The British government has decided to supplement the forced marriage civil protection regime with additional criminal offences. This is the second time that proposals to criminalise forced marriage have been advanced by a government. They were rejected in favour of a civil protection regime under New Labour. There is a suggestion that the civil protection regime is inadequate to properly address forced marriage, but the simple fact of the matter is that we do not have enough empirical research on the prevalence of forced marriage or on the operation of the civil protection regime to judge. Experienced grassroots women’s organisations are deeply divided on the government’s proposals, with some contending that the new crime would help inform individuals about their legal entitlements, enact a deterrant and enable young people at risk of forced marriage to invoke the new crime in resisting family pressure, while others argue that fear of criminalising their families will deter young people from coming forward (Aisha Gill’s research is especially useful here and see the Ashiana Support Network’s consultation response). Lawyers worry that criminalisation will also undermine the exisiting forced marriage civil protection regime, particularly given the government cutbacks in civil legal aid (see this very detailed response from the Family Justice Council). There is, of course, overwhelming consensus that a criminal offence can achieve very little unless it is part of an appropriate network of education, support, frontline response and enforcement.
Sending a message
It is especially important to address the argument that a specific offence of forcing another into marriage will have some symbolic or communicative value even if it is not used to ground an effective scheme of investigation, prosecution, conviction and victim support because it may be a valuable tool in emphasising the centrality of consent to a valid marriage at English law – it will ‘send a message to these communities’. The implicit argument here is that previous efforts at public dialogue about forced marriage have already essentially failed, and that rather than redoubling government efforts to invest in communication with affected individuals and communities (see this report from Imkaan), we have reached the point of last resort where only the threat of criminalisation will suffice.
One of the key justifications for criminalisation is the assumption that forced marriage is essentially a problem of belligerent and backward individual adherence to foreign culture. This exoticisation of forced marriage allows the government to propose ‘solutions’ – such as criminalisation – which assume that the government should focus its attention on regulating individual behaviour; individual coercion, choice, acts of violence and so on. But further attention must be paid to the social, economic and – perhaps most of all – governmental factors which intersect with cultural expectations to produce the conditions within which forced marriage takes place. For instance, legal scholars and activists working with minority women have repeatedly emphasised that factors firmly within the government’s control interact with religious and cultural practice to create opportunities for coercion of vulnerable women and men and to inhibit their ‘exit’ from unwanted marriages. These include the erasure of secular community spaces in consequence of government funding of faith-based community groups and punitive immigration policies which render migrant women and men intensely vulnerable to familial pressure and violence. They also include the patent underfunding of specialist domestic violence services. Casting forced marriage as something similar to but essentially ‘other than’ domestic violence – requiring its own offence and regulatory framework – tends to occlude the fact that this government does not give adequate support to the organisations best placed to support vulnerable individuals in negotiating marriage choices against a background of familial and community pressure and expectation (statutory bodies have time and again fallen short in their responses). In consequence, it appears that the government’s policy is to inform young people and equip them with the knowledge to resist unreasonable pressure, without doing very much to provide practical help which can concretise their decision.
‘Finally’ taking forced marriage seriously
It is often argued that that the criminalisation of forced marriage should be understood only as an ‘add on’ to the civil protection regime, and that it is necessary to fill a yawning gap in the law. But in a short few years, forced marriage – and indeed the family life of South Asian Britons in particular – has become the subject of a significant regulatory web, involving aspects of family law, child law, the law of vulnerable adults, criminal law and immigration regulation (see Quila v Secretary of State for the Home Department  UKSC 45). We need to wonder why the hyper-regulated space of South Asian family life is so often presented as apart from and untouched by law.
Only a human rights issue?
Forced marriage presents very serious human rights issues, but it is by no means clear that the government understands it solely on those terms. Consider, for example, David Cameron’s famous Munich Security Conference speech, which cast ‘failed multiculturalism’ as the root of youth radicalisation and extremism.
In the UK , some young men find it hard to identify with the traditional Islam practiced at home by their parents, whose customs can seem staid when transplanted to modern Western countries. But these young men also find it hard to identify with Britain too, because we have allowed the weakening of our collective identity. Under the doctrine of state multiculturalism, we have encouraged different cultures to live separate lives, apart from each other and apart from the mainstream. We’ve failed to provide a vision of society to which they feel they want to belong. We’ve even tolerated these segregated communities behaving in ways that run completely counter to our values. So, when a white person holds objectionable views, racist views for instance, we rightly condemn them. But when equally unacceptable views or practices come from someone who isn’t white, we’ve been too cautious frankly – frankly, even fearful – to stand up to them. The failure, for instance, of some to confront the horrors of forced marriage, the practice where some young girls are bullied and sometimes taken abroad to marry someone when they don’t want to, is a case in point. This hands-off tolerance has only served to reinforce the sense that not enough is shared. And this all leaves some young Muslims feeling rootless. And the search for something to belong to and something to believe in can lead them to this extremist ideology. Now for sure, they don’t turn into terrorists overnight, but what we see – and what we see in so many European countries – is a process of radicalisation.
Forced marriage, on the PM’s reading takes on symbolic value – as the ultimate expression of threatening difference: threatening not because it is simply ‘other’, but because it is the sort of thing that families who breed terrorists do. The state’s response to forced marriage, on this understanding becomes a high watermark for liberalism, but deep liberal questions of tolerance are here co-opted for a counter-terrorist agenda. Questions of family law, community government, criminalisation and counter-terrorism are by now so tightly bound up in one another that it is hard to tell where one ends and the other begins.