Forced Marriage

Introducing a Social Justice and Human Rights Perspective

Aisha Gill, Sundari Anitha, Aisha Gill, Sundari Anitha

• Publisher: Zed Books
• Year: 2012
• ISBN:
  9781780321394
• Edition: 1
• Topic: Social Sciences
• Subtopic: Gender Studies
• Index: Social Sciences

Forced Marriage: Introducing a social justice and human rights perspective brings together leading practitioners and researchers from the disciplines of criminology, sociology and law. Together the contributors provide an international, multi-disciplinary perspective that offers a compelling alternative to prevailing conceptualisations of the problem of forced marriage. The volume examines advances in theoretical debates, analyses existing research and presents new evidence that challenges the cultural essentialism that often characterises efforts to explain, and even justify, this violation of women's rights. By locating forced marriage within broader debates on violence against women, social justice and human rights, the authors offer an intersectional perspective that can be used to inform both theory and practical efforts to address violence against diverse groups of women. This unique book, which is informed by practitioner insights and academic research, is essential reading for practitioners and students of sociology, criminology, gender studies and law.

Part 1

Definitions, contexts and theoretical concepts

1

Understanding forced marriage: definitions and realities

Geetanjali Gangoli, Khatidja Chantler, Marianne Hester and Ann Singleton*

This chapter explores debates around the conceptualisation and definition of forced marriage primarily in the UK, but also at an international level. The reasons for doing so are twofold. First, forced marriage can sometimes, though not always, take place across international borders and, second, international conventions, definitions and understandings of forced marriage have, or at least should have, an impact on British policy and practice. This broader outlook also facilitates a deeper understanding of the complexities of forced marriage, thus helping to resist simplistic explanations of this issue, including the unrepresentative and unfair association of forced marriage with particular ethnic communities and its often wrong conflation with arranged marriage. As the title of the chapter suggests there are often tensions between definitions and the experiences of victims/survivors of forced marriage, a theme we will attempt to explore further here. The chapter draws on key arguments linked to the forced marriage debate and interrogates what each perspective contributes to our understandings of forced marriage. These domains are: (a) the human rights field, (b) the role of multiculturalism, particularly the place of honour, and (c) the violence against women movement and its feminist framing. These three themes are closely interrelated and do not form discrete domains, but each nonetheless offers a useful point of interrogation that is instructive to the formulation of a nuanced and complex definition, whilst also being aware of the exclusions of any definitions one might adopt. We locate the UK debates on forced marriage within these wider discussions to allow for a broader set of issues to be considered in developing a more finely tuned understanding of forced marriage within the UK. This definition will include an understanding of both structural and cultural bases of forced marriage, and allude to the importance of control and consent over both entry and exit into and from marriage to define forced marriage.

Forced marriage as a human rights issue

It has been argued that forced marriage violates a number of international human rights instruments and standards. From a human rights perspective, ‘Marriage shall be entered into only with the free and full consent of the intending spouses’ (Universal Declaration of Human Rights, Article 16 (2)). This indicates that marriages entered into where there is no free or full consent are considered an abuse of human rights. At face value, this seems perfectly acceptable and indeed forms the cornerstone of the UK definition of forced marriage which is ‘a marriage in which one or both spouses do not (or, in the case of some adults with learning disabilities, cannot) consent to the marriage and duress is involved. Duress can include physical, psychological, financial, sexual and emotional pressure’ (Foreign and Commonwealth Office 2005, 8). Within both the human rights framework and the UK definition, the issue of consent is central. The UK definition also acknowledges the role of duress and the ways in which this serves to curtail consent. The introduction of duress should also serve to signpost forced marriage as a particular type of violence against women (discussed later). In this section however, we focus on the issue of consent.

