Home Office Consultation (December 2011) on the Criminalisation of Forced Marriage
Response by Southall Black Sisters
‘Basically, it should be that the civil court offence should be stronger because if the parents know that they would get a criminal offence if they breach the order, then they might not do it; and if they do, there will be like consequences. At the start the person will get protection. So it will be helpful for them to get protection first, and then may be if their parents breach it, then the parents get (like) punished... if we strengthen the civil law, then the criminalisation would be partly there...if it were criminalised, then my parents and my family would get into trouble and they would get into prison and stuff; so I personally wouldn’t come forward, whilst if it were a civil order, I’d get protection myself at the start so I’d come forward for a civil order’ (Views of a 15-year old Asian girl at a high school in Southall ).
1. This paper sets out our response to the government’s consultation paper on whether to make forced marriage a criminal offence in the UK, and whether to make a breach of a Forced Marriage Protection Order (FMPO), available under the Forced Marriage (Civil Protection) Act 2007, a criminal offence. Whilst we understand the arguments in favour of criminalisation, we have come to the view that a new offence is neither necessary nor desirable. However, we support the view that a breach of the FMPO should be criminalised (although we note that the Government has stated its intention to proceed with this without consultation), provided that the option of using the civil route for redress where there is a breach of the order (contempt of court procedures) also remains available, as it does for non-molestation orders.
2. Our reasons for opposing criminalisation is based on 33 years of experience of working with young South Asian women and girls who are the subject of violence and abuse, including victims of forced marriage and other harmful practices within the family. Our views are also based on consultations with victims of forced marriage, young people in schools and colleges and women’s organisations, including black and minority ethnic (BME), women’s organisations across the country (please see list of 33 endorsements at the end).
About Southall Black Sisters
3. Southall Black Sisters (SBS) is a leading black and minority ethnic (BME) women’s organisation founded in 1979. We provide holistic information, advice, advocacy, counselling and support services for BME women and children experiencing gender based violence. Although we are locally based, we have a national reach. We are also nationally and internationally recognised for our work and campaigns on domestic violence and harmful cultural practices, such as forced marriage and so called ‘honour’ based violence (HBV), particularly in relation to the needs of South Asian women and girls. We are often called to provide expert evidence to the family courts and the Court of Protection in forced marriage cases. In 2011, we successfully intervened as an interested party in the case of Quila and Bibi (2011)1 concerning the government’s ban on non-EU spouses under the age of 21 from entering the UK, which was declared to be an unlawful interference on a couple’s right to respect for private and family life. We have also been involved in high profile cases involving domestic homicide, forced marriage and HBV, such as that of Kiranjit Ahluwalia, Zoora Shah, Banaz Mahmod and Surjit Athwal.
4. Apart form providing front line case and advocacy services, (on average, we deal with about 3000 enquiries and 300 cases of gender-related violence a year), we also undertake educational, developmental, policy, campaigning and research work in relation to violence against BME women and girls. This means challenging social, cultural and religious values and practices which justify violence against women and girls (VAWG) within minority communities. We also seek to influence policy and practice across a range of voluntary and statutory organisations and professions to ensure a consistent and effective response to violence against black and minority women and children.
5. In the late 90s, we served as members of the original Home Office Working on Forced Marriage (1999), and since then, amongst other initiatives, we have been extensively involved in the formation of the joint Home Office and Foreign Office Forced Marriage Unit (FMU) and contributed to the creation of the FMU’s multi-agency forced marriage practice and statutory guidelines, the Forced Marriage (Civil Protection) Act 2007, the Association of Chief Police Officers strategy on HBV, the CPS flagging systems on forced marriage and HBV and the Home Office violence against women and girls (VAWG) strategy. We have also initiated campaigns that have led to positive developments in respect of abused and destitute women who have insecure immigration status and are subject to gender-related violence.
Background on Forced Marriage initiatives
6. In 2005, the Home Office initiated a nation wide consultation on the criminalisation of forced marriage. However, in view of the fact that the majority of the respondents opposed criminalisation, an offence of forced marriage was not introduced. In contrast, a general consensus emerged in support of a civil law remedy initiated by Lord Lester, for the protection of victims of forced marriage - the Forced Marriage (Civil Protection) Act 2007 - which came into effect in November 2008. This Act introduced forced marriage protection orders (FMPOs) and the statutory multi-agency forced marriage guidelines.
