Drafters should prohibit and punish any practices that allow the forced marriage of a woman or girl for purposes of settlement. Also, laws should punish individuals who aid or authorize forced marriage as settlement. (See Addressing Customary Laws and Practices that Conflict with Formal Laws)
Laws should prohibit: any institution or practice where a woman, without the right to refuse, is promised or given in marriage in return for payment or in-kind consideration to another; practices where a woman’s husband, his family or his clan can transfer her to another for value received or otherwise, and; practices that deliver a child or young person under the age of 18 years by either or both of his parents or guardian to another person, whether for compensation or not, for purposes of exploitation or for the child’s labor. See: CEDAW, Gen. Rec. 29.
Illustrative Examples:
Ghana: The 1998 Criminal Code included an amendment criminalizing the practice of trokosi: “Whoever sends to or receives at any place any person or participates in or is concerned with any ritual or customary activity in respect of any person with the purpose of subjecting that person to any form of ritual or customary servitude or any form of forced labour related to customary ritual shall be guilty of a second degree felony and liable on conviction to imprisonment for a term of not less than three years.” This law remains unenforced, because police and families generally fear retribution by the priest. Laws that prohibit harmful practices such as trokosi should include public education targeting girls and women, their families, and the priests that aims at dispelling misperceptions and fears about trokosi. Laws should also engage traditional laws, structures and leaders to help end this practice and raise public awareness. (See: Voices of African Women, Gbedemah. See section on Defining Other Forms of Forced Marriage: Slavery, Sexual Slavery, Forced Labor and Debt Bondage)
Afghanistan: Certain districts of Afghanistan are working to abolish the practice of Baad, in which a young girl is traded to settle a dispute for her older relatives. Elders have made the practice punishable with a fine, and the governor of Khost has encouraged others to adopt similar restrictions. Though this practice is already outlawed by Article 25 of the Elimination of Violence Against Women in Afghanistan Act, the fact that conservative regions of the country are taking steps on their own to eliminate the tradition is a huge step for Afghani women.
Promising practices:
Pakistani: The Pakistani Criminal Law (Amendment) Act 2004 added a new provision that criminalizes the act of giving females for marriage as part of a compromise in dispute settlement between families or clans, known as sawra.
Drafters should immediately repeal any provisions that allow a rapist to evade culpability or enjoy a reduced or suspended sentence by marrying the victim. See: StopVAW, Bill Outlaws “Bartering” Women, The Advocates for Human Rights, 2011.
Turkey: In 2004, Turkey repealed criminal law provisions that provided for reduction or suspension of sentences for rapists who married their victims. The Turkish Civil Code requires the free and full consent of both parties for a marriage (Article 126). (See: Turkish Civil and Penal Code Reforms from a Gender Perspective: The Success of Two Nationwide Campaigns, Turkish Civil and Penal Code Reforms from a Gender Perspective: The Success of Two Nationwide Campaigns, Women for Women’s Human Rights--New Ways, 2005)