Legal Evaluation of Forced Marriages - Essay Example

?Forced Marriages Lecture Introduction Forced marriages are defined as situations where a party is forced to enter into a marital relationship without their consent. Forced marriages were very prevalent in traditional Asian societies and they are still acceptable practices in the Indian sub-continent. Immigration of people from these communities to the UK has seen the problem surface in the UK in recent years. Most forced marriages in Britain occur among minority groups. These minorities originally immigrated to the UK from Africa, East and South Asia where forced marriages are a cultural norm. Although, the government through legislation has tried to discourage forced marriages, these policy measures have been ineffective in eradicating the dehumanising practice. This difficult in ending the tradition comes from the fact that the forced marriage is deeply rooted culture in the minority groups. According to the United Nations, Forced marriage consists a violation of individuals’ human rights. Forced marriages also violate the rights of children some of whom are forced into marriages before they even reach the age of 10. Legislative response that really tries to address the problem has only been enacted recently, but they still do not provide enough cover for individuals in forced marriages or under threat of being married forcefully. In 2007, the Forced Marriage (Civil Protection) Act) was passed where victims could obtain protection orders from courts. Recently, the Conservative government has announced plans to make forced marriage a criminal offence. This paper critically analyzes legislative attempts by successive UK government to respond to the problem of forced marriages among minority groups. Secondly, it critically analyzes the proposed attempt to make forced marriage a criminal offence. In discussing the legal development the paper dwells on the causes of their failure to ensure enough protection to individual vulnerable to the practice. Legal development around the Forced marriage practice in the UK Forced marriage issues are not novel to the British law system. In the mediaeval ages forced marriages were a common occurrence in Britain, with the aim propagating a feudal system. Family from certain classes were required to marry within that class i.e. a Nobleman could only marry a noblewoman.1 To retain and consolidate power noble families encouraged and coerced their children to intermarry. However, with cultural advancement these practices were disappeared before any legal policy could be articulated to address the issue. Nobody envisioned that hundreds of years later a modern British society would be grappling with the problem of forced marriages. In the present and the last century, UK society made the first legal attempt to discourage forced marriage in 1949. In the Marriage Act 1949 prohibited marriages between parties below the age of 16 in section 2.2 This law was strengthened in the Matrimonial Causes Act 1973 in Section 11 (a) (ii) put the age of consent for marriage at 16. The 1973 Act also provided protection for individuals below the age of 18 requiring the consent of a legal representative3. Under the matrimonial causes act an individual aged between 16 and 18 has the right to obtain consent for marriage through a court order, if the legal representative unreasonably refuses consent4. In the 1973 Act, all matrimonial relationship must start through the free consent of both parties. In Section 12, the 1973 Act prohibits vitiating of consent by other factors like violence or pregnancy. In the 1960’s UK governments made further legal changes to address the issue as immigrant communities continued to increase their number in the UK. In 1962, the UK signed the United Nations Convention to Marriage, Minimum Age for Marriage and Registration5. The convention came into force two years later in 1964 and was adopted by the UK in 1970. Later in 1969 the UK passed the Family Law Reform Act 1969 defined a person under the age of 18 as a minor. Under this definition a minor does not possess any substantive legal rights. However, the common law decisions on the issue established that minor are at their own prerogative when it comes to important decision of their life. Common law is of the opinion that minor have the intelligence to make and handle the implications of marriage decisions. Measures to protect children cannot be separated from efforts to combat forced marriages in the UK. UK society has been very responsive to protect children as they are more vulnerable than adults to cases of abuse. As early as 1944, the government used the Education Act to ensure all children access a education. The act outlines parental responsibility as the right of a child to care, custody and possession6. It makes it a duty for parents to ensure their Children access education on a full time basis between the ages of five and sixteen years. Clearly, this law prohibits the forcing of children into marriages as it interferes with their right to access education. Furthermore, the Supreme Court Act of 1981 gives the high court the power to make a legal guardianship order7. The high court places the child under protection of a local authority or an individual. Children who are threatened with being forcibly