The Issue of Crimes of Honour against Women - Essay Example

The issue of ‘crimes of honour’ against women in s of the Middle East and North Africa: a legal issue? Or a social one? Introduction: The first and foremost function of a legal system is to protect the rights of all the citizens of a country by providing justice without discrimination. The legal systems in a country reflect the way the society functions. In the region of Middle East and North Africa there are certain countries where honour crimes are committed and the section of the society that is most affected by it are women. When human rights are violated and legitimized by the laws in the country it is necessary to look at the factors contributing to it. In many parts of the world when women are fighting for equal rights women in these countries are not even aware of their rights. This essay attempts to understand the issue of honour crimes against the women in Middle Eastern and North African countries and tries to answer the question whether it has more to do with the law or the society. Lama Abu Odeh defines honour killing thus “A paradigmatic example of a crime of honour is the killing of a woman by her father or brother for engaging in, or being suspected of engaging in sexual practices before or outside marriage”. These honour killings are found to be very common in countries where the societies consider that the reputation of the entire family depends on the character of the women in the family. “Even though such accusations are not based on factual or tangible evidence, any allegation of dishonour against a woman often suffices for family members to take matters into their own hands.” (Mayell) In the words of Marsha Freemen, Director of International Women’s Rights Action Watch “Most honour killings occur in countries where the concept of women as a vessel of the family reputation dominates”. (Mayell) In Pre-Islamic Arabia, tribes were ruled by chieftains and they were responsible in resolving disputes. Their word was the law and the tribes followed this law. Under the tribal law a guardian could discipline his ward in whichever way he chose and even had the right to take his or her life. The spread of Islamic law made sure that the severity of such a legal system was toned down by a set of rules. Infanticide and murders due to unsubstantiated rumours became liable to punishment. Rumours were not accepted and there had to be a minimum of four people as witness to an act of adultery. There were punishments for men and women alike. Attempts were made by the Islamic clergy to put an end to the legal system made by tribal laws and propagate the word of God. As the power of the Ottoman Empire decreased the tribes started to disregard the Islamic law especially in parts of Egypt, so officials were deployed to monitor suspicious murders. Therefore guardians could punish their wards under Arabic customary law but could not do so under Islamic law. Even if they did, they needed to do so with the complete cooperation of their tribe and their family. (Baron) This is exactly what is happening in parts of Egypt even today. A distinct feature of the law followed on the Arab countries is that in the Arab world a person’s legal status is different in the private and public spheres. ‘An individual’s rights and obligations in the public sphere are regulated by civil law, while a person’s relationship within the family is regulated by personal status law- more commonly known as family law’ (Maktabe) Matters related to the family such as marriage, inheritance, adoption, divorce etc comes under family law and civil law controls other aspects like public rights, labour issues, political representation etc. After the Middle Eastern states were established in 1920, and the civil law incorporated western legal standards, the family law remained the same and used the tenets of religion to settle disputes. However the main difference between the tribal laws and Islamic laws and the modern legal system was that emphasis in the tribal law and Islamic law was not on reforming criminals, the punishment that was meted out to the offenders were to act as a warning to the public. In fact the western system of imprisonment was considered crueler by the Islamic scholars as it prevented men and women from carrying out their duty towards society. This distinction between an individual’s legal status as different in private and public spheres is one of the main reason for the gendered criminal law. Gendered criminal law in the MENA region: “the legal regulations of honour killings in various Arab and Islamic countries varies from complete prohibition of the crime to partial tolerance to indifference through either lack of regulation or lack of prosecutorial enforcement” (Joseph and Najmabadi) The penal code in a country can give an insight as to how sexuality and gender is viewed by the society in that country. Criminal law often addresses issues related to rape, same sex relationships, adultery and permissible parameters of sexual relations. Even though there has been a lot of activism and debate about the family laws and civil codes in countries belonging to the region, actual attempts to reform the penal codes have been minimal. ‘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 are constrained by men, the family and the state.’ (Zuhur) Several laws in the area result in violation of women’s human rights when it comes to sexual and reproductive health. Customs and practices that are common in the MENA region that violate women’s rights are legitimized by some of the laws in place. It has been conceptualized by the law, social practices and local customs that a woman’s sexuality and her body belong to man, her family and the society and even the laws that support women’s sexuality are not implemented effectively. (Armado) “Neither Shariah nor modern laws have appropriately penalized the practice due to the strong influence of the tribal system and popular beliefs about women’s sexuality. In addition, modern penal codes and also the practices reinforce the notion that men have a right to punish women for improper sexual behavior” (Zuhur) There are Articles in the Penal codes of countries in the MENA region that are biased towards perpetrators of honour crimes. According to part of Article 340 of the penal code of Jordan ‘He who discovers his wife or one of his female relatives committing adultery and kills, wounds or injures one of them is exempted from any penalty’. In Syria, Article 548 states that ‘he who catches his wife or one of his ascendants or descendants or sister committing adultery (flagrante delicto) or illegitimate sexual acts with another and he killed or injured one or both of them benefits from an exemption of penalty’. Article 418 of the Moroccan Penal code states that ‘murder, injury and beating are excusable if they are committed by a husband on his wife as well as the accomplice at the moment in which he surprises them in the act of adultery’. Article 274 rules that a woman who commits adultery should be sentenced to two years when for the same crime a man gets not more than six months and according to Article 277 an adulterous act committed by a man is considered so only if it takes place in his marital home and the punishments are 6 months for the man and two years for the woman. The woman is adulterous in her marital home or outside of it and need not be found flagrante delicto committing the act. (United Nations). The Turkish penal code considered a woman’s sexuality as a threat to the normal functioning of the society and something that had to be regulated by law. There have been many instances when women have been killed under the pretext of honour killing but with an eye on their wealth and property. “Vested interests use the excuse of honour as a blanket cover for a multitude of sins” (Hossain and Welchmann). “Contemporary saudi arabia which characterizes its own legal system as Islamic, allows the killing of females if they disgrace their family on the basis of custom.” (Joseph and Najmabadi) It is evident from the examples given above that these laws in these countries are biased when it comes to crimes against women. Even though the legal system in Egypt guarantees women their rights in the public arena, when it comes to domestic issues women are restricted. The law permits male polygamy and also protects the man’s right to divorce his wife without a strong reason Men are considered to be the bread winners and women are regarded only for reproductive purposes. The law is not the only problem here. Women are allowed to be judges only in the constitutional court. And even the authorities that implement the law are men. Women are not allowed to work in the police or justice departments. The judges are mostly biased towards the patriarchal society. “Article 17, of the Egyptian penal code allows judges to decrease the sentence given in the case of murder when they decide that the condition of the murderer requires so.” Sentences could be reduced to almost 6 months. Since these 6 months could be spent during the trial itself there is a possibility that by the end of the trial the murderer can walk free. (Khafagy) This is evident from the 1998 case from Qena. A mentally retarded girl, who suffered from psychological disorders, was killed by her father and brother because they could not tolerate her behavior. The judge in spite of being sure that the two men had committed first degree murder reduced the sentence on the argument that the girl had been killed because the family was worried whether she would lose her virginity when she wandered out of the house without permission. Another case where there was a similar verdict was the 1991 court case number 2331 from Qena, where a man murdered his ex fiancé because she had ended the engagement with him and married another man. The court reduced the sentence on the grounds that the girl had married without her family’s consent and also because of the reason that the girl’s brother had pardoned the murderer. Ten cases of honour killings were studied by the CEWLA. Except for the cases described above all the verdict was either ‘no verdict’ or reduced sentence of two to four years imprisonment. These were cases where Article 17 was applied. (Khafagy) Gendered criminal law in other parts of the world: apart from the countries in the Arab world, honour killings are common in Pakistan, gulf and the Mediterranean countries. According to a news report by the National Geographic, every year hundreds of women are killed around the world under the pretext of ‘honour killing’. Honour killings have been reported in Great Britain, Sweden, Morocco, India, Pakistan, Turkey, Bangladesh Brazil, Ecuador, Egypt and many other countries. It is not only in the Islamic countries that this system is practised, in a country like Brazil a husband is justified by law if he kills his wife on account of adultery. Honour killing is also common among the immigrant communities in the United Kingdom, Germany and France. In UK alone it is assumed that there are 12 honour crimes a year. The main reason why there is honour crime among the immigrant communities is because of the children accepting the culture of the country. Even though the family lives in a foreign culture it becomes difficult for a parent or grandparent to accept the fact that their children were brought up in a foreign culture. And the child’s attempts to accept and adapt to the foreign culture is seen as unacceptable. In a study conducted by the WHO in 2005, more than half the population of women in Bangladesh, Ethiopia, Tanzania and Peru confessed to having been subjected to violence. In Ethiopia the percentage was 71%. (United Nations) “At the most basic level of comparison, whether we are looking at the fit of fury in middle eastern states, violent emotion in a heat of passion in Latin America or extreme emotional distress in the USA, it is clear that societies across the world- through their laws and their courts- continue to countenance legal defenses that overwhelmingly benefit males committing violence against females”. “Abu odeh in her work Crimes of honour has mentioned the judicial treatment of the US courts of the killing of women in the heat of passion for sexual or intimate reasons’ in focusing on how each legal system justifies its tolerance for the murder of a woman in particular circumstances, she demonstrates that the tensions in each system although sometimes defined differently, have been surprisingly resolved in the same way’. the comparison that has been made here is between the fit of the fury mitigation in the Arab codes and the US pleas of extreme emotional distress which builds on the premise that loss of self control reduces culpability.” (Hossain and Welchmann) Centre for Egyptian women legal assistance (CEWLA), is an NGO that was formed in 1995. It concerns itself with issues of human rights and awareness of law among people from the grass root level. Its main area of work is with regards to equality of women by legal equity. The CEWLA also seeks for amendment of discriminatory laws. The CEWLA first started work on honour crimes at a regional workshop in Amman. During the research process it came to the notice of the CEWLA that there was very less awareness among the public about the issue of honour crimes and that there was very less data to study the spread of the topic in Egypt. It was decided then to make ‘honour crimes’ the main prerogative of the NGO. When the demographic health survey mentioned in 1996 that the practice of FGM is widespread in Egypt, the issue was also taken up by the CEWLA. The CEWLA has always been at the helm of the protest against the amendment of Article 17, which gave a judge freedom to waive any charges against perpetrators of honour crimes. ‘It was recommended to delete this article especially that the majority of articles concerning punishment gave the judge a range of options which he can choose from. The article is considered a violation of international human rights and always used against women in a discriminatory way’ (Khafagy) Yasser Abdel Gawad, a legal consultant to the CEWLA opined at the roundtable conference against Article 17 that “judges reflect the culture of the society in which they live and will apply the morals and values of that society in their decisions. In crimes which judges perceive as having a moral aspect this results in wildly different verdicts that are often dependant on which governorate the judge is in Egypt” (Carr) Even though some countries have started to acknowledge the fact that honour crimes attack the issue of women’s rights, there have not been any attempts to eradicate the system. There have been many instances where the legal system has failed to punish the perpetrators because of some loophole in the penal code. For instance in 1991 in Brazil, the court did not allow the husband’s argument of defense of honour for a justification of murder of his wife, but even today there are courts in the country that fail to make a similar judgment. Even if the case comes to court, the issue of deliberation would be the woman’s conduct, thereby eliminating focus from the man’s possible culpability. And even in the rare case of a man