Legislation and Law Enforcement Regulating The Chain of Gender-based Violence: Child Marriage and Human Trafficking

1 Introduction

Bangladesh is a state that has one of the highest child marriage rates in the international community. Statistics provided by the Bangladesh Multiple Indicator Cluster Survey in 2019 indicate that more than 50 percent of child brides in Bangladesh were married before 16 years old (Bangladesh Bureau of Statistics, 2019). Although child marriage in Bangladesh is regulated by a series of laws, including international conventions and domestic laws, particularly the Child Marriage Restraint Act 2017 (2017 CMRA), the situation of child marriage remains severe and unresolved. The cultural, socio-economic, and judicial conditions not only contribute to the continuing existence of child marriage but also lead to gender-based violence such as rape, domestic violence, and forced pregnancy. 

Connected to the phenomenon of human trafficking, possibly one of the most common contemporary forms of slavery entails the exploitation of victims (Turner, 2013). The review of Anti-Slavery International commented that “trafficking […] appears to be the form of slavery most readily associated with marriage” and the trafficked girls “were imprisoned, threatened, abused, and forced into prostitution and/or domestic servitude” (Turner, 2013). Statistics indicate that child marriage and polygamy in rural areas have become the second main cause of trafficking according to the opinion of the heads of households (Uddin & Bhuyan, 2019). Although the opinion indicates that the first cause for trafficking is the poor economic conditions of the parents, daughters usually bear the consequences, which generally leads to early marriages (Uddin & Bhuyan, 2019).

However, despite the interrelation between child marriage and trafficking rooted in backgrounds of poverty and gender inequality, discussions concerning their nexus – such as whether child marriage per se is a form of trafficking and how child marriage and trafficking constitute systematic gender-based violence – are not comprehensively elaborated.

2. Child Marriage and Trafficking: A Sequence of Gender-Based Violence

According to UNICEF, “child marriage refers to any formal marriage or informal union between a child under the age of 18 and an adult or another child” (Child marriage, n.d.). Meanwhile, Article 3(c) of the Palermo Protocol defines ‘trafficking in person’ as 

[…] the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. [emphasis added] (United Nations, 2000).

Based on the analysis of their definitions, the nexus between these two violations can be found, which can be interpreted into two aspects: child marriage as a form of trafficking, and child marriage as a cover for trafficking and other forms of gender-based violence.

While child marriage or forced marriage is not explicitly included in the definition of trafficking under the Palermo Protocol, it does not preclude the possibility that child marriage can constitute trafficking. As the Protocol allows the viability of different approaches for domestic legislation to involve interlinkages between trafficking and marriage, some states, such as Cambodia, Australia, and Argentina regulate forced marriage, including child marriage, as a form of trafficking (Office to Monitor and Combat Trafficking in Persons, 2024). In addition, the element of ‘exploitation’ is defined by the Palermo Protocol as “the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude, or the removal of organs” (United Nations, 2000). In this regard, apart from the direct inclusion of child marriage as trafficking, the open-ended expression of “practices similar to slavery” provides a huge space. As children are more vulnerable when exposed to violence and forces with limited ability to report and leave violent conditions, they are more likely to be involved in exploitation similar to slavery and thus become victims of trafficking. 

In the case of Bangladesh, the Prevention and Suppression of Human Trafficking Act 2012 (PSHTA) follows this definition and adds more details in Section 2(15), for instance, forced labour or services, servitude in households, and exploitation or oppression through fraudulent marriage (The Prevention and Suppression of Human Trafficking Act, 2012). Reports and academic studies illustrate that the exploited situation of girls in child marriage in Bangladesh can take place in several forms.  Younger brides who are married before 15 are more likely to experience spousal abuse than those who married after 25 (Human Rights Watch, 2015). They are likely to be forced to perform the majority of housework which is far beyond their needs and burden of their ages, depriving these girls of their childhood, education, potential and dignity (Center for Reproductive Rights, 2022; What Is Child Labour, n.d.). Furthermore, the report concerning children’s health also indicates that younger brides face a much higher possibility of death while giving birth, entailing further exploitation of rights to sex and reproduction (Blomgren, 2013). Thus, child marriage frequently results in forced labour, enslavement, violence, and sexual abuse, which is relatively sufficient to meet the “exploitation” requirement described in both the Palermo Protocol and the PSHTA. 

