From an emic perspective: Exploring consent in forced marriage law

Published date01 June 2018
AuthorHelen Sowey
DOI10.1177/0004865817701982
Date01 June 2018
Subject MatterArticles
untitled
Article
Australian & New Zealand
Journal of Criminology
2018, Vol. 51(2) 258–274
From an emic perspective:
! The Author(s) 2017
Reprints and permissions:
Exploring consent in forced
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0004865817701982
marriage law
journals.sagepub.com/home/anj
Helen Sowey
Macquarie University, Sydney, New South Wales, Australia
Abstract
Forced marriage was criminalised in Australia in March 2013, putting the issue on the agenda
of policy-makers and social service providers. Increasingly, however, it is being recognised that
criminal laws alone cannot address the practice; protective and preventative strategies are
also needed. This paper argues that strategies to address forced marriage will be most
effective if they are informed by contextualised and emic understandings of the phenomenon,
that is, by the perspectives of individuals, families and communities who are directly affected
by forced marriage. Primary research is required to obtain such perspectives. Research into
forced marriage in Australia is still in its infancy, and primary research is almost non-existent.
This paper, then, looks to primary research from the UK and other comparable Western
multicultural nations, offering a critique of this body of literature before drawing out what is
revealed about why marriages are forced, how marriages are forced, and what people in
forced marriage situations want. The implications of criminal prosecution are then considered
in light of this emic understanding. The legal definition of forced marriage hinges on the
concept of consent: it is consent that distinguishes an arranged marriage from a forced
one. In the UK, the notion of consent has been robustly problematised. However this is
not the case in Australia at present, and this paper critiques the value of the concept of
consent given the social contexts of forced marriage described above. The implications of this
critique for the application of Australia’s forced marriage law are then considered. Finally,
from a place of contextualised and emic understanding of forced marriage, this paper con-
siders how protective and preventative strategies might be enhanced.
Keywords
Australia, consent, criminalisation, forced marriage, legislation
Date received: 27 June 2016; accepted: 15 February 2017
Forced marriage was criminalised in Australia in March 2013 by the Crimes Legislation
Amendment (Slavery, Slavery-like Conditions and People Traf‌f‌icking) Act 2013
(Australian Government, 2013). Under this law, a marriage is def‌ined as forced if one
party entered into it without fully and freely consenting, because of the use of coercion,
Corresponding author:
Helen Sowey, Macquarie University, Building W6A, Sydney, New South Wales 2109, Australia.
Email: helen.sowey@gmail.com

Sowey
259
threat or deception.1 While previously, a marriage solemnised without consent was not a
valid marriage and could be declared void (Australian Government, 1961), the new
legislation makes it possible for perpetrators of forced marriage to be criminally prose-
cuted and sentenced to imprisonment. At the time of writing, however, the legislation
was yet to be tested in court.
Some 18 months after the legislation was passed, the Australian Government
developed awareness-raising resources on forced marriage and also provided funding
to three community organisations to do so (Minister for Justice The Hon Michael
Keenan MP, 2014). Available resources now include the downloadable Forced
Marriage Community Pack (Australian Government Attorney-General’s Department,
2014), the mybluesky.org.au website (hosted by Anti-Slavery Australia at the
University of Technology Sydney) and the My Rights – My Future curriculum kit for
secondary schools (ACRATH, 2016). These resources aim to raise broad community
awareness, and to prevent forced marriages occurring among people at risk.
It is positive to see this shift from prosecution to prevention. However, more could be
done to prevent forced marriage. Indeed, the concept of ‘prevention’ could be broadened
from its present focus on stopping forced marriages among those at imminent risk, to
primary prevention, that is, stopping those who would force marriages from doing so in
the f‌irst place. Such an approach would align with current directions in the prevention of
violence against women and their children (see Change the Story: A shared framework for
the primary prevention of violence against women and their children in Australia (Our
Watch, Australia’s National Research Organisation for Women’s Safety (ANROWS)
& VicHealth, 2015)).
Primary prevention work is about long-term cultural change. This requires deep com-
munity engagement, and it is hoped that the emic perspectives on forced marriage pre-
sented in this paper can serve as useful guidance towards such engagement.
Research on forced marriage in Australia
Forced marriage was criminalised at a time when the phenomenon in Australia was not
well understood; certainly very little research on the subject had yet been published.
Although the body of knowledge has since begun to grow, there are still no accurate data
on the prevalence of forced marriage in Australia, nor on the demographics of victims or
perpetrators, nor the means by which forced marriage takes place.
Most Australian literature is ‘grey’ literature (not published through formal academic
channels), and it considers whether forced marriage is indeed an issue of concern in
Australia, what the needs of af‌fected individuals might be, and what types of service
responses would be appropriate (e.g. Good Shepherd Australia New Zealand & Anti-
Slavery Australia, 2012; Jelenic & Keeley, 2013; McGuire, 2014). Other Australian lit-
erature focuses on legal aspects, exploring the signif‌icance of the forced marriage laws
and the challenges in applying them (Simmons & Burn, 2013).
There is little Australian work which explores the contexts in which forced marriage
takes place, and still less that investigates the ways in which forced marriage is perceived
by the individuals directly involved. This is perhaps unsurprising: identifying af‌fected
individuals is a dif‌f‌icult task, and participation in research can escalate the risks to safety

