Are Criminal Laws Enough to Protect Victims of Forced Marriage in Australia?

By Famida Zana | 23 Jul 21

In August 2019, 20-year-old Ruqia Haidari contacted detectives from the Australian Federal Police (AFP) to report that she was being threatened and coerced by members of her family to enter into a forced marriage. Despite the AFP’s numerous attempts to offer Ms Haidari assistance to leave her situation, she was deterred by the risk of increased violence that could have resulted from outside intervention. 

The forced marriage went ahead in November 2019 and within a few months of leaving her loved ones in Victoria to live with her new husband in Perth, she had been murdered. The husband she married against her will handed himself in to police covered in her blood. Subsequent arrests were made on members of her family who were charged with causing a person to enter into a forced marriage. 

While this is only the second time the charge has been used in Victoria, Ms Haidari’s case is a gruesome reminder that the issue of forced marriage remains prevalent in Australia. It is a grave example of the difficulties encountered by victims in leaving situations of forced marriage and raises important questions about the effectiveness of the current response to the issue.

In 2013 specific provisions were introduced into the Criminal Code 1995, rendering the perpetration or participation in a forced marriage a federal crime. While this has been a significant step towards addressing the issue, forced marriage remains one of the most complex and poorly understood human rights and policy issues encountered by Australia in recent years. Many argue that Australia’s approach of prioritising criminalisation has not adequately protected victims or addressed the root causes of the issue. 

A forced marriage occurs where coercion, threats or deception cause a person to enter into marriage without full and free consent. In 2012, former Attorney-General Nicola Roxon stated that “in Australia marriage is between consenting adults and that consent should be real.” She declared that “forced marriage has no place in a modern and democratic nation like Australia.”

Forced Marriage is an abuse of basic human rights and can be considered a form of domestic and family violence. It typically involves physical, psychological and financial abuse, social isolation, restrictions on movement and sexual assault. These behaviours are perpetrated to control those who challenge cultural norms, to prevent marriages considered unsuitable and/or to protect family honour. While the issues of domestic, family and sexual violence have been widely debated as part of a 2021 parliamentary inquiry, there has been relative silence on the issue of forced marriage since the 2013 amendments. 

According to data from the 2019-2020 financial year, forced marriage cases have risen to represent 41 per cent of all human trafficking cases reported to the AFP. While this indicates a positive trend in victims utilising protective services, the lack of existing quantitative data makes it difficult to ascertain whether the laws have reduced incidents of forced marriage. The Australian Salvation Army notes that “the current design of the framework has not delivered prosecutions, has prevented many victims from receiving ongoing support, and has not reduced the prevalence of the practice.”

The offence of forced marriage has never been successfully prosecuted in Australia, and victims face a number of distinct challenges in achieving justice. The high burden of proof for criminal conviction requires victims to gather evidence that would prove the guilt of perpetrators beyond a reasonable doubt. Collecting evidence to this threshold can be difficult within the family context and in instances where forced marriage occurs in cross-jurisdictional settings. 

The unique dynamics of family relationships, cultural obligations and nuanced psychological factors underlying a forced marriage mean that victims may not want or be able to give statements to authorities due to pressure, threats or fear of increased violence. This can further undermine the ability to meet the requisite evidential threshold. Significantly, many victims are reluctant to commence criminal proceedings against members of their own families, who may be identified as perpetrators.

While criminal laws are important in the later stages of forced marriage cases, these need to work alongside preventative and protective, legislative and non-legislative measures that address the issue earlier. In her 2020 paper, Monash University researcher Laura Vidal’s response to arrests in the case of Ms Haidari noted that “there’s a need to be critical in considering the effectiveness of intervention, including the circumstances that meant only in her death have arrests been made.” 

In an interview with the Australian Broadcasting Corporation in 2018, UK-based human rights activist Jasvinder Sanghera noted the need for more professionals to be adequately trained to make it easier for victims to come forward. She stated that “reporting to the police is often the last resort… victims are more likely to report to teachers, to friends, to third parties, to doctors; the police is often at the end of the extreme.” 

The introduction of a complimentary regime of civil protections specific to forced marriage would provide the necessary legal protections to victims in earlier stages of forced marriage cases in Australia. Providing a civil regime could curtail the hesitancy of victims in bringing criminal charges against family members and would require the charge to be proven ‘on the balance of probabilities,’ a standard of proof which is lower and easier to achieve than the criminal standard of ‘beyond a reasonable doubt.’

While civil protections were considered in 2010, these have never been enacted into law. Under current laws, a protection order may be issued under the Family Law Act 1975 in relation to a minor at risk of forced marriage. However, this does not extend to persons over the age of 18 and would preclude victims like Ruqia. In the UK, civil law provides any victim with injunctive relief in the form of forced marriage protection orders, to bar perpetrators from engaging in forced marriage-related activities. 

Measures also need to be taken outside the law to address barriers faced by victims and the causes of forced marriage. Awareness raising activities through community education and consultation, including in school curriculums, could assist victims, their friends, families and broader communities to identify when a forced marriage is taking place and the available protective services. Access to these services needs to be facilitated through the provision of culturally adaptive information sharing and social and legal services. Front-line training should be provided to community professionals (including those mentioned), non-government organisations and government officials to identify and effectively act in situations where they believe a forced marriage is potentially occurring. 

Perhaps the most crucial starting point, however, is to better understand how the issue actually manifests in the Australian setting. Outside enumerated media reports detailing forced marriage experiences of mostly migrant women, there is a real lack of research, data and academic literature upon which to base an effective response to the issue in Australia. Unlike in countries such as the UK and America, forced marriage and how to effectively address it remains poorly comprehended in the Australian setting.