A number of writers (e.g. Anitha and Gill 2009; Chantler et al. 2009; Gangoli et al. 2006) have argued that establishing full and free consent in all cases of marriage can be problematic. The issue of consent and its relationship to duress or coercion is discussed very well by Anitha and Gill (2009). Their central argument is that the subject brought to mind in these debates is that of an autonomous, independent, rational being which elides class, gender and racialised positionings, thus extracting consent from the contexts in which it takes place. This position is also presented in Chantler et al. (2009), where it is argued that women’s ability to consent can be mediated by factors such as poverty, for example in the context of bride price, where women are often positioned as conduits for family survival. The notion of consent is further complicated by the definition of forced marriage (Forced Marriage Unit 2008) which counterposes arranged marriages with forced marriage, with arranged marriages, the latter constructed as an acceptable marriage practice in that it requires the consent of both parties. The separation of the two is clearly an attempt at accepting diverse cultural practices, but this dichotomy serves to make invisible some of the more subtle forms of coercion that can sometimes result in a ‘slippage’ between arranged and forced marriages. Further, the vocabulary of ‘forced’ marriage is relatively recent, but it is important to note that degrees of coercion have been accepted as the norm within some scholarship on arranged marriages, particularly in the Indian subcontinent (Wadley 1980; Derné 2005). So, whilst we understand the move to extricate forced marriage from arranged marriage practice, we must also be mindful of what the binary that has now emerged occludes.

Another important issue within the consent debate is that of timing. Existing definitions of forced marriage tend to focus on whether one or both spouse had the right or the ability to choose the marriage at the time of entry into the marriage (Samad and Eade 2002). However, as we will see later, women are often unable to exit forced marriages because of continued gender surveillance after marriage, social norms against divorce in some communities, and immigration control in the case of immigrant women.

Importantly, any discussion of marriage whether based on love, arrangement or force presupposes what Hester et al. (2008) recognise as ‘compulsory heterosexuality’. This follows from feminists’ theorisation on the commonality of women’s oppression within marriage, across ethnicity, race and class (Barry 1979; Mackinnon 1987), and Adrienne Rich’s (1980) understanding of compulsory heterosexuality. This is the assumption that women and men are innately only and always attracted to each other emotionally and sexually and as such that heterosexuality is both normal and universal. Rich has suggested that compulsory heterosexuality, far from being natural, is a violent political institution making way for the ‘male right of physical, economical, and emotional access and marriage’ (Rich 1980, 26). Within this understanding, all marriages, indeed all heterosexual relationships, are coerced, and Kathleen Gough, in her elucidation of her comprehensive list of ways that men control women, cites arranged marriage as an example of using women ‘as objects in male transactions’ (p. 19), along with the sale of women into prostitution. Far from positioning certain cultures as problematic, Rich allows us to understand how different cultures and ethnicities use marriage as a way to control women in varied ways. From this perspective then, it can be argued that all forms of marriage constitute ‘force’ to varying degrees. Here the hegemonic effect of socio-cultural expectations is that women are schooled to be ‘willing victims’ of marriage and hence the issue of ‘consent’ is already compromised.

The other issue raised about compulsory heterosexuality is that it is against lesbian, gay, bisexual and transgender (LGBT) sexualities and relationships, and this is evidenced by the pressure on gay and lesbian communities from all ethnicities to enter into heterosexual relationships and marriages. Forced marriage therefore becomes a way to control non-heterosexual sexuality. Hester argues that control both of sexuality and of the sexualisation of women is central in male control over women through compulsory heterosexuality and within marriage (1992).

