Women and Justice: Keywords

Articles 97-98 and 340-341 relate to who may benefit from more lenient sentences for “honour crimes,” such as a person who has witnessed his or her spouse committing adultery. However, Article 345 now excludes honor crimes where the victim is under 15 from qualifying as a mitigating circumstance as enumerated in Articles 97 and 98. Further, Article 308, which allowed a rapist to avoid punishment if they married their victim, was removed in the same 2017 amendment. Article 292 criminalizes intercourse with a woman, other than the man's wife, without her consent through either the means of coercion, threat, or deception. The punishment for such an action is at least 15 years’ imprisonment. This is extended under Article 293 to those women who are unable to resist sexual advances due to a physical or mental disability. In Article 294, a person who has intercourse with a girl of 15-17 years of age will be subject to 7 years temporary hard labor. If the victim is between 12 - 15 years, the minimum penalty will be 15 years. Article 304 provides a minimum standard of six months to three years imprisonment for those persons who “deflower virgins” of 18 years after promising to marry them in addition to compensation. Article 305 and 306 provides that anyone who commits sexual harassment or any type of sexual gesture with a child of under 18 (male or female), or over 18 without consent, is penalized. Article 314 provides that caretakers who permit a child between 6-16 to frequent brothels is penalized for imprisonment for a period of 6 years or with a fine of 20 (JD). Articles 309-318 prohibit prostitution, running a brothel, forcing a woman into prostitution, exposing a child to a brothel, renting a house for brothel, living off of a woman’s sex work. Article 323 punishes whomever aborts a woman's pregnancy without her consent with labor penalties for 10 years, and more than 10 years if the abortion leads to the woman’s death. Abortion remains illegal, but obtaining an abortion “to preserve honor” is a mitigating factor.

توضح المواد 97-98 والمواد 340-341 من يمكن أن يستفيد من العقوبات المخففة لجرائم الشرف مثل الشخص الذي فوجئ بزوجته بجريمة الزنا. بينما بينت المادة 345 أن العقوبات المخففة لا تشمل من هم دون 15 عام. ومن الجدير بالذكر أنه تم حذف المادة 308 التي كانت تسمح للمغتصب بأن يتزوج الضحية. ومنعت المادة 292 مواقعة أنثى بغير رضاها سواء بالتهديد أو بالإكراه أو بالحيلة أو الخداع، وتكون العقوبة 15 سنة فأكثر. كما تمتد ذات العقوبة إلى الأنثى التي لا تستطيع المقاومة بسبب ضعف نفسي أو عقلي أو جسدي. كما أشارت المادة 294 إلى أن كل شخص واقع أنثى ما بين 15-17 سنة عوقب بالأشغال المؤقتة لمدة لا تقل عن 7 سنوات، أما إذا كان يقل عمره عن 15 سنة فتمتد عقوبة الأشغال إلى 15 سنة كحد أدنى. ووضحت المادة 304 أن كل شخص قام بخداع بكرًا يبلغ عمرها 18 عام فأكثر بوعده لها بالزاوج ففض بكارتها أو تسبب في حملها يعاقب بالحبس من 6 أشهر على 3 سنوات، بالإضاقة إلى ضمان بكارتها. ذكرت كل من المادتين 305 و306 أنه يعاقب كل شخص قام بفعل جنسي أو أي إيحاء يدل على ذلك لشخص لم يتم 18 من عمره أو أكمل 18 من عمره لكن لو يؤخذ برضاه. كما أشارت المادة 314 أن كل من عوهد إليه بالعناية بولد يتراوح عمره ما بين 6-16 سنة، وسمح له بالاقامة في بيت بغاء أو التردد عليه، يعاقب بالحبس حتى 6 أشهر أو بغرامة حتى 20 دولار. أما اامواد 309-318 فقد جاءت لتمنع الدعارة، والمادة 323 أشارت إلى أنه من أقدم بأي وسيلة كان على اجهاض امرأة، فيعاقب بالحبس لمدة لا تزيد على 10 سنوات، وأكثر من 10 سنوات إذا سبب ذلك الإجهاض وفاة. الإجهاض لا يزال غير قانوني، ولكن لو أرادت المرأة أن تقوم بالإجهاض للحفاظ على الشرف هو عامل مؤثر.

