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Gender, Sexuality and the Criminal Laws in the Middle East and North Africa: a Comparative Study

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Gender, Sexuality and the Criminal Laws in the Middle East and North Africa: a Comparative Study GENDER, SEXUALITY AND THE CRIMINAL LAWS IN THE MIDDLE EAST AND NORTH AFRICA: A COMPARATIVE STUDY Dr. SHERIFA ZUHUR February, 2005 women for women’s human r›ghts (WWHR) - new ways OTHER PUBLICATIONS BY WWHR – NEW WAYS Books: • Women and Sexuality in Muslim Societies (2004, in Arabic) • Women and Sexuality in Muslim Societies (2003, in Turkish) • Women and Sexuality in Muslim Societies (2000, in English) • Women’s Human Rights: A Training Manual (1998, in Turkish) • The Myth of a Warm Home: Domestic Violence and Sexual Abuse (1996, in Turkish) Booklets: • Sexual and Bodily Rights as Human Rights in the MENA (2004, in English) • Gender Discrimnation in the Turkish Penal Code Draft Law and Proposed Amendments (2003, in English and Turkish) • The New Legal Status of Women in Turkey (2002 in English) • We Have New Rights! (2001, in Turkish) • We Have Reproductive Rights! (2001, in Turkish) • We Have Sexual Rights! (2000, in Turkish) • Beijing+5: Women’s Human Rights at the UN and Turkey’s Commitments (2001, in Turkish) • An Example of Feminist Solidarity in Muslim Societies: WLUML (1998, in Turkish) • Women’s Movement(s) in Turkey: A Brief Overview (1996, in English) Research Articles: • Feminisms and Women’s Movements in Turkey (2003, in Turkish) • Women, Sexuality and Social Change in the Middle East and Maghreb (2002, in English) • The “Natasha” Experience: Migrant Sex Workers from the Former Soviet Union and Eastern Europe in Turkey (2002, in English) • A Study on Domestic Violence and Sexual Abuse in Ankara, Turkey (1999, in English) • Islam and Women’s Sexuality: A Research Report from Turkey (2001, in English) • A Study on Domestic Violence and Sexual Abuse in Ankara, Turkey (1999, in English) • Women and Internal Migration in Turkey in the 1990s (1999, in Turkish) • Exploring the Context of Sexuality in Eastern Turkey (1998, in English) • Women in the Family in Eastern Turkey (1998, in Turkish) • From Subjects to Citizens: Where are the Women? (1998, in Turkish) • Labor Force Participation and Urban Women: A Field Survey in Istanbul (1998, in Turkish) • Migration, Women’s Economic Status, Mobility and Power Dynamics in the Family (1998, in Turkish) • Domestic Violence and Family Life as Experienced by Turkish Immigrant Women in Germany (1996, in English) GENDER, SEXUALITY AND THE CRIMINAL LAWS IN THE MIDDLE EAST AND NORTH AFRICA: A COMPARATIVE STUDY Dr. SHERIFA ZUHUR Women for Women’s Human Rights (WWHR) – New Ways Inonu Cad. Saadet Apt. No: 37/6 Gumussuyu 34437 Istanbul, Turkey Phone: +90 212 251 00 29 Fax: +90 212 251 00 65 Web: www.wwhr.org e-mail: [email protected] GENDER, SEXUALITY AND THE CRIMINAL LAWS IN THE MIDDLE EAST AND NORTH AFRICA: A COMPARATIVE STUDY Dr. SHERIFA ZUHUR Published by Women for Women’s Human Rights (WWHR) - NEW WAYS in Istanbul, Turkey in 2005. This publication was made possible through the support provided by the Ford Foundation and the Swiss Agency for Development and Cooperation (SDC). Edited : Pinar Ilkkaracan and Megan Clark Proofreading : Rachel S. Levitan and Amy Spangler Publication Coordinator : Liz Ercevik Amado Cover and Book Design : Murat Özgül, Myra Page Layout : Myra Print : Stampa Copyright © 2004 WWHR-NEW WAYS and Sherifa Zuhur All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or any means without the prior permission of the author or the publisher. The views expressed in this publication belong to the author and do not necessarily reflect the views of the publisher. ISBN 975-92677-2-1 About the author Dr. Sherifa Zuhur is a social, religious, and cultural historian of the modern Middle East. She holds a Ph.D. in Modern Middle East history from the University of California-Los Angeles (UCLA), as well as an M.A. in Islamic Studies from the same university. She also holds an M.A. in political science from the American University of Cairo and a B.A. in Arabic and Arabic Literature from UCLA. Dr. Sherifa Zuhur has engaged in original research on modern Islamist movements in Egypt, Lebanon, and Palestine, as well as women’s issues, cultural expression and nationalism in various areas of the Middle East for over twenty years. She has lectured in the United States, the Middle East, and Europe on Islamism’s impact on gender issues, and has been a faculty member and researcher at MIT, University of California-Berkeley, California and Indiana State University, and the American University in Cairo. Dr. Zuhur is the author of seven books and more than 25 monographs and articles published in journals such as Arab Studies Quarterly, and Middle East Review of International Affairs, and chapters in edited books. Author of Revealing Reveiling: Islamist Ideology in Contemporary Egypt, Asmahan: Woman, War and Song, Images of Enchantment: Visual and Performing Arts of the Middle East, Colors of Enchantment: Theater, Dance, Music and Visual Arts of