Forced Marriage: More than a crime

As an egregious abuse of human rights and an often hidden form of violence against women and children, forced marriage needs very specific policy responses.  Currently, the major response is a legal one, requiring police intervention.  Good Shepherd Australia New Zealand has been a key driver in increasing awareness of its prevalence in Australia, through conducting research (The Right to Refuse) and helping to establish the Victorian Forced Marriage Network.  Good Shepherd’s Kathy Landvogt explains why a criminal response, while important, is not adequate. 

Forced marriage in Australia

Forced marriage is an emerging issue that has prompted a strong Australian policy response within criminal legislation. After three years, it is clear that this sharply focussed policy instrument, while welcome, is unable to either prevent or respond to many forced marriages. It is time to develop some further policy responses.

First, some background. Forced marriage, unlike other arranged marriages, is a marriage to which one or both partners do not freely and knowingly consent. By definition it includes marriages under the legal age of 18, that is, child marriages. Victims are primarily young women. It is a global, gender-based, human rights issue relying on rigid gender roles and inequality in opportunities for women. As the Attorney-General’s Department states, “Forced marriage is a slavery-like practice, a form of gender-based violence and an abuse of human rights.”

While occurring in Australia, numbers are impossible to determine. Forced marriage is not mainstream practice in any major religion or culture, but rather is a distortion and abuse of cultural practices. Parents may believe they are protecting girls, or may be exploiting them for migration purposes or other family obligations. A significant minority of victims, which also include young men and boys, have other risk factors, in particular disability or LGBTQI status. Victims experience physical, sexual and emotional abuse, deliberate isolation, loss of childhood/adolescence, mental health problems, early pregnancy, and loss of educational opportunity. They have their agency and future stolen from them. Society suffers through the loss of participation and productivity, and every forced marriage reveals weak spots in our human rights culture.

Criminalisation… and policy gaps

The policy response in 2013 was federal legislation making forced marriage a crime (which can be found here in sections 270.7A and 270.7B) and creating a service that could be accessed through the Australian Federal Police (AFP). This was unusual in that the criminal legislation largely preceded community awareness, civil law remedies, and social policy advocacy, unlike in many other similar countries. This has left some significant gaps:

1.    A majority of victims feel they cannot approach the police about a family matter, and are afraid of aggravating the situation, of bringing shame on the family, and/or of being isolated from their family and community. For those who have had the courage and support to report to the AFP, there have been no successful forced marriage prosecutions under the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013, despite there being an increase in the number of investigated forced marriage cases.

2.    Many young women and girls are not receiving appropriate information or support services. According to the Attorney-General’s Department, the forced marriage referrals received by the AFP have primarily involved Australian citizens, under the age of 18, with relatives alleged to have arranged, or to be arranging, a marriage for them overseas without their full and free consent. Requiring referrals to go through the specialist unit of the AFP may have been intended to ensure safety and increase prosecutions, but a perverse outcome is that vulnerable individuals may actually be less safe.

3.    The lack of civil law remedies, such as intervention orders, means that criminal proceedings are the only legal sanctions, limiting victims’ options for safety and protection.

4.    A result of depending solely on a criminal response is that many instances never come to the attention of government or services, and so a lot of data on prevalence, triggers and effective responses is missing. Without the wider net that more accessible services would cast, the evidence base needed to advocate for further policy intervention remains limited, creating a vicious circle.

A range of policy actors in government and community have been working to fill these gaps. Resources have trickled through for education and awareness programs in schools and communities (for example mybluesky.org.au), and the customised information through the national ‘violence against women’ hotline, 1800RESPECT.

Yet the problem remains: we are leaving many young women, girls, and others in dangerous and vulnerable situations because the policy response three years ago was such a narrow one. What went wrong?

There were strong international policy drivers[1] and a progressive government keen on gender equality at the national level. The policy was based in a gender equity and human rights framework, and the issue deserved to be a policy priority. However, that agenda was not broadly owned and understood by the community, and research was scant.

Service design for complex and emerging needs requires expertise from many sources, especially the community organisations that know most about the problem. Referral pathways appear to have been designed to bolster policing efforts to enforce the criminal legislation. Interest groups were consulted, but their advice in important areas such as the need for civil remedies and grass-roots access to services was not heeded.

Current responses

There were other gaps. Coordination between groups was not prioritised as networks were not funded. Yet collaboration is essential, and community organisations are currently investing their own resources in maintaining the state-based ‘Forced Marriage Networks’ of academics, services, communities, schools and specialist police units established in Victoria and NSW.

Community rights champions are asking us for more options for the young women who approach them for help to protect themselves, options that do not require working solely through the police. They need individualised accommodation, a holistic response prioritising continuing their education, peer-to-peer support to explore options including post-crisis, and an adequate crisis response by state child protection authorities. Appropriate responses are currently being identified but the need proper funding and an acknowledgement that this issue is complex; no one service can adequately address it.

Impetus for change is coming from many sources. The Victorian Royal Commission into Family Violence argued that forced marriage be recognised as a form of family violence in the Family Violence Act, meaning that the civil law remedy of intervention orders should soon be available to forced marriage victims. This will hopefully drive the federal government to review and augment its policy instruments so that young people threatened by forced marriage are protected from abuse and are empowered to choose their own futures.

For more information, download Good Shepherd’s policy position paper on forced marriage.

[1] For example; the Committee for the Status of Women (CSW60) Outcome document paragraph 15; Implementation of Beijing Platform for Action - Platform L is dedicated to the Girl Child; Committee for the Elimination of Discrimination Against Women (CEDAW) has various Articles related to child and forced marriage and associated discrimination and breaches of human rights.