FORCED MARRIAGE & MODERN SLAVERY

Freedom Network USA Conference 5-6 April 2017 Washington D.C

Laura Vidal National Projects Coordinator The Freedom Partnership-to End Modern Slavery Sydney, Australia [email protected]

ABOUT THE SALVATION ARMY FREEDOM PARTNERSHIP- TO END MODERN SLAVERY

The Freedom Partnership-to End Modern Slavery is the national response of The Salvation Army in Australia to respond to issues related to human trafficking, slavery and slavery-like practices. The Salvation Army in Australia has been undertaking this work for coming onto 10 years; having opened Australia’s only Safe House for victims in 2008. The work undertaken by The Freedom Partnership remains independent of the Australian Government. The Freedom Partnership:

. Mobilises community to effectively identify and respond to modern slavery . Engages with government, business, corporations and consumers to uncover, mitigate and remediate slavery in production supply chains . Partners with local, state and territory governments that develop and implement localised responses . Empowers survivor advocates to contribute their expertise

Since Forced Marriage was criminalised as a slavery-practice in 2013, The Freedom Partnership has expanded its work in this area to address Australia’s response and strengthen protections for individuals at risk. Including delivering in the following program areas:

. Community outreach and training—assisting communities to identify and appropriately respond to disclosures of early and forced marriage . Confidential advice and technical assistance—to individuals and organisations facing early and forced marriage, including information about Australia’s response framework and making referrals for assistance . Supported accommodation and case management—via Australia’s only trafficking and slavery safe house . Peer mentoring—working with survivors to mentor others facing forced marriage, offering support, insight, resources and guidance through complex social and cultural situations . Policy and advocacy—identifying and responding to gaps in Australia’s legal and policy framework that make it difficult for individuals at risk to seek help

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DEFINING FORCED MARRIAGE AS SLAVERY

The most commonly understood definition of forced marriage, is a marriage which is entered into without the full, free and valid consent of one or both parties; through physical and psychological duress.

Forced Marriage intersects with a diverse range of other crimes and social problems including child abuse, sexual assault and rape, family violence, stalking, female genital mutilation and human trafficking and slavery. Forced marriage is a complex problem that crosses over both private and public spheres and has detrimental consequences for those impacted.

Forced marriage, whilst affecting both men and women, has a disproportionately negative impact on women and girls. According to the United Nations Children Fund (UNICEF), 700 million women alive today were married as children, and a further 280 million will face forced marriage.1

Internationally, forced marriage has largely been viewed as a criminal justice issue with many across the globe lobbying for the criminalisation as a way to deter and prevent this practice from occurring. Arguments against criminalisation suggest that addressing the practice through this frame prevents people from being able to seek assistance and sends the practice further underground. Within the Australian context, the criminalisation of forced marriage has seen some positive benefits, including raising the profile of the practice and making some options available to individuals at risk.

Australia criminalised forced marriage in 2013 under the slavery provisions in the Commonwealth Criminal Code. As such, this paper outlines how forced marriage can be understood as a practice of slavery, but does not reject or deny how it intersects with other crimes or social problems.

International Conventions The 1926 Slavery Convention defines slavery as:

‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’2

Likewise, in the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, there is specific reference to exploitative marriage practices, whereby, marriage is referred to as a ‘institution or practice similar to slavery’3

1 http://www.girlsnotbrides.org/700-million-women-married-children-reveals-new-unicef-data/

2 http://www.ohchr.org/EN/ProfessionalInterest/Pages/SlaveryConvention.aspx

3 Each of the States Parties to this Convention shall take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of the following institutions and practices, where they still exist and whether or not they are covered by the definition of slavery contained in article 1 of the Slavery Convention signed at Geneva on 25 September 1926:

(c) Any institution or practice whereby:

(i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or

(ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or

(iii) A woman on the death of her husband is liable to be inherited by another person; http://www.ohchr.org/EN/ProfessionalInterest/Pages/SupplementaryConventionAbolitionOfSlavery.aspx