7. In May 2011, the Home Affairs Select Committee on Domestic Violence, Forced Marriage and ‘Honour’ Based Violence came to the view that the Government should introduce a criminal offence of forced marriage.2 This recommendation, however, was based on the evidence of one organisation and two individuals associated with the organisation. It would appear that the views of other key women’s organisations and individuals working in the field of forced marriage were not canvassed. In July 2011,3 the Government responded to the Select Committee’s recommendation by stating that whilst it was timely to review the issue of breaches of FMPOs, it would monitor developments in Scotland where such breaches were due to be criminalised in late 2011. The Government actually acknowledged several difficulties connected with the criminalisation of forced marriage and referred to the fact that the matter had been fully debated in 2005. However, the Government also stated that it was willing to consider any new evidence about the effectiveness or otherwise of existing civil measures, and the experiences of other jurisdictions in applying criminal sanctions.
The Government’s stated reservations about the criminalisation of forced marriage included the following:
the negative impact that criminalisation will have on victims who may feel let down by the justice system if charges are not brought or defendants are acquitted;
the repercussions that might flow from a failed prosecution which can reduce the confidence of victims seeking to pursue a civil remedy;
the difficulties in meeting the criminal burden of proof in many forced marriage cases which will have the effect of reducing the number of cases that can be dealt with in the criminal courts;
the lack of clarity as to what can be achieved over and above what is already possible under existing criminal offences that might apply in circumstances of forced marriage.
8. In the light of the Government’s response to the Select Committee, we are somewhat bewildered by the current proposals; it appears somewhat premature for the Prime Minister to announce his proposals on criminalisation without monitoring the developments in other jurisdictions and without properly monitoring breaches of FMPOs in England and Wales.
9. Many of the concerns that we expressed in our response to the 2005 consultation on the criminalisation of forced marriage are still relevant. Whilst there are significant problems with the implementation of statutory guidelines on forced marriage, we do not agree with the Home Affairs Select Committee that the Forced Marriage Act has not been an effective remedy. The number of applications for FMPO for instance, since 2008 and the end of 2010 257 of which 181 had powers of arrest attached,4 which increased to a total of 339 by the end of June 20115 indicates that the Forced Marriage Act has been a valuable and successful remedy. We know from experience that we will not see such high numbers of criminal convictions if forced marriage is criminalised. Indeed, there is likely to be a negative knock on effect since fear of convictions and the inevitable low numbers of convictions, is likely to greatly undermine a victim’s confidence in the civil justice system.
10. Other recent evidence also shows that there is insufficient support for criminalisation. A survey by Dr Aisha K. Gill at the University of Roehamption published in July 2011, showed that 50% of the respondents felt that, on balance, there should be no criminal offence of forced marriage, and 64% felt that the existing legislation was sufficient to tackle the issue. The majority (57%) felt that criminalisation would make it more difficult for victims to come forward.6
11. Some argue that criminalisation increases the options for protection but this view ignores the fact that forced marriage involves extremely vulnerable young women and children who have immense fears and concerns about criminalising their parents and close family members, including siblings. In our view, their fears are significant enough to prevent them from coming forward.
12. On the other hand, we are also aware that many religious, community and even so called progressive organisations argue that the proposed criminal offence is not necessary and that it will be perceived as yet another attack on minority communities at a time of heightened racism and tensions between the State and minority communities. They will also argue that matters such as forced marriage are best left to be resolved within the community through religious and other community based forums for dispute resolution.
13. SBS has never subscribed to the view that the State should not intervene in minority communities. Indeed, the absence of democratic mechanisms for addressing human rights abuses within our communities makes it imperative for the State to intervene in its protective capacity to safeguard the rights of those who are vulnerable. For many victims, the State represents the first and only safety net. Whilst there is no doubt that the proposed offence could create negative stereotypes and lead to the further criminalisation of those in minority communities, the practice of protecting the human rights of some but not others in our society, signifies the abrogation of State responsibility. Our opposition to the proposed new offence is therefore based on gender justice and not communal or religious autonomy.
