Under the umbrella of the Anti-Social Behaviour Crime and Policing Bill which reached report stage on 8 January, new proposals criminalising forced marriage are due for their penultimate reading in the House of Lords in the next few days before becoming law. This is one of the most strongly contested legislations relating to gender to go through Parliament in recent years. The government sees it as crucial, not it seems because it might help the women affected, but because in the words of the Home Secretary,Theresa May, 'by criminalising it we are sending a strong message that it will not be tolerated'. The majority of groups which make up the Black and minority ethnic (BME) movement against violence against women in the UK, think the law will actually deter women from seeking legal redress. They regard it as little other than an example of the government's hypocrisy, and its cynical use of gender to intensify repression, criminalisation and Islamophobia.
This is not, the first attempt to bring in a law criminalising forced marriage. The last time was in 2006. At that time, the government was mainly interested in the marriages of British national women to foreign men and while projected as a way of protecting women from violence the proposed law was clearly about reducing and policing immigration. Today the government says it is also about identifying and criminalising forced marriages where both partners are based in Britain.
In 2006, in the face of opposition from women's organisations and community groups the government had to back down. This time, to avoid this recurring, after a remarkably short consultation period, the government has used the cunning device of counting 48 organisations from across the country as just one, allowing it to come up with a tally of 54 for the law and 37 against it.
Why is the law being opposed so strongly by BME women's organisations?
Marai Larasi, Director of the Black feminist organisation Imkaan which provides advocacy, research and training to a national network of BME women's refuges and services, points out that 'successive governments have failed to provide preventative measures and ensure that the existing safeguarding and legislative structures are fully utilised to protect girls and women from forced marriage. Yet now the government is bringing more costly primary legislation, which is likely to be difficult for women to access. We must ask ourselves: who or what is this legislation really for?.
Ample legislation already exists to address forced marriage. There is a Civil Law specifically on forced marriage, a Forced Marriage Protection Order and a battery of other legislation which can deal with cases of Forced Marriage - laws on GBH, abduction, kidnapping and child protection, for example. These are often not implemented, partly through lack of will and partly because most services which support women through the legal process have been abolished.
Under the new proposals, not only perpetrators, but vulnerable members of a family who themselves face coercion are likely to be criminalised. In addition, breaching the Forced Marriage Protection Order will also be criminalised, despite the fact that experience in Scotland (which criminalised such breaches in January 2011) shows that this has led to a dramatic fall in women seeking legal redress. The Scottish experience also demonstrates that it can be impossibly difficult to prove coercion in court, and as a result prosecution in cases of forced marriage in Scotland is going to continue to rely on existing offences.
Frontline organisations working with women point out that while over the last decade, support structures for women facing violence have been removed, the Domestic Violence, Crime and Victims Act 2004 has focussed on action against perpetrators, establishing structures for increased criminalisation, surveillance and racial profiling. This has made the relationship between the police and BME communities worse than it already is, and almost everything under the Domestic Violence Act and the proposed Forced Marriage law is police-led.
As Baljit Banga, director of Newham Asian Women's Project in London, a long-established organisation which deals with an average of 1,500 cases a year, says, these women 'want support but they are absolutely clear that they do not want to go to the police (this would be the first step for legal action). There are concerns in the way police intervene... Women have seen male children in their families, their brothers and sons, harassed. Many of them are aware that if the police are involved their cases could go to MARAC - the multi-agency risk assessment conferences which will take things out of their hands and totally disempower them while prying into every detail of their lives.' Of the forced marriage cases supported at NAWP, she says, 'we have not come across a single case where the young woman has wanted to charge her parents or other family members even under the present laws. ...The women we see already report to us about being targeted by police anyway and made to feel as if they are doing something wrong - in rape cases for example. Fear of a parent being charged has worked as a hindrance, an obstacle for young women who approach NAWP for support, advice and information or safe access to accommodation so that they may take appropriate action'.
In a very different part of the country, Rotherham in the north east, Zlakha Ahmed, Director of Apna Haq a Black, South Asian and minority ethnic women's organisation, tells of a very similar situation. Apna Haq has supported seven young women facing pressure to marry over the last year. Not one was willing to charge their parents, even under existing laws. Criminalising forced marriage is not a solution, she says.
This scenario is replicated across the UK: research by Imkaan based on a country-wide survey shows that young women in this position want most urgently to escape and find a safe place where they can rebuild their lives and confidence. This has been made much harder with the closure and merger of Black, South Asian and minority ethnic refuges and specialist services - Imkaan’s (2012) member survey shows that over a third of services reported significant funding cuts of between £20,000 and £100,000.
Under these conditions, according to the Ashiana Network in Waltham Forest, criminalisation of forced marriage may deter women also from using civil remedies. In addition, and perhaps even more seriously, it will intensify a situation where women minimise the abuse they face when confronted with the prospect of using the law. As the Ministry of Justice itself noted in a report on the existing Civil law Forced Marriage Protection Orders: 'Victims did not want to be the ‘instigators’ of legal action as they were frightened that their actions would be discovered by their families, saying that they felt safe to return, or to continue residing in the family home.'
