Article 308 of the Jordan penal code, the law allowing for the exoneration of rapists should they marry their victim, was only just recently removed from the code. This law has its origins in the European influence of the area. This article evaluates the statute’s introduction into the penal code and the historic influence of western society on the laws of the Levant.
In April of this year, talks of scrapping Article 308 in the Jordan penal code flooded news outlets and the question of exonerating rapists through the loophole law entered public discourse. By September, the talks and the discourse had turned into progress: Article 308 no longer classified as a reasonable law under the penal code and was removed completely from Jordan’s criminal code. A law that was brought into the Middle East by colonial powers and one that eventually defined some of the values Jordanians considered their own was fading away – and so was the societal influence it carried. Article 308 stated: “If a correct marriage contract is concluded between the perpetrator of [rape] and the victim, any pursuit shall be stopped; if a judgment was issued in the case, execution of penalty shall be suspended.” The general provisions required that this marriage last up to five years in order to reap the complete benefits of this loophole law. Later versions of the Article also incorporated a clause labeling the act of raping a male victim as “defamation,” not “rape,” even if the victim is a minor.
It may alarm many globally that a law like Article 308 persisted well into the second decade of the 21st century; however, this is hardly unexpected given the historical precedents that gave rise to Article 308 and the conditions that helped maintain it. After the fall of the Ottoman Empire in 1924, the British Mandate in Jordan seized control of what was then known as the “Emirate of Transjordan.” 22 years later, the mandate was abolished and the Jordanian Penal Code was instated with the adoption of the Constitution in 1952. The new Jordanian legislative process drew inspiration from an Ottoman past with colonial influence. Ottoman legislation, which was itself inspired by the French Penal Code of 1810, established that men who had been convicted of committed sexual assault, abduction, or statutory rape against a woman were to avoid penalty of five years of hard labor if a valid contract of marriage could be provided. Similarly, the French Penal Code of 1810, which was created under Napoleon, states that a “seducer […] can only be condemned when the marriage has been declared void.”
It is this colonial legacy that has introduced discriminatory laws such as Article 308 into the Middle East. The roots of laws such as Article 308 of the Jordanian Penal Code are not a product of local tradition, but rather the “cultural impact of centuries under colonial rule, where subjugation was ultimately secured by a true ‘gentlemen’s agreement.’” Once the French (and the English) entered the Levant, they brought with them laws that presided in Europe and were exported by colonizers across the globe. In simple terms, this never started as a Middle Eastern country performing badly on women’s rights. Rather, this was a Middle Eastern country so influenced by a colonial power that it adopted laws reflecting faults in the Western world itself. Colonialists offered local men full power in the household; likewise, they legitimized misogyny in the region by using codified laws to enable pre-existing prejudices. While the laws weren’t rooted in local tradition, they created a culture of oppression buttressed by law. Hibaaq Osman, writing in the UK Independent, concludes that “so many of the barriers that women face in the region stem directly from this strategy of using patriarchy as a tool of oppression”. In this context, it becomes less surprising to learn that France abolished its loophole law only in 1994.
In recent light of the escalating controversy surrounding Article 308, government officials under international as well as domestic pressure were inclined to repeal the Article in its entirety. After Wafa Bani Mustafa, an activist and Jordanian MP, first introduced ending the provisions of the Article; Bani Mustafa emphasized how the repeal became a “vital part of changing society.” However, the Article was subject to debate by the House of Parliament before any repeal efforts could take place. In 2015, the Parliamentary Legal Committee decided not to abolish the Article despite demands from all sides. It instead limited the conditions under which punishment could take effect to the defamation of a minor and the deception of a virgin. Only under those circumstances will a perpetrator of rape be able to use the loophole in Article 308. But this was clearly not enough for activists and members of parliament who sought a larger and more distinctive step forward for equality.
The pressure on the government and the Parliamentary Legal Committee to remove the Article from Jordan’s penal code was heightened by activist groups maintaining that the Article “violated the most basic of human rights,” and setting qualifications for the Article instead of removing it entirely was referred to as a “compromise in the dignity of the victim, the perpetrator, and society as a whole” by Asma Khader, the Executive Director of the Sisterhood is Global Institute in Jordan. SIG, among 63 other organizations, lobbied the Lower House for the past two years to abolish Article 308, rather than amend it. SIG, for example, provided parliamentarians with “the right information about victims of this Article” and “had counterarguments to all the viewpoints put forth against repealing the provision within the parliament.” By pushing forth an argument backed by tangible incidents and counterarguments, SIG became one of the leading champions of the cause and allowed the abolition of Article 308 to remain on the Lower House’s radar.
