10 - Jessica-Ann Spiteri

Jessica-Ann Spiteri Dissertation summary of the constitutive elements of the crime of forced marriage punishable under Article 251G of the Criminal Code

Jessica-Ann Spiteri has very recently graduated from the University of Malta with a Bachelor of Laws (Honours) degree. She is currently following the Master of Advocacy course at the same university, and her legal interests include criminal law, family law and the law of obligations, more specifically relating to tort law.

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1. Introduction

T

his dissertation not only delved into the matter of forced marriage, but also in regard to abduction. Forced marriage might be seen as a tradition in many countries, however, in others, it is considered to be a crime. The articles and regulations regarding forced marriage were introduced in Malta in 2014 and, from the author’s point of view, were never analysed thoroughly.

The author started by explaining and clarifying not only the concept of forced marriage, but also the elements which together form such crime. The crime of abduction was later linked with the crime of forced marriage. One then finds an examination of the evolution and development of the crime of forced marriage on the international plane and how forced marriage became known as it is classified today. Furthermore, Malta was compared with other countries so as to show its progress to protect not only the victims of such degrading crimes, but also the aim to protect society in general.

2. The definition of Forced Marriage, and the Analysis of Article 251G of the Criminal Code By way of introduction, the concept of forced marriage is found under Article 251G of the Criminal Code.1 Forced marriage is different from other acts by which a union may be formed. This is because such marriage takes place when a bride or groom (or both) are made to marry against their volition.

This means that there would be an involuntary union on one or both sides.

A union is described in many ways, but most importantly, it is described as a solemn act between two people whereby such union would be governed by the laws and statutes of the country where the newlyweds got married. This definition does not apply in any way to a marriage which has been forced on the bride or groom. Marriages that have been entered into without consent being fully and freely given are tainted by coercion, violence, or even threats which would have been made by the families of the spouses. Unfortunately, many choose to stay in such a sham of a marriage which, amongst other things, would end up leading to sexual slavery, early pregnancies, and also marital rape. There are numerous reasons why many pushes for such union to take place. According to the United Kingdom’s Foreign and Commonwealth Office, forced marriage occurs for many reasons; for instance, to protect the 1

Criminal Code, Chapter 9 of the Laws of Malta, 1854.

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family honour, to exercise control over the victim’s sexuality or wealth so as to acquire financial gain, or to strengthen family links.2 It has to be kept in mind that a forced marriage and an arranged marriage are not alike, even though there may be similarities. The main difference between both scenarios is that of consent. When an arranged marriage is to take place, one family or even a third party with a child they want to marry off would communicate with other families who want to do the same with their own, and thus get their respective children to form a suitable union. If an agreement is reached, consent is to be tendered by both spouses for the arranged marriage to be valid. The final decision is in their hands as they have the choice to accept or reject each other and, if they do accept, give their consent without the use of force. On the other hand, in a forced marriage, various methods could be used so as to compel the victim to partake in such union. There are instances, however, which may make it problematic to differentiate between forced and arranged marriages3. Unfortunately, the concept of forced marriage has caused considerable turmoil since the very first cases that occurred in Sierra Leone. Several court judgments on the issue of forced marriage paved the way to the creation of criminal law provisions in various countries and new legal and judicial mechanisms to combat this crime.

These will be discussed and explained during the progression of this paper. One ought to start with the analysis of Article 251G of the Maltese Criminal Code which states that: Any person who by force, bribery, deceit, deprivation of liberty, improper pressure or any other unlawful conduct or by threats of such conduct, forces anyone to enter into a marriage shall be guilty of causing a forced marriage and shall, unless the fact constitutes a more serious offence under any other provision of this Code, be liable on conviction to imprisonment for a term from three to five years: Provided that any act so made in contravention of this provision shall be null and without effect at law.

Forced marriage is a concept which, when defined, can be deconstructed into a number of layers. The first layer would be that of compelling the victim 2 â&#x20AC;&#x2DC;Forced Marriage FAQs*â&#x20AC;&#x2122; (Global Justice Initiative) < https://globaljusticeinitiative.wordpress.com/forced-marriage-2/forced-marriage-faqs/ > accessed 22 October 2019.

