Custom Or Crime?: Part II of IV: Legal Remedies for Forced Marriage Victims and Survivors1

VOLUME 30 NUMBER 1 SPRING 2016

Custom or Crime?: Part II of IV: Legal Remedies for Forced Marriage Victims and Survivors1

ELIZABETH M. LANDAU

Gender-based violence—from domestic violence “a form of child abuse” when minors are involved.5 and human traffi cking to genital cutting and Its Foreign Affairs Manual (FAM) sets forth proce- early and forced marriage—condemns girls to dures for responding to US citizens at risk of being cycles of dependence, fear, and abuse. Harmful sent abroad for a forced marriage. Unfortunately, cultural norms and prejudices that tell young the State Department cannot engage in preven- women how they are expected to look and act tion efforts domestically, and typically becomes deny the dignity and equality we want for involved only after a victim is taken abroad.6 The all our daughters … As Americans, we must US State Department represents that it trains its see the hopes and dreams of our own girls and case offi cers to explain the risks and to attempt to realize that these are the same dreams of girls convince the intended spouse not to travel over- around the world.2 –President Barack Obama seas.7 There is little likelihood of a victim being able to convince family members not to force her There is currently little recognition and a dearth to make the trip, however, especially if the victim of legislation around forced marriage in the United is a minor. If she goes abroad, whether willingly or States. There are no federal forced-marriage laws, by force, the case offi cer is supposed to provide her as marriage has traditionally been regulated by the contact information for the appropriate US embassy states.3 US forced-marriage victims and survivors, and counsel her to contact the embassy upon and their advocates, confront inconsistent or, in arrival.8 The FAM directs the case offi cer to attempt some jurisdictions, nonexistent state laws. To date, to remain in contact with the victim during the the majority of the United States’ efforts to combat trip, but this may not be possible if she is closely forced marriage have focused overseas. The US Agency for International Development (USAID) recently doubled its investment to $10 million to Elizabeth M. Landau is a family law attorney head- combat forced marriage in developing countries, quartered in Washington, DC, with a broad knowledge and the US Foreign Relations Code describes forced and expertise in women’s issues. She has led workshops marriage as a type of religious persecution.4 and assisted NGOs in more than a dozen countries on Some federal agencies have addressed forced issues related to gender-based violence. Currently, she marriage in their internal regulations. For example, litigates custody, protection order, and divorce cases in the US State Department defi nes forced marriage the District and is a fellow with Global Justice Initiative as “a violation of fundamental human rights” and (GJI) specializing in forced marriage.

Reprinted from American Journal of Family Law, Spring 2016, Volume 30, Number 1, pages 46–57, with permission from Wolters Kluwer, Inc., Wolters Kluwer, New York, NY, 1-800-638-8437, www.wklawbusiness.com 2 AMERICAN JOURNAL OF FAMILY LAW monitored or taken to a remote area.9 In some cases, informed consent and possesses the requisite capac- the State Department is able to repatriate the vic- ity to meaningfully consent to marriage. In states tim, either before or after she is forced to wed. It is that do require a judicial hearing, the parents’ pres- unclear what resources State Department personnel ence in court can inhibit a minor from expressing her could provide the victim upon repatriation if she wishes, and no attorney is appointed to represent the is a minor and would not likely qualify for most minor’s interests.18 The effect of these “legal loop- domestic violence shelters or similar services.10 holes” can exacerbate underage girls’ and boys’ vul- Although no federal agency has adopted clear nerability to forced, early, and marriage.19 guidelines for addressing domestic forced marriages, two agencies are just beginning to address the issue. The US Department of Health and Human Services STATE CRIMINAL LAWS lists projects addressing child, early, and forced marriage (CEFM) as an allowable grant activity under The vast majority of states have no criminal its Ethnic Community Self-Help Program.11 In statute proscribing forced marriage. Some states addition, the US Department of Justice is funding a that do address forced marriage do so under stat- research project on forced marriage through a grant utes addressing prostitution, pandering, or human to the Washington, DC-based Urban Institute.12 traffi cking. Only 10 US states and one territory The American Bar Association cautions that, have passed criminal laws that specifi cally address “Without a concerted and coordinated multi-agency forced marriage. These statutes are antiquated and approach … victims will continue to fall between the fail to address the complicated dynamics character- narrow mandates and authority of particular offi ces istic of forced marriage. and agencies.”13 California STATE LAWS IMPLICATED IN California’s forced-marriage law excludes both FORCED-MARRIAGE CASES male victims and minors from protection.20 The California law states: Marriage laws vary dramatically from state to state. Most states set 18 as the minimum legal age to Every person who takes any woman unlaw- consent to marry. But, in the majority of US states, fully, against her will, and by force, menace or minors can marry at a younger age with parental con- duress, compels her to marry him, or to marry sent.14 In several states, parents can consent to their any other person, or to be defi led, is punishable child’s marriage when the child is as young as age 12 by imprisonment.21 or 13.15 Parental consent for minors to marry, without judicial review, can be highly problematic because The statute also contains no preventative terms or parents are often the perpetrators in forced-marriage consequences for individuals who attempt, aid, cases. Most state marriage laws do not expressly abet, or conspire to force a person to marry.22 This require the minor’s consent, only her parents’. Even makes it diffi cult for law enforcement to prevent a when the child’s consent is expressly required, she marriage from occurring or hold accountable all of may not feel comfortable asserting her right to dissent the full array of participants facilitating the forced or have the ability to fully comprehend the ramifi ca- marriage. California also fails to include “fraud” in tions of marriage.16 This is particularly true if her fam- its forced-marriage defi nition, which is detrimental ily’s culture promotes early marriage.17 in situations in which perpetrators use fraud as a tactic to facilitate or convince the victim to marry.23

