Legal Update: Impact of forced marriage law
Catrin Gosby
Monday, August 18, 2014
In a follow-up to a recent piece on new legislation that criminalises forced marriage, Coram Children's Legal Centre researcher Catrin Gosby explores its potential impact, as well as some of its limitations.
Kirsten Anderson last month analysed the implications of a new law criminalising forced marriage, which was introduced in June (CYP Now 8-21 July). Theresa May described the law as "a further move by this government to ensure victims are protected by the law and that they have the confidence, safety and the freedom to choose". The Antisocial Behaviour, Crime and Policing Act (Commencement No. 2, Transitional and Transitory provisions) Order 2014 part 5 makes forced marriage a specific offence and punishable by seven years in prison.
The government's rationale behind this is that criminalisation sends out a message of zero tolerance. While it is vital to recognise that forced marriage is a violation of human rights, and laws may play a role in deeming which actions are unacceptable in a society, this particular piece of legislation may not be the appropriate response.
Beyond sending a message that forced marriage is not acceptable, it can be asked whether this new primary legislation really adds value. Civil remedies for forced marriage, known as Forced Marriage Protection Orders (FMPO), already exist. Furthermore, forced marriage may also fall within other criminal offences such as kidnapping, false imprisonment, harassment, sexual offences and blackmail. Scotland criminalised forced marriages several years ago, but has yet to bring about a single prosecution. More effective implementation and enforcement of existing laws may be more useful than creating additional legislation.
Bargaining point
On the other hand, proponents of this law argue that criminalisation will deter potential perpetrators, and could be used by potential victims as a bargaining chip to convince their parents not to force them into marriage. A distinct law that they could point to may help in some cases. It is also hoped this law will raise awareness among relevant professionals, such as teachers, who might intervene in a case.
Conversely, criminalisation may deter victims from seeking help or reporting cases. The perpetrators of forced marriage are often the victim's family and a person may not wish to bring criminal charges against their parents, especially if they are young, and still reliant on their family in several ways. Pursuing criminal prosecution may sever family links,or put them at risk of reprisals - further compounding the trauma they have already experienced.
A report following a pilot scheme of FMPOs found that many did not want to be "instigators of legal action" against their families and they felt that criminal proceedings would mean that they would not be able to return home. Although this new legislation is designed to give people a choice to pursue either criminal or civil redress, it may result in dissuading victims from coming forward at all, out of fear that it may result in criminal proceeding against their wishes. The Forced Marriage Unit said in a 2013 publication that "if there is overwhelming evidence that it would be in the public interest to prosecute, the CPS may proceed without (the victim's) consent".
Additionally, given the current cuts to legal aid and support services, it is counterintuitive of the government to create legislation with the hopes of increasing the number criminal prosecutions when the victims of forced marriages may not be able to access the support they need. Inadequate protection and assistance throughout the legal proceedings may result in victims being put in a more vulnerable position. These cuts and their consequences may undermine the purpose of this law, which is to help victims of forced marriage.
It seems criminalising child marriage has its limits. In order to effectively tackle the issue of forced marriages in the UK more needs to be done in terms of raising awareness and education, including training relevant professionals and frontline practitioners. It remains to be seen whether criminalising forced marriage will deter potential perpetrators; however, it is likely it will deter victims from reporting their cases. While a multifaceted approach needs to be taken to prevent forced marriages, this new piece of legislation may be used to send out a symbolic message of zero tolerance regardless of the negative impact this particular law may have.
Legal Update is produced in association with experts at Coram Children’s Legal Centre
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