Drafters should carefully consider the specific context in which forced marriage occurs in their country. Forced marriage can assume various forms and may occur in situations involving slavery; mail order marriages; human trafficking; arranged, traditional and customary marriages; expedient marriage; marriages as dispute settlement; fictitious marriages; trokosi (the practice of giving young virgin girls to priests to serve as sexual slaves as payment for services or as atonement), and; bride kidnapping or marriage to acquire citizenship. Also, the forced marriage of people with disabilities, where the victim may lack capacity to give full and informed consent, or she may lack capacity to consent to sex within a marriage, constitutes another form. Drafters should be aware that physical force is not a necessary element of forced marriage. Some situations may constitute forced marriages by virtue of duress, which may be physical, psychological, sexual or emotional in nature, or by virtue of more subtle factors at play, such as fear, intimidation, social and familial expectations, or economic forces.
Drafters should ensure that a definition of forced marriage includes, at a minimum, the absence of free and full consent of one or both parties. Laws and human rights documents generally describe forced marriage as a union that lacks the free and full consent of both parties.
For example, the European Parliamentary Assembly Resolution 1468 “Forced Marriages and Child Marriages” (2005) defines forced marriage as the “union of two persons at least one of whom has not given their full and free consent to the marriage” (¶ 4). (See: UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage (Art. 1(1)) and Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Art. 6(a)), which both state that marriage may only take place upon the “free and full consent” of both intending parties.
Drafters should define early and therefore forced marriage as that of a child under the age of 18 years. The Convention on the Rights of the Child states that a child is defined as anyone under the age of 18 years of age, unless the law states that majority is reached at an earlier age (Art. 1). As a child under the age of 18 is not capable of giving her valid consent to enter into marriage, child marriages are considered to be forced marriages. (See: Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages; see: European Parliamentary Assembly Resolution 1468 “Forced Marriages and Child Marriages,” 2005, which defines child marriage as “the union of two persons at least one of whom is under 18 years of age” (¶ 7) and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, which sets the minimum age of marriage for women at 18 years (Art. 6(b)). Additionally, laws should state that the betrothal and marriage of a child shall have no legal effect.
Depending on local law, marriages under the age of majority have the potential to constitute a form of child abuse. The response to forced marriage where the person to be protected is under 18 years of age should be dealt with as a child protection issue. (See: Section on Child Protection Provisions)
Next Topic Defining and establishing consent