3 Ibid.

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to marry by force which can be exerted either by physical or by psychological manipulation. In this situation, the victim would be forced to do something which they would not normally do. Another facet is that of bribery, which is tackled under this article as well as in several other provisions of the Criminal Code. This situation involves money, favours, or promises affecting a personâ&#x20AC;&#x2122;s judgment. Oneâ&#x20AC;&#x2122;s conduct could also be tainted especially when bribery occurs in relation to a person in a position of trust like an officer of the law. Bribery can also involve a family member like a parent; for example, the promise of a sum of money may induce them to force their child into marriage. There is also the element of improper pressure, with varying effects, where the victim would be constantly under the excessive pressure of a dominant superior of a more powerful will and mind.

When dealing with the element of consent, it has to be kept in mind that marriage is a contract. Therefore, just as a contract would only be valid if the necessary elements are visible, so does marriage. Under contract law, the four necessary elements are capacity, consent, object and consideration, also known as causa. The issue which is deeply discussed in this paper is that of consent, which entails the notion that one can opt out of such contract if such consent is defective. Unfortunately, in the case of a forced marriage, this is easier said than done. In such case, consent can be vitiated in three ways, that is by error, violence, or fraud. When it comes to consent extorted by violence, this need not necessarily be physical violence, but is very often moral violence. Clearly in this case, a contract can be annulled by the person who shows that the consent given is defective. In the case of forced marriage, violence is a common factor.

The Marriage Act, and formerly the prevalent canon law, are used to explain when a marriage can be annulled.4 This is because when nullity is pronounced, it has a retroactive effect as the marriage is declared null from the moment it was contracted. Thus, a forced marriage can be likewise declared to be null. Consent is of utmost importance in the offence of forced marriage as it has to be coerced out of the person. According to Article 11 of the Marriage Act, marriage can only be valid if all provisions relating to the formal validity of marriage are observed and satisfied. The annulment of such a marriage is only valid and accepted if the demand is made within two years of its celebration. In a forced marriage, there is no time limit to when one can go against the perpetrator of this criminal offence. Moreover, Article 19(a) makes it clear that when consent was brought about by fear and 4

Marriage Act, Chapter 255 of the Laws of Malta, 1975.

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violence of any kind, it is void. Under canon law, there is also a reference in relation to a marriage entered into because of force and fear.5 Fear is an element which, like violence, is created from undue pressure or influence being imposed on the victim. A person who is afraid will easily do what they are told. Fear can affect the person in many ways, and this is clearly seen in different provisions in the law such as in Article 978 of the Civil Code.6 This article explains how consent may be extorted by violence.

The impression left on a reasonable person when the test of the reasonable man is applied has to be grave in an absolute or relative manner and also extrinsic. In such a situation, for fear to invalidate the marriage it must be such that the fear could not have been avoided except through marriage.

This means it must not be the result of simply fertile imagination of the spouse. Absolute fear would compel any well-balanced man to enter into a marriage against his own will. This, therefore, involves an objective type of fear. Relatively grave fear refers to lesser evils which, if inflicted on certain persons of a timid nature, could result in fear. Furthermore, violence could be inflicted on such a victim by threatening their descendants.7 However, in the case of reverential fear, if there was no violence inflicted against the persons mentioned under Article 980, this is not enough to invalidate a contract.8 Therefore, the courts in such a case use a â&#x20AC;&#x2DC;checklistâ&#x20AC;&#x2122; to determine the element of fear. First of all, the fear inflicted has to be grave. Secondly, the person inflicting such fear has to be able to carry out the threat. Thirdly, fear of threats has to be the principal reason the marriage was contracted.

In addition, other elements constitute a forced marriage such as unlawful conduct and threats.

It is important to understand what makes up the criminal offence of a forced marriage and that one is to identify the actus reus and the mens rea to understand what it entails. The affairs of the act carried out are known as the actus reus, also known as the external, physical element of the offence or the material condition which is the carrying out of an act by the person who is to be held accountable for his acts. The mens rea is not only the mental element but also the formal condition which describes the guilty mind. It is important that both sides coincide with each other as the Latin maxim â&#x20AC;&#x2DC;actus 5 6 7 8

Ibid.

Civil Code, Chapter 16 of the Laws of Malta, 1870.

Ibid.

Ibid.

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non facit reum nisi mens sit rea’ implies.9 So, the act alone does not amount to guilt as it must be accompanied by a guilty mind. However, this guilt has to be a legal guilt and not a mere moral guilt.

