Tunisian Law Allows Rapists to Avoid Prosecution in Case of Marriage with Victim

By Asma Ghribi | Mar 29 2012 Share on Linkedin Share on Facebook Share on Twitter Share on Google Share on pinterest Print

Tags: Article 227 ,Rape ,RIP Amina

In spite of having a strong reputation for being one of the most progressive Arab countries regarding the status of women, Tunisia still has a long way to go when it comes to laws regarding violence against women, expressed Bochra Haj Hmida, a Tunisian lawyer and activist.

Women’s legal protection against violence in North Africa has been a topic of much debate recently following the events in Morocco, where 16-year-old Amina Filali was driven to commit suicide after her family forced her to marry her rapist, sparking an online campaign of indignation dubbed “RIP Amina.”

In fact, Tunisian law, like its Moroccan counterpart, provides the male assailant involved in statutory rape against a female minor with the opportunity to escape legal proceedings if he marries his victim. Tunisian law distinguishes statutory rape from forcible rape based on the absence of force or threat. Statutory rape is considered an intimidation as minors are considered legally lacking the capacity of giving consent to the act.

Before last October's Constituent Assembly election, Amnesty International drafted a 10 point manifesto to urge political forces to pay more respect and attention to human rights while drafting the country's constitution. Amnesty tried to present their manifesto to Tunisian political parties and convince them to sign it. Out of more than 100 political parties, only 32 parties signed the manifesto without any reservation, stated Sondes Garbouj, president of Amnesty International Tunisia.

The ninth recommendation which evoked violence against women was among the reservations staged by some political parties, she explained.

The recommendation stated: There must be a law on violence against women, including domestic violence and marital rape. Provisions for dropping proceedings or penalties where an assaulted spouse withdraws her complaint, or where the assailant marries the victim in rape or kidnapping cases, must be repealed.  Amnesty is mainly referring to three articles of the Tunisian Penal Code.

Article 218, which deals with acts involving domestic violence, states that once the victim decides to drop the complaint, the assailant is not pursued anymore. Several factors are to be taken into account when considering such cases as the priority is to protect the unity of the family. Withdrawing the case can save a family from worst case scenario which is divorce, commented Kalthoum Kennou, a Tunisian judge.

Another controversial law is Article 227. This article states that in case of statutory rape involving a minor female between the age of 13 and 20, legal proceedings against the assailant may be dropped if the victim agrees to marry him.  Haj Hmida said that although the marriage cannot happen without the consent of the victim, girls generally face familial and social pressure to marry her assailant in order to protect the honor of the family.

According to the Tunisian penal code, not only rapists are offered a chance to escape from legal proceedings: kidnappers of females may also escape legal proceedings if their victims consent to marry them.

Haj Hmida stated that a coalition of women’s organizations was formed to lobby for more protection for women against in Tunisia’s new constitution.

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    “Humble men are very fortunate! “for the kingdom of heaven is given to them. We are comforted also through the blood of Jesus Christ during and our mourning in him. for the meek and lowly in heart; the whole wide world belongs to them. happy are those who also long for Justice for they shall surely have it. happy are the kind and merciful, for they shall be shown mercy. happy are those whose hearts are pure, for they shall see the kingdom of God. happy are those who strive for peace-they shall be called the sons of God. Happy are those who are persecuted because they are good, for the kingdom of heaven is theirs. “You are the worlds seasoning to make it tolerable. if you lose your flavor, what will happen to the world? And, you yourselves will be thrown out and trampled underfoot as worthless. for these, when you are reviled and persecuted and lied about because you are following me,-wonderful! Be zealous, and be very glad for a tremendous reward awaits you up there in heaven. NB: Give to me, the right sense of respect of my task in the world, the place and rights of others and to perform all my allotted works with a quiet conscientiousness and integrity, humble in spirit so I AM faithfully served”.

  1. Tunisia through this law shows how far it has to go in achieving Human Rights for all and that does include women even though many in a male dominated society may disagree. A rapists charter and that is to Tunisia’s shame.

