20 May 2016

Shades of Grey

I’m returning to the issue of child marriages in Trinidad and Tobago - particularly the marriage of girls - as contained in Muslim, Hindu and Orisha Marriage Acts. Taking them in the order I have written, the ages approved for females in the respective Acts are: 12 (Muslim), 14 (Hindu) and 16 (Orisha). The law is a confused tangle of grey areas and child marriages are actually a form of modern slavery.

Now here is a good example of the shades of grey I mentioned: – The Married Persons Act 1977, which states in Section 3:

3. Subject to this Act, a married woman shall—

        (a) be capable of acquiring, holding, and disposing of any property;

        (b) be capable of rendering herself, and being rendered, liable in respect of any tort, contract, debt or obligation;
        (c) be capable of suing and being sued, either in tort or in contract or otherwise; and
        (d) be subject to the law relating to bankruptcy and to the enforcement of judgments and orders,
in all respects as if she were a feme sole

So, here we have the possibility of a minor, who legally cannot enter into legal relationships such as contracts, obligations and those mentioned above by virtue that she is under the age of majority (there is an Age of Majority Act), but is able under the Married Persons Act to do the self-same things she would normally be prohibited from doing! Further, nothing in the Married Persons Act makes exception to Section 3.

Here is another example. Under the Children Act 1925 a person under the age of 14 is defined as a ‘child’. A person between the ages of 14 to 16 is defined as a ‘young person’. And there are penalties for anyone who:

wilfully assaults, ill-treats, neglects, abandons, or exposes the child or young person, or causes or procures the child or young person to be assaulted, ill-treated, neglected, abandoned, or exposed, in a manner likely to cause the child or young person unnecessary suffering or injury to his health (including injury to or loss of sight, or hearing, or limb, or organ of the body, and any mental derangement)

But what if that person is the ‘husband’ under the Muslim or Hindu Marriage Act? There are several sections in the Children Act just as confusing.

In reality however, as I mentioned yesterday, there are several Conventions and Treaties under International Law to which Trinidad and Tobago is signatory, some 200+ international treaties. One of these is the Convention on the Rights of the Child ‘which sets out the civil, political, economic, social, health and cultural rights of children’ and which states that a ‘child’ is anyone under the age of 18.

The International Covenant on Economic, Social and Cultural Rights guarantees several rights to women, one of which is “women's right to equality in marriage and family life along with the right to equality before the law”. Further more, Article 2 is very powerful: it mandates that states parties ratifying the Convention declare intent to enshrine gender equality into their domestic legislation, repeal all discriminatory provisions in their laws, and enact new provisions to guard against discrimination against women. Well, we can see that didn’t happen.

But along comes another conflict: The Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages merely asks that States prescribe a minimum age in domestic law but does not say what that age is to be. And indeed within this Convention is another grey area: ‘Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family’. Full age means 18 as stated in the Convention on the Rights of the Child.

And here is another thing… the husband of a child bride where he is an adult is likely to exercise ‘control of her movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment and abuse, control of sexuality and forced labour’. These are the characteristics of slavery [Prosecutor v Kunarac et al (Judgment) IT-96-23 & IT -96923/1-T (22 February 2001)].

Child marriage can be referred to as slavery, if the following three elements are present:

  • If the child has not genuinely given their free and informed consent to enter the marriage;
  • If the child is subjected to control and a sense of “ownership” in the marriage itself, particularly through abuse and threats, and is exploited by being forced to undertake domestic chores within the marital home or labour outside it, and/or engage in non-consensual sexual relations; 
  • If the child cannot realistically leave or end the marriage, leading potentially to a lifetime of slavery.

[Anti-Slavery International]

I guess religion though, trumps law and common sense.