Another perspective of the nexus between child marriage and trafficking is that the former becomes the legally or socially accepted cover for the latter, as well as other forms of gender-based violence. Child marriage and trafficking are generally regarded as two separate crimes. In certain states, such as Bangladesh, gender inequality and masculine stereotypes are rooted in the culture, society, and legal framework, in which females are generally treated as the subsidiaries of males who have full power to control and make decisions. While the punishment and law enforcement against violence in marriage, even in child marriage, are more lenient, marriage becomes a concealment of other crimes and gender-based violence (Center for Reproductive Rights, 2022). For example, Section 375 of the Bangladesh Penal Code regulates an exception for rape that “sexual intercourse by a man with his own wife, the wife not being under 13 […], is not rape” (The Penal Code, 1860). This provision not only implies that a marital relationship of a girl from 13 to 18 is accepted, but also allows marital rape of a minor girl over 13. Similarly, justified wife beating, the wives’ fear of repercussions from their husbands, stigma from the community, along with the compromise mechanism in the Domestic Violence Act allow husbands and men to escape from responsibility and punishment for domestic violence (Center for Reproductive Rights, 2022). With the concealment of marriage, there are trafficking rings recruiting men to marry girls in order to sell them to traffickers (Rabby, 2015). Moreover, the lack of registration of birth and marriage, weak implementation and enforcement of laws, and insufficient cooperation among states further support trafficking through marriage, particularly across borders to India and Pakistan (Turner, 2013).

3. Domestic and International Legislation Regulating Child Marriage and Trafficking and Their Loopholes

3.1 Domestic Legal Framework in the Context of Bangladesh

One of the most predominant laws regulating child marriage is the 2017 CMRA. Based on the previous 1929 CMRA, the 2017 CMRA maintains the general requirement of the minimum age for marriage at 18 years for females and 21 years for males and further increases the punishment for those who marry or assist in child marriage. It also stipulates governmental responsibility and specific roles and obligations of the existing government officers to prevent or take necessary measures to bring legal action upon reported child marriage (Center for Reproductive Rights, 2022). Accordingly, the 2017 CMRA attempts to take more efficient approaches to ending child marriage and connected gender-based violence, including trafficking. However, statistics concerning the rate of child marriage before 16 years, taken in 2013 and 2019 respectively, indicate that the percentage did not decrease much even with the enforcement of the new CMRA (Datta & Hassan, 2022). The unchanged situation of child marriage may be a result of three factors from the aspect of legislation.

First, while the 2017 CMRA sticks to the minimum age for marriage at 18 and 21, it serves with a countervailing element that under 

[…] special circumstances […] in the best interests of the minor, at the directions of the court and with the consent of the parents or the guardian of the minor […], [child marriage] shall not be deemed to be an offence under this Act (The Child Marriage Restraint Act 2017, 2017).

The Act does not clarify what circumstances can be considered as “special” and what “the best interests of the minor” are and even fails to provide an alternative minimum age for marriage under this special circumstance. Meanwhile, the fact that only the decision of the court and the consent of parents or guardians are taken into account ignores the child’s free will to decide a lifelong choice. This countervailing element thus creates a large and blurry loophole for legalised child marriage, even when it causes great harm to child brides.

With the exacerbating climate crisis in Bangladesh, more families have confronted dire financial straits and the inability to afford the living expenses of their girls. Child marriage in these cases becomes the only choice for the parents and the daughter to survive under the pressure of poverty and climate disasters (Inkstick Contributor, 2024). While this seems to be for the best interests of the minor, the girl is likely to face the end of her education and development and unlimited housework and labour beyond her age. Since the law does not provide any clarification of “special circumstances”, worse cases can be the marriage between the victim and her rapist to maintain the families’ honour and avoid social stigma in the name of “her best interests” (Center for Reproductive Rights, 2022).

Furthermore, the 2017 CMRA fails to clarify its nexus with personal laws. As the population of Bangladesh is composed of a majority of Muslims and minority groups of other religions, including Hinduism, Christianity, and Buddhism, the laws governing marriage and dissolution are attributable to the prevailing legal pluralism, namely religious laws (Ngema, 2022). When the countervailing element in the 2017 CMRA leaves a huge gap for personal laws, it creates inconsistencies in the regulations of child marriages, including the minimum age for marriage, the validity of marriage before the minimum age, the requirement of marriage registration, and punishment and compensation for violence in marriage. For example, Muslim personal law does not set a specific minimum age for marriage but only indicates that they may marry when they reach puberty (Center for Reproductive Rights, 2022). Hindu family laws do not prescribe any minimum age for marriage either – child marriage is allowed with the permission of the parents or guardians (Ngema, 2022). The Special Marriage Act of 1872 recognises child marriage over the age of 14 years for girls (Center for Reproductive Rights, 2022). The predominant personal laws seriously undermine the 2017 CMRA, which is supposed to be strictly and concretely followed for the purpose of ending child marriage.

