In this article, I examine the contrasting approaches of the British and French legal systems to the problem of forced marriage. I look at this problem in the context of differing approaches to social integration and multiculturalism adopted by both countries. I find that the relative lack of success in helping the victims of forced marriage in both jurisdictions is largely attributable to the respective discourses within which the issue is framed in both countries. It concludes by proposing that, in line with Anne Philips'1 (2007) idea of 'multiculturalism without culture', debates on criminalising forced marriage should place individual rights and human agency at their centre.
Forced marriage (FM) occurs in both Britain and France, yet both countries take radically different legal approaches to the issue. France does not fully acknowledge FM as an issue and therefore has no specific laws to deal with it. By contrast Britain has adopted the Forced Marriage (Civil Protection) Act 2007 and, on 16 June 2014, the then Conservative-Liberal Democrat Coalition Government introduced new criminal measures regarding FM under Section 120/121 of the Anti-Social Behaviour, Crime and Policing Act 2014. Forcing someone to marry now carries a maximum penalty of seven years' imprisonment. Meanwhile, breaching the terms of a Forced Marriage Protection Order (FMPO) under civil law is now a criminal offence, with a maximum penalty of five years' imprisonment (Gill and Van Engleland, 2014).
Measured purely in terms of criminal convictions, the success of the criminalisation of forced marriage in the UK can be gauged by the stark statistic of just one conviction in the year since FM was made a criminal offence - that of a 34-year-old man, who was already married, at Merthyr Court Wales. He had repeatedly raped his 25-year-old victim over a period of months, had threatened to publish footage of her showering and had threatened to kill her parents if she did not agree to marry him. This catalogue of offences begs the question of whether he could have been prosecuted under the existing criminal law (Gill, 2015).
The lack of convictions is particularly concerning when the amount of forced marriage protection orders is taken into account: 785 issued between November 2008 (when the Act came into force) with 762 applications made for FMPOs made in the same period. In 2014, the government's Forced Marriage Unit provided support and assistance for 1,267 possible cases of forced marriage. (Gill, p.2).
Laws are only effective when properly enforced. Failed prosecutions and cases that do not advance to prosecution may lead to the shaming and ostracisation of victims within family and community circles. The adversarial nature of the British criminal justice system puts considerable obstacles in the way of FM convictions. Victims and witnesses have to face the ordeal of cross-examination in court. The prosecution has to disclose all their evidence to the defence including very sensitive data amassed by the police, local authorities and support/advocacy groups (Gill: p.2).
Another major barrier is lack of proper access to justice for FM victims. Many cannot afford to pay for the legal assistance they need including foreign nationals who may require immigration advice. Cuts to Legal Aid impact severely on victims' ability to obtain crucial legal advice in what are often legally complex cases. Austerity stricken local authorities can barely afford to provide appropriate accommodation for adult and minor victims or to fund the specialist black and minority ethnic services which actual and would-be victims of FM are more likely to trust than state agencies (Gill: p.3).
France shown more reticence than Britain in the area of FM because in France the law has traditionally been used as a medium to signify disapproval with and to treat as deviant overt signs of religions (e.g. the banning of types of Islamic dress in public high schools). Consequently, FM is not framed as form of Violence Against Women (VAW) but instead as an 'immigrant issue': a signifier of religious difference and lack of social integration, despite that fact that FM is found in all communities and affects women from all social classes. This approach has been highly problematic for France's response to issues such as FM (Gill and Van Engeland: p.247).
France has no specific criminal laws regarding FM. It is dealt with by both civil and criminal legislation, including a 2010 law similar to the British FMCPA. France has elected to bolster existing laws, rather than to explicitly target FM, in the belief that to criminalize FM may drive it underground. As we shall see, the core issue is the conflict between the desire to safeguard the secular values of the Republic and the imperative of tackling VAW (Gill and Van Engeland: p.247).
France hosts the largest Muslim demographic in Europe with estimates ranging from around two million2 to a Ministry of Interior estimate of as many as five million from country of origin. France's social integration model is based on notions of neutrality, the foundational principle being that all citizens are equal. But to be equal citizens, immigrants must assimilate into mainstream French society. French law forbids the collection of statistical data about religious matters which makes it difficult to assess the extent of gender-based violence including FM, that are more common in particular communities. The best way of estimating the incidence of FM is to analyse court cases regarding the number of women seeking annulments on the grounds of coercion into marriage. The latest statistics from 2004 show that 2% of 745 annulments were requested because of an FM (Gill and Van Engeland: p.249).
To acknowledge the existence of cultural problems involving minority communities such as the niqab, female genital mutilation and polygamy questions the entire nature of the Republic. These practices are outlawed not because they represent to public health or the institution of marriage but, instead, challenges to French civic values. As a result, while polygamy is widely recognised as a serious problem in France, one of its sources - shadow-marriage - has never been explicitly addressed in policy or law (Gill and Van Engleland: p.249).
