Chapter 3
The criminal law
3.1
This chapter examines the arguments for and against criminalising the
practice of dowry in Australia, as distinct from dowry abuse, which as the
previous chapter established, is already captured in existing law. This chapter
also examines the adequacy of existing federal criminal law provisions, and the
existing extradition arrangements between Australia and the Republic of India.
Criminalising dowry
3.2
The committee heard arguments both in favour of[1] and against[2] the criminalisation of the practice of dowry in Australia. Those in favour of
criminalisation tended to argue that the practice of dowry has no place in
Australia. Those against criminalising the practice generally supported the
cultural significance of dowry and suggested that existing criminal law is
adequate to respond to dowry abuse.
3.3
The United Indian Association (UIA) was one of the organisations
advocating for the criminalisation of dowry, stating that the practice of dowry
in modern Australia 'is totally unacceptable and inappropriate'.[3] Mrs Sumati Advani of the UIA elaborated on why the practice of dowry in
Australia is problematic:
In Australia, first of all we don't seem to recognise that
dowry is practiced. Secondly, because it is not criminalised, what happens is
that the perpetrators actually get away with it. There is no action taken,
because very often the domestic violence is mental abuse, emotional abuse and
blackmailing. Very often it is not even picked up by people. Most of the
problems that we have seen, as mentioned before, are with temporary spouse
visas. These are people who are coming here on tourist visas, making false
temporary spouse visas. What is happening is that, from the time that they get
married and come here, the parents are made to pay for the ticket, the visa,
education, house deposits, car purchases—it goes on and on and on.[4]
3.4
Dr Manjula O'Connor also advocated for the criminalisation of dowry in
Australia, stating that women subject to dowry abuse in Australia suffer 'multiple
layers of disadvantage'.[5] Dr O'Connor also commented on what she considered to be the inappropriateness
of this cultural practice:
The young women and their parents have been hoodwinked by
society into continuing the practice of dowry believing that it is their duty
to give and the grooms have been groomed to believe that they are entitled to
receive the bride's family wealth.
Any brides parents not willing to give dowry are judged as
too mean, too poor and not respect worthy by the socially conscious/greedy
grooms .The brides have internalised this societal construct. The process of
criticism of not enough dowry gifts by husband and his mother should anger the
bride, instead it makes her feel ashamed, embarrassed and she questions as to
why her parents did not give more, as that would have spared her the
humiliation of her family being judged as lower class than the groom and she
not good enough for him.[6]
3.5
White Ribbon Australia expressed its support for Dr O'Connor's campaign
for the criminalisation of dowry, and the outlawing dowry abuse.[7]
3.6
Many submitters and witnesses who opposed the criminalisation of dowry
referred to the apparent inefficacy of the prohibition of dowry in India.
India's legislative response to the practice of dowry was criticised for
several reasons, including that:
- the law is poorly implemented and has not had any impact on or
addressed dowry abuse, including acts of domestic or other violence arising
from such demands;[8]
- it criminalises both the givers and receivers of dowry, which
makes it difficult for the families of wronged brides to bring a claim, or that
it can be used to penalise women's families where they are pressured into
accepting demands;[9]
- some women in India want the practice of dowry to continue, as it
represents a 'rightful inheritance' that they often rely on financially;[10]
- the criminalisation of dowry gave rise to the practice of
'Stridhan', the Hindu term for women's property for gifts around marriage that
remain in the woman's control following her marriage, which can be used to
circumvent prohibitions on dowry;[11] and
- section 498A of the Indian Penal Code 1860 (Penal Code) has
been abused to accuse givers and receivers of dowry unfairly, which has given
rise to men being penalised with only allegations of dowry abuse.[12]
3.7
It was with reference to criticisms such as these that many submitters
and witnesses advocated against the criminalisation of dowry in Australia.
