“A clear gap” in forced marriage legislation


By Nima Green

Professor Jennifer Burn, the Director of the Anti-Slavery Project, a specialist legal research and policy centre, says the Federal Government should consider implementing stronger measures to prevent forced and servile marriages occurring in Australia.  Currently forced marriage isn’t defined in Australian legislation, making prosecution difficult for authorities.

“There’s been a clear gap when we look at those provisions because we haven’t dealt yet with criminalising practices similar to slavery, such as servile marriage…[We should] be looking at developing a consensus of protocol.” she said.

The Federal Attorney General’s Department is now undergoing a consultation review, into a discussion paper specifically on forced and servile marriage. At present, there are a range of laws to prevent a person from being sold, transferred or inherited into a marriage, but these laws relate to kidnapping or human trafficking.  New proposals include specific offences targeting those who coerce or use threats to bring about a marriage, as well as increasing the use of protection orders, which can be used by a court to protect victims from being forcibly removed from Australia.

In many of the submissions to the Attorney General, concern has been expressed over the lack of clarity over both the definitions of the offences, as well as over which authority has jurisdiction over particular cases.

Dr Robyn Gregory of Women’s Health West, a regional women’s health service, says that her organisation recommends,

“The introduction of an offence of ‘forced or servile marriage’, which defines such practices as any marriage entered into without the free and full consent of both parties… The introduction of such legislation is vital as it ensures that those who profit from trafficking women and girls into forced marriages can be prosecuted for their criminal conduct. This is essential given international research that has shown that women and children are often trafficked for the purposes of forced and servile marriage.”

This need for clarity has also been expressed by Senior Sergeant Trish Duke of the Sexual Abuse and Child Protection Team of Victoria (SOCIT), which specialises in crimes which involve minors being abused or trafficked.  She recognises that the issue of forced marriage is a growing concern, yet she says that at the State level, the police have limited experience in dealing with the problem.

“In my 15 years as a police officer, including my time with SOCIT, I have never encountered or had to deal with a case of forced marriage.”

“There are no government guidelines…and I think this is more of a federal matter…We ourselves have had no enquiries about this.”

So far, there have been no studies into the number of victims in Australia, increasing the risk of girls and women falling through the cracks of current legislation.  However, the lack of clear data is also a concern to those in the sex industry, who fear a disproportionate response by the Attorney General’s Department.

Elena Jeffreys, the President of the Scarlett Alliance, a body representing the interests of sex workers and sex worker organisations in Australia, says that she,

“Strongly recommends a substantial time and financial investment be made into community organisations who represent those perceived to be affected by forced and servile marriage prior to the discussion of legislative and, or non-legislative means.”

She cautions that there are “difficulties in collecting evidence”, which could harm sex workers and other groups, as well as “people perceived to be affected by forced and servile marriage.”

Professor Burns accepts it is “an emerging issue” but warns that not having enough data at the moment is not reason enough to ignore the debate.

“The issue for Australia is to work out whether we do want to have criminalisation for forced marriage or a civil response more like the UK, or something that is a hybrid.”

She also says that there is a need for multiagency guidance from the government to help lay out specific procedures to help victims.

“I think this is a problem and it’s about a lack of awareness… yes there isn’t enough research yet…but it’s quite clear that many agencies are unaware of what forced marriage is…So looking at developing a consensus is something that’s really important.”

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