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Forcing Through the Criminalisation of Forced Marriages?

About The Author

Emily Clements (Former Team Member)

Emily is a Durham University Law graduate due to start as a paralegal in the London Banking & Finance Department of a Silver Circle firm in October 2014, and currently has her targets set on qualifying as a solicitor.

On 16 June 2014, the Anti-Social Behaviour, Crime and Policing Act 2014 came in to force. Although it is less than obvious from its title, the Act criminalised the act of forcing another into marriage. Leading up to its passage there was notable and strong opposition to the forced marriage provisions. The question now is whether we can expect this change to have any significant positive impact in tackling the problem of forced marriages in the UK and globally.

It is important to emphasise that forced marriages are not a distant myth rarely affecting those living in the UK; the statistics show their worryingly high prevalence in our country. Forced marriage is the reality for around 10,000 women in the UK each year. In fact, the figures have been growing year on year, which some would link to the rise in immigration. In the developing world the statistics are yet more concerning: 1 in 7 girls under the age of 15 are affected by forced marriage. Given the nature of the offence, often involving victims threatened and coerced by their own families, the rates of reporting are low, rendering it likely that the known statistics only represent the tip of the iceberg.

The Government literature on the matter defines forced marriage as physical, psychological, emotional, financial and sexual abuse including being held captive, assaulted and raped. Further, Crime Prevention Minister, Norman Baker, has recognised the practice as an appalling form of abuse which crosses borders and cultural boundariesAneeta Prem, founder of Freedom charity, equates the situation that some women find themselves in to that of a domestic and sexual slave.

The Law

It should be duly noted that the problem has not been entirely neglected by the legislature until now; protection via the civil law has been in place for a number of years. The breakthrough lies in the fact that it was never previously possible to criminally prosecute a perpetrator. The only criminal charges that could be brought were if the perpetrator had committed a different criminal act, such as violence, in their pursuit of the forced union.

The Forced Marriage (Civil Protection) Act 2007 introduced Part 4A Family Law Act 1996 (FLA) which provided an injunction procedure which could be granted under the inherent jurisdiction of the High Court. This meant a person could prevent being forced into a marriage without their consent by obtaining a Forced Marriage Protection Order (FMPO). However, the law extended no further than this, leaving perpetrators free from any real punishment. The new law seeks to address this lacuna. 

FMPOs remain obtainable through the civil law. However, their impact has been strengthened: s. 120 Anti-Social Behaviour, Crime and Policing Act 2014 introduced s63CA into s4A FLA 1996. As a consequence, if an individual breaches a FMPO he now faces a maximum criminal penalty of 5-year imprisonment or an unlimited fine.

Two other separate criminal offences have now also been introduced via s. 121(1) 2014 Act. A person commits an offence if they:

(a) uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, and

(b)
 believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without the free and full consent.

This provision aims at criminalising any threatening or coercive behaviour that previously was not caught by the law, for example: violent threats, financial threats, or psychological abuse, in an attempt to force a marriage.

Importantly, s. 121(3) covers the scenario where the victim is deceived into going abroad, for example for a family holiday, in order to be married off against their will. An offence is committed if that person:

(a)  practises any form of deception with the intention of causing another person to leave the United Kingdom, and

(b)  intends the other person to be subjected to conduct outside the United Kingdom that is an offence under subsection (1) or would be an offence under that subsection if the victim were in England or Wales.

The most vulnerable victims are further protected; s. 121(2) prevents any form of coercive encouragement to enter a marriage directed at a victim who lacks capacity to provide effective consent. This offence can be committed even in the absence of any actual threats, violence or coercion to the extent required under s. 121(1). Both s. 121(1) and (3) carry maximum twelve months imprisonment on summary conviction, or seven years on indictment. It is notable that trying to evade our jurisdiction by deceiving the victim is treated just as severely as threats and coercion. On the other hand, these sentences do seem somewhat inconsistent with s. 120 2014 Act. It appears ‘curious’ that a person who has already been named on a FMPO who seeks yet again to force the victim into marriage, could be sentenced to only 5 years' imprisonment, as opposed to a first time offender, who under s. 121 could be sentenced to 7 years' imprisonment.

Will criminalisation prove effective?

The criminalisation of forced marriages has proved controversial, evoking some strong reactions. Whilst criminal law is now applicable in this area, it must not be forgotten that it is for the victim to chose which avenue to pursue. As a result, many critics believe the criminal provisions will prove ineffective. In reality, a victim may be willing to involve the law in order to save themselves from an unwanted, potentially abusive marriage, but unwilling to see their relatives and possibly parents, criminally punished and imprisoned. The criminal law could evoke fear and deter victims from taking any action at all. Are these provisions therefore practically redundant? Notably, this concern was the reason criminalising forced marriage was ruled out during previous discussions in Parliament leading up to the introduction of FMPOs in 2007.

Others note the minimal effect that changing the UK law can realistically have on such a widespread global issue. One article argues that the solutions to forced marriages lie more in tackling the causes and educating those in the ‘village halls and classrooms of Asia and Africa more than in the chambers of the Palace of Westminster’. It is argued that changing the law here is just a very small move in the right direction, but by no means enough. There needs to be a focus on allowing girls to complete their education and have a greater awareness of their rights. This could then tackle the roots of the problem and have a bigger impact on a decline in numbers of forced marriages, more so than any law in the UK.

More extreme cynics suggest the Government have ulterior motives. The law could simply be a way of avoiding the number of marriages between British national women and foreign men with the aim of reducing and policing immigration. The whole scheme has been referred to as a cynical use of gender, which will simply result in an intensification of Islamophobia in the UK.

On the other hand, some commentators have recognised the deterrent effect the changes could have. The gravity of the criminal law could be enough to minimise the number of cases in the first place. Barrister, Danish Ameen, concludes in his article that whilst the focus should remain on protecting victims, the provisions could still act as an ‘invaluable tool’ in tackling such practices.

Whilst I find sympathy with the concerns that the criminal law may not be entirely appropriate within this sphere, I do believe the new law to be sending out a strong and useful message against such unacceptable practices. It is right that we treat these practices as crimes and that the UK should not shy away from punishing them. 

Further Reading

Family law group, Forced Marriages: Civil v Criminal?

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Tagged: Criminal Law, Family Law, Religion

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