3.8
For example, Good Shepherd Australia New Zealand and inTouch
Multicultural Centre against Family Violence (GSANZ and inTouch) informed the
committee of research findings which demonstrate that the focus on prevention
of dowry-related violence, as in India, has 'proved to be inadequate for the
task of dealing with wider domestic violence'.[13]
3.9
Instead of criminalising dowry, GSANZ and InTouch advocated for
'embedding dowry abuse into a broader framework of abuse and violence', and
eliminating barriers to women from culturally and linguistically diverse (CALD)
backgrounds accessing appropriate services.[14]
3.10
In her submission, Professor Supriya Singh argued that '[c]riminalising
particular practices in one culture ignores the complexity of family violence
in that culture as well as in other cultures', and advocated instead for the
criminalisation of 'coercive control'.[15] Professor Singh argued that dowry abuse would be caught by the
criminalisation of coercive control, 'as well as all dimensions of family
violence, particularly emotional, financial and sexual abuse'.[16]
3.11
Similarly, Harmony Alliance argued against criminalising the practice of
dowry, stating that:
...such a ban would risk moving the practice underground and
could deter victims of dowry abuse from seeking help for fear that they or
their family would be punished for paying dowry.[17]
3.12
This was also reflected in evidence from Associate Professor Marie
Segrave of Monash University, who considered that the actual or symbolic
criminalisation of cultural practices 'may have the effect of creating an
additional barrier of fear for women seeking to report family violence'.[18] Rather than the introduction of further legislation, Associate Professor
Segrave stated that '[t]he key priority should be the norm and expectation of
gendered violence being an unacceptable part of Australian life'.[19]
3.13
In her submission, Ms Uthra Ramachandran referred to her research
findings that 'existing criminal laws were an adequate form of redress for the
worst forms of offending':
Violence and mental abuse is covered by assault and causing
injury provisions, and coercion is largely covered by extortion and blackmail
offences. Stalking provisions may possibly be relevant with respect to causing
suicidal ideation. The recent changes to the Family Violence Protection Act
2008 (Vic) (FVPA) to include 'dowry coercion' as an illustration of 'economic
abuse' is a useful educative inclusion to the Act. Indian commentators have
similarly suggested that special anti-dowry laws be abandoned in favour of
criminal laws such as extortion as an FVPA equivalent has now been enacted
in India giving women some protection from domestic violence.[20]
Reverse dowry abuse
3.14
The committee received evidence that '[n]umerous men within the Indian
community have...been falsely accused of dowry abuse by their former wives, or
are themselves victims of "reverse dowry" abuse'.[21]
3.15
Turbans4Australia defined 'reverse dowry' abuse as follows:
Reverse dowry occurs when men rather than women are expected
to pay their spouse's family upon marriage. Demands for reverse dowry are
increasing partly because of the endemic practice of female infanticide.
Although sex-selective abortion is illegal in India, it is still commonly
practiced due to the preference for sons. This had created a skewed sex ratio
in the Indian population, where there is a surplus of men and a deficit of
women in the 'marriage market'. As a result, women and their families are
sometimes in a position to demand money from their husbands upon marriage.[22]
3.16
Turbans4Australia explained to the committee how false dowry accusations
may manifest:
In India, women do not need to provide proof supporting their
claims of dowry abuse; they simply need to provide a statement to police, which
prompts an investigation. In some cases, women accuse not only their husbands
but also their husband's relatives, including minors. In perhaps the most
extreme case, a two-month-old baby was arrested. As dowry abuse is a
non-bailable [sic] offence, the accused can be held in custody for months until
their court hearing takes place. Due to the backlog of court cases in India,
legal proceedings can last for years. Since anti-dowry laws have become active
in Victoria, some men have been tried in both India and Australia for the same
crime. Paying for two court proceedings simultaneously is a massive financial
burden.[23]
3.17
A submitter who wished to remain anonymous criticised the
criminalisation of dowry in India, which 'has let to harassment of millions of
innocent husbands and their families', such that section 498A of the Penal Code is recognised 'as a "legal tool for extortion"'.[24]
3.18
Indeed, another submitter whose name was withheld opposed the
criminalisation of dowry in Australia and opined that this section of the Penal
Code is 'the most misused and reviled law that has caused alarmingly
high rates of false complaints, extortion, abuse of innocent families and male
suicides in India'.[25]
Slavery and slavery-like practices
3.19
A number of submitters and witnesses commented on the relationship
between dowry abuse, slavery and slavery-like practices.
