Amman (Radio Al-Balad) – “He gave me a sedative for my headache and told me it was one Revanin pill. But then I woke up and found myself in his house, with him lying next to me in bed, and I realized that my life is over”, sobs Nahla (an alias), as she recounts the attack by her employer; a shop owner in his fifties.
The 20-year-old victim of rape decided to remain silent until she found out that she was pregnant. She went to the attacker asking him to “fix” what he’d done by marrying her. But he refused and denied that the incident had ever taken place. She tried to abort the fetus several times, to no avail.
She gave birth alone and when her family found out they disowned her and held her responsible for what happened. Still, they went to court and demanded a rape trial. The attacker, however, exploited a pitfall in article 308 of the Jordanian Penal Code, which allows a rapist to escape penalty (ranging from seven years imprisonment to execution) if he marries his victim.
Nahla’s marriage to her attacker only lasted three months, which she describes as “a life of slavery and humiliation and hurt, devoid of any marital sentiments or respect.” But she had to endure all of that in order to register the child under his father’s name. Her husband suggested a compromise; she would get a divorce if she concedes all her legal rights, and he would register the child in his name.
But that turned out to be an empty promise. After the divorce, he refused to register the child because there is no clause in the Personal Status Law that obliges him to do so, despite the fact that Nahla was able to prove paternity through a DNA test.
Article 157 in the Civil Status Law does not recognize the biological paternal relationship unless there is a legal marriage contract, or if the biological father admits his relationship to the child. DNA testing is not admissible without either one of these conditions. This means that Nahla’s rapist has escaped a potential 15 years in prison for his crime and the fact that he fathered a child.
This investigative journalist met with five rape victims who were made to marry their attackers under article 308 of the Penal Code, which allows for rape charges to be dropped if an attacker marries his victim. In most cases, the rape victim loses her legal rights to financial and moral compensation; she is deprived of family life and a healthy marriage and faces difficulties in proving paternity through legal means because the law is not amended.
This means that rapists have a leeway to avoid punishment.
Nahla is not the only one who suffered marriage to her rapist. Statistics by the Minister of Justice reveal 159 cases of rape and sexual assault in the last four years, where the attackers managed to avoid punishment by marrying their victims in accordance with article 308. These cases amount to 2.8% of all rape cases for that period (5654 cases); 1029 cases are still in court. We were unable to find out the verdicts in the rest of the cases, as the data is not archived electronically.
While rape cases are at an average of 300 annually, sexual assault has risen from 1004 in 2011 to 1360 in 2012, according to the Ministry of Justice.
The former director of the National Center for Forensics, Dr Mumin Hadidi, says those figures are not accurate because only 15% of rape cases are ever reported, as victims would prefer to avoid the social stigma.
Judge Fawzi Annahar says there are cases in which article 308 cannot apply, for example if the victim herself is married or if there is an incestuous relationship between her and the attacker, or if she is a minor or of a different religion. It also does not apply in cases of sexual assault if both attacker and victim are of the same sex because it is impossible to have a legal marriage contract.
No parentage for the victim’s child
Five years went by and Nahla is still unable to register her son, despite filing a paternity case in court and submitting DNA evidence. Sharia Courts do not recognize DNA because the Personal Status Law does not allow for it to be used on its own. There has to be an actual marriage, or a confession by the father for the DNA to be accepted.
“My son is growing up away from me,” Nahla says. “After the divorce, the Family Protection Unit took him away from me because he is illegitimate.” She then adds; “The Sharia judge was sympathetic to my attacker, he saw him as the victim and saw me as the accused.”
Former Sharia judge, Saleem Nasri, says that DNA is inadmissible in the Personal Status Law because “there is a one in a million chance that it might be wrong, unless the man confesses that the child is his, or if the child is born within a legal marriage, only then would the child be related to the man. But if the husband says that a child is the born from an adulterous relationship (between his wife and another man) then there is no paternity case according to article 157 of the Personal Status Law.”
Lawyer Eva Abu Halaweh, director of Mizan Center for Human Rights, says “here is a legal loophole in the Personal Status Law that makes a child’s biological lineage subject to the father’s confession, because this does not apply in cases of rape or adultery and because the court does not recognize DNA as evidence.” She says that, by refusing to accept DNA and by giving “illegitimate” children fake family names, the court is allowing for an increase in incest in the future.
