The Effectiveness of a Specific Offence of Forced Marriage in the United Kingdom
28
The Effectiveness of a Specific Offence of Forced Marriage in the United Kingdom Themis Think Tank March 2014
Transcript of The Effectiveness of a Specific Offence of Forced Marriage in the United Kingdom
The Effectiveness of a Specific Offence of Forced Marriage
in the United Kingdom
Themis Think TankMarch 2014
Themis Think Tank Researchers
Supervising Editors: Samir Pasha and Adam Steene
Co‐editor: Yasmine Nahlawi
Yasmine Nahlawi
Jasmeen Kataria
Kim Renfrew
Commissioned by: Save Your Rights (SYR) www.saveyourrights.org Registered Charity No ‐ 1130378
© Themis Think Tank LLP and Save Your Rights (SYR) 2014
Published in the House of Lords
United Kingdom
Publishing Date: 8th April 2014 Publishing event hosted by Lord Nazir Ahmed
Contents
Notes from the Authors 1
Abstract 2
1. Introduction 3
2. Current Trends 4
2.1 Existing Civil Remedies 4
2.2 The Proposed Criminal Law 5
2.2.1 Filling a Gap in the Existing Law? 5
2.2.2 Ambiguities in the Proposed Criminal Law 6
2.2.3 Anticipated Conviction Rate Under the Proposed Legislation 7
2.3 Criminalisation in Denmark: A Comparison 8
2.4 Female Genital Mutilation: A Comparison 9
2.5 Recommended Framework 10
3. Demystification of Methodology 11
3.1 The Government Consultation 2011 Report 11
3.2 Karma Nirvana 'Postcard Campaign' Case Study 12
3.3 Ashiana Network and the Northern Rock Foundation Case Studies 13
3.4 The Effectiveness of Criminalisation in Denmark 14
4. Criminalisation and Cultural Considerations 16
4.1 Culturally Neutral Policy 16
4.2 Culturally Sensitive Implementation 17
4.3 Culture‐Friendly Practices 18
4.3.1 Short-Term: Specialist Refuges and Support Advice 19
4.3.2 Long-Term: Prevention 20
5. Conclusion 21
5.1 Recommendations 21
Page | 1
Notes from the Authors ___________________________________________________________________________ We would like to thank all those at the Save Your Rights charity who commissioned us in researching
and producing this report. Any shortcomings within this report are of the researchers themselves
and are not a reflection on Save Your Rights.
Any statistical data used in this report has been obtained from secondary sources, as quantitative
research was not employed to facilitate this writing. A number of interviews conducted with
governmental and non‐profit organisations, either by phone or through correspondence, have
allowed researchers to better understand the intricacies of the issue from a number of different
perspectives. Excerpts from these interviews have been included in this report as relevant. We are
grateful to all interviewees for their time.
Page | 2
Abstract
On 8 June 2012, the BritishGovernment announced its intention to introduce a specific
criminal offence of forced marriage to strengthen legal framework tackling the issue. The legislation
is currentlyin ‘Ping Pong’ stage between both Houses,1 before agreement is made and Royal Assent
received. At the time of writing the Scottish Parliament agreed to adopt this UK‐wide legislation, and
so the term 'UK' is used to denote its wide geographic application. This report investigates the
anticipated effect that such a specific offence, if passed, would have upon the overall framework for
combating forced marriage within the UK. It compares the proposed criminal law with the civil
remedies offered through the Forced Marriage (Civil Protection) Act 2007, and argues that the best
way forward to combat this practice, rather than to instate a specific criminal offence, is to
strengthen the already‐existent civil remedies and to place a greater emphasis on prevention and
education efforts.
This report concludes that the introduction of a specific offence of forced marriage will be
counterproductive to effectively combating the practice. The existing civil remedies, it is argued,
provide victims relief from their situations without requiring them to implicate family members,
which a great majority are reluctant to do. The high threshold of proof required to secure a criminal
conviction of forced marriage also raises doubts as to whether victims’ rights will actually be
vindicated if they participate in the criminal process. This report also examines some of the statistics
that have been invoked in support of forced marriage criminalisation, and shows that many of them
stem from inconclusive or skewed studies in which victims have not played a central role. Finally,
this report highlights that the criminalisation of forced marriage will be perceived as an affront to a
number of minority ethnic communities, resulting in their disengagement from, if not outright
hostility towards, government initiatives to tackle the issue.
1 March 2014
Page | 3
1. Introduction
An act that has been described by David Cameron as "little more than slavery",2 forced marriage is a gross abuse of an individual's human rights.3 It is a growing problem in the UK, with an estimated 5000‐8000 cases reported to relevant organisations every year.4 While there is an existing legal framework dealing with forced marriage, there is an unmistakable deficiency in the number of cases that are resolved. The Government has made its stance on forced marriage clear, announcing that "forcing someone to marry" is to become a stand‐alone offence.5 Amid fears that criminalisation of forced marriage could drive the practice further underground, this strategy has received mixed responses from professionals, academics, political figures and independent organisations. This report questions the effectiveness of a specific offence of forced marriage by examining the expected impact of such legislation, taking into account the cultural and political contexts which are paramount to the creation of a successful forced marriage policy.
The first section of this report analyses the existing civil remedies to combat forced marriage, specifically the Forced Marriage (Civil Protection) Act 2007 (FMCPA). It compares the legal nature of civil and criminal processes in general, and highlights the relative advantages of the civil approach in providing a more victim‐led solution. Drawing on the examples of forced marriage criminal legislation in Denmark, as well as the criminalisation of female genital mutilation (FGM) in the UK and Wales, it demonstrates the potential difficulties with securing convictions under a specific offence due to evidentiary and other requirements.
Meanwhile, those in favour of criminalisation base their support upon an array of statistics, including the 2011 Government Consultation on forced marriage and other studies by academics and non‐profit organisations. The second section of this report examines the methodology of some of these studies, noting that victims, despite being the most affected party by the criminalisation initiative, have often not been the focus of such research endeavours.
The final section of this report examines the cultural considerations that need to be taken into account when devising forced marriage policy. It argues that criminalisation of forced marriage is neither culturally neutral nor culturally sensitive in an area which is often a source of stigmatisation for black and minority ethnic (BME) communities. It demonstrates that the application of a specific offence will be perceived as targeting particular BME and religious groups, and will therefore not engage effectively with such communities to gain their support in combating the practice. The report concludes with recommendations for forced marriage policy, based on findings and independently conducted interviews.
2 Alan Travis. 'Forced Marriage to Become Criminal Offence, David Cameron Confirms' (The Guardian, 8 June 2012).Available at: <http://www.theguardian.com/world/2012/jun/08/forced‐marriage‐criminal‐offence‐david‐cameron> [Accessed 29 July 2013].
3 Ibid. 4 Department for Children, Schools and Families (July 2009).Forced Marriage-Prevalence and Service Response, DCSF-RB128. 5 Ibid.
Page | 4
2. Current Trends
The recognition that forced marriage is widespread within the UK has not been met with a robust legal framework to tackle the issue. The Government's approach has been to advocate the criminalisation of forced marriage in the hope that a stricter policy will help to clamp down on the practice. This section, however, maintains that the current shortfalls in combating the practice do not necessitate the creation of a specific offence. It does this by comparing the effectiveness of the existing civil framework with that of the proposed criminal approach, citing domestic and international examples to predict the consequences likely to result from the adoption of a specific offence.
2.1 Existing Civil Remedies
The FMCPA represents the single most important piece of legislation regarding forced marriage in the UK. It provides the courts with the power to issue a Forced Marriage Protection Order (FMPO),6 and has been successful in dealing with many instances of forced marriage. In the first year of its implementation in 2008, 50 FMPO applications were expected. However, this estimate was exceeded,7 and a total of 339 FMPOs were issued between 2008 and 2011.8 As shown in Figure 1 below, the use of FMPOs has generally increased since their introduction, but has recently levelled out.
