"However, two recent widely reported cases of marriage between Muslim men and under-age girls raise troubling questions about these assumptions. One case in New South Wales where an imam married a twelve-year-old girl to a twenty-six-year-old man with her father’s consent is before the court.
In another case involving a custody battle, however, a judgment has been made that questions the way Western jurisdictions interact with sharia marriage regulations, specifically in relation to the widespread practice of conducting private, unregistered religious marriages. A Sydney Muslim girl aged fourteen was forced by her parents to become the child “bride” of a twenty-one-year-old man. Her mother had
told her she would “get to attend theme parks and movies and eat lollies and ice-cream with her new husband”. Instead she endured years of sexual and physical abuse and intimidation before fleeing with her young daughter. Her story only saw the light of day ten years after her wedding when she pursued custody of her daughter through the courts.
This “marriage” was never registered with the state: it would have been impossible to do so because the girl was too young to marry under Australian law. A particularly troubling aspect of her story is that she reported her predicament to her school teacher, who under Australian law was a mandatory reporter of child sex abuse, but it seems no report was made, and no intervention attempted.
In passing judgment in favour of the woman, Judge Harman invited the authorities to take matters further: the “groom” could be presumably be charged by the police with sexual offences against a child and placed on the sex offenders register. He and the girl’s father—who in accordance with Islamic tradition would have been the two parties to the marriage contract—could also be charged with trafficking offences. There would also almost certainly have been an exchange of money—the mahr—handed over by the man to the girl or her father in accordance with Islamic law.
The UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, defines people-trafficking 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, [or] servitude … The consent of a victim of trafficking in persons to the intended exploitation set forth [above] shall be irrelevant where any of the means set forth [above] have been used.
The forced marriage of a fourteen-year-old girl, as reported in this Australian case, fits the definition of trafficking. The girl was transferred from the custody of parents to that of her “husband” by use of deception, and he then kept her for the purpose of sexual exploitation and servitude, controlling her by violence and threats.
Pru Goward, the New South Wales Minister for Community Services and Women, has
reported that there are around a thousand cases a year across Australia of women and girls being trafficked into forced marriages. She stated, “No ethnic group has a monopoly on violence against women, but some groups experience violence against women disproportionately.” Indeed. Some groups also perpetrate violence against women “disproportionately”, and it might be more accurate to speak of “religious groups” rather than “ethnic groups”. While there have been no official statistics reported on the religious affiliation of these victims of trafficking, it seems that a great many of the victims and the perpetrators involving in “marriage” trafficking have been Muslims.
Recent reports of a link between trafficking-for-marriage and Islamic marriages have not been limited to Australia. An
investigation by ITV in the UK identified eighteen mosques—around one third of those approached by the reporter—where clerics were willing to conduct a wedding of a fourteen-year-old girl against her will.
Nazir Afal, Crown Prosecutor in the North of England, has
reported that there are estimated to be 8000 to 10,000 forced marriages or threats of forced marriages of people against their will in the UK each year. Britain’s Forced Marriage Unit
handled 1485 cases in 2012, 35 per cent of which involved girls aged seventeen or younger, and 13 per cent where the girls were under fifteen. A British government survey
foundthat hundreds of girls aged eleven to thirteen had simply disappeared from school rolls.
Governments have been very slow to tackle the trafficking of women and girls for the purpose of forced marriage. Kaye Quek, in a
recent article in the British Journal of Politics and International Relations, argues that multicultural ideals prevalent in UK society have made the authorities reluctant to criminalise this practice: they have preferred instead to treat these liaisons as violations of the women’s choice. Quek challenges the government’s preference for seeking civil remedies to forced marriages, and suggests that this is giving rise to a two-tier system of rights, in which it is acceptable for Muslim women to be sexually assaulted through forced marriage.
In the case of forced Muslim marriages, a systemic problem is the widespread acceptance by the community of unregistered marriages: it is the lack of registration of such unions which makes marriage all the more dangerous for young women and girls, because registered marriages are subject to long-established age limits and procedures to establish consent, which provide a degree of protection to potential victims of marriage trafficking. The families and communities involved may consider such marriages to be legal, because they accord with their understanding of Islamic law, but the fact that these marriages are unregistered places the women and girls who undergo these ceremonies at higher risk of abuse.
Islamic marriage practices present multiple challenges to Western jurisdictions. The Koran states that men are the protectors of women (Sura 4:34). A marriage is normally a contract between two men: the male walior guardian of the bride—usually her father—and the groom. In addition, to be lawful under sharia, a marriage must have two witnesses, and a sum of money, the mahr, must be given over by the groom. Marriage, thus contracted, is the transfer of a woman from the “protection” of one man to another.
If the wali is the woman’s father or grandfather, he is considered to be a wali mujbir, literally a “forcing guardian”, because he is permitted by Islamic law to force his daughter or grand-daughter into marriage. The word mujbir (“forcing”) comes from an Arabic root which can mean “to set a broken bone”, or, by extension, “to force”. E.W. Lane,
citing Arabic authorities, gives this explanation of the meaning of the word: “He compelled him, against his will, to do the thing … originally signifying the inciting, urging or inducing, another to restore a thing to a sound, right, or good, state.” By this understanding, a forced marriage is an exercise of “therapeutic force”, which is considered to be good for the woman. Like setting a broken bone, a forced marriage at a father or grandfather’s behest “restores” the woman to her rightful state.
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