the Middle East. She is currently working on a book on women's empowerment, a memoir about the Israeli-Palestinian conflict, and editing a multidisciplinary volume illustrating the state of research on women and gender in the region. About Women for Women’s Human Rights (WWHR) - New Ways Women for Women’s Human Rights (WWHR) – NEW WAYS is an independent women’s NGO based in Istanbul, Turkey. Founded in 1993, WWHR- NEW WAYS’ mission is to promote women’s human rights in Turkey and around the globe. Through a decade of activism, advocacy and lobbying, WWHR – NEW WAYS has contributed significantly to various legal reforms in Turkey, networking to enhance social change in Muslim societies, and promotion of women’s human rights at the UN level. WWHR – NEW WAYS operates with a strategic multi-pronged approach, combining and employing a variety of methods in a complimentary manner to promote human rights. WWHR- New Ways’ current areas of work include advocacy and lobbying on national and international levels; an international program to promote sexual and bodily rights as human rights in Muslim societies; developing and implementing women’s human rights trainings in Turkey and abroad; the production and dissemination of a wide array of awareness-raising and resource materials and publications. CONTENTS Introduction 9 Ardh/Sharaf (Honor) 14 The Legacy of Retribution and Blood Money 15 Murder in Modern Penal Codes 17 Adultery 19 Honor Crimes 22 Rape 33 Rape as a Political Crime 38 Minors 39 Incest and Sexual Abuse 40 Sexual Abuse and Harassment 42 Marital Rape 43 Homosexuality/Transsexuality 45 Illegitimacy 49 Abortion 50 New Reproductive Technologies 53 Sex Work / Trafficking in Women 56 Female Genital Mutilation (FGM) 60 Battering and Domestic Violence 62 Conclusion 64 References 70 Introduct›on Much of the discussion regarding legal transformation of women’s status in the Middle East and North Africa (MENA) and the Muslim world has concerned family law, commonly referred to in the region as personal status law. To be sure, many further reforms in that area are necessary. However, the reforms in family law by themselves will not suffice to achieve the legal transformation of women’s status. In order to overcome human rights violations and discrimination against women, it is also evident that other areas of law, particularly penal or criminal codes, require re-evaluation and reform, as they continue to legitimize violations of women’s human rights in both the private and public spheres. Criminal codes in MENA and the Muslim world consistently remind us that the primary social identification of women is as reproductive and sexual beings who 9 are constrained by men, the family, and the state. The development of the legal codes reveals that tribal clans held authority over women, and particularl, women’s bodies. This control shifted to the ummah (the community of Muslims) and its governing officials with the advent of Islamic law. Nevertheless, in many instances families and tribal clans continued to serve in place of Islamic officials to constrain women’s behavior. Tribal autonomy from the state and decentralization of authority were factors in the incomplete “Islamization” of control over female bodies and sexuality. In recent history, whether in the West or the South, the process of legal modernization has gradually transferred authority over women (and their bodies) from their extended families to their husbands and in certain rare instances, directly to women as individuals. Certain omissions from the modern legal codes, like criminal penalties against marital rape or FGM (female genital mutilation) and the legal loopholes providing exemptions or reduced sentences for crimes of honor, exhibit the same underlying principle - that families, clans and tribes hold power over women, as well as the notion that men’s lives, testimony, and value outweigh those of women. These kinship groups retained this power even with the advent of shari’ah (Islamic law) and the eventual development of modern civilly administered legal codes. Families also wield their authority over men, frequently causing psychological damage to them as well, but there is a key difference in that men are considered to be responsible for women’s sexual behavior. Moreover, men are not under the same degree of pressure to maintain virginity, since its loss in their case would not serve as evidence of zina (adultery/fornication). And, as a gendered variation in what Michel Foucault described as the “modes of subjection to the moral and legal order,”1 we see that men historically have had easier access to a greater number of sexual partners than did women since they have had recourse to polygamy, concubinage, and various forms of temporary marriage. In some countries, civil authorities have administered penal codes while the ‘ulama (religious scholars) presided over matters of personal status law. In some other countries (like Saudi Arabia, or in more recently neo-Islamized countries such as Iran) the ‘ulama have remained the source of legal interpretation of penal codes.
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