Defining other forms of forced marriage: human trafficking

Drafters should ensure that trafficking laws prohibit and punish forced and child marriages. Drafters may wish to use the international definition of trafficking: “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” as a basis for legislation. Exploitation should be defined to include 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.” International law renders consent irrelevant where any of the means listed is used to achieve the forms of exploitation specified. (See: Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children)

Should drafters use this definition as a basis for trafficking laws, they should consider whether to explicitly list forced and child marriage as a form of exploitation. On the one hand, listing specific forms of violence or exploitation may result in excluding some form of exploitation that is not on the list from sanctions. On the other hand, in states where forced marriage is not a specific offence or is under-prosecuted, providing added protection through a trafficking law may be an appropriate strategy.

Should drafters choose to address forced marriage in trafficking laws, they should provide an expansive definition that reflects the realities of trafficking in their country. Instances of forced and child marriage vary, and may involve a single perpetrator trafficking a victim domestically or multiple perpetrators trafficking victims internationally. To fully address the phenomenon, drafters should provide an expansive definition to acknowledge and encompass both international and domestic trafficking. The definition should not require the involvement of multiple offenders but recognize that a single offender is capable of perpetrating an act of trafficking for purposes of forced marriage.

(See: Sex Trafficking of Women and Girls)

Promising Practice: Macedonia’s Criminal Code (2004) provides a wide definition of trafficking and explicitly includes forced marriage as a form of exploitation in trafficking. Any person who, “by force, serious threat, misleads or use of other forms of coercion, kidnapping, deceit and abuse of his/her own position or a position of pregnancy, weakness, physical or mental incapability of another person, or by giving or receiving money or other benefits in order to obtain consent of a person that has control over another person, recruits, transports, transfers, buys, sells, harbours or accepts persons for the purpose of exploitation through prostitution or other forms of sexual exploitation, pornography, forced labour or servitude, slavery, forced marriages, forced fertilization, unlawful adoption, or a similar relationship or illicit transplantation of human body parts, shall be punished with imprisonment of at least four years” (emphasis added) (Article 418(a)(1)).