    • http://sunnah.com/urn/414630

      Read what Mohammed said about the punishment of rape. The only punishment is financial. Evidently rape is fine with Allah as long as you can afford it. To be fair there is contradiction in the hadiths. (surprise surpise) A man who raped a woman was ordered to be stoned by Mohamed. However, that is one case and this hadith is basic law giving. If one would choose which hadith to follow for future rapes one would choose the one given as law and not one perticular case. Also rape is not talked about one time in the Quran. Allah has problems of people eating pork in that he forbid it twice in the Quran, but forgot to talk about one time about rape.

      • @ Skander thanks for the links. There may be no mention of rape in the Koran becuase if it is practised now then it may have been practised then. I read somewhere that when they fought and won they raped the women of the losers. They did a lot of other things but rape was one of them and of course I also read that Mohammed used to choose some of the women/girls to serve him etc., So maybe he did not see anything wrong with the practice, his followers certainly dont in some cases

      • Okay, so because rape isn’t talked about in the Qur’an, you draw the conclusion that islam is somehow a rapist religion? That don’t make a particulary strong case I’m afraid.

        Much can be said about the digusting Tunisian rape law but it doesn’t seem to be derived from islam. In fact, this law is more in line with the Biblical mosaic law that states:

        “If a man happens to meet a virgin who is not pledged to be married and rapes her and they are discovered he shall pay her father fifty shekels of silver. He must marry the young woman, for he has violated her. He can never divorce her as long as he lives.” (Deuteronomy 22:28-29)

        Like “Klaus” wrote it seems this rape law is derived from the Napoleonic code of law. Tunisian law is, as you know, a mixture between the Napoleonic code of law and islamic law.

        But nothing of this is important. What matters is that this law exists. It has to be erased in the new constitution. Otherwise I will never set foot on Tunisian ground again. It is disgusting and sexist and makes me want to hit someone in the face.

        Let’s focus on erasing this law. Not on making this yet another debate about islam, islamism and secularism. Thanks.

        • It has everything to do with religion. The ruling political party wants to make Sharia the base law of the land. In this case, there is nothing about rape in Quran, so they go to hadiths and there is something. It says that raping could be fixed by paying a fine. Which is even more stupid and absurd than the law you are very angry about. That will be the law of Tunisia unless we reject Islam completely. Islam does not have middle ground or common sense. You either follow the law of God or you are an infidel. It’s that simple and that is why the radicals almost always win in the civil wars against moderates. That is why Islam must die. It’s the only way Tunisia will be free and prosperous. The alternative is a country where rape is less severe than eating pork. I wonder if we can ask Allah why he didn’t put rape in the Quran I can think of only two things. A. He forgot and therefore not perfect and quite a goofball. or B. He doesn’t care about rape much and finds it more important not to eat pork or allow Mohammed to fulfill his sexual desires (Quran 33.50) than protect woman from rape. The time for being a hypocrite or “moderate” Muslim is done, you have no excuse, fight to save Tunisia by fighting Islam directly or allow the Islamists to destroy it due to Tunisian’s ignorance and cowardice. The rational of Let’s ignore some of God’s law to be prosperous is not logical, it’s only logical when you say it is not God’s law, just one of many thousands of false prophets that walked the Earth.

  2. Maxwell -with respect I don’t see your point in quoting the bible? We are talking about heinous crimes committed against women and then being rewarded by forcing marriage.

    These laws must be changed and very quickly otherwise Tunisian women will still live without freedoms and rights that have been granted to them. We will not let this continue without a fight

  3. it is wonderful to see women of courage on the streets protesting and shameful for the men that there is something to demonstrate against. When I replied to the ‘love letter’ which was a wonderful story I commented on the fact that there was another side to Tunisia that needed to also be acknowledged I was shot down by negative comments. This is one side of Tunisia that has been hidden. I am so happy that it is now being talked about into the light it comes as a discussion then onto the law books for stiffer sentencing of the man not the woman by giving her a ring with the man who has traumatised her…..for god sake…talk about hiding the problem…..what I wonder is what happens if the man is married.

    Now, however there is hope and every woman who reads these posts should applaud these women for thier courage.

  4. SO! if I am to understand this correctly… In the eyes of the law it is WORSE to be divorced than to live a life under constant threat of marital rape, physical abuse and intimidation?
    Get with the program guys… Women are important and essential contributers to the country and its economy. They deserve equal rights and deserve to live free of fear.

