It was a tipping point for women’s and children’s rights activists in Tunisia. Article 227bis of the Tunisian Penal code, the “article of shame” as they called it, had to be repealed.
In December 2016, the Court of First Instance of Kef, a small town North-West of Tunisia, ordered a 13-year-old girl to marry the man who had raped her and gotten her pregnant.
“When it comes to a 13-year-old, we cannot talk about sex with consent. It is rape,” said Houda Abboudi, head of the child protection services of Kef. “The court decision did not take into account the interest of this child ... who, on top of that, will have to marry her rapist,” which constitutes “a violation of her physical and mental integrity,” she stressed.
Article 227bis did not recognize sex with a minor as rape as defined by international standards. It introduced the concept of “sexual aggression with consent” which also enabled an adult to marry a minor with whom they had had sexual intercourse without violence and thus avoid prosecution.
Earlier this month Tunisia, as well as Jordan and Lebanon all moved to further women’s rights protection by repealing legislation that allowed rapists to avoid criminal prosecution if they marry their victims.
The move follows steps taken by Egypt in 1999 and Morocco in 2014 to amend their laws that allowed rapists and kidnappers to escape prosecution by marrying their victims. A clause in Article 475 of Morocco’s Penal Code that prevented prosecution if a minor agreed to marry her attacker was removed.
UN Human Rights Chief, Zeid Ra’ad Al Hussein, welcomed these reforms pointing out that “[punishing] a rape victim by making her marry the perpetrator of a horrible crime against her – there is no place in today’s world for such hideous laws.”
Victories in all these countries are the results of years of campaigning by human rights activists, including women’s rights groups on the ground who wish to push these reforms further.
Local NGOs have warned that the effects of Article 522, which was repealed from the Lebanese Penal Code, continue under Article 505 that would allow statutory rape if the minor is at least 15 years of age and marries her attacker. They also pointed out that Article 518, which concerns the seduction of a minor with the promise of marriage and implicitly denies the existence of marital rape, also needs to be repealed.
The process for the adoption of a new law in Tunisia to protect women against gender-based violence started in 2012 with the revival of the National Strategy to Combat Violence Against Women (VAW) Through the Life Cycle (Stratégie nationale contre les violences faites aux femmes (VFF) à travers le cycle de vie) first incepted in 2008.
Since then, the UN Human Rights country office in Tunisia has accompanied this process including by sponsoring the participation of civil society organizations in fora to work on the draft law and providing technical advice. The Office, with the UN Special Rapporteur on violence against women, Rachida Manjoo, also facilitated a working session for members of the drafting committee for the new law.
A year after its presentation at the National Assembly, the new law was finally adopted. It will come into effect in January 2018 and allow women – among others - to seek protection from violent spouses and relatives.
Jordan’s law reform focused on the repeal of Article 308, which permitted pardoning rapists if they married their victims and remained married for at least three years. The repeal was approved at the Senate in August.
UN Human Rights Chief Zeid called on the Governments and the people of Jordan, Lebanon and Tunisia – and other countries in the region – “to build on this positive momentum, and to work towards the swift repeal of other legislation that condones sexual violence against women and girls and perpetuates discrimination against them in clear violation of international human rights law.”
In July 2017, the UN Committee on the Elimination of Violence against Women (CEDAW) adopted a new recommendation, General Recommendation 35, which will help fight the normalization and downplaying of rape in many legal systems globally. CEDAW notably called on States to repeal all legislation that enshrine, encourage, facilitate, justify or tolerate any form of gender-based violence against women. The committee also called on States to combat social attitudes that falsely “make women responsible for their own safety and for the violence they suffer.”
25 August 2017