FEATURE:

By Nima Green

The Minister for Home Affairs Brendan O’Connor, has admitted that there is a risk that cases of forced marriages are “not being captured by existing laws”.  Indeed, in the last few years, a number of high profile cases in Australia have been garnering more attention, raising an uncomfortable question of how we should accommodate traditional beliefs in modern Australia. So, should forced marriage be criminalised?

Minister of Home Affairs Brendan O’Connor

In August this year, Bimala Devi Kadariya, a 23 year old Nepalese woman living in Sydney, made headlines when it was revealed that she faces an ”honour” marriage to the man who abused her older sister so badly she took her own life.

Ms Kadariya says that she was promised to her brother-in-law when she was thirteen. However, when the marriage was about to take place, she ran away and sought refuge in Australia on a student visa.  Ms Kadariya has been in Australia for three years now but has been told that she does not qualify for Australia’s protection, and so has been refused a humanitarian visa by the Department of Immigration and the Refugee Review Tribunal.

”I am most afraid of my dead sister’s husband,” Ms Kadariya told the Sydney Morning Herald. ”If my father forces me to marry, I don’t know what I will do because I cannot bear to think about the possibility of being married to the man that caused my sister to suicide…Also the Nepalese government will not protect me from this because women are supposed to do what they are told by their fathers, husbands and community elders.”

Bimala is just one case of forced or servile marriage, a social practice that is currently not specifically legislated against in Australia.  There are laws in place to help minors, however, Professor Jennifer Burn, the Director of the Anti-Slavery Project, a specialist legal research and policy centre, says that for woman over the age of eighteen, such as Bimala, there are real difficulties for prosecutors in bringing their abusers to justice.

“The law is more clear where an underage girl is subject to a potential forced marriage, but for forced marriage situations affecting women over the age of eighteen, it is more problematic because we do not yet have a system in place to deal with forced marriage,” she said.

There have three significant cases in the last two years in the Family courts.  In one case last year, the Victorian Department of Human Services applied for an order from the Family Court to prevent the parents of a fourteen year old girl from taking her overseas to be married to another minor.  The girl is now restricted from leaving the country until she is eighteen years old.

Despite the Department of Human Services involvement in this case, Steve Pogonowski, a spokesperson for the Department, says that determining jurisdiction is still difficult to ascertain in each situation.

“It’s an issue on a federal level involving the Australian Federal Police and the Attorney Generals’ office,” he said. “Especially as the Federal Police have the power to put people on a watch list to prevent them from being taken from the country. However, often it requires several agencies working together.”

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.  The Attorney General’s Department is looking to explore models used by other countries to help develop a list of potential new proposals based on legislative and/or civil measures.

The UK in particular is being looked at, as a country that has a Forced Marriage Act (2007), which is a civil protection measure that enables the family courts to make an order to prevent a forced marriage from taking place, or in the case where a marriage has already occurred, to make an order to protect the victim and help remove them from the situation. A protection order can contain any terms the court considers appropriate, including extraterritorial powers. In the UK, there is also a Forced Marriage Unit, which assists actual and potential victims of forced marriage, as well as professionals working in the social, educational and health sectors.  It provides government guidelines helping agencies to understand the issue and offering advice on how to recognise the signs of forced marriage as well as the appropriate protocol to act upon. The rationale is that by using civil rather than criminal provisions, victims will be encouraged to seek protection because it does not involve reporting family members to the police.  In fact the most recent UK study concludes that,

“For many victims it is crucial that seeking help does not prevent future reconciliation with their families, especially their parents. In this regard, criminalisation may actively discourage many victims and potential victims from speaking out about the abuse/coercion they are facing.”

This dilemma is at the heart of the debate.  The question of whether a new criminal offence will actually encourage the girls and young women involved to disclose the nature of their abuse is unclear.  It is a sensitive area culturally, as arranged marriage is a common practice to many parts of the world, and amongst several ethnic minorities that live in Australia.  The difficulty is in ascertaining when an arranged marriage becomes a forced marriage, through the lack of consent from either side.  However, this can be difficult to gauge due to family and community pressure on the young girls and women.

Also, the Attorney General’s Department will have to consider reservations over enforcement of any new criminal offences.  The proposed forced and servile marriage offence could carry a maximum penalty of 15 years’ imprisonment, while the aggravated forced and servile marriage offence could carry a maximum penalty of 20 years’ imprisonment.

Yet, there is little information regarding the extent of forced and servile marriage in Australia. A government report, covering the period of Jan 2004-July 2009, the ‘Inaugural Report of the anti-people trafficking interdepartmental committee’, says that during this time, the Australian Federal Police undertook over 270 investigations and assessments of allegations of trafficking-related offences, leading to 34 people being charged and seven convictions.  Most of these cases dealt with women being trafficked for sex, but it is unclear how many of those investigations were directly related to forced marriage.

However, Professor Burns warns against underestimating the extent of the problem in Australia, calling it “an emerging issue”.

“We do have two sources of information which are useful.  One is information that is coming out of the Family Court of Australia,” she said. “And there’s also anecdotal stories from community workers who say that in their experience they’re concerned that sometimes the spouse visa programme maybe used a as a way to bring mainly women into Australia who have been subject to a forced marriage.”

Professor Burn says that even if criminalisation does not happen, and more civil measures are adopted instead, what is essential is that more research must be undertaken into the extent to which instances of forced marriage are happening in Australia.

“It’s a very confused area…so I think that there could really be a valuable role for there to be a body looking into these issues and making recommendations to the government,” she said.  “It’s really important to look at research as it is clear there needs to be more understanding into these coercive relationships.”