The purpose of the Act is to provide protection for victims of domestic violence, to prevent and eliminate violence within domestic relationships, to ensure the safety of children who witness or experience domestic violence, and to enact provisions consistent with Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). The Act defines domestic violence in detail (See Part 1, Section 4.1.a-c) and allows victims of domestic violence to file for protection orders and allows a court to issue an emergency or ex parte protection order (See Part 2: Protection Orders). The Act also mandates government ministries to enact public awareness programs on violence within families, the collection of data regarding the incidences and frequency of domestic violence to support preventative measures, and training regarding human rights and the equality of women for public officials, health care professionals, and police officers. It also provides for the establishment of support facilities for victims of domestic and gender-based violence. (See Part 3: Prevention and Response). The Act also provides that police personnel while responding to a report of domestic violence sufficiently supported by evidence must undertake to do all things necessary for a court to commence the criminal prosecution of the matter. (See Part 4: Police Powers and Duties, Section 30.) Health care professionals who have provided assistance to victims of domestic violence must advise the victim about counseling and advise the victim to file a report with the police. (See Part 5: Role of Health Care Professionals and Social Service Providers.) Lastly, the Act prescribes that the crime of domestic violence is punishable by six months to three years imprisonment, as well as accompanying monetary fines. Certain circumstances such as repeat offenses, offenses against pregnant women or persons with special needs, domestic violence committed against or witnessed by a child, violence resulting in severe or life-threatening injury, or acts committed with a weapon constitute aggravations resulting in enhanced penalties to offenders. (See Section 6: Offences and Penalties.)

The Penal Code applies to the northern states of Nigeria. Section 55(1)(d), subject to customs that have been recognized as lawful, allows a husband to “correct[] his wife” as long as it does not amount to “grievous hurt.” Section 55(2) goes on to state that the correction must be reasonable in kind or degree with regards to the age, physical, and mental conditions of the person being corrected. Grievous hurt is defined in section 241 as “(a) emasculation; (b) permanent deprivation of the sight of an eye, of the hearing of an ear or the power of speech; (c) deprivation of any member or joint; (d) destruction or permanent impairing of the powers of any member or joint; (e) permanent disfiguration of the head or face; (f) fracture or dislocation of a bone or tooth; (g) any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits.” The law concerning abortion is found in sections 232. Referenced in the law as the causing of a miscarriage, abortion is only legal to save the life of the mother. Any person, including the mother, can be guilty of the offense and will be punished with up to 14 years in prison, a fine, or both. Sections 233-235 discuss the causing of a miscarriage intentionally or unintentionally through acts against the mother. These offenses also carry a penalty of imprisonment, fines, or both. Section 282 discusses rape and specifies that sexual intercourse by a man with his wife is not rape if she has gone through puberty. No longer available at External URL. Please contact the Women & Justice Collection for a PDF copy.

This Virginia law defines rape as sexual intercourse with a complaining witness, or causing a complaining witness to engage in sexual intercourse with any other person, regardless of the existence of a spousal relationship and such act is accomplished (i) against the complaining witness's will, by force, threat or intimidation of or against the complaining witness or another person; or (ii) through the use of the complaining witness's mental incapacity or physical helplessness; or (iii) with a child under age 13 as the victim.

Here, the Court rejected defendant’s argument that his mistaken belief that the complainant was his wife was a sufficient defense against a conviction of rape. The Court, relying on Article 31 of the Constitution, stated that both husband and wife enjoy equal rights in marriage and stated that the complainant’s dignity was trampled upon. The Court thus extends access to justice by construing the existing law on rape through the reasoning that the constitutional provisions on equality in marriage and the recognition of the equal dignity of women and men had effectively amended Sections 9 and 123 of the Penal Code. These sections at face exclude husbands from being held criminally liable for marital rape.