Islamic scholar Hamdi Murad also sees it’s important to amend the Personal Status Law so that paternity cases can be resolved according to Islam’s perspective.
He believes that a rapist must bear responsibility for the pregnancy because he caused it, and if DNA can prove, beyond doubt, his relation to the child then it must be taken into consideration. Forensic pathologist Hani Jahshan asserts that DNA results are 100% accurate because samples taken from mother and child can be used to confirm the father’s identity without mistake.
This journalist sent an official request to the Supreme Judge, inquiring about the number of paternity cases submitted to court each year, especially those related to rape. But she received no reply.
The government’s response contradicts reality.
The government’s response on article 308 to the UN special Rapporteur on violence against women Ms. Rasheeda Mango, contradicts the reality of paternity cases in Sharia courts. It claimed that the purpose of marrying the victim to her rapist is to preserve the child’s legal and paternal rights, when in fact such rights should be automatically granted to children in accordance with international treaties on children’s rights.
Marriage as an escape from a certain death
“If I see him I will kill him,” says 12-year old Iman (alias) who lives in Dar Al Khansaa (an institute for girls). She was talking about her 30-year old rapist.
Her tough economic situation led her to work in a shop. One day, the owner of a neighboring shop offered to give her a lift back home, but once she got in the car he took her to a remote place and raped her. Both her father and rapist are now waiting for her to reach the age of 15 in order to benefit from article 308. By marrying her, the attacker would avoid execution, which is the penalty for raping a minor.
We submitted a written request to the Judicial Council asking about the number of rape cases where the sentence was death, but we received no reply.
Lawyer Saeed Karajeh believes that marrying Iman off to her attacker is granting a legal cover to a criminal act because article 308 does not provide any guarantees to victims. In addition, there is no sufficient legislation to guarantee a healthy marriage or prevent further mis-treatment of rape victims.
Marriage for five years only!
Article 308 stipulates that a rape victim, when married, “must not be divorced for at least five years without a justifiable reason.”
A marriage contract in this case does not have a limited timeline, but the prosecution has the right to resume proceedings (in a rape case) if the victim is divorced within five years of her rape for no justifiable reason. In this instance, the woman would have to inform the prosecution in order to resume the case, according to lawyer Eva Abu Halaweh.
The Ministry of Justice did not respond to our queries regarding the number of cases that were re-opened after a rape victim was divorced, in accordance with article 308. The Judicial Council also did not respond to a similar query submitted by us. Therefore, judge Fawzi Annahar demands more coordination between religious courts (either Sharia or Church) on one hand, and the prosecution in civil courts on the other, in order alert them in cases of divorce between the rapist and victim and to proceed with legal cases accordingly.
Lawyer Ina’am Ashi says that “Article 308 practically sentences a girl to a five-years imprisonment during which she is vulnerable to various forms of physical, sexual and psychological violence. As a result, she might go to court and ask for divorce herself, which means she will lose all her rights.”
But Sharia judge Saleem Nasri defends the five-year period stipulated in article 308 because he sees it as a form of protection for the girl and a prevents chances of circumventing the law and escaping penalties. He asserts that marriage contracts in this case are not limited to five years.
Article 308 encourages sexual behavior.
In some cases, article 308 might encourage minors to have sex in order to persuade their families to marry them, which is what happened with 15-year old Mayadah (alias), who is living in Dar Al Khansaa – a protection home for girls.
Mayadah had agreed to have sex with her boyfriend, who was in his twenties, to compel her father to marry her off to him. But her father refused to do so because she was too young.
She says: “I had to do that so that my father would agree to marry me off, and now I am waiting for marriage procedures to be completed by the court.”
Fifteen-year old Fadwa (alias), who lives in Al Khansaa, also agreed to have sex with her 25-year old neighbor to force her father to marry them off, despite repeated refusals by him. She believed that article 308 could grant her this wish. According to the law, sex between people over the age of 18 is considered adultery punishable by 1-3 years in prison.