There are no federal forced marriage laws. Maryland Maryland’s forced-marriage statute falls under Some states do not require a hearing before a the human traffi cking subsection of the Prostitution family court judge before a minor’s parents can and Related Crimes—Pandering Chapter. The stat- consent to her marriage. States do not require court ute states that the perpetrator must “knowingly clerks who issue marriage certifi cates to assess or take or detain another with the intent” to forcefully issue fi ndings that the minor gave free, full, and marry the victim to the perpetrator or to someone CUSTOM OR CRIME? 3

else.24 Anyone who benefi ts fi nancially or receives person … is guilty of pandering.”30 This statute cov- anything of value as the result of the marriage or ers all types of victims but does not apply to those attempted marriage is subject to the same penalties, who aid or abet a forced marriage. Penalties vary as is anyone who knowingly aids, abets, or con- depending on whether the victim was an adult spires with one or more persons to facilitate a forced or a minor and the age of the child at the time the marriage.25 This statute allows law enforcement to offense was committed. Even if the marriage takes intervene before a forced marriage occurs if there is place elsewhere, any action taken to facilitate the suffi cient evidence of the perpetrator’s bad intent.26 forced marriage within Nevada can lead to prosecution under this statute.31 Minnesota Oklahoma Minnesota’s forced-marriage law only applies to minor victims27 and does not take into account Oklahoma’s forced-marriage law states: “Any that the perpetrator could be the victim’s par- person who takes any woman against her will, and ent or legal guardian.28 There is also no provision by force, menace or duress, compels her to marry for additional participants in the facilitation of the him or to marry any other person, shall be guilty of forced marriage, such as other family members, a felony punishable by imprisonment in the State community elders, religious fi gures, or a match- Penitentiary not less than ten (10) years.”32 This maker. As with the California statute, this limits statute does not cover male victims or provide for the ability of law enforcement to intervene and preventative interventions. charge multiple perpetrators in hopes of preventing a forced marriage. US Virgin Islands This is also true of the US Virgin Islands’ forced- Mississippi marriage law, which states: “Whoever takes any Mississippi’s forced-marriage law states: woman unlawfully, against her will, and by force, menace or duress, compels her (1) to marry him; Every person who shall take any person over the (2) to marry any other person; or (3) to be defi led, age of fourteen (14) years unlawfully, against his shall be imprisoned not more than 10 years.”33 or her will, and by force, menace, fraud, deceit, stratagem or duress, compel or induce him or West Virginia her to marry such person or to marry any other person, or to be defi led, and shall be thereof duly West Virginia’s forced-marriage law is titled convicted, shall be punished by imprisonment in Crimes and Their Punishment—Crimes Against the penitentiary.29 the Person, and states, “any person who takes away another person, or detains another person This statute is greatly limited, as it cannot protect against such person’s will, with intent to marry or forced-marriage victims under age 14. Again, law defi le the person, or to cause the person to be mar- enforcement cannot take preventative measures ried or defi led by another person; or takes away a or intervene prior to the commission of a forced child under the age of sixteen years from any per- marriage. son having lawful charge of such child, for the purpose of prostitution or concubinage, shall be guilty of a felony, and, upon conviction thereof, shall be confi ned in the penitentiary not less than three nor Only 10 states have criminal laws on forced 34 marriage. more than ten years.” The statute has no restric- tions as to who qualifi es as a potential victim and could apply to those who aid in facilitating the forced marriage.35 Nevada Nevada’s forced-marriage law provides: “A Virginia person who: … (e) Takes or detains a person with the intent to compel the person by force, threats, Virginia’s forced-marriage law, which falls under menace or duress to marry him or her or any other the state’s prostitution statute, provides: “Any 4 AMERICAN JOURNAL OF FAMILY LAW person who: … (2) Takes or detains a person against forced marriage, servitude, or the removal of his or her will with the intent to compel such per- organs.”40 Confl ating human traffi cking with forced son, by force, threats, persuasions, menace or marriage ignores the complex family law dynam- duress, to marry him or her or to marry any other ics that are unique to forced marriage. Separating person, or to be defi led … is guilty of pandering, forced marriage from human-traffi cking statutes and shall be guilty of a Class 4 felony.”36 could prevent confusion and potential harm to the victim. These statutes, crafted without a nuanced under- Law enforcement cannot take preventive standing of the unique dynamics of forced mar- measures. riage, fall short in numerous ways. The statutes do not address the sometimes subtly coercive nature of forced marriage that prevents victims from giving District of Columbia free, full, and informed consent.41 Several statutes fail to hold accountable the variety of perpetrators The District of Columbia’s forced-marriage law involved, such as extended family or infl uential similarly falls under DC’s prostitution chapter, community members.42 And, most of the statutes titled Pandering; inducing or compelling an individual fail to empower authorities to intervene before to engage in prostitution. It states: “(a) It is unlaw- a forced marriage occurs, when there is still an ful for any person, within the District of Columbia opportunity to prevent a host of harms that often to: … (3) Take or detain an individual against the fl ow from forced marriage.43 individual’s will, with intent to compel such individual by force, threats, menace, or duress to marry the abductor or to marry any other person.”37 The ANCILLARY CRIMINAL ACTS unique dynamics of forced marriage38 are incongru- ent with prostitution or pandering. Labeling forced- There are a variety of ancillary crimes that can marriage victims as prostitutes can lead to blaming sometimes occur in the course of forcing someone the victim for what has been done to her and cause to marry or during a forced marriage. However, feelings of shame that could make her less likely to statutes not developed with the unique needs, cir- seek help. The DC statute also lacks language about cumstances, and vulnerabilities of forced-marriage coercive tactics perpetrators might take. Coercive survivors in mind simply don’t provide for appro- tactics might include threats of disinheritance, priate resources or remedies. Nonetheless, legal withholding of fi nancial support, or ostracization practitioners assisting forced-marriage victims and from the family, which could render a victim home- survivors in states without directed forced-marriage less. For example, if a perpetrator is the victim’s laws should be familiar with ancillary civil and crim- parent or a highly infl uential community member, inal statutes that could provide some form of relief. such as clergy, the perpetrator could use this imbal- anced power dynamic to manipulate the victim into an unwanted marriage. The statute does not cover male victims.