FMPO Applications and Orders 2008‐2012
Figure 1: Forced marriage protection applications and orders made, 2008 Q4 to 2012 Q49
Civil measures through the FMCPA serve a dual purpose, as persons who feel at risk of being forced into marriage, as well as those who are already in a forced marriage, can apply for an FMPO. The specific provisions of the FMPO can be dictated by the judge on the basis of severity in each
6 Forced Marriage (Civil Protection) Act 2007. 7 The Women's Resource Centre (2013). Women's equality in the UK: CEDAW Shadow Report 2013. Appendix 29: Forced Marriage. Available at:<http://thewomensresourcecentre.org.uk/wp‐content/uploads/Appendix‐29_Forced‐marriage_FINAL2.pdf> [Accessed 1 August 2013].
8 Ministry of Justice (2008). Court Statistics Quarterly January to March 2012. Available at:<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/162516/court‐stats‐quarterly‐q1‐2012> [Accessed 29 July 2013].
9 Ibid.
Page | 5
case. For example, a power of arrest can be added to the FMPO in case its provisions are breached.10 A number of FMPOs have been issued in this way to prevent forced marriages from taking place, or to repatriate those at risk who were taken overseas. For example, an FMPO was issued in the case of Edirin Onogeta‐Idogun to prevent him from being taken to Nigeria to marry.11 He was nevertheless flown to Nigeria, after which the High Court issued a court order demanding his return to the UK. When this order was not complied with, his mother was convicted of contempt of court and given a custodial sentence. This case illustrates that civil measures can effectively protect victims and punish those in breach of that protection method. Although civil legislation only provides for criminal punishment in cases where an FMPO is breached, but not for actual involvement in forced marriage, it ensures the protection of victims in practical terms, which is the ultimate objective of forced marriage policy.
Considering the number of forced marriages that take place every year, the current use of civil remedies is clearly insufficient in dealing with the problem. However, this does not necessarily mean that criminalisation is the only alternative. It may be, rather, that current civil measures are not being utilised to their full effect. Indeed, 80% of the respondents to the 2011 Government Consultation on forced marriage felt that current measures are not being implemented effectively, and that more needs to be done to ensure that victims are receiving help.12 According to the Southall Black Sisters, a non‐profit organisation that offers support to women who are victims of violence:
"Effective Implementation of civil remedies is being hampered by weak enforcement of the laws, indifference and ignorance of the civil remedies available, especially within the police force and schools."13
Therefore, it is not the civil remedies themselves which are flawed, but rather the lack of knowledge amongst practitioners and communities regarding their enforcement that is preventing them from being used effectively. 2.2 The Proposed Criminal Law
With the current Government at the cusp of creating a specific offence of forcing someone to marry, it is crucial to understand the impact that this new offence could have within the context of the English legal system.
2.2.1 Filling a Gap in the Existing Law? The existing criminal law is not equipped to deal with cases in which offenders have exerted
psychological pressure to coerce the victim into marriage. For example, while such a marriage can be made void on the grounds that it came about under emotional duress, there is no specific measure to prosecute those who forced the marriage to take place. It is suggested that a specific criminal offence of forced marriage will cover such cases.
However, even if forced marriage were criminalised in a way that covers psychological pressure, proving this would be extremely challenging at the prosecution stage for the following reasons. First, evidence must establish guilt beyond reasonable doubt, and it would have to be conclusively proven that the threats or words said in a given case were sufficient to force individuals
10 Ministry of Justice (2012), Forced Marriage Protection Orders: A Guide to the Court Process (2nd Edition). Available at:<http://www.justice.gov.uk/downloads/protecting‐the‐vulnerable/forced‐marriage/forced‐marriage‐protection‐order‐guidance.pdf> at 2 [Accessed 30 August 2013].
11 BBC News (14 Feb 211). EdirinOnogeta-Idogun Mother Jailed Over Missing Son. Available at:<http://www.bbc.co.uk/news/uk‐england‐london‐12455820> [Accessed 15 May 2013].
12 Home Office (2012).Forced Marriage- A Consultation, Summary of Responses. Available at:<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/157829/forced‐marriage‐response.pdf> at 5 [Accessed 15 May 2013].
13 Ibid at 9.
Page | 6
to marry against their will. With such cases often involving more than one family member exerting such pressure, culpability is spread across from one person to many. This means firstly, that prosecution will need to decide how many members to charge, which then leads to the second issue, whether the reduced culpability of use of coercion will be able to meet the high criminal threshold of beyond reasonable doubt and secure a conviction of the defendants charged.
Second, the difficultly of producing suitable and acceptable evidence within the context of forced marriage may act as a considerable obstacle to securing convictions. While it may only be practical for the victims to secretly record encounters with the family members, would such evidence be admissible?
Third, despite the distinct difference between an arranged marriage, in which both spouses have free choice but may marry based on recommendations of family members, and a forced marriage, in which the victim has absolutely no choice but to go through with a marriage,14 there is certainly a grey area when it comes to emotional coercion (i.e. where victims allege that emotional pressure left them with no choice regarding marriage, but where family members would counter otherwise).
An example that illustrates the difficulty of establishing coercion in a forced marriage situation can be seen in the case of Aisha, whose father threatened to end his life should she not agree to go through with her marriage.15 Although a very extreme threat, under criminal proceedings it would be difficult to prove first that the threat was actually made, and second, that the victim gave her consent solely because of the threat made. The court would have to rely on statements made by witnesses or the victim, which would be a challenge in itself as victims may be unwilling to testify knowing that their testimony could result in criminal sanctions being imposed against their family members. Moreover, if the case is based on threats made over a period of time, gathering evidence to prove this would be extremely difficult.
2.2.2 Ambiguities in the Proposed Criminal Law Existing areas of criminal law already provide grounds for prosecution in most cases of
forced marriage through offences such as assault, abduction, rape and kidnapping. From April 2011‐2012 there were 42 criminal investigations involving forced marriage and 21 of those resulted in a conviction through already‐existing offences.16 This raises the question as to whether a specific offence of forced marriage is necessary, since its commission can often be prosecuted, albeit indirectly, through pre‐existing alternative offences.
A statement made by the CPS during the 2011 Government Consultation confirmed that even if forced marriage were criminalised, existing criminal offences would still be used in particularly serious cases:
"If a new criminal offence was created for forced marriage, depending on the facts and circumstances of the case the CPS would still decide to charge other offences that better reflected the gravity of the offence (e.g. rape, kidnapping etc)."17
It is apparent, therefore, that a specific offence of forced marriage would often be subservient to other, already‐existing criminal measures. Take, for example, the general offence of kidnapping. There are a number of actions that can be understood to fall under this offence, including false imprisonment at common law, kidnapping at common law, child abduction under the Child
14 Pat Strickland. 'Forced Marriage' (House of Commons Library, Home Affairs Section, 2012). Available at: <www.parliament.uk/briefing‐papers/SN01003.pdf> at 1 [Accessed 10 May 2013].
15 Charlotte Rachel Proudman. 'Forced & Arranged Marriage Among South Asian Women in England and Wales: Critically Examining the Social and Legal Ramifications of Criminalization' (Lambert, 2011).
16 Charlotte Rachel Proudman. 'Enacting a Specific Criminal Offence of Forced Marriage'. 176 CL&J (2012) 281.
17 Home Office (2012).Forced Marriage- A Consultation, Summary of Responses. Available at:<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/157829/forced‐marriage‐response.pdf> at 5 [Accessed 15 May 2013].
Page | 7
Abduction Act 1984 and hostage‐taking under the Taking of Hostages Act 1982.18 This means that the CPS already has a range of legislation related to kidnapping that can be applied in cases of forced marriage, all of which are more serious than a stand‐alone offence of "forcing someone to marry."
