Eleanor Beevor
Last week, a number of Baghdad residents found themselves witness to an extraordinary scene. Passers-by on Al-Muntanabbi Street, a place known for attracting artists and intellectuals, saw a man in an orange prison jumpsuit in chains. Standing next to him, inside a huge gift-wrapped box, was a woman in a wedding dress. The box read “Gift of the Rapist”.
What they were witnessing was an elaborate protest in the form of theatre by a courageous group of activists, fronted by the Baghdad Women’s Association. The protest play was against an obscure section of the Iraqi penal code known as Article 398. This is the clause that allows a rapist to escape imprisonment or other punishment so long as he marries his victim.
The law is a colonial hangover, and one in a number in Middle Eastern nations that appear to have been either instituted, or inspired by a Napoleonic-era French law that allowed male kidnappers exemption from prosecution if they married the woman in question. Most former French colonies in the Middle East have such a clause, and the Ottomans, who ruled Iraq up until 1914, instituted a similar law in 1911.
Towards the end of 2017, it appeared that the death knell for these laws was sounding. Within weeks of each other, Lebanon, Jordan and Tunisia repealed these laws.
The moves were met with jubilation from women’s rights campaigners. But the pain at the time the repeal had taken, and the opposition the repeals had faced did not go away so quickly. And in Iraq, as well as in a number of other Gulf and Levantine states, the law still stands.
Propping up these laws is not only a colonial-era legal framework, but patriarchal cultural values that remain strong. Suad Abu-Dayyeh, a Middle East and North Africa expert with the charity Equality Now, which partners with the Baghdad Women’s Association, told Al Bawaba:
"Cultural traditions in the Arab world can be very harsh on girls and women, and there is a big focus on controlling their body and sexuality. A girl is expected to be a virgin when she gets married so anything that affects her virginity becomes scandalous. A rape victim is often blamed for what happened rather than being supported, even by her own family. Some may hold her responsible because they think that she didn’t do enough to resist, others may suggest she ‘wanted it’ or invited it. Some say it is better for her to marry the rapist than stay at home because once she has been raped nobody else will marry her.”
Some of these attitudes were on display during the performance. One member of the audience remarked afterwards that the law was a way of protecting the women from the stigma of society after the rape, commenting that “…there is no one who accepts the marriage of a raped girl”.
Another onlooker said: “Even if she married her rapist, this is not a problem. All the harm she suffered will be gone when she gives birth to her children and the Iraqi woman can overcome these difficulties and establish a family instead of bringing shame on her and her family".
But there were positive responses to the performance as well. Members of the public interjected their own proposals for countering the law. One common refrain among the enthusiastic members of the audience was that this had to be tackled not only at the parliamentary level, but in “tribal law” as well.
Doing so will be extremely challenging. In times and places where the state is weaker, the work of dispensing justice gets consolidated in the hands of the leaders of Iraq’s tribes. So for this campaign to really work, the law against rapists marrying their victims will not only need to be repealed in Parliament, but codified within traditional justice systems as well.
This is not impossible – work has already been done in areas of Iraq to synchronise state and customary law when outsourcing justice to tribal authorities, and women’s rights have been a part of that. But as the state’s oversight will be limited, this must be as much a cultural change as a legal one.
For now though, women in Iraq remain extremely vulnerable, not only because the law is stacked against them, but also because many in the country who have no interest in obeying it anyway. Rasha Khalid, the Project Coordinator of the Baghdad Women’s Association (BWA), told Al Bawaba:
“BWA has found that most rape criminals have full and accurate knowledge of the legal texts that allow impunity for perpetrators, such as Article 398 of the Iraqi Penal Code which allows the perpetrator to marry the victim. There are high rates of abductions and rape of women and girls in the capital Baghdad as a result of the existence of gangs specializing in prostitution and human trafficking. These gangs are concentrated in insecure areas of legal control.
There has also been an increase in sexual violence crimes in Iraq as a result of ISIS attacks alongside the continuing terrorist threat and difficult security situation.”
Nevertheless, the determination of these activists has certainly started a conversation on the streets of Baghdad, and campaigners hope that it will filter into Parliament in time for national elections on May 12th.
Efforts to repeal the bill in Parliament are not new. A motion to repeal Article 398 was submitted by MP Intisar Aljubory, a member of the parliamentary Committee for Women, Family and Childhood in 2016. But despite the support of 66 of her fellow MPs, and an appeal to the Speaker of the House Salim al-Jabouri last October to allow a vote on the bill, it is still pending.
Still, this coalition of MPs, alongside the BWA and the Iraqi Women’s League, are not giving up. There is now an online scheme to send letters to Prime Minister Haider Al-Abedi and to the Speaker of Parliament to demand a vote on the repeal.
Whether politicians decide that this is a position worth defending remains to be seen. Until they do, the theatre on the streets of Baghdad may well continue, as will the pain of the women that the actors represent.