Florida Laws proscribing assault, fraud, and kidnapping— Florida incorporates forced marriage into its acts often committed in the process of forc- human traffi cking statute. In Florida, a person is ing someone to marry—may provide adequate guilty of human traffi cking if that person “know- grounds to prosecute a perpetrator of forced mar- ingly, or in reckless disregard of the facts, engages riage.44 A spousal perpetrator could potentially be in human traffi cking, or attempts to engage in prosecuted for other criminal acts—such as rape human traffi cking, or benefi ts fi nancially by or sexual assault—that often occur soon after a receiving anything of value from participation in forced marriage takes place. However, state statutes a venture that has subjected a person to human addressing these ancillary criminal acts are not spe- traffi cking for labor or services.”39 Florida defi nes cifi cally designed to address the unique needs and “services” as: “any act committed at the behest circumstances of forced-marriage victims.45 Law of, under the supervision of, or for the benefi t of enforcement offi cials may not be aware that forced- another. The term includes, but is not limited to, marriage situations often involve these ancillary CUSTOM OR CRIME? 5 crimes, and they may be unwilling to get involved seeking to prevent or fl ee a forced marriage.50 in a situation they perceive to be a family matter.46 Protection orders are frequently used to reduce the Without a deliberately legislated forced-marriage risk of future threat or harm to victims of violence offense, victims and their advocates may have dif- and may prove more accessible and better-tailored fi culty accessing crime-victim compensation funds, to forced-marriage cases than criminal charges.51 witness-protection programs, shelter, child protec- Eligibility for a protection order does not require tive services, free counseling and medical care, and evidence that a crime has been committed, and the other critical victim services and protections.47 burden of proof should be lower than in criminal cases.52 The qualifying factors and procedures for obtain- Laws proscribing assault, fraud, and kidnapping ing protection orders vary considerably across may provide grounds to prosecute. jurisdictions. In the majority of jurisdictions, judges have wide discretion to issue a variety of types of relief, such as no-contact orders, vacate (or “kick- In the absence of adequate forced-marriage laws, out”) orders, property rights and access orders practitioners sometimes turn to anti-traffi cking (e.g., to a home or vehicle), child-custody and visi- laws for relief. Traffi cking and forced marriage are tation orders (including professionally supervised both serious practices that should be addressed visitation), orders for child support and monetary in a way that is sensitive to the nuances of each. support (to cover expenses such as medical and When the two are confl ated, this can diminish sys- counseling bills for the victim), and orders for tem actors’ and the public’s understanding of the treatment or counseling for the defendant.53 The unique dynamics and consequences that differen- Virginia-based Tahirih Justice Center has devel- tiate forced marriage from traffi cking in persons. oped helpful guidelines setting forth a strategy Although the key elements of sex traffi cking and for obtaining protection orders in forced-marriage forced-marriage cases sometimes intersect, the cases and potential terms to include, such as confi s- majority of forced-marriage cases do not consti- cating passports if a victim is at risk of being taken tute sex traffi cking, which has a distinct commer- abroad or mandating school attendance.54 cial element.48 Due to the often disparate dynamics Obtaining a protection order may not be an of these two types of human rights violations, it is appropriate remedy for some forced-marriage vic- imperative that legal remedies be tailored carefully tims, as there can be limitations on who can obtain to meet the needs of both victim populations. them, who they can be obtained against, and what It may sometimes be possible to fi nd relief for kinds of terms can be included in the order.55 It may forced-marriage victims under ancillary criminal be diffi cult for a victim to produce evidence or tes- laws; however, it is likely that use of these laws tify against her own family members. In addition, will not achieve appropriate outcomes for victims victims are often daunted by the potentially serious or perpetrators. For example, an assault charge negative consequences to their family members, against one perpetrator (the victim’s parent, sibling, such as jail or deportation of a primary breadwin- or spouse) might not deter or punish other perpe- ner or caretaker. This could impact the victim’s trators (such as aiders, abettors, or co-conspirators) siblings, other parent, or extended family overseas who could still facilitate the forced marriage in who rely on remittances or immigration sponsor- some fashion. And a rape charge against a forced- ship from the defendant.56 An attempt to obtain a marriage victim’s spouse would not necessarily protection order could also result in severe or even lead to appropriate services for the victim, such fatal retaliation against the victim.57 Legal practitio- as shelter or protection from her family or in-laws ners should take care to work with each individual who may be enraged with her, believing that she victim or survivor to understand her unique cir- shamed both families and herself and caused the cumstances and family dynamic, then pursue what- criminal charges against her spouse.49 ever legal outcomes she elects.

