Breach of FMPOs to become a criminal offence
At present, the Forced Marriage (Civil Protection) Act 2007 (FMCPA 2007) provides a civil remedy, namely, forced marriage protection orders (FMPOs) designed to protect those threatened with or subjected to forced marriages. From November 2008, when the FMCPA 2007 came into force, to June 2011, only 339 FMPOs were recorded. There were five reported breaches since November 2008 only one of which resulted in a prison sentence. Currently it is treated as a civil contempt of court, punishable with a fine or a custodial sentence of up to two years. This is modelled on the Family Law Act 1996 provisions in respect of non-molestation orders.
FMPOs extend to conduct outside England and Wales, and 21 victims out of the 116 FMPO applications were already abroad at the time of the application. Considering the transnational element of forced marriages it is important to consider how breaches of FMPOs will be enforced if perpetrators are abroad. The legislation needs to be extra-territorial to ensure that perpetrators abroad will be brought to justice for breaching FMPOs.
Specific criminal offence of forced marriage
Criminalisation of forced marriage is a provocative subject on which there are a wide range of strongly held views. In the recent consultation, 54% of respondents were in favour of the creation of a new offence while 37% were opposed. The public’s reasons for supporting criminalisation mirror the author’s own research findings, which she published in 2011 with LAP Lambert Academic Publishing, Forced and Arranged Marriage among South Asian Women in England and Wales: Critically Examining the Social & Legal Ramifications of Criminalisation. All the women interviewed by the author were strongly in favour of criminalisation. The main reasons for supporting criminalisation include:
- The legislation will have a symbolic function; it will send out a public message to perpetrators that forced marriage is socially unacceptable.
- An offence will fill the gap in criminal law by enabling the prosecution of perpetrators for emotionally forcing victims into marriage.
- Criminalisation will challenge community understandings that emotionally and psychologically forced marriages are acceptable.
- An offence will result in an increase in reporting of forced marriage. Since Denmark criminalised forced marriage in 2008, a Copenhagen-based organisation, LOKK, reported a surge in victims coming forward.
- Victims will be empowered as they will have a choice of pursuing a civil and/or a criminal remedy.
- Criminalisation will have a deterrent effect as the prevailing code of honour and shame prevalent amongst some communities may prevent families from breaking the law.
- Victims could use the law as a bargaining chip to negotiate with their parents.
- Parents could also use the law as a bargaining chip to negotiate with their relatives overseas who might be pressurising them to force their son or daughter into marriage.
- Forced marriage forms a distinct inhumane act of sufficient gravity that it should be considered as a separate crime, distinct from existing criminal offences and one which can be prosecuted separately.
- Perpetrators will be brought to justice by prosecuting them for the act of forced marriage itself along with any other offence that took place. Prosecuting other criminal offences separately from forced marriage itself recognises that the perpetrator of another criminal offence (for example rape) is not necessarily the person responsible for the forced marriage.
- Criminalisation will clarify what steps need to be taken in forced marriage cases by public sector employees, many of whom lack knowledge and confidence of how to deal with such cases. Karma Nirvana, a forced marriage and honour based violence charity, runs a helpline for victims and professionals. They receive over 200 calls a month from professionals seeking advice.
- A criminal offence should result in prosecutions for the act of a threatened or actual forced marriage itself along with any other offence. From April 2011 to April 2012 there were 42 criminal investigations in the context of forced marriage and 21 of those resulted in a conviction.
To ensure that victims continue to support criminalisation it is imperative that prosecutions for forced marriage are victim led. In turn 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 R. 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 her family 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 the victim supports the prosecution.
Recognising the importance of social and community measures alongside legislative initiatives, the Government announced on Friday 8 June 2012 that it will invest £500,000 over the next three years to:
- support those working in education and safeguarding to know how to spot the earliest signs and what action to take;
- expand the current training for relevant professional agencies including the CPS, police, judiciary, health agencies, and social services, and identify a Single Point of Contact in every local authority;
- raise awareness of the risk of forced marriage abroad through a major summer campaign in 2012, highlighting the right to choose and the help available;
- provide a comprehensive support package for victims who have been repatriated; and
- engage with communities through a nation-wide programme focused on prevention and education, delivered through regional road shows and debates.
With 44% of forced marriage reports involving children under the age of 16 from January to May 2012 (Forced Marriage Unit statistics), more needs to be done to support young people. Regrettably, forced marriage does not form part of the PHSE school curriculum. An emphasis on education would ensure that young people are aware of their choices and their rights as well as the support available to them.
Criminalisation was overwhelmingly supported by the public because it will provide a measure of redress, serve as a public acknowledgement of a wrong committed, deter the practice and fulfil a loophole in the law by enabling the prosecution of perpetrators for emotionally coercing victims into marriage. Regardless of any personal views about the criminalisation of forced marriage, we must recognise that criminalisation is important to many victims and collectively we must work together to ensure that victims are informed of their rights, thus enabling them to make an informed decision. It is in the victim’s interests to make a concerted effort to ensure that the legislation works; after all, the offence is here to stay.
Alongside a specific offence of forced marriage and criminalising breaches of FMPOs, the Government has provided for social and community initiatives to tackle forced marriage. All these measures make forced marriage preventable and they make it easier for victims to exit forced marriage. In taking the decision it has, the Government will be bringing our law 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.
Charlotte Rachael Proudman is a barrister and author.