The appellant was convicted in a regional magistrates' court of one count of human trafficking, three counts of rape, one count of assault with intent to cause grievous bodily harm, and one count of common assault against a 14-year-old schoolgirl, whom he had married in accordance with customary marriage laws. After she ran away from the appellant, the appellant took the complainant to Cape Town by taxi, where they resided with the appellant's brother and his wife. There, the incidents of rape and assault occurred. The appellant raised as one of his defenses and as a ground of appeal that the alleged rapes took place in the context of a customary arranged marriage, or ukuthwala. According to expert evidence, ukuthwala was an irregular form of initiating a customary marriage. Experts have stated that, in its traditional form, ukuthwala was consensual and innocuous, but there existed an 'aberrant' form in which young girls were abducted and often raped and beaten to force them into marriage. The magistrate held that the matter was not about ukuthwala and its place in our constitutional democracy, but about whether the state had shown that the accused had committed the offences he was charged with and, if so, whether he acted with the knowledge of wrongfulness and the required intent. The court held that child-trafficking and any form of abuse or exploitation of minors for sexual purposes is not tolerated in South Africa’s constitutional dispensation. Furthermore, it ruled that the appellant could not rely on traditional ukuthwala as justification for his conduct because practices associated with an aberrant form of ukuthwala could not secure protection under the law. Thus, the Court could not find that he did not traffic the complainant for sexual purposes or that he had committed the rapes without the required intention ̶ even on the rather precarious grounds of appellant’s assertion that his belief in the aberrant form of ukuthwala constituted a 'traditional' custom of his community.

Die appêlant is skuldig bevind in 'n streek magistraat hof op een geval van mensehandel, drie gevalle van verkragting, een geval van aanranding met die opset om ernstige liggaamlike skade te berokken en een geval van algemene aanranding teen ’n 14 jarige skoolmeisie met wie hy getroud is volgens die gebruiklike huwelikswette. Nadat sy weggehardloop het van die appèllant, het die appèllant die klaer per taxi na Kaapstad geneem waar hulle by die broer van die appellant en sy vrou gewoon het. Daar het die voorval van verkragting en aanranding gebeur. Die appèllant het as verdediging en op gronde van ’n appel beweer dat die sogenaamde verkragting plaas gevind het binne konteks van ’n gebruiklike gerëelde huwelik of ‘ ukuthwala’. Volgens kundige getuienis was ukuthwala ’n onreëlmatige vorm om ’n gebruilike huwelik te begin. Kenners meen dat ukuthwala in sy traditionele vorm, konsensueel en onskuldig was maar dat daar ’n afwykende vorm bestaan waarin jong meisies ontvoer en dikwels verkrag en geslaan is om hulle tot die huwelik te dwing. Die landdros het gesê dat die aangeleedheid nie oor ukuthwala en die plek daarvan in ons grondwettige demokratse gaan nie maar wel of die staat bewys het dat die beskuldigde die misdrywe gepleeg het waarvoor hy aangekla is en indien wel, of hy opgetree het met die wete van onregmatigheid en die vereiste opset(intent). Die hof het beslis dat mensenhandel of uitbuiting van minderjariges vir seksuele doeleindes nie geduld word in Suid-Afrika se gondwetlike bedeling nie. Verder het dit beslis dat die appèllant nie op die tradisionele ukuthwala kon staatmaak as regsverdediging vir sy optrede nie omdat prakyke wat verband hou met ’n afwykende vorm van ukuthwala nie beskerming onder die wet verkry nie. Die Hof kon dus nie bevind dat hy die klaer nie vir mensenhandel met seksuele doeleindes gebruik het nie en dat hy die verkragtings sonder die verwagte intensie gepleeg het nie - selfs op die taamlike onveilige gronde van die bewering van die appellant dat sy geloof in die afwykende vorm van ukuthwala, ’n tradisionele gewoonte in sy gemeenskap is.

After threatening and assaulting the Victim (wife) with a deadly weapon, the Defendant (husband) had violent sexual intercourse with his wife after they had started using separate rooms due to consistent dispute.” The Supreme Court found that the term ‘female’ as the victim of rape as provided by Article 297 of the Criminal Act included the offender’s legally wedded wife and that the crime of rape was established when the husband had sexual intercourse with his wife by disabling or hindering resistance through violence or intimidation in a sustained marriage. The Supreme Court stated that the legal interests protected by rape laws are not ‘women’s fidelity’ or ‘sexual chastity’ concepts based on the premise of a man as a current or future spouse, but a woman’s own sexual autonomy as a free and independent individual. Therefore, the Court concluded that the crime of rape was established in this forced marital sex case.

A citizen of Tanzania sought protection on the basis that she feared persecution as a married woman in Tanzania. The applicant had been raped by her husband and argued that Tanzanian authorities were unwilling or unable to protect female citizens. The Refugee Review Tribunal denied the application because there was no evidence that the husband’s violence was related to any protected status. The court affirmed, but nevertheless remitted to the Tribunal to consider whether the husband’s violence against the applicant had been motived by a Convention related reason, such as race, religion, nationality, political opinion or of her membership in a particular social group.

