FIRST ASSIGNMENT - Gender and the Law.

Section III

Deborah Melegare T. Salvador – u210420

1) Is it possible to distinguish between forced marriage and unforced

marriage? Give a reasoned answer.

It is possible to distinguish forced marriage and unforced marriage, but it is not a

simple task. Debates about forced marriage usually touch on relative and complex
themes, such as cultural issues and notions of consent.
According to the OHCHR, a forced marriage is one that at least one of the partners
have not personally expressed their full and free consent to the union 1, when an
unforced marriage is one in which both spouses consented. Although this definition is
easily understood, it raises doubts regarding the notion of consent, since its meaning
changes according to generation, culture, age, etc.
Nicole-Claude Mathieu addressed the fact that, when subjected to pressure, women
end up submitting to them, not in fact consenting to them, which translates as a false
form of consent.2 Therefore, defining what a forced marriage is will depend on the
situation in which the spouses find themselves. This refers to the pressure of the family,
religion or culture and also more objective criteria such as age, and how these pressures
or lack of maturity result in a false form of consent that ends up constituting a forced
marriage. In the text, it is possible to see that women who did not really want to get
married did not necessarily express any refusal, but this is due to the fact that they are
not even in a social position where they can do so. It is important to emphasize here that
the lack of reluctance is not, in fact, consent since the pressures prevent them from
doing so fully.

2) Why do the authors refer to the "ambivalence of consent"?

In the text, the ambivalence of consent refers to the negative and "positive" aspect
that comes from “consent” to marriage. The negative side concerns the lack of real
willingness to marry, which unfolds into a false consent, driven by family pressure and

1
Child and forced marriage, including in humanitarian settings - OHCHR and women’s human rights and
gender equality. Available at: https://www.ohchr.org/en/women/child-and-forced-marriage-including-
humanitarian-settings
2
In L’Arraisonnement des Femmes, essais en anthropologie des sexes, edited by Nicole-Claude Mathieu,
169–245. Paris: EHESS
the will to emancipate themselves, in the only possible way in their realities, from the
restricted life they live and the control they are subjected to. From this perspective,
"consent" to marriage means going against your real desires and giving in to the
pressures out of necessity.
The supposed positive side of consenting to marriage refers to the new possibilities,
new opportunities for experiences, that can be offered from the union. Getting out of
control of the family and having the possibility of emancipation is one of the reasons
why women "consent" to marriage, expecting an improvement in their condition.
Unfortunately, as addressed by the text, marriage “ultimately leads them into a new
situation of dominance on the part of the husband and in-laws” 3. In conclusion, this
ambivalence is the coexistence of a "determination" to marry and an absence of desire
to do so that exists in forced marriages.

3) Do you believe that cases of forced marriages of adults are cases of

gender-based violence? Why?

Yes, I do believe that cases of forced marriages of adults are cases of gender-
based violence. Even though some legislations do not recognize forced marriage as
gender-based violence, such as Spain, that only considers gender-based violence cases
of violence against women by their (male) formar or present spouse, and, thus,
disregards the violence perpetuated by family members, as in the case of the marriage
formed, I believe it is gender-based violence.
The kind of pressure imposed on women in this subject is specific and very
deep, differentiating completely from the position of men in this type of "arrangement".
Thus, because it is a condition that affects women so specifically, because of its
condition as women in society and because of the gender roles that they "must"
perform, forced marriage shows itself as gender violence.
As deffined by the UNHCR,4 threats of violence, coercion and manipulation, and
so-called ‘honour crimes’ are considered expressions of GBV. In this sense, the abuses
reported by the women in the text configure this specificity of violence, including
crimes against "honour", since this is also a generified concept, in which women are
conditioned to play a role that oppresses them (a condition that is not imposed in the
same way on men).
3
Nisrin Abu Amara, Anouk Guiné, Christelle Hamel, «», Sociétés contemporaines 2013/2 (No 90) , p. 81-
105 (XII)
4
Available at: https://www.unhcr.org/gbv-toolkit/_test/