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Family Law/2015/November/Articles/The criminalisation of forced marriage in England and Wales: one year on – [2015] Fam Law 1378

Family Law [2015] Fam Law 1378 November 2015

The criminalisation of forced marriage in England and Wales: one year on

Ruth Gaffney-Rhys Reader in Law, School of Law, Accounting and Finance, University of South Wales About the author Background to the law on forced marriage Criminalisation of forced marriage Initial impact The first conviction Conclusion

Click here to view image Dr Ruth Gaffney-Rhys specialises in family law, in particular the law relating to marriage. Her research often has an international human rights element and frequently considers the impact of the law on women. The Anti-social Behaviour, Crime and Policing Act 2014 (the 2014 Act), which created the offence of using 'violence, threats or any form of coercion for the purpose of causing another person to enter a marriage' came into force in England and Wales on 16 June 2014 and almost one year later, the first person to be convicted under the Act was sentenced to a lengthy prison term. The conviction was hailed as a victory in the battle against forced marriage by campaigners such as Jasvinder Sanghera, CBE, who runs the charity Karma Nirvana. Sanghera commented that 'we are proud that the UK has the first conviction for forced

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marriage. We hope that this will send a strong message out to those perpetrating this heinous crime that forced marriage will not be tolerated in the UK. We also hope that this will inspire more people to come forward and receive support' (www.karmanirvana.org date (last accessed 20 June 2015)). This article examines the case in question and the message that it may send to perpetrators and victims (or potential perpetrators and victims) of forced marriage. It begins by explaining the background to the law relating to forced marriage and then considers why forcing someone to marry became a specific criminal offence. In the light of this, the paper explores the impact that the conviction may have and the steps that need to be taken to ensure that the objectives of criminalisation are actually achieved. A forced marriage is defined as 'one conducted without the valid consent of one or both parties, where duress is a factor' (FCO/Home Office, Forced Marriage – a Wrong not a Right, 2005, p 1). Following several high profile cases, such as the murder of Rukshana Naz in 1999, the Labour Government established an independent working group which recommended various strategies for tackling the practice. Five years later, the Foreign and Commonwealth Office and the Home Office launched a consultation (Forced Marriage – A Wrong not a Right, 2005) which considered criminalising various activities associated with forced marriage. The majority of respondents to the consultation felt that criminalisation was inappropriate as victims would be reluctant to seek help and forced marriage would be driven underground. The proposal was therefore abandoned, but shortly after a Private Member's Bill, drafted by the Liberal Democrat peer Lord Lester, in conjunction with the charity Southall Black Sisters, was introduced in the House of Lords. The Forced Marriage (Civil Protection) Act 2007 received Royal Assent on 26 July 2007 and came into force on 25 November the following year. The purpose of the Act was to provide protection to those at risk of being forced to marry and to provide recourse for those who have already been forced to wed. It inserted 19 provisions into the Family Law Act 1996 (the 1996 Act), which protects victims of domestic violence, in order to emphasise that forcing someone into a marriage is a form of domestic abuse. Section 63A of the 1996 Act empowers the family courts to make forced marriage protection orders. An application for an order can be made by the person at risk or a third party acting on their behalf (s 63(2)). Designated relevant third parties, ie local authorities, or the person to be protected can apply for an order without the need for leave of the court, whereas other third parties must obtain permission beforehand. In emergency situations, an application can be made without notice to the respondent (s 63D). A forced marriage protection order can be made against primary perpetrators i.e. those who force, attempt to force, may force or may attempt to force a person to marry and secondary perpetrators, ie those who become (or may become) involved in forcing or attempting to force a person into a marriage (s 63B(2)(b)). The order can also apply to any person who becomes involved in activities associated with forced marriage (in addition to those expressly cited in the order) even though they are not specifically named as respondents (s 63B(2)(c)). The order may contain 'such prohibitions, restrictions or requirements and such other terms as the court considers appropriate' (s 63B(1)). As an alternative to making a forced marriage protection order, the court can accept an undertaking that the respondent will not engage in certain activities in the future (s 63E(1)), provided that the latter was given notice of the application. The original legislation provided that breach of a forced marriage protection order constituted contempt of court, which is punishable by up to 2 years in prison (s 63O). This approach was designed to ensure that forced marriage protection orders were taken seriously, as individuals could be punished for breaching an order, but would not deter those at risk of being forced into a marriage from seeking assistance, as their family would not automatically be prosecuted. One of the problems with this approach was that breach of a forced marriage protection order was treated differently from breach of a non-molestation order, which is an automatic criminal offence punishable by up to 5 years in prison. Given that the reason for including the provisions of the Forced Marriage (Civil Protection) Act 2007 in the 1996 Act was to emphasise that forced marriage is a form of domestic violence, the sanction for breach of a forced marriage protection order arguably sent the message that forced marriage was a lesser form of domestic violence. In June 2014 the Anti-social Behaviour, Crime and Policing Act 2014, which was passed following a Consultation on Forced Marriage (Home Office, 2011), remedied this situation. Section 63CA(1) of the 1996 Act now provides that 'a person who without reasonable excuse does anything that the person is prohibited from doing by a forced marriage protection order is guilty of an offence.' A person convicted of the offence on indictment can be imprisoned for up to five years, just as a person convicted of breaching a non-molestation