Those who supported Article 308 have maintained similar logic to that of the “gentlemen’s agreement” used by Europeans in the early 20th century. Mahmoud Al-Kharabsheh, a former Jordanian MP and one of the supporters of keeping Article 308 in place, argues that such an Article was put in place to defend the honor of a rape victim and her family. Jordanian culture prides itself in preserving tradition, and that extends to maintaining the honor of clans and keeping the reputation of a family intact. Rape, in all its forms, is seen as direct violation of that honor. Proponents of the Article formulate their arguments using scenarios in which the conditions of the Article are not met and argue that punishments for rapists may reach execution – essentially, the true rapists are getting the punishments they deserve. Furthermore, they see that the violation imposed on honor and reputation can only be countered with marriage or execution, and that repealing Article 308 in the Jordanian Penal Code cuts down these possibilities by half. Groups supporting Article 308 have generally taken a patriarchal and paternal approach to rape conviction, seeing the clause as a defender of a woman’s honor and her right to exist as a respectable member of a society that deeply associates a family’s honor to a woman’s chastity.
In Parliament, however, the cries against Article 308 overhauled the voice of arguably fictitious “culture and tradition.” After a government committee, appointed by King Abdullah II, had recommended that that law be revoked in April, the lower house of the Jordanian Parliament voted to do so on August 1st. This decision was to be later endorsed by the Jordanian Senate and then finally approved by King Abdullah II himself. Activists saw the legislative move as a “historical moment.” Suad Abu Dayyeh, an activist at Equality Now who worked alongside groups like SIG, held that the repeal of Article 308 is an example and precedent for other countries worldwide that practice similar discriminatory legal provisions. Human Rights Watch released a statement saying, “Removing the Article completely [is] a positive step to strengthen the rule of law and end impunity for violence against women.”
The repeal of Article 308 came in a series of legal reforms carried out by King Abdullah II’s royal committee to reform the judiciary and review the entire penal code. The committee has opened a window for activists to push for further legal reform concerning issues that have become increasingly prominent in Jordan and beyond.
Article 308. (n.d.). Retrieved October 14, 2017, from http://sigi-jordan.org/en/?page_id=849
France. (n.d.). France: Penal Code of 1810. Retrieved October 14, 2017, from https://www.napoleon-series.org/research/government/france/penalcode/c_penalcode3b.html
Husseini, R. (2017, August 01). In historic vote, House abolishes controversial Article 308. Retrieved October 14, 2017, from http://www.jordantimes.com/news/local/historic-vote-house-abolishes-controversial-Article-308
Jordan: Seize Opportunity to End Impunity for Rape. (2017, August 02). Retrieved October 14, 2017, from https://www.hrw.org/news/2017/08/01/jordan-seize-opportunity-end-impunity-rape
Lebanon: Reform Rape Laws. (2016, December 19). Retrieved October 14, 2017, from https://www.hrw.org/news/2016/12/19/lebanon-reform-rape-laws
Osman, H. (2017, August 02). Laws that allow rapists to marry their victims come from colonialism, not Islam. Retrieved October 14, 2017, from https://www.independent.co.uk/voices/rape-conviction-laws-marry-rapist-jordan-egypt-morocco-tunisia-came-from-french-colonial-times-a7872556.html
Ratcliffe, R. (2017, August 02). Jordan bans rapists from escaping justice by marrying victim. Retrieved October 14, 2017, from https://www.theguardian.com/global-development/2017/aug/02/jordan-bans-rapists-from-escaping-justice-by-marrying-victim
Tahhan, Z. (2017, August 01). ‘Historic day’ as Jordanian parliament repeals rape law. Retrieved October 14, 2017, from http://www.aljazeera.com/indepth/features/2017/08/day-jordanian-parliament-repeals-rape-law-170801103929836.html
Tahhan, Z. (2017, August 04). “Meet the woman who pushed to repeal Jordan’s rape law.” Retrieved October 14, 2017, from www.aljazeera.com/indepth/features/2017/08/meet-woman-pushed-repeal-jordan-rape-law-170803111944315.html.
الأردن.. البرلمان يلغي المادة 308 ولا طوق نجاة للمغتصب. (2017, April 26). Retrieved October 30, 2017, from https://www.youtube.com/watch?v=jXrL42Nh59o
الأردن: المادة 308 تعفي المغتصب من العقاب إذا تزوج ضحيته – BBC Arabic. (2017, July 31). Retrieved October 14, 2017, from http://www.bbc.com/arabic/middleeast-40780571
Jordan. (2011, May 2). قانون العقوبات رقم 16 /1960 وجميع تعديلاته. Retrieved October 14, 2017, from http://www.wipo.int/edocs/lexdocs/laws/ar/jo/jo064ar.pdf