Step Forward, or Forever Hold Your Peace: Penalising Forced Marriages in the Netherlands
| Author | Renée Kool |
| Published date | 01 December 2012 |
| DOI | 10.1177/016934411203000405 |
| Date | 01 December 2012 |
| Subject Matter | Part A: Article |
Netherlands Q uarterly of Human R ights, Vol. 30/4, 388–413, 2012.
446 © Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands.
STEP FORWARD, OR FOREVER
HOLD YOUR PEACE:
PENALISING FORCED MARRIAGES
IN THE NETHERLANDS
R K*
Abstract
Being confronted with the import of forme rly unknown cultural practices, the European
public authorities are expected to set clear public standards regarding the alleged
harmful nature of such practices. e adopted solutions are o en of a legal nat ure, using
the law as a vehicle to frame certain social behaviour as socially unacceptable. One of
the practices that have been subject to f raming in terms of law and gender are what is
commonly referred to as forced marriages. Calling upon human rights law, Europe’s
policy is in favour of penalization of forced marriages. However, such an appeal holds
the risk of strategically misu se of human rights law for political bene t. Next to a clear
risk penalisation being symbolic , diversity issues bear within a risk of xenophobia . us
penalisation of diversity issue s needs to be analysed scrupulously. is paper addres ses
the issue of the penalisation of forced mar riages in Europe, with special attention paid
to a dra law recently submitted by the Dutch government, addressing the issue which
actors and factors have contributed forced marriages being put on the European and
Dutch political agenda.
Keywords: framing; forced marriages; harmful cultural practices; penalisation;
xenophobia
1. INTRODUCTION
Due to globalization Europe is confronted with the import of new and formerly
unknown practices. Some of these practices are viewed by some as presenting a
serious threat to fu ndamental European or even Western values, re quiring the public
authorities to set clear public st andards regarding the ha rmful nature of such pract ices
* Associate profess or Willem Pompe Institute, Un iversity of Utrecht.
Step Forward, or Foreve r Hold your Peace
Netherlands Qu arterly of Human Ri ghts, Vol. 30/4 (2012) 447
and the need to adequately combat these har mful practices. e adopted solutions a re
o en of a legal nature, using the law as a vehicle to frame cert ain social behaviour as
socially unacce ptable.1
Frequently, an appeal to human rights law goes hand-in-hand with a claim for
penalisation. Both human rights and criminal law re ect and strengthen the sphere
of ‘justice’, featuring t he law in general.Another argument relates to gender. Issues of
diversity are frequently linked to the socia l position of minority women and minors
in terms of vul nerability. Women and minors have the ri ght to equal treatment. ey
are entitled to legal protection against gendered violence owing from the alleged
superiority of men. Specia l attention is drawn towards the issue of domestic v iolence,
including so-ca lled ‘harmful cu ltural practices’.
One of the practices that have been subject to fr aming in terms of law and gender
are what is commonly referred to as forced marriages.2 Since the beginning of this
century, there has been an on-going debate in Europe regarding the need to legally
combat forced marriages. Overall, Europe is in support of penalisation. Europe’s
consensus is re e ct ed i n t he re ce nt Co un ci l of E u rop e ’s 2 011 Co nv ent i on o n P re ve nt i ng
and Combating Gender Violence and Domestic Violence (Convention 2011). e
Convention speci cally provides that States are to take ‘the necessary legislative or
other measures’ to cri minalize forced marriages (Ar ticle37 of Convention 2011).3
Nevertheless, arguments against penalisation are also heard in Europe.
Opponents argue that human r ights law is used incorrectly, giving way to a wrongfu l
denomination of forced marriage as a harmful cultural tradition. Moreover, the
intended penalisation of forced marr iages is called racist, and a violation of the r ight
of ethnic minorities to preserve their cultural identity. Nonetheless, similar to those
who argue in favour of penalis ation, those who oppose it do acknowledge that forced
marriages represent a speci c form of domestic violence that is related to minority
cultures and t hat need to be combated adequately. Accordingly, both proponents and
opponents of penalisation classify forced marriage as a human rights violation, and
accept the need for legal intervention.
But opting for legal intervention needs jus ti cat ion, for, to some extent, the law has
to re ect ‘common sense’ in order to be socially legitimate. However, such an appeal
towards ‘common sense’ holds the risk that politicians may strategically use human
1 Following Loenen and Van Rossum, the term ‘framing’ is being used to refer to a process of
building f rames, meanin g a rather consistent interpre tive package surrou nding a core idea direc ted
towards building social and political suppor t to nominate socia l behaviour as a social problem,
as presented by a speci c soci al actor, e.g. the legislator, a politica l party, an interest group or a ny
other stakeholder. erefore fram ing is not a neutral process, but is de eply subjective; Loenen, T.,
Van Rossum, W. and Tigchelaar, J., ‘Introduc tion: Human Rights Law as a Site of Stru ggle over
Multicu ltural Con icts and Multidi sciplinary Per spectives’, Utrecht Law Re view, Vol. 6, No. 2, 2010,
pp. 1–16 and Go ma n, E., Frame analysi s, New York, Harper & Row, 1974.
2 Note this paper to relat e to marriage as wit hin ‘legal mar riage’.
3 Council of Europe , Convention on Preventing a nd Combating Violence Against Women and
Domestic Violence, adopte d 7April 2011, CETS No. 210.
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