From here one is to examine Article 251G and its elements of ‘actus reus’ and ‘mens rea’. The first element is that of force which one makes use of, and the mental element which can be of two forms. It can either be the thought of making the victim do his bidding by using physical exertion or by verbal abuse. By badgering another person, for example, to marry oneself, or to help oneself to marry another person, can be seen as a form of improper pressure. When such pressure is applied, the person would feel distressed, worried, and even harassed and would, in the end, do their bidding. There is also the use of any unlawful conduct, the use of threats, bribery, or deceit, and the deprivation of liberty. One has to ask if these elements are to be examined all together or separately, one offence at a time. For the offences to lead to a forced marriage, they must have been carried out for the sole result of the achievement of forced marriage. The mens rea and the actus reus in this case can vary as there are different acts which can lead to a forced marriage. If, for example, one is to examine the notion of deceit, the mens rea is knowingly falsifying statements in order to lead to forced marriage, while the actus reus would be the false statement itself. The offence of bribery under Article 115 of the Maltese Criminal Code deals with the corruption of persons of authority.10 In this case, the mens rea can be seen as the intent to knowingly corrupt an official who is on duty, while the actus reus is the bribe being offered to such an official. In the context of forced marriage, however, the act of bribery is similar, but there is no official involved. The situation, for example, can be person A wanting to marry person B’s daughter C, and so he gives him an offer he could not refuse to make her marry person A against her will. When examining the offence of a threat, the tone of voice, language and physical exertion are taken into consideration. The mens rea of such an act would be perceived by the reasonable man as a threat with the intention to harm his life.

The actus reus in this case does not have to be any physical confrontation.

In this case the threat itself would be the actus reus because any reasonable 9 10

‘an act doesn’t make a man guilty of a crime, unless his mind is also guilty’.

Criminal Code, Chapter 9 of the Laws of Malta, 1854.

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person would understand that the words uttered constitute a threat.11 The relationship between such persons, the reasons for such threats, and other elements have to be considered individually.12 The last factor to be considered is the offence of deprivation of liberty. In this situation, deprivation of liberty one being physically detained to be married against their wishes or where someone is controlled and kept in a forced marriage.

Last but not least, on the conviction of the offence of forced marriage, the offender would be liable to imprisonment of between three to five years, but different situations can aggravate such an offence. Also, a forced marriage would be declared null and without effect in the eyes of the law. Even though the law is able to punish the perpetrator, it would not always be possible for the victim to report such offence.

3. The offence of Abduction, under Article 199 of the Criminal Code, in relation to the offence of Forced Marriage After examining forced marriage, it is interesting to understand why the author linked such article with that of abduction under Article 199 of the Criminal Code. One can see that some of the elements of abduction are similar to that of a forced marriage. One should note that the word ‘abduction’ can be used interchangeably with the word ‘kidnapping’.13 Abduction does not only arise if the person is removed from one’s country, but also when the person is taken against their will within the same country. The crime of abduction has been recently updated by Act XVIII of 201814 where Article 199 states that: Whosoever shall, abduct any person with the intent to harm such person, shall, on conviction, be liable to imprisonment for a term from six to twelve years.15 11 Edmonton Criminal Defense Lawyer, ‘Uttering Threats’ (ZIV Law Group: Albert Criminal Defense Lawyer, 17 February 2016 < http://www.criminallawyeralberta.com/uttering-threats/ > accessed 20 February 2019.

12 Ibid.

13 ‘Kidnapping V. Abduction’ (uslegal, 2019) < https://kidnapping.uslegal.com/kidnapping-v-abduction/ > accessed 22 October 2019.

14 Act No. XIII of 2018.

15 Criminal Code, Chapter 9 of the Laws of Malta, 1854.

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Furthermore, if the abductor kidnaps a person under the age of 18 years by the use of fraud or seduction, the punishment of imprisonment from six to twelve years is increased by one or two degrees. Moreover, abduction can occur not only to a person who has reached the age of majority but also to a child, who in Malta is categorised under the age of sixteen.16 There is also the situation of parental abduction, where a parent abducts their own child and removes them from their place of habitual residence without consent. This case is different than when one is abducting for the aim of marriage.

Parliamentary debates were studied when the scenario of abduction was discussed. Article 199 was recently updated while Article 200 was repealed.

The original version of Article 200 gave rise to much debate and controversy.

The minutes of the parliamentary debates of Act XIII of 2018, which relates to the creation of the new Gender-Based and Domestic Violence Act of 2018, were examined.17 In the second reading, considerable importance was given to the Istanbul Convention, emphasis being made on the numerous articles that came to be enforced as part of the laws of Malta.18 This was done so that individuals are protected and also to promote the rights of people. Those who are aimed to be mainly protected by this Act are those who would be at risk of domestic violence, as people should have a life free and unencumbered form violence. For the articles of the Istanbul Convention to be enforced in Malta, both Chapter 481 and Chapter 532 had to be repealed to pave the way for the creation of the new Gender-Based and Domestic Violence Act.19 By understanding the nature of domestic violence and gender-based violence, one can start to understand why the articles in the Criminal Code on abduction had to be changed. Abduction under the Criminal Code does not seem to be referring to the abduction of a child by the parent as explained above, but to a situation where one is abducted by a stranger, acquaintance or other persons for the sole aim of harming the victim. This offence falls under crimes of gender-based violence just like the offence 16 Child Abduction and Custody Act, Chapter 410 of the Laws of Malta.

