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Criminalization of forced and child marriage
Legislation should criminalize forced marriage, and should acknowledge that any child marriage is by definition a forced marriage. Legislation should define forced marriage broadly, including free and full consent provisions described in Defining and Establishing Consent. The offence of forced marriage should be graded based on harm and aggravating factors.
CASE STUDY: The UK government does not have a specific offence for forced marriage, but it does provide victims with a civil remedy, i.e. an order for protection, discussed supra. Also, it passed the Domestic Violence, Crime and Victims Act of 2004, which criminalizes the violations of non-molestation orders issued under the Family Law Act 1996 and expands the availability of restraining orders under the Protection from Harassment Act 1997 in any cases of violence on sentencing or on acquittal.
In 2005, the Forced Marriage Unit (FMU) (joint Home Office and Foreign & Commonwealth Office (FCO) unit) issued a consultation, Forced Marriage – A Wrong Not a Right. The paper sought views on whether a specific criminal offence would help combat forced marriage; how any proposed offences might be formulated; issues surrounding enforcement; and what the penalties of such a possible offence should be. It also invited responses on four options for legislation:
A – grouping and renaming existing criminal offences;
B – creating an offence of threatening to perpetrate existing criminal activities for the purpose of bringing about a marriage without the full and free consent of one or both parties;
C – creating a new offence covering all unacceptable behaviour involved in forcing someone into marriage; and
D – facilitating or bearing witness to a marriage in the knowledge or reasonable suspicion of the lack of consent of one of the parties.
The Forced Marriage Unit received 157 responses to the consultation. In response to the question, “Should forcing someone into marriage constitute a specific criminal offence?” 34% responded - yes; 37% - no; 10% unsure/possibly; qualified response with data – 4%; no response - 15%. While there was no clear majority among respondents about whether or not a specific offence of forcing someone into marriage should be created, the majority felt that the disadvantages of creating new legislation would outweigh the advantages and potentially drive forced marriage underground. The government decided against introducing a specific offence and following the introduction of a Private Member’s Bill, the civil remedy was implemented.
Some advocates have argued that criminal penalties are more effective because they recognize domestic violence as a crime and embody a statement by society that this abuse will not be tolerated. While an abuser is held "accountable" in both an OFP and a criminal proceeding, the sanctions available in criminal proceedings are considerably more severe. Orders for protection simply limit the defendant's conduct; criminal sanctions label that conduct as wrong. (See: Orders for Protection, StopVAW, The Advocates for Human Rights) Furthermore, criminalizing the offence of forced marriage will impact public attitudes, deter forced marriages, facilitate the public sector response, grant greater bargaining power to youth, and clarify and facilitate action against perpetrators.
The Norwegian government chose to criminalize the offence for its deterrent effect, but also adopted rules governing situations where forced marriages may be driven abroad.
Promising Practice: Norway’s Penal Code (2003) punishes forced marriage as a felony against personal liberty. Sec. 222(2) states that “Any person who by force, deprivation of liberty, improper pressure or any other unlawful conduct or by threats of such conduct forces anyone to enter into a marriage shall be guilty of causing a forced marriage. The penalty for causing a forced marriage is imprisonment for a term not exceeding six years. Any person who aids and abets such an offence shall be liable to the same penalty.” Section 220 of the Penal Code imposes a punishment of up to four years’ imprisonment for “any person who enters into marriage with a child under the age of 16, or who aids and abets such a marriage.” In 2006, the Norwegian Supreme Court considered the issue of sentencing and increased the prison sentence for a father and his son who threatened violence against his 17-year-old daughter. The district court had sentenced them to ten and eight months; upon appeal, the Court of Appeal increased the term to 21 and 6 months. The Supreme Court increased the terms to 30 and 24 months, respectively. Action Plan against Forced Marriage 2008-2011, Norwegian Ministry of Children and Equality, p. 11.
Drafters should ensure that all individuals involved in facilitating forced and child marriages are held accountable for their role. Laws must address the indirect or direct roles that may be played by multiple perpetrators. Drafters should take into account the roles that family members, religious leaders, tribal council members, government employees and others may play in facilitating or authorizing forced and child marriages. Laws should ensure that these other third parties who are involved in or facilitate forced and child marriages are punished.
If drafters do not criminalize forced marriage as a specific offence, they should ensure that perpetrators are prosecuted for such associated crimes as kidnapping, child abduction, false imprisonment, assault, battery, threats of violence or death, breach of the peace or conduct that disrupts the public order, harassment, child abuse, rape, sexual crimes, blackmail, and violations of protection orders. Drafters should institute intent to produce forced marriage as an aggravating factor in sentencing schemes.
BEST PRACTICE: The Crown Prosecution Service in England and Wales introduced monitoring procedures to flag “honour”-based violence, including forced marriage and thereby gauge the extent of instances as well as develop a particular approach to forced marriage. Guidance for prosecutors dealing with cases involving forced marriage and honour based crime will be released during early 2010. Specialist prosecutors have already been identified by all CPS Groups. Training for these prosecutors will commence in spring 2010 at London, Manchester and Birmingham. This will involve input from specialist support groups, as well as the Forced Marriage Unit.
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