Jordan Abolishes Article 308 Protecting Rapists From Punishment If They Marry Their Victims

On August 1, 2017, following a heated debate and as part of a series of legal amendments, the Jordanian parliament revoked Article 308 of the Penal Code that allowed rapists to avoid punishment if they married their victims. This places Jordan alongside several other Arab countries that have revoked similar laws, among them Morocco, Tunisia and Egypt.[1]

The abolishment of the law in Jordan, with its conservative society, is a significant achievement for human rights and women's rights organizations in the country, which in the past few years have been campaigning to amend laws harming the status of women, including Article 308. As part of these efforts, a coalition of 52 social organizations was formed in 2015 with the support of the United States Agency for International Development (USAID).[2] The coalition acted to raise public awareness of Article 308 and the need to abolish it, including by holding protests and awareness gatherings. The coalition argued that the law encourages rape, especially of minors, and tramples the rights of women.

Protesters in front of Jordanian parliament demand the abolishment of Article 308, which "defends the criminal, not [the woman's] honor" (image: Al-Ghad, Jordan, July 30, 2017)

The Jordanian establishment was receptive of the campaign to revoke the law. A royal committee established in 2017 by King 'Abdallah II to develop the legal system and consolidate the rule of law recommended the abolishment of Article 308, among other legal amendments,[3] and the Jordanian government endorsed the committee's recommendation and referred it to the legislative branch.[4]

However, despite the support of the establishment, the call to revoke the article met with opposition in conservative circles,[5] who claimed that marriage is the correct way to handle incidents of rape because it preserves the woman's honor. These circles were dominant, for example, in the Legal Committee of the House of Representatives (the lower house of parliament), which, unlike the royal committee, recommended not to revoke Article 308 but only amend it.[6] But, as stated, despite the Legal Committee's recommendations and following a heated debate, the government's position prevailed and the article was abolished.[7]

Responses in Jordan to the revoking of Article 308 were mostly positive. Officials and press articles welcomed the move, calling it an achievement of the parliament and a historic moment. Some conservatives lamented the decision, repeating the claim that in a conservative society a rape victim is better off marrying her rapist in order to preserve her honor.

August 4, 2017 cartoon in London daily Al-Quds Al-Arabi: Jordanian woman breaks free of Article 308

This report reviews the responses, both positive and negative, to the revoking of Article 308 from Jordanian officials and the Jordanian press.

Proponents Of The Decision: The Law Encouraged Rape; Abolishing It Is An Achievement For Jordan

Prime Minister Hani Al-Mulki: Revoking Article 308 Strengthens The Jordanian Family

As stated, the Jordanian government supported the recommendation to revoke Article 308. At the beginning of the parliamentary session at which the law was revoked, Prime Minister Hani Al-Mulki said: "The government is committed to its position in favor of revoking Article 308 in order to increase the protection of the Jordanian family, which it regards as the foundation of a strong and united society." He added: "This article undermines the central principles of a society founded upon justice, family [values] and the Islamic faith." Parliament deputy speaker Khamis 'Atiyeh called on the MPs to vote for repealing the article, as befits the values of a modern state, and said that the law encouraged rape. [8]

Jordan's Minister Of Social Development: This Is An Achievement For Jordan, Will Protect Minors

Jordan's minister of social development, Hala Lattouf, likewise called the move an achievement for Jordan, saying that Article 308 did not reflect the values of love and compassion that lie at the heart of a family, and that marrying off the victim to the rapist only allowed him to evade punishment. She added that there had been many cases of minors being exploited by adult sex offenders, who had used the legal loophole presented by Article 308 to force the family to accept them as sons-in-law. The revoking of the law protects minors from such sexual exploitation, she said.[9]

Princess Basma Bint Talal: This Is A Historic Milestone

The King's aunt Princess Basma Bint Talal posted on her Facebook page pictures of the protest outside the parliament and of the celebration in its gallery after the abolishment of the law, with a message in English that said: "The abolishment of Article 308 today and the amendment of Article 98[10] are long awaited achievements for the rights of Jordanian women and for all Jordanians who stand for justice and equality. My warmest congratulations to everyone who worked so hard, as well as those whose convictions helped to bring about this historic milestone [for the] rule of law."[11]

Princess Basma's Facebook post

Al-Dustour Columnist: It's A Shame That In The 21st Century Some Among Us Still Oppose Punishing Rapists, And Enlist Islam To Their Cause

In an August 3 column, Tal'at Shana'a, who writes for the daily Al-Dustour, welcomed the decision to revoke the law and attacked those who opposed the decision in the name of Islam. He wrote: "Most people, especially [our] honorable women, welcomed this decision, believing it to be the minimum [our] parliament members could do, for it is unreasonable to reward a rapist and attacker...