The United Kingdom CIVIL REMEDIES The United Kingdom has addressed many of Protection (or restraining) orders are one poten- these protection order limitations by designing a tial, quasi-criminal remedy available to persons protection order custom-tailored to the needs and 6 AMERICAN JOURNAL OF FAMILY LAW circumstances of forced-marriage victims. The However, numerous factors can complicate pursuing U.K.’s Forced Marriage Civil Protection Act of 2007 a divorce or annulment. Strong religious convictions created a civil protection order to protect “(a) a per- could preclude divorce or annulment as options for son from being forced into a marriage or from any some victims.63 The victim’s ethnic or faith-based attempt to be forced into a marriage; or (b) a per- community may ostracize her for terminating the son who has been forced into a marriage.”58 The marriage. Obtaining a divorce or annulment might issuing judge has the authority to evaluate all coer- prove diffi cult if the victim does not have possession cive threats or other psychological means used by of or access to her own vital documents.64 It may also the perpetrator, which can protect a victim before prove diffi cult to obtain the requisite documentation a forced marriage occurs and preempt ancillary if the marriage was conducted overseas, in absentia, crimes typically associated with forced marriage.59 or by proxy.65 The victim’s spouse, the spouse’s fam- The order also benefi ts victims by allowing any ily, or the victim’s family could retaliate against the person who aids or facilitates the forced marriage victim for reneging on the union or because they in any manner to be a subject of the restraining perceive that she has shamed the family.66 Litigation order.60 A wide array of provisions the judge deems could aggravate the circumstances, necessitating appropriate and necessary can be included in the extensive safety planning to keep the victim safe order, such as “protection from marriage, including and meet all of her basic needs.67 Even if the victim prohibitions on specifi c ceremonies if organized, obtains a divorce or annulment decree, her spouse non-molestation order type provisions, disclosure or family may choose not to recognize the judgment, orders if [the] victim has been removed from home treating her as if she is still married. or it is feared the victim may have been removed A forced marriage could be adjudged void or from the jurisdiction.”61 voidable. A person forced to wed could argue that the resulting marriage is voidable and annullable in most states. The statute of limitations to bring an The victim might not have access to her annulment case varies from state to state. These can vital documents. range from a few months to several years depending on the basis of the annulment claim, and, in some states, parties cannot have cohabitated after By contrast to the U.K.’s forced-marriage protec- they learned of the circumstance that renders the tion order regime, a threat to force someone to marry, marriage voidable.68 Forced-marriage victims— or acts or circumstances that commonly signal an particularly minors—may have no access to legal imminent forced marriage, are unlikely to persuade counsel, be unaware of the existence of legal rights most US judges to issue a potential victim a protec- and remedies until after statutes of limitation have tion order. US judges, even when they would be eliminated a remedy, or may be forced to cohabitate inclined to issue a protection order, may be precluded after discovering the voiding factor because they from doing so because protection order statutes are have nowhere to go for food or shelter. The statute not designed with forced-marriage circumstances of limitations typically begins to run on the date a in mind. These statutes may prohibit a judge from voidable circumstance is discovered.69 In a forced- issuing a protection order unless the victim can pro- marriage case, this will often coincide with the duce convincing evidence of a past history of abuse. victim’s wedding date. It is important to consider Consequently, US legal practitioners and other ser- what evidence or documentation a victim would vice providers are forced to be creative when pursu- need to produce for the court to prove the legal ing protection orders for forced-marriage victims. grounds for annulment. The time it takes to gather Protection orders are only one tool in a comprehen- this evidence could further complicate the victim’s sive response to a forced marriage victim’s situation.62 ability to meet the statute of limitations. If granted, an annulment could affect other rights important to a forced-marriage victim. If there are DIVORCE OR ANNULMENT children of the forced marriage, the legal presump- tion that children conceived during the marriage Although it is usually too late by the time a are the biological offspring of both spouses no lon- forced marriage has taken place to prevent many ger applies. If not listed on a child’s formal birth of its damaging effects, divorce or annulment may certifi cate, the child’s father may not be required to bring some form of relief or protection to the victim. provide child support until after a court establishes CUSTOM OR CRIME? 7