17 Gender-Based Violence and Domestic Violence Act, Chapter 581 of the Laws of Malta.

18 Ulla Jurviste and Rosamund Shreeves, â&#x20AC;&#x2DC;The Istanbul Convention: A Tool to Tackle Violence Against Women And Girlsâ&#x20AC;&#x2122; (europarl, 2018) < http://www.europarl.europa.eu/thinktank/ en/document.html?reference=EPRS_ATA(2018)630297 > accessed 22 October 2019.

19 Council Of Europe Convention On Prevention And Combating Of Violence Against Women And Domestic Violence (Ratification) Act, Chapter 532 of the Laws of Malta; and Domestic Violence Act, Chapter 481 of the Laws of Malta.

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of forced marriage under Article 251G.20 The offences of abduction and forced marriage were implemented and enforced as part of the laws of Malta because of the ratification of the Istanbul Convention. The protection which is provided by Act XIII of 2018 to gender-based violence victims varies.

However, Malta has been doing its utmost so as to protect society in general against gender-based violence and domestic violence. By the aid of Article 6 of the Gender-Based Violence and Domestic Violence Act, Malta established a Commission to provide a comprehensive approach towards such crimes.

The Commission strives to create a better mechanism to prevent or eradicate all forms of violence related to this Act. This entity provides further assistance to victims of gender-based violence and domestic violence. The creation of a Designated Agency authorises the Minister responsible for equality to appoint organisations, bodies or institutions to provide treatment programmes for victims and transgressors. Article 19 of the Act describes services to be provided to such bodies. Moreover, victims are better protected by the creation of helpline facilities equipped with specialised support services in relation to these crimes. Victims are further assessed by experts so that their needs are met and where necessary accommodation and shelters are provided.

It seems that there is a nexus between forced marriage and abduction.

Here, one is not referring to parental abduction, but to the case of abduction for the sake of marriage. In both offences, consent is not given freely by the victim. In the case of abduction, as in forced marriage, the victim endures mental suffering and physical violence. The abductor may make use of threats, physical violence, coercion, improper pressure, sexual violence and force which would lead to fear so grave as to compel the victim to marry her abductor just as in the case of a forced marriage. Furthermore, the victim is deprived of one’s liberty as one would have been abducted and held against one’s will. Intention to harm by abduction under Article 199 implies a variety of situations. Harm from abduction can even result from the marriage the victim was compelled to enter against one’s wishes. When fear and other elements in relation to abduction for the sole aim of marriage are used, it seems to result in a forced marriage.

Before Article 199 was updated, it used to refer directly to the use of violence to abduct the person one forcibly wanted to marry. Although this article has been updated, the description is still somewhat loose. Article 200, which today is repealed, dealt with the situation where the offender releases 20

Criminal Code, Chapter 9 of the laws of Malta, 1854.

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the abducted person. Various commentators around the globe considered it as a sexist provision that went against the morals and values of women.21 It would seem that Article 200, before it was repealed, went against Article 251G which was implemented in 2014. This is because the accused who carried out the abduction for the sole aim to marry would not be held criminally liable even though such a union would seem to be a forced marriage if a complaint is made by the victim. According to Stephen Tonna Lowell in an opinion piece in the Times of Malta, the offence under Article 200 was the only provision which came close to kidnapping.22 However, he stated that it was not true that the accuser would have immunity from prosecution of such an offence.

To date, Malta has not stopped using its available resources to cater for the victims, witnesses and the accused of gender-based violence and domestic violence. A strategy known as ‘#istandforzeroviolence’ was created and is still followed to protect the victims and educate the Maltese population on the matter.23 Another initiative was created by the Human Rights and Integration Directorate known as ‘Full cooperation zero violence’.24 Its aim was to strengthen cooperation between different sectors and groups so that they would collaborate to better handle such violence. All in all, Malta is currently striving and doing its best to protect its population against genderbased violence. However, it seems that there are more services provided for those who have endured domestic violence. Services for gender-based violence in relation to abduction should be more specific.