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The Special Rapporteur on contemporary forms of slavery has drawn links between child marriage and slavery, pointing out that States are obliged to prohibit and eliminate slavery as a non derogable and fundamental principle of international law4 Other references to States international obligations to address forced marriage and/or child marriage include:

. Convention on the Elimination of All Forms of Discrimination Against Women, Article 16, 2 “the betrothal and the marriage of a child shall have no legal effect”

. Convention on the Rights of the Child, Article 24,3 States parties should “take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children

Anti-Slavery International details that child and forced marriage can be referred to as slavery, if one or more of the following elements are present:

. If the child has not genuinely given their free and informed consent to enter the marriage;

. If the child is subjected to control and a sense of ‘ownership’ in the marriage itself, particularly through abuse and threats, and is exploited by being forced to undertake domestic chores within the marital home or labour outside it, and/or engage in non- consensual sexual relations;

. If the child cannot realistically leave or end the marriage, leading potentially to a lifetime of slavery

In many situations of forced marriage, there are often elements of force, fraud and coercion which can be likened to that of human trafficking. In addition to this, both the facilitation and result of a forced marriage, can mean that an individual may experience a deprivation of liberty.

Australian analysis- in brief

In a 2014 report by the Australian Institute of Criminology5, exploring marriage as a way to facilitate trafficking of people into Australia, they conclude that this issue suggests the existence of a separate category of human trafficking, one in which the exploitation element is neither exclusively labour related nor sexual, but the exploitation of the very personhood of the individual victim/survivor, through the individuals (1) labour- in the form of domestic servitude, forced labour outside the home or both (2) body- in the form of sexual servitude to their intimate partner and/or lack of control over child bearing (3) self- in the form of loss of freedom and psychological bondage. The 2013 offences, introduced an offence of forced marriage, but in addition to that expanded existing definitions to include servile marriage which includes a person being sold, transferred or inherited into a marriage as a condition similar to slavery.

4 Thematic Report on Servile Marriage as referenced by United Nations General Assembly, Human Rights Council 26th Session, ‘Preventing and elimination child, early and forced marriage’, Report of the office of the United Nations High Commissioner for Human Rights (2014) p.5

5 Lyneham S, & Richards K. (2014) Human Trafficking involving Marriage and Partner Migration into Australia http://www.aic.gov.au/media_library/publications/rpp/124/rpp124.pdf

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Australian academic Dr. Kaye Quek, in her 2013 thesis argues that forced marriage meets the international legal criteria for trafficking in persons, and suggests a wider problem of ‘marriage trafficking’ that should be recognised as a contemporary form of trafficking and slavery. Dr. Quek also introduces the concept of human trafficking in the context of family violence which is supported by a recent research report completed by RMIT University and The Salvation Army. Following a study of survivor experiences and consultation with service providers, this research finds that when we address forced marriage in the context of both trafficking, slavery and family violence it calls for a more robust and specialised response framework. One, that stands alone from existing frameworks but recognises that it is a unique form of violence involving multiple, fundamental abuses of human rights.

Characteristics or motivations behind forced marriage are also widely reported and can be likened to other forms of exploitation, that too, meet the definition of slavery. Environment and context contribute significantly to the underlying causes of forced marriage. In the majority world, poverty and insecurity are the root causes of early and forced marriage; often child and early marriage is strongly associated with girls who have received little or no formal education.6 In the west however, forced marriage presents differently and can be characterised by:

. A desire to uphold customary and/or . Control gender/sexual orientation religious practices . Facilitate migration . Enforced social control . Mixed interpretations of rights and . Financial gain/benefit choice

With respect to considering forced marriage as a form of Human Trafficking and the 3 core elements that constitute human trafficking ‘act-means-end’ Australia is a good case for this discussion, as many proposed marriages of force occur overseas. These are marriages facilitated by coercion and deception that often result in consequent forms of exploitation.

