Marriage Trafficking

Women in Forced Wedlock

Kaye Quek

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781317216025
• Edition: 1
• Topic: Politik & Internationale Beziehungen
• Subtopic: Politik

This book examines the traffic in women for marriage, a phenomenon that has been largely overlooked in international efforts to address the problem of human trafficking. In contrast to current international and state-based approaches to trafficking, which tend to focus on sex trafficking and trafficking for forced labour, this book seeks to establish how marriage as an institution is often implicated in the occurrence of trafficking in women.

The book aims firstly to establish why marriage has tended not to be included in dominant conceptions of trafficking in persons and secondly to determine whether certain types of marriage may constitute cases of human trafficking, in and of themselves. Through the use of case studies on forced marriage, mail-order bride (MOB) marriage and Fundamentalist Mormon polygamy, this book demonstrates that certain kinds of marriage may in fact constitute situations of trafficking in persons and together form the under-recognised phenomenon of 'marriage trafficking'. In addition, the book offers a new perspective on the types of harm involved in trafficking in women by developing a framework for identifying the particular abuses characteristic to marriage trafficking. It argues that the traffic in women for marriage cannot be understood merely as a subset of sex trafficking or trafficking for forced labour, but rather constitutes a distinctive form of trafficking in its own right.

This book will be of great interest to scholars and postgraduates working in the fields of human rights theory and institutions, political science, international law, transnational crime, trafficking in persons, and feminist political theory.

1
The exclusion of marriage from international conceptions of human trafficking

Human trafficking is today a major focus of the international rights community, yet in the extensive body of international agreements and initiatives designed to address the problem, there is limited recognition of marriage as a potential type of trafficking in women. Instead, international efforts have tended to be concerned with trafficking in the context of prostitution and, increasingly, forced labour, with other forms of exploitation largely excluded from dominant conceptions of the issue (Scarpa 2008; also see Lee 2011, 38–39; UNODC 2009, 6; 2014, 34). Since the late 2010s, the UNODC, the UN branch charged with monitoring the global occurrence of trafficking, has noted with concern the narrow focus of existing international approaches to trafficking in persons. In its 2009 Global Report on Trafficking in Persons, the office cautioned that a consequence of the current emphasis on prostitution and forced labour has been the ‘under-report[ing]’ of other forms of trafficking, including in the context of marriage (UNODC 2009, 6; also see UNODC 2017). The set of international laws that specifically deal with the crime of human trafficking (e.g. UN 1949, 1979, 2000) is a prominent example of this trend. The relevant treaties establish norms for the prevention and prosecution of trafficking, as well as for the protection of victims (Raymond 2002; UNODC 2017), but fail, by and large, to explicitly identify marriage as a possible source of the contemporary traffic in women.

This chapter examines the tendency to exclude marriage from prevailing conceptions of trafficking in persons that exists at the levels of international human rights law and norms, as well as state-based policy and legislation. It focuses on international approaches to trafficking created under the auspices of the UN, and in the US and the UK to demonstrate the very limited extent to which marriage has been linked to the traffic in women in these spheres of governance. At the same time, the chapter seeks to provide an explanation for why marriage has tended to be omitted from existing trafficking frameworks. It contends that, in the case of both state and international initiatives, the tendency to overlook marriage can be traced to the liberal notion of the public/private distinction and to the privileged or special status that has been afforded to the institution of marriage in Western legal traditions and societies (Anderson 2016, 177; Pateman 1988; also see Auchmuty 2004; Hasday 2000, 2009). Taken together, these concepts construct marriage as beyond the realm of state interference and obfuscate recognition of how marriage can be implicated in the problem of human trafficking.

The non-inclusion of marriage in international law on human trafficking

A survey of the major international legal instruments that deal with trafficking in persons demonstrates the tendency to exclude marriage from dominant conceptions of the problem. For example, marriage is simply not mentioned in the 1949 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, the first UN treaty to address human trafficking. The convention, which was only achieved as a result of ardent feminist campaigning at the time (Jeffreys 1997, 306), calls on states to punish ‘any person who… [p]rocures, entices or leads away, for purposes of prostitution, another person’ and anyone who ‘[e]xploits the prostitution of another person’ even if consent has been given (UN 1949, Article 1). The treaty does not consider ‘private’ or non-commercial forms of exploitation, such as marriage, as possible kinds of trafficking in women alongside prostitution.

