By Muskan Mumtaz
Muskan Mumtaz is a sophomore at University of Virginia.
As Muslim societies began demanding social and political changes in the wake of the Arab Spring, the issue of “rape-marriage” laws in the Middle East reopened for debate. In Jordan, this law allows rapists to avoid legal prosecution if they agree to marry their victim and thus “save” the lost honor of the girl and her family. Essentially products of the Ottoman and French penal codes, these laws have been criticized for undermining Islamic shari’ah, which does not recognize retroactive reduction of criminal punishments.
More importantly, these rape-marriage laws are perceived as attempts to resolve social problems—in this case, removing the stigma around the dishonored family—instead of effectively punishing a criminal. Since Egypt repealed its version of the rape-marriage law in 2002, activists in Jordan have been pressuring the government to create a new rape law that better aligns with Islamic beliefs, as well as modern notions of human rights and justice.
Identifying the origins of the rape-marriage law in Jordan will help explain the reasoning behind it. Currently, the Jordanian penal code has two articles that pertain to rape-marriage: first is Article 292, which lays out the punishment for rape: “Whoever has sexual intercourse with a woman, other than his wife, without her consent—whether through coercion, threat, deception, or fraud—is punished with hard labor for no less than 15 years.”
Second, Article 308 specifically outlines the “marriage” aspect of the rape-marriage law: “If a valid contract of marriage is made between the perpetrator of any of the offenses mentioned in this section, and the victim, the prosecution is suspended. If judgment was already passed, the implementation of the punishment upon the sentenced person is suspended.” Articles 292 and 308 originate from the Imperial Ottoman Penal Code, which is believed to be the first to include a marriage-rape provision as an effort to “modernize” the empire.
In hindsight, it is difficult to comprehend how such a provision could be considered “modernizing.” It is important to realize that throughout the 20th century, honor killings of rape victims had been a common method of “restoring” the honor of the victim’s family. Because a victim’s marriage prospects were thought to decrease after she was raped, her family considered her to be both a social and financial burden, as well as a stain on their honor.
Even today, cultural support for honor killings remains widespread—a 2013 study by Cambridge University found that one in five girls and one in two boys supported honor killings to restore family honor. More surprisingly, they found that “substantial minorities of girls, well-educated and even irreligious teenagers consider honor killing morally right, [thus] suggesting a persisting society-wide support for the tradition.”
Essentially, the rape-marriage law seeks to eradicate the need to commit honor killings by forcing the transgressor to marry his victim. This would save the victim’s life, restore her family's honor, and in the eyes of these jurists, serve as adequate punishment for the perpetrator. It may seem shocking to think that 55.8% of Jordanians perceive Article 308 as a “win-win” situation, but outlining the argument of the supporters reveals deeper societal flaws within Jordan.
Israa Tawalbeh, Jordan’s first female coroner, argues that “the law fits our society and reality...accepting marriage under Article 308 is better than leaving girls to be killed by their parents or relatives. It protects the girls by forcing attackers to marry them.” This raises the question of whether or not there are other methods of bringing justice to the rapist while protecting the life of the victim in a society that places the burden of honor on women.
Egypt would argue that there is. In 1999, Egyptian Mufi Nasr Farid Wasel issued a fatwa declaring that the rape-marriage law was against the principles of Islamic shari’ah. Wasel stated that "rape is psychological murder for a woman" and that forcing a victim to marry is contrary to the principles of Islamic marriage, which should be built on a foundation of love and compassion. This argument is echoed by modern Jordanian activists who maintain that this law was not created as a punishment, but rather as a solution for the social stigma surrounding the victim and her family.
Moreover, most Islamic legal schools do not recognize the retroactive reduction of criminal punishments. Excluding the Hanafi School of Law, classical Islamic jurists approached rape in a very different way: they categorized it under Hirabah, which in this case would be a violent crime relying on sexual intercourse as the weapon, or as Jirah, which requires compensation for harm to the sexual organs.
Traditional Islamic jurisprudence, for the most part, did not include rape-marriage clauses, and many modern legal scholars believe that these laws exist in the Middle East today because the Ottomans imported them from the French Penal Code. In other words, certain jurists believe that Western laws have, in this instance, regressed the status of women from the customary stance they were given under Islamic shari’ah.
In Egypt, more than 90% of couples formed under the rape-marriage law sought divorce within months of the marriage. Clearly, there is a judicial vacuum that neither shari’ah nor “modernizing” penal code has been able to fill. This vacuum exists within the “the marriage loophole [that] is clearly a means by which to rectify a social problem (the social standing of a raped woman and her family) rather than to punish a crime.”
The rapid growth of civil society in Jordan and throughout the Middle East as a result of the Arab Spring brings some hope to the situation of Jordanian rape victims. Legal and social activists are forming grassroots advocacy campaigns against Article 308, and as globalism ensues and education levels rise, it is likely that pressure on the government will push Jordan to follow Egypt’s lead in keeping with the spirit of the Quran by repealing their rape-marriage law.
The Arab Spring has created a unique space for modern activists and jurists to restructure laws in previously unforeseeable ways. Hopefully, the women of Jordan will be able to benefit from changes, regardless of whether they stem from secularism or Islamic jurisprudence.
Photo Credit: Flickr User Muhammad Ghouri