A woman who had been a repeated victim of marital rape petitioned the Supreme Court of Nepal to make sentencing for marital rape on par with sentencing for other types of rape. The Court found that punishing marital rape differently from other forms of rape violated equal rights provisions in the Interim Constitution and international law, especially considering that prior sentencing guidelines of three to six months put the victim in danger of repeated violence and rape. Although the Court did not have the power to change sentencing terms on existing offences, it directed the legislative authorities to change sentencing terms for marital rape, showing recognition of the gravity of rape as a violation of rights and dignity while also exhibiting a proactive will to reform legal codes in the name of equality.

["A person who, otherwise than as provided in Section 1 first paragraph (Author's note: rape), induces another person by unlawful coercion to undertake or endure a sexual act, shall be sentenced for sexual coercion to imprisonment for at most two years. (…)" Chapter 6, Section 2 of the Swedish Penal Code.] A woman was repeatedly forced, without the use of physical violence, to have sexual intercourse with her husband. In one instance the man tried to pull off the woman's pants after she had said that she did not want to have sexual intercourse with him. He then threatened her by saying he would forcibly open up her legs if she continued to refuse and twisted the woman's ankle, causing her substantial pain, as he attempted to keep her on the bed. The woman managed to run away from the bedroom and hold on to the door handle, thus making her husband unable to reach her. Instead, the man masturbated in front of the woman and then calmed down. The District Court found that in order to achieve sexual intercourse with the woman, the husband had used violence and threats. The woman had suffered pain, an injury to one foot, and probably also some bruising to her legs. The District Court found that the violence and the threats used could not be considered graver than those comparable to the coercion requirements in Chapter 6, Section 2 of the Swedish Penal Code and sentenced the husband to imprisonment for attempted sexual coercion. The Court of Appeal for Western Sweden upheld the District Court's ruling.

The defendant's wife filed a criminal complaint against him, claiming that he raped her. He moved to dismiss the charge because, under New York Penal Law section 130.35 (“Section 130.35”), which contained a marital exemption, a husband could not be convicted of raping his wife. The trial court granted Defendant’s motion and dismissed the indictment based on the marital exemption. The Appellate Division reversed the decision of the trial court and remanded the case for trial. The Court of Appeals affirmed the judgment of the Appellate Division, finding Section 130.35 was unconstitutional due to the marital exemption provision. “Where a statute draws a distinction based on marital status, the classification must be reasonable and must be based upon ‘some ground of difference that rationally explains the different treatment.’” The court found that there was no rational basis for distinguishing between marital rape and non-marital rape and thus declared the marital exemption unconstitutional. The court reasoned that the marital rape exemption denies married women equal protection of the laws guaranteed by the New York and United States Constitutions. Further, the court stated, “Rape is not simply a sexual act to which one party does not consent. Rather, it is a degrading, violent act which violates the bodily integrity of the victim and frequently causes severe, long-lasting physical and psychic harm. To ever imply consent to such an act is irrational and absurd. A marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body as does an unmarried woman.”

A Supreme Court holding that "although a spouse who has suffered unbearable mistreatment in cohabitation is entitled to sue for divorce, this does not include cases where the other party temporarily loses control and overreacts to the spouse's misconduct" is not unconstitutional. To determine what constitutes "unbearable mistreatment in cohabitation," the courts should take into account the degree of the mistreatment, education levels, social status, and so on, determining if the degree of mistreatment goes beyond the violation of personal dignity and security that would be tolerated by most spouses. Even with regards to cases where a "party temporarily loses control and overreacts to the spouse's misconduct," the precedent does not exclude applying the above factors to determine whether such overreactions threaten the continuity of the marriage.

最高法院認為「雖然配偶得以不堪同居之虐待起訴請求離婚，但這並不包括另一方僅是暫時失去控制或對配偶不當行為作出過度反應的情況」並非違憲。 所謂 「不堪同居之虐待」，法院應考量虐待的程度、教育水平、社會地位等因素，如虐待的程度是否已超出大多數配偶所能容忍對個人尊嚴和安全的侵犯。 即使是關「一方僅是暫時失去控制或對配偶不當行為作出過度反應的情況」，該判例也不排除適用上述因素以決定該過度反應是否威脅婚姻之存續。

While in the process of obtaining a legal separation from his wife, the defendant broke into her bedroom and put her in a stranglehold until she surrendered to intercourse. He was convicted of rape, thus recognizing marital rape within the definition of rape in the Penal Code.