Protective and preventative? Why a consideration of borders in response to forced marriage is necessary to ensure women’s safety.

Guest post by Laura Vidal and Siru Tan. Dr Laura Vidal is a lecturer in Criminology at the University of Wollongong. Dr Siru Tan is a Lecturer in Criminology at the University of Melbourne and co-leads the Borders, Migration and Gendered Violence Research Hub. Find out more here. 

This post is part of a themcati series in occasion of the 16 Days of Activism Against Gendered Violence. 

Around the world, forced marriage is defined in law and policy as a marriage entered into without consent. It is an issue which has been well documented to impact primarily women and girls, and has been recognised as a distinct form of gender based violence (GBV). However, within Australia, forced marriage is legally defined as a ‘slavery-like’ practice. It sits within Australia’s response to ‘modern slavery’. As part of this series of posts examining the connections between bordering and GBV during the 16 days of activism against GBV, we draw on research from Australia to consider implications of the current legal and policy setting.

In 2010, the Commonwealth government elevated forced marriage to be recognised in law as a ‘slavery-like’ practice. This has meant that unlike most forms of GBV that are criminalised in State and Territory Criminal and Civil codes, it is located at the Commonwealth level and falls within the investigative jurisdiction of the Australian Federal Police’s human trafficking and slavery team. Australia is the only member country from within the OECD to recognise forced marriage as a ‘slavery-like practice’ in law. Research shows that the choice to locate forced marriage in the somewhat narrow framing of ‘slavery’ has had implications for young women who are impacted. This became no more evident when Australia recorded its first conviction of the offence of forced marriage 10 years after it was criminalised. Ruqia Haidari was forced to marry a man who months later murdered her. Ms Haidari had tried to seek support prior to the marriage but withdrew this request, it was later alleged that this was due to concerns about what this would mean for her mother – that she may face criminal charges. Ultimately it was her mother who was charged and convicted for a forced marriage offence. A woman who has been a victim of child marriage herself. A critique of this conviction suggests that the complex dynamics involved in situations of forced marriage needs to be better recognised to ensure that women (and their mothers) who experience forced marriage have increased opportunities for safety and protection.

While the Commonwealth is the lead in this area, some states have begun to take a different approach. Victoria recognised forced marriage as a statutory example of domestic and family violence (DFV) in 2018. We undertook  research  to examine what this development has meant in practice. We found that some stakeholders and practitioners value the human trafficking/modern slavery framework. They explained that this would allow scope for authorities to, for example, stop cross-border travel in the prevention of forced marriage. There are, however, key questions that emerge from these findings. 

Firstly, consideration needs to be given to the ways in which borders can be held up as ‘protective’ in preventing a forced marriage from occurring. Restricting travel is a key mechanism that has been adopted in Australia’s response to preventing forced marriage – not unlike other jurisdictions including, for example, the United Kingdom. Whilst arguably pragmatic, there has been little consideration of the consequence of this. That is, by placing this as an issue that can be managed, in part, by preventing the border crossing, the complexity of forced marriage including the social, cultural, economic, gendered and familial influences and pressures that often characterise it are sidelined. It also points to broader questions about the ways in which different ‘forms’ of violence with overlapping boundaries of human trafficking, slavery and GBV – as has been argued by Segrave and Vasil in this occasional series – are unrecognised and ostracised.

The second issue is that women who migrate into Australia who are either in a forced marriage or are threatened with a forced marriage express concern about their visa status and/or application to remain in Australia. This includes situations where women may have indicated in their visa applications to enter Australia that their marriage was both positive and genuine – when they in fact have been forced. Women fear that such a disclosure may be a risk of having to leave Australia if they seek help to exit a marriage. It may also include situations where women are forced into entering a marriage either overseas or in Australia with an expectation to sponsor their spouse – again, offering ‘disingenuous’ information as part of the migration process. With good reason, in such circumstances women fear coming forward for support contributing to the overall picture documented in research about few women seeking support.  Research by Marie Segrave which explores violence experienced by women on temporary visas in Australia documents the ways in which perpetrators of violence ‘weaponise’ borders. She argues that focusing only on victim-survivors and perpetrators fails to recognise the systemic harm of migration regimes and borders – which contributes to and sustains GBV. 

Looking beyond the narrow scope of ‘slavery’ to understand and respond to forced marriage presents an opportunity to dismantle the borders that both practically and conceptually constrain responses to the issue. The impact of responses to trafficking and slavery that are bound by national borders and enable states to utilise migration control as a tool in ‘protecting’ victims have been interrogated by many. From this, we know that migration systems and border enforcement practices continue to enable forms of GBV to be both sustained and silenced. 

This is an area of development in Australia, where this year, the Australian Government initiated a national consultation to expand the ways forced marriage is responded to, part of which asks the question as to whether forced marriage should be recognised as a form of DFV. In our submission to this consultation we suggest that the question should not be whether it be recognised, but rather, how. Such a shift recognises the social, cultural, economic, gendered and familial dynamics that sustain a practice like forced marriage bringing Australia into line with international understandings and responses to the issue. It also challenges the need to keep expanding definitions and rather offers a more nuanced examination of the unintended harms that emerge from the response: in turn pushing for state accountability about the ways intersecting systems and mechanisms such as borders, and migration are part of women’s experiences and must be adequately considered in the response.
 

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