14. We believe that the existing criminal law could and should be more robustly implemented. Effective implementation of the FMPOs and the forced marriage guidelines, coupled with access to adequate legal aid, access to alternative safe and secure emergency and long- term housing, properly funded specialist advice and advocacy for BME women and girls, financial support and prevention work in schools and in minority communities, are some alternative means by which to signal to society that forced marriage is a crime, and to provide effective protection and support for victims. (See section on proposed alternatives below for a list of other solutions.)
15. Prevention of forced marriage through changing attitudes and behaviours, and early intervention by services, also help to reduce the economic and human costs associated with gender-related violence, as highlighted by numerous research studies that have examined the high cost of domestic violence in the UK.7
Where are the resources?
16. From our consultations with survivors of forced marriage and other black and minority women’s groups, a consensus has emerged on the need for more resources to make the protection principle governing initiatives on forced marriage a reality. The provision of adequate resources must be the first priority of the government if it is serious about its commitment to address the problem of forced marriage. Previously, governments have passed laws that are termed ‘resource neutral’; which is in our view, a cynical way of appearing to take responsibility whilst avoiding it. The passing of legislation on female genital mutilation (FGM) which has not be effective, especially in relation to enforcement, is one example of a so called ‘resource neutral’ law.
17. The recent massive cuts in public spending has led to the closure of many organisations working on domestic violence and forced marriage and many others are threatened with closure. Over a half of all refuges for women in the UK have shut down and the cuts have had a particularly disproportionate impact on BME organisations. Specialist BME women’s refuges, advocacy and counselling services, particularly those for young BME women, are facing funding difficulties, and many have closed or have drastically reduced their services due to the lack of funds.8 There is a serious gap in services for women across the UK, with some areas, completely left without any specialist or general services for abused women. In the last two years, SBS has received at least one call a month from a specialist organisation threatened with closure due to the spending cuts.
18. In addition, the withdrawal of education and maintenance grants, the loss of legal aid in respect of housing and welfare and employment law, the focus on mediation in family cases and general problems in accessing welfare benefits, are proving to be major obstacles to protection for vulnerable women and young adults. Those who are aged between 15 and 21 who are especially vulnerable to a forced marriage, are particularly at risk of falling through the welfare safety nets since they are considered to be adult by social services and other agencies and are therefore provided with limited assistance, if at all.
19. It would appear that the main objective behind the proposal to criminalise forced marriage is to empower and protect those who are vulnerable, yet there are no guarantees from the State that sufficient if any resources will be available to ensure that the choice to prosecute can be exercised without fear of reprisals, destitution, isolation and lack of support. Without comprehensive support, few if any victims will dare to contemplate criminal proceedings.
20. The criminalisation of forced marriage- a step in the right direction? At first glance, it would appear that the creation of a new criminal offence on forced marriage is a necessary and logical step in the ongoing work on the issue. However on close inspection, the proposed new offence does not take us any nearer to achieving our aim: to protect victims and to eradicate the practice of forced marriage.
21. No reliable statistics exist on the prevalence of forced marriage. While the Home Office consultation document states that there could be 5000 to 8000 cases, we remain unconvinced. The figures presented are only estimates. One significant problem that is encountered in addressing forced marriage is that there are no accurate statistics on the prevalence of forced marriage. Even after taking under-reporting into account, we believe that the figures that are quoted are exaggerated.9 One problem is that increasingly, many statutory and voluntary bodies are collapsing all forms of domestic abuse against minority women, including forced marriage, HBV and domestic violence into each other. Forced marriage has more dramatic impact than routine experiences of domestic violence and for this reason, some voluntary organisations, politicians and elements of the media and have tended to talk up the prevalence of forced marriage. The lack of reliable data was usefully highlighted in the case of Quila and Bibi. Perhaps, a more reliable national indicator is the FMU statistics. In 2011, the FMU dealt with1468 ‘incidents’10 of forced marriage, although the basis on which these reports are made and recorded is not clear. Reports to specialist BME women’s organisations are another indicator. SBS deals with approximately 150-200 enquiries and cases a year. Most reported cases involve young women and girls, mainly from South Asian and Middle Eastern communities, although it is acknowledged that victims also exist in other minority communities and can involve young men and boys.
