Last week a Victorian county court returned the first guilty verdict for the offence of forced marriage in Australia.
Sakina Muhammad Jan has been found guilty of coercing her daughter Ruqia Haidari into marrying a Perth man in November 2019. This is the first conviction since forced marriage was criminalised in 2013 under the Commonwealth Criminal Code (1995).
Forced marriage in Australia: the response
Unlike every other country in the OECD, forced marriage in Australia is recognised legally under the suite of Commonwealth trafficking and slavery-like offences, more recently referred to broadly as ‘modern slavery’ offences. The offence of forced marriage covers forcing anybody into a marriage in Australia or overseas (where there is a connection to Australia). Force is defined as a marriage entered without full and free consent, because of coercion, threat, or deception.
In some States in Australia, namely Victoria and New South Wales, there have been shifts to recognise forced marriage beyond the Commonwealth framework.
In 2018 Victoria included forced marriage as a statutory example of family violence in the Family Violence Prevention Act (2008) (Vic) and in 2022 New South Wales introduced provisions to enable a domestic violence protection order in situations of forced marriage. Such moves have both complicated the landscape and appear largely ineffective.
Nationally, forced marriage is still largely an issue dealt with under the Commonwealth offence. It remains the case it is the Australian Federal Police [AFP] and the Support for Trafficked People Program [STTP] that form the primary response pathway to forced marriage. While the remit of the AFP team focused on trafficking and slavery offences and the STTP cover all offences under the s270 and s271 of the Commonwealth Criminal Code it is forced marriage that is consistently the most frequently referred issue: between 2017-2022 there were 411 referrals to the AFP.
Despite the numbers of reports to the AFP, an ongoing criticism of Commonwealth response has been the linking of support to the criminal justice process, whereby the AFP must be notified about an alleged offence in order to access the support program for persons impacted by trafficking or slavery offences. This is set to change in the coming months, with pilot efforts announced to de-link support from the criminal justice process. New funding has also been allocated to further expand the support provided to those impacted by forced marriage: the detail of which is to follow in coming months.
However, at the time that Ruqia Haidari was in touch with the AFP, in 2019/2020, support was predicated on AFP involvement. Why does this matter? It has been made clear repeatedly that a response to forced marriage that involves the criminalisation of parents and other family members is at odds with the needs and wants of those impacted by forced marriage.
An ongoing concern has been that the only option to intervention is heavy-handed policing interventions. Perhaps the best evidence that this is a broken model is that despite the many hundreds of referrals to the AFP since 2013, there have been only two charges laid and only one conviction.
The major question is whether the forced marriage response is working and what are the implications of this conviction?
While some will celebrate this as a win against modern slavery, we argue this outcome raises critical issues that we must grapple with, including the following:
- A major concern is that people may disengage with help seeking in the wake of this conviction. Young people who do not wish to be married, for example, may fear seeking help and intervention if the outcome may be that their parent is prosecuted. They wish not to be married, not for their parents to be imprisoned. Research has demonstrated that young people are looking for support, not criminalisation or punishment for their parents. In the UK similar concerns have been raised, that the use of criminal justice force in this space drives people away from help seeking.
- Criminalising mothers is arguably a dangerous scapegoat. Sakina Muhammad Jan was not operating alone, the expectations around the marriage of her daughter, the engagement of a matchmaker and the attendance of over 500 people at the wedding were all part of a broader expectation of Ruqia Haidari’s marriage and the pressure on Ruqia to go through with the marriage. Recognising this is not a signal to excusing this behaviour. Rather we must recognise that when the criminal justice system holds one person as criminally responsible, it can undermine the reckoning with the complex dynamics of the context where forced marriage takes place. Including the intersections between social, cultural, familial, and gendered pressure – which extends to the pressure on mothers and parents for their daughters to marry and marry well – and for daughters (and sons) to oblige the expectations of all of those around them.
The criminal justice system could not protect Ruqia Haidari, either from the pressure and coercion to marry or from the fatal violence of the man she married. But this conviction is not a win for the fight against modern slavery, it is testament to the ongoing recognition that we are failing to keep women safe. And that to do so requires rethinking how and where we begin, and the role that the criminal justice system can play in undermining women’s safety.
While the announcement of a forced marriage specialist support program, which is set to be rolled out in January 2025, is welcome, little is known about the parameters of the program and how it will support those impacted by forced marriage. An ongoing concern in Australia is that there is limited public information about the forced marriage interventions that are funded year on year by the federal government, with little to no accountability for the impact of various outreach and prevention efforts.
There is an opportunity for renewed efforts supporting people impacted by forced marriage to be designed in a way that responds to the emerging evidence that prevention and support involves dismantling the victim-perpetrator binary between children and their parents: providing holistic support that addresses the number of contributing factors that lead to forced marriage. In designing the new specialist support program there is a need for careful attention and transparency, and for it to be part of the broader response to government accountability for women’s safety.
Moving beyond the announcement we must be sure that the well-intended interventions are led by evidence and are working to transform the overwhelming challenge that is the enduring persistence of gendered violence
Dr Laura Vidal is a Lecturer in Social Work in the School of Health Sciences at the University of Canberra.
Marie Segrave is a Professor and an ARC Future Fellow in the School of Political and Social Sciences at the University of Melbourne.