In the Arab world, women are under systematic discrimination socially, politically and economically. This discrimination is mirrored, deepened and embodied within the Arab countries' legal systems. A quick study of these countries laws is enough to realize that male is the dominant gender and women fall at the bottom of the social hierarchy. Laws that deal with rape are one of many other examples on how women are treated as second class citizens. Even though rape's punishment found in the Arab states criminal codes can be up to life imprisonment and death penalty. However, the problem lies not in the punishment of rape, rather in the burden of proof and the provision that a rapist shall not be prosecuted if he marries the victim. Consequently, these laws are further oppressive on women to come to light and report such crimes. Victims also face pressure and fear from their families and societies as the norms are to shame and stigmatize the victim of rape.
Criminal Codes of Iraq, Syria [Arabic] [pdf], Lebanon [Arabic] [pdf], Libya [Arabic] [pdf], Kuwait [Arabic] [pdf], Bahrain [pdf], Algeria [Arabic] [pdf], Tunisia [Arabic] [pdf] and the Palestinian Territories provide that if the offender of rape lawfully marries the victim, any action becomes void and any investigation or other procedure is discontinued and, if a sentence has already been passed in respect of such action, then the sentence will be repealed. A unique case is Saudi Arabia where Islamic Law is applied and there is no codified Penal Code and no clear definition of rape. Also, the criminal codes of Sudan and Mauritania have no definition of rape as a crime at all. Further, even though, this provision has been removed from the Criminal Code of Egypt since 1999, however, in practice this custom is still widely applied away from the court system. Morocco revoked the law in 2014 after a 16 year old girl committed suicide when she was forced to marry her rapist. Recently, Jordan succeeded quashing the law in 2017. As Jordan took steps towards abolishing Article 308, Lebanese activists were hanging wedding dresses along Beirut's famous sea front, in protest against the Lebanese version of the law. Thus, Lebanon is on the same path with a lot of efforts and hope. Last month, Lebanon's parliamentary committee for administration and justice announced a recommendation to repeal Article 522 of the country's penal code, which allows for suspending the conviction of someone who has raped, kidnapped or committed statutory rape, if he marries the victim. The recommendation must now go through parliament, a process that could still take months.
The logic behind this law is to protect, though not the victim, rather the reputation of the victim in the society where she lives after her honor has been wounded. The honor of a woman is defined by her chastity, and when she is raped she is stigmatized and no longer marriageable. Hence, a marriage to her rapist is perceived as a solution to this problem and an exit from shame that is suitable to the society. This way her family needs not to feel dishonored or, in many cases, the need to seek vengeance-honor crime. Therefore, better than leaving girls shamed, unmarriageable and dishonored or to be killed by their families or relatives the law protects the girls by forcing attackers to marry them. As a result, such legal system legitimizes rape if it was followed by marriage, rewards the rapist and, in fact, allows him to continue his act. Also, the law ignores any redress for the victim, which should be the aim of the law at the first place. Further, it gets its legitimacy from the concept of shame, and prioritizes wrongful social customs over principles of protecting women and their right, as citizens and humans, to live safely with the protection of law and society.
Further judicial drawback to already troubling laws regarding rape is the burden of proof. For a rape conviction to actually be handed down, UAE, Saudi Arabia, Sudan, Qatar and Mauritania laws mandate either a confession from the rapist or a witness account from four adult males. One must pause here and imagine the circumstances of which a woman is being raped and four adult male are witnessing this crime. In all cases, with neither of those things readily available, along with laws that make extramarital sex illegal, women reporting rape are likely to find themselves as the subject of criminal investigation and often, actually, sentenced. The result is the victims often don't report rape, fearing they will be tried for adultery. In the UAE in many cases, foreign women who are in a tourism vacation in Dubai, not knowing of these laws ended up being arrested after they went to the police to report they had been raped. In Saudi Arabia a victim known as 'Girl of Qatif' was gang-raped by seven men. At her 2006 Trial, she was sentenced to 90 lashes for being alone in a car with a man to whom she was not married. The rape was not established in the trial and it could not be proved. There were no witnesses and the men had recanted confessions they made during interrogation, and the verdict cannot be appealed.
Accordingly, the burden of proof in rape cases before the court and the provision of solving the problem of rape by marring the victim to her rapist among many other violations of women's rights found in the Arab states' legal systems, such as honor killing, child marriage and martial rape, reveal the level of cultural, social, political and legal failure these states have. A small success here and there of changing or revoking a certain articles and provisions is far away from what needs to be achieved. The amount of work to be done in order to revolutionize the way society and law perceives women and end the highest levels of female objectification are tremendous. Unfortunately, the Arab states do not seem to be on the right track at the first place. In fact, the recent unfortunate developments even show set back of what has been already little for women rights, especially with the ongoing instability and armed conflicts in the region and the clear rise of extremism over modernity.
Mais Haddad is an S.J.D candidate at the University of Pittsburgh School of Law. She received her Master's Degree in international politics from City University London, and her LL.M. from Damascus University. She practiced law in Damascus for eight years and was active in human and women rights.
Suggested citation: Mais Haddad, Victims of Rape and Law: How the Arab World Laws protect the Rapist not the Victim, JURIST - Dateline, May. 9, 2017, http://jurist.org/dateline/2017/05/victims-of-rape-and-law-how-the-arab-world-laws-protect-the-rapist-not-the-victim.php
This article was prepared for publication by Yuxin Jiang, a Senior Editor for JURIST Commentary service. Please direct any questions or comments to her at email@example.com