Prosecuting under general offences such as kidnapping also circumvents some of the aforementioned difficulties with proving duress when forced marriage arises out of emotional coercion. For example, the common law offence of kidnapping is defined as "the taking away of one person by another, by force or fraud, without the consent of the person taken or carried away and without lawful excuse".19 This is an extremely succinct and clear definition. By contrast, a specific offence of forced marriage, if worded so as to cover psychological pressure, would include the use of duress, defined as "unlawful pressure exerted upon a person to coerce that person to perform an act that he or she ordinarily would not perform."20 The wording holds great ambiguity in the level of pressure that would cross the criminal threshold. Under the offence of kidnapping, "taking away" is a definitive action that can be looked at from an objective perspective, whereas the term "coerce" incorporates a level of subjectivity, as it relies on how various actions are perceived by the parties involved. Given that prosecutions for forced marriage cases would be better pursued under existing criminal law rather than the proposed criminal offence, it seems more appropriate to use forced marriage as an aggravating factor, rather than to create a stand‐alone offence.
2.2.3 Anticipated Conviction Rate Under the Proposed Legislation If a specific offence of forced marriage is to be created, it can be justified only if it
meaningfully reduces the number of cases of forced marriage taking place, or if it leads to an increased prosecution of perpetrators (or both). Many supporters of criminalisation assert that the proposed legislation will fill the gaps in existing law to ensure that there are a greater number of cases resulting in a conviction. Charlotte Proudman, a barrister working in the field of family law who has significant expertise in forced marriage cases, assured that a specific offence will be more effective in securing convictions than the current "patchwork" of criminal law, which is not designed specifically to deal with forced marriage.21
Estimates from the CPS, however, predict that there will be approximately20 forced marriage convictions in the year following its criminalisation.22 It is not clear how this figure has been calculated, nor whether these convictions would involve the commission of other related offences. Regardless, this number of anticipated convictions is low compared to the average number of FMPOs issued yearly, and is also significantly less than the number of forced marriage cases reported each year. In light of these figures, it is unclear how a specific offence would serve to alleviate the problem of forced marriage.
Equally significant, most forced marriage victims themselves foresee that the criminalisation of forced marriage will be detrimental to combating the practice. The Iranian and Kurdish Women's Rights Organisation (IKWRO) has stated that many of the victims that it has supported believe that their parents would not have gone through with the forced marriage had they faced the threat of a criminal sanction.23 However, Ashiana, a refuge and outreach service for victims of domestic violence, asked 20 current residents in its forced marriage refuge for their thoughts on criminalisation of the practice. While 7 out of 20 mentioned that criminalisation may raise awareness within communities and act as a deterrent for families from engaging in forced marriage, 19 of the 20 victims also stated that they would not have reported their situation to the authorities if
18 Jonathan Herring. 'What's Wrong with Kidnapping?' CLR (2012) 343 at 344.
19 LCCP 200, para.1.9
20 The Free Legal Dictionary. Available at:<http://legal‐dictionary.thefreedictionary.com/duress> [Accessed 21 September 2013].
21 Charlotte Rachel Proudman. 'The Criminalization of Forced Marriage'. 42 Family Law (2012) at 460‐465.
22 Charlotte Rachel Proudman. 'Enacting a Specific Criminal Offence of Forced Marriage'. 176 CL&J (2012) 281 at 282.
23 IKWRO (2012).Victims of Forced Marriage Now Know what is Happening to them is Wrong, Illegal, and can be Stopped. Available at:<http://ikwro.org.uk/2012/06/12/victims‐of‐forced‐marriage‐now‐know‐that‐what‐is‐happening‐to‐them‐is‐wrong‐illegal‐and‐can‐be‐stopped/> [Accessed 8 June 2013].
Page | 8
doing so would have implicated their parents or led to their prosecution.24 This attitude was affirmed by a volunteer from the Muslim Community Helpline, who states:
"For [these girls] ... to go on and report their families is unheard of. No matter how much their families have done to them, they just want to get away from their situation, but you will never see a case where a victim wants to press charges against her family. There may be one or two cases where the girl doesn't care and wants her parents charged, but the majority just want to get away from their situation." These assertions, as well as the writings of a number of authors,25tend to show that forced
marriage victims simply want an escape from their situation. Such victims are not interested in pressing charges against their families, nor do they want their parents implicated in any way. Therefore, it appears likely that a criminal policy on forced marriage will deter victims from coming forward, thereby driving down conviction rates and the number of cases that are effectively dealt with by the Government.
2.3 Criminalisation in Denmark: A Comparison
Denmark's criminalisation of forced marriage in 2008 best illustrates how the proposed specific offence would operate in practice. Although consistently referenced in support of criminalisation,26 there has not, in fact, been a single conviction under the 2008 legislation.27 There are several fundamental issues with the Danish law criminalising forced marriage. First, it only applies to cases that involve marriages legally recognised within Denmark.28 Marriages conducted outside the purview of the courts fall beyond the scope of the criminal legislation, meaning that victims of such marriages have no rights or legal recourse unless other offences, such as kidnapping or assault, take place. The second issue with Denmark's criminalisation of forced marriage is that it fails to apply to situations that involve solely the emotional coercion of the victim.29 In this regard, it does not offer a unique remedy for cases of emotional duress, as is alleged by many pro‐criminalisation authors. As such, it does not fill the gap in the existing law, but rather provides an alternative offence that can be used to charge offenders.
A representative from the Danish organisation Lands organisation afkvinder krise-centre (LOKK) argues that the recent criminalisation of forced marriage in Denmark has had a primarily symbolic, rather than deterrent, effect:
"[T]he law has a symbolic value more than anything else. It may be that some parents are 'scared off' by the law, whilst we know that other parents are not … [F]orced marriage is still practised and ancient cultural traditions cannot easily be eradicated by passing laws against them."
24 Aisha Gill and KhatunSapnara. 'Forced Marriage Blight Lives, But Criminalising Them Would Not Work' (The Guardian, 9 April 2012). Available at:<http://www.guardian.co.uk/commentisfree/2012/apr/09/forced‐marriages‐criminalising> [Accessed 13 May 2013].
25 See, for example, David Tap and Sue Jenkinson.'Forced Marriage: Culture or Crime? Part II'.177 Criminal Law and Justice Weekly (2013) at 4; NaziaKhanum.'Forced Marriage, Family Cohesion and Community Engagement: National Learning through a Case Study of Luton'(2008). Available at:<http://www.reducingtherisk.org.uk/cms/sites/reducingtherisk/files/folders/resources/hbv_forced_marriage/FM_family_cohesion_community_engagement.pdf> at 42 [Accessed 13 May 2013]; Helen Carter.'Criminalisation of Forced Marriage 'Will Push Issue Underground'(The Guardian, 8 June 2012). Available at:<http://www.guardian.co.uk/world/2012/jun/08/criminalisation‐forced‐marriage‐push‐issue‐underground> [Accessed 27 April 2013]; Amrit Wilson.'The Forced Marriage Debate and the British State'.Race and Class (2007) 49 at 42.
26 See for example: Charlotte Rachel Proudman. 'In Criminalising Forced Marriage the UK Joins a Europe‐wide Movement' (The Independent - Blogs). Available at:<http://blogs.independent.co.uk/2012/06/10/in‐criminalising‐forced‐marriage‐the‐uk‐joins‐a‐europe‐wide‐movement> [Accessed 22 June 2013].
27 Nasreen Pearce and Aisha Gill, 'Criminalising forced marriage through stand‐alone legislation: will it work?' 42 Family Law (2012) at 53.
28 Global Justice Initiative (2012).Denmark's Forced Marriage Law Under Fire. Available at:<http://globaljusticeinitiative.wordpress.com/2012/10/04/denmarks‐forced‐marriage‐law‐under‐fire> [Accessed 1 July 2013].
29 Ibid.
Page | 9
Therefore, while a criminal offence of forced marriage is symbolic in that it highlights the unacceptability of forced marriage, it is important to recognise that this will not necessarily be effective in helping victims, which should ultimately be the aim of any criminal legislation.