Australia’s definition of Forced Marriage

Forced Marriage is defined under Australia’s Commonwealth Criminal Code 1995 (Cth) S270.7A as—

A marriage is a forced marriage if one party to the marriage (the victim) entered into the marriage without fully and freely consenting:

(a) because of the use of coercion, threat, or deception OR (See Table 1 below)

(b) because the party was incapable of understanding the nature and effect of the marriage ceremony

The criminal code also includes a presumptive offence which sets out that any marriage facilitated under the age of 16 is automatically deemed to be forced as the individual involved is a child and incapable or providing full and free consent.

6 Human Rights Council 26th Session (2 April 2014), Annual Report of the United Nations High Commissioner for Human rights and reports of the Office of the High Commissioner and the Secretary-General, ‘Promoting and eliminating child, early and forced marriage’ P. 7 Accessible at: http://www.girlsnotbrides.org/new-ohchr- report-child-early-forced-marriage/

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Coercion, threat and deception are central elements to a universally understood definition7 of human trafficking which remain cornerstones of Australia’s legislation in relation to human trafficking and slavery.

Forced marriage offences carry a maximum penalty of seven years’ imprisonment, or nine years’ imprisonment for an aggravated offence. An offence may be aggravated in several circumstances, including where the victim is under the age of 18 and is taken overseas for the purpose of forced marriage, the maximum penalty in these instances increases to 25 years’ imprisonment.

Table 1 Definitions of Coercion, Threat and Deception as per Commonwealth Criminal Code 1995 (Cth) S20 & 271

Coercion Threat Deception "coercion " includes coercion by "threat " means: "deception " means an any of the following: (a) a threat of coercion; or intentional or reckless deception, (a) force; whether by words or other (b) a threat to cause a person's conduct, and whether as to fact (b) duress; deportation or removal from or as to law, and includes: Australia; or (c) detention; (a) a deception as to the (c) a threat of any other intentions of the person using the (d) psychological oppression; detrimental action, unless there deception or any other person; are reasonable grounds for the and (e) abuse of power; threat of that action in connection with the provision of (b) conduct by a person that (f) taking advantage of a person's labour or services by a person. causes a computer, a machine or vulnerability. an electronic device to make a Note: Threat includes a threat response that the person is not made by any conduct, whether authorised to cause it to do. express or implied and whether conditional or unconditional

As discussed above, forced marriage has a clear nexus with the definition of slavery, and arguably in some situations human trafficking; there does however remain some contention in Australia about how the explicit framing of forced marriage as slavery has limited Australia’s response, and neglected acknowledgement of the intersections between forced marriage and other crimes such as child abuse and family violence.

The introduction of forced marriage into Australia’s slavery offences, led to an expansion of Australia’s support program for victims of human trafficking and slavery to simply include this population, it did not however adjust the program parameters to meet the distinct needs of these individuals as outlined below.

7 Article 3, Paragraph (a) ‘Protocol to Prevent, Suppress and Punish Trafficking in Persons’—Trafficking in Persons as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs

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SNAPSHOT OF FORCED MARRIAGE IN AUSTRALIA

The true extent of forced marriage in Australia is unknown. It has been reported by the Australian Government that referrals to federal law enforcement primarily involve Australian Citizens under the age of 18; with relatives alleged to have organised or be organising a marriage without their free and full consent. The Salvation Army experiences a similar dynamic, but would add that marriages are usually arranged to take place overseas, rather than on Australian soil.

Like many other forms of trafficking and slavery, the fear and shame associated with reporting offender’s impacts on understanding the true prevalence of forced marriage across Australia. Forced Marriage is further complicated by the fact that the primary offender in situations of forced marriage are typically family and/or community members.

In 2015-2016; the Australian Federal Police received 69 reports of forced marriage, representing 41% of all referrals to the human trafficking division of the Australian Federal Police. During the same period, the Freedom Partnership received 15 referrals of forced marriage exclusive of those also known to the Australian Federal Police. To date in 2017, the Freedom Partnership has provided assistance in 4 cases of forced marriage, including providing safe accommodation via the Trafficking and Slavery Safe House.

