In the Australian County Court of Victoria on 29 July 2024, a landmark conviction and sentencing was made against a mother, for one charge of causing her daughter to enter into a forced marriage. Her daughter was murdered by her husband shortly after the ceremony, and he was given a life sentence in different proceedings. At no point was there a suggestion that Sakina knew that the husband would murder her daughter.
Forced marriage is unlawful in Australia under the Commonwealth Criminal Code 2013, and Sakina is the first person to be imprisoned under this law. The Explanatory Memorandum to the 2013 Act justifies the need for the legislation stating “Vulnerable young women and girls are disproportionately affected by forced marriage, globally and domestically.” The legislation does not solely aim to stop marriage ceremonies, but also wishes to prevent the other common consequences that forced marriage victims may suffer. Under the legislation, the maximum penalty for the offence is 7 years imprisonment. Sakina was sentenced to 3 years with the potential of release after 12 months to complete her sentence in the community.
The mother is an Afghan Hazara refugee who has been in Victoria since 2013, fleeing persecution from the Taliban. Sakina was also subjected to a forced marriage at the age of 12, and her husband was later killed by the Taliban. The victim was the youngest of five children, four of whom she brought to Australia with her.
The daughter had previously been forced to enter a temporary Nikah, an unofficial marriage, at the age of 15, but was divorced two years later and was considered a “bewa” in her community, which meant she lost some value to her community. Despite her wishes to study, get a job and postpone getting married until her late twenties, her mother believed that she was acting in her daughter's best interests by forcing the marriage.
In its judgment, the court felt that the daughter was rushed into the marriage, and that “intolerable pressure” was placed upon her as she faced an ultimatum from her mother of either entering the marriage or leaving the family home. The court did not accept that the mother was unaware of her daughter’s unwillingness to get married. It further noted that the daughter likely worried about her mother’s anger if she raised her concerns to her teachers or police officers, and the impact this would have on her mother’s standing in the community. Additionally, between the unofficial ceremony and the official ceremony, The mother had reassured her daughter of an 8-month wait at one point, but this did not occur.
Although the court agreed that the mother likely felt she was acting in her daughter’s best interests due to her cultural background and typical practices in the Hazara Community, the court could not allow customary practices or laws to act as mitigating factors per the Crimes Act 1914.
However, the court did have regard to the issue that the mother's visa could be cancelled under Australian legislation if she were imprisoned for more than 12 months. Her return to Afghanistan would be very difficult and risk her safety, yet while this would undoubtedly be a major additional punishment, the judge was not able to grant a sentence that avoided the Migration Act’s operation.
Other factors noted by the judge was the likely hardship the mother would experience in prison due to her low level of English, and the shame and challenges associated with being separated from her family. In balancing these concerns and sentencing the mother to 3 years with potential release after a year, the judge emphasised, “You abused your power as her mother, as the person with whom she lived and respected, to override her desire not to marry Mr Halimi. Whilst you believed you were acting in her best interests, you were not in fact doing so.”
Following the judgment, Helena Hassani, an expert on forced marriage in Australia at the University of Technology Sydney (UTS) expressed the impact of the decision on the Hazaras, “It has caused a lot of fear, a lot of anxiety in our community,”
To read the decision in CDPP v Jan [2024] VCC 1122, click here.