Given the deficiencies of the Danish criminal law and its inability to produce any successful prosecutions, it is arguable that the attempt to tackle forced marriage in Denmark through criminalisation has been unsuccessful. A similar criminal approach, if taken in the UK, may be powerful symbolically, although it is unlikely to be any more effective in terms of conviction rates. More importantly, criminal legislation can only be relied upon after a forced marriage has taken place, so it will not have the same preventative effect as the FMPO. If both civil and criminal remedies remain open to victims, it is likely that victims will favour the civil process both before the marriage takes place, as well as after it has occurred, as the exposure of family members to criminal liability might be daunting. 2.4 Female Genital Mutilation: A Comparison
FGM, like forced marriage, is a practice best understood in the appropriate socio‐political context, although, unlike forced marriage, it is already criminalised in the UK. According to Home Office estimates from 2007, there are approximately 24,000 girls under the age of fifteen within Britain who are at risk of this crime. The practice does not necessarily arise out of hate, but is carried out by families because, according to their cultural norms, they believe that it is in the best interest of their daughters. There is a risk of non‐acceptance or an inability to marry within certain cultures unless a girl undergoes the procedure of 'female circumcision'. It is also mistakenly believed by some to be more hygienic for females to be circumcised. Female genital mutilation was criminalised under the Prohibition of Female Circumcision Act 1985. The Female Genital Mutilation Act 2003, which came into force in 2004, extended the law to criminalise FGM carried out overseas. It makes it an offence to excise, infibulate or otherwise mutilate the whole or any part of a girl's genitalia, and carries a maximum penalty of fourteen years’ imprisonment.30However, there has not been a single successful prosecution to date under FGM criminal legislation.
Most of the cases referred to the CPS under the 1985 and 2003 Acts have had severe evidentiary difficulties, meaning that there is little hope for successful prosecution.31 Aside from the task of identifying victims, there are fundamental problems with gathering evidence to support cases under the FGM Act, such as securing medical examinations of victims.
Furthermore, those investigating FGM find it difficult to achieve the cooperation and trust of victims, particularly when child victims are asked to give evidence against their parents. This pattern is likely to translate over to forced marriage, as victims will be similarly hesitant to implicate their family members in criminal proceedings. Nasreen Pearce, along with Dr. Aisha Gill of the University of Roehampton, have highlighted some of the difficulties with securing a conviction of forced marriage at the prosecution stage, particularly the "adverse effect" that the criminal process may have on the victims.32 A successful prosecution would require full disclosure of evidence and the examination of witnesses, which could involve private and sensitive information. Victims would not only have to be prepared to share this information, but may face cross‐examination by defence lawyers.
It is apparent that the criminalisation of FGM has not been successful in tackling the practice. As an alternative to the criminal process, young girls at risk of FGM can be protected through court orders that operate in a similar fashion to the FMPO. Such an approach is more closely
30 Female Genital Mutilation Act 2003.
31 Felicity Gerry. 'Female Genital Mutilation ‐ Time for a Prosecution' (Halsbury's Law Exchange,2012). Available at: <http://www.halsburyslawexchange.co.uk/female‐genital‐mutilation‐time‐for‐a‐prosecution/> [Accessed 25 November 2013]; BBC News (2013). First Female Genital Mutilation Prosecution "Close", Says CPS.Available at: <http://www.bbc.co.uk/news/uk‐23982767> [Accessed 25 November 2013].
32 Nasreen Pearce and Aisha Gill, 'Criminalising forced marriage through stand‐alone legislation: will it work?' 42 Family Law (2012) at 53.
Page | 10
aligned with the victim's interest. Similarly, the criminalisation of forced marriage is unlikely to deal successfully with this practice in the UK; the civil approach is more likely to encourage victims to come forward and to achieve desired results in addressing cases that arise.
2.5 Recommended Framework
Given the evidence, it is maintained that a specific offence of forced marriage will not be successful in tackling the shortfall of resolved cases. Importantly, it will not act as a deterrent to perpetrators, but will instead discourage victims from coming forward out of fear of subjecting their families to prosecution. It is also unlikely to provide the protection that victims need from this abuse due to the aforementioned evidentiary requirements. Therefore, rather than pursue the creation of a criminal offence, the Government should focus on strengthening the already existing civil measures, which provide a middle ground in which victims can be reassured of both their protection and the maintenance of their relationships with their family and community. Establishing forced marriage as an aggravating factor in sentencing would allow the CPS to avoid the difficulties associated with establishing the separate offence, while ensuring that the guilty party is properly punished. The ability to criminalise the breach of an FMPO,33 which can be issued in cases where emotional duress is employed, represents a welcome development, as it will hopefully lead to greater enforcement of current civil measures. Many organisations, including the An‐Nisa Society, support this move, claiming that the criminalisation of the breach of an FMPO "may provide enough of a deterrent without the need for criminalisation."34
33 Pat Strickland. 'Forced Marriage' (House of Commons Library, Home Affairs Section, 2012). Available at: < www.parliament.uk/briefing‐papers/SN01003.pdf> at 1 [Accessed 10 May 2013].
34 An‐Nisa Society (2011).Home Office Forced Marriage Consultation, Responseby An-Nisa Society. Available at:<http://www.an‐nisa.org/downloads/748_Forced_Marriage_Consultation2012.pdf> [Accessed 16 May 2013].
Page | 11
3. of Methodology
Much of the research that has influenced government policy regarding forced marriage seems to have indirectly or uninte onally ed flawed methodology, or has been se used to support the cri of forced marriage. This reveals inconsistencies and misconstruing of key research data(for example, of the 2011 Government Consul on report, the postcard campaign conducted by Karma Nirvana and statements of the Danish organi on LOKK) that have been used to promote the cri of forced marriage. 3.1 The Government Cons n 2011 Report
The 2011 Government Consulta on was carried out between 12 December 2011 and 30 March 2012 to gauge public support for the crimi of forced marriage (see Figure 2). It sought the views of v , key partners, local authori es, legal prac ers, third party agencies, other government departments and NGOs with a direct interest in tackling forced marriage.35The Home Secretary, Theresa May, stated in her Ministerial Foreword to the on, "We genuinely want to hear the views of and those who work in this field before we come to a decision on the best way to protect vulnerable people". The reality of the cons however, is that only 2% of the respondents were vi ms, 5% were represe ve bodies and 13% were NGOs, while the majority of the respondents (59%) were other members of the public36 (See Figure 3). It was on the basis of the responses obtained that the crimin of forced marriage was recommended.
35 Home Office (2011). Forced Marriage -A Consultation Summary of Responsesat 4. NGO's include
Southall Black Sisters, Jan Trust, Karma Nirvana, IKWRO, Imkaan, Ashiana Network, Henna Founda Eaves Housing, Kurdish and Middle Eastern Women's Orga Refuge, Asha Projects & Saheli Manchester, An-Nisa Society, Muslim Women's Network and Manchester Women's Aid.
36Ibid at 5. The r bodies include and Human Rights Commission, North West Regional Strategic on, on Watch, Royal College of Psychiatrists, Teeside and Hartlepool Magistrates, Magistrates As N onal LGB&T Partnership, Lesbian and Gay Founda Soro mist
Law Society, onal Council of Women GB, Resolu on Or n, ECPAT UK and Odysseus Trust.
Responses to the 2011 Government Consultation
54% 37%
9%
In Favour 54%
Against 37%
Undecided 9%
Figure 2: This graph provides a breakdown of the responses to the 2011 Government Consultation on forced marriage.
