there is no specific criminal offence of “forcing someone to marry” in England and Wales, criminal offences may be committed in the process. Perpetrators – usually parents or other family members – could be prosecuted for offences including threatening behaviour, assault, kidnap, abduction, imprisonment and murder.

Moreover, sexual intercourse without consent is rape, regardless of whether this occurs within the confines of a marriage.

Clearly there is a fine line between arranged marriages and those that are forced. There are several reasons why many arranged marriages are not forced. These include the cultural and religious expectations and traditions that go hand in hand with our multicultural society.

The focus must remain on the conduct of the parties and all the circumstances surrounding the particular situation in order to determine whether a person’s free will has been suppressed.

In the context of criminal law, immigrants and refugees are often reminded that they are “lucky” to live here and that their job is to adapt to and obey British law as a condition of this. The suspicion that they will not do so is often manifest in the over-policing, under-protection and insensitive or discriminatory treatment at all stages of the criminal process, both as accused and as victims.

This creates a dilemma. For instance, many immigrant women subject to domestic abuse, forced marriages and so-called “honour-related crimes” continue to fear that seeking protection from the state will expose their families and partners to a racist criminal justice system and will reinforce negative stereotypes about marginalised and vulnerable individuals within their communities.

Some women’s groups in the UK have sought reform of the laws on violence against women and forced marriages, rejecting liberal claims that we should acknowledge cultural differences. Debate about the issue has been vociferous, with most groups arguing for legislation to protect victims.

However, some women’s groups are against more legislation, concluding that forced marriage already constitutes a criminal offence under existing laws prohibiting aggravated assault, kidnapping, abduction, false imprisonment, threats to kill and harassment causing harm to women and children. But this implies that there is always an element of domestic violence, which may not be the case. 

A further point to consider is how any draft legislation will deal with young women who present themselves as “fearing” the possibility of a forced marriage. One initial reaction to the proposed criminalisation of forced marriage might be to consider whether singling out forced marriages announces to UK society that the practices of some members of particular communities are so bad they warrant special targeting. Such action could reinforce negative stereotypes. Explicit criminalisation may not necessarily add anything to existing laws in relation to violence against women, except more stigma.

While there is no consensus among opponents of the practice, a number of forced marriage activists within affected communities actively support explicit criminalisation.

Concerns have been expressed about who would be prosecuted in forced marriage cases and what penalties would be introduced. Would punishment entail community rehabilitation orders, cautions or conditional charges? Would these work effectively to deter forced marriages or would they exacerbate the safety concerns of those who choose to seek redress from the criminal justice system?

If a custodial sentence is imposed on those forcing marriage, it may not be in the best interests of the affected young person, particularly if the guilty parties are members of their family. There may also be the possibility that the victim may be pressurised to drop charges if there are concerns about dishonouring the family or community.

Campaigners need to protect vulnerable girls and women against the possibility of discriminatory elements of the criminal justice system. In addition, there are the potential immigration consequences to consider. If the parents, for example, are not UK citizens, will deportation be used as a possible consequence of conviction for such a serious criminal offence?

Advocates of the criminalisation of forced marriage believe that legislation would be a powerful instrument of persuasion to convince resistant sectors of affected communities that forced marriage is wrong. Those who oppose forced marriage evidently feel that they have not been able to prevail on the strength of the existing legal, cultural, religious or feminist arguments against the practice. Outside their communities, public recognition of perpetrators or victims of a distinct criminal act is hardly the recognition that ethnic minority groups would welcome.

Activists within the community can control the form and content of internal grass-roots education and may believe that the role of law should be confined to that of deterrent. They may carefully craft a balanced approach to legislative reform, only to see one side of the balance discarded by legislators. They cannot control how the power of a criminal law, once unleashed, will be exercised by mainstream police, prosecutors and judges against the members of their community who transgress the law. Nor can they determine how the law will be read by mainstream culture and the impact this may have on the affected communities. 

Aisha Gill is a senior lecturer in criminology at the University of Roehampton. Her main areas of interest and research are health and criminal justice responses to violence against ethnic minority women in the UK.

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Abstract
This article explores whether criminalising forced marriages would prevent them or whether it would reinforce negative cultural stereotypes. Current legislation is reviewed and an assessment is made of whether there would be any benefits from bringing in specific legislation aimed at preventing forced marriages.

References
(1) Foreign and Commonwealth Office, 2005, www.homeoffice.gov.uk/comrace/race/forcedmarriage/  

Contact the author
 a.gill@rus.roehampton.ac.uk