22. Much has been achieved since the Home Office Working Group Report on forced marriage in 2000. There is increased awareness, largely amongst statutory agencies such as the police that forced marriage is an abuse of human rights. International human rights law and instruments enshrine the principle of the right to choice in marriage and give centrality to the concept of consent as a fundamental principle on which choice can be exercised. The aspirations reflected in international human rights law are also reflected in guidelines on forced marriage. The multi-agency guidelines introduced by the FMU for instance are very good although their implementation remains unsatisfactory. Within minority communities however, progress appears to be non-existent or slow. Some community and faith leaders have publicly denounced the practice of forced marriage as not being compatible with their culture or religion, but have yet to demonstrate what efforts if any, they are making to root out the practice. Indeed, the growth of strong religious identities has led to more pressure on women to use internal community based mechanisms to address forced marriage, which give primacy to mediation and reconciliation by elders or by religious arbitration tribunals or courts,11 irrespective of the risks involved. This situation is compounded by the reduction in legal alternatives for victims, caused by cuts in the public sector and in the funding of BME women’s services, and legal aid.
23. In the face of such intransigence and failures within minority communities, we recognise the importance of symbolism in law. The strongest argument put forward by those who are in favour of a criminal offence of forced marriage is that a new criminal offence can have great symbolic value and act as a deterrent, even if a prosecution does not take place. It can and does signal to society the boundaries of acceptable and unacceptable behaviour and provides sanctions for those who break the law. It is further argued that the threat of prosecution may be sufficient for some parents or families to think twice about instigating a forced marriage.
24. Despite the compelling nature of these arguments, we do not support the proposal. In our view, there are significant practical and other problems which will render a specific criminal offence on forced marriage unworkable. Worse, it will also undermine the strides that have been made to offer meaningful protection to vulnerable victims of forced marriage. We outline some of the problems below:
25. Forced marriage can be regarded as a crime and enforced as such without the need for a specific criminal offence: We hold the view that there is no need for a new and separate criminal offence of forced marriage since it does not add much to the existing criminal law, which if properly implemented, can be effective. The history of change in the social and cultural attitudes to domestic violence in the wider society shows how it can be done. Domestic violence is widely perceived as a crime even though there is no specific offence of domestic violence. The lack of such an offence for instance, has not prevented the police or the CPS from arresting and charging offenders under the existing criminal laws, even though such enforcement remains uneven and problematic. The cultural sea change in attitudes was brought about by a long and sustained campaign by feminists over a number of years demanding better police and legal responses and adequate resources.
26. Our view is that forced marriage can also be perceived and treated as a crime in the public sphere and by the law enforcement agencies, without the need to create a specific offence. The various offences that can be committed under the term forced marriage are well known - kidnapping, threats to kill, abduction, imprisonment, physical assault, sexual assault, threatening behaviour, harassment and so on. There is no reason why forced marriage cases involving such offences cannot be publicly condemned and prosecuted as crimes under existing criminal law. Moreover, naming the specific form of abuse but at the same time policing it as an offence in the general criminal code, helps to give specificity to the abuse but at the same time locates it within the general framework of criminal investigations, making it difficult to excuse such abuse in the name of cultural or religious difference.
27. The Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, 2011, recognises that member States can take ‘necessary and other measures’ to criminalise forced marriage (Article 37, 1)12, which can be interpreted to include making a cultural shift in cases of forced marriage rather than introducing specific legislative measures to create a criminal offence. We also agree with the Odysseus Trust who state that the intention of forcing a person into marriage as motivating factor behind current general criminal offences, is sufficient for the requirements of this article without having to create an offence of forced marriage itself. It should be noted that child or underage marriage is already a criminal offence in the UK.
28. In addition, in our experience, the real problem with the criminal justice system in matters relating to domestic and other forms of gender-related violence is the lack of enforcement. Even today, despite excellent guidelines on domestic violence, the implementation of policies and guidelines has been uneven between and within communities across the UK. The question is no longer whether policies are in place but how they are being implemented. A culture of ‘disbelief’, ‘indifference’ (‘a waste of police time’) still pervades the criminal justice system. If implementation is therefore lacking, new forced marriage legislation will not make a difference to the need for protection for victims of forced marriage. We believe that the existing criminal law could and should be more sensitively and robustly implemented. There is no need for a specific criminalisation of forced marriage.