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order can (s 63CA(5)). Breach of a forced marriage protection order continues to be contempt of court but the same conduct cannot be prosecuted under s 63CA(1) and for contempt (s 63CA(3) and (4)). Although the provisions of the Forced Marriage (Civil Protection) Act 2007 were appropriate to protect victims and potential victims of the forced marriage, their implementation was not as effective as it could have been. In 2008 the Forced Marriage Unit reported on the implementation of the multi-agency statutory guidance for dealing with forced marriage and concluded that there was a lack of commitment within agencies to address the issue of forced marriage and an inconsistent approach to training (FMU, 2008). Three years later the House of Commons Home Affairs Select Committee indicated that more action was required to prevent forced marriage, to better support victims and that the monitoring and enforcement of orders was insufficient (8th Report of Session 2010–2012, Forced Marriage, 2011, p 3). Following this, the Government issued a consultation paper which asked for comments about the effectiveness of the legislation and 'whether a criminal offence should be created for the act of forcing someone to marry against their will' (Home Office, 2011, Forced Marriage – A Consultation, p 21). The arguments in favour of creating a specific offence listed in the Consultation Paper were as follows (Home Office, 2011, Forced Marriage – A Consultation, p 11). First, it would send a strong message that forced marriage is unacceptable and therefore, may have a more powerful deterrent effect than the civil law has. Secondly, it would give victims a stronger sense that what is happening to them is wrong and thus encourage them to seek help. Thirdly, it would make it easier for the police and social services etc. to identify a case of forced marriage and finally it would provide proper punishment for perpetrators of forced marriage, which in turn would act as a deterrent. It was also pointed out that the creation of a specific offence would also fill the 'gap in the criminal law by enabling the prosecution of perpetrators for emotionally forcing victims into marriage' (C Proudman, 'The criminalisation of forced marriage' [2012] Fam Law 379, at p 463). The arguments against criminalisation of forced marriage are that, victims do not want their relatives to be prosecuted and punished: criminalisation may therefore deter victims from seeking assistance and may drive the practice of forced marriage underground. Parents may also take their children overseas in an attempt to avoid prosecution, and although legislation can provide for the prosecution of conduct overseas, it is more difficult to protect victims who have been removed from the jurisdiction. Finally, the creation of specific offence may create confusion rather than clarity due to the fact that the behaviour associated with forcing someone to marry will often constitute other criminal offences, such as blackmail and kidnap. 54% of respondents to the consultation were in favour of criminalising forced marriage, but it should be noted that only 7 of the 297 respondents to the consultation identified themselves as victims of forced marriage, which means that the proposal to create a specific offence of forcing someone to marry received little feedback from those directly affected (Home Office, 2012, Forced Marriage – A Consultation: Summary of Responses). Furthermore, most victim support groups (eg Women's Aid, Southall Black Sisters, Rape Crisis, the Henna Foundation and End Violence Against Women) argued that criminalisation does not reflect the interests of victims and may deter them from utilising civil remedies, although certain high profile charities, such as Karma Nirvana, supported criminalisation (Home Office, 2012, Forced Marriage – A Consultation. Summary of Responses). The Government's recommendation to criminalise forced marriage was incorporated into the Anti-social Behaviour, Crime and Policing Bill, which received royal assent on 13 March 2014. Section 121(1) of the Act states that a person commits an offence if he or she 'uses violence, threats or any form of coercion for the purpose of causing another person to enter a marriage' and he or she 'believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent'. If the victim lacks capacity to consent to marriage, an offence is capable of being committed by 'any conduct carried out for the purpose of causing the victim to enter into a marriage (whether or not the conduct amounts to violence, threats or any other form coercion)' (s 121(2)). Finally, an offence can be committed under s 121(3) if a person 'practises any form of deception with the intention of causing another person to leave the United Kingdom' and 'intends the other person to be subjected to conduct outside the United Kingdom that is an offence under subsection (1) or would be an offence under that subsection if the victim were in England or Wales'. An offence is only committed under ss (1) or (3) if at the time of the conduct or deception 'the person or the victim or both of them are in England or