Page | 12
Because the issue of forced marriage is complex and multi-layered — dependent upon the culture, community and family situation— it is crucial that the focus of any forced marriage consultation be upon victims and frontline agencies who are more attune to the ramifications of various policy decisions. Lay members of the public, who may not grasp the full scope of the issue, may not be the best judges of the policy’s efficacy.37 The Consultation Report itself states that "it is clear that forced marriage is a highly sensitive and complex issue", which further reinforces that members of the public may not understand the complexities involved in criminalising forced marriage. 3.2 Karma Nirvana 'Postcard Campaign' Case Study
The 2011 Government Consultation cites Karma Nirvana's postcard campaign as another piece of evidence that demonstrates the public's inclination towards criminalising forced marriage. This campaign sought the views of 2,512 members of the public regarding "key questions" on forced marriage through issuing postcards, which people would fill out and return to volunteers. One side of the postcard gave the definitions of forced and arranged marriages, stating that forced marriage is a "marriage where one or both parties do not, or cannot, provide full and free consent. Physical force or duress is used." It defined arranged marriage as a "marriage where families take a leading role and both parties provide full and free consent. Duress is not used." On the back of the postcard were three questions: "Do you think forced marriage should be criminalised?""What do you think would be the impact if forced marriage was criminalised?""Do you think criminalising forced marriages would discourage people from reporting to professionals?" The survey concluded that "96% [of the general public] supported the criminalisation of forced marriage, 3% do not support and 1% are not sure."38 On the issue of whether members of the public believed that criminalisation would discourage victims from reporting their situation to professionals, "23% stated that it would discourage, 71% stated that it would not and 6% were not sure."39
Overall, the Karma Nirvana consultation, based on a postcard campaign that surveyed members of the general public, cannot be used to show that forced marriage should be criminalised. Members of the general public were not sufficiently familiarised with the debate surrounding the criminalisation of forced marriage to allow them to make informed judgments. Furthermore, the results were not broken down in terms of respondents' ethnicity, age, religion and gender. It may be more relevant, for example, to analyse the responses of females, given that the majority of forced
37 Refuge (2010).Forced Marriage in the UK. Available at: <http://refuge.org.uk/files/1001-Forced-Marriage-Middle-East-North-East-
Africa.pdf> at 8 [Accessed 1 August 2013]. 38 Karma Nirvana (2011). Karma Nirvana's response to the Home O�ce Forced Marriage Consultation at 1; Home Office (2011). Forced
Marriage -A Consultation Summary of Responses claims that Karma Nirvana "received 3,000 responses which informed their response to the consultation".
39 Karma Nirvana (2011). Karma Nirvana's response to the Home O�ce Forced Marriage Consultation at 1.
2%5%
7%
13%
14%
59%
Figure 3: This graph provides a breakdown of the respondents to the 2011 Government Consultation.
Victims 2%
Representative bodies 5%
Legal experts 7%
NGO’s 13%
Statutory agencies 14%
Members of the public 59%
Respondents to the 2011 Government Consultation on the Criminalisation of Forced Marriage
Page | 13
marriage cases affect this group. An analysis broken down by the ethnicity and cultural background of respondents would also demonstrate how views differ across various cultures. Therefore, while the postcard consultation made use of a random sample to generalise its results to the population, a representative sample would have been more appropriate as it would have given more weight to responses from victims and those who are more prone to being affected.40 3.3 Ashiana Network and the Northern Rock Foundation Case Studies
More representative research on forced marriage, such as that conducted by the Ashiana Network41 and the Northern Rock Foundation, appears to have been disregarded.42
Ashiana Network surveyed 20 residents across 3 of its forced marriage refuges on their thoughts towards criminalisation of the practice. 19 out of the 20 women said that if forced marriage had been a criminal offence, they would not have alerted the authorities because they would not have wanted to see their parents prosecuted. Compared to Karma Nirvana's survey, which was aimed at a general public with no real understanding of the sensitivities surrounding forced marriage, Ashiana's survey specifically focused on women who were victims of or at risk of forced marriage. Other organisations, such as An‐Nisa, Centre LGS, Southall Black Sisters and Refuge, further support the opinion that forced marriage should not be criminalised on the grounds that it will deter victims from coming forward. For example a representative from An‐Nisa, a grassroots organisation with thirty years' experience within the Muslim community wrote, "We are still of the opinion that criminalising forced marriage will not be helpful and may even be harmful".43The organisation further notes that the issues surrounding forced marriage are complex and sensitive, and that most victims of the practice will not come forward if it will result in criminal liability for their parents and other family members.44 An‐Nisa suggests that the practice will go further underground if criminalised, and that parents may find ways of getting around the law, for example by taking their children abroad at an earlier age and leaving them there.45
Another study conducted by the Northern Rock Foundation in 2005 sought opinions regarding the criminalisation of forced marriage from Pakistani, Bangladeshi and Indian communities and from members of different health, support and community development agencies, including those that work primarily or solely with minority ethnic communities.46 From the Pakistani, Bangladeshi and Indian communities, the Foundation interviewed 37 women (thirteen single, seventeen in an arranged marriage, three in a love marriage and four in a forced marriage) and 31 men (seventeen single, thirteen in an arranged marriage, one in a love marriage and one in a forced marriage). From this sample, only one respondent thought that criminalisation of forced marriage would represent a positive development, whereas others identified a number of problems with it, including the potential misuse of the law, issues concerning the distinctions between arranged and forced marriage and its perception as a potential attack on Islam. There were also 49 agencies interviewed (five health, two house/refuge support, nineteen support/advocacy, four police,
40 Marshall, M. 'Sampling for Qualitative Research' (1995). Available at: <http://spa.hust.edu.cn/2008/uploadfile/2009‐9/20090916221539453.pdf> at 522 ‐ 523 [Accessed 1 August 2013].
41 Ashiana Network (2012). Forced Marriage Consultation. Available at: <http://www.ashiana.org.uk/attachments/article/5/Ashiana%20Network%20Response%20to%20Forced%20Marriage%20Consultation%202012.pdf>at 9 [Accessed 1 August 2013].
42 Gangoli, G., Razak, A., McCarry, M. 'Forced Marriage and Domestic Violence among South Asian communities in North East England' (2006). Available at: <http://www.bris.ac.uk/sps/research/projects/completed/2006/rj4334/rj4334finalreport.pdf> at 5‐9.
43 An‐Nisa Society(2012). Response by An-Nisa Society. Home Office Forced Marriage Consultation 2012. Should Forced Marriage be a Criminal Offence? Available at:<http://www.an‐nisa.org/downloads/748_Forced_Marriage_Consultation2012.pdf> at 1 [Accessed 1 August 2013].
44 Ibid.
45 Ibid at 5.
46 Gangoli, G., Razak, A., McCarry, M. 'Forced Marriage and Domestic Violence amongst South Asian Communities in North East England' (School for Policy Studies, University of Bristol, 2006). Available at:<http://www.bris.ac.uk/sps/research/projects/completed/2006/rj4334/rj4334finalreport.pdf> at 5 [Accessed 1 August 2013].
Page | 14
probation and law, sixteen community development agencies and three others). The general view among the agencies was that the proposed legislation would not represent a positive development, but instead would be counter‐productive and unenforceable. They suggested that rather than creating a new law, young people, parents and communities should be educated about marriage and the rights associated with it.47
Both research endeavours by Ashiana and the Northern Rock Foundation focus on representative samples of relevant organisations and agencies, minority ethnic groups, or people directly affected by forced marriage. Therefore, it is likely that they are more reliable indicators of the effectiveness of the proposed forced marriage law than both the 2011 Government Consultation and Karma Nirvana's survey, neither of which sought specifically to focus on the law’s impact on the relevant communities. 3.4 The Effectiveness of Criminalisation in Denmark
Before criminalising forced marriage in the UK, it is helpful to consider the effectiveness of similar policies in other countries. Forced marriage is now a criminal offence in seven EU countries, including Austria, Belgium, Cyprus, Denmark, Germany, Malta, Sweden and Norway (although a non‐EU member state, it is nonetheless subject to EU legislation through the EEA agreement).48 It has been claimed by organisations such as IKWRO and British Muslims for Secular Democracy (BMSD),49 as well as by a number of newspapers,50 that criminalisation has been effective in such countries, thereby bolstering their case for criminalising forced marriage in the UK. Such entities have stated, for example, that Denmark has seen an increase in the number of young people coming forward since its criminalisation of forced marriage in 2008. This is based on a comment by the Danish organisation LOKK:"it has in no way been our experience that young people have stopped seeking help because of this law [criminalising forced marriage]. On the contrary, the number of young people and professionals seeking help from LOKK has soared since 2008."51
Upon close examination, it becomes apparent that the statement by LOKK has been misrepresented in order to disprove the argument that criminalisation will deter vulnerable people from reporting that they are in danger. A consultant from LOKK clarifies:
"It is true in fact, that there has been a large increase in the amount of young people who have contacted our helpline over the last few years. But it is very important to stress that these young people have not all been affected by Forced Marriage ... Forced Marriage was not and still is not the main reason for young people to seek our help."
