The decision about whether to criminalize a harmful cultural practice or regulate it through civil legal remedies can be surprisingly complex and controversial.  In countries that have enacted contemporary forced-marriage laws, the civil-versus-criminal question has sparked fierce debate.  According to GJI director, Julia Alanen:

Proponents of criminalization argue that criminalizing the practice would simultaneously deter would-be perpetrators and empower victims to report by sending a clear message that forcing or coercing another person to marry is wrong… [Whereas] opponents assert that criminalizing forced marriage will only deter reporting and drive the harmful practice underground.  Victims will be dissuaded from seeking help or bringing allegations for fear of criminalizing or alienating their own parents and families. [i]

Even as Prime Minister David Cameron pushes to make forced-marriage a crime in the UK, forced-marriage survivor, advocate and Councilwoman Sameem Ali speaks out against criminalizing the harmful practice.  Armed with first-hand experience, cultural competency, and a keen understanding of immigrant communities that practice forced and early marriage, Ali is uniquely qualified to weigh in on this highly charged debate:

[I]t is because Ali understands these undertones, she is positive the UK government’s decision to criminalise the offence of forced marriage (which is for now a civil offence) will not help but hinder the situation. It would mean the parents and relatives can be put behind bars.  She thinks the Forced Marriage Protection Order, introduced in 2008 for England, Wales and Northern Ireland under the Forced Marriage (Civil Protection) Act 2007 is quite effective in dealing with the issue. [ii]

According to Ali, lack of early detection and prevention mechanisms are partly to blame for perpetuating harmful marriage customs:

When I did not return to school at the age of 13, why didn’t the school authority ask any questions; when I had a baby at the age of 14, the doctors, the nurses, not even the social services people asked my mother how I got pregnant. [ii]

In spite of her personal suffering, Ali says that “No young person wants to turn their parents in and get them into trouble.” [iii]  But, not all forced-marriage survivors share Ali’s stance.  Forced-marriage survivor and advocate Jasvinder Sanghera, who supports criminalization, asserts that victims will only report violations if they are made to understand that they bear no blame:

Victims are saying we need the full protection of the law … We’re trying to create a cultural responsibility here.  It’s our duty to bring this above ground.  If we look at countries where this is criminalised, such as Denmark and Germany, there has not been a decrease in reporting.  Unless people can show me there will be a drop, I want to see it criminalised.  This is an offence that is not to be tolerated, an offence that can – and does – end in violence, rape and murder.

Lord Lester, who introduced the UK’s Forced Marriage Act into Parliament and lobbied for its passage, has consistently advocated for a strictly civil approach.  The criminal process, he says, “has not proved to be an effective way of tackling a major social problem.” [iv]  Advocates on the frontlines of this issue – working directly with victims – tend to agree.  According to a spokesperson for Hemat Gryffe Women’s Aid, a Glasgow safe house for forced-marriage victims, “you cannot criminalise the family because then the women will not come forward.  They won’t want their parents or aunts or uncles put in jail.” [v]

The civil-versus-criminal debate is just beginning to percolate in the United States with respect to forced marriage.  GJI wants to know what you think?

[i] Alanen, Shattering the Silence Surrounding Forced and Early Marriage in the United States, Children’s Legal Rights Journal, Vol. 32, No. 2 (Summer 2012).
[ii] Zofeen Ebrahim, Forced marriage: Victims hate the crime, not their parents, DAWN.com (25th June, 2012).
[iii] Forced Marriage: Introducing a Social Justice and Women’s Rights Perspective (Aisha K. Gill & Sundari Anitha eds., 2011).
[iv] Honour Crimes, BBC Ethics Guide.
[v] Gareth Rose, Call to Prosecute the Husbands Who Knowingly Wed Forced-Marriage Girls, The Scotsman (Sept. 17, 2010).
Advertisements