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Wales' or 'neither the person nor the victim is in England or Wales but at least one of them is habitually resident in England and Wales' or 'neither the person nor the victim is in the United Kingdom but at least one of them is a UK national' (s 121(7)). Both offences are punishable by up to seven years in prison (s 121(9)) which indicates that causing a person to leave the UK for the purpose of forced marriage is considered as serious as using violence, threats or coercion for the purpose of forcing a person to marry. The Anti-social Behaviour, Crime and Policing Act came into force on 16 June 2014 and in the three months that followed, the number of applications for forced marriage protection orders and the number of orders granted rose considerably (Family Court Statistics Quarterly Tables, 2015). In the period 1 July – 30 September 2014, 63 applications were made compared with 38 in the period 1st April – 30th June 2014. 66 orders were made between 1st July and 30th September 2014, which is double the number made from April to June of the same year. It is likely that the surge in applications was caused by increased awareness of forced marriage that resulted from the media attention that the Anti-social Behaviour, Crime and Policing Act received when it came into force. This replicates what happened in Denmark when forced marriage was criminalised in 2008 (Wind-Cowie et al, 2012, Ending Forced Marriage, Demos). It is thus clear that the creation of a specific offence of forcing someone into marriage does not deter all victims or potential victims from seeking help and, at least initially, encourages some victims or potential victims to do so. Applications and orders made fell during the last quarter of 2014, but increased in the first quarter of 2015. They did not, however, exceed the peak reached in the immediate aftermath of the implementation of the 2014 Act, as 61 applications and 46 orders were made from January to March 2015. Since the Forced Marriage (Civil Protection) Act 2007 came into force in 2008, the number of orders made in a three month period has only exceeded 46 on three occasions. Although the trend is positive, rather than negative, the number of orders made remains low in comparison with the number of cases reported to the Forced Marriage Unit, which was 1267 in 2014 (www.gov.uk/forced-marriage (last accessed 20 June 2015)). It should be noted that the data relating to forced marriage protection orders does not paint the full picture in terms of the number of victims or potential victims who are assisted by the law. Local authorities, which are designated relevant third parties under the 2007 Act, sometimes utilise child protection provisions (ie wardship and the Children Act 1989) rather than the 1996 Act, if the victim is under the age of 18 (Chokowry and Skinner, The Forced Marriage (Civil Protection) Act 2007: Two years on [2011] Fam Law 1, at p 77). The first person to be convicted under the new legislation was a 34-year-old man from Cardiff, who cannot be identified for legal reasons. The man lured the 25-year-old victim to his house under the pretence of having a meal with his wife, when in fact the property was empty. Judge Daniel Williams, sitting at Merthyr Crown Court, explained that the defendant locked the front door, drew the curtains, threw away the victim's mobile phone and bound and gagged her with scarves. The defendant then raped the victim. He filmed her while showering and threatened to reveal the videos and to kill members of her family if she did not obey him. The victim was repeatedly raped from March to September 2014 and was taken to a Cardiff Mosque where she was married against her will (CPS statement 10/6/15, www.cps.gov.uk date accessed 20 June 2015). Eventually the victim was able to report the matter to the police. The defendant was prosecuted and pleaded guilty on the second day of the trial. The defendant was sentenced to 4 years in prison for forced marriage, 12 months for bigamy, 12 months for voyeurism and sixteen years for rape, to run concurrently. The defendant would thus have faced a 16-year prison sentence even if forced marriage had not become a specific criminal offence in June 2014. It is an unusual example of forced marriage as the groom was the perpetrator, rather than the parents or extended family of the victim. In addition, it involved the commission of several serious offences and as a result of this, the case raises several issues and questions. For example, will the conviction inspire more people to come forward and receive support as Jasvinder Sanghera hopes? At the time of writing, data on the number of applications for forced marriage protection orders following the conviction is not yet available. The case certainly drew attention to the practice of forced marriage, which itself may encourage victims to come forward, but the monstrous nature of this particular example of forced marriage may prevent those subjected to emotional pressure, but not physical violence or threats to inflict physical harm, from realising that they are being or have been forced to marry.