Unfortunately, a judgment relating to abduction surfaced recently in Malta in which, apart from the offence of abduction, a 21-year-old Italian was also gang raped. This was the case of Ir-Repubblika ta’ Malta kontra Omissis U Liban Hussein Mohamud, which described the moment when the victim 21 Yosola Olorunshola, ‘10 Ridiculously Sexist Laws That Have No Place In The 21St Century’ (Global Citizen, 28 November 2016) < https://www.globalcitizen.org/en/content/10-ridiculously-sexist-laws-you-wont-believe-still/ > accessed 22 October 2019; and Nina Strochlic, ‘The World’s Craziest Anti-Women Laws’ (Daily Beast, 16 February 2015) < https://www.thedailybeast.com/the-worlds-craziest-anti-women-laws > accessed 22 October 2019.

22 Kristina Chetcuti, ‘With this ring, I thee abduct...’, Times of Malta (25 February 2015) < https://timesofmalta.com/articles/view/With-this-ring-I-thee-abduct-.557503 > accessed 22 October 2019.

23 ‘Plenary Session Sitting No.: 073’ (Parliament, 2018) < https://parlament.mt/en/13thleg/plenary-session/ps-073-24012018-0400-pm/ > accessed 22 July 2019.

24 ‘‘Full Cooperation: Zero Violence’’ (2016) < https://meae.gov.mt/en/ZeroViolence/ Pages/Zero-Violence.aspx > accessed 23 July 2019.

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was abducted and shoved into a car by force, threatened and later raped.25 Another case was that of Ir-Repubblika ta’ Malta Vs Muhammed Ali Hasan buker Ahmed Abdilrahman Omar Osman Omar Anwar Otman Hasan.26 These judgments, amongst others, indicate that this type of abduction has a pattern. First, a stranger takes the victim against one’s will into a secluded place. There, the aggressor violates the victim sexually by forcing himself onto him/her and raping the person. The victim is not only harmed physically because of the excessive force exerted, but also mentally by the use of threats that cause absolute fear.

It seems that Article 199 considers abduction for the sole aim of marriage as a form of harm towards the victim. Research showed that such an instance has not yet taken place in Malta. However, the situation is different abroad.

In Kyrgyzstan, forced marriage is part of the ‘tradition’ of bride kidnapping.

After the death of a young women protests were held against such tradition.

Regrettably, this crime has also occurred in the United Kingdom. The victim was abducted, forced into two Muslim marriages and abused since the age of fifteen.27 These, however, are not the only cases which have occurred, as seen throughout this paper.

4. The Criminalisation of Forced Marriage, from an International Perspective After examining the situation by which abduction can lead to an offence of a forced marriage, one is to now consider when awareness about this crime began. Recognition for such offence gained momentum around the year 2000, but the wheels were already in motion after the Second World War. By criminalising forced marriage on an international plane with the help of international tribunals, new perspectives arose that established it as an international crime with associated penalties. However, when judgments which dealt with the crime of forced marriage were analysed, many were 25 Criminal Court, 23rd of July 2019, Citation number 16/ 2018, Onor. Imhallef Dr. Consuelo Scerri Herrera LL.D. 26 Criminal Court, 12th of November 2010, Citation number 34/2010, Onor. Imhallef Michael Mallia.

27 Jack Montgomery, ‘English girl allegedly abducted, forced into 2 marriages, 8 abortions by Pakistanis during 12-year captivity’ (Breitbart, 15 September 2018) < https://www.breitbart.com/europe/2018/09/15/worst-grooming-case-english-girl-abducted-forced-marriages-abortions-pakistani-muslims/ > accessed 22 October 2019.

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indecisive about whether forced marriage should fall under the offence of sexual slavery or a crime against humanity as an ‘other inhumane act’.

The court which changed the views in regard to this crime was the Special Court of Sierra Leone. Its statute was put together by the jurisprudence of the ICTY and ICTR which had already delivered judgments related to sexual slavery and gender-based violence. To better understand how the crime of forced marriage evolved, the jurisprudence of the International Criminal Court has to be examined as well, such as the judgment of Domnic Ongwen.28 This is analysed together with the judgments of Sierra Leone and how this court categorised forced marriage as an ‘other inhumane act’ under crimes against humanity.29 For many, this sort of placement of forced marriage was puzzling.

