Opinion: A misguided fight against Article 308


Published: 2017-08-09 15:17

Last Updated: 2017-08-11 11:42

Editor: Kamel AlSharif

Jordanian women protesting against Article 308. (Photo Courtesy of Karama/Twitter)
Jordanian women protesting against Article 308. (Photo Courtesy of Karama/Twitter)
Roya News Source

Human rights activists, women, and people across the political spectrum rejoiced last week with the Lower House’s vote to repeal a controversial clause in Jordan’s penal code.

The decision came after months of pressuring the government to take action against Article 308; a clause believed to provide the rapist with a loophole of escape from prosecution via marriage to the victim. However, before deeming the Lower House’s decision a ‘victory’, a more thorough look at the contents and purpose of the Article must be taken.

First and foremost, the clause as of yet is still in effect. The process is such that decisions from the Lower House must be approved by the Upper house, then ratified by the King, before the article is officially repealed from the penal code. The specific contents of the article, definitions within the penal code and certain groups advocating for its repeal, are still up for discussion.

  • What is Article 308?

Article 308 falls under Chapter II in Title VI of the Jordanian penal code. The Chapter is specifically concerned with offences against the family, including articles concerned with adultery, rape, abduction, attacks on a person’s “Honor”, debauchery, abortion and their respective sentences.

The article itself contains two clauses: (1) states that if a valid marriage is concluded between the perpetrator of one of the crimes provided in the chapter and the victim, the prosecution will be discontinued and any sentence rendered shall be stayed, while (2) asserts that the Prosecutor General may resume prosecution and execution of a sentence if the marriage ends in divorce of the woman without a legitimate reason, within a given timeframe.

Hence, one can conclude that Article 308 does indeed provide a loophole for a perpetrator by marrying the victim. However, in reading legal clauses, the definitions of the terms themselves are crucial, meaning that how Jordan’s Penal Code defines certain crimes is a more pressing issue than the clause which excuses them.

  • The Jordan Women’s Union, and the neglected “Amendments Package”

The Jordan Women’s Union, a local NGO dedicated to improving the status of women in the Kingdom, is one of the organizations advocating for a series of amendments for the penal code, including the repeal of Article 308. Ms. Hala Deeb, a lawyer from the Jordan Women’s Union, gave us context on the amendments they wished to make to the penal code.

Ms. Deeb stated her discontent with the exaggerated emphasis on Article 308 while other Articles or amendments to definitions outlined in the penal code were neglected.

For example, one of the most important amendments overlooked was for the definition of rape in Article 292, which states that the definition of rape is restricted to forced intercourse with females who are other than the perpetrator’s wife. This means that legally speaking, a husband cannot rape his wife, which jeopardizes the status of married women engaging in unwanted sexual acts domestically. Moreover, the definition excludes cases where men are raped by women.

Another part of the agenda is focused on Article 304, outlining the crime of “Seduction” as “deflowering a virgin” who has reached 15 years of age after promising to marry her. One of the main arguments against this clause is that it is grounded in a false definition of virginity, based on the hymen.

This is crucial because there is no legitimate link between the hymen and virginity. In fact, a woman’s hymen can break from the use of a tampon or cycling, and can remain intact even after engaging in sexual intercourse. The penal code thus provides an arbitrary definition for virginity which is not scientifically valid.

“The penal code assumes that women are incapable of making their own decisions,” said Ms. Deeb as a final note on critique, “it does not look at men and women as equals, and thus does not treat women as responsible for committing the same crimes that men do.”

  • What’s Next for Article 308 and the Penal Code?

Ms. Deeb concluded with her disappointment at the Lower House only addressing Article 308, rather than the other amendments and articles advocated against. She was especially frustrated with the lack of emphasis on alternative ways of dealing with certain crimes listed in the penal code.

Instead of appointing laws which preserve social standards in Jordan, Ms. Deeb believes the government needs to support, invest in or facilitate solutions like rehabilitation programs, support networks and welfare organizations aiming to reintegrate victims, children and culprits (after prosecution) back into society. However, Ms. Deeb is optimistic that Article 308 opens a larger conversation of amendments to be gradually made in the future.

With that said, she ends on a precautionary note: While the fight is well-intentioned, the cause for protecting underage women and persecuting the offenders is misguided if it only emphasizes Article 308, or ends with its repeal.