“The first issue is the definition of rape,” Egyptian lawyer Naglaa Sarhan tells OkayAfrica. “Except for Tunisia, Arab states have narrow definitions of rape that exclude many sexual offenses and crimes that are considered rape under international definitions. When they’re excluded, they receive lesser penalties.”
Sarhan is a co-author of In Search of Justice: Rape Laws in the Arab States, a new report by Equality Now which analyzes the legal frameworks that govern the crime of rape across all 22 members of the League of Arab States (LAS), including Algeria, Comoros, Djibouti, Egypt, Libya, Mauritania, Morocco, Somalia, Sudan, and Tunisia.
According to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, rape should be defined based on the absence of consent, rather than physical violence or resistance.
Tunisia is the only LAS member that has adopted this comprehensive understanding of rape. All others have inadequate definitions that are often based on force rather than consent.
This upholds frameworks that allow for dangerous loopholes and contradictions, and ultimately make it nearly impossible for victims and survivors to get justice.
The report is informed by in-depth research into each country’s legal system, judicial and institutional players, social workers, civil society, and victims/survivors. Rape is a taboo topic across the region, but this initiative brings it to the fore, even tackling taboos within the taboo by openly addressing marital rape and its overlap with child marriage.
Law vs. reality
“[The current] laws do not accommodate the needs of the survivor,” says Sarhan. “When victims report, they’re often questioned about their behaviour - why did they go there, what were they wearing?”
If they make it past this interrogation stage, victims are subjected to humiliating forensic tests that do not follow international standards for forensics. This often includes virginity testing, a scientifically discredited practice.
Sarhan explains that society, from families to police officers to judges, is not prepared to ensure the considerate treatment of someone who was a victim of rape. “[The problems] are scattered along every stage of the process,” she says. Adjusting the law is only one of the necessary steps.
For example, Egypt has expanded its definition of rape to include lack of consent, but many investigators will still look for physical evidence in practice.
Collective honor vs. individual justice
Often, victims and survivors do not ask for justice as social stigma prevents them from speaking out altogether.
“In more than 90% of Arab states’ penal codes, rape belongs to crimes related to honor - the honor of the family or the community,” says Sarhan. “They put more importance on honor than the physical and sexual integrity, and well-being, of the victim.”
Rather than being survivor-centered, the laws around rape cater to the community. It used to go as far as the rapist being able to marry his victim to preserve her honor, and thus becoming either exempt from or favored by legal judgment; but all North African countries except Libya have by now repealed this law.
Contradictions and double standards
It is here that the report exposes severe contradictions in Arab legal systems. For example, if a child (under 18) is married and complains about unwanted sex with her husband, it will be dismissed on the grounds of being married — there is no such thing as marital rape.
If she were not married, the rape would be considered an aggravating circumstance because the victim is a child. But of course, a child should not be married in the first place.
“It was surprising to see the linkages between child marriage and rape and how these laws are contradicting,” says Sarhan. “According to the constitution [of these countries], this should be rectified, but it’s not, because of societal acceptance.”
In Egypt, a child wife reported that her husband forced her to have anal intercourse. Her claim was accepted, and there was an investigation, because anal intercourse is not socially, culturally, or religiously accepted. Had he forced her to have vaginal sex, she would not have been able to file the report.
The contradictions highlighted in the report show that in the LAS countries, a hierarchy of cultural importance ranks survivors’ needs on the low end of the spectrum. Still, Sarhan is hopeful that these taboos and double standards are being addressed.
In collaboration with the Arab Women’s Organization, which is under the auspices of LAS, Equality Now launched the report in Cairo on September 9. The organization had shared it with several representatives of LAS member states beforehand and invited them to respond in an open panel.
“When we discussed these contradictions with the state representatives, there was silent acceptance. They agreed that it’s contradictory,” says Sarhan.
“It confirmed our understanding of the rigidity of certain states,” she continues. “There’s a huge gap between what governments perceive as a concrete law or mechanism, and what happens in reality. But the fact that they read it and accepted to have this conversation with us is already a positive sign. There’s room for dialogue and reform.”
In the next two years, Equality Now will be hosting a series of webinars and country-focused discussions around the report, as well as advocating for the training of judges, police officers, and forensic doctors.
This work is difficult for several reasons, but Equality Now has a risk-mitigating strategy. “This issue touches on the status quo of how men and women are positioned in society,” she says. “We have national strategic partners that know local contexts who help us introduce these new ideas. These things need to be very carefully curated.”
“The crime of rape is one of the most underreported crimes globally and specifically in the region. The real numbers are tenfold of the official numbers,” she concludes. “The fact that survivors cannot openly say that they have been subjected to this cannot be swiped under the carpet.”