Notwithstanding these complications around the notion of consent and the slippage between arranged and forced marriages, thus far we have been discussing forced marriage as an abuse of human rights at an individual level. More recently, there has been another important shift as seen in forced marriage in Sierra Leone where forced marriage was designated as a crime against humanity. In April 2004, the Special Court for Sierra Leone responded to the forced marriages of women to rebel forces during the conflict in Sierra Leone by creating a new crime against humanity, namely the crime of forced marriage. Forced marriage in that context was seen as a systematic and widespread attack on a civilian population. The crime of forced marriage was created using the following four rationales: first, that the international community has already recognised the different acts involved (such as abduction, sexual violence, torture) as crimes against humanity; second, that the international community has a vested interest in protecting marriage and the family, and forced marriage is a perversion of both; third, that a marriage is invalid without the consent of both parties; and finally, that forced marriage is distinct from arranged marriage, as in the latter the intending spouses delegate their rights to choose to their family, while in the former the spouses have no right to choose. With regard to arranged marriage, it is argued that it is not a ‘crime against humanity’ even where consent may be diluted or imperfect (for example, one of the spouses not being able to consent or object because of a mental illness), because it is not an attack on a civilian population but is done to assist the population, and parents are acting out of benevolent motives, including protecting their children’s welfare and perpetuating social and cultural values (Scharf and Mattler 2005). Within this logic, only the specific form of forced marriage that may take place in the context of war or conflict may be defined as a crime against humanity. The human rights discourse in this case does not enter into what has been defined as the slippage between forced and arranged marriage (Gangoli et al. 2006), as the focus is not on individual rights but on community rights. However, it has been argued that the human rights discourses on marriage can also include in some cases the rights of parents, and rights of communities to preserve their identity; therefore there can be a conflict between the rights of young persons and the rights of families (Stobard 2002).

However, many activists argue that all forced marriages violate human rights conventions, as the consent of the intending spouses is crucial. Others argue that human rights violations are most obvious in cases of child marriages, as under international law, children cannot consent and early marriage denies children their human rights under the United Nations Convention on the Rights of the Child (Gangoli et al. 2009; Outtarra et al. 1998).

The issue of forced marriage is also linked to human rights in the context of using immigration to control or reduce forced marriage in the UK and elsewhere in the EU. Hester et al. (2008) investigated the possible impact of increasing the age for sponsorship on a marriage visa from 18 to 21 in the UK, and found that some participants responded to the proposal as an attack on the human rights of minoritised communities, arguing that it would be contentious in relation to race equality and social cohesion, and would deny the right to family life in the UK until both sponsor and incoming spouse reached 21. This finding links to the concerns and evidence from other countries in the EU which suggest that increasing the age has had a disproportionate effect on minoritised communities and has increased racial tension (Phillips and Dustin 2004). The increase in age therefore can be seen as an attack on particular communities, such as South Asian communities, which typically have younger marriage ages than white mainstream communities and where individuals are more likely to marry partners from outside the EU.

While there is clear evidence that forced marriage has many human rights implications, for example in the area of immigration control, child protection or where forced marriage takes place in the context of war or ethnic conflict, there are limitations to using the human rights approach in all cases, as the focus in human rights debates can be on the violation of community rights rather than the rights of individuals. However, the strongest case for individual rights is covered under the requirement for consent, although as argued above consent is not a straightforward concept and cannot be taken at face value.

Forced marriage and multiculturalism

In the UK and elsewhere in Europe, forced marriage is often conceptualised as a form of violence endemic to, or most relevant to, the experiences of particular ethnic communities, religions and cultures. Within these debates, two (largely unhelpful) ideas are particularly persistent: first, ‘clash of culture’ between first-generation and second-generation immigrants; and, second, forced marriage as a crime of honour. These ideas work to reify specific minority communities in a way that casts forced marriage as a purely cultural issue which is difficult to intervene in to protect victims. Indeed, a purely cultural lens on forced marriage does not even ‘see’ victims, since women (and men) subject to forced marriage are constructed as (happily) abiding by their cultural norms rather than as victims.

Mike O’Brien, debating in the House of Commons on women’s human rights in 1999, said, ‘Multicultural sensitivity is not an excuse for moral blindness.’ This statement assumes that a focus on, and acceptance of, difference between communities could b...

Table of contents

• Cover
• About the Editors
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• Foreword
• Introduction: framing forced marriage as a form of violence against women
• Part 1: Definitions, contexts and theoretical concepts
• Part 2: Policy and practice
• About the contributors
• Index