“My father would always demand a high dowry or refuse to marry me off, and therefore I decided to run away (with the neighbor), we married informally and I gave birth to a girl. I take responsibility for what happened with my father, but I want to marry (the father of my daughter) and I am sure I will live happily with him,” she says.
Lawyer Saeed Karajah says the law does not recognize the consent of a girl between the age of 15-18 as she is still a minor. He says that, in case of a sexual act, the punishment should be higher regardless of a girl’s consent.
Demands for cancelling article 308
Judge Fawzi Annahar demands the cancellation of article 308 because “it allows criminals to escape punishment by marrying the victim.” Still, however, he sees in the article a potential solution in the case of consensual intercourse between a couple who are in love.
Ina’am Ashi, a legal consultant at the International Institute for Solidarity with Women, believes that article 308 “is illogical and actually rewards a rapist by allowing him to marry the victim, thus legitimizing rape. This constitutes an additional punishment for the victim.”
The General Fatwa Department issued a fatwa (religious decree) in December 2012, which was also renewed a month ago, attesting that “rape is one of the gravest and most dangerous crimes … therefore, a harsh punishment must be issued against the attacke while allowing him to marry the victim is considered a reward for his crime, and this cannot be sanctioned under any guidance or law.”
Legal precedence: Article 308 used against the female
Ouqba (alias), a 17-year old boy was in a relationship with 25-year Ayah (alias), who was accused of sexually assaulting him. The couple thought that having intercourse would lead the Family Protection Unit to marry them off. A court ruling suspended proceedings against Ayah because she married “the victim.”
A higher court also supported this verdict in August 2013, and so this is considered the first legal case of its kind where a woman managed to benefit from article 308 to escape penalty.
The Penal Code reviewed by the former House of Deputies… but article 308 remains untouched.
MP Wafa Bani Mustafa confirms that article 308 was not submitted to the 16th Parliament for review when the Lower House discussed amendments to the Penal Code in line with a ruling by the Higher Constitutional Council which obliges Parliament to only discuss amendments presented by the government.
Bani Mustafa says that “amending article 308 in Parliament is not an easy matter, as it will face enormous opposition. There needs to be a majority in parliament that believes in the importance of such an amendment and realizes the negative psychological and social consequences that results from a marriage between a rapist and his victim. There is a need for great momentum by civil society and the media to push Parliament to lift this injustice against women who are victims of rape.”
Clause 5 of article 94 in the constitution allows ten or more MPs from either the Upper or the Lower House of Parliament to suggest laws. Each suggestion would be referred to the concerned committee within Parliament for discussion. If Parliament agrees to the motion, it is then referred to the government to draft a law and present it to the house again, either in the current session or the following one.
But when we reviewed suggestions presented by the 16th Parliament we did not find a single motion for the amendment of article 308. MP Bani Mustafa is not surprised by this, as she described that Parliament as “conservative.”
Civil society… an absent role
The author researched a third of civil society’s 31 institutions dealing with women’s rights, and found that none of them lobbied Parliament to amend article 308, neither have they made any studies or research over the repercussions of this article.
However, the National Committee for Women presented a list of demands to Parliament and the government, including the amendment of article 308, but received no reply. Amal Haddain, the head of the Legislation Department, says this is due to “lack of communication.”
Ina’am Ashi, the lawyer who is also an activist on women’s issues, concedes there are shortcomings in civil society’s performance when it comes to monitoring the quality of family life for rape victims who are married to their attackers. She says there are no surveys on how such marriages affect the wives and children.
Lawyer Saeed Karajah says it is strange that neither the civil courts not the Family Protection Unit have any databases on rape patterns including the age of criminals or the duration of time spent in jail.
For a whole year, we tried to obtain any study carried out by the Family Protection Unit over rape victims, in order to analyze the figures. But we were surprised to find, eventually, that there were no detailed databases or specialized studies.
Today, Nahla works as a cleaning lady in a private institute, while her son lives in a care home away from her and without documents. Her husband/rapist lives freely, leaving her to face an uncertain future.
This investigation was compiled by the Investigative Unit in Radio Balad, under the supervision of Musab Shawabkeh, with the support of ARIJ (Arab Reporters for Investigative Journalism – www.arij.net