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Elimination of discriminatory laws
Drafters should seek to eliminate discrimination against women both by public and private actors in all areas. Drafters should eliminate laws that discriminate against women and girls on their face and in practice. Drafters should amend or repeal de jure discriminatory laws that: impose disparate punishments and defenses for men and women; impose different standards or requirements for men and women with regard to adultery, extramarital sex, marriage, divorce and other behaviors; allow for or require virginity testing, and; deny personal civil status for women. Drafters should also repeal provisions that allow for the reduction of sentences where the perpetrator has discovered his wife has committed adultery. (See: Human Rights Committee General Comment No. 28 (¶ 31 stating: “Laws which impose more severe penalties on women than on men for adultery or other offences also violate the requirement of equal treatment”))
Example: Syria reduces the sentence where the perpetrator kills or injures his spouse, ascendants, descendants or sister for adultery, illegitimate sexual acts or having found them in a “suspicious” circumstance with another person. Article 192 grants judicial discretion to reduce the sentence where the judge finds the perpetrator’s motive was “honourable.” Drafters should repeal provisions that use ambiguous language and confer broad judicial discretion in reducing the penalty in “honour” killings.
SYRIA
Article 548 Penal Code 1949 (as amended 1953):
1. He who surprises his spouse or one of his ascendants or descendants or his sister committing adultery or illegitimate sexual acts with another person and he unintentionally kills or injures one or both of them benefits from an exemption of penalty.
2. The perpetrator of the murder or injury shall benefit from a reduction in penalty if he surprises his spouse or one of his ascendants, descendants or sister in a "suspicious" situation with another.*
* hala muraiba
Article 242:
He who commits a crime in a state of great anger resulting from a wrongful and dangerous act on the part of the victim shall be liable to a lesser penalty.
Article 192:
If the judge establishes that the motive [for the crime] was honourable, he will apply the following penalties: in place of the death penalty, life imprisonment; in place of hard labour for life, life imprisonment or for 15 years....
(see Abu Odeh 164-6)
(See: Lynn Welchman, Extracted provisions from the penal codes of Arab states relevant to 'crimes of honour’; See: Decriminalization of Adultery)
CASE STUDY: Egypt’s Penal Code punishes a man who commits adultery in the marital residence (Article 237), but punishes a woman who commits adultery in or outside of the marital home (Article 277). (See: Fatma Khafagy, Honour Killing in Egypt, 2005, p. 4) Drafters should decriminalize adultery and repeal this and any similar laws that impose disparate standards or punishments for women and men.
In addition, drafters should review legislation for discriminatory impact on women and girls. Specifically, drafters should scrutinize crimes of passion, provocation defenses, and adultery provisions that are gender-neutral but discriminate against women and girls in practice. Drafters should amend laws so as to eliminate discriminatory impact on women and girls, and they should limit defenses for crimes of passion or provocation by barring their application to adultery, cases involving “honour”, and domestic femicides. See: Section on Defenses.
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