parentage. In some cases, a victim may choose to a third party can sometimes supply the affi davit of forgo pursuing child support in hopes of severing support on behalf of the petitioner.79 Additionally, any connection to the perpetrator.70 Some fi nan- there are a lack of confi dential ways for victims cial benefi ts could also be affected, such as spousal to obtain updates on the status of their petition or support, pension, or retirement benefi ts, because request that it be withdrawn.80 Any action the peti- an annulment could restore property to its pre- tioner may take could notify the intended spouse’s marital status. The victim’s property rights could family and cause her own family to retaliate or pre- also be undermined by annulling the marriage. For vent the withdrawal of the petition.81 example, community property laws may no longer automatically apply to assets and debts that would have been considered marital property in a valid The statute of limitations typically starts marriage.71 This may be overcome if the judge deter- upon discovery. mines that “either party believed in good faith that the marriage was valid,” and “[declares] the party or parties to have the status of a putative spouse.”72 If a forced-marriage victim is not a US citizen, perpetrators could use the threat of removal (deportation) as a tactic to coerce her to enter into or remain POTENTIAL IMMIGRATION ISSUES in an unwanted marriage.82 There are several potential legal remedies available to forced-marriage vic- One potential motivating factor behind forced tims who lack lawful immigration status. marriage is the ability of a US citizen victim to sponsor an immigrant visa for a foreign fi ancé(e) or The Violence Against Women Act spouse.73 This can constitute a major material benefi t to the foreign spouse and his family. In order to The Violence Against Women Act (VAWA) allows meet the eligibility requirements for a fi ancé visa, “battered immigrants to petition for legal status in the intended spouses must have “met in person the United States without relying on abusive U.S. cit- within two years immediately preceding the fi l- izen or lawful permanent resident family members ing of the petition.”74 In theory, this could prevent to sponsor their Adjustment of Status applications.”83 a forced marriage from occurring if the betrothed Under this provision, a victim may self-petition and is overseas, however, there is an exception to this can eventually fi le an Adjustment of Status applica- requirement.75 If requiring the two parties to meet tion to become a lawful permanent resident. This within two years of fi ling the petition would “vio- could spare the victim the need to rely on her spouse late strict and long-established customs” of the fi an- for her immigration status. To qualify for a VAWA cé’s “foreign culture or social practice,” or “result self-petition, the abused spouse must prove that the in extreme hardship to the petitioner,” the USCIS marriage was entered into in good faith, that the district director may choose to waive this require- abuse occurred in the United States, that she lived ment.76 Perpetrators could take advantage of this with the abuser, and that the marriage is either still exception and use coercive tactics to guide a vic- valid or was terminated less than two years prior tim into sponsoring an immigrant visa for a foreign to fi ling the self-petition.84 Even if the marriage fi ancé(e). Additionally, the two-year requirement turns out to be void or voidable, VAWA may still does not apply to an immigrant visa for a spouse, be an option if the victim entered into the marriage so if the victim is forced to wed abroad, she can in good faith.85 Some forced marriages are entered simply return home and fi le her petition. into in good faith, but the wife is ultimately forced Some practitioners are seeking to address the to remain in the marriage against her will. It may be vulnerability that victim-sponsored visas create by years before she seeks or receives help, and by that advocating for a minimum age requirement of 18 time suffi cient evidence of the good faith marriage for both the US citizen sponsor and the foreign ben- will likely have accumulated.86 The victim must pro- efi ciary of a fi ancé(e) or spousal visa application.77 vide evidence of her “good moral character.”87 This proposal seeks to prevent forced marriage of minors.78 Currently, there is no offi cial minimum age U-Visa requirement for the petitioner. Although, if seeking a spouse-visa, the petitioner must be 18 or older Another potential immigration remedy for to sign and submit his or her affi davit of support, forced-marriage victims is the U-Visa. The U-Visa 8 AMERICAN JOURNAL OF FAMILY LAW was created to strengthen the ability of law enforce- to avail himself or herself of the protection of, ment agencies to detect, investigate and prosecute that country because of persecution or a well- crimes against immigrants and protect victims. founded fear of persecution on account of race, There are only 10,000 visas issued per year.88 In religion, nationality, membership in a particu- order to be eligible, the applicant must be a victim lar social group, or political opinion.97 of one of the qualifying crimes listed in the statute, but acts substantially similar to qualifying crimes, The US has not yet specifi cally recognized forced such as forced marriage, could also be accepted.89 marriage as a form of gender-based persecution. The crime must have occurred in the US, and she However, US courts have found beatings, rape, must have suffered substantial physical or mental female genital mutilation, verbal abuse, isolation, abuse.90 Additionally, she must possess information and severe economic disadvantage—all harms concerning the qualifying crime, and she must have commonly associated with forced marriage—to been helpful, currently be helping, or be likely to be constitute persecution for purposes of asylum.98 helpful to a law enforcement offi cial. The U-Visa is Rather than focusing on the forced marriage, prac- available regardless of whether the investigation or titioners base their asylum claims on these “com- prosecution results in a conviction. ponent harms”99 to avoid directly confronting the issue of whether forced marriage, standing alone, constitutes per se persecution.100 Alternatively, asy- T-Visa lum claims can be based on the consequences faced A third immigration remedy, the T-Visa, requires by women who refuse or fl ee forced marriages. the applicant to be or have been a victim of a severe For example, the forced marriage itself may not be form of traffi cking, but only 5,000 T-Visas are issued grounds for an asylum claim, but threats of beat- each year.91 Some elements of forced marriage are ings, confi nement, or death used to coerce a person similar to the crime of human traffi cking but, in to marry could be grounds for an asylum claim. order to constitute traffi cking, there must be some commercial element present in the victim’s situation.92 The applicant needs to be physically present An annulment could restore property to in the US on account of the traffi cking.93 And, she its pre-marital status. must have complied with any reasonable request for assistance in the investigation or prosecution of the traffi cking.94 The law provides an exception Even if it is established that there is a “well- to this requirement for victims under age 18 and founded fear of persecution,” relief will not be for victims unable to cooperate with authorities granted unless there is a nexus to one of the fi ve due to physical or psychological trauma. The vic- enumerated protected grounds. Advocates fre- tim must also produce evidence that she would quently base asylum claims on the protected ground suffer extreme hardship involving unusual and of “membership in a particular social group.101 severe harm if removed from the United States.95 Although some advocates have attempted claims Returning to her family or her in-laws’ family based on political opinion or religious belief, these overseas could be a real threat for a forced-mar- have been less successful.102 There is a one-year riage victim. The families could retaliate against deadline to fi le for asylum after entering the United the victim and she may have no legal protections States, and if exceeded, asylum applicants must pur- abroad.96 sue other refugee protections, all of which require meeting higher standards of proof of future harm.103 Asylum Asylum is another potential remedy for non-US- CONCLUSION citizen forced-marriage victims. Section 1101(a)(42) of the Immigration and Nationality Act (INA) states Addressing forced marriage in the United States that asylum is available to: can be diffi cult due to the scarcity of directed legal remedies for forced-marriage victims. Legal rem- any person who is outside any country of such edies not tailored to address forced marriage may person’s nationality … who is unable or unwill- not yield appropriate outcomes for forced-marriage ing to return to, and is unable or unwilling victims or perpetrators. Until the United States CUSTOM OR CRIME? 9 embraces a comprehensive national response to 7. U.S. Dep’t of State, Foreign Affairs Manual, supra n.5, at protect and empower US-based forced-marriage 1743.1(b)(1). victims and survivors, it is imperative that practitioners be aware of and sensitive to the unique 8. Id. needs and circumstances of these individuals. In 9. Lisa Anderson, “Forced Marriage in America: Many the meantime, by creatively using ancillary legal women don’t know their rights, fear to claim them,” remedies, practitioners can afford forced-marriage Thomson Reuters Foundation, Nov. 19, 2012, available at clients some tangible relief. http://www.trust.org/item/20121119090000-esjta/?source= spotlight, last accessed Jan. 18, 2016. NOTES 10. Julia Alanen, “Shattering the Silence Surround- ing Forced and Early Marriage in the United States,” 1. This article is the second in a four-part series titled (May 8, 2012). Child. Legal Rts. J., Vol. 32, No. 2 at 13–14 Custom or Crime? about forced marriage in the US. Part I (Summer 2012). Available at Social Science Research aims to defi ne forced marriage and distinguish it from Network, http://ssrn.com/abstract=2143910, last accessed arranged marriage, inform the reader about who could be Jan. 18, 2016 or http://dx.doi.org/10.2139/ssrn.2143910, last a forced-marriage victim or perpetrator, and explore the accessed Jan. 18, 2016. Domestic violence or youth shel- catalysts and consequences of harmful marriage practices. ter staff may be mandated reporters. This would require Part II evaluates existing US legal remedies and resources them to notify child protective services. The victim may for combatting forced marriage. Part III explores the fi erce, be placed in foster care. In some circumstances a tempo- ongoing debate over whether forced marriage laws should rary or permanent legal guardian could be appointed. be civil or criminal in nature. Part IV sets forth recommen- 11. US Department of Health & Human Services, Admin- dations for a comprehensive national response to protect istration for Children and Families, Offi ce of Refugee and empower US-based victims and survivors seeking to Resettlement, Ethnic Community Self Help Program, avoid or fl ee forced marriages. HHS-2014-ACF-ORR-RE-0816 at 3 (2014), http://www. acf.hhs.gov/grants/open/foa/files/HHS-2014-ACF-ORR- 2. Proclamation No. 9191, 79 Fed. Reg. 62,297 (Oct. 17, RE-0816_0.pdf, last accessed Jan. 18, 2016. 2014). 12. Cynthia Helba, Ph. D., Matthew Bernstein, Mariel 3. The US Supreme Court has reiterated that the right to Leonard, Erin Bauer, Report on Exploratory Study into marry is fundamental under the Due Process Clause of Honor Violence Measurement Methods 1–1 (Westat) the Fourteenth Amendment. See, e.g., M. L. B. v. S. L. J., (2014), https://www.ncjrs.gov/pdffi les1/bjs/grants/248879.pdf, 519 U. S. 102, 116 (1996); Cleveland Bd. of Ed. v. LaFleur, 414 last accessed Jan. 18, 2016. This report highlights a US U. S. 632, 639–640 (1974); Griswold v. Connecticut, 381 U.S. Department of Justice (DOJ) grant, through the Offi ce of 479, 484–486 (1965); Skinner v. Oklahoma ex rel. William- Violence Against Women and the National Institute of son, 316 U. S. 535, 541 (1942); Meyer v. Nebraska, 262 U.S. Justice, provided to the Urban Institute to examine the 390, 399 (1923). The identifi cation and protection of fun- occurrence of forced marriage among South Asian com- damental rights is an enduring part of the judicial duty munities in the Washington, D.C. area. to interpret the Constitution. Obergefell v. Hodges, 576 U.S. ___ (2015). When marriage issues rise to this level, 13. Resolution and Report 112B, supra n.6, at 7. national laws can be affected. 14. Hannah Cartwright, “Legal Age of Consent for Mar- riage and Sex in the 50 United States,” Global Justice 4. USAID.com, Preventing and Responding to Child, Initiative (Aug. 21, 2011), https://globaljusticeinitiative. Early and Forced Marriage, available at http://www.usaid. fi les.wordpress.com, last accessed Jan. 20, 2016. gov/what-we-do/gender-equality-and-womens-empowerment/ child-marriage (last accessed Jan. 18, 2016); 22 U.S.C. 15. Cartwright, supra n.14, Linda Pressly, “Pregnant at § 6401(a)(5) (2006). 10 and Abortion’s Not an Option,” BBC News, Sept. 10, 2015, http://www.bbc.com/news/magazine-34195973, last 5. U.S. Dep’t of State, Foreign Affairs Manual, 7 FAM accessed Jan. 18, 2016. 1741(a) (2005), available at http://www.state.gov/documents/ organization/86822.pdf, last accessed Jan. 18, 2016. 16. Anne-Marie Hutchinson OBE, Lessons for the US from UK Experiences with Forced Marriage Protec- 6. Resolution and Report 112B at 7, American Bar Asso- tion Orders and Abusive Transnational Marriages, http:// ciation, passed Aug. 12, 2014. preventforcedmarriage.org/wp-content/uploads/2015/02/ 10 AMERICAN JOURNAL OF FAMILY LAW

