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Rights of victims

Drafters should consider integrating forced marriage laws, support and services with those of domestic violence. Domestic violence assumes many forms, of which forced marriage is one type. Similar to domestic violence, forced and child marriage involves many of the same behaviors of power and control. (See: What is Domestic Violence, StopVAW, The Advocates for Human Rights) By integrating forced marriage within a domestic violence framework, policymakers can ensure that victims of forced marriage are not excluded from existing support structures. Drafters need to be mindful, however, of the leval of specialism required when dealing with “honour”-based violence and forced marriage. (See: “Honour” Crimes) In addition, drafters should consider integrating certain forms of forced marriage with laws on trafficking in persons. Trafficking laws that encompass forced marriage should provide for the physical, psychological and social recovery of victims. (See: Domestic Violence; Sex Trafficking of Women and Girls)

  • Legislation should provide for efficient and timely provision of financial assistance to survivors to meet their needs.
Promising Practice: Under France’s Framework Justice Act (2002), police are obligated to inform victims of their right to apply for compensation and seek a civil remedy. Also, police can register compensation claims on behalf of victims, thus eliminating the requirement for victims to go to court. (See: Non-criminal Remedies for Crime Victims, Council of Europe, 2009) France has instituted a state fund for compensation for victims of violent crimes, whereby victims may apply to the State Fund for Victims of Crime (pp. 14-15). Criminal justice bodies aid the fund by recouping funds from perpetrators. (See Reform Act 1990)
  • Legislation should ensure that victims of child marriage have the right to an education, social reintegration and other assistance. Survivors of child marriage have often been denied their right to an education on an equal opportunity basis. Laws should ensure all appropriate assistance to victims of child marriage, including their full social reintegration and their full physical and psychological recovery.
  • Legislation should provide access to health care (See the Health Module), particularly reproductive health care and HIV prophylaxis. Women in polygamous marriages or girls in child marriages may have less power to negotiate safe sex practices, thus increasing their risk of contracting STDs and HIV. Also, girls who are forced into child marriages experience various health complications from early and frequent pregnancies and are at greater risk for reproductive problems, such as obstetric fistula. See supra: section on Establishing a Minimum Age for Marriage. The dearth of health clinics and trained health professionals aggravates these risks. UNICEF has found that girls under the age of eighteen are not physically prepared to give birth. Furthermore, an early pregnancy indicates that girls are more likely to bear more children more frequently throughout their lifetime. Finally, cultural taboos may prevent a mother from obtaining the nutrition she needs. (See: OHCHR Fact Sheet No. 23 Harmful Traditional Practices Affecting the Health of Women and Children, ¶ E (citing UNICEF)). Laws should take into account the physical consequences of forced, child and polygamous marriages.
  • Legislation should require a free, 24-hour hotline that is accessible from anywhere in the country and staffed by persons trained in forced marriage issues. (See: Crisis Centres and Hotlines, StopVAW, The Advocates for Human Rights) The hotline should be multilingual. States may want to consider establishing online counseling services and information, but should ensure they provide information on and mechanisms to preserve the privacy of the information seeker’s website searches. (See Electronic Information Privacy Center for suggestions on protecting online privacy)
Illustrative Examples:

Germany’s Youth and Sport Department of the Federal State of Berlin funds the Papatya Association, which counsels and protects girls seeking help from forced marriages. The association acts as an intermediary between the girl and her family, and if needed, provides her with shelter. Trained social workers help them develop a plan to return to their parents or live separately. (See Forced Marriages in Council of Europe Member States (2005), p. 53)

The Swedish non-profit organization, Terrafem, runs shelters and a hotline for women victims of violence. The hotline offers assistance in 43 languages, and the organization can offer legal advice in 25 languages. Importantly, any calls placed to Terrafem are free-of-charge and will not be listed on a phone bill.

France’s Third Three-Year Inter-Ministerial Plan Combating Violence against Women (2011–2013) mandates the evaluation of existing hotline phone services to victims/survivors (and witnesses) of intimate partner violence with the aim of creating a single number, and making it available to victims/survivors of all forms of violence against women, including forced marriage, female genital mutilation, prostitution, trafficking, rape and sexual violence. See: UN Women, Handbook for National Action Plans on Violence Against Women Handbook for National Action Plans on Violence Against Women (2012).

  • Legislation should provide for one shelter or refuge for every 10,000 people, providing safe emergency accommodation, qualified counseling and assistance in finding long-term accommodation. Shelter accommodation should take into account the particular needs of women and girls who are victims or potential victims of forced marriage. Policies should reflect the facts that victims may perceive their need for refuge as damage to their family honor, be subject to coercive and threatening behavior by family members to compel their return, and be forced to sever their contacts. In its report, Active against Forced Marriage, the Ministry for Social and Family Affairs, Health and Consumer Protection of the Free and Hanseatic City of Hamburg recommends establishing special care that guarantees anonymity, provides counseling and care for victims taking into account the abrupt absence of family, and special protection measures for victims and shelter personnel. Furthermore, victims of forced marriage often require long-term accommodation to ease them into a life independent of their family. (See: Section on Long-term Support for Victims)
  • Legislation should guarantee the victim’s right to free legal aid in all legal proceedings; free court support, such as accompaniment and/or representation by an appropriate service or intermediary, and; free access to qualified and objective interpretation. Laws should also protect the victim’s right to decide whether to appear in court or submit evidence via alternative means, enable victims who testify in court to give evidence in a way that does not require them to confront the defendant, provide protection to the victim within the court infrastructure, require the victim to testify only as many times as is necessary, request closed courtroom proceedings where constitutionally permissible, and impose a gag on all publicity regarding individuals involved in the case with appropriate remedies for non-compliance. Laws should cross-reference witness protection policies where applicable. In its report, Active against Forced Marriage, the Ministry for Social and Family Affairs, Health and Consumer Protection of the Free and Hanseatic City of Hamburg recommends that victims be provided legal and psycho-social assistance from the start and throughout trial proceedings. Trained personnel should accompany victims of forced marriage to provide them with support and information on the proceedings and their rights. The court should always use court-sworn interpreters, rather than family members or unqualified interpreters, in proceedings (p. 39).

Promising Practice: In the UK (England and Wales), the legal aid waiver applies in forced marriage cases as it does in domestic violence. There is no maximum income or capital limit above which legal aid will not be available although the applicant may still be required to pay a contribution if their income or capital are in excess of a certain amount. The Funding Code criteria for domestic abuse is not limited to any particular definition of domestic violence or abuse but covers all applications to fund legal representation in family proceedings seeking an injunction, committal order or other orders for the protection of a person from harm, and including applications for Forced Marriage Protection Orders. In these cases, the Funding Code guidance requires the applicant to explain what action has already been taken by the police and what other protection, if any, is already in place.  It will not, for example, generally be appropriate to grant public funding where the perpetrator is subject to bail conditions which provide protection to the applicant unless these conditions are likely to be lifted shortly following the determination of a criminal prosecution. This is not an absolute rule, however, and the extent of protection afforded to the applicant from any criminal proceedings must be considered in each case. 

The applicant for public funding does not have to be British or be living in England and Wales to qualify for legal aid. The issue is whether the case relates to the law of England and Wales. Importantly, legal aid is available regardless of immigration status and even if the client has no recourse to public funds. Legal aid is not classed as a “public fund” for these purposes.

In some cases the victim may be overseas or it may not be immediately possible to provide evidence of means. In accordance with the guidance in relation to the use of devolved powers, provided the solicitor makes a justifiable estimate of whether the client is financially eligible and follows the devolved power guidance then they will, even if it turns out that the client is not eligible, be paid for the work done pursuant to the grant of emergency representation. However, because of the eligibility waiver which is available in these cases, the upper eligibility limit will not in any event apply and any issue will usually relate to the level of contribution payable.

Long-term Support for Victims

 In addition to guaranteeing their immediate safety, legislation should ensure that survivors of forced and child marriage are provided with long-term care and support to assist with reintegration and address their physical, social and economic needs. Long-term support should protect women and girls who face the risk of retaliation from their families and former spouses and are unable to return to their families. Legislation should address their long-term needs, including identity protection, psychological counseling, reproductive health services, education, housing, financial support and vocational training.

  • Legislation should state that social workers, health care providers, child protection agencies, attorneys and other professionals working with forced and early marriage victims must ensure the confidentiality of all information regarding the victim, including her identity. The whereabouts of forced and early marriage survivors should not be disclosed to anyone without prior consent. Laws should provide for penalties for unauthorized disclosure of this information.
  • Legislation should provide for the development and support of long-term supervised housing projects, as recommended by the Ministry for Social and Family Affairs, Health and Consumer Protection of the Free and Hanseatic City of Hamburg in its report, Active against Forced Marriage, for forced and child marriage survivors who a court finds cannot be reconciled with their families. 
  • Legislation should provide survivors with access to health care, particularly reproductive health care and HIV/AIDS and STI treatment. (See the Health Module)
  • Legislation should include or refer to family law provisions on child support, including payment schedules and means of enforcement. Annulment of a marriage should not preclude an obligation to provide the survivor with child support.
  • Legislation should include provisions on financial aid to allow forced and early marriage child marriage survivors to finish school, and should mandate the creation of a fund for this purpose. Scholarships and grants should be provided to offset the cost of tuition, books, supplies, public transportation and other school-related expenses. (See: Ending Child Marriage: A Guide for Global Policy Action) Financial aid beyond secondary school may be in the form of loans and may be made contingent on school performance.
  • Legislation should ensure the creation or support of skill and vocational training programs to help forced and child marriage survivors move towards economic self-sufficiency. These programs should be structured in a way to meet the particular needs of survivors of different forms of violence. For example, laws should provide survivors of child marriage with parenting skills training.
  • Legislation should provide for financial assistance for survivors of child and forced marriages while they attend school and develop the skills needed to become economically independent.
  • Legislation should also provide for the protection of younger siblings of known victims, as these siblings may also be at risk of forced or child marriage. Drafters should require that the state child protection agency initiate an investigation to determine whether younger siblings of a known victim are at risk of becoming victims, and apply for a protection order if necessary. (See: Section on Child Protection Provisions)

Illustrative Examples:

A program in Bangladesh added more evidence that scholarships for secondary school had a strong influence on parents’ decisions to keep their daughters in school and out of marriage. The Female Secondary School Assistance Project (FSSAP), provided scholarships for girls ages 11 to 15 to delay marriage and stay in secondary school.  A program evaluation found that secondary school enrollment for girls more than doubled from 442,000 in 1994 to more than a million in 2001. A second phase of the project, starting in 2002, worked to increase girls’ enrollment in school and the quality of their education through training teachers and recruiting more female teachers.

In Nepal, the Bhaktapur Adolescent Girls’ Education Project provides livelihood and income-generating skills to young girls  to help them support themselves financially, so that they are more likely to stay in school and avoid early marriage. Parents also participate in income-generating activities that will help them save for their daughter’s school fees. Parent education is also an important part of the program, which works with parents to find alternative solutions to the problems of poverty that do not involve marrying their daughters at a young age.

See: Population Reference Bureau, Who Speaks for Me? Ending Child Marriage, 2011,p. 5.