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As explained above, one of the arguments cited in favour of criminalization is that it gives victims a stronger sense that what is happening to them is wrong, but this objective may not be achieved if victims and potential victims of coercion are only exposed to examples of forced marriage involving physical violence, kidnap, rape, threats to kill etc. As Gill and Anitha point out, there are difficulties 'distinguishing between coercion and consent' (2009, 'The illusion of protection? An analysis of forced marriage legislation and policy in the UK' [2009] Journal of Social Welfare and Family Law 260) and this may be exacerbated by the media attention devoted to extreme cases of forced marriage, such as the Cardiff case and the case of Dr Humayra Abedin, who was kidnapped, imprisoned, drugged and subjected to psychological and physical abuse in Bangladesh in 2008. The difficulty distinguishing free consent from consent obtained by coercion also means that parents who pressurise their children to marry do not always realise that their behaviour constitutes force. During the House of Lords debate on the Forced Marriage (Civil Protection) Bill Baroness Falkner of Margravine indicated that some sections of her community cannot see the difference between consent given as a consequence of duress and consent freely given because 'the prevalence of obedience as an overarching filial duty makes the distinction negligible' (Hansard, Lords Debates. Col 1334 (26 January 2007)). The first conviction for forced marriage may contribute to the belief that force is confined to physical violence and threats to kill or cause physical harm and does not encompass threats to ostracise or pressure based on filial duty, honour and shame. The case may help to frustrate one of the purposes of criminalisation, namely that it will act as a powerful deterrent. It is therefore essential that steps are taken to raise awareness of all forms of forced marriage and to emphasise that emotional pressure constitutes force. It is also crucial that frontline professionals are appropriately trained otherwise they will not be able to identify all cases of forced marriage. The Consultation Paper on Forced Marriage suggested that the creation of a specific offence of forcing someone into marriage would make it easier for the police, social services, schools and healthcare professionals to identify cases of forced marriage, as the legislation that existed prior to the 2014 Act was not 'easily linked with forced marriages' (Home Office, 2011, Forced Marriage – a Consultation, p 11). It was argued that criminalising forced marriage would clarify matters so that frontline professionals would have the confidence to intervene in all cases of forced marriage. If key professionals do not receive adequate training they may fail to categorise marriages involving psychological or emotional pressure as forced marriage, particularly if the only successful convictions involve physical violence. This leads to the next issue raised by the case, namely, the problems that the Crown Prosecution Service will face securing a conviction in cases that do not involve physical ...