French civil law directly addresses FM. Under the French Civil Code, marriage is perceived as an individual freedom deriving from the basic concept of freedom of choice. According to Article 146 of the Code, without consent, a marriage is void. The law also requires the physical presence of both spouses for a marriage to take place to prevent a person being forced to marry in their absence. As under French law, marriage represents a form of contract, all the prohibitions applicable to contracts generally apply to marriages: under Articles 1109 - 1122 of the French Civil Code there can be no duress, induced mistake or fraud. Case law has defined duress as encompassing (i) any behaviour or action that induces fear, or (ii) any form of moral, physical or other coercion (Gill and Van Engleland: p.250).
These provisions were strengthened by the '2006 Law' which equalises the minimum age of marriage for both sexes at 18 and allows parties five years to report a fault in the marriage. In this way, the law mirrors the approach of British legislators when drafting the FMCPA; FM as a protection issue. The 9 July 2010 Law provides additional protections to young girls threatened by FM in the form of protection orders and providing housing support to victims and potential victims of FM forced to leave their homes. Furthermore, marriages contracted above at French consulates are further regulated both to curb immigration and to prevent FMs and sham marriages (Gill and Van Engleland: p.250).
FM is also addressed in French criminal law through laws on marital rape and domestic violence. The rape provision of the French Criminal Code (Article 222-224 (Paragraph 3) is often used to deal with crimes committed by spouses against young women forced into marriage. Together, Article 222 of the French Criminal Code and the 9 July 2010 amended the body of French law to create a 'circonstance aggravante au marriage force’ (an aggravated form of the relevant offences that concern forcing someone into marriage) (Gill and Van Engeland: p.251)
An effective alternative to criminalisation of FM is the strategy adopted by a swathe of French civil society to deal with it. France's network of local NGOs engages constantly with the state on behalf of local communities affected by FM. This was illustrated by the appointment of the feminist activist Fadele Amara as Secretary of State for Urban Policies in the Government of President Sarkozy The bottom-up support system including statutory agencies in health, secondary education and law enforcement and NGOs enables an efficient vertical transmission of information from local actors (French citizens relate to the state predominantly through its local representatives) to central government. NGOs such as Association Foumata, Femmes Solidaires and Reseau Mariage Force promote preventive measures, encourage mediation between victims and their families, travel to schools to empower young women to make informed choices on marriage and meet with families to encourage them to rethink their attitudes on FM. Integrated action between statutory and voluntary bodies in the UK would be a natural progression of the FMPCA mandate and would be a better means of counteracting the incidence and effects of FM rather than the blunt instrument of criminalisation which runs the risk of stigmatising affected communities and not reaching victims (Gill and Van Engleland: p.253).
France's and Britain’s opposing strategies on FM correspond to their differing models of social integration and multiculturalism. France welcomes immigrants as long as they remain culturally and religiously neutral. In Britain. multiculturalism flourishes, as signified by the presence of Jewish religious courts and Muslim tribunals as well as an array of equality and anti-discrimination legislation. (Gill and Van Engleland: p.255).
An alternative form of multiculturalism which can enable effective strategies for tackling FM is proposed by Anne Philips. In Multiculturalism without culture, she argues that multiculturalism can be made compatible with the pursuit of gender equality and women's rights as it rejects essentialist understandings of culture. She advocates a multiculturalism that rejects received notions of culture which produce those which attracts the ire of feminists but which retains sufficient muscle to address inequalities between communities (Gill and Van Engleland: p.255).
It follows therefore that government policy for dealing with FM must place individuals and human agency at its centre. States should refocus their attention on the protection of victims of all types of VAW rather than suggesting that foreign cultures threaten domestic ones or that multiculturalism in incompatible with the protection of women's rights. Engaging in dialogue with NGOs and individuals to enhance proactive efforts to address FM would be much more effective than bringing in new laws specifically aimed at criminalising it. (Gill and Van Engleland: pp.255-56).
In conclusion, a rights-based approach emerging from a VAW perspective would be the most productive way forward in addressing FM. It would challenge the public/private distinction so prevalent in social and economic policy. Siting FM in human rights discourse, it would be possible tackle AW within different communities without descending into the maelstrom of cultural relativism and stigma. Criminalisation of FM on its own sets up policy maker for failure in their worthwhile objectives.
(1) Philips, (2007) Multiculturalism without culture Princeton: Princeton University Press.
Gill, A.K. (2015) 'Criminalising forced marriage has not helped its victims'. The Conversation.
Gill, A.K and van Engeland, A. (2014) 'Criminalising or "multiculturalism without culture"? Comparing British and French approaches to tackling forced marriage'. Journal of Social Welfare and Family Law, Vol. 36, No. 3, pp.241-59.
➽ Barry Gilheany is the author of a PhD thesis Post-Eighth Abortion Politics in the Republic of Ireland from Essex University, Department of Government. He is also the author of The Discursive Construction of Abortion in Georgina Waylen & Vicky Randall (Eds) Gender, The State and Politics Routledge, 1998.