3.20
For example, Professor Jennifer Burn of Anti-Slavery Australia (ASA) referred
the committee to the case R v Tang,[26] where former Chief Justice Gleeson made comments in respect to slavery which Professor
Burn submitted 'can be extrapolated into the context of family violence and
dowry abuse'.[27]
3.21
In his judgment, the former Chief Justice referred to the case of Prosecutor v Kunarac,[28] before the International Criminal Tribunal for the Former Yugoslavia, which
concerned 'enslavement'. In that case, the Trial Chamber identified the
following factors to be taken into account in respect of this offence:
...control of 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.[29]
3.22
Professor Burn opined that:
[The Chief Justice] said, importantly for us, in reviewing
dowry abuse that the capacity of a person to treat a complainant as a commodity,
as an object of sale and purchase, may be a powerful indicator that there is a
case of slavery rather than exploitation of labour.[30]
3.23
In its submission, ASA provided a case study example of the relationship
between dowry abuse and exploitation:
Meera, a woman in her 20s from an Asian nation came to
Australia following an arranged marriage, in her country of origin, to an
Australian citizen. When in Australia, Meera faced physical, sexual and verbal
abuse. Meera found a job in Australia but her husband kept all her wages.
Meera's husband said that nothing could happen to him as he was a citizen and
came from a rich family with connections, whilst she was from a poor family.
Meera's husband said that he had asked her family for additional dowry but they
had not provided it. Meera's family did not want her to return home because
they had already paid a large dowry and returning would bring shame upon her
family.[31]
3.24
ASA also referred to a small-scale study of abandoned brides in India's
northern states which 'found that domestic violence, financial and
psychological abuse were intrinsically linked to dowry-related issues'.[32] ASA suggested that this research 'highlights the link between dowry abuse,
family violence, forced marriage and exploitation'.[33]
3.25
ASA ultimately recommended that the Australian government commission
research in order to:
...identify and document dowry abuse in the Australian context
and the connection between dowry abuse, other forms of family violence and the
more extreme forms of exploitation as set out in divisions 270 and 271 of the Criminal
Code Act 1995 (Cth).[34]
3.26
GSANZ and inTouch also discussed the intersection between dowry abuse,
slavery and slavery-like practices, informing the committee that, in their
experience,
...there are women from CALD backgrounds experiencing both sexual
servitude and domestic servitude within their marital relationships. Domestic and
family violence services regularly hear accounts from women who are in
marriages where they are not free to cease providing labour either in the home
or commercial businesses. They are also frequently engaging in non-consensual
sexual acts with their spouse and experiencing regular threats and physical
violence which maintains a pattern of control.[35]
3.27
GSANZ and inTouch also observed the vulnerability of women who migrate
for and through marriage—these women 'are dependent on their spouses to meet
basic needs, lack the language skills to engage in Australian society, and have
either limited or no information about their rights'.[36]
3.28
GSANZ and InTouch suggested that:
...reform regarding dowry abuse in Australia must consider the
extent to which other offences such as human trafficking, forced labour and
domestic servitude interface with situations that occur within a domestic/familial
context.[37]
3.29
The intersection between dowry abuse and slavery-like practices was also
examined by Slavery Links Australia (Slavery Links), which recommended that a
provision be made in the Criminal Code Act 1995 (Criminal Code) for
'servile marriage' as distinct from the 'event' of forced marriage. It
explained that servile marriage:
...is an ongoing situation where power relations in a marriage
degrade to the extent that the day to day experiences of one partner amounts to
servitude which that partner for cultural reasons cannot escape.[38]
3.30
Slavery Links also recommended that consideration be given to how the
Australian construct of 'exploitation' at section 271.1A of the Criminal Code 'can
be applied with regard to servile marriage'.[39]
3.31
The Attorney-General's Department (AGD) also identified the intersection
between dowry, slavery and slavery-like practices:
Australia has comprehensively criminalised serious forms of
exploitation, including human trafficking, slavery, and slavery-like practices.
If a person were to be inherited, sold, or transferred into marriage for
payment, this may constitute chattel slavery, which is a criminal offence under
the Commonwealth Criminal Code and is punishable by up to 25 years
imprisonment.
