Legal Update: Forced marriage outlawed
Kirsten Anderson
Monday, July 7, 2014
Will a new law criminalising forced marriage provide better protection for children at risk, asks Kirsten Anderson, legal research and policy manager at Coram Children's Legal Centre.
According to legal provisions that came into effect last month under the Anti-social Behaviour, Crime and Policing Act 2014, forced marriage now constitutes a criminal offence in England. The Home Office defines forced marriage as occurring when "one or both spouses do not consent to the marriage but are coerced into it" through means that can include "physical, psychological, financial, sexual and emotional pressure". Forced marriages affect a significant number of children and young people. According to the Home Office, of the 1,302 cases of possible forced marriage that it identified in 2013, in cases in which age was known, 15 per cent of victims were under 16 years and 25 per cent were aged 16 to 17 years.
Prior to these new provisions coming into effect, persons at risk of forced marriage could apply to the court for a Forced Marriage Protection Order - a civil remedy. Forced Marriage Protection Orders can include a range of court-ordered measures to prevent or respond to a forced marriage, including, for example, orders to hand over passports, cease acts of intimidation or stop someone from being taken abroad. It was also possible that acts contributing to a forced marriage, including assault, abduction or kidnapping, could be prosecuted as such. In relation to children, child protection legislation could also be used to prevent or respond to a forced marriage. However, the act of forcing someone to marry did not itself constitute a criminal offence prior to the new legislation coming into effect.
Criminalisation
Section 121(1) of the act introduces two new offences. A person will commit an offence if he or she "uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage" and "believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without the free and full consent".
This is comprehensively drafted to include non-physical forms of coercion, including for instance, threatening violence against the victim or their siblings, or using financial or psychological intimidation. Section 121(2) states that if a victim lacks capacity to consent to marriage, the offence can be committed by any conduct carried to cause the victim to enter into marriage, irrespective of whether the conduct amounts to violence, threats or any form of coercion. This is particularly significant for children and young people who, it could be argued, lack the capacity to give meaningful consent to a marriage, due to their age and stage of development.
A further offence is created by section 121(3), if a person practices any form of deception with the intention of causing another person to leave the UK to undergo a forced marriage abroad. This is important, as perpetrators often deceive victims, giving false reasons for leaving the country (eg, going on holiday, going to see relatives, etc) when the real purpose is for them to undergo a forced marriage. Section 121(3) makes the deception of the victim to entice them out of the country a criminal offence.
Section 120 creates a new offence of breaching a forced marriage protection order, carrying a maximum penalty of five years imprisonment.
Concerns with the new laws
Some organisations, including Coram Children's Legal Centre, have expressed concern about the criminalisation of forced marriage. Perpetrators of forced marriage are usually parents or other family members. Knowing that reporting a forced marriage could expose parents or family members to criminal conviction will likely serve as a significant deterrent for victims to come forward, seek support and use civil remedies. This is particularly the case for a child or young person who is still reliant on his or her family for shelter, food, love and support, and could cause these children to miss out on accessing crucial support.