The summer of 2017 proved to be a different type of revolution in the Arab region. In the span of less than a month, Jordan, Lebanon and Tunisia transformed the region’s legal and social landscape when their respective governments revoked so-called ‘marry-your-rapist’ laws.
These antiquated laws allowed a man to escape prosecution and punishment for rape if he married his victim. It is hoped that momentum surrounding these repeals will compel other states in the region, namely Algeria, Bahrain, Iraq, Kuwait, Libya, Syria, and Palestine, to revoke similar laws.
While these amendments merit celebration, the legislative reforms do not go far enough. Specifically, rape within the context of marriage continues to go unrecognized and unpunished in much of the Arab region (the one except is Tunisia’s recent violence against law that theoretically criminalizes marital rape). Acknowledgement and action are long overdue.
Penal code and personal status law provisions in the Arab region do not prohibit martial rape to occur with few consequences, if any. For some states, unrestricted sexual access to one’s wife is part and parcel of the martial contract, which is argued to fall under religious prescription or the public-private divide rationale, but essentially entrenches and consolidates patriarchal control.
Historically known as the “marital rape exemption” within the common law and civil law systems, many modern day Arab legal systems continue to tolerate (and in some instances, embrace) these provisions. This is best illustrated in Lebanon’s domestic violence law, Law no. 293 (2014) which, after resistance from women’s movements, legally embedded a “marital right of intercourse,” essentially facilitating and condoning sexual assault in marriage.
While Lebanon’s tolerance is explicit, other states’ legislation is implicit. The few existing domestic violence laws in the region have avoided mention or penalization of marital rape altogether. This is despite elaboration in the United Nations Handbook for Legislation on Violence against Women that rape within the context of an intimate relationship, including marriage, must be criminalized for there to be holistic legislative response to violence against women.
In general, rape within the region continues to be narrowly defined as something that occurs only under extreme force, and happens to a woman who is not married to the perpetrator, or who is underage. Furthermore, definitions of rape are commonly couched in moralistic or honor-based terminology, rather than as nonconsensual sexual contact that is a violation of bodily integrity and sexual autonomy.
Gender sensitive legal reform, including the criminalization of marital rape, is a necessary step to eradicating violence against women. International human rights law explicitly and implicitly call upon states to sanction violence against women as part of their due diligence; failure to do so is a dereliction of duty to legally ensure and protect the human rights of all women.
Treaties and frameworks adopted by states such as the Convention on the Elimination of All Forms of Discrimination Against Women, the Beijing Platform for Action and the International Conference on Population and Development Plan of Action provide the necessary frameworks for implementing successful gender-sensitive legal reform. But they are only the beginning.
For legal reform to be truly revolutionary legal, it must holistic. Legal reform must acknowledge that violence against women takes many forms and occurs in all facets of life.
Legal reform must engage with gender sensitive human rights frameworks. Legal reform must intersect with other mechanisms that both protect and empower survivors of violence.
Legal reform must ensure that women’s bodily integrity is respected and that their voices matter in the gender justice chain.
Finally, legal reform must acknowledge that rape in marriage is just that – rape.
*The writer is Social Affairs Officer at the ESCWA Centre for Women