The Issue of Consent: Clarifying the Differences between Forced and Arranged Marriage

Due to the frequent overlap with arranged marriage, confusion often arises as to how forced marriage should be classified under international criminal law. This has led scholars, courts, and legal practitioners to either subsume forced marriage under sexual slavery, ignore forced marriage in criminal indictments despite contrary evidence, or label it as an “other inhumane act” under crimes against humanity. To clarify these misconceptions, forced marriage should be removed from the “other inhumane acts” category and should be enumerated as a distinct crime against humanity alongside other sex and gender-based crimes under the International Criminal Court (ICC)’s Rome Statute. However to understand forced marriage, it is important to distinguish forced marriage from arranged marriage.

Forced marriage occurs when a perpetrator compels a person through threats or force into a conjugal association, resulting in great suffering, or serious mental or physical injury on the victim. An arranged marriage is a marital union based on the spouses coming together through an arrangement, often through family members acting as fiduciaries to the parties entering the marriage. The one issue tying these marriages is the degree or lack of consent between the parties.

First, consent is an absolute and essential right within the context of any marriage. Article 16(2) of the Universal Declaration of Human Rights reads, “Marriage shall be entered into only with the free and full consent of the intending spouses.” Consent is also an essential element in establishing a valid marriage under Article 23 of the International Covenant on Civil and Political Rights and Article 16 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Furthermore, the UN Secretary-General, Kofi Annan, in his 2006 study on violence against women, defined forced marriage as one that “lacks the free and valid consent of at least one of the parties.” Since the lack of consent is an important element in defining forced marriage, it is important to demonstrate that the lack of consent in an arranged marriage does not meet the threshold necessary to elevate arranged marriage to a crime against humanity.

While the level of consent is diminished in both types of marriage, consent in an arranged marriage still exists from the main parties albeit in a reduced capacity. Potential oppression can undoubtedly occur in arranged marriages.  In an arranged marriage, the spousal parties may be entirely subordinate to their families’ desires for their son or daughter to partake in a binding marriage. There might even be manipulation or emotional blackmail at play, with threats of abandonment or family excommunication if the son or daughter does not concede to the families’ wishes. However, even though an arranged marriage has elements that may violate existing norms of human rights, the fiduciary aspect, in which parents act on behalf of their son or daughter, still lends a certain degree of consent. It is an indirect form of consent based on the fiduciary duty of the families, but one that nonetheless exists. In contrast, there is absolutely no consent in a forced marriage.

Furthermore, arranged marriages are often found in the context of a private arrangement in the union of two families. This private act concerns one specific matrimony and affects two individuals. In contrast, instances of forced marriage are generally instigated by a perpetrator as part of a widespread or systematic attack upon a civilian population. Thus, arranged marriage involves a private act between two individuals. In contrast, forced marriage has been enforced as an institutionalized policy created either by the State or non-State group affecting a wide swathe of the civilian population, making forced marriage an act of public brutality.

Distinguishing forced marriage from arranged marriage is necessary due to their commonalities. While arranged marriages have been performed for centuries and are still practiced in certain parts of the world, some instances of arranged marriage can give rise to human rights violations depending on the amount of coercion placed on the spousal parties.  The purpose of this post is not to gloss over potential problems that can arise in an arranged marriage, but to differentiate the two types of marriage.  This distinction is important in establishing that the violence of forced marriage, due to the victim’s complete lack of consent, needs to be elevated to a distinct crime against humanity alongside other sex and gender-based crimes.

Ultimately, making forced marriage a crime against humanity by listing it as a separate crime alongside other sex and gender-based crimes will be more effective than keeping it in the “other inhumane acts” category. The international community has placed great attention on child soldiers, most of whom are primarily young boys. They have also provided funding and resources to rehabilitate and reintegrate former child soldiers back into society. In contrast, victims of forced marriage still face discrimination upon returning to their local communities because of former marital ties with their perpetrators, regardless of the coercive circumstances. Strengthening the criminalization of forced marriage can help shift the power dynamics, so the perpetrators, rather than the victims, are shamed and punished.

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