Concealment in lieu of justice: Until when will Article (308) grant rapists impunity?

March 29, 2017

By: Hala Ahed Deeb

Translated by: Michelle Balon

Every legal principle has its purpose. In the case of penal legislation, the main purpose is understood to be public deterrence, justice for victims, and the reform of the perpetrator. Yet the sole purpose of the Jordanian Penal Code, specifically in Part One of Section Seven, is the “concealment” of sexual assault victims, out of shame.

The infamous Article (308) of the Penal Code states the following: “1. If a correct marriage contract is concluded between the perpetrator of one of the crimes stipulated in this section and the victim, any pursuit [prosecution] shall be stopped; if a judgment was issued in the case, execution of penalty shall be suspended. 2. The Public Prosecution shall regain its right to reinitiate the legal action [to prosecute] and implement the penalty if, before the passage of three years of committing the misdemeanor; or five years of committing the felony, such marriage ended by divorcing the woman without a legitimate cause.” None of the article’s backers hide or feel shame at the explanation they give for its second part, and their excuse for keeping the article is the question, “Who would agree to marry a sexual assault victim or survivor?”  

Article (308) applies to indecent assaults – with the exception of crimes committed by family members – without distinguishing between the types of sexual assault or the victim’s age. The article is enforced in cases of rape and sexual intercourse with a minor, indecent assault, kidnapping, seduction, immorality and violation of the sanctity of female-only spaces. The law defines rape as sexual intercourse with a female (non-wife) without her consent through compulsion, threat, force or deceit. If sexual intercourse is consensual and carried out with a girl that has reached the age of consent, it is only criminalized if the husband or guardian complains. If a sexual relationship with a minor is free from threat or deceit, it is considered a crime of sexual intercourse with a minor. In this case, any action that falls outside of the crime of rape is considered an indecent assault.

With all of its legal implications, Article (308) has been a source of major debate in Jordan for years, waning and reappearing periodically. Discussions on annulling the article are divisive, just like those on human rights in general, specifically women’s rights.

In response to the recommendations of the Universal Periodic Review of Human Rights of 2013, Jordan announced its agreement to fully annul the provisions of Article (308). However, the amended draft to the Penal Code presented (and retracted) by the government would not annul the article. The amendment, limited to first paragraph of the article, would reduce the number of criminalized acts subject to the provisions of the article, including intercourse with a minor between 15 and 18 years of age, indecent assault on a male or female between 15 and 18 years of age committed without the use of violence or threat, and sexual intercourse with a female over 18 years of age with the promise of marriage. Also on the list was adultery, despite the fact that the article on adultery was not previously included in the section subject to the provisions of Article (308).

Advocates of annulling the article find it to be a flawed text that fails to secure justice for victims and remedy the psychological, physical and social effects of sexual assault. The text punishes the victim, while granting the suspect/perpetrator impunity. Many questions are raised on the nature or honesty of a girl’s consent to such a “marriage” given the social pressure and threat from the perpetrator against her and her family. In many cases, her consent is submission to a deal brokered between the perpetrator and her guardian.

Proponents of keeping the article justify it by saying that it is enforced with the approval and consent of both parties – the suspect and the victim. They claim that it cannot be applied by force. They also claim that the article provides underage girls that enter into sexual relationships with solutions by maintaining the lineage of children born from these relationships. They do not see the article as biased against women, but instead believe its enforcement to be a victory for equality, given the judicial ruling that granted women the right to also benefit from Article (308) in the event that they assault males. Legal action had been brought against a 39-year old woman that was prosecuted for a sexual relationship she entered into with a boy only one month away from the age of consent. The court decided to stop her prosecution due to the presence of a marriage contract between the woman and the victim.

If we – grudgingly – go along with the justifications given by proponents of keeping the article, do we find that it actually secures the interest of the victim? Is the article, as well as its implications and justifications, free from contradiction and problems?

First of all, can we consider marriage entered into by a suspect facing up to 20 years in prison one that fulfills the minimal legal conditions for marriage, like capacity and consent? How can we take the consent of an underage victim into consideration? How can we accept the consent of a girl whose family is being threatened by the perpetrator, a girl that consents under the weight of social pressure, or out of fear of imprisonment under the pretext of protection?