47 Ibid at 24.
48 Network for the New European Generation (2011). Brussels - European Parliament Public Hearing on Forced Marriages. Available at:<http://www.neweuropeangeneration.eu/1/post/2011/6/brussels‐european‐parliament‐public‐hearing‐on‐forced‐marriage‐june‐2011.html> [Accessed 1 August 2013].
49 IKWRO (2012). Criminalisation of Forced Marriages. Available at: <http://ikwro.org.uk/2012/03/19/criminalisation‐of‐forced‐marriage‐%E2%80%93‐ikwro‐statement‐of‐support/> [Accessed 20 July 2013]; British Muslims for Secular Democracy (2012). Forced Marriages Undermine the Value of Islam. Available at: <http://bmsd.org.uk/index.php/forced‐marriages‐undermine‐the‐values‐of‐islam/> [Accessed 1 August 2013].
50 The Copenhagen Post (2012). PM Criticized for Views on Tackling Forced Marriage. Available at: <http://cphpost.dk/news/national/pm‐criticized‐views‐tackling‐forced‐marriages> [Accessed 1 August 2013]; Stuart, H. 'Forced Marriage Should be a Crime' (National Post,2012). Available at: <http://fullcomment.nationalpost.com/2012/04/19/hannah‐stuart‐forced‐marriage‐should‐be‐a‐crime/> [Accessed 1 August 2013].
51 Wind‐Cowie, M., Cheetham, P., and Gregory, T. 'Ending Forced Marriage'(2012). Available at: <http://www.demos.co.uk/files/Forced_marriage_‐_web_4_.pdf?133527774> at 50 [Accessed 1 August 2013]; Copenhagen Post (2012). Government targets Forced Marriages. Available at: <http://cphpost.dk/news/national/government‐targets‐forced‐marriages> [Accessed 1 August 2013].
Page | 15
Therefore, while LOKK has indeed seen an increase in the number of young people coming forward, it is not causally related to Denmark's criminalisation of forced marriage. The LOKK consultant further states:
"In my view, there is no direct correlation between the Danish criminalisation of Forced Marriage in 2008 and the increase of young people coming forward and seeking help at LOKK. The increase of people coming forward should be seen in a much wider perspective, as the issues of Honour Related Conflict and Forced Marriage have received an enormous amount of attention in Danish society and media over the last decade, partly due to NGOs such as ourselves and a couple of tragic cases here in Denmark in which young women were murdered by their families ... these cases did not involve forced marriages."
Those pointing to Danish policy as a model for the UK are basing their argument on a misrepresented statement.52 Indeed, there appears to be no direct evidence that the criminalisation of forced marriage has been effective in Denmark.
The Red Cross Organisation in Norway acknowledges that criminalisation adds further social stigma to the issue of forced marriage, so that it has become more prominent on a national scale. It also points out, however, that there is no indication of an increase in the number of people coming forward since its implementation. A member of the Organisation stated:
"Few people want to report their own family. The few cases that have gone to court have been reported from the Child Protection Agency and not from the person itself. In most of the cases other paragraphs have been used as the law does not include unofficial marriages like nikhanama contracts. This makes it difficult to use the law." In short, a law criminalising forced marriage will only be effective if victims come forward,
and research into the desirability of such a law ought to gauge the reaction of those it is designed to protect. The 2011 Government Consultation and Karma Nirvana's postcard campaign ignore the importance of such an approach, as the respondents to both surveys comprise mostly of members of the general public who may not be particularly informed of the implications of forced marriage criminalisation. Examining the European perspective, it has also been shown that allegations of the success of forced marriage criminalisation within countries such as Denmark are in fact erroneous and have been misconstrued from source statements.
52 See, for example, IKWRO(2012). Criminalisation of Forced Marriages. Available at: <http://ikwro.org.uk/2012/03/19/criminalisation‐of‐
forced‐marriage‐%E2%80%93‐ikwro‐statement‐of‐support/> [Accessed 20 July 2013]; British Muslims for Secular Democracy(2012). Forced Marriages Undermine the Value of Islam. Available at :<http://bmsd.org.uk/index.php/forced‐marriages‐undermine‐the‐values‐of‐islam/>[Accessed 1 August 2013]; The Copenhagen Post(2012). PM Criticized for Views on Tackling Forced Marriage. Available at: <http://cphpost.dk/news/national/pm‐criticized‐views‐tackling‐forced‐marriages> [Accessed 1 August 2013]; Stuart, H. Forced Marriage Should be a Crime. (National Post, 2012). Available at: <http://fullcomment.nationalpost.com/2012/04/19/hannah‐stuart‐forced‐marriage‐should‐be‐a‐crime/> [Accessed 1 August 2013].
Page | 16
4. Criminalisation and Cultural Considerations
Over two‐thirds of forced marriage cases handled by the Government’s Forced Marriage Unit (FMU) in 2012 were of South Asian origin, with 47.1% of the cases originating from Pakistan, 11% from Bangladesh and 8% from India.53 Criminalisation of this practice therefore has the potential to "[promote] stereotypes of culture" and to marginalise these communities.54 This section examines the cultural dimension of forced marriage criminalisation, and argues that its implementation would be neither culturally neutral nor culturally sensitive.
The issue of perceived BME community marginalisation is critical when devising policy to combat forced marriage. Within these communities, criminalisation may be perceived to fall along a continuum of government initiatives (for example, anti‐terror and immigration) to police them, causing them to become defensive and uncooperative.55 Instead, it would be more effective to pursue policies that will gain their active participation and allow them to reassess their stance towards forced marriage, thereby contributing to more long‐term and durable solutions. This approach is not, as implied by Meetoo and Mirza (among others),56 invoking multiculturalism as an excuse for inaction, especially given the apparent support for the use of civil remedies by victims over criminal sanctions. Rather, it affirms that forced marriage is a horrible practice that must be eradicated from society, but further recognises that it is more effective to engage communities rather than to police them, and to include them in a nationwide campaign to combat forced marriage rather than to marginalise them and treat them as 'backwards'.
Ultimately, any effective forced marriage policy must be both culturally neutral and culturally sensitive. A culturally neutral policy does not discriminate in its scope or purpose, either explicitly or implicitly, whereas a culturally sensitive policy allows for the engagement of each community in a manner that will most effectively help it to challenge its perceptions and bring about a desired change. Forced marriage policy that achieves both of these objectives is likely to most efficiently combat the practice in both the short and long term, as it motivates BME communities to engage with government initiatives and gives them a stake in the success of the outcomes.
4.1 Culturally Neutral Policy
Forced marriage policy must be culturally neutral in that it should be devoid of any overt or implicit suggestion that it targets a specific community or demographic. This prevents the perpetuation of stereotypes that associate the practice with specific BME communities, and also alleviates some of the concerns within these communities that the government is trying to target them specifically. While forced marriage criminalisation is admittedly not de jure discriminatory, as its implementation would be uniform regardless of the origin of the forced marriage case, both its implications and its application have the potential to be skewed because of the common association of the practice with South Asian communities. According to a representative from Imkaan, an organisation dedicated to addressing violence against women and girls:
"A lot of the profiling, publicity and work on forced marriage in this country is focused mainly on specific sections of the South Asian communities, so not all of the South
53 Forced Marriage Unit (2012). Statistics January to December 2012. Available at:<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/141823/Stats_2012.pdf> [Accessed 28 May 2013].