"Following some of the responses to the MPs' decision, which was [actually] less than what we wanted and expected of them... I noticed that some people who think they have a monopoly on [interpreting] Islam rushed to attack the abolishment of Article 308,  [thereby] revealing that they harbor a measure of hatred for women, for they treat them like mere bodies or tools. Sadly, they [express this attitude] in the name of Islam, which opposed and rose up against all the pre-Islamic customs such as burying girls alive and 'killing the soul which Allah forbade [to kill] except by [legal] right' [Quran 6:151]... Rape violates human freedom, and all Islamic and non-Islamic laws opposed it and criminalized it...

"It saddens me that some people living among us in the 21st century oppose punishing rapists, and it saddens me even more that they bring Islam into it. We live in an age in which minds are raped and opinions are formulated according to our whims and interests. What a disgrace!!"[12]

Former Information Minister: The Decision Is An Achievement; Rapists Deserve The Death Penalty

Some writers not only welcomed the decision but called to impose harsher penalties on rapists. Among them was Jordan's former information minister Saleh Al-Qallab, who even advocated imposing the death penalty on rapists: "If I had the authority to decide, I would condemn rapists to death by hanging or by firing squad,[for the Quran  states in verse 2:179]: 'And there is for you in legal retribution [saving of] life, O you [people] of understanding, that you may become righteous.' But now that the parliament has repealed Article 308 of the Penal Code, which exempted a rapist from punishment if he married the rape victim, I congratulate it on this achievement, which has placed our country alongside [other] countries that are firm and decisive in their attitude to this crime, which is more heinous, despicable and grave than even premeditated murder in broad daylight!

"Exempting a rapist from punishment if he marries the victim means rewarding an unforgivable crime and allowing [the rapist] to continue raping the victim as long as she remains under his guardianship, and perhaps even afterwards. The upshot – and this is the most dangerous [point] – is that anyone who wants to marry a young woman, single or divorced, is encouraged to commit this crime, against the will of [the woman] and her guardian and family, which opens the gate to blood revenge, especially in a tribal society like the Jordanian one.

"Now that our parliament has taken this important humane and cultural step [of repealing Article 308], we must certainly act to pass an alternative article condemning rapists to death. Yes, to death! There is no call for leniency in punishing this crime, because a rapist essentially becomes a beast when he deliberately and violently ends the life of his innocent [victim].

"The purpose of deterring punishments – whether for unjustified premeditated murder or for rape, which is an even greater and more harmful crime – is to protect societies, because rape can lead to retaliatory rapes, and thus to endless bloodshed and to a dangerous social repercussions [due to] the long series of endless mutual vendettas...

"Our parliament deserves praise and appreciation for this achievement and the support of the public and media, so that it take the next, more drastic step of designating rape a capital offense, because someone who rapes a young woman essentially buries her alive..."[13]

July 25 cartoon in Jordanian Al-Ghad daily: "Article 308: Rape and marry for free!"

Calls For Additional Legislation Improving Status Of Women

In addition, some called for further legislation to promote the status of women in Jordan. Among them was former foreign minister Marwan Al-Mu'asher, who in his column in the daily Al-Ghad has been following the issue of women's status in Jordan and in the Arab world at large.[14] In a Facebook post he described the decision as a "great day for Jordan,"[15] and in his column he called to amend further laws that discriminate against women: "There is no escaping the recognition that most of our old legislation reflects male-centered thinking, whether overtly or covertly, which has deliberately or inadvertently led to the deprivation of women. It is time to address and amend all [these] laws, in order to end all legal discrimination between men and women. The abolishment of Article 308 has another important aspect, in that it constitutes a breakthrough which transcends this dominant male-centered thinking."