29. One counter argument that could be made is that a specific criminal offence can speed up the process of changing public attitudes and practices without the need for such a long campaign. Another argument is that the creation of a specific offence will leave less room for ambivalence on the part of the police and social workers who for instance, sometimes hide behind cultural difference as an excuse to do nothing. However, creating a law purely for the ease of professionals does not necessarily make good law. Nor can the creation of a specific offence in itself bring about shifts in attitude. Experience on domestic violence work has shown that long term campaigning and monitoring is required for institutional culture to change, especially at the rank and file level.
30. The risk of driving the problem underground: There is a real risk that some parents wishing to circumvent the criminal law will take their children abroad, under the pretext of a holiday. Many will be forced to marry and then abandoned abroad. At present, many vulnerable women who are taken abroad for the purposes of a marriage manage to find some way of returning to the UK. Once in this country, many take steps to end their marriage or leave their parental home. The FMU has stated that the numbers of reports from minors taken abroad has increased significantly over the years. (This may also be indicative of the fact that there is growing awareness that the State will intervene in cases of forced marriage).
31. It is accepted that if taken abroad, finding and assisting a victim is extremely difficult, particularly where the victim is a minor. Even if legislation on forced marriage has extra territorial effect, its implementation will depend greatly on state institutions in the countries to which a victim has been taken. However, co-operation from state institutions that are discriminatory and corrupt is notoriously difficult to obtain. For these reasons, great care must be taken to ensure that introducing a new offence of forced marriage will not drive even more families to abduct or take their children abroad and leave them there. Also, evidence on FGM suggests that girls are being taken aboard at a younger age and abandoned as a way of by-passing the FGM legislation.13 We fear that this could also happen in cases of forced marriage.
32. Criminalisation will undermine the civil remedies that exist: Criminalisation will also prevent many victims from reporting and acting quickly to prevent a forced marriage from taking place. Many will be lulled into a false sense of security, based on the assumption that their parents and families, who they generally trust, love and respect, will not go so far as to break the law. This would hinder the ability of agencies to organise safety planning, including obtaining FMPOs. Criminalisation will therefore greatly undermine the protection that is available under civil law, which as stated above, has been highly effective. It is likely to deter victims from coming forward, thereby reducing their confidence in the legal system overall.
33. The difficulty of pursuing prosecutions against parents: From our experience of addressing domestic violence and from the extensive research available, it is clear that a significant number of women when given a choice, prefer to seek civil remedies, including protection through civil court injunctions, rather than pursue a criminal prosecution. A large number of women withdraw charges.
34. We believe that if it is difficult for vulnerable adult women to contemplate the prosecution of their adult partners in the face of domestic violence, it is doubly difficult for young, extremely vulnerable women who are emotionally and financially dependent on their families, to contemplate criminal proceedings against their parents and siblings in particular. Our own casework experience confirms that, when contacted for help, the first question posed by a young person is ‘will my parents get into trouble?’ It is only after guarantees and reassurances that many come forward to report their plight and seek help. Most want protection, the right to continue with their education and continued support but they do not want to see the prosecution of their parents. In 2005, (during the first consultation on criminalisation) one survivor said: ‘women will not come forward if they know that their parents will be arrested…it is the wrong thing to do, they will suffer more, they will find other ways of doing it or not do anything. Suicide and self harm will increase’. She went on to state that there needs to be a better response from the police and FCO and that a poster campaign targeting all relevant agencies including religious establishments and the distribution of information cards to students in schools and colleges was very important, since many young adults cannot access the internet.
35. In 2012, little has changed in respect of the survivor perspective. The fear of bringing shame by exposing abuse and forced marriage is highlighted by the following quote from a potential victim of forced marriage and abuse who contacted us via email:
‘Hello I want to remain annonmouss please/ You will understand when you read my email. I don’t want to call, I am SOO afraid to talk about this ...mabye when I am brave I will use the phone.. Is there someone at your office that can help me work through this.?? Is there a student helper than can help me if you the professional is busy??
Is there a person or therapist who can help me online?????????? Inshalla you can help me.