married can seek protection from local authorities. Under the Children Act 1989 section 47, Local authorities are obligated to accommodate children who face a threat of abuse. Thus, under the 1989 Act a child can be taken away from the family home to prevent a forced wedding. Removal from the family home can only be done through an application by relevant authorities8. Until recently, Forced marriage was not an offence under criminal law. Formerly, the practice was penalised indirectly under other criminal provisions. These criminal provisions are contained in the Sexual offences Act 1956, the Indecency with Children Act 1960 and the Sexual Offences Act 20039. Under the three acts, rape is defined as sexual interaction where one person has not given consent. Under this definition of rape, sexual in intercourse a forced marriage automatically becomes rape10. Under the Sexual Offenses Act 2003, acts such as fellation are now covered as rape11. Other acts of penetration other than by use of a penis are also considered rape under the 2003 Act. Under the Act Children below the age of 13 are covered by an irrefutable presumption of non-consent, which those criminalises sex in forced marriages involving minors12. Sexual assault of minors below the age of 13 carries a maximum sentence of life imprisonment, while the penalty for assaulting children between the ages of 13 to 16 is a maximum of 14 years imprisonment. Section 8 and 10 of the 2003 Act deal more directly with issues of forced marriages than other provisions. The two provisions make incitement or causing children to engage in sexual activity as criminal offences13. Both sections divide the offence according to the age of the child involved; children under the age of 13 are covered by the provisions in Section 8, offenses against children between 13 and 16 are covered by provisions in Section 10. Under this provision forced marriages involving minors less than 16 years can be prosecuted as act of causing or inciting children to engage in sexual activity14. Regardless of whether a forced marriage is successful or not, under section 8 or 10 of the Sexual offenses Act 2003 it will be considered a criminal offense if the victim is below 16 years15. The provisions of these act provides a basis for prosecuting parents who coerce their children into forced marriages. One of the most important aspects of ordinary Law when it comes to combating forced marriages are its provision for instituting prosecution. In the UK, any member of the public can institute prosecution of a sexual offence16. This aspect allows neighbours and other members of a family where there is a victim of forced marriage to initiate prosecution against the perpetrators. Harassment legislation passed in 1997 may also be used to deter families from forcibly marrying off their children. Under the 1997 legislation, intimidating a person with violence or fear of violence on at least two occasions constitutes a criminal offence17. Currently people threatened by forced marriage or those already in forced marriages are protected by the Forced Marriage (Civil Protection) Act 2007. At its second reading stage the bill was supported by most parties in the house in recognition of the seriousness of the forced marriage issue18. Originally a private members bill moved by Lord Lester the bill received so much support giving the government no option but to embrace it19. With the support of Lord Lester, the government redrafted the whole bill. Before loyal assent the bill incorporated the opinion of high court judges. On 26th April 2007 the bill was granted Royal assent and one month later it came it force. The passing of the Act represents a major step in battle to combat forced marriages in the UK. The Act provides civil remedies for those under the threat of forced marriage or those already in such unions. Under the Act, a forced marriage is defined as a marital union where an individual was compelled to enter into without their full or free consent20. Force as is defined in the Act, as threats or psychological coercion meant to make a person concede to a marriage. The civil approach of the act was preferred over the criminal approach as the victim does not have to report his family members to the police21. It was hoped the approach would encourage victims not to conceal the practice. The Act offers protection through the Forced Marriage Protection Order. A Forced Marriage protection Order can be used by those already in forced or those who are under threats of forced marriage22. Under the Act, a court order people engaged in the behaviour or conduct to coerce victims to marry, to desist from such conduct immediately. A court may also require the perpetrators to fulfil some requirements. Failure to comply with the Forced Marriage Protection Order may leads to the imprisonment of the perpetrator. Cases under the Act are normally determined in the High Court, but the Lord Chancellor with the Chief Justice’s approval has the power to extend the jurisdiction of Magistrates’ court to hear them23. The Lord Chancellor can do this through an affirmative order. Any court that is charged with the responsibility of determining a forced marriage case must have considerations for all the circumstances of the case. Most importantly, the court must put into consideration