Criminalisation of forced marriage:  taking it underground or to bringing perpetrators to justice?

Criminalisation of forced marriage:  taking it underground or to bringing perpetrators to justice?

On 16 June 2014 it became a criminal offence to force another person to marry against their will, a crime punishable by up to seven years imprisonment. The new criminal offences will sit alongside the existing civil legislation, namely for forced marriage protection orders (FMPOs).

There is no requirement for a FMPO to be in place for the new criminal offences to be committed, however, where an FMPO is in place, further new legislation provides that breach of an FMPO is punishable by up to five years imprisonment provided that the perpetrator is aware that the FMPO has been made.

In the past few weeks there has been considerable debate on the question of whether the change is a good or a bad one. What will the fallout be?

Government position

The government’s view is that the criminalisation is a monumental step forward to tackling the issue. Home Secretary Theresa May said that the new legislation 'is 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.'  Crime Prevention Minister Norman Baker is equally optimistic saying: 'Legislation is the next key step in solving this problem and builds on the hard work already being done by the government and third sector organisations to tackle this practice.'

Varied views

It is not just the government backing its own decision, charities are pledging their support too: both Freedom and the NSPCC have publicly endorsed the changes in legislation.

However, there is a spectrum of viewpoints when it comes to support for the change. The Chief Executive of the NSPCC, Andrew Flanagan, qualified the NSPCC’s support, stating that while the NSPCC welcomes the change in legislation, care must be taken in its implementation. He has said 'The NSPCC has always had concerns that a specific criminal law may risk making this abuse harder to uncover because the victims could be afraid of criminalising their family if they speak out.'

Firmly at the other end of the spectrum, Sameem Ali, a Labour Councillor in Manchester, and a victim of forced marriage at 13 years old,  is of the view the existing criminal law is sufficient and told the Guardian 'Nobody I know wants this legislation, nor do they want forced marriage. I think it will push the issue underground.'

Risks

Thus while there is significant support for the new legislation, there are also grave concerns there may be a worrying and dangerous deterrent effect, ie will victims now be too frightened to come forward? Afraid they will be made to give evidence against family members who they love, despite their crimes, victims may fear they will lose control. Sameem Ali comments that 'the legislation will make victims of forced marriage point the finger at their own parents. What young person is going to want to do that? To say those things about their own mum and dad, who they love.' As a victim of forced marriage Ali has an insight that those drafting the legislation cannot. She raises a valid point, and one that others have picked up on too.

One may ask, so long as the victim can choose, and make an entirely independent and informed decision, whether to ‘point the finger’ or not, will there be a problem? This will depend on the police, social services and lawyers working together to make certain the legislation does not ‘compel’ victims to point the finger, and ensure that the choice remains firmly in the hands of the victim.

An additional concern is the aftermath of a prosecution and the effect on a victim who has taken the step of giving evidence against her parents. This point was raised on Radio 4 Woman’s Hour in a discussion led by Jane Garvey with Jasvinder Sanghera of Karma Nirvana, a charity offering support for victims, and lawyer Anne-Marie Hutchinson. The discussion focused on the effects of the legislation, and the point was made that support for victims needs to be extended, and further education for children, both young women and men, is going to be vital.

Conclusions

Will the advantages brought by the legislation ie the deterrent effect, the power to bring perpetrators to justice without the Crown Prosecution Service having to gather a wealth of evidence for various other offences in a piecemeal manner (such as kidnap or theft of a passport), outweigh the other deterrent effect ie the fear that young women and girls may now feel about coming forward due to anxieties about giving evidence against loved ones before a criminal court? Only time will tell, the danger is of course that these effects are going to be very difficult to measure.

There is widespread agreement among politicians, lawyers and charities as to the need to increase awareness and education. One would hope the government will put in place sufficient funds and resources to ensure the change in legislation works as intended and that the number of forced marriages each year decreases. There are reportedly between 5000-8000 annually: there is a mountain to climb and hopefully the changes to legislation will materialise as a step in the right direction.

On 22 July 2014 the government will host the first Girl Summit, aimed at mobilising domestic and international efforts to end forced marriage, child marriage and female genital mutilation. Information about the summit is available on the Girl Summit Twitter page and the government website.

Jenny Moore is a solicitor at Freemans.

Twitter: @LittleLawyerWC1

 

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