It would be devastating to our family to bring this news out because of the shame factor. I would never bring that kind of shame on him, my family or my religion. my tutor and the girls school have such a good reputation. Please help get advice me from going crazyâ€I donâ€™t know what to do..i need help to think about this. I need someone who will not judge me. I feel so alone.’
36. Other survivors have said that they would prefer to go ahead with the marriage and obtain a divorce rather than go to the police and prosecute their parents.
37. Our recent consultations with survivors who have been forced into or threatened with a forced marriage, and young people form local schools and colleges reveal interesting findings. In March 2012, we held a focus group at SBS with ten 15 year-old Asian girls from a local high school. Initially, they all supported the idea of criminalising forced marriage, because ‘it would send out a message to the community that forced marriage is wrong’. However, following further discussion and consideration, based on increased awareness of the civil remedies and sources of protection available, the majority opposed criminalisation. They admitted they did not know about the existence of FMPOs. They agreed that if the breach of FMPOs were to be criminalised, this would strengthen current civil law to the extent that a criminal offence would be rendered unnecessary. When questioned whether they would as victims report a forced marriage to the police if a criminal offence was introduced, they all said they would not. They said that they would not want to criminalise their parents and that it was not so ‘simple and direct’. They also said that most of their friends and other pupils at school were ‘scared of coming forward anyway.’ At the end of the session, the group was unanimous in its view that a criminal offence should not be created and that instead, the civil law should be strengthened by criminalising a breach of the FMPO. They also wanted to see improved awareness in schools and the community about the issue of forced marriage, and wanted ‘more places like SBS to turn to for help and support’.
38. In March 2012, we held an awareness session at Southall College with about 50 students from Asian and other minority backgrounds, both male and female. The majority of students (about 40 students) opposed the criminalisation of marriage. Two Asian male students said that criminalisation would not change attitudes in the community as these ‘come from the heart’; others said that they did not ‘want to see their families in jail.’ The group felt that the best way to tackle the problem was to increase awareness in the community and improve existing measures.
39. Some survivors argue that if a specific offence existed it would have made a difference. Often this is an emotional response, uttered with the benefit of hindsight. When put in the position of actually making a decision to proceed with a prosecution on the basis of existing offences, our experience shows that they often refuse. Most do not even want to involve social services, let alone the police, because they do not want to be responsible for the break up families and kinship networks. Their sense of betrayal and fear of reprisals is often so strong that it often prevents them from reporting a forced marriage. Where young siblings are involved, a victim is likely to be overwhelmed by feelings of shame and guilt, if her parents are jailed as a result of a successful prosecution. In such circumstances, the likelihood of suicide and self harm may also increase. The rate of suicide amongst young Asian women and girls is already three times that of other women.14
40. Failed prosecutions are highly likely considering the difficulties in obtaining victim and witness evidence: Experience from addressing FGM cases shows that despite the existence of criminal legislation on FGM, there have been no prosecutions in the UK. There are no studies to show why this is the case, but we suspect that some of the reasons, may be to do with the problem having been driven underground, fear of repercussions on the part of children and mixed feelings about wanting protection but not wanting to see parents arrested and convicted. Women’s groups have also been highly critical of the lack of support structures and resources to address FGM effectively. Indeed groups like Forward have stated that this remains the most serious impediment to the proper implementation of the law.
41. It is also important to note that there are two significant differences which make comparison with forced marriage and FGM difficult. First, FGM legislation was enacted in very different circumstances in which no other measures had been taken to address the problem. We understand that since its enactment, the law has been used mainly as an educational tool for training and awareness raising purposes. The enforcement aspect is hardly ever utilised for reasons mentioned above.
42. Secondly, the law on FGM is aimed at the physical violence and cruelty that is perpetrated; it is meant to deter and punish those who violate the bodily integrity of children by circumcising them. Forced marriage however, involves not just physical violence, but more often than not, psychological and emotional abuse and greater coercive control all of which are much more difficult to bring within the ambit of criminal legislation.
43. More generally, evidence from the wider society in respect of child abuse cases, show that the key agency involved in protecting and safeguarding the well being of children continues to be social services. Police prosecutions in cases of child abuse, with the exception of sexual abuse and grievous bodily harm or killings, appear to be minimal. It is generally recognised that such cases are difficult to prosecute, mainly due to lack of evidence but also because children who are who are capable of making a decision, are unwilling to see their parents prosecuted. In our casework, we have not come across any cases involving older children (15 -18 years) seeking to prosecute their parents where there has been emotional or physical harm or neglect.