A similar set of characteristics is evident in the more recent 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), wherein the traffic in women is directly addressed. Also known as the Women’s Convention, the treaty represents the most comprehensive legally binding international agreement dealing with gender-based discrimination such that it is often described as a women’s bill of rights (UN Women 2009). Trafficking is examined in Article 6 of the document, which requires state parties to ‘take all appropriate measures, including legislation, to suppress all forms of traffic in women’ (UN 1979, Article 6). The only form of trafficking noted, however, is the ‘exploitation of prostitution of women’ (UN 1979, Article 6). As is the case in the 1949 convention, marriage is not explicitly recognised as a potential type of trafficking in and of itself, with the focus primarily on commercial sexual exploitation in the context of prostitution.

The exclusion of marriage from international approaches to human trafficking is most prominent, however, in the most recent international anti-trafficking law, the 2000 Palermo Protocol. Significantly, the Protocol goes much further than its predecessors in accounting for the different purposes for which a victim may be trafficked. In addition to prostitution, it lists numerous other practices, such as forced labour, as common or possible types of trafficking in persons. Article 3a of the treaty identifies the exploitative purposes of trafficking as ‘including, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs’ (UN 2000, Article 3a). Yet even in this more inclusive account of the variety of forms that contemporary trafficking takes, marriage is not specifically considered.

The aim of this discussion is not to criticise the body of international anti-trafficking instruments per se, which represents hard-fought victories by feminist and women’s rights activists of past and present eras (see Jeffreys 1997, 306; Raymond 2001; Reilly 2013). The fact that the treaties exist at all is a testament to the persistence and determination of numerous women’s rights activists extending over the period of the last century, and their commitment to ending the most prevalent form of trafficking in women, in sex trafficking or trafficking for prostitution. At the same time, however, and as this book seeks to show, it is increasingly apparent that there exists a phenomenon of trafficking for marriage, which is yet to fully recognised by the international community. The tendency to focus the issue of human trafficking on public sphere, commercial forms of exploitation – as exemplified by international anti-trafficking laws – serves to impede recognition of the way that some marriage practices operate as sites of trafficking in women despite not being explicitly identified as such in international legislation.

The exclusion of marriage from existing international anti-trafficking laws can be contrasted with the approach taken in the Draft Convention Against Sexual Exploitation (CASE), which was developed in the early 1990s at the peak of the ‘women’s human rights’ movement (see Reilly 2013). CASE was created in consultation with women’s organisations worldwide from 1991–1993, under the leadership of then Coalition Against Trafficking in Women (CATW) director Kathleen Barry (Defeis 2000, 323; also see Barry 1995, 304–305). CATW is an anti-trafficking NGO that has consultative status with the UN Economic and Social Council. The aim of CASE was to fill the absence in international law of an inclusive, legally binding treaty that protects women from sexual exploitation in all its forms (Defeis 2000, 321). The draft convention was never adopted as an instrument of international law through the UN; however, its comprehensive approach to the sexual exploitation of women is useful in demonstrating how an international treaty might address abuses of women’s human rights that occur in certain kinds of marriage.

For example, unlike existing treaties on trafficking in persons which focus primarily on public manifestations of sexual exploitation (e.g. prostitution), CASE seeks to capture private forms of female sexual exploitation and calls on state parties to end such abuse. Legal theorist Elizabeth Defeis (2000, 323) notes, ‘CASE specifically addresses private sexual subordination of individual women and violence against women that escapes direct condemnation’ in earlier treaties seeking the protection of women’s rights. The draft convention is thus explicit in its identification of particular forms of marriage as being based on the sexual exploitation of women. Article 2 specifically names ‘[t]emporary marriage or marriage of convenience’ as common forms of female sexual exploitation, while Article 4 recognises victims of ‘forced and child marriages’ as especially vulnerable to sexual exploitation (Barry 1995, 326–328). MOB marriage, too, is addressed in the draft convention, which establishes in Article 10 that ‘persons or enterprises will be prohibited from and punished for promoting, profiting from, or engaging in any business involving the matching of women in marriage to foreign nationals’ (Barry 1995, 331). The convention falls short of explicitly identifying these examples of marriage as a type of human trafficking. Its broader concern, nonetheless, for private-sphere practices of harm to women illustrates a framework in which the exploitation of women in marriage is included alongside more public and commonly identified types of sexual exploitation.

