Illustration by Shenuka Corea

Rape Laws in the Middle East

Legal changes are imperative, but they are at least as important as social ones.

Sep 17, 2017

Laws that exonerate rapists are remnants of the past; let us move on, but strategically.
Overdue, yet remarkable — Jordan, Tunisia and Lebanon have successfully, or are in the process of, repealing certain laws that allowed rapists to escape prosecution and go unpunished if they married their victims. On July 26, the Tunisian parliament repealed article 227bis in full when it passed breakthrough laws on eliminating violence against women. Less than a week later, the lower house of Jordan's parliament approved the full revocation of article 308. Finally, Lebanon's parliament repealed article 522 of their penal code. The existence of these laws surprised many. How and why these laws were drafted and kept in Middle Eastern constitutions? The answer is a puzzling sociocultural phenomenon rooted in colonial history, politics and social and cultural norms.
Even now, many countries in the Middle East have these so-called rape-marriage laws in their constitutions and penal codes, namely Libya, Kuwait, Iraq, Bahrain and the Palestinian Territories. These laws have not just led to impunity for rapists but have also trapped women and girls in unwanted, abusive marriages. They have allowed child marriage in countries that had otherwise set a minimum age of marriage at 18. The increasing pressure by civil activists of various groups brought about these landmark changes in Jordan, Tunisia and Lebanon, and the main campaigners are the women’s groups in these countries. The foremost demands by the activists in the public sphere called for the complete revocation and wiping of such laws. However, considering the complex development of these laws, the well-intentioned activism towards the complete revocation of similar laws is a misguided fight.
It is true that the origins of these laws in the Middle East and North Africa region stem in part from their respective colonial histories — they are similar in their language, concepts and wording to that of their colonizers. At the start of the 20th century the Middle East was largely divided between three major colonial powers: The British, the French and the Ottomans. Hence, the initial development of constitutions and laws in the modern Middle East was largely shaped through adapting European and Ottoman constitutions in their possessions. The specific concept of rape marriage codification, in fact, largely derives from the French Napoleonic Code of 1810, which allowed a man who kidnapped a girl to escape prosecution if he married her. Indeed, the Ottoman Code of 1911 specifically echoed the French one on this topic. However, the argument that these laws are solely colonial in origin, an argument that has been used by many activists to push for the complete revocation of the codes from constitutions, is misguided. The activists have failed to recognize the laws’ cultural origins, prematurely exonerating Middle Eastern cultures’ own contributions to the laws, instead blaming their existence as soley relics of the colonial era.
The dubious origins of the rape-marriage laws aside, legislative changes alone cannot change practices. Forced marriages to rapists existed before such marriage exonerations were codified, so even if such provisions were removed, the stigma that fuels forced marriage would still continue unofficially. It is a social issue as much as it is a legal one.
The social basis of these penal codes and their origin in modern Middle Eastern society can be understood and addressed better when contextualized with social theory. According to Emile Durkheim , punishments exist not to simply regulate crime and criminal laws, but also to regulate their institutionalization. The law practice embodies the society’s basic moral values. Moreover, Durkheim argues that societies punish to uphold their collective conscience. Modern sociological approaches have also argued that rather than taking a look at traits of individuals to explain crime, sociologists should examine how social structure is broadly a source of criminality. Filtered down, socio-psychological forces have bred the notions of honor and shame related to women, enabling the existence of marriage after rape in the Middle East before these laws were even institutionalized. Worse yet, these types of laws do not just uphold a distorted embodiment of a society that tolerates rape, but incentivizes it.
Notwithstanding the argument that Middle Eastern culture had a part in creating rape-marriage laws, it is at least guilty of systematically upholding these laws to this day. Rape survivors in traditional Middle Eastern societies are considered unmarriageable and without honor for having had sex outside of marriage, even if the sex was not consensual. Marriage is meant to shield a victim's family from the resulting scandal in rape-marriage cases. Legislators and even some women have argued that these laws have actually protected rape victims from being killed by their family members in the tradition commonly known as honor killings. These facts demonstrate how Middle Eastern social structure has managed to inspire such a notion and has even managed to advocate solving an injustice with further injustice. Moreover, the fact that these laws were not revoked previously is due to patriarchal attitudes and stigma still extant in the Middle East. Topics such as rape, virginity, honor and paternal identification remain shameful. The topic fuels a process of self-motivated silencing that has systematically hushed discussions around these so-called taboo topics in the public sphere.
Fortunately, our societies are evolving, culture is changing, and thus, so should our constitutions before they actually perpetuate and promote erroneous social standards. Nevertheless, simply scrapping laws, I believe, is a misguided fight, even if it is well-intentioned. Activists and legislators need to push for a complete overhaul revision of the penal code. Clearly written, well communicated, and fully enforceable law that defines the age of majority and age of consent is what is needed to protect the well-informed decisions of individuals, their rights, and their responsibilities. The legal system needs to punish all forms of fraud. Confusion has lead to too many injustices on all sorts of ordeals; from paternal identification to statutory rape, penal codes are too underdeveloped.
Likewise, activists must also push their authorities, once penal codes are better developed, to take steps to support, invest in or facilitate solutions like rehabilitation programs, support networks and welfare organizations aiming to reintegrate victims, children and culprits (after prosecution) back into society. To that end, ensuring that rape survivors, girls and women at risk of so-called honor crimes at the hands of their families, are provided with assistance and protection through the championing of the establishment of dedicated formal institutions. Public discussion must shift away from blaming colonialism and denial of the cultural origins of such rape-marriage laws. Leaders in the Middle East must work to promote respect for women's physical integrity and autonomy by shifting away from traditional views about the family's honor being tied to women's and girls' behavior. Legal changes are imperative, but they are at least as important as social ones.
Daniah Kheetan is a Middle Eastern Affairs Columnist. Email her at feedback@thegazelle.org
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