54 Quek, K. 'A Civil Rather than Criminal Offence? Forced Marriage, Harm and the Politics of Multiculturalism in the UK'.British Journal of Politics and International Relations (2012) at 16.
55 See, for example, Ibid at 5‐6; Hester, M., Chantler, K., Gangoli, G., Devgon, J., Sharma, S., and Singleton, 'A. Forced Marriage: The Risk Factors and the Effect of Raising the Minimum Age for a Sponsor, and of Leave to Enter the UK as a Spouse or Fiancé(e)'(August 2007). Available at:
<http://www.bris.ac.uk/sps/research/projects/completed/2007/rk6612/rk6612finalreport.pdf>at16 [Accessed 27 April 2013]. 56 Meetoo, V and Mirza, H.S. 'There Is Nothing 'Honourable' About Honour Killings: Gender, Violence and the limits of Multiculturalism'Women's Studies International Forum 30 (2007) at 189; Beckett, C., and Macey, M. 'Race, Gender and Sexuality: The Oppression of Multiculturalism'. 24Women's Studies International Forum no. 3/4 (2001) at 311.
Page | 17
Asian community, mainly the Pakistani community, or the Indian community ... Some of that's tied up with the extra level of scrutiny that exists in relation to Pakistani communities, more specifically Muslim communities in the UK and globally because of the war on terror." While the proposed criminal legislation on forced marriage may be neutral in language,
Under‐Secretary of State for Justice Bridget Prentice affirms that it "might be seen to target and stigmatise certain ethnic and religious communities" (i.e. South Asian communities). This is counterproductive in that it contributes to a feeling of stigmatisation and marginalisation of these communities, as described by a volunteer from the Muslim Community Helpline:
"There is a general feeling of stigmatisation in Muslim communities. Many Muslims will say, 'Why are they [the government] saying that all the forced marriage cases are from Muslim families? Why isolate the Muslim community? There are plenty of forced marriages in other communities ... Why do they single out the Muslim community?' This issue causes tension within the Muslim community and creates barriers as to cooperation between [it] and the government."
A representative from Imkaan adds that not only would a criminal policy of forced marriage contribute to a "distrust of those in authority" within South Asian communities, but it would also impact the likelihood that forced marriage victims outside these communities will report their situations. She claims:
"And so you've got other BME communities that aren't South Asian, whether you're talking about Latin American communities or Irish traveller communities that may well experience issues such as forced marriage, but then they're less likely to come forward, because at this point the issue is more publicly, nationally, globally identified with South Asian communities." Therefore, the stereotype that forced marriage is a South Asian issue (which the proposed
criminal legislation would only perpetuate) hurts victims both within and outside this group. Victims of South Asian descent will feel marginalised and stigmatised, while those of other backgrounds will feel discouraged about reporting their situation if they feel that the protection of the law is intended only for another group. In order to more effectively combat forced marriage across all communities, government policy must be free of any cultural implications, both de facto and de jure, and must actively challenge the stereotype that it is a 'South Asian problem'. While criminalisation may be culturally neutral in language, its application has been demonstrated to be otherwise. Therefore, it is argued that the criminalisation of forced marriage would not meet the first criterion of an effective law, that it be culturally neutral.
4.2 Culturally Sensitive Implementation
In addition to the construction of culturally neutral policy regarding forced marriage, it is vital that its implementation be culturally sensitive, so that it engages with each community in a manner that most effectively contributes to a long‐term change of attitudes towards the practice. Forced marriage criminalisation is clearly counterproductive in this respect. Rather than elicit the cooperation of BME communities and bring them on board to participate in nationwide initiatives, it causes them to feel unfairly targeted and overly policed. Indeed, they are likely to view forced marriage criminalisation as an extension of other government policies that they perceive as targeting them, such as immigration and terrorism law. The effect that this would have on BME communities was summarised by an Imkaan representative:
Page | 18
"If you feel that you don't belong anyway, and that there's a high level of scrutiny towards [South Asian] Muslims in the UK, when you feel that your community's back is up against the wall, you're going to be less likely to come forward, there will be a distrust of those in authority."
The lack of cultural sensitivity resulting from forced marriage criminalisation will hurt the short and long‐term combating of the practice. In the short term, the feeling of stigmatisation within BME communities will make them more resistant to the government's initiatives, thereby hampering policy effectiveness through a lack of cooperation. More importantly, in the long term, the psychological effects of perceived stigmatisation will obstruct the re‐evaluation of long‐held attitudes towards forced marriage. Without changing the underlying beliefs and attitudes, government policy will simply be reactive, dealing with cases as they arise, rather than preventative, eliminating the practice from its roots.
As an alternative to criminalisation, it is recommended that the government pursue policies that will engage and involve BME communities so that they feel invested in the eradication of forced marriage. In this respect, one project stands out as particularly effective. Imkaan's ‘peer education initiative’ recruits and trains volunteers to become ambassadors of forced marriage education within their own communities. These volunteers are instrumental because they understand the dynamic of their communities and thus know how best to approach its members. As stated by an Imkaan representative:
"Another reason why it's been successful is that communities then take ownership of the work. It's the women from those communities, speaking to women within those communities ... A lot of people speak for BME communities, but it was equally important that women from these communities were able to speak about issues affecting them, and not having other services talking to them and telling them, this is what forced marriage looks like, this is how you should be dealing with it. Rather, the initiative was to generate discussion and challenge attitudes and behaviours that have kept certain practices going, and to do so in a safe way that encourages that dialogue to continue."
Such emphasis on community engagement represents a more culturally sensitive manner of combating forced marriage. Giving communities a stake in the outcome of government policy will increase its effectiveness, not just in the short‐term, but in the long‐term as well. 4.3 Culture‐Friendly Practices
Although forced marriage occurs within a range of communities, the reality is that it is not condoned by any religion or culture.57 As explained by Khanum, forced marriage is "linked to traditional hierarchical power‐relationships between men and women and parents and children", which may be manifested in, rather than espoused by, certain cultures.58 Beginning with the premise that forced marriage is universally condemned, it becomes easier to identify culture‐friendly practices that can be conducive to addressing forced marriage in both the short and long‐term.
57 Wind‐Cowie, M., Cheetham, P., and Gregory, T. 'Ending Forced Marriage'(2012). Available at: <http://www.demos.co.uk/files/Forced_marriage_‐_web_4_.pdf?133527774> at 52 [Accessed 1 August 2013].
58Khanum, K. 'Forced Marriage, Family Cohesion and Community Engagement: National Learning through a Case Study of Luton'(2008). Available at:<http://www.reducingtherisk.org.uk/cms/sites/reducingtherisk/files/folders/resources/hbv_forced_marriage/FM_family_cohesion_community_engagement.pdf> at 44 [Accessed 13 May 2013].
Page | 19
4.3.1 Short‐Term: Specialist Refuges and Support Advice
To address forced marriage cases as they arise, it is vital to have a robust system in place to assist those who are actual or potential victims, and to provide an environment in which they feel comfortable coming forward. Current civil measures, including the use of an FMPO, have been shown in Section 2 to be more effective mechanisms than criminalisation in dealing with forced marriages. In addition to such measures, however, it is of the utmost importance that victims can turn to a support system that helps them psychologically, emotionally and socially as they go through their ordeal. Specialist refuges are critical in providing such a comprehensive scope of assistance for forced marriage victims. Perceived to be more approachable than traditional government institutions, their presence assures victims of adequate care should they wish to report a forced marriage, which in turn encourages them to come forward. Additionally, such refuges employ counsellors or care workers who can relate to the victims' cultural and language needs. A representative from Imkaan states that specialist refuges provide support for BME victims in a way that predominantly 'white' ones cannot. She states:
"There is a reason why the BME specialist sector emerged in the seventies. It was for women to share their experiences with stigmatisation, racism, discrimination, as well as what was going on at home. Interventions need to target both aspects, they need to be holistic."