But what about the cases where women do want to charge their parents - what is their experience of the new law likely to be? What is it now under existing legislation? A briefing paper from Ashiana Network notes, that 'the risk to women is significantly increased if they pursue legal redress and our experience is that women do not receive sufficient protection while going through the criminal justice system.' The response of the courts and agencies, they note, has been to persuade women to go into witness protection programmes which involve changing ones name and identity and moving to a secret location. This is an extremely isolating and often traumatising experience for the vulnerable young women involved, leading many to voluntarily opt out of the programme placing them at even greater risk.
If a woman decides to withdraw her case altogether, and many do, she may then, as in rape cases, face being charged with wasting police time or perjury, both of which are offenses which carry prison sentences. In addition, in the case of forced marriage, as the government's Forced Marriage Unit says, rather casually, on page 10 of A Forced Marriage Survivors handbook, 'there is the chilling possibility that ... if there is overwhelming evidence that it would be in the public interest to prosecute, the CPS may proceed without consent' my italics.
Why would it be in the public interest? Is this the new way of bringing home the same message which was being openly stated by CPS spokespersons back in 2006 that terrorism, forced marriage, and extremism were all inextricably linked ? A construction which has no basis whatsoever in fact. In November 2006, for example, at a round table discussion organised by Imkaan, Nazir Afzal - then a Director of the CPS - had told the meeting about a 'lovely map' on the wall of the Forced Marriage Unit which identified 'hotspots of radicalism and hotspots of honour-based violence...If you went in the Special Branch of the Terrorist Unit and looked at their map, you would see signiﬁcant links, signiﬁcant correlation. So, maybe there is something about . . . extremism, the way people think around those issues, that links in with what happens with women in their families too'. There was one case, he added 'where I could actually evidence it, so how many others are there . . . I have been talking to ministers for the last few months. I mentioned radicalism hotspots and the map of honour-based violence hotspots – then they really listened!'
Since that time the perceived links between forced marriage and honour crimes and terrorism, extremism and illegal immigration have entered the realms of 'commonsense'. Now it is enough to talk about 'culture' and everyone understands the sub-texts.
BME feminists have argued that forced marriage and honour based violence should not be exoticised. They are forms of violence against women, and should be dealt with as such. Instead, all violence against BME and particularly South Asian women is being categorised as forced marriage and honour-based crime. These forms of violence have become, according to Pragna Patel of Southall Black Sisters, 'symbolic of all that is deemed to be wrong with minorities.'
An accompanying development has been the identification by certain elements within the police and other agencies of speciﬁc South Asian women as spokespersons on the horrors of ‘backward, traditional practices’ in South Asian communities; among these is Jasvinder Sanghera, who has herself faced forced marriage and others from her organisation Kama Nirvana. Sanghera, who has been rewarded with a CBE, has for years been a campaigner for the criminalisation of forced marriage. She has been joined by right-wing think tanks and by a few other individuals and groups from BME women's organisations who also support the new law, among them the Iranian and Kurdish Women’s Rights Organisation and the Freedom Charity.
These spokespersons serve to validate in 'authentic' South Asian, often Muslim voices, the racist and specifically Islamophobic discourses endlessly regurgitated in one form or another by the press - the salacious stories in the tabloids of young women suffering and brutal parents destroying their lives; and the variety of figures for the numbers of forced marriages and honour crimes - 'there are thousands every year according to one "reliable source", hundreds according to another', says Imkaan's Research and Policy officer Sumanta Roy, 'they are figures based on a moral panic created by the media with little information on how they were obtained, or even how forced marriage is being understood by various state agencies in different parts of the country'.
In fact the statutory agencies and police often still confuse forced marriage and arranged marriage. As Zlakha Ahmed said at a public meeting last year, there is a sheer lack of interest in dealing with violence against BME women and children, except where it can be ascribed to 'cultural' causes.
Culture has long been a stick to beat BME communities with. As Letti Volp has written in her study of forced and voluntary marriage among adolescents in the US, ' when the actors involved are immigrants of color, we label behavior that we consider problematic as "cultural," and understand this term to mark racial or ethnic identity. Thus, we consider early marriage by a Mexican immigrant to reflect "Mexican culture." In contrast, when a white person commits a similar act, we view it as an isolated instance of aberrant behavior'.
Sadly, as neoliberalism tries to appropriate aspects of feminism, some feminists too have fallen into this trap. Julie Bindel for example has dismissed opposition to the law as 'cultural relativism..the result of creeping acceptance of Sharia'. This is a way of silencing a whole range of women and groups who have spent much of their lives confronting women's oppression in their communities.
Will the government take on board any of the criticisms of the law which the BME women's movement against violence has made? They have been forced to make some changes to the Anti-social Crime and Policing Bill, and in the next few days, campaigning and lobbying over the forced marriage law will be intense, so there is still a slender chance that this may happen. If it does not, it will lead perhaps to that much needed debate among feminists which is already taking place in the US about how violence against women can be confronted in the context of a racist state intent on widespread criminalisation.