In addition, if a dowry was used as a means to coerce a
person into marriage without their full and free consent, this may constitute a
forced marriage, which is also a criminal offence under the Commonwealth
Criminal Code and is punishable by up to nine years imprisonment.[40]
Forced marriage
3.32
The committee was presented with evidence examining the confirmed and
potential links between dowry, dowry abuse and forced and/or arranged marriages.
3.33
As noted by the AGD, the legal requirements for a valid marriage are set
out in the Marriage Act 1961.[41] Although this Act does not specifically refer to the practice of dowry, or
other such cultural practices, the Act 'does stipulate that a marriage will be
considered void if the consent of either party was obtained by duress or fraud'.[42]
3.34
GSANZ and inTouch provided an explanation of the legal difference
between a forced and an arranged marriage—the primary distinguishing feature is
consent:
A forced marriage is considered to be a marriage that is
entered into without giving free and full consent. An arranged marriage is a
practice whereby parties to the marriage may be introduced by others (e.g.
their parents), but ultimately consent to the marriage takes place. In
practice, there can often be a blurred line between an arranged and a forced marriage.
Many individuals from diverse communities are raised with the understanding
that their marriage would be arranged. Many experience subtle and covert
pressure to comply with the arrangement.[43]
3.35
GSANZ and InTouch noted that, in their experience, 'forced marriages are
often characterised by abuse and violence...and dowry expectations, abuse or
demands form part of this experience of violence'.[44]
3.36
However, safe steps Family Violence Response Centre also observed that,
through their experience with clients, dowry abuse occurs in love marriages,
arranged marriages and forced marriages.[45] It was also observed that '[m]ost forced marriages have some kind of monetary
exchange, whether it is a dowry or not. It is often arranged overseas before
they come to Australia'.[46]
3.37
ASA discussed the pressure on women in forced marriages, suggesting that
women may feel that they cannot leave an abusive relationship or forced
marriage because of the excessive amount that the woman's family has spent on
dowry:
This widely held perception is centered on the deeply
entrenched cultural belief which has been socially practiced for decades that women
from poor backgrounds are required to fulfil their family's financial
constraints through marrying a wealthier suitor.[47]
3.38
ASA submitted that this perception has been affirmed by research
conducted on child, early and forced marriage in the Democratic Republic of Congo.
The report by Free the Slaves highlighted that 'marriage by sale' is one of the
types of forced marriages observed in this context, 'where the promise of dowry
motivates parents to force a marriage' such that it becomes 'the key coercive
mechanism that links a dowry to forced marriage'.[48]
3.39
The Indian (Sub-Continent) Crisis & Support Agency (ICSA) submitted
that detecting dowry in forced marriages is difficult due to the elements of
consent and social norms.[49] The ICSA identified two issues arising from their case management:
- forced marriages are to acquire a visa to Australia, a
victim can be forced into several marriages over a number of years, with dowry
used as a form of payment.
- forced marriages are the means of laundering money through
the dowry practice. This can include very elaborate weddings in families with
ostensibly no other real wealth.[50]
Extradition laws
3.40
The issue of extradition, specifically the relationship between
Australia and India, was raised as an issue of concern by a number of
submitters and witnesses and a means by which to respond to transnational dowry
abuse.
3.41
The Extradition (India) Regulations 2010 incorporates into law the Extradition
Treaty between Australia and the Republic of India (2008). The treaty provides
that Australia and India have agreed:
...to extradite to the other, in accordance with the provisions
of this Treaty, any persons who are wanted for trial, or the imposition or
enforcement of a sentence, in the Requesting State for an extraditable offence.[51]
3.42
An 'extraditable offence' is described as:
...offences, however described, which are punishable under the
laws of both Contracting States by imprisonment for a maximum period of at
least one year or by a more severe penalty. Where the request for extradition
relates to a person convicted of such an offence who is wanted for the
enforcement of a sentence of imprisonment, extradition shall be granted only if
a period of at least six months of such penalty remains to be served.[52]
3.43
It is possible to extradite an offender to a Requesting State
even when the offence has been committed outside the territory of this
requesting state, provided that:
...the law of the Requested State provides for the
punishment of an offence committed outside its territory in similar
circumstances. Where the law of the Requested State does not so provide the
Requested State may, in its discretion, grant extradition.[53]
3.44
The treaty also covers issues such as composite offences, grounds of
refusal, and extradition of nationals.[54]
3.45
The Indian Ministry of External Affairs includes the following
information about extradition for the offence of dowry on a government website:
Some of the countries with which India has extradition
treaties in force, have declined extradition requests for fugitive criminals
charged with offences under Section 498-A on the plea that conduct categorized
as offence under Section 498-A (which involves meting out harassment to a
woman, where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person related to her to meet
such demand), on the plea that such offence has no equivalent in their
jurisprudence, thereby failing the dual criminality requirement, an essential
ingredient in bilateral extradition treaties.
