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Charlotte Rachael Proudman on the law surrounding forced marriage and the developments surrounding its criminalisation
On Friday 8 June 2012 the Government announced that forced marriage will become a specific criminal offence. This follows the announcement in October 2011 that breaches of forced marriage protection orders (FMPOs) will likewise be criminalised. The legislation will not be introduced until the 2013/2014 Parliamentary session.
The decision to criminalise forced marriage emanates from concerns that the current legal initiatives are not doing enough. Between January and May 2012, the forced marriage unit (FMU) provided advice and support in 594 cases and the numbers of reported instances increase each year. 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. Research carried out by the Department for Children, Schools and Families’ estimated that the ‘national prevalence of reported cases’ of forced marriages in England was between 5000 and 8000.
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:
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.
Supportive measures
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:
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.
Conclusion
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.
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:
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.
Supportive measures
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:
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.
Conclusion
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.
Charlotte Rachael Proudman on the law surrounding forced marriage and the developments surrounding its criminalisation
On Friday 8 June 2012 the Government announced that forced marriage will become a specific criminal offence. This follows the announcement in October 2011 that breaches of forced marriage protection orders (FMPOs) will likewise be criminalised. The legislation will not be introduced until the 2013/2014 Parliamentary session.
The decision to criminalise forced marriage emanates from concerns that the current legal initiatives are not doing enough. Between January and May 2012, the forced marriage unit (FMU) provided advice and support in 594 cases and the numbers of reported instances increase each year. 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. Research carried out by the Department for Children, Schools and Families’ estimated that the ‘national prevalence of reported cases’ of forced marriages in England was between 5000 and 8000.
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