RESPONDING TO FORCED MARRIAGE IN AUSTRALIA

Established earlier is the clear legal definition of forced marriage in Australia’s criminal code. The Commonwealth Criminal Code 1995 (Cth) is national legislation that is investigated by the Australian Federal Police. Australia does not have uniform legislation with respect to trafficking and slavery offences. No other State or Territory in Australia has an offence of trafficking or slavery, or related offences therefore centralising the response to the federal code.

Prior to the criminalisation of forced marriage as slavery, civil remedies were and continue to be utilised to address forced marriage including the Federal Marriage Act (1961) and the Family Law Act (1975)8. These remedies are alternatives to criminal pathways for protection but have limitations with respect to age. For example, provisions under the Family Law Act are only in place until an individual turns 18 years of age.

Responses from State and Territory Child Protection departments remain varied as the issue is emerging across the country. In some states, there is specific mention of child marriage as a risk of significant harm, whilst it others it can be assumed that the risk of harm will be identified through other forms of abuse and neglect including physical violence, premature withdrawal from school and other similar behaviours.

Outlined below is a description of Australia’s response to victims of trafficking and slavery, inclusive of forced marriage, and the support program that is made available to those willing and able to assist federal law enforcement9.

8 See: Appendix 1

9 See: Appendix 2

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AUSTRALIA’S SUPPORT FOR TRAFFICKED PEOPLE PROGRAM

Australia’s policy regarding victims of trafficking and slavery requires that individuals must engage with federal law enforcement to be assessed and their status determined as a potential victim of trafficking or slavery before they are offered access to a government support program.

This means that a potential victim of forced marriage or somebody who has been through a forced marriage must report their concerns to federal law enforcement before they are able offer safety and support through a government funded support program.

The government funded support program is delivered by a single non-government organisation nationwide and allows for:

. A 90-day reflection period whereby individuals can decide if they wish to have ongoing engagement with federal law enforcement and federal law enforcement can establish if they have the workings of a criminal investigations . During the 90-day reflection period, the individual is offered support via the support provider which includes provisions for emergency financial assistance, accommodation and case

management support . Following the 90-day reflection period, if both the individual and law enforcement agree to the full investigation, the individual is offered ongoing support through the support program and for the duration of the investigation; should they not with to proceed alternative support arrangements need to be made.

Participants who are not residents or citizens of Australia also have access to a visa framework to support their stay in Australia whilst contributing to a criminal investigation. It should be noted that this visa framework is not self-petitioning and is reliant on ongoing recommendation from government agencies, linked explicitly to ongoing participation in the criminal investigation.

The program offered by The Freedom Partnership provides an alternative to the approach funded by the Australian Government. Together with other partner organisations, individuals at risk of forced marriage are provided with confidential advice, supported accommodation, material assistance access to legal advice, service coordination and comprehensive case management. Services are provided utilising a trauma-informed and rights-based approach. In our experience of providing these services, individuals at risk of or who have experienced forced marriage require long term, intensive support that is disconnected from a criminal justice agenda.

DISCUSSION AND RECOMMENDATIONS

Some of the challenges currently being faced in the Australian context evolve from forced marriage being understood explicitly as a practice of slavery, when it presents uniquely to that of other forms of exploitation under the criminal code.

The cooperation requirement in particular presents significant barriers for individuals to access support. Individuals at risk are typically under the age of 18 with family members primarily responsible for facilitating the marriage. The framework places the burden of responsibility on the individual at risk, to report their circumstances to federal law enforcement in order to be able to access support. The participation rate in the framework is understandably low, and often means that individuals remain at risk as viable alternatives are either unavailable or underdeveloped/resourced.

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Some alternatives are being utilised including provisions under the Family Law Act 1975. The attached case study10 outlines how these provisions were utilised as an alternative. Whilst this alternative exists, it does again require the individual to litigate against their family, therefore only being able to be deployed in a small number of cases. Cases whereby a victim is prepared to this and feels safe enough to do this.