Therefore, it is apparent that these specialist agencies encourage forced marriage victims to come forward and provide an environment where the cultural context of their situation will be understood and related to by other residents and care workers. A volunteer from the Muslim Community Helpline highlights that victims often specifically request such specialist refuges. She says:
"Many of them tell us, 'I would like to go to a Muslim refuge.' But we tell them that there aren't any. The girls' confidence levels are not that high. They haven't been used to going out and being with non-Muslim friends, so they ideally want to be in an environment where they are surrounded by other girls like them." However, the government's approach to funding women's refuges, since introducing the
'Supporting People' fund in 2003, tends to allocate money to single providers that offer a number of services, rather than to fund specifically‐tailored organisations that may be more equipped to handle particular cases.59 Due to this shift in government funding, many refuges that primarily serve BME communities have faced closure due to fund withdrawal, and BME victims of forced marriage are left with no choice but to approach the government‐funded single providers. However, as Khanum mentions, the notion of a ‘white’ agency is not particularly welcoming to many of these BME forced marriage victims, as there is a fear that its specialists will not be able to relate to the context of their predicament, or that the agency will advocate a solution that will ultimately bring in the state and make matters worse between them and their families.60 To ensure that forced marriage victims are comfortable with reporting their situations, it is proposed that increased funding be made available to specialist agencies that can more effectively address forced marriage cases within their respective communities.
59 House of Commons Home Affairs Committee (Sixth Report of Session 2007‐2008). Domestic Violence, Forced Marriage and "Honour"-Based Violence. Volume I at 121‐122.
60 Khanum, K. 'Forced Marriage, Family Cohesion and Community Engagement: National Learning through a Case Study of Luton'(2008). Available at:<http://www.reducingtherisk.org.uk/cms/sites/reducingtherisk/files/folders/resources/hbv_forced_marriage/FM_family_cohesion_community_engagement.pdf> at 42 [Accessed 13 May 2013].
Page | 20
4.3.2 Long‐Term: Prevention
Short‐term solutions for forced marriage are vital to provide maximum assistance to actual or potential victims. However, a national focus on the prevention of, rather than reaction to, forced marriage will prove more effective in eliminating the practice from its roots; otherwise, the problem will continue indefinitely. Prevention efforts focus on a long‐term changing of perceptions, which entails a "lengthy process of inter‐generational social change".61 Without such efforts, it is difficult to see how forced marriage can effectively be eradicated.
Education undoubtedly constitutes the single most important tool for changing attitudes towards forced marriage. Society needs to be educated regarding the difference between an arranged and forced marriage, and needs to be aware of the immorality and unlawfulness of the latter. Furthermore, there needs to be an awareness throughout society that means of recourse are available to forced marriage victims, and that there are consequences for engagement or involvement in bringing about a forced marriage.
Education regarding this practice ought to target a variety of audiences, including young students, women and community leaders. For example, its inclusion in the PSHE (personal, social, health and economic) school curriculum will produce an entire generation that is aware of the immoral and abusive nature of forced marriage. Similarly, vulnerable groups such as BME women need to be able to identify forced marriage as an abuse to counter the trend described by a Karma Nirvana representative in which "victims are overwhelmingly made to feel that they are the perpetrators, that they are bringing dishonour to their families and communities." Bringing influential local leaders on board (for example, religious leaders) to address forced marriage within their communities will also contribute to changing underlying perceptions. The production of programmes and commercials targeting popular media such as television, radio and internet, in addition to posters and billboards, will also bring the forced marriage debate into the public eye in a constructive way, highlighting the issue and the evils associated with it.
Through such education efforts, it is also worth focusing on the practical disadvantages of forced marriage from a health, educational and economic standpoint. For example, forced marriage "is strongly associated with an increased likelihood of HIV contraction, decreased control over fertility and an increased prevalence and acceptability of intimate partner violence."62It also significantly impacts the mental health of victims. Highlighting the specific negative impacts that forced marriage brings to communities and families will enlighten individuals as to how the practice is not in their personal or collective interests. Although human rights are undoubtedly crucial in explaining the unacceptability of forced marriage, they can be argued by communities to be relative, and therefore not applicable to their culture and practices. However, highlighting the negative practical effects of forced marriage will resonate more closely within communities and therefore help to elicit the desired results.
61 Phillips, A. and Dustin, M. 'UK Initiatives on Forced Marriage: Regulation, Dialogue and Exit'. 52Political Studies. 3 (2004) at 545.
62 Wind‐Cowie, M., Cheetham, P., and Gregory, T. 'Ending Forced Marriage'(2012). Available at: <http://www.demos.co.uk/files/Forced_marriage_‐_web_4_.pdf?133527774> at 23 [Accessed 1 August 2013].
Page | 21
5. Conclusion
This report has analysed the anticipated effects of criminalising forced marriage and has argued against its adoption in the UK. A specific offence of forced marriage may be difficult to prove in court to the criminal standard of "beyond reasonable doubt." An examination of practices in other EU member‐states, for example, indicates that criminalising forced marriage has not been shown to decrease its occurrence, as is apparent in Denmark, which has secured zero convictions since the institution of such a law in 2008. Furthermore, a close analysis of the 2011 Government Consultation on forced marriage and other commonly cited surveys which have been used to demonstrate public support for forced marriage criminalisation reveal flaws in methodology or misrepresentations of data. Finally, criminalisation will lead to increased perceived discrimination and stigmatisation of minority communities, causing them to disengage from government initiatives. Rather than instating a criminal framework to address forced marriage, it has been shown that current civil remedies have thus far been effective in offering protection to victims, but need to be reinforced to ensure the maximum effect of their protective powers. To supplement these civil remedies, prevention efforts can be strengthened to address the underlying causes of forced marriage and ultimately lead to an eradication of the practice.
5.1 Recommendations
Strengthen the use of civil remedies through more effective training and education of frontline staff in social services departments and criminal justice agencies
Establish forced marriage as an aggravating factor in sentencing
Provide increased funding for specialist support services and refuges
Include forced marriage education in the PSHE school curriculum
Host youth summer camps that include education and discussions on forced marriage
Distribute written literature in community centres such as mosques, temples, doctors' surgeries, parenthood clinics and social service clinics. Such literature should be available in easy‐to‐read versions and in multiple languages, and should include quotes from authoritative texts or inspirational leaders, specifically tailored for each religious and/or ethnic community
Support community discussions about the health, economic and social disadvantages of forced marriage
Support grassroots community work in combating forced marriage
Involve men, boys and community leaders in conversations on forced marriage
About Save Your Rights (SYR)
a human rights charity campaigning to end forced marriages...
Save Your Rights (SYR) is a dynamic young charity which was established in 2008, gaining charitable status in 2009. Thus far the work of the charity has focused on awareness raising and campaigning on issues affecting human rights, with a particular emphasis on forced marriage.
SYR is governed by trustees from diverse backgrounds and the majority of our work is conducted by volunteers who generously donate both their time and their talents to this worthy cause. Notwithstanding that SYR is a small charity with limited resources, its work so far has been ground-breaking and influential both nationally and internationally.
SYR is a non- profit organisation, predominantly maintained by volunteers. In order to help us to go forward with projects and other entities which are dependent on finances, we require help from you (member of the public). Please donate generously to help us maintain the service we provide. Thank you.
Helpend forced marriages,give a donation:
Save Your Rights (SYR)Branch Sort Code: 40 10 02Account Number: 52590476HSBC Bank
IBAN: GB77MIDL 401002 52590476BIC: MIDLGB2102H
9 781782 802549 >
ISBN 978-1-78280-254-9
Price : £10.00 (when sold)