Forced marriage was tackled as a crime in 2008 by the judgment of Prosecutor v. Alex Temba Brima and Others of 2008, known as the AFRC Trial Chamber judgment.30 What was decided in this judgment was overturned in the Appeals Chamber. Unfortunately, Prosecutor v Issan Hassan Sesay and others of 2009 again blurred the definition of forced marriage as a crime against humanity of an ‘other inhumane act’ by the Appeals Chamber.31 In the first judgment, there was a lot of emphasis on the victims’ circumstances. The situation was heart-breaking because if the victims of such a marriage deviated from their so-called duties, they would have been severely punished. They were constantly in a state of fear, coercion, abuse, ill treatment, violence and other acts which psychologically harmed the victims. When the Trial Chamber examined the elements of sexual slavery under the Rome Statute and also Article 2(g) of the SCSL Statute, it declared that this crime should be ideally put under the charge of sexual slavery because of the women’s situation.32 Thus, the proposition of declaring forced 28 Micaela Frulli, Advancing International Criminal Law (Oxford University Press, 2016) < https://www.researchgate.net/profile/Micaela_Frulli > accessed 22 October 2019.

29 Frances Nguyen, ‘Untangling Sex, Marriage, And Other Criminalities In Forced Marriage’ (2014) 6 Goettingen Journal of International Law < http://www.gojil.eu/61-home > accessed 22 October 2019.

30 < https://sierralii.org/sl/judgement/special-court/2008/23 > accessed 22 October 2019.

31 < http://www.rscsl.org/Documents/Decisions/RUF/Appeal/1321/RUF%20Appeal%20Judgement.pdf > accessed 22 October 2019.

32 < https://www.icc-cpi.int/nr/rdonlyres/336923d8-a6ad-40ec-ad7b45bf9d-

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marriage to be a crime against humanity under other humane acts was not accepted because the evidence showed that it was not different from sexual slavery. It does not mean that this affirmation is absolute. It was made clear that by putting forced marriage under the same category of sexual slavery, important factors which are not sexually related, such as mental trauma, are put aside.

By putting the offence under a category of ‘crimes against humanity’, there would even be the recognition of non-sexual acts in forced marriage.

Here many different opinions arose. Following the decision of the Trial Chamber, the AFRC Appeals Chamber judgment changed the notion of forced marriage. In such situation, the victim would be affected severely both mentally and physically. It has been affirmed that such crime should be listed under crimes against humanity as an ‘other inhumane act’ as all the requirements were met. Lastly, after this Appeal Judgment, another case known as the RUF judgment, Prosecutor v Issa Hassan Sesay, Morris Kallon & Augustine Gabo,33 in a way clouded the previous statements on forced marriages instead of further untangling the confusion.

Since these judgments, the concept of forced marriage has been given considerable importance. On the 26th January 2015, a case cropped up in the ICC in relation to this crime. It was the first and the only case so far to involve the former high-ranking commander of the LRA known as Dominic Ongwen. The Pre-Trial Chamber II took into consideration the latter case law of the SCSL. To date, forced marriage was a crime against humanity of an ‘other inhumane act’, which was distinct from sexual slavery. This case confirmed that this was the best description of a forced marriage as it did not link it to sexual slavery. It was declared that a forced marriage in this context was seen as an attack which was planned on a large scale against a particular civilisation which would result in the crime against humanity of an ‘other inhumane act’, if it satisfies the required elements, even though it could result in sexual slavery. These two elements, according to this judgment, are burdens put on these victims because they would not have given their consent to marriage. Moreover, it also explained the victims’ stability after the ordeal and the aftereffects left on them. This explanation was comprehensive enough to capture the important features of the crime, but at the same time, it was also limited in order not to be mixed up with the e73d56/0/elementsofcrimeseng.pdf > accessed 22 October 2019.

33 Refworld < https://www.refworld.org/cases,SCSL,49b102762.html > accessed 22 October 2019.

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similar crime of sexual slavery.

5. The Criminalisation of Forced Marriage, and the European Union Lastly, it is worth examining the Istanbul Convention, which aided in the implementation of the criminalisation of such offence. Many organisations have been doing their best to spread awareness and to criminalise forced marriage in various countries. This crime had to be criminalised globally as it was not enough for countries to handle this situation themselves under domestic law. The first organisation which stepped up and is still trying to criminalise forced marriage was the Council of Europe.34 It created a Convention on preventing and combating violence against women and domestic violence known as Treaty 210 or the Istanbul Convention. This Convention is linked to the Convention on the Elimination of All forms of Discrimination against Women (CEDAW) and its case law. Variating tools were made use of so as to highlight the horrendous act of forced marriage on a global scale. Amongst such tools are one would find the Declaration of Human Rights and the UN Convention on consent to marriage.35 When examining this treaty, one should take into consideration the many countries that have signed and ratified it, but most importantly, when it came into force. In this situation Malta not only signed the Convention but also ratified it and put it into force, as did 34 other countries.36 Interestingly, the EU signed the Convention on 13th June 2017, but never ratified or implemented it. It seems very puzzling as almost all the member states of the EU have signed, ratified and enforced it. Many institutions have been encouraging the rest of the Member States and the EU as a whole to ratify it. If a country fails to sign, ratify, and enforce this instrument, it would be excluding the best tool to help such victims. This Convention may be seen as the best device to fight against gender-based violence, such as a forced marriage, for many reasons.