260
Australian & New Zealand Journal of Criminology 51(2)
that they already face. However, to gain a contextualised and emic understanding of the
phenomenon, such research is essential.
The variability of scenarios of forced marriage that have occurred in Australia is
captured in the Forced and Servile Marriage Casebook (Evans, 2014), a compilation of
anonymised Australian case studies intended to be used for professional development
purposes. Further Australian case studies reported by professionals are also found in
The Right to Refuse (McGuire, 2014), a report on a forced marriage forum that was held
in Melbourne in 2013. To date, a small study by Lyneham and Richards (2014) exploring
human traf‌f‌icking involving marriage and partner migration is the only Australian
research study to have directly engaged with individuals in forced marriage situations.2
A critique of primary research on forced marriage
While the Australian body of literature on forced marriage is limited, there is a much
larger body of work internationally. Yet even within the international literature, few
publications report on primary research work. Complete research reports that include
methodological detail have often remained unpublished (despite being heavily cited in
the literature), and are not easily accessible online (e.g. Hester et al., 2007; Khanum,
2008; Samad & Eade, 2002; Uddin & Ahmed, 2000). Unfortunately, even when these full
reports can be located, their methodology sections – with the exception of the Hester
et al. (2007) study – include scant detail. Though articles based on these research projects
have been published in academic journals, it is dif‌f‌icult for a reader to critically interpret
them without a clear understanding of the methodologies used.
Many primary research reports explicitly recognise the limitations of their studies.
However, in the large body of work that comprises secondary analysis and commentary,
such tentativeness is often lost. Constant reiteration of the f‌indings of the same few
studies serves to eliminate the sense that our knowledge is still provisional. Instead, it
reif‌ies the f‌indings as true and fully representative of the phenomenon of forced
marriage.
To illustrate: forced marriage is usually considered in the literature in contrast to
(or as a subset of) arranged marriage. However, it is unclear whether forced marriage
indeed occurs most often in the context of arranged marriage, or whether this emphasis
in the literature is unrepresentative, perhaps due to forced marriage being imagined as an
aspect of cultural ‘otherness’.
It is possible that a person could be forced into marriage without the marriage having
been arranged. For instance, a boyfriend and girlfriend might be forced to marry each
other if their parents do not approve of their being in a relationship without being
married. Although in such a case the individuals had chosen to be in a relationship
with each other, the marriage would still be forced if consent was not given freely by
both of them.
Another alternative is that a person might have consented to a marriage, but this
consent was not genuine due to deception about the nature of the relationship.
Australian law def‌ines forced marriage as being due to ‘coercion, threat or deception’
(Australian Government, 2013) allowing for such...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT