A forced marriage (FM) is one to which either party does not provide their full and free consent. It would include some coercion either by physical, psychological or other means.
We currently do not criminalise FM but the Forced Marriage (Civil Protection) Act 2007, effective from November 2008, provides victims with a remedy whereby they can apply for a Forced Marriage Protection Order (FMPO). The local authority and others can also apply.
Typically an FMPO will cover such matters as handing over the victim's passport to the Court, preventing someone being taken out of the country and prohibiting a marriage ceremony from taking place. 339 FMPOs were granted between November 2008 and June 2011. There is also the Forced Marriage Unit (FMU), set up in 2005, which seeks to assist victims both nationally and internationally. In 2010 the FMU gave advice and support in 1,735 cases, 86% of those relating to women.
The Government's Home Affairs Select Committee produced a report on 17 May 2011 that recommended making FM a criminal offence. In October 2011 David Cameron announced that the Government would consult again and on 8 June 2012 it announced that FM be criminalised. However, practitioners in this area are divided as to whether this good news or not. This article sets out the main arguments.
Arguments in favour
The Government believes that an FM is such an awful infringement of a person's human rights that the State has to intervene and protect victims and punish offenders. 54% of responses out of the 297 they received during the consultation were in favour of creating a new offence. 37% were against and 9% were undecided. 80% of the responses felt that the current civil remedies and criminal sanctions were not being used effectively. There is an important symbolic value in making FM a criminal offence, which will challenge community understandings and beliefs of those who think that coercion is acceptable.
The Government has quoted statistics from the CPS suggesting that the number of prosecutions for FM in the first year would be 20. However, opponents point out that although prosecutions may increase, there is no mention so far as to how victims would be supported, for example with accommodation. Nevertheless, supporters say that it would be easier for victims to take action and the steps to be taken would be clarified. The Law Society also supports this position, agreeing that it would be better for victims to put the onus on the police and the CPS as otherwise it requires an enormous amount of courage for them to take action.
The Iranian and Kurdish Women's Rights Organisation also supports criminalisation. They deal with more than 100 cases of FM a year. They believe it will empower victims to stand up to their parents and for their own rights.
Victims will have to give evidence in public, which may be too much of an ordeal for them and may put them off. Currently, unless the Court allows otherwise the proceedings are in private. A power of arrest can be attached, which means that the perpetrator can later be arrested and brought back before the Court. Many victims are worried about getting their families into trouble and stigmatising them. Victims may also feel let down if there is no conviction because of the higher criminal standard of proof. Although there have only been five reported breaches of FMPO, this may in fact demonstrate compliance.
Perpetrators do not always realise they are doing anything wrong. There was a recent article in The Times by Mandy Sanghara reporting on parents arranging marriages for their children with learning disabilities to give them a carer. The parents believe they are acting kindly and the individuals with learning disabilities were reluctant and unable to report their relatives.
The Southall Black Sisters Group worry that criminalisation could result in victims being taken abroad for marriage at a much earlier age. Reconciliation between victims and families later may be less likely too. In addition, the difficulty in proving FM could result in complex and long proceedings.
Opponents also point out that the Government ignored the study carried out by Roehampton University between 11 February and 4 June 2011. This provided a source of detailed information about the views of NGOs and community groups and it was generally agreed that legislation alone would have a limited impact. A more holistic approach was needed, looking at putting in place support mechanisms and a training programme aimed at relevant professions raising awareness.
Consequently, the jury is out on this issue but the Government is going ahead anyway. Interestingly, Scotland has decided not to criminalise FM after researching such countries where criminalisation has taken place as Denmark and Austria. Scotland's new Act only invokes the criminal sanctions in the event that the victim chooses to involve the police if an FMPO is breached. The victim can choose whether or not to prosecute. Perhaps this would have been a sensible compromise.