Asylum and the 'Forced Marriage' Paradox: Petitions, Translation, and Courts as Institutional Perpetrators of Gender Violence

Abstract

What legal practitioners conventionally refer to as “forced marriage” has emerged as an important humanitarian issue. While categories of purported forced marriages (PFMs) are familiar to Western legal practitioners, applicants struggle to describe the circumstances and individual(s) a victim may be seeking to escape. Purported forced marriage continues to be misunderstood, because a paradox resides at the heart of the claim. Put simply, the paradox on the part of the asylum-seeker or refugee seeking protection is that they must use the very terminology of legitimate marriage (e.g. husband, in-laws,) to distinguish the experiences and parties from which they themselves seek refugee. The experience of those alleging purported forced marriage emerges from a familiar Western legal context. A purported forced marriage involves perpetrators whose power, background, motivations, and mechanisms require elaboration and theorization for more effective asylum petitions and refugee status determinations, but a focus on the human perpetrators is only one part of a many faceted issue. This chapter contributes to recent research by conceptualizing the institutional perpetrators of PFM, shifting the focus to the courts and the bureaucracy in which asylum and refugee claims are processed. This chapter draws on asylum petitions by African women alleging forced marriage for which I have served as expert. I argue that the petition process and the immigration courts perpetrate violence against PFM survivors by deploying the language of legal unions or marriages to describe the perpetrators, events and cultural context of that which is anything but legitimate.