the need to secure the safety, health and well-being of the victims24. The victim’s wishes and feelings during the proceedings must also be regarded. A court issuing a Forced Marriage Protection Order (FMPO) has the discretion to include appropriate terms into the order. These provisions include prohibitions, restrictions or other specific requirements and may extend to conduct outside the UK25. FMPO orders are meant to stop the conduct of the primary perpetrators or other secondary people who either abet or aid the act of forcing a person to enter into a marital union. Under the Act, if threats of violence have been used on the victim, a Forced Marriage Protection Order must come attached with the powers to arrest26. Cases where adequate protection can be provided without having to arrest the perpetrator (s) does not need attachment of powers to arrest. Authorities that deals with the forced marriage issue are required to comply with guidelines issued to proceed with the issue27. Statutory guidelines on the issue are set out in The Right to Choose: multi-agency statutory guidance for dealing with marriage 200828. Under the Statutory Guidance, agencies are required to have in place processes that best safeguard child and adult victims of forced marriages. (ii) Discuss to what extent, if at all, you consider that victims of forced marriage would be assisted if forced marriage were to be criminalised. The civil protection provided for victims or potential victims of Civil marriages have had little effect on the frequency forced marriages occur. According to the Home office forced marriages keep increasing every year. Estimates of the number of forced marriages in the UK put them at between 5000 and 8000 cases each year29. Remedies offered by civil provision thus offer little deterrence for those perpetuating the practice. For a crime equated to slavery it is wrong to assume civil orders to stop and other requirements can put an end to the degrading practice. In light of the failure of the civil legislation and criminal legislation that does not handle forced marriages as a criminal offense, David Cameron; the Prime minister announced a move to criminalise forced marriages30. Under the new Law forced marriages would become a distinct offense which could result in the perpetrators being jailed for a substantive length of time31. However, some groups involved in the fight against forced marriages opposed the move. These groups say criminalising the practice may be counterproductive as it may lead to lesser numbers of forced marriages being reported32. How criminalising Forced marriages will assists victims By criminalizing forced marriages the government could save thousands of individuals from forced marriages through deterrence of the practice. If forced marriages will be criminalised they will assist young people who are under threat of the practice challenge their parents from marrying them off. Criminalising the practice makes it easier for concerned authorities to identify and prosecute occurrences of forced marriages. Better Access to Justice Forced marriage is a degrading experience for any person who is forced to go through it. Surely is cannot be assumed justice for the individual forced into a marital union is served by civil remedies of the Forced marriage protection Act. The other criminal provisions that are supposed to handle offenses associated with Forced marriages have a burden of proof quite independent with the forced marriage offence. For example prosecuting a sexual violation is not quite enough to handle or the complex issue encompassed as forced marriage. In some scenario some forced marriages may not contravene any of the alternative provision of criminal law that prosecution for forced marriages is brought under. For example a person may be forced into a marriage but the perpetrator does not abuse them sexually or commit any other criminal offence. In these cases the only crime committed by the perpetrators is forcing the victim into a forced marriage. In this cases enacting legislation that recognises forced marriages as a criminal offense enable victims who would otherwise only have access to civil remedies a chance to make those victimize pay for their action33. Most people who are likely to be affected by forced marriages have expressed their support for the criminalisation of the practice. South Asian women interviewed on the issue were of the opinion the Act would provide them with better protection from the practice than the current civil provisions34. The Symbolism of the legislation would send a strong message to perpetrators of the practice that forced marriages are not acceptable in modern British society. They cite previous legislation like the female Genital mutilation act as an example of criminalization of a practice can assist those who are threatened by it35. Social acceptability is important to communities that practice forced marriages. Dishonour through prosecution would act as deterrence from engaging in the practice. Among immigrants from South Asia retaining family honour is important and there is a strictly followed code of honour and shame. The fear of stigmatisation could have a large effect in ending the practice. Victims and potential victims also say the proposed criminalisation will offer women