What Is Forced Marriage – Towards a Definition of Forced Marriage as a Crime against Humanity

Bridgette A. Toy-Cronin

The Special Court for Sierra Leone’s Trial and Appeals Chambers handed down judgments considering, for the first time, forced marriage as a crime against humanity. This Article critiques those decisions against the Appeals Chamber’s stated aim of “enriching the jurisprudence of international criminal law.” This Article argues that there is a need to recognize a crime of forced marriage, but in order to enrich current jurisprudence, it should be limited to only the conferral of the status of marriage and the ongoing effects of that status on the victim. Other crimes that occur within the marriages should not be collapsed into the prosecution of forced marriage; they are separate offenses that need separate recognition. Two contrasting examples of forced marriage are compared: so-called “forced marriages” in a number of African conflicts involving the abduction of women and girls by rebels and forced marriage between 1975 and 1979 in Khmer Rouge-ruled Cambodia. The African examples are drawn from published research, while a portrait of forced marriage in Cambodia is sketched through stories gathered in field research conducted in Cambodia in 2006, along with some published material. This Article argues that there is a lacuna in the law that requires the recognition of forced marriage as a crime. The Extraordinary Chambers in the Courts of Cambodia (the “ECCC”), established to try Khmer Rouge crimes, has the opportunity to address this crime and to create a record of the fact that forced marriages were traumatic events that deeply affected thousands of Cambodian lives.

Footnotes omitted.

Criminalizing Coerced Submission in the Workplace and in the Academy

Michal Buchhandler-Raphael

This Article challenges the prevailing view that Title VII and Title IX provide a single conceptual model that fit all forms of sexual harassment. In particular, it questions the assumption that coerced sexual intercourse in the workplace and in the academy is merely another form of sexual harassment that can be addressed within the current legal framework. Rather, the current paradigm must be critically revisited in order to provide an alternative account of these “submission cases” that separately categorizes them and acknowledges their distinctive harms. Accordingly, this Article suggests that these cases should be criminalized, and elaborates upon the justifications and policy goals that support this choice and make it a desirable remedy. This Article further explores the practical ramifications of an alternative account by examining which criminal model is better suited to criminalize coerced submission. Comparing and contrasting a lack of consent model and a sexual coercion model, the Article hypothetically applies them to various cases that were litigated under the sexual harassment framework. This exercise demonstrates that the sexual coercion model provides a more comprehensive and pragmatic construct for criminalization. Therefore, this Article proposes the adoption of a specialized criminal statute based on the sexual coercion model that would criminalize supervisory sexual abuse of power within the workplace and the academy and identify several conditions that suggest that submission resulted from this abuse. Such a proposal would carefully target sexually abusive situations that may be plausible candidates for criminalization and offer a narrowly crafted prohibition that is both gender-and race-neutral and limited in scope to avoid over-criminalization.

Race Treason: The Untold Story of America’s Ban on Polygamy

Martha M. Ertman

Today’s ban on polygamy grew out of nineteenth century Americans’ view that Mormons committed two types of treason. First, antipolygamists charged Mormons with political treason by establishing a separatist theocracy in Utah. Second, they saw a social treason against the nation of White citizens when Mormons adopted a supposedly barbaric marital form, one that was natural for “Asiatic and African” people, but so unnatural for Whites as to produce a new, degenerate species that threatened the project of white supremacy. This Article reveals how both kinds of treason provided the foundation of polygamy law through the discourse of legal, political and medical “experts,” as well as, most vividly, cartoons of the day. This discourse designated the overwhelmingly White Mormons as non-White to justify depriving them of citizenship rights such as voting, holding office, and sitting on juries. Paralleling the Mormon question to miscegenation disputes also raging in the decades after the Civil War, the Article suggests two theoretical perspectives to understand the “blackening” of Mormons. First, postcolonial theorist Edward Said’s concept of Orientalism helps explain how designating Mormons a subject race rendered their subjection inevitable. Second, Sir Henry Maine’s 1864 observation that progressive societies move from status to contract reveals the visceral defense of status embedded in antipolygamy discourse. That defense of status may also have implicated other ways status was giving way to contract, such as wage labor replacing slavery and the partnership theory of marriage beginning to displace coverture. In either case, the Article contends, the racial foundations of American antipolygamy law require us to rethink our own often reflexive condemnation of the practice. It concludes by suggesting three questions to help us frame that inquiry, asking: (1) whether we need to rethink this rarely-enforced ban; (2) whether current antipolygamy law associates polygamy with barbarism, foreignness, and people of color; and (3) whether it is coincidental that the plain language of the Defense of Marriage Act prohibits both polygamy and same-sex marriage.