Lessons-from-the-UK-on-FMPOs-and-Abusive-Intl-Marriages- 31. Id. at § 201.350. with-Anne-Marie-Hutchinson.pdf (last accessed Jan. 18, 2016). 32. Okla. Stat. Ann. tit., 21 §§ 1117-1119 (West 2015). 17. Rosanne Piatt, “Overcorrecting the Purported Prob- lem of Taking Child Brides in Polygamist Marriages: The 33. V.I. Code Ann. tit. 14, § 1301 (2014). Texas Legislature Unconstitutionally Voids All Marriages by Texans Younger Than Sixteen and Criminalizes Paren- 34. W. Va. Code, § 61-2-14 (2015). tal Consent,” 37 St. Mary’s L.J. 753, 754–55 (2006); Camel- lia Burris, “Why Domestic Institutions are Failing Child 35. Id. Brides: A Comparative Analysis of India’s and the United States’ Legal Approaches to the Institution of Child Mar- 36. Va. Code Ann. § 18.2-355 (2015). riage,” 23 Tul. J. Int’l. & Comp. L. 151, 2014–2015. 37. DC. Code § 22-2705 (2014). 18. Tahirih Justice Center, Policy Recommendations to Address 38. Part I of this series provides a thorough treatment Forced Marriage in the United States, http://preventforcedmarriage. of the cultural and family dynamics surrounding forced org/wp-content/uploads/2015/01/FMI-Policy-Recommendations. marriage. pdf, last accessed Jan. 18, 2016. 39. Fla. Stat. § 787.06(3)(a) (2015). 19. Dr. Jody Heymann, Aleta Sprague & Megan Arthur, “The Legal Loopholes That Perpetuate Child Marriage,” 40. Id. at § 787.06(2)(h). Huffi ngton post, Nov. 18, 2014, http://www.huffi ngtonpost. com/dr-jofy-heymann/the-legal-loopholes-that-_b_6165220. 41. Alanen, supra n.10, at 10. html?utm_hp_ref=impact&ir=impact, last accessed Jan. 18, 2016. 42. Id. at 9. 20. Alanen, supra n.10, at 9. 43. Sri & Raja, supra n.23, at 7. 21. Cal. Penal Code § 265 (West 2011). 44. Simon Hooper, “Could UK ban on forced mar- 22. Alanen, supra n.10, at 9. riage backfi re?,” Al Jazeera post, July 1, 2014, http://www. aljazeera.com/indepth/features/2014/06/could-uk-ban-forced- 23. Vidya Sri & Darakshan Raja, “Voices from the Front- marriage-backfi re-2014626115618169931.html, last accessed line: Addressing Forced Marriage Within the United Jan. 18, 2016. States,” (Gangashakti: 2013) at 9, available at http://www. hks.harvard.edu/cchrp/research/working_papers/VidyaSri_ 45. Alanen, supra n.10, at 11. VoicesFromTheFrontline.pdf, last accessed Jan. 18, 2016. Fraud can manifest in several ways, such as psychologi- 46. Domestic violence was historically regarded as a fam- cal and emotional manipulation, overseas trips with ulte- ily matter, but authorities increasingly recognize the fal- rior motives, or even facilitating a marriage without the lacy of this approach. victim’s knowledge in countries where the laws allow a family to conclude a marriage. 47. Forced Marriage in Immigrant Communities in the United States: 2011 National Survey Results, Tahirih 24. MD Code Ann., Crim. Law § 11-303(b)(2) (LexisNexis Justice Center (2011) at 5–7, http://www.tahirih.org/ 2014). wp-content/uploads/2015/03/REPORT-Tahirih-Survey-on-Forced- Marriage-in-Immigrant-Communities-in-the-United-States.pdf/. 25. Id. at § 11-303(e)(2). 48. The US defi nes human traffi cking as, “(a) sex traf- 26. Alanen, supra n.10, at 9. fi cking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced 27. As addressed in Part I of this series, forced marriage to perform such act has not attained 18 years of age; or victims can be adults as well as minors. (b) the recruitment, harboring, transportation, provision, 28. Minn. Stat. Ann. § 609.265 (2015). or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of 29. Miss. Code Ann. § 97-3-1 (2012). subjection to involuntary servitude, peonage, debt bond- age, or slavery.” 22 U.S.C. § 7102(9) (2010). The term “sex 30. Nev. Rev. Stat. § 201.300 (2015). traffi cking” is defi ned as “the recruitment, harboring, CUSTOM OR CRIME? 11 transportation, provision, or obtaining of a person for the the autonomy and choice to fashion her own legal objec- purpose of a commercial sex act.” 22 U.S.C. § 7102(10) tives, not unduly infl uenced by well-meaning counsel (2010). A commercial sex act is defi ned as, “any sex act or service providers, whose function is to develop and on account of which anything of value is given to or execute a strategy where possible to achieve her stated received by any person.” 22 U.S.C. § 7102(4) (2010). When objectives/outcomes. someone other than the unwilling spouse benefi ts materi- ally from the unwanted marriage, such as through bride 64. Alanen, supra n.10, at 15. price, dowry, land-for-bride, and so on, it does not nec- 65. Id. essarily mean the situation meets all the elements of the legal defi nition of traffi cking. 66. Part I provides an in-depth analysis of retaliation, which could involve anything from assault or battery, 49. Alanen, supra n.10, at 16. ostracization, acid attacks, and even murder.

