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Forced Marriage and the Criminal Law

Charlotte Proudman, barrister, provides an overview of the Government’s proposed changes to the law intended to combat forced marriage.

Charlotte Proudman, barrister

On Friday 8 June 2012 the Government announced that forced marriage will become a specific criminal offence. This followed the announcement in October 2011 that breaches of forced marriage protection orders (FMPOs) would be criminalised. Forced marriage legislation will be introduced in 2013/2014 parliamentary session. The Government's announcement follows a 12 week public consultation which gathered views from victims, front line organisations, practitioners and the general public.

Specific criminal offence of forced marriage
Criminalisation of forced marriage is a contentious subject on which there are a range of strongly held views. In the public consultation 54% of respondents were in favour of the creation of a new offence while 37% were opposed. One of the main reasons for supporting criminalisation was the concern that the current legislation is not tackling forced marriage. Research carried out by the Department for Children, Schools and Families estimated that nationally the number of reported cases of forced marriage in England was between 5,000 and 8,000. In addition to forced marriages occurring in Britain, the UK's embassies and high commissions continue to rescue British victims who are forced into marriages overseas, and repatriate them back to the UK.

The public's reasons for supporting criminalisation mirror the author's own research findings which she published in 2011 Forced and Arranged Marriage. All the women interviewed by the author were strongly in favour of criminalisation. The main reasons for supporting criminalisation include:

Prosecutions for forced marriage must be victim-led. This will guarantee that victims continue to report their concerns rather than fearing that the state will prosecute the perpetrators without considering their wishes and feelings. For example in the case of R v Ghulam Rasool [1990-1991] 12 Cr App R (S) 771, which had a forced marriage background, the victim said in court that she had now been reconciled with her family and did not want them prosecuted. The victim's step-father was sentenced to two years imprisonment, her mother was given a conditional discharge, and her brothers were ordered to perform community service. The purpose of prosecuting forced marriage cases is to provide victims with justice and recognition of the wrong that they have suffered, but this can only be achieved if victims support the prosecution.

Breach of FMPOs to become a criminal offence
At present, the law governing forced marriage is the Forced Marriage (Civil Protection) Act 2007 (FMCPA 2007) which provides a specific civil remedy of forced marriage protection orders (FMPOs) designed to protect those threatened with or subjected to forced marriages. Between November 2008 (when the FMCPA 2007 came into force) and June 2011 only 339 FMPOs were recorded.

Only five breaches of FMPOs have been recorded since November 2008 and only one breach has resulted in a prison sentence. Currently breach is dealt with as a civil contempt of court punishable with a fine or a custodial sentence of up to two years imprisonment. In an attempt to deter forced marriage, breach of FMPOs will become a criminal offence. This will bring the FMCPA 2007 in line with Scottish legislation where breach of an order governed by the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011 is a criminal offence with a maximum prison sentence of two years.

Currently FMPOs extend to conduct outside England and Wales. Statistics indicate that forced marriages occur transnationally; for instance 21 victims out of the 116 FMPO applications, were already abroad at the time of the application. The legislation needs to be extra-territorial to ensure that perpetrators hiding abroad will be brought to justice for breaching FMPOs.

Supportive measures
Recognising the importance of social and community measures alongside legislative initiatives, the Government announced on 8 June 2012 that it will invest £500,000 over the next three years to support those working in education and safeguarding so that they know how to spot the earliest signs and what action to take. Awareness is being raised to highlight the risk of forced marriage abroad through the major summer campaign in 2012, highlighting the right to choose and the help available. Communities are also being engaged through a nation-wide programme focussed on prevention and education, delivered through regional roadshows and debates. There will be implemented a comprehensive support package for victims who have been repatriated. Money will also be invested both to expand the current training for relevant professional agencies, including the CPS, police, judiciary, health agencies, and social services, and to establish a single point of contact in every local authority.

Regrettably forced marriage does not form part of the PHSE school curriculum despite the fact that, according to Forced Marriage Unit statistics, between January and May 2012 44% of forced marriage reports involved children under the age of 16. An emphasis on education would ensure that young people are aware of their choices and rights as well as the support available to them.

Criminalisation of forced marriage across Europe
The announcement of the intention to criminalise forced marriage coincided with the Government signing the Council of Europe's Convention on Preventing and Combating Violence against Women and Domestic Violence (CAHVIO) on 8 June 2012. Signing the convention reflects the Government's continuing commitment to tackling violence against women and girls, including forced marriage and psychological violence.

There is evidence of a trend towards criminalisation of forced marriage across Europe. Some EU Member States rely on civil law and criminal offences which encapsulate the behaviour behind forced marriage, while others rely on international treaties which forbid forced marriage. However, there are a number of EU member states where there is an absence of legal provisions relevant to the behaviour associated with forced marriage. For instance in Czech Republic and Romania, marital rape is not recognised as a specific criminal offence. The lack of relevant laws means perpetrators are immune from punishment.

Following concerns that current legal initiatives are not tackling the practice, the Council of Europe's study 'Forced marriages in Council of Europe member states' in 2005 recommended that a specific offence of forced marriage be enacted in European countries. Since this study was released in 2005 a number of EU member states have enacted a criminal offence of forced marriage. Denmark, Germany, Austria, Malta, Belgium and Cyprus have criminalised the practice. Forced Marriage is also a criminal offence in Norway. Although Norway is not an EU member state it is subject to EU legislation through the European Economic Area Agreement. At present the Swedish government is consulting on the criminalisation of forced marriage following a two year report which concluded that there is a definite need for criminalisation.

Developing legislation collectively across Europe is only the first step in combating forced marriage. If forced marriage is to be dealt with and, ultimately, eradicated, legislation must be effectively drafted across Europe to ensure it is enforceable. There are a number of disparities in the way in which a criminal offence of forced marriage has been drafted across Europe. Those disparities include, for example, the definition of forced marriage, the provisions for prosecution (either state-led or victim-led), sentence imposed for committing such an offence and the extra-territorial nature of an offence. It is imperative that European countries consult with each other to ensure the development of coherent and consistent legislation on forced marriage across Europe.

Criminalisation is supported by the public in Britain, as evidenced by the consultation process. It has been clearly deemed to be the way forward across Europe. In taking the decision to criminalise forced marriage the Government will be bringing the law in England and Wales into line with that of several European countries as well as our obligations under Article 16(1) (b) of the UN Convention of the Elimination of All forms of Discrimination against Women. Recognising the importance of social and community initiatives to tackle forced marriage, the Government will provide additional funding to enable such measures to run alongside a specific offence of forced marriage. All these measures will make forced marriage preventable and will make it less difficult for victims to avoid or escape forced marriage.