    • Yep your so right in that Tunisia and other like cultures that is what happens there are many charades that occur within families so that people save face and all pretend that they don’t see or hear anything. Women are not valued but equally because of the oppression many women in turn oppress other women and don’t help. The same thing occurs with the Somali circumcision the older women know how painful and debilitating the process is yet they submit their own daughter to the same fateful pain and they suffered…..Fear is a strong motivator here.

      I think the fact that this group of women have finally spoken out and demonstrated with their faces seen and heads held high which takes great courage. This movement in a country such as this is HUGE. I hope they manage to get protest enough to get the law changed and hope the law punishes those who break it in the future

      • On the other hand this law has never been applied in Tunisia. It is a relic of a bygone era. It probably was introduced along with the Code Napoleon. So to call it Tunisian culture is stretching it a bit.
        The Tunisian people has never had the freedom to decide what laws they want.

        • There is s big difference between law and culture and this law has been applied in three cases within two years that I know of in Tunisia. If you like I use the term culture in the same way I would use expectation and there is a expectation that this will and has happened. As I stated there are lots of things that go on regularly that are not talked about and therefroe perhaps not recorded.

          • It would be interesting to know more about the three cases you are refering to. Do you have any links?

          • @ Klaus firstly these cases are agreed in the local police station they dont make the ‘news’ becuase they are not considered news worthy. However you could go to the court in Tunis about one in particular which was dealt with last September. A man beat another man into a coma and robbed his money. After ten days the man was out of coma and was able to give description becuase the man was known to police they arrested him at home. When they were there they came across a 13 year old girl who was living there with him. The man was arrested and held in Hammamet police station for three days then trasnferred to Tunis. The girl was also taken to Hammermet police station and her parents notified. They did not come to police station. The girl admitted she was not a virgin and that she had been forced to have sex and live with the man. They told the man he had to marry the girl or they would add kidnapping and rape to the charges. He agreed the girl with no parental representation ‘had’ to agree.. In the Tunis court the man was given 25 years as they also found drugs in his home. The issue os the girl was not pursued as they were then married. So this young girl was released from police station as a married woman onto the streets as her parents by this time had disowned her. Like the issues covered in the article often times these crimes are either not seen as crimes and are accepted and the female lot or they are not reported becuase of the stigma to the family. Dont forget as families the people often live very close together everybody knows what goes on but there is great pressure about bringing shame. I am sure however if lie me you live there and have access to local communities you would certainly ebcome aware of this practice also I believe the WHO have also recently issued a report so there is documentation available if you choose to look for it.

            The other two cases were not similar becuase there were no other crimes. One involved a German woman engaged to be married to a Tunisian man. He got drunk had sex with a Tunisian girl she claimed rape the man had to marry her forsaking the engagement to his german girlfriend. The thrid one was was a man caught running away from a girl lying on the floor in Bouficha the police caught him and he married the girl a week later.

            Clearly in a place where children born to unwed mothers were not given birth certificates so that the numbers would not be recorded because that type of thing did not happen in a muslim culture (This was the case 7 years ago….not sure of cuttent practice) The numbers of rape must have risen to the point were the a portion of the people cannot tolerate it any more means the numbers are high and it is a well known occurence. It is in fact old news as it is established as a practice.

        • @ Klaus found these recent stories in a two minute search. Not about Tunisia but gives an insight into what I am saying about Muslim cultures. I don’t have time to do a search into anecdotal evidence right now but I dont need to as I am a witness to what I have seen, heard, and watched others experience. I am happy that you are interested enough to ask for proof. Have a look at the articles below and maybe you will be spured on to read or research for more