CASE is equally notable for the definition of sexual exploitation that it provides. The draft convention describes ‘sexual exploitation’ as ‘the practice by which person(s) achieve sexual gratification or financial gain or advancement through the abuse of a person’s sexuality by abrogating that person’s human right to dignity, equality, autonomy, and physical and mental well-being’ (Barry 1995, 326). As Barry (1995) explains, the intention in the document is to ensure that the sexual exploitation of women is recognised whether it takes place in the public or private sphere and regardless of whether it is commercial in basis. She states that in the draft convention, as is often the case in women’s lives, exploitation ‘can be as specific as sexual gratification or as concretely material as financial profit’ (Barry 1995, 305). Current international law on trafficking (the Palermo Protocol) identifies ‘purposes of exploitation’ as the most significant aspect of the crime of trafficking in persons (Raymond 2001, 5). That is, according to the Protocol, trafficking (only) occurs when the movement of a victim takes place for the specific purpose of enacting her or his exploitation (see UN 2000, Article 3a). Where the Palermo Protocol resists putting forward a detailed definition of ‘exploitation’ – preferring to leave this to individual states – the draft convention is instead instructive. By recognising the private, non-commercial exploitation of women in marriage together with public forms of sexual abuse, CASE demonstrates the more inclusive framework that is required if trafficking in women in all its forms – including those related to marriage – is to be meaningfully addressed in international law.

The potential to recognise marriage trafficking using existing international law

As the earlier section explains, current international law does not explicitly identify marriage as being linked to trafficking in women. However, there remains great potential for harmful forms of marriage to be addressed as trafficking under the terms of the 2000 Palermo Protocol, the most recent piece of international legislation on human trafficking. The suitability of the Protocol as a means to combat certain marriage practices relates to the particulars of the language used in the treaty, which allows for a range of circumstances to be captured by the law beyond those specifically listed in its terms.

The potentially inclusive basis of the Protocol is outlined most clearly in the Legislative Guide to the agreement provided by the UNODC (2004), which contains explanatory notes for policymakers on how the treaty should be incorporated into domestic law. For instance, with regard to the movement of victims – which the Protocol establishes as one of three key elements in the trafficking process (UN 2000, Article 3) – the guide makes clear that the law does not discriminate against internal or domestic cases of trafficking. In other words, the movement of a victim is not required to take place across an international border but can occur within one country (UNODC 2004, 259). In relation to marriage, the Protocol thus has the potential to capture practices such as forced marriage in Britain and Fundamentalist Mormon polygamy in North America, where the relocation of a victim may occur within or between cities and towns, and may not involve crossing into another country (see Chapters 5 and 6). At the same time, the Legislative Guide observes that, while the Protocol supplements the 2000 UN Convention Against Transnational Organised Crime, there is no requirement that an organised criminal group be involved in the process. Rather, the crime of trafficking can be perpetrated by any one individual or, for that matter, any kind of group (UNODC 2004, 259; also see Scarpa 2008, 61). In the forms of marriage examined later in this book, the fact that MOB agencies, victims’ families or religious leaders may fulfil the role of traffickers (rather than criminal groups) does not, therefore, necessarily prevent such situations from constituting trafficking in persons.

The language used to describe ‘exploitation’ in the Protocol too is significant in terms of its capacity to address particular marriage practices as trafficking. Importantly, the phrase ‘at a minimum’ is used in the Protocol’s description of the various exploitative purposes for which trafficking may occur. Article 3a states, ‘Exploitation’ includes ‘at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs’ (UN 2000, Article 3a; emphasis added). As legal theorist Silvia Scarpa (2008, 5) notes, the phrase ‘at a minimum’ was included to account for other types of trafficking in persons, beyond those listed, that are new and/or previously unrecognised but which otherwise meet the criteria for trafficking established in the law. As a result, although marriage is not explicitly identified as a possible end-purpose of trafficking, there remains scope within the treaty for situations of marriage trafficking to be captured by the law.

