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Forced Marriage is Criminal, but
Criminalising is not the best solution -
Muhammad
Abdul Bari 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
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