50. Criminal protection orders or stay-away orders are 67. There is a variety of services a victim may need issued in criminal court, while civil protection orders or access to, such as housing, food, medical case, counsel- restraining orders are issued by family or domestic rela- ing, employment, transportation, and childcare if she has tions courts. Civil protection orders are quasi-criminal children of the forced marriage. If the victim is a minor, in nature because a violation can result in criminal child protective services or foster care may be involved. consequences. 68. Va. Code Ann. § 20-89.1(c) (2015). 51. Christopher T. Benitez, MD, Dale E. McNiel, PhD, and Renee L. Binder, MD, “Do Protection Orders Pro- 69. Id. tect?,” J. Am. Acad Psychiatry Law 38:376–85, 376 (2010). 70. Although the victim may not want such contact, 52. Id. at 376–377. the perpetrator could still seek to establish parentage through the court and get legal custody and access rights 53. Id. to the child, forcing contact. It is important to note that parental kidnapping or custodial interference are pros- 54. Heather Heiman & Ramatu Bangura, Forced Marriage ecutable crimes. The victim parent might want to explore in Immigrant Communities in the United States at 15, http:// the legal requirements for termination of parental rights victimsofcrime.org/docs/nat-conf-2013/ppt-tahirih-and-sauti- of the father or professionally monitored visitation cou- yetu-for-ncvc-conference-sept.pdf?sfvrsn=2, Sept. 9, 2013, last pled with restraining orders. accessed Jan. 18, 2016. 71. Cal. Fam. Code § 2212(a) (West 2015); California 55. Tahirih Justice Center, Policy Recommendations, supra Courts, http://www.courts.ca.gov/1037.htm (last accessed n.18. Jan. 18, 2016).

