10:13pm , Monday 20th August 2018

Legalized Marital Rape

29 January 2017

By Aya Nabil

Cairo, Egypt, Jan. 29,2017 (Aswat Masrya) –  Arguments went loud in the thick of the night at the home of Zaynab in Al Khusus city, Qalyubia Governorate, Egypt.  The neighbors didn’t think much of this; they had gotten used to the nightly kerfuffle between Zaynab, 32, and her husband Ahmad, 36.

The sounds quickly went mute after the arguments intensified. But this time, the end of this argument was different.  Zaynab left her house in the late hours of the night to her brother’s. The next morning, police found Zaynab’s husband dead.

During her questioning at Al Khusus police department, Zaynab confessed to hitting her husband with a broom on the head during their angry argument. She said she was fed up with her husband’s constant attempts to force her to have sex while he was under the effect of narcotics. 

The police released their report Ref: 3398/ July 2016. The husband lost his life and she was put behind bars awaiting trial on charges of intentional murder.

Zaynab knows that her husband’s act is not punishable by law except if the husband is forcing anal sex on his wife, which Egypt’s Penal code 269 considers to be a violation of honor given that there is forensic evidence to prove the anal penetration occurred.

When Zaynab complained to her family about her husband’s abuse she got scolded. To them, Zaynab’s husband had the right to do whatever he wanted with her because it is justifiable by norms, traditions and religion. The tragic end of her marriage is only the tip of the iceberg in a mountain of suffering of many other women like Zaynab. This investigation documents cases of tens of women who all underwent the same suffering. 

Beaten for Sex

Dalia (not her real name) endured for six years because she was too afraid to escape or to complain against her husband’s violence. Her husband forced her to have sex even when she was ill or tired.

WHO’s definition of sexual based violence

Any sexual act, attempt to obtain a sexual act, unwanted sexual comments or advances, or acts to traffic, or otherwise directed, against a person’s sexuality using coercion, by any person regardless of their relationship to the victim, in any setting.  Sexual violence includes rape, defined as physically forced or otherwise coerced penetration of the vulva or anus, using a penis, other body parts or an object.

The first time Dalia complained to her family she got a painful belt whipping from her elder brother who accused her of tarnishing the family honor if gossip spread about her complaints of her sex life. Dalia had enough when her husband came home one night high on narcotics and tried to forcefully have sex with her despite her pregnancy pains. He knocked her to the floor and punched her on her belly. With much difficulty, Dalia clawed herself free and locked herself in her daughter’s room until the morning. This time Dalia’s mother, who had divorced from Dalia’s father, understood her daughter’s plight and hosted Dalia in her apartment. Lawyers assured Dalia that her only option was to request a ‘Khula’.

The gash in Amal’s head (not her real name)  – caused by her husband who tried to forcefully have sex with her five days after her cesarean – saved her life. A medical report proved that her husband caused her a life-threatening injury. This resulted in him facing charges of attempted murder.  Amal took advantage of the situation to end 10 years of suffering at the hands of an abusive husband. Amal gave her husband a choice of either going to jail or her not pressing charges against him in exchange of a divorce and a financial commitment towards their three daughters.

No local entity in Egypt has documented marital rape, except for the 2014 nation-wide Population and Health census under the oversight of the Health Ministry. The census documented that 4% or (267 married women) from a sample of 6693 women suffered from marital rape.

30% of women who separated from their husbands – according to the census – said that they were exposed to sexual violence at least once. This figure is in line with the WHO’s report published in 2013 which covered several countries including Egypt. According to WHO, 35% of women face physical or sexual abuse by husbands.

Dedicated culture (of abuse)  

This journalist conducted an online survey and received replies from 12 women in two weeks. All women spoke about how they were raped by their husbands. All women used the words “pain,” “humiliation,” and “vulnerability.”  

None of the women directly responded to the question about how many times they were raped.

Doctor Fadea Abu Shahba, forensic law tutor at the National Center for Social and Criminological Research, said that the patriarchal culture of Egypt dictates that a marriage gives a man the right to have his wife whenever he wants. The wife has no right to deny him no matter what her reasons.

Abu Shahba described the field research to detect rape within marriages as offering “suppressed figures.” Abu Shahba said they only reflected 10% of the real figure. This is because a wife will hide her suffering for a long time until she can no longer endure the psychological or physical damage inflicted on her.

Nahida Amara, in charge of psychological support unit at the Center for Egyptian Women, said that the feeling of being broken and humiliated is the least of psychological damages a wife will endure for being forced to have sex.