Second of all, in order to stop the enforcement of a punishment or restart prosecution, the law requires the marriage to have continued for a period of five years in felonies such as rape and sexual intercourse with a minor, and a period of three years in misdemeanors such as crimes related to the violation of honor and “immodest fondling.” The termination of a marriage due to legitimate cause is excluded from the continuity of marriage. If a victim seeks legal recourse to request a divorce, this is considered legitimate cause and will thus not result in the subsequent prosecution of the perpetrator. This remains the case even when divorce is the result of violence committed against the victim, as well as degradation, insults received in the home of the abusive husband, the indecent conduct or addiction of the husband, or his compulsion of the wife to work in prostitution. In reality, if the abusive husband divorces his wife, the victim, without legitimate cause before the period stipulated in the law, given the lack of a connection between the Sharia courts processing the divorce and the civil courts, he will not be prosecuted.

A third contradiction promoted by proponents of keeping the article is that it presents a solution for underage girls that enter consensual sexual relationships. But in this case, what reason and justification do they give for criminalization if the relationship is consensual in the first place? Since criminalization is consistent with the rule that the will of a minor shall not be taken into consideration, where is the logic in that a minor that cannot consent to a sexual act suddenly has the power and will to consent to marriage?

The article as it currently stands poses yet another problem. It stops prosecution before a ruling is issued on whether the suspect is innocent or guilty. The suspect thus agrees to marriage out of fear of imprisonment – especially given the increase in pre-trial detentions – even if he is innocent, which may potentially allow for blackmail and malicious complaints. Even more dangerous is that stopping prosecution before proving that the crime was committed allows the suspect to continue interacting with other women without rectifying his behavior and having the offense recorded in his criminal record. What will deter him from repeating his crime? Who will protect other women from him? The article also fails to address repeated offenses. If the perpetrator commits the same act again but this time with a different victim, he will again benefit from the provisions of the article.

An additional problem arises if an assault is committed by more than one perpetrator. In such cases, only one of them may benefit from the article. The victim is given the choice – if this can be considered a choice – between them, but priority is usually granted to the perpetrator that reaches an agreement with her guardian. The problem isn’t with the lack of equality between suspects, but with a practical implementation that may result in the victim marrying each of the perpetrators for a period of time. Each one subsequently divorces her so that she may marry the other and in this way, they all escape punishment. I would have liked for this to have remained an imaginary scenario, but unfortunately that isn’t the case. In a case brought before the court, two people were sentenced for the crime of rape. After one of the perpetrators entered into a marriage contract with the victim, the implementation of his sentence was stopped. Six months later, the second perpetrator appeared before the court with a request that he be granted permission to enter into a marriage contract with the same victim. It was revealed that the first perpetrator had divorced her. However, the shrewdness of one of the judges led him to suspect that a deal had been brokered, and he subsequently rejected the request. As expected, the first suspect was not prosecuted again although the marriage contract had ended before the completion of the five year period.

Lastly, the judicial precedent that allows women accused or convicted of a crime against a male to also benefit from the article does not reduce its disadvantages. It in no way makes the article a step towards equality and protecting women’s rights. Cases of women being prosecuted are usually related to relationships between women and underage boys, in which case the boys also require protection. Because the free choice to accept marriage is nonexistent for women, the main beneficiaries are undoubtedly male perpetrators of violence. Unlike women, if the victim is a man, he is not forced to accept marriage under social pressure. In another case, a woman accused of sexual intercourse with a minor was convicted and served out the duration of her sentence after the victim’s father refused the marriage. After serving her sentence, she remained in administrative detention.

The justifications given by supporters of keeping the article as is or amending it are very problematic. They do not achieve justice and equality for survivors, nor do they deter the perpetrator. Thus, the article, in all of its various applications, must be annulled. If it is not, then rape, violence and exploitation will continue to be committed under the eye and care of the law. Sexual violence committed by the perpetrator/suspect in violation of the law will be committed repeatedly. But this time, the rapist will be granted the legal right to have sexual intercourse with his victim as well as her obedience, in the name of marriage and with the blessing of the law.