Additionally, the 2017 CMRA establishes several boundaries to reach proper punishment for offenders and compensation for victims of child marriage. Representative cases are the punishment for false complaints and the exemptions from punishment. When it comes to the former, it may prevent the community from reporting child marriage to local authorities due to the fear of punishment, hindering the termination of child marriage and gender-based violence efficiently at an early stage. For the latter, Section 10 allows the exemption from punishment with a deposition or bond to prescribe that the offender will not be involved in any incidents of child marriage (The Child Marriage Restraint Act 2017, 2017). However, such a deposition or bond lacks a monitoring mechanism to ensure accountability for further violence or recurrence. When the punishment for the same violation outside the context of child marriage is much more severe, it is very questionable whether the 2017 CMRA aims to end child marriage and subsequent violence.

Legal frameworks other than the 2017 CMRA also present huge loopholes and can hardly reach the specific needs for combating child marriage. This is true for cases of the PSHTA, which do not include any links or regulations concerning child marriage despite their close nexus. Other rules suppressing gender-based violence, such as the Prevention of Oppression Against Women and Children Act 2000, the Dowry Prohibition Act, and the Labour Act, are also restricted by personal laws and lack any special protection of child marriage (Center for Reproductive Rights, 2022).

3.2 Bangladesh’s International Human Rights Obligations 

Many international human rights instruments are related to child marriage and trafficking, such as Article 23 of the International Covenant on Civil and Political Rights (ICCPR), Articles 2, 3, and 10 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and Article 3 of the International Labour Organisation Convention (ILO Convention) (Blomgren, 2013). With a concentration on the specific protection of child marriage and trafficking, this section will focus on the instruments concerning children and gender-based perspectives, which are the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the Convention on the Consent to Marriage, Minimum Age for Marriage, and Registration of Marriage (the Marriage Age Convention).

Unfortunately, none of the aforementioned instruments manifest explicit provisions that directly prohibit child marriage nor the subsequent characterisation of the nexus between child marriage and trafficking, although it might be implied in certain provisions (Ngema, 2022). The prohibition of child marriage can only be deduced from their contexts and reports of their monitoring committees. In CEDAW, except for the requirement to eliminate discrimination against women in Article 2, Article 16 expressly demonstrates women’s rights to free marriage and dissolution and further indicates in Article 16(2) that “The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage” (United Nations, 1979). This is one of the most direct provisions mentioning the validity of child marriage and regulating child marriage through its void ab initio status (Ngema, 2022). However, without a direct demonstration of the minimum age for marriage and an outright prohibition of child marriage, this article still seems insufficient. 

Similarly, Articles 1 and 2 of the Marriage Age Convention also emphasise the right to marry with full and free consent and address that the States Parties shall specify a minimum age for marriage (United Nations, 1962). In a non-binding recommendation accompanying this Convention, the suggested age is not less than 15 years (Blomgren, 2013). However, this seems to contradict the implication of the CRC. With the concentration on children’s rights, Article 1 of the CRC explicitly defines ‘children’ as human beings below 18, which implicitly settles the fundamental age line for child marriage or early marriage. Article 3 requires that all actions concerning children should primarily consider the best interests of the child. Article 19 further indicates children’s rights to protection from all forms of physical or mental violence, injury or abuse, maltreatment or exploitation, including sexual abuse, while in the care of parents, guardians, or any other person (United Nations, 1989). Through these articles, a general prohibition of child marriage can be observed within the purpose of the CRC to protect children.

These instruments seem to establish a legal framework which prohibits child marriage and trafficking,  meaning that Bangladesh, as a member party, has obligations to comply with these provisions to protect human rights. However, Bangladesh has made reservations on these conventions, dramatically undermining the effectiveness of the protection of human rights stipulated by these rules. Most reservations are made to adapt to the cultural and religious requirements in Bangladesh. In the CEDAW, it is surprising that Bangladesh does not make any reservation on the void ab initio status of child marriage (Ngema, 2022). Nevertheless, several cases in the Supreme Court and the widespread religious family or person laws that encourage child marriage indicate that Bangladesh does not follow such obligations in a successful manner. With its reservation on Article 16(1)(c) – women’s right to free marriage and dissolution as men’s – due to its conflicts with Muslim Sharia law, it further draws back the prevention and combat of child marriage and reinforces the parallel religious legal systems (Declarations and Reservations on Convention on the Elimination of All Forms of Discrimination against Women, n.d.). Likewise, Articles 1 and 2 of the Marriage Age Convention were also reserved for the reason that the minimum age for marriage in Bangladesh should be “in accordance with the Personal Laws of different religious communities”, which is very likely to encourage marriage under 18 (Declarations and Reservations on Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, n.d.). From the aspect of children’s rights, Bangladesh also made reservations on children’s rights to freedom of thought, religion, and conscience in Article 14 and the definition of “the best interests of the child” in Article 21. Instead, these rights shall be determined by the existing laws and practices in Bangladesh, which would be personal laws predominantly (Declarations and Reservations on Convention on the Rights of the Child, n.d.).