  6. I wanted to compare two issues in Tunisia to those in the U.S, as I more familiar with that system
    1. Domestic Violence: In the U.S. (one State in particular, so as not to generalize) the victim can present herself to the district attorney’s office and sign an affidavit for his file that she wishes to drop the charges, and as a matter of course the charges are dropped. In the course of a protective order proceedings, the victim can simply advise the judge or hearing officer in open court that she wishes to dismiss her protective order action, at which time a judgment of dismissal will be entered. American authorities, just like all of us, wish to give the family unity a chance. Sometimes, even if the charges are dropped,the condition is that the offender takes an anger management class, which is good.
    2. Statutory rape: Statutory rapes take place all the time in the U.S., and in front of and with the knowledge of the parents of the victim. If the victim is under 17 and the age difference is not more than 2 years, it is not considered statutory rape as a matter of law. The victims even get pregnant from their boyfriends. Hence several girls are pregnant at the age of 14 and above. It is only when a complaint is lodged, or when it is reported by those required by law to report abuse (such as a teacher) that the matter is investigated. The cooperation of the victim is essential for a successful prosecution, and if the victim is in love with the guy, it simply won’t happen.
    The Tunisian system is not different from the American system in this respect.
    I must mention that there are instances where the victim lies about her age, but the law in the U.S. is that lack of knowledge of the actual age is not a defense.
    Finally, statutory rape marks a departure from the older systems where marriage can take place even when the female is under 18, a practice common in societies of different cultures and continues today not only in certain parts of the Muslim World, but also in the Christian World. The arbitrary setting of the legal age at 18 or 21, depending on which country, was designed to assign responsibility to every citizen at a certain point for an orderly society. In the U.S. a minor who is 16 years of age can marry with the consent of the parent.
    In any event, those who have attacked the Tunisian system and decried the status of women in Tunisia on these subjects, are well advised to review the legal systems and reality of their own countries before they attack Islam or other countries. The comparison to the American system is not intended as a criticism of that system, but rather as an example of what other societies do in order to improve their way of life, and we can compare and learn from one another.

    • The reason people are writing about it is because the TUNISIAN women have demonstrated so there is no attack of Isam I feel when the demonstrators are clearly muslim also and they are not happy with what happens in that country. As I see it the people writing are for the large part writing in support of the women. To compare the US to Tunisia is not comparative becuase the whole tneant is about the women being raped then in some cases forced to marry so the man is not charged. I don’t know of any state in the US that has that provision within its statutes.

      There is another article which state that 1 in 5 women in Tunisia are subjected ot domestic violence. Those are high numbers regardless of what other country you would wish to compare them to. In the Us there is a recognition that women are often victims but the debate is open and there are many forums for discussion, and access to those who can change, shape or influence law, policy and practice. In tunisia this is not often spoken about and if your know anything about Tunisia you will know this to be true. So again no comparison.

      In the UK and Ireland many years ago if a young man was inappropriate with a young woman there would be what was called ‘shot gun’ weddings. however although the people involved were pehaps not happy with the outcome. They were often of a similar age, and it was not allowed in the practice of rape. The fact that a 16 year old can marry with the consent of the parent bares no relation to the issues the women were demonstrating about. They are talking about women who have been raped being forced to marry the man who did it …..so again nothing comparable. Another ill comparison is that in Tunisia these decisions are often made in the police station which is a practice that does not happen in the US. In the US a court of law makes decisions. I am sure there would never be a situation where the police would give that consession to a rapist.

      All religions have lots to answer for but I am at a loss that you see some of the replies as anti Islam. The truth is the truth and regardless of who we are or what we subscribe to….. this is a heinous practice and it is practised in Tunisia and other countries many of which happen to be Muslim or practice Islam.

      There is no need to be over sensitive when people talk abou treligions especially Islam because I believe that any religion should be discussed openly and frankly. How else do we learn.

  7. Agreed this is nothing to do with Islam. But also most of the comments are grossly misinformed about the reality of the law. Satutory rape is used in this law (it seems)to denote unlawful sex where the female party consented. Certainly in rural communities families would consider their daughter to have been ‘raped’. And because of social mores discouraging young teenage boys and girls having sex outside wedlock the boy would be encouraged to marry the girl to avaoid a charge.

    This does not apply to rape where the man forces himself without consent (as the article indicated). So forcing someone to marry a rapist who forcibly raped her is not what the law says. Much as it makes a good headline or slogan to bash Tunisians.

    Applyng the law is likely to be a minefield and as in the west the law effectively overlooks a lot of abuse by men and makes women uncomfortable pressing any charges. That is what needs to be dealt with in the new tunisia.

    • Not sure how a person partly consents to rape. The law may say one thing but most of the time the ‘law’ is interrupted in the local police station. So cases do not get before a court for the ‘law’ to be applied