34 An international organisation in Strasbourg which comprises 47 countries of Europe.

It was set up to promote democracy and protect human rights and the rule of law in Europe.

35 1948, s 16(2).

36 Chart of signatures and ratifications of Treaty 210 < https://www.coe.int/en/web/ conventions/full-list/-/conventions/treaty/210/signatures > accessed 22 October 2019.

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Article 251G of the Criminal Code was added to Maltese legislation by Act I of 2014.37 The first sitting was held on 5th of November 2013. The Hon. Chris Fearne stated that the concept of forced marriage involves any use of force, threats, lies, deprivation of liberty, unnecessary pressure and other illegal acts which would make a person marry against one’s will.38 Parliament understood that such an offence is a tradition in some communities, however, every person should have the freedom to choose their own spouse. To date, in Malta, there has been no case law in relation to the offence of forced marriage. This means that up until now, nobody has been charged with the offence of forced marriage in Malta, unlike in many other countries. Dr Francis Zammit Dimech reminded the EU and its authorities to implement better resolutions in third world countries for the prohibition of this act.39 Although this concept has been implemented in the Maltese Criminal Code, to date there has been no case law of such an offence.

One nation which has signed the Convention but has not ratified it is the United Kingdom. On 16th June 2014, the UK made forced marriage a crime, making it a self-standing criminal offence in England, Scotland, and Wales.

However, this act did not apply to Northern Ireland. The Republic of Ireland signed the Convention in 2015 and the treaty was only ratified and entered into force in 2019. The crime of forced marriage is described in the 2014 Anti-Social Behaviour, Crime and Policing Act Part 10. This State already had some form of protection against such crime by the Forced Marriage (Civil Protection) Act 2007 (FMCPA) which more or less is similar to the definition found today.40 Forced marriage protection orders (FMPOs) were produced when the FMCPA was created to cater for those in need. Unlike in our country, considerable debate took place on the notion of forced marriage.41 The 37 Act I of 2014, An Act to amend the Criminal Code, Cap 9, <http://www.justiceservices. gov.mt/DownloadDocument.aspx?app=lp&itemid=25906&l=1> accessed 22 October 2019.

38 < https://parlament.mt/13th-leg/political-groups/partit-laburista/fearne-chris/ > accessed 22 October 2019.

39 NET Newsroom, ‘Il-Parlament Ewropew b’messaġġ ċar kontra ż-żwiġijiet sfurzati) (Net News, 8 March 2019) < https://netnews.com.mt/2018/03/08/il-parlament-ewropew-bmessagg-car-kontra-z-zwigijiet-sfurzati/ > accessed 23 October 2019.

40 Aisha K. Gill, ‘An analysis of forced marriage legislation in the UK’ (University of Roehampton) < https://safelives.org.uk/sites/default/files/resources/An%20analysis%20of%20 forced%20marriage%20legislation%20in%20the%20UK_Gill_Safe%20Lives_28%20April%202017. pdf > accessed 23 October 2019.

41 Jenny Moore, ‘Criminalisation of forced marriage: taking it underground or to bringing perpetrators to justice?’ (LexisNexis) < https://blogs.lexisnexis.co.uk/content/family-law/criminalisation-of-forced-marriage-taking-it-underground-or-to-bringing-perpetrators-to-justice > accessed 23 October 2019.

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criminalising of this act is crucial in handling this act. Theresa May, who at that time was the UK Home Secretary, stated that this legislation enables the government to safeguard and protect these victims.42 However, numerous foundations believed that this law would do more damage than good as victims of a forced marriage would not speak up.43 The UK has prosecuted numerous cases on forced marriage since the legislation was implemented. One of the many cases occurred in June 2015 and was the very first case which dealt with such offence.44 A 34-year-old businessman, who was already married, was incarcerated for 16 years after forcing a 25-year-old woman to marry him. He raped her repeatedly and threatened her with publishing footage recorded without her consent in the shower if she did not marry him; and he warned her that if she reported the abuse, he would harm her family.