44. In our view, if prosecutions are unlikely to take place, then even the symbolic and possible deterrent value which is repeatedly emphasised to support the criminalisation of forced marriage, will be diminished. Those who know that the law will not be enforced will flout it with impunity!
45. Closing the door on rehabilitation: Most victims of forced marriage are very reluctant to cut off relations with their families, and only do so to protect themselves and at a point of crisis. Even then, they often live in the hope of re-establishing contact and many do attempt to do so once the crisis is over. Victims of forced marriage merely want to exercise their right to choose when and who they marry, not necessarily to punish their parents, or even to make a permanent break from their families.
46. Our experience shows that a vast majority of women who leave their homes due to violence are also shunned by their own natal families and their communities for having brought dishonour upon them. Many of the women that we have seen live on the margins of their community dependent on the support of agencies and alternative networks of friends. Yet most live in the hope of eventually re-establishing links with their own family and community. A significant number are eventually accepted back by their families although the process of rehabilitation can take years and can vary in quality. Some are fully integrated, whilst others build relationships with some members such as siblings, which remain fragile and even clandestine. The process of rehabilitation nevertheless is vital for survival and identity for many black and minority women and this is precisely the same reason why Asian and other minority women often choose not to prosecute their partners when reporting domestic violence. They live in the hope of reconciling as least with their own parents and family, if not their partners or in-laws.
47. Fear of closing the door on the possibility of rehabilitation is also a major factor in a young person’s decision not to prosecute in cases of forced marriage. A criminal prosecution often indicates finality in respect of breaking from family relationships. Many feel that they will burn their bridges with the whole of the family with life time consequences.
48. On the other hand, our experience shows that having an FMPO enables vulnerable young adults to stay protected without shutting the door on future hopes of rehabilitation. As a civil remedy, an FMPO, is less public and more tailored to individual circumstances. It gives the victim more ownership over the use of this remedy, and a chance to maintain contact with the family, or even return home, with some legal protection. The following 2011 case study illustrates this point:
49. The case of RM: RM, a young 18 year old Bangladeshi girl, feared that her father was going to take her to Bangladesh and force her into a marriage. She left home and sought assistance in obtaining a FMPO and was temporarily placed in a refuge in another part of the country. However, as someone who had never lived away from home, she could not get used to the acute isolation that she faced and she fell into depression. Unable to cope with her isolation, she made contact with her elder sister who had left the family home but still lived in close proximity to their family. Over a period of 3 months, RM maintained contact and then eventually moved in with her sister. She then slowly made contact with her father and mother and they began to meet regularly. They re-assured her that they would not force her into a marriage and eventually, she built up sufficient trust to move back into the family home. Having the FMPO enabled her to feel confident and secure during the process of rehabilitation. Once back home, she resumed her studies to train as a teacher and took up voluntary work. She was not subject to any restrictions. She then asked for the FMPO to be removed on the grounds that normal relations within the family had been re-established and she no longer feared for her safety. However, the courts ensured that there was a thorough investigation as to the risks that remained for RM. SBS was instructed to carry out a risk assessment to determine the wishes and feelings of RM in the light of her age and understanding; to consider whether RM was under duress to provide certain wishes and feelings and to assess whether there were any risk to RM in relation to forced marriage.
50. The above case illustrates the point that the FMPO remains victim centred and that even when there is the possibility of it being discharged, considerable judicial oversight remains to ensure that there are no continuing or future risks. If, at the outset, RM had known that by reporting her fears of a forced marriage, her parents might have been arrested and possibly charged, she would not have sought any assistance and if she had, there would have been little or no possibility of rehabilitation. When asked about her views on the criminalisation of forced marriage, she stated:
“if forced marriage was criminalised, I would have been less inclined to report it. I did not want anything on my parent’s record. I would not have wanted to see my parents jailed. My roots are with them. I feel that I am somehow attached to them. However, if you criminalise a breach of the forced marriage protection order, then they will know it is wrong, and know the consequences. This will help to set a good example.”