As alluded to above, child protection responses across States and Territories remain inconsistent, with some recognising ‘child marriage’ as a form of significant harm, and others, not. In some States and Territories, child protection agencies are developing practice frameworks that direct agency staff to report immediately to law enforcement when a report child marriage is received. This loops back to the original challenge where many individuals at risk do not wish to engage with the federal legal framework.

The response framework for slavery offences is distinctly different to other frameworks related to victims of violence. In the example of family violence situations, the state can bring proceedings against a violent offender, vs. the burden of responsibility remaining solely on the victim. Apprehended Domestic Violence Orders or Intervention Orders, put in place specific protective mechanisms for victims of family violence. They are difficult to apply in situations of forced marriage, where at times the threat of a marriage does present enough substantive evidence to initiate the order, or, actual violence has not occurred in order to initiate the order. Australia is currently considering the implementation of a similar order to that of the United Kingdom, a ‘Forced Marriage Protection Order’11.

What Australia’s response demonstrates is action on its obligations under the 1926 Slavery Convention. It also shows international leadership in conceptualising forced marriage as involving a unique set of circumstances that does stand it alone, to other forms of gender based violence and family violence.

That Australian Government has taken steps to recognise the practice and has funded and convened activities to raise awareness and offer legal services; however, a great deal of work remains to be done to ensure a holistic and comprehensive response for individuals facing forced marriage. In our experience, these individuals require specialised long-term support that acknowledges and accommodates the complexities of their situation.

10 See: Appendix 3

11 Section 1 of The Forced Marriage (Civil Protection) Act 2007 inserted provisions into the Family Law 1996 enabling the courts to make Forced Marriage Protection Orders (FMPO) to prevent forced marriages from occurring and to protect those who have already been forced into marriage. The order can include prohibitions, restrictions or requirements to protect a victim from a spouse, family member or anyone involved. Involvement can include aiding, abetting, counselling, procuring, encouraging, or assisting another person to force or attempt to force a person to marry. FMPO’s can last for a specified time or if the court so desires, set the FMPO for an indefinite period i.e. until varied or discharged. The order can relate to conduct either within or outside of England and Wales. See: http://www.inbrief.co.uk/marriage-law/forced-marriage-protection-order/

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Failure to effectively address forced marriage leads to proliferation of severe and long lasting impacts; including forced and early pregnancy, physical and psychological violence, decreased access to education and employment opportunities, financial dependence and in some cases forced labour.

What we have learned since 2013, is that, framing the issue accurately is not just important on a definitional level but it contributes to the framework developed for response. Currently depending on the case various different legal and social service frameworks are stretched and expanded to try and meet individual needs. What we do need, is a recognised, streamlined and uniformed suite of protections that efficiently and adequately meet the needs of those at risk. In many ways, the definition is secondary to the response.

Our current recommendations to the Australian Government include:

1. Review of the current support program offered to victims and an assessment of its applicability to individuals facing forced marriage;

2. De-link support services from participation in criminal justice processes;

3. Provision of support services regardless of an individual’s capacity or willingness to engage with the criminal justice process. The absence of this, in particular the absence of safe accommodation services is a barrier to preventing forced marriage;

4. In cooperation with states and territories, revise Australia’s current Action Plan12 to include specific, measurable and funded steps to facilitate a more coordinated response: a. As part of this process, the federal government should work with states and territories to update relevant legislation to ensure it is effectively synchronised with federal legislation b. The Federal government should then work with states to develop clear response protocols between key stakeholders and provide supplemental funding to build states’ and territories capacity to efficient identify and appropriate respond to disclosures of forced marriage

12 Australia's National Action Plan to Combat Human Trafficking and Slavery 2015–19 provides the strategic framework for Australia's response to human trafficking and slavery. The plan was developed with government and non-government partners See: https://www.ag.gov.au/CrimeAndCorruption/HumanTrafficking/Documents/Trafficking- NationalActionPlanToCombatHumanTraffickingAndSlavery2015-19.pdf

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APPENDIX ONE – Excerpts of relevance from The Marriage Act 1961 (Cth) and Family Law Act (1961)