Amara said that from the cases she has seen, the psychological damage a married woman endures is no different than any other rape victim. Her case can deteriorate to a level that her points of sexual arousal become completely dormant and she can no longer experience that. Those women usually end up being accused by their husbands of being sexually frigid.  

Misinterpretations

In all cases of abuse documented in this investigation, husbands used religion to justify their violent behavior and to forcing their wives to have intercourse against their will. 

But Mohammed Hamodeh, the Imam of Al Sidiq mosque in Sohaj, southern Egypt, and part of the campaign to raise awareness on the dangers of violence against women, disagrees. Hamodeh said that “Allah” clearly defined the shape of the relation between husband and wife with phrases such as “marry them in kindness.”  Hamodeh explained that Islam prohibits a man from having intercourse with his wife while she is pregnant or shortly after childbirth. Hamodeh added that Islam also prohibits anal intercourse because it is “against nature”. He referred to the Hadith where Prophet Mohammed tells men not to throw themselves onto their wives like animals and to have mediation. When the Prophet was asked what he meant by ‘mediation’ he replied ‘kissing and talking’.

Hamodeh believes that the lack of education in religion resulted in misinterpretations which people bend to suit their own desires. “Before a husband refers to versus of Hadith that speak of his religious rights to his wife, he must be educated in his wife’s rights on him. A husband must not abuse religion to his own ends,” Hamodeh said.

The situation worsens in rural parts of Egypt and Al Saeed districts. The Population and Health census showed that marital sexual abuse, in the case of women separated from their husbands, exceeds 50%. 

The NGOs’ Union Against Harmful Practices on Women and Children conducted a study from 2012 until mid-2015. They surveyed 700 families in the Akhim center in Sohag governorate. Their study showed that 80% of married women are exposed to sexual violence by their husbands. 

Asma Nash’at is a former executive director of Ledea Services in Sohaj, one of the civil society organizations that contributed to this study. Nash’at said that wives in surveyed societies have little knowledge of their rights.  Nash’at added: “a wife would be afraid to complain when her husband forces unconventional conduct on her. The particularly closed and conservative nature of those communities considers women with knowledge about sex to be of loose conduct. This knowledge is held against her.” 

This reporter spoke to Samera (not her real name) who lives in rural Dakahlia in the Delta, with the help of the Women’s Centre for Legal Aid and Counselling (WCLAC). The WCLAC works in the Upper Delta region. Samera said she does not wish to separate from her husband because of her children but she is unable to stop him from forcing sex on her. Once she suffered an internal bleeding, another time she suffered severe infections which she had to self-medicate for. “Once he forced me to have sex while on my period. He told me: “‘Use cotton to stop the bleeding”. She asked what the difference is between what happened to her and what happens to any woman who is raped? “I am disgusted with myself and him all the time…all he cares about is his pleasure,” Samera said.

Hospitals and shelters

This investigation found documented evidence that when a married woman is treated for injuries as a result of sexual abuse she cannot obtain a medical report to prove that.

Doctor Iman Abdullah, gynecologist at El Matareya Educational Hospital said that she once treated a patient whose husband used his hands to rape his wife. He was so violent that his wife’s internal organs were damaged. The hospital treated the wife’s injuries but could not take action against the husband specifically because the abuse was done within a marriage. Abdullah said that hospitals in Egypt will only release a report to prove sexual abuse in the case of women being raped by men other than their husbands and based on a police report. 

The fact that the state does not recognize sexual abuse within a marriage has caused the nine women’s shelters – run by the Ministry of Social Solidarity in Egypt – to turn away battered wives as these shelters do not consider marital rape a form of abuse.

This journalist called the Ministry’s hotline, meant to offer advice to battered women including safe houses. In a recorded conversation, the journalist  told the operator that she was seeking advice on behalf of a friend who is being sexually abused by her husband without getting any support from her family. The operator replied that she did not understand what the issue was. The operator asked: “Isn’t he her husband? He has the right to do whatever he wants … even if it were 20 times a day. This is not the kind of abuse we help with.” The operator said that “my friend’s’ condition is not recognized as a form of abuse addressed by their safe houses”. The operator suggested my friend should file a ’Khulah’ case to terminate her marriage if she can no longer tolerate living with her husband.

Legal absence

Mohammed Aarim, secretary of the culture committee at Egypt’s Lawyers’ Union clarified that Article 60 of Egypt’s Penal Code states that none of its clauses apply to actions committed in ‘good intentions’. This included anything committed under the framework of marriage. A marriage contract under Egypt’s Personal Status Law (1) 2000 gives a man the right to seek pleasure from his wife in accordance with the Sharia Law. This makes ‘marital rape’ none existent, according to clause (267) of the Penal Code on rape. 

