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  This module is a resource for lecturers  

 

Forced marriage

 

Cases of forced marriage may also amount to trafficking. The act may be transfer or receipt of a person, the means may include deception, threats or coercion and the purpose may be sexual exploitation and/or servitude.

Forced marriages are not the same as sham marriages. In the context of the latter, two persons agree to marry upon payment of a fee. Specifically, one person is paid a "price" to marry another person to facilitate the illegal entry or stay of the second person in a country of which he or she is not a national or permanent resident. This would appear to be a case of smuggling.

There might be situations, however, when the distinction between forced and sham marriages is less clear and, thus, also the distinction between smuggling and trafficking. If the agreement to marry starts off as a voluntary agreement but then an element of deception (see Box 9) or coercion is introduced, this may transform a situation of smuggling into trafficking in persons.

The final decision as to whether a case is smuggling or trafficking will, as always, depend on the specific circumstances of the case:

  • In trafficking through forced marriage, the victim does not consent to enter the marriage. In the context of smuggling and sham marriages, the fraudulent marriage certificate is an illegal means of enabling entry or stay and it does not per se involve exploitation. The individual who has agreed to marry the migrant has often consented to do so in exchange for a sum of money. Generally, the fee will be paid by the migrant to the smuggler and the smuggler will then pay the other individual the agreed fee. The plan is almost always that the "sham" will be kept as long as needed for the migrant to obtain residence, after which the parties will divorce and go their separate ways.
  • A forced marriage will often involve sexual exploitation or servitude. The victim must likely remain in the marriage indefinitely or until the trafficker releases him or her from the marriage.

In view of the above, it becomes even more important for States to enact legislation that is as clear and precise as possible in defining smuggling of migrants and trafficking in persons. This does not amount to denying or neglecting the nexus that often exists between both crime types.

Box 9

Human Rights Watch recently wrote a letter to the Malaysian Prime Minister about the addition of anti-smuggling elements in their anti-trafficking legislation, saying that the law leads to conflation of the two which risks trafficking victims being treated as smuggled migrants and subject to deportation - a response that is unacceptable to non-trafficked migrants as well. Others are worried that if anti-trafficking actors move into anti-smuggling discussions and ask for rights for smuggled people, this will irritate governments, with whom advocates otherwise have a good relationship in anti-trafficking discussions. (…) "If you move to one area, you lose in another." On the other hand, some NGOs worry about the blur between trafficking and smuggling, as trafficking can be used as an excuse to stop people moving. NGOs on India's borders with Bangladesh, for instance, are telling anti-trafficking actors to keep out of the border areas because they do not want to prevent people from being smuggled.

MYRIA, Trafficking and Smuggling of Human Beings - Tightening the Links, 2015 Annual Report
 

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