51. Other survivors of forced marriage also express deep reservations about criminalisation but feel empowered by the choice that they have within FMPO proceedings:
‘Glad that I have a choice right now about whether or not to get protection. If it was a criminal offence and the police went and investigated – probably wouldn’t want to prosecute – would not go the police either. I prefer the forced marriage protection order – it’s because of the choice, its optional. It gives you a bit of time to think about what you want to do, not pressurised. I felt that I was being forced into the marriage at home and wouldn’t want to feel forced by the police to prosecute.’ (2011 SBS case involving a young Indian girl who is being forced into a marriage in the UK)
52. We accept that many of the fears outlined above are all relevant considerations for a young person contemplating prosecution under the present criminal law. However, such fears may be even more heightened if a specific criminal offence of forced marriage is created and this in turn may lead to further under reporting of the problem of forced marriage.
53. Forced marriage or an arranged marriage? The proposed criminal offence cannot adequately address the question of coercive control (through emotional, psychological and financial pressure) that is often applied by parents in order to obtain ‘consent’ in a forced marriage. Such pressures do not fall within the ambit of existing criminal law and is unlikely to do so under the suggested proposals without undermining fundamental principles of criminal law. Whilst for legal purposes, a distinction has to be made between forced and arranged marriage, the reality is that often consent in an arranged marriage comes about as a result of intense and prolonged emotional and psychological pressure. Many young women in particular are often resigned to what they consider to be their ‘fate’ going along with the marriage out of a sense of duty. If the latter cases are considered too difficult to legislate for, then a law that only partially works cannot be said to be protecting all those who need it.
54. One rule of law: Criminal or civil laws should be uniform and should apply to all communities. Existing laws should allow for greater awareness of different contexts, but ultimately crimes should be recognised as crimes and all victims of abuse and oppression be protected in accordance with their rightful entitlement.
55. A better way of ensuring that forced marriage is treated as a crime is not by creating a specific offence but by reflecting the nature of the crime as an aggravating feature at the sentencing stage of criminal proceedings. At present the judiciary is often requested to take cultural context into account in order to obtain leniency for those perpetrators of violence who are found guilty of criminal offences such as honour based murders. We would argue that culture should only be taken into account to explain the constraints on women’s freedom, rather than to excuse the exercise of control on their freedom by perpetrators.
56. Under the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, Article 46, specifically states that Governments can introduce aggravating circumstances in forced marriage and other violence against women situations in sentencing. This would also satisfy the requirements of Article 37 (1), which calls for the necessary legislative or other measures to criminalise forced marriage.
57. Forced marriage must be placed within the current domestic violence, child protection and wider violence against women and girls (VAWG) framework: We believe that the creation of a new offence is not necessary is because it distracts from placing the issue within the wider legislative and policy framework on domestic violence, child protection and VAWG. We have consistently demanded that the issue of forced marriage or any other culturally specific form of abuse be located within these general strategies. This has been necessary to avoid treating culturally specific forms of violence or abuse as somehow ‘different’ from other forms of violence against women in the wider society that are also located with relationships of power and control. It is necessary to avoid the adoption of differential human rights standards when addressing violence and abuse in minority communities. Forced marriage should not be treated separately from strategies and policies on domestic and sexual violence, and child protection, since the same imperative - protection via the same laws, mechanisms and resources (criminal law, civil law remedies, child protection measures, safe accommodation etc) - are involved albeit with some additional considerations.
58. The risk of treating the issue of forced marriage outside this framework is that it will be perceived not as a gender discrimination and equality issue but as a ‘community’ or ‘cultural’ or even ‘religious’ issue, giving rise to questions of cultural/religious sensitivity which can then cloud the response. This is one reason, why the Home Office Working Group failed to reach a consensus on the question of mediation in its report on forced marriage. Had it been perceived as a domestic violence, child protection or VAWG issue, it would have rightly been rejected as a viable strategy. Instead ambivalence on mediation was allowed to remain.
59. Treating the question of forced marriage within the framework of existing domestic violence legislation allows the issue of forced marriage to be located squarely within it so that solutions are also framed in terms of protection and the need to safeguard crucial rights and freedoms of women and young persons enshrined in the Human Rights Act 1998 and in international human rights law.