Therefore, according to practices in the context of Bangladesh, it is very obvious that international conventions are also trapped by personal laws and can only be valid when they are not in conflict with religious norms. The harmful practice of child marriage and related trafficking and the failure to comply with international human rights standards, is concerning in Bangladesh, a state which restrains itself to personal laws.

4. Deficiency in Law Enforcement and Implementation in Bangladesh

Despite the loopholes in the legislation, unresolved child marriage and trafficking are also caused by weak law enforcement and implementation during the entire proceedings of reporting, investigation, prosecution, and legal consequences (punishment for offenders and reparation for victims). During the proceeding of reporting and investigation of cases of child marriage and trafficking, both the victims and law enforcement officers are restrained by the lack of legal knowledge and deeply affected by cultural, social, and religious backgrounds. Victims, who are predominantly young girls lacking education and access to judicial systems, may even be unaware of the legal framework applicable to them. The stigma from the community, the possible punishment for filing a complaint, and the limited financial resources to support their complaint further prevent the victims from terminating a case of child marriage through judicial mechanisms (Center for Reproductive Rights, 2022). 

Law enforcement officers are not familiar with the various complicated legal frameworks applicable to different kinds of gender-based violence, leading them to be unaware of their roles in such cases and thereby failing to provide support for victims. The inability to deal with these cases sensitively and the failure to take immediate action against complaints of child marriage and relevant violence in investigation and prosecution may even lead to negative consequences such as the re-traumatisation of victims and witnesses, inappropriate legal characterisation of child marriage, trafficking, and gender-based violence., Furthermore, the failure to recognise legal issues allows offenders to escape criminal accountability and reinforces the tragedy of child marriage and a sequence of violence (Center for Reproductive Rights, 2022). Even if they are equipped with these abilities, the lack of accurate and authentic registration of birth and marriage may increase the difficulty in the verification of age and marriage in the investigation and prosecution of child marriage and trafficking. Moreover, in the case of child marriage for trafficking across borders, the dilemma of cooperating with foreign law enforcement also becomes a huge issue that impedes the end of child marriage and trafficking. All these factors contribute to the low prosecution rate and conviction rate. As evidence of this,  the Supreme Court Annual Report from 2013 to 2014 did not mention a single case of child marriage-related cases (Supreme Court of Bangladesh, 2014).

In addition, the failure to implement legal consequences for the cases of child marriage and trafficking drives the impunity of these cases, people’s disappointment towards judicial systems, and the recurrence of similar violations. In cases of child marriage and trafficking, the predominant 2017 CMRA does not provide any medical services or care mechanisms for victims of child marriage and trafficking. Case law demonstrates that the court can be ambiguous in the decision of the status of girls in child marriage – whether she should return to her parents or stay with her older husband – as the validity of child marriage is also vague (Center for Reproductive Rights, 2022). With the exemption of punishment, the victims cannot even receive basic satisfaction and security from justice. The lack of monitoring mechanisms to ensure the fulfilment of legal consequences leads to the rejection to pay victims compensation, the use of political connections to register a child marriage case, and noncompliance with the offender’s promised deposition or bond (Blomgren, 2013).

Conclusion

The socio-economic, cultural, legal, and religious conditions of Bangladesh analysed above determine that child marriage will remain a long-lasting issue. The similar causes and interrelated nexus between child marriage and trafficking allow a more multifaceted view to dissect a sequence of systematic gender-based violence in Bangladesh and illustrate that violations based on one’s gender identity are never isolated. The legal framework of domestic and international laws reveals the predominant position of religious personal law and how they negatively impact the legislation and instruments regulating child marriage and trafficking. In conjunction with the weak law enforcement and implementation, the entire legal system and the socio-economic and cultural backgrounds hidden behind manifest the inherent gender inequality, suppression of women and children, and the sufferance of poverty in present Bangladesh. Although efforts and attempts can be observed through the growing awareness of the seriousness of child marriage and trafficking, the progress in the amendment of domestic laws, and the increasing participation of civil society in supporting the victims of gender-based violence, up to now, achievements seem limited. Greater actions are required to change the conditions rooted in society.

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