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Defining other forms of forced marriage: slavery, sexual slavery, forced labor and debt bondage

Drafters should prohibit slavery practices that allow the transfer of a woman for money or other consideration where the end result is a legalized or informal marriage. These laws should prohibit: 1) any right of ownership to be exercised over the victim; 2) the transfer of a woman or girl for money or other consideration or as inheritance or for purposes of a marriage, whether formal or informal, and; 3) the exploitation of the victim through slavery, sexual slavery, forced labor or debt bondage.

Drafters should ensure that laws address both de jure (by law) and de facto (by fact) marriages that arise from or lead to situations of slavery, sexual slavery, forced labor and debt bondage for women and girls. In these cases, there may be either an actual marriage or an informal marriage that has arisen from the circumstances. Laws should take into account that slavery, sexual slavery, forced labor or debt bondage may posture as a de jure marriage. For example, a trafficking victim or mail order bride may have entered a formal marriage that later transforms into one of these exploitative situations. In the case of trokosi, where no formal ceremony may have taken place, a young female is given to a priest for forced labor or sexual exploitation to atone for the crimes of a relative or ancestor, to ward off a curse, or as payment for the priest’s services.

Drafters should carefully review laws governing child custody, property, and immigration issues as they pertain to parties in both legal marriages and in informal marriages. Laws should address specific victim needs with regard to immigration, as well as family issues governing divorce, child custody and property issues that stem from a de jure marriage.

Laws must also guarantee these rights to women and girls who are trapped in a situation of slavery in a non-formal marriage that lacks legal recognition. In this case, a different type of vulnerability arises because victims lack the legal status granted by a formal marriage to assert their rights. Because the victim may lack personal civil status in her marriage, drafters should ensure she is guaranteed equal protection of the law.

In particular, drafters should eliminate laws that award children or property to the male or his family in non-formal unions.

Where there is domestic abuse, drafters should construct laws that require judges to:

  • consider domestic violence in making a custody award,
  • grant visitation rights to the perpetrator only if adequate measures to protect the child and mother's safety are made,
  • create a presumption against awarding custody to the abusive parent, or
  • prohibit an award of joint custody to an abusive parent.

(See, Child Custody Issues, Stop VAW, The Advocates for Human Rights)

See also: section on International Marriage Brokering; Sex Trafficking of Women and Girls.

Drafters should consider options for domestic prosecution as established by international caselaw. Drafters in states with laws on crimes against humanity may look to international jurisprudence on forced marriage. The Special Court for Sierra Leone prosecuted forced marriage as an “other inhumane act” under crimes against humanity. In the context of the Sierra Leonean armed conflict, the court focused on the elements of force and coercion, the presence of a conjugal relationship, and harm to the victim. During the conflict, combatants abducted girls and women to act as “bush wives,” where they were subjected to rape, sexual slavery, and forced labor tasks, such as cooking, cleaning and portering. In these cases, the forced marriage involved conditions of sexual slavery and forced labor. The court, however, distinguished the crimes of forced marriage and sexual slavery, defining forced marriage as the “situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim.” (See: Prosecutor vs. Brima, Kamara and Kanu (AFRC Case), Special Court for Sierra Leone, 2008, Para. 190)

Illustrative Example: The practice of girl-child beading amongst the Samburu communities of Kenya has been little discussed and is relatively unknown outside of the community.  This practice is clearly prohibited under Kenya’s Constitution (2010) and under Kenya’s Sexual Offences Act. The Samburu are a primarily pastoralist society that has lived in the arid and remote part  of Northern Kenya’s Laikipia, Isiolo, Samburu and Marsabit regions for centuries. Girl-child beading involves Samburu morans (males in the warrior age-group who are not-yet eligible to marry) giving specialized beads to girls to signify the commencement of a sexual relationship. Girls may be as young as nine years old when they are beaded. Because these relationships take place within clans, the process generally does not lead to marriage and pregnancy is forbidden. The uncircumcised girls are still considered children themselves and thus it is a taboo for them to give birth. However, when pregnancies do result, beaded girls may be forced to have an abortion or to give up the newborn for infanticide or for adoption into another ethnic community. The practice has substantial negative impacts on Samburu girls, including school drop-out, early pregnancy and forced abortions, spread of sexually transmitted infections, and intimate partner violence.

Despite the legal prohibition of this harmful practice, enforcement of the law is a challenge. A local NGO, Samburu Women’s Trust, has begun a multifaceted program to address the problem, involving research about the origins and beliefs surrounding the practice, community dialogues with key stakeholders about the harms resulting from the practice, a media awareness campaign, and a project to provide shelter and school fees for girls fleeing beading. Community dialogues have revealed that many leaders do not see the practice as having positive value for the community any longer, and awareness raising tools such as a documentary video and “Samburu Girl-Child” magazine have raised awareness about the issue throughout Kenya. The program is continuing to focus on ultimate abolition of the practice through community dialogue and consensus building.

See: Samburu Women Trust, Silent Sacrifice: Girl-child Beading In The Samburu Community Of Kenya (2012).