By Tehmina Kazi
20 January 2014
In November 2013, I was asked to make a submission to the Scottish Parliament’s Justice Committee on the criminalisation of forced marriage. Scotland – my former homeland – was already ahead of England and Wales on this highly emotive issue, because it criminalises breaches of civil protection orders. Back in England and Wales, perpetrators of forced marriage are currently subject to civil charges, rather than criminal ones. What does this mean in practice? According to Leeds-based forced marriage charity Karma Nirvana, many young people were being returned to their families with the Forced Marriage Protection Order still in place, putting them at great risk. Is it any wonder the Home Affairs Committee criticised these civil protection orders in its Eighth Report
It is therefore heartening to note that Scotland intends to go the “full fig”, backing Westminster legislation on full criminalisation (although theirs will probably look slightly different). This will make it an offence for someone to use violence, threats or any other form of coercion to force another person into a marriage. Without full criminalisation, Scotland risks failing to comply with the Council of Europe’s (Istanbul) convention on preventing and combating violence against women and domestic violence.
Hence, I was surprised to read Amrit Wilson’s anti-criminalisation stance published on open Democracy 50.50 last week, where she mentions the Scottish example as a cautionary tale. In a Scottish Parliament debate from 4th December 2013, Scottish National Party MSP Kenny MacAskill addresses concerns about a new law driving the practice “underground”: “We understand the concerns about driving the practice underground. However, it appears to us that the practice is already, by its very nature, one that tends to be kept under wraps and dealt with secretively. That is why we are happy to work with members of particular organisations, and with the communities in which the practice tends to be more prevalent, to make it quite clear that forced marriage is unacceptable.”
Wilson cites Newham Asian Women’s Project and Apna Haq in Rotherham, stating that no forced marriage victim in either organisation was willing to charge their parents, “even under existing laws.” In 2012, Dr Aisha Gill and Khatun Sapnara also argued against criminalisation in the Guardian. They cited a survey of residents at the Ashiana Network, a London-based forced marriage refuge. Nineteen out of 20 remarked that if forced marriage were a criminal offence, they would not have gone to the authorities because they would not want to see family members being prosecuted in a criminal court.
Karma Nirvana, however, conducted its own research as part of the public consultation process. At 1,620 responses, the sample size is 81 times bigger than Ashiana's, and all respondents (except for two neutral ones) supported criminalisation. There is also evidence to suggest that the criminalisation of forced marriage in other countries has led to an increase in reporting rates, rather than the opposite. Denmark criminalised the practice in 2008, and grassroots organisations like the Copenhagen-based LOKK have reported a surge of young people coming forward. Further, as Charlotte Rachel Proudman – family law barrister and author of Forced and Arranged Marriage Among South Asian Women in England and Wales: Critically Examining the Social & Legal Ramifications of Criminalisation points out, “Reporting of forced marriage in the UK has almost doubled since the Government announced on 8th June, 2012, that forced marriage would be criminalised. We had the same arguments for criminalising marital rape. Far from going underground, there has been a four-fold increase in reporting to police.” All the women who Proudman interviewed for her research stated that if forced marriage had been a criminal offence when they were forced to marry, they would have used the law as a “bargaining chip” to negotiate with their parents. They insisted that bringing perpetrators to justice was a more important concern than not demonising the communities which practice forced marriage.
In any case, none of the pro-criminalisation BME groups or feminist activists named by Wilson in her article have a “demonising” agenda. Jasvinder Sanghera, founder of Karma Nirvana, sits alongside me on the European Foundation for Democracy’s Network for a New European Generation. Many pro-criminalisation groups – such as Inspire and my own organisation, BMSD – have a long record of speaking out against Islamophobia and racism. As the Director of British Muslims for Secular Democracy, I am involved with the Measuring Anti-Muslim Attacks project and am a trustee of the anti-fascist organisation Hope Not Hate. It is perfectly possible – nay, desirable – to challenge both forced marriage and anti-Muslim sentiment at the same time.
Wilson also raises concerns about inadequate protection for victims who do wish to prosecute their parents, particularly those who drop out of “isolating” witness protection programmes or withdraw their cases and “face being charged with wasting police time.” These are concerns which apply to victims in the criminal justice system as a whole, not just forced marriage victims. Further, a new law could potentially introduce safeguards against these issues, and create more opportunities for the dissemination of good practice.
Wilson quotes the Forced Marriage Survivors’ handbook: “If there is overwhelming evidence that it would be in the public interest to prosecute, the CPS may proceed without consent,” describing this as a “chilling” possibility. What, exactly, is “chilling” about ensuring that justice is served, regardless of arbitrary criteria relating to the victim or offender? It is an interesting coincidence that she goes on to mention Nazir Afzal, Chief Crown Prosecutor for the CPS in the North West. He was responsible for a pilot in Greater Manchester where domestic violence perpetrators were successfully prosecuted without the victim’s consent: "I expect my prosecutors to prepare each domestic violence case as if it was a case without the victim's support. If, tragically, that victim were to be killed, then we would prepare the case on that basis. Why, therefore, can we not do it in all such cases?”
Mr Afzal deserves nothing but our full support for his courageous stance on domestic violence, forced marriage and grooming cases – which are all issues that certain community members have been less than unequivocal about. Such people are clearly worried about "what one’s family and community will think,” but there is nothing commendable about tiptoeing around cruel practices. Any parent who forces their child into a marriage is not acting out of love, despite any claims to the contrary. While it is to be expected that some children would want to shield family members from the consequences of their actions (for a variety of different reasons), how does this serve the cause of justice as a whole? The Qu'ran is clear on the importance of upholding justice, even if it means testifying against family members: "O you who believe! Stand out firmly for justice, as witnesses to Allah, even if it be against yourselves, your parents, and your relatives, or whether it is against the rich or the poor..." (Quran 4:135. While we are on the subject of Islam, Islamic history is replete with examples of the Prophet Mohammed (peace be upon him) dissolving marriages where consent had not been sought.
It is a fallacy to suggest that forced marriage can be adequately addressed by existing criminal offences such as rape, kidnap and assault. Firstly, it is an abuse far greater than the sum of its parts, because it entrenches a framework for continuous ill-treatment. Secondly, existing criminal offences do not cover emotional coercion; a new law could remedy this loophole. Thirdly, some of the anti-criminalisation advocates have said that forced marriage could be introduced as an aggravating factor with regard to sentencing. However, this contradicts their own stance that forced marriage victims generally do not want lengthy prison sentences to be imposed on family members.
It goes without saying that there needs to be better education in communities where forced marriage takes place; this is a point that unites pro and anti-criminalisation advocates. However, this is not an either-or situation. The new legislation must be accompanied by an effective awareness-raising campaign. This should cover both the practicalities of approaching the police and other criminal justice procedures, as well as clear statements about “the absolute nature of human rights.” The latter was the conclusion of a recent report by the charity FORWARD. Naana Otoo-Oyortey, executive director, warned that many people still support the supposed reasons why forced marriage happens. She said: “Notions of chastity were very strong even among those who say they are liberal”, and forced marriage was seen as “an acceptable way of stopping girls being promiscuous.” She added that people are now more willing to speak about female genital mutilation, but that forced marriage is the “new taboo.” Let’s hope that 2014 is the year where these taboos are finally broken, for the sake of all human beings who are deprived of the right to consent to a marriage.