Aarim added that a wife cannot file a complaint against her husband nor obtain forensic evidence to prove sexual abuse because the law does not recognize marital rape. “If she wants to separate from her husband she has no choice other than Khula,” said Aarim.

Khalah, as defined by Article (20) of Egypt’s Personal Status Law, states that a wife drops all her post-marital financial rights. She also must return the dowry her husband paid her at the start of a marriage.

Intisar Said, director at the Cairo Center for Development, commented that the lack of legal procedures to protect wives from such abuses leaves women with the option of separating from her husbands. Many families are broken up as a result. Consequences are worse for women who cannot afford the financial implications of ‘Khula’. These women usually decide to suffer in silence.

These conditions occur even though Egypt signed the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Egypt did state its reservations against four parts of CEDAW: Article two, clause two of Article nine, Article 16, and clause two of Article 29. All these reservations were made because those clauses and articles should not conflict with the principles of Sharia law. This especially applies to Article 16 on matters of marriage and the relation between husband and wife.    

Article 93 of Egypt’s Constitution obliges Egypt to commit to international human rights’ agreements, treaties and charters which Egypt has endorsed on ground these carry the same weight as the law once they have been published as per agreed conditions.

Civil society has tried to put in place procedures to criminalize sexual violence within marriage. One such civil society organization is Al Nadeem Center for the Rehabilitation of Victims of Violence. Al Nadeem Center worked on a draft law in 2008 that entails creating special units in each police department that include female officers, gynecologists and deputy prosecutors. According to this draft, every witness has the right to report abuse and there must be practices in place to protect the privacy of female witnesses.

The draft law stated that abuse can be proven with a forensic report and witnesses such as neighbors, children or relatives. The suggested sentences vary in severity from putting in place practices to protect the wife, such as removing the husband from the scene of the abuse for a duration determined by a judge and enforcing a sentence of public service up to applying criminal charges in case the crime reoccurs.  

Majida Adli, manager at Al Nadeem Center,  and coordinator of a program to support women survivors of violence, said that an aggressive counter campaign was launched against the law as soon as it was announced. The counter campaign considered the law to be in violation of Sharia and religion. As a result it was halted in parliament. “We pushed for the law again in 2010 and it was accepted but then the process was halted again after the 2011 revolution. Legislators stopped discussing the law altogether after that,” said Adli.

Egypt’s National Council for Women announced in 2013 that it was preparing a draft law to address violence against women. The Council presented the draft law to parliament last October.

But, the draft law made no reference to marital sexual abuse. 

Doctor Ihab Al Tamawi, Secretary at parliament’s Legal Committee, said that parliament may discuss the draft law during its current term. When asked about the issue of marital sexual abuse, Al Tamawi said that parliament will not focus on any one particular issue. But he promised that the new law would incorporate all of women’s rights as stated by the constitution and that it will combat discrimination against women.

However, none of the deputies mentioned violence against women during the entire first term of parliament.

When it comes to the absence of legal measures to stop violence against women, Egypt is no different than most Arab countries.

Tunisia is the only Arab country where parliament is taking a clear stand on the husbands’ abuse of women. Tunisia’s former Grand Mufti Hamda Sa’id appeared in a televised debate in December 2015 to categorically ban “forced intercourse” between husband and wife. This was followed by deputies from the Islamist Al Nahda Party presenting a draft law in October 2016 to stop violence against women. The draft law, still under discussion, states clearly that rape within a marriage is a crime. Tunisia’s current Penal Code does not include this criminalization.

Marital rape has been banned a long time ago in many western countries. France issued a law in 2010 clearly governing the relation between spouses. A family judge in France can issue a removal order against the abusive husband, with immediate effect, to protect a wife in three felonies, one of which is marital rape.

The same applies to laws in the United States. In 1993, 50 states and the capital Washington DC legislated against marital rape. Six states view marital rape as being of equal severity to rape charges outside of marriage.

The police arrested a Syrian husband in Germany last October after his wife accused him of rape. Marital rape is criminalized in Germany as well. The accused stood against the court and stated that he was unaware that forcing a wife to have sex is a criminal offense in Germany. He also promised the court that from there on that if his wife said no, she meant no.

This investigation was completed with the support of Arab Reporters for Investigative Journalism (ARIJ) www.arij.net and coached by Imad Omar.


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