If, however, the specific underlying activities of the offence
in question constitute activities that are criminal offences under the law of
the foreign country concerned, it is possible that the qualifications of dual
criminality would be met. Therefore, among potential offences that could be
considered extraditable are assault, murder, and fraud showing criminal intent.
Charges relating to such offences should be specifically brought against the
accused by the concerned law enforcement agencies and charged under the
appropriate provisions of the Indian Penal Code. The request should not seek
extradition based primarily on violation of Section 498-A. The request would
also have to fully describe evidence showing the commission of specific
activities perpetrated by the offender that led to charges under the Indian Penal
Code.[55]
3.46
Despite the existence of this treaty since 2010, it appears that offenders
are not being extradited back to India for dowry-related offences. Evidence
received by the committee suggested that this could be due to the lack of
enforcement of the extradition treaty by India.[56]
3.47
In its submission, the UIA stated that '[m]ost of the offenders often do
not return to India and are often out of the reach of the Indian courts where
the cases are lodged', and suggested that '[e]xtradition treaties must be
entered into to enable the offenders to face the courts in India'.[57]
3.48
The committee was informed that India's Ministry of External Affairs has
taken steps to introduce the offence of dowry harassment in its extradition
treaties such that alleged offenders can be extradited to India from countries
where the practice of dowry is not considered an offence.[58]
Committee view
3.49
The committee considers that the practice of dowry is generally
undesirable in modern Australia. This is because it risks perpetuating a
culture of ownership or control of women and runs against the cause of
equality, and as dowry extortion has been identified as a direct cause of
family violence, murders and suicides in Australia.
3.50
The committee accepts, however, the reasoning presented that a narrow
approach of simply criminalising particular practices, such as dowry, may be
counter‑productive as it ignores the complexity of family violence in
certain cultures. The committee is also concerned that criminalisation of the
practice of dowry may have the unintended result of driving this pernicious cultural
practice underground, further isolating CALD women and causing greater harm. Criminalising
or seeking to ban the practice of dowry would also complicate the task of
making beneficial changes to reduce the impact of dowry abuse in areas such as
family law property settlements and the migration system. In addition, there
may be legitimate versions of property transfer that operate in different
cultural contexts. A common example might be parents making gifts to children
upon marriage, noting that these gifts belong to the couple and not to 'in-laws'
or broader family interests.
3.51
The committee is also mindful that the criminalisation of dowry in India
does not appear to have been particularly effective in preventing dowry abuse,
and that the Indian law has been the subject of misuse and extensive criticism.
The committee acknowledges the overwhelming evidence that women are the major
victims of dowry abuse. In doing so, the committee considers that there is no
benefit for society in creating a system that fosters false and vexatious
complaints—often against men—when marriages break down as appears to be the
case under the current Indian law.
3.52
As the following chapters will examine, the committee considers that
there are more effective ways of preventing dowry abuse than merely criminalising
the practice of dowry.
3.53
For example, the committee is persuaded by arguments that there exists a
nexus between dowry abuse and existing offences against the person under the
Criminal Code. Therefore, the committee considers that it necessary to identify
and document dowry abuse in the Australian context as well as the connection
between dowry abuse, other forms of family violence and those more extreme
forms of exploitation as set out in the Criminal Code. Recommendations relevant
to data collection and the Criminal Code appear in chapter 6.
3.54
The committee also acknowledges the concerns with respect to extradition
of alleged perpetrators of dowry abuse from India to Australia, or vice versa.
The committee considers the existing treaty between Australia and India to be
adequate to extradite people for federal, state or territory offences. Such
offences would include crimes relating to slavery and slavery-like offences in
the Criminal Code, and family and domestic violence offences in each state and
territory.
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