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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. 

 Nine states in the U.S. have criminal laws that prohibit forced marriage, however many were drafted decades ago and need updating to ensure that they respond to current circumstances. Review the current laws in the United States that prohibit forced marriage here.

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. Plans are in the works to pass new legislation that would make forced marriage a criminal offence. 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 initially decided against introducing a specific offence and following the introduction of a Private Member’s Bill, the civil remedy was implemented.However, since that time, the government has changed course and determined that a criminal offence is necessary, along with substantial public education and victim support measures. See: Forced Marriage to be Made a Criminal Offence, UK Home Office, June 8, 2012.

Some advocates have argued that criminal penalties are more effective because they recognize violence against women as a crime and embody a statement by society that domestic violence and forced marriages 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 Practices: 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. See: Action Plan against Forced Marriage 2008-2011, Norwegian Ministry of Children and Equality, p. 11.

Scotland passed the Forced Marriage Act of 2011, which criminalizes forced marriage. The Act empowers courts to issue protection orders tailored to victim's needs, and makes violation of those orders a criminal offense. Anyone, including local authorities, can apply for a protective order when worried about a possible victim of forced marriage. The law also provides that urgent interim orders can be made when, for example, there is a risk of significant harm to the protected person.  The protective orders, among other things, can require a person to take the victim to a place of safety or to refrain from violent or intimidating conduct against the victim or anyone else. A person who breaches a forced marriage protection order may be punished by imprisonment of up to two years, a fine, or both. The first protection order under the act was issued in April 2012, and in the first six months since the law was introduced fifty people were assisted on the forced marriage hotline. See: First Forced Marriage Protection Order Issued in Scotland, BBC, April 16, 2012.

In December 2011, Pakistan passed the Prevention of Anti-Women Practices Bill and the Criminal Law Bill, which amended the Pakistan Penal Code and the Code of Criminal Procedure. The Prevention of Anti-Women Practices Bill Prevention of Anti-Women Practices Bill makes it unlawful to “compel or arrange or facilitate” a women’s marriage, punishing violations with imprisonment of three to seven years and a fine of five hundred thousand rupees. The bill additionally makes it unlawful for the government to suspend or commute the sentence of convicted rapists. While there are some concerns about enforcement, the fact that the bills were passed unanimously by the Senate and quickly approved by the Pakistani president indicate growing support for the women's right movement.  Indeed, the Senate soon after also approved the National Commission on the Status of Women Bill 2012 National Commission on the Status of Women Bill 2012, which establishes a commission to examine polices, programs and other initiatives on women's rights and gender equality.

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.