from minority communities a basis to challenge their parents36. By challenging the forced marriage practice, the law will force communities to rethink their perception of forced marriages. In these cultures the understanding of force and consent greatly influence their attitudes to marriages. By criminalising emotional and psychological pressure to compel young individuals to enter in marriages, it will force the communities to reflect on the importance of retaining the practice in their culture. This view is however challenged by the fact that current criminal provisions that cover forced marriages have done little to change the perception of the practice among members of the South Asian immigrants. Aisha a respondent in the interview gave her experience as an example of how the criminalisation could assist victims of forced marriages37. Aisha then Aged 17 was subjected to several weeks of emotional and psychological pressure to coerce her to enter into a forced marriage. This coercion in existing criminal law provisions does not constitute a criminal offence. Aisha was to marry her cousin without her consent. During the period her father used threats of violence to force the minor into consenting to the marital union38. Her father occasionally threatened himself with a knife if she did not accept to marry her cousin. Aisha had no choice but to relent to the massive and psychological and emotional pressure. Under the provision of civil provision of the Matrimonial causes Act 1973 and the FMCPA 2007 the marriage is deemed illegal39. However, under existing criminal laws on forced marriages her father cannot be found to have committed an offence. If the Legislation on forced marriages criminalises the range of coercive conduct defined as force under the MCPA then Aisha fathers’ action would constitute a criminal offence40. Under the Family Act 1996, coercive force could be directed against various parties, for example the victim, the perpetrator or a third party. In this case Aisha’s father threat to kill himself constitutes “force41. A wider definition of force under the new criminal provision would recognize the effect of threatened familial exclusion as equalling physical threats when it comes to compelling individuals to forcibly enter into marriages. For the new law to effectively assists those threatened by the practice and victims it must be able to adopt a liberal definition of duress. In civil cases, as seen in(Szechter (orse Karsov) v Szechter [1971] 2 WLR 170), a victim does not have to show that her consent was overconm through a threat to “life, limb or liberty”. The criminal courts can use the objective test for force as used in Hirani v Hirani (1983) 4 FLR 232, Mahmood v Mahmood [1993] SLT 589, Mahmud v Mahmud [1994] SLT 599, Sohrab v Khan [2002] SCLR 663, P v R (Forced Marriage Annulment: Procedure) [2003] 1 FLR 661 and NSvMI [2006] EWHC 1646 (Fam), [2007] 1 FLR 444). In NSvMI Munby J42. Arguments against criminalising forced marriages Those against criminalization of forced marriages cite a number of reasons for opposing the practice. First, the number of reported cases of forced marriages may decline drastically as they fears dragging their families to court to answer for criminal offenses43. Some parents may avoid prosecution by taking their children to other countries. Prosecution may make it harder for victims to reconcile with their families Some victims of the practice view the move to criminalize forced marriages as ineffective and in some cases counterproductive. According to Sameem Ali, A councillor in the Manchester area, the forced marriage issue is a deep rooted culture among communities that practice it44. Instead of encouraging victims to report the crime, families will make the practice more secretive and move it away from the attention of authorities45. Another labour councillor, Moss Side also expressed his disapproval of the proposed legislation. In his argument he said it would be almost impossible for victims to report their parents as criminals and stand in court and testify against them46. Councillor Side said the family bond between a child and his parents is too strong for a young person to testify objectively about the unlawful conduct of her parents. She also mentioned the burden of proof in criminal cases which is much higher than that needed in civil cases as a potential barrier to successful prosecution of forced marriage cases47. Secondly, those opposed to the criminalisation of forced marriages say the law may lead to cases where parents move their children to other countries to avoid prosecution. According to the opponent of criminalization the current legislation provides for the withdrawal of the passport of the victim, to avoid them being illegally shipped out of the country by their parents48. However, this argument is faulty as the new law could also contain provisions for the confiscation of the victim’s passport, to prevent them from being secretly taken abroad by their parents once they accuse them of forcing them to marry forcibly. Another argument is based on the effectiveness of other cultural practices that have been criminalised. According to Ali, since the criminalization of the female genital mutilation in 2006, no perpetrator of the practice had been prosecuted in court. However, Ali