Consent and the forced/free distinction

The approach to ‘consent’ established in the Palermo Protocol is an additional factor that underlines the potential for situations of marriage trafficking to be addressed by the treaty. The crucial point here is the insignificance that the Protocol attributes to the ‘consent’ of a victim in determining whether or not a situation or practice is constitutive of trafficking. The legislation makes clear that whether or not a victim consents to circumstances involving his or her exploitation is a factor that should not be taken into account when assessing if the crime of trafficking has occurred. Article 3b asserts, ‘The consent of a victim of trafficking in persons to the intended exploitation… shall be irrelevant where any of the means [outlined in the Protocol] have been used’ (UN 2000, Article 3b). The immateriality of consent is further explained in the Legislative Guide (UNODC 2004). The document notes, ‘Once it is established that deception, coercion, force or other prohibited means were used, consent is irrelevant and cannot be used as a defence’ (UNODC 2004, 270).

The irrelevance of consent established in the treaty is the most controversial aspect of the definition of trafficking put forward in the law and was heavily debated during the negotiation process in Palermo, Italy, in December 2000 (see Raymond 2001, 2002; Scarpa 2008). As Janice Raymond (2001, 4) explains, while some governments and NGOs argued in favour of a definition of trafficking that sought to encompass all victims and ‘not just those who could prove they had been forced’, a small group of pro-prostitution or ‘sex work’ NGOs ‘lobbied to limit the definition of trafficking to forced or coerced trafficking’ (also see Lee 2011, 28; Scarpa 2008, 59). These groups sought an understanding of trafficking based on a forced/free distinction – that is, the idea that a clear distinction can be made between ‘forced’ and ‘free’ prostitution. From this perspective, the consent of a victim is considered to negate the term ‘trafficking’ from being applied. Also known as the ‘sex work’ position, the approach of such pro-prostitution groups emerged in the 1990s and early 2000s as the dominant perspective in academic writing on trafficking and prostitution (Doezema 1998, 35; Jeffreys 2006, 66; 2009, 316). However, in relation to the treaty, it was decided by a majority of countries that such a definition was too narrow and placed the burden of proof on victims to show that they had been subjected to force (Raymond 2001, 4). As a consequence, an understanding of ‘consent’ was adopted in which it is recognised that a range of coercive means – both physical and non-physical – can be used to achieve the consent of a victim, and that the existence of consent does not necessarily preclude the exploitation of a victim from occurring.

The approach to consent established in the Protocol creates scope for some forms of marriage to be identified as instances of trafficking in women under the terms of the treaty. Its approach to consent is significant because, in most cases of marriage trafficking, victims outwardly ‘consent’ to an unwanted marriage or give their consent as a result of a position of vulnerability, which may include economic vulnerability or fear of the repercussions (social, physical, emotional and financial) that their refusal would entail (see Chapters 4, 5 and 6). To limit trafficking to situations in which there is overt physical harm and force, and a clear lack of consent, is to thus exclude many practices of harmful marriage from being considered as constitutive of the crime of trafficking in women. The insignificance of consent, asserted in the Protocol, is in this way crucial in allowing for the possibility for certain types of marriage to be identified as criminal within the existing trafficking framework.

There are broader circumstances, beyond the terms of the Palermo Protocol itself, which further highlight the potential for marriage to be recognised as a type of contemporary trafficking by the international community. For instance, there exists some precedent in international law in which marriage is critically examined and defined as a problem linked to slavery. One prominent example is the 1956 UN Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, which includes a clause that identifies customs of forced marriage as a ‘practice similar to slavery’ (UN 1956, Article 1). Article 1 of the treaty compels states to ‘take all practicable and necessary legislative and other measures’ to bring about ‘the complete abolition or abandonment’ of ‘[a]ny institution or practice whereby’ a woman without the right to refuse is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group (UN 1956, Article 1). The convention does not consider marriage (or rather, forced marriage) as a problem of trafficking per se. It does, however, provide an example of a legal instrument in which the international community directly and explicitly condemns abuses of women’s rights in the private sphere of marriage.

In addition, there are instances in more recent international human rights documents in which marriage and the traffic in women are, to some extent, linked. The 1995 Beijing Platform for Action, which puts forward an agenda f...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• List of tables
• Acknowledgements
• Introduction
• 1 The exclusion of marriage from international conceptions of human trafficking
• 2 Connecting marriage and the traffic in women
• 3 More than the sum of its parts: theorising marriage trafficking as sexual, domestic and reproductive exploitation
• 4 Prostitution ‘plus’: trafficking women through the online mail-order bride (MOB) industry
• 5 Familiar trafficking? Forced marriage in the UK
• 6 Trafficking in the name of God? Fundamentalist Mormon polygamy
• Conclusion
• Bibliography
• Index