being found guilty the claim of the defendant will be that the murder was an attempt to restore his family’s honour forcing the court to reduce the sentence. Especially in a country like India, police officials can be bribed to hinder the investigations. “A woman beaten, burned, strangled, shot, or stabbed to death is often ruled a suicide, even if there are multiple wounds and there is no possibility the woman could have killed herself.” (Singh, Raghu N., and J. Douglas Dailey) Under no circumstance should the honour of family be given more priority than the rights of a woman. ‘the organization Al Badeel which is an Palestinian organization dedicated to combat the crime of family honour in a statement has said that it is not possible to give the term family honour a positive understanding, since it attributes all the maladies of society to womens bodies and individual behaviour, giving legitimacy to social conduct restricting womens freedom and development, using all forms of violence, the most extreme being murder It is abundantly clear that a narrowly legal approach particularly one focusing on state law and state legal systems as a standalone strategy unaccompanied by broader and deeper initiatives and understandings, is unlikely to change practice or to combat crimes of honour effectively’. In addition, religious laws and the attitude of religious authorities may be critical in forming or reinforcing and also in changing opinion and practices in this area. (Hossain and Welchmann). Conclusion: the attention that has been focused on the issue of honour killings and the legal systems that blatantly allow it is increasing. After September 11 there is a tendency to look at everything connected to the Islamic world with a measure of contempt and disdain. It must not be forgotten that this phenomenon is also seen across the world and even in the western law there are mitigations and provisions made to reduce the severity of punishment for honour crimes if they are presented as crimes of passion. The question that has to be asked here is how are the crimes of passion in Brazil different from the honour crimes in Egypt with regards to the plight of the women involved and the mitigation by the judicial system? As discussed before, the judicial system of a country merely reflects the social values that are upheld there. Before a legal frame work was developed it was the social values that posed as laws and helped many chieftains pass judgments. Even if there is an amendment of the law and tolerance towards honour crime is reduced, it is bound to remain just as useless words on a piece of paper unless it is properly enforced. There have been cases where, in order to avoid maximum sentence, minors were made to commit honour crimes. There also have been instances where relatives of the victim have not shown any remorse for having committed the crime. It is evident from this that mere legal reform is useless. The mindset of the people has to change. Society has to change. The societal norms in place now are a result of many years of human existence, and the change in mindset cannot happen overnight or by amending a few penal codes. It is up to the next generation to make such decisions and it is up to us to give the next generation the empowerment they need in the form of education and exposure to the world outside the societies they live in. References Armado, Liz E. Sexual and bodily rights as human rights in the Middle ease and North africa: a workshop report. Istanbul, 2004. Badran, Margot. Gender and making of Modern Egypt. New Jersey: Princeton university press, 1995. Baron, Beth. Women, Honour and the State: Evidence from Egypt. 2006. Carr, Sarah. "NGO challenges definition of honor crimes , Article 17 mitigating punishment." Daily News Egypt 17 January 2008: http://www.thedailynewsegypt.com/article.aspx?ArticleID=11370. Greenberg, Jerrold S, Clint E Bruess and Sarah C Conklin. Exploring the dimensions of human sexuality. London: Jones and Bartlett Publishers, 2007. Hossain, Sara and Lynn Welchmann. Honour: crimes, paradigms and violence against women. London: Zed books Ltd, 2005. Joseph, Suad and Afsaneh Najmabadi. Encyclopedia of Women and Islamic cultures: Family , law and politics. Leiden: Brill Academic publishers, 2005. Khafagy, Fatma. Honour killing in Egypt. Cairo, 20 May 2005. Kozma, Lisa. Negotiating Virginity: Narratives of Defloration from late nineteenth century Egypt. 2004. Maktabe, Rania. Family law and gendered citizenship in the middle east. Norway, 31 January 2009. Mayell, Hilary. Thousands of women killed for family honour, National Geographic news. 12 February 2002. nohonor. nohonor.org. 24 July 2008. 11 April 2010 . United Nations. Working toward the elimination of crimes against women committed in the name of honour. 2 July 2002. Zuhur, Sherifa. Gender, sexuality and the criminal laws in the Middle East and North Africa: a comparitive study. Istanbul, February 2005. Singh, Raghu N., and J. Douglas Dailey. "Honor Killings." Encyclopedia of Gender and Society. 2008. SAGE Publications. 10 Apr. 2010. . Read More