argument can be rebutted by the fact that lack of prosecution may mean the cases of female genital mutilation have gone down. In contrast, Ali argues that the legislation might have caused the practice to be concealed further and increased the victims fear to report their parents49. According to Ali, A victim of forced marriage, the marriages do not occur over a short time. In reality a child begins to be intimidated by her parent from a young age50. Ali in her story says her mother beat her up daily to force her to know how to cook and clean. Ali refers to the physical and mental abuse that teaches a girl to be subservient to her parents as part of the wider plot to have her married off forcibly later. Ali talks of occasion where her mother would hit her toes with a hammer and how at some point she cut the palate above her tongue51. Intimidated from an early age when Ali then 13, was forced to marry a man twice her age she could not resist as she knew the consequences of disobeying her parents. Ali says it would be almost impossible to prosecute the crimes of her mother as they occur over a long time52. She also says if she was to recount her life’s ordeal in a criminal court it would only traumatise her further53. According to one of the Social organization working to protect victims of forced marriages, Criminalising the practice will not be an effective remedy. The Ashiana Network, a refuge for young women rescued from the practice sought the opinion of it residents on the move to criminalise forced marriages54. 19 of the ten residents say they would not have reported to the authorities if they would have known their parents would have been prosecuted. According to the Network, victims reporting the practice quote protection of their families from prosecution as a condition for them to seek help from the authorities. The residents of the Ashiana shelter disagreed with the view that families would be afraid of prosecution as it would ostracize then from their community. Instead the residents argued it is the victims who would be ostracized, if they testified against members of their community in criminal proceedings. The women also expressed fear that prosecuting their parents could attract violent reprisals from male members of their society55. Bibiography Legislation Children Act 1989 Education Act 1944 Family Law Reform Act 1969 Forced Marriage (Civil Protection) Act 2007 Forced Marriage (Civil Protection) Act 2007 Marriage Act 1949 Matrimonial Causes Act 1973 Right to Choose: multi-agency statutory guidance for dealing with marriage 2008 Sexual Offences Act 2003 Supreme Court Act of 1981 United Nations Convention to Marriage, Minimum Age for Marriage and Registration Cases laws Hirani v Hirani (1983) 4 FLR 232, Mahmood v Mahmood [1993] SLT 589, Mahmud v Mahmud [1994] SLT 599, P v R (Forced Marriage Annulment: Procedure) [2003] 1 FLR 661 and NSvMI [2006] EWHC 1646 (Fam), [2007] 1 FLR 444). In NSvMI Munby Sohrab v Khan [2002] SCLR 663, Seconday Sources Aisha Gill and Khatun, Sapnara ‘Forced marriages blight lives, but criminalising them would not work’, Guardian ( London, 9 April 2012) accessed 29 November 2012. Carter, H, Councillor Sameem Ali, ‘Criminalisation of forced marriagewill push issue underground', Guardian (London, 8 June 2012) Hossain, S. and Turner, S, ‘Abduction for Forced Marriage – Rights and Remedies in Bangladesh and Pakistan’(2002) [http://www.soas.ac.uk/ honourcrimes/FMarticleHossain.pdf], accessed 29 November 2012. Khatidja, C. ,Geetanjali, G & Hester, ‘Forced marriage in the UK: Religious, cultural, economic or state violence?’(2009) 29 Critical Social Policy 4, 587 – 612 Patel. P ‘Faith in the State? Asian Women’s Struggles for Human Rights in the UK’ (2008) ‘ 16 Feminist Legal Studies, 9, 36. Phillips, A. and Dustin, M. ‘UK Initiatives on Forced Marriage: Regulation, Dialogue and Exit’, (2004) 52 Political Studies 3 531–51. Proudman, CR, In Practice The criminalisation of forced marriage, Family Law (London, April 2012) Razack, S. H. ‘Imperilled Muslim Women, Dangerous Muslim Men and Civilised Europeans: Legal and Social Responses to Forced Marriages’, (2004) 12 Feminist Legal Studies 2 129–74. Rune-Antoine, E, Forced marriages in Council of Europe member states: A comparative study of legislation and political initiative (CDEG 2005). Samad, Y. and Eade, J. Community Perceptions of Forced Marriage. ( Bradford and Surrey: University of Bradford, University of Surrey Roehampton and Community Liaison Unit, Foreign and Commonwealth Office 2002) Sanghera, J. Shame ( Hodder and Stoughton 2007) Siddiqui, H. ‘Forced Marriages: An Abuse of Women’s Human Rights’, Rights of Women Bulletin (London, 2002) 2–4. Skalbergs, I. and Gulicova, M., Marriage Migration in the United Kingdom Country Study. ( Institute for Comparative Social Research,Daphne Programme – EU 2004) Stobarrt, E. Guidelines to the Police in Dealing with Cases of Forced Mar-riages (Association of Chief Police Officers, Foreign and Com-monwealth Office and Home Office 2002) Travis, A, ‘David Cameron to announce decision on forced marriage law, The Guardian, ( London 6 June 2012) accessed 29 November 2012. Wong , B, ‘The Forced Marriage (Civil Protection) Act 2007: A Snapshot” (2012) http://www.familylawweek.co.uk/site.aspx?i=ed24572 accessed 29 November 2012. Read More