The AHA Foundation Supports the Criminalization of Forced Marriage

Throughout the history of the AHA Foundation, we have come down firmly on the side of outlawing and criminalizing acts that violate the human rights of the women and girls we serve.  Today, we continue that philosophy by explaining why we believe it should be a criminal offense to force another person into an unwanted marriage.  This position is based upon the idea that in order to criminalize forced marriage in a responsible manner that minimizes harm and does the most to protect victims and those at risk, significant groundwork must first be laid.

Forced marriage happens right here in the US.  We know because women and girls from across the country regularly seek our help in avoiding unwanted marriages.  In addition, the AHA Foundation conducted a study in partnership with the John Jay College of Criminal Justice looking at forced marriage in New York City to begin to study the prevalence in the US.  The researchers interviewed CUNY students whose families originated from countries with a high incidence of forced marriage on their experiences with relationships and marriage.  Of those students interviewed, 84% knew of at least one person in their social circle who did not want to marry their partner but did so anyway.   Studies done by our sister organizations consistently tell the same story – forced marriage is happening here.

Even so, today in 2016, it is not a federal crime to force someone into marriage and very few states have legislation specifically protecting victims of forced marriage.  

To many, the position that criminalizing forced marriage is an important step in preventing forced marriages may seem a “no-brainer,” and that laws that protect possible victims should have been put in place a long time ago. You may be now shaking your head and wondering how it could be possible that forced marriage is not already banned in the US while research shows that an estimated 1,500 women and girls are married against their will every year in our country.

However, there are strong arguments against criminalization which must be considered.  One such valid argument against criminalizing forced marriage is that those being forced into marriage – in many cases daughters being forced into marriage by their parents – recoil at the prospect of their parents  being sent to jail.  There is no question that the internal struggle a daughter faces is made more painful and agonizing with the introduction of criminalization – if a daughter chooses to disobey parents in order to keep control of her life, she is aware that her decision could lead to imprisonment of her loved ones.  If the family also happens to be the victim’s primary social or economic support system, the choice to prosecute becomes even more difficult.  There are valid concerns that putting in place a criminal law against forcing an individual into a marriage will push victims underground, leading them to avoid seeking help they would have otherwise sought, in order to protect their parents from facing criminal consequences.  In short, it could do more harm than good to the very individuals the law seeks to protect.  

Additionally, there is a legitimate fear that communities which are already highly policed will only become more so with criminalization.  Our response to this is simple:  violence is violence and abuse is abuse; the rights of a victim should not be neglected or overshadowed by concerns of the possibility of misconduct by authorities.

These are just a few of the valid arguments against criminalizing forced marriage in the United States, all of which need to be considered and discussed at length among stakeholders prior to taking action on legislation.  The first such discussion took place this summer, hosted by the Tahirih Justice Center in Washington, DC.  Service providers, activists, and survivors gathered together to begin the process of hashing out the pros and cons of criminalization, with the intent of continued talks bringing in additional perspectives moving forward.

Despite legitimate arguments against criminalization of forced marriage, the AHA Foundation is firm in its position that specifically banning this horrific practice which robs girls of their futures is the correct course of action to take.  Laws matter in both prevention and enabling victims to seek justice for themselves after having been subjected to this human rights abuse.  Specific legislation also plays an important role in messaging; a criminal law against forced marriage would send a strong signal that this behavior is not acceptable in the United States, and it will not be tolerated.

The best possible benefit of legislation is a reduction in this harmful practice being committed, enabling individuals to choose their own futures who otherwise would not have been able.  We know anecdotally through our successful work enacting legislation against female genital mutilation (FGM) that families cite the presence of criminal laws against FGM as a reason they are unable or unwilling to cut their daughters.  We hope to see the same positive effect to occur with legislation against forced marriage.  Additionally, to paraphrase Nazir Afzal OBE, Chief Executive of the UK’s Association of Police and Crime Commissioners and former chief crown prosecutor, the capacity of a girl who does not want to marry to give her parents a strong objective argument against the practice is key.  The ability for a potential victim to say to her family “This is against the law, you could go to jail.” – against their plans to force her into a marriage are likely stronger than more subjective ones – “This is wrong.  This is harmful to me.”

Unfortunately, it’s not as easy as simply convincing legislators to enact a criminal law prohibiting forced marriage.  To act responsibly, the United States must look to others, such as the United Kingdom, which have taken these steps before us, to learn from their examples.

Without civil remedies put in place first, such as the UK’s Forced Marriage Protection Order, criminal legislation against forced marriage is very likely to hinder victims from seeking help.  In the UK, there is a specific protection order that can be obtained for someone being threatened with a forced marriage or who is already in a forced marriage, and is designed to help an individual according to their specific needs.  For example, if a person is at risk of being taken overseas for a forced marriage, the Forced Marriage Protection Order issued on their behalf may specifically prohibit international travel for them, and may require their passport be surrendered to the court.

Not only must they be able to get an order of protection, but – except for in extreme cases where the risk is deemed too great – victims must have the option of only proceeding on a civil level, and not moving on to a criminal complaint, unless they so choose.  Therefore, it is imperative that any criminal legislation is preceded by the existence of civil legislation, and that except in cases of great risk, the victim must be given the choice to pursue civil and not criminal remedies if that is their preference.  The existence of a non-criminal avenue of help, and the option of only using criminal courts if absolutely necessary and/or desired by the victim, should help negate the possibility of pushing those at risk away from seeking assistance.

Significant national resources must be devoted to combating forced marriage prior to criminal legislation.  As an example, formal coordination on a national and international level, similar to the UK’s Forced Marriage Unit, specifically set up to combat forced marriage, is warranted and needed.  A government-supported national hotline would give victims a way to reach that available help.  Education for the general public, victims, and those who would assist victims (e.g. judges, prosecutors, shelters, law enforcement, etc.), or come into contact with them, on the nature of forced marriage, its presence in the United States, and appropriate short- and long-term steps to take when a case is known or suspected is key.  

The above list of necessary steps prior to criminalization is not exhaustive, and further consultations are critical.  The time and resources that must be devoted at each step of the process are significant.  Undoubtedly, this is a major undertaking.  However, each step, from educating the public, to ensuring better resources for victims, to creating civil remedies that could be implemented prior to or en lieu of a criminal remedy, are steps that make the US a safer place for women and girls.  Each step along the way is a victory towards ending forced marriage in the United States.

We have the rule of law here, and laws matter.  Let’s make sure our laws are doing their job in protecting women and girls from forced marriage.  Let’s work towards defining forced marriage for what it should be – criminal.