Today, there is the Forced Marriage Unit45. This is an operation carried out by the Foreign and Commonwealth Office., the Home Office and the government to cater for forced marriage policies. It handles issues in the UK and overseas. It has a public helpline that gives advice and supports such victims. This organisation is made up of people who were trained for that purpose.

Apart from the UK, eleven other countries have signed but not ratified this Convention. According to a report published in 2017, the UK will ratify only when it feels ready. 46 As seen above, unlike Malta, the UK already had provisions against this crime in 2007. Malta has different services in relation to gender-based violence crimes. However, there are no services specifically implemented for the act of forced marriage, unlike in the UK which has ‘The 42 ‘New law against forced marriage takes effect’ (Independent, 16 June 2014) < https:// www.independent.co.uk/news/uk/home-news/new-law-against-forced-marriage-takes-effect-9539097.html > accessed 23 October 2019.

43 Henna Foundation < http://www.hennafoundation.org/home.html > accessed 23 October 2019.

44 Press Association, ‘Businessman is first person jailed under forced marriage laws (The Guardian, 10 June 2015) < https://www.theguardian.com/society/2015/jun/10/34-year-oldman-first-person-to-be-convicted-under-forced-marriage-laws > accessed 23 October 2019.

45 ‘Guidance: Forced Marriage’ (UK Government, 20 March 2013) < https://www.gov.uk/ guidance/forced-marriage > accessed 23 October 2019.

46 Hannah Johnson, ‘Why Hasn’t the UK Ratified the Most Important Violence Against Women Treaty?’ (Each Other, 24 November 2017) < https://rightsinfo.org/hasnt-uk-ratified-important-violence-women-treaty/ > accessed 23 October 2019.

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Forced Marriage Unit’47. This unit is made up of trained professionals who are ready to give assistance to these victims. As stated above, other countries have ratified the Convention, one of which is Estonia, which did so very recently in 2018. This is a flourishing country where, although these offences are not very common, it was felt such criminal proceedings should be implemented, especially in light of globalisation and immigration.48 Forced marriage in Estonia is criminalised under the category of the trafficking of human beings, which seems to relate more to sexual slavery than forced marriage. Still, the fact that back in 2015 Estonia already collaborated with other countries to stop such acts conveys its government’s determination to put an end to the crime of forced marriage One of the aims of the EU is to establish an external strategy against such crime of early forced marriage (2017/2275(INI)).49 The Council has tried on numerous times to persuade countries which are not parties to this Convention to sign it.50

6. Conclusion This study has examined forced marriage from different aspects, and not only from the perspective of Maltese law. Similarities between the situation in Malta and other countries have been drawn. Also, areas where Malta has the potential of enhancing its ways of dealing with the crime of forced marriage have been noted. The offence of abduction can be carried out by different people for different reasons and can have a different outcome in each situation. By examining parliamentary debates, one is able to understand the manner and reasons why related laws updated. It has been noted that particular elements of the offence when there is abduction for the sole aim of marriage are the same as the elements of the offence of forced marriage.

47 ‘Forced Marriages Problems’ < https://www.supportline.org.uk/problems/ forced-marriages/ > accessed 23 October 2019.

48 ‘Female genital mutilation, forced marriages criminalized in Estonia’ (err.ee, 16 July 2017) < https://news.err.ee/607729/female-genital-mutilation-forced-marriages-criminalized-in-estonia > accessed 23 October 2019.

49 Charles Goerens, ‘Towards an EU external strategy against early and forced marriages – next steps (2017/2275(INI)) < http://www.europarl.europa.eu/doceo/document/A-8-2018-0187_EN.html > accessed 23 October 2019.

50 ‘Chart of signatures and ratifications of Treaty 210’ < https://www.coe.int/en/web/ conventions/full-list/-/conventions/treaty/210/signatures > accessed 23 October 2019.

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Foreign judgments, which developed the meaning and understanding behind a forced marriage, aid governments on how such offence is to be approached by domestic law. By doing so, better mechanisms would be created so to one day eliminate such crime which creates threat to society.

Furthermore, by the updates made to Criminal Code, Malta partook in the change to implement such offence and tougher repercussions. By the aid of such information, the author not only showed the dark truth behind forced marriage, but also that it is intertwined with the offence of abduction. This also sheds light on the countries which have responded in regard to this offence and how they have done so.

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