Marriage Act 1961 (Cth) . The Commonwealth Marriage Act 1961 (Cth), provides remedies to address forced marriage including; - By definition, the victim of a forced or servile marriage has not consented to the marriage, therefore the marriage (if performed in Australia) would be void under the Marriage Act. The marriage may also be void if consent was obtained by duress or fraud, the party was mistaken about the identity of the other party or the nature of the ceremony performed or the party was mentally incapable of understanding the nature and effect of the marriage ceremony. - Section 95 of the Marriage Act outlines the criminal offence for a person to go through a marriage ceremony with a person who is not of marriageable age, unless there is an exceptional circumstance as defined in the Act. The marriage will be void if either of the parties was not of marriageable age. - It is an offence for a marriage celebrant to solemnise a marriage if the celebrant has reason to believe there is a legal impediment to the marriage, or if the celebrant has reason to believe the marriage would be void The Marriage Act only has application to marriages under Australian Law (i.e. marriages that take place within Australia) The Marriage Act has no application when an Australian is married overseas. However, a marriage that takes place overseas may be recognised when a couple move to Australia. If one of the parties to the marriage was of unmarriageable age or did not consent freely, the marriage would not be recognised under Australian law. . In Australia it is prohibited for a child under 16 years of age to be married unless they have arrived from another country where the marriage was legal. Children 16-17 years may marry an adult in Australia under special circumstances. This requires the consent of the parents and a Court Order allowing the marriage to take place; . The Commonwealth Criminal Code (1995) includes a presumption offence, which assumes that any person married under the age of 16 was forced, as they were unable to give informed consent to the marriage. Family Law Act 1975 . Section 51: Divorce and nullity of marriage. An application under this Act for a decree of nullity of marriage is based on the grounds that the marriage is void. A marriage can be made void as noted above in the Marriage Act is consent was obtained by duress or fraud . Section 68B: Injunction—which can include Airport Watch List Orders13. An Airport Watch List Order can be made by the Australian Federal Circuit Court, which prohibits a child from being taken

13 Airport Watch List or Family Law Watch List orders: the AFP maintains the Family Law Watch List for family law matters. This system is designed to alert police to the movement of children. It identifies whether Children are leaving Australia and any of the following circumstances are in place (a) the court has issued a parenting order limiting or preventing a child’s overseas travel (b) the court has issued an injunction limiting or preventing the child’s overseas travel (c) the child is subject to a parenting order application before the court that may limit or prevent overseas travel (d) the child is subject of an application for an order to place the child on the Family Law Watch List or (e) the child is subject of a parenting order or injunction under appeal

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APPENDIX TWO – Australia’s Support Program for Victims of Human Trafficking and Slavery

Centrelink—National income support program provided by the Australian Government

Medicare—Universal health care entitlement

AFP—Australian Federal Police

AG—Attorney General’s Department

DIPB—Department of Immigration and Citizenship

RC—Red Cross (The Australian Government Support Provider)

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APPENDIX THREE – Case study provided by Legal Aid New South Wales- Early Intervention Unit

April 2013 –Legal Aid New South Wales was approached by “Mena” with support of her school counsellor and Principal. Mena was in year 9 at high school and had fears about forced marriage. Legal Aid advised Mean of her options under the Family Law Act; part of this discussion also included the implications her actions with the court may have on the relationship wither her parents. Over a few months since receiving initial advice, Mena’s concerns increased where she thought that the marriage would take place sooner than she though. In November 2014, an application was filed in the Federal Circuit Court for protections against being forced into marriage.

Mena was placed on the Family Law Watch List (airport alert) and other family law orders were in put in place including withholding of passport at the court, mandated attendance at school and family mediation.

Mena’s relationship with her parents became strained and as a result she moved into youth homelessness accommodation. In court proceedings Mena’s parents admitted to the plans to force Mena to marry.

Final orders were put in place which stated that Mena could not marry until 18 years old.

At the conclusion of family mediation, Mena returned to live at her parent’s home.

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