Forced Marriage is Criminal, but Criminalising is not the best solution
For Muslims and non-Muslims alike, there is much confusion between arranged marriages - where two families, with the agreement of the bride- and groom-to-be, agree on a partnership - and forced marriages, where one side is forced into a marriage against their will.
The issue has hit the headlines now in the UK, where the Home Secretary Theresa May is due to outline how forced marriage will become a criminal offence in England, Wales and Northern Ireland. A similar law was introduced in Scotland in last November, giving courts over there the power to issue protection orders to those at risk: if breached, offenders could face two years in prison.
Consider the numbers: An estimated 8,000 young people were forced into marriages in the UK in 2009. The proportion of young men who are forced may be small (some say 15%, against 85% women), but they are also victims of this crime. Stories of women forced into marriage are more harrowing (with a five-year-old girl thought to have become a victim of forced marriage) but a Muslim imam, Ajmal Masroor, has recently revealed his own personal story of suffering such a marriage 20 years ago and the effects it had upon him and his family. These women and men often suffer in silence; many are powerless to stand up against the cultural pressure and the emotional blackmail of their parents, families and tribes.
Since 2008, courts in England, Wales and Northern Ireland have been able to issue civil orders, under the Forced Marriage Act, to prevent forced marriages, in order to protect victims. But the government is planning to criminalise forced marriages. Is this the best solution?
'Forced marriage is not marriage', according to Islam
The definition used by the Crown Prosecution Service (CPS) is one adopted by the Government and ACPO ('A Choice by Right' published by HM Government in June 2000): "A forced marriage is a marriage conducted without the valid consent of one or both parties where duress is a factor."
Duress can include physical, psychological, financial, sexual and emotional pressure. As such, forced marriage is an abhorrent practice and is an indefensible abuse of human rights. It imprisons two souls without any respect and dignity for either. Some say it is little more than slavery. Victims of forced marriage, particularly women, suffer from isolation, eating disorders, depression, substance misuse and attempted suicide as well as other physical and mental illnesses. Some violence in the name of so-called honour or 'honour killing' is linked with forced marriage.
Marriage-based family life has been the bedrock of human society since the beginning of our journey on Earth and to force that union is an anathema. Love is and should be the fountain of marital union; it is a gift that human beings are bestowed with. Forced marriage tears love and sacrifices a man and a woman at the altar of others' whims. Love is the inner passion that cannot be coerced and traded with family or tribal honour and culture.
Main world religions, particularly the Abrahamic ones, have (or should have) nothing to do with coerced partnerships. Forced marriage is 'morally and legally wrong', says the Church of England. It is against Jewish Law as well.
Forced marriage is not even treated as marriage in Islam. For marriage to be valid in Islam there must be consent of parties which is duly witnessed. The Prophet of Islam annulled a marriage which was conducted forcibly and which the woman did not accept, by saying 'If a man gives his daughter in marriage in spite of her disagreement, such a marriage is invalid.'
It is astonishing that forced marriage is still prevalent in some, mainly tribal, cultures in the name of religion. Sadly that includes some Muslim cultures as well. But mainstream Muslims have been outspoken against forced marriage. In a high profile seminar on forced marriage in 2009 at the East London Mosque, its main imam spoke alongside legal figures and clearly stated: "Marriage is an important part of Islam; a free and willing contract between a man and woman to spend their lives together. Islam teaches us that parents are the guardians of their children's welfare and security; forced marriages go against this teaching."
But criminalising forced marriage may not be enforceable
There is a convergence of opinions between both proponents and opponents of the government proposal that forced marriage is a criminal act. However, the main issue is about its effective enforcements.
The government consultation says there were strong arguments both for and against the creation of a new offence. So, the question is, if a system works within existing laws, then is it necessary to use the blunt instrument of legislation to address such a complex issue, particularly when enforcements may not be easy?
Those who hold the view that it should be a crime in law suggest that "it will raise awareness and it will act as a deterrent - just as it is doing in places where it has become a crime, such as Australia, Germany, Belgium, Cyprus and Denmark".
To opponents, the overriding concern is that criminal proceedings could deter victims, which would then lead to fewer civil or criminal sanctions, and ultimately result in forced marriage being driven further underground. The fear that victims may not come forward cannot be under-estimated. Lord Lester of Herne Hill, who introduced the Forced Marriage Bill that led to the 2008 Act, said: "There is already plenty of criminal law to tackle murder, kidnapping, abduction, rape and all the other evil manifestations associated with forcing people into marriage against their will". He suggested that the family law approach was better than the criminal process which, he said, "has not proved to be an effective way of tackling a major social problem".
The other concern on criminalisation is there are genuine grey areas between an arranged marriage and forced marriage. What about the situation where no violence or no actual force is applied? It would then be extremely difficult to define whether the threshold for forced marriages has been reached. There are then the issues surrounding the intent and the 'burden of proof'.
Laws work best with the mobilisation of public opinion for them; the moral acceptance by majority population is thus important. Raising awareness on and creating a revulsion against forced marriages are vital. As criminal law already provides punishment for offences that may be committed when coercing someone into matrimony there is no necessity, in my opinion, to create a new law.
Dr Muhammad Abdul Bari is a founding member of The East London Communities Organisation (TELCO), Chairman of the East London Mosque Trust, Former Secretary General of the Muslim Council of Britain (2006-10) and a member of the Voice For Justice World Forum