Al-Mu'asher called to wage "a social campaign to revoke additional laws that discriminate against women," in order to "increase production and growth [in Jordan] and expand the national economy." This, he said, is a national necessity "if we aspire to build a new Jordan that can face the new challenges, a Jordan that accepts and respects all its people. We cannot talk of equal citizenship that applies to all Jordanians... yet leave out [the issue of] equal rights for women based on various excuses that have no place in the 21st century. We must take up the banner of ending discrimination against women in all our laws, without delay and as a first priority."[16]

Nidal Mansour, head of the Center for Defending the Freedom of Journalists, wrote in a similar vein: "The cancelling of Article 308 clearly proves the importance of the political will of the state, for when it wants to make a change, it does not surrender to intimidation attempts that claim that the society isn't ready for such a step, or to warnings against the influence or consequences [that such a step might have]...

"All sides must now take serious steps to complete the legislative reform, and this is not the right time for sparring and fighting, since everyone is a partner in the presentation of ideas for the future. We must reexamine additional laws, such as the Personal Status [Law] and the Public Health [Law], and it is important to consider tools for strengthening social awareness with respect to victims of rape, desecration of honor, solicitation of minors and statutory rape…

"Article 308 has been abolished and the penal code has been changed, and this is a source of pride for Jordan and an inspiration to all because [it proves] that dreams to effect change can be realized… In sum, it may be said that the desire for change was victorious…"[17]

Opponents Of The Abolishment Of Article 308: A Rape Victim Is Better Off Marrying The Rapist

Article 308 Should Be Amended But Not Abolished, For Social Reasons

As mentioned, the decision to revoke Article 308 met with firm opposition from conservatives in Jordan, who argued that the law serves to protect rape victims. During the parliament session at which the article was revoked, the chairman of the parliament's Legal Committee, Mustafa Khasawneh, tried to defend his committee's recommendation to amend the law instead of revoking it, saying that the demand to revoke it is promoted by external forces. After the vote, five of the committee members promptly resigned from it in protests of what they called the hasty nature of the vote, and one of them, Mustafa Yaghi, said that the vote procedure had been flawed and protested the prime minister's "intervention" in the vote.[18]  

Former social development minister Attorney Rim Abu Hassan was also among those who advocated amending the law rather than repealing it "so as not to increase the number of children who are born without hope of ever living together with both their parents." She added that the abolishment of the law would lead young girls who were raped to commit suicide or abort their babies.[19]

Jordanian Writer: Marrying The Victim Off To Rapist Is Preferable To Punishing Both Of Them

Opposition to revoking the article was also voiced by journalist 'Abdallah Abu Zayd. In an article on the Amon News website that was posted ahead of the vote in parliament and removed several days later, he called on the MPs to consider the values of society, the interests of the child who might be born as the result of the rape, and also the interest of the rape victim, who he said was partly responsible for her rape. He wrote: "Anyone who checks the statistics for crimes committed in the kingdom will find that the rate of rape in particular and sex crimes in general is neither worrying nor problematic, and does not arouse the slightest concern for Jordanian society and its stability. It is [quite] possible that most people only heard about it from publications of some press circles that work in collaboration with the heads of [certain] organizations and associations, [organizations] whose method of operation obligates them to raise external funds from Western organizations that provide donations for reasons related to human rights...

"There is no doubt that, if we are honestly interested in repairing our society, then we must consider [what is] the most appropriate thing [to do]. [Looking after] the interest of the [rape] victim – who usually has a part in the commission of the offense against her, through [false] promises of marriage and such – is preferable to punishing [both] the perpetrator and the victim, when it is the moral permissiveness of society that has led both of them to this situation. We must add to this the interest of the child who may be born as a result of this act, and his need to live under the guardianship of [both] his father and mother, by default, [even if it is] by means of marriage under unusual circumstances. This is preferable to his remaining unaffiliated to any family in the future, which he will probably [spend] in a special welfare institution for children of his sort, while his father sits in prison and his mother, whose destiny is unknown, stays in an institution that protects her from the shameful stigma that she will carry...

"In conclusion, parliament must... legislate laws that are grounded in just foundations which correspond to the various crimes and the circumstances that surround each of them, not [laws that] benefit one side over another. This, because laws in general are intended to organize and determine rules [for behavior] and must strive for justice as much as possible in order to achieve maximum stability for society. Increasing punishments has never been an ideal solution for the achievement of stability in society. Each problem comes with its own set of circumstances, and we have no choice but to reserve the option of refraining from punishment [of the rapist by letting him] marry [the rape victim], as a recourse for whoever is interested in stability, especially in cases where the victim plays a part in the perpetrating of the offense against her. It is incumbent upon the legislature to take into consideration the situation of the society, and its values and considerations."[20]