56. Hooper, supra n.44. 72. Cal. Fam. Code, supra note 71, at § 2251.

57. Tahirih Justice Center, Policy Recommendations, supra 73. Tahirih Justice Center, Policy Recommendations, supra n.18. n.18. 74. U.S. Dep’t of State, Foreign Affairs Manual, 9 FAM 58. Forced Marriage (Civil Protection) Act, 2007, c. 27, 41.81 N6.4 (2010); 8 CFR 214.2(k)(2)(2015). § 63A(1)(a)&(b), sched. 1 (Eng.). 75. Id. 59. Id. at § 63A(2)&(3). 76. Id. It is characteristic of some cultures that practice 60. Id. at § 63A(5). forced marriage to withhold interaction between the intended spouses until marriage. 61. Hutchinson OBE, supra n.16, Forced Marriage (Civil Protection) Act, supra n.58 at S. 63B(1). 77. Tahirih Justice Center, Policy Recommendations, supra n.18.

62. Benitez, MD et al., supra n.51, at 385. 78. Id.

63. Practitioners and other service providers must honor 79. Immigration and Nationality Act § 213A(f)(1)(B); the victim/survivor’s agency and voice, and afford her 8 U.S.C. § 1183a (2011). 12 AMERICAN JOURNAL OF FAMILY LAW

80. Tahirih Justice Center, Policy Recommendations, supra 92. Although unable to provide names and identifying n.18. details, the author has seen a T-Visa successfully obtained for a forced marriage victim when she was forced by her 81. The Tahirih Justice Center has extensive experience spouse and in-laws to work as a domestic servant under handling these types of cases, and should be contacted threat of violence. for technical assistance. 93. TVPA § 107(C), 8 CFR 214.11(b) 82. 8 U.S.C. §§1227, 1229 (2015). 94. Id. 83. Violence Against Women Act of 1994 (VAWA), Pub. L. No. 103- 322, 108 Stat. 1902 (1994). 95. Id.

84. INA §§ 204(a)(1)(A)(iii)(II)(AA), 204(a)(1)(B)(ii)(II) 96. In some countries, women are precluded from work- (AA). ing or moving about in public without a male family member escorting her. If ostracized, she may have lim- 85. VAWA self-petitioning regulations preamble. 61 Fed. ited ability to support herself fi nancially. Reg. 13068 March 26, 1996. 97. 8 U.S.C. § 1101(a)(42) (2006); 8 C.F.R. § 1208.13(b) 86. Leslye E. Orloff & Brittnay Roberts, Good Faith (2010). Marriage in VAWA Self-Petitioning Cases, Feb. 17, 2013, http://library.niwap.org/wp-content/uploads/2015/Immigration- 98. Kim Thuy Seelinger, “Forced Marriage and Asylum: Law-and-VAWA-Good-faith-marriage-2.17.13.pdf Evidence to Perceiving the Invisible Harm,” 42 Colum. Human Rights support a good faith marriage could consist of documents L. Rev. 55, 93–96 (2010). demonstrating shared assets and liabilities, documents demonstrating the cohabitation of the parties after the marriage, 99. Id. or birth certifi cates of children born during the marriage. 100. Id. at 57. “There is currently no precedent establish- 87. Violence Against Women Act of 1994, supra note 83. ing forced marriage per se as a form of persecution.” 88. INA § 214(p)(2)(A), 8 U.S.C. § 1184(p)(2)(A). 101. Id. at 96–103. 89. INA § 101(a)(15)(U)(iii), 8 U.S.C. § 1101(a)(15)(U)(iii). Qualifying crimes include rape, torture, sexual assault, 102. Id. at103–106. domestic violence, false imprisonment, abduction, and kidnapping—all potential components of a forced marriage. 103. This time limit can be waived in cases of changed or extraordinary circumstances. Practitioners have been 90. INA § 101(a)(15)(U)(i), 8 U.S.C. § 1101(a)(15)(U)(i). able to overcome this barrier by showing the psychological harm an applicant suffered leading to severe mental 91. TVPA § 107(B)(2) & (C) & (B)(2), 8 CFR 214.11(b) & (m). health issues.