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Decriminalization of adultery and defenses

Decriminalization of Adultery

Drafters should repeal any criminal offenses related to adultery or extramarital sex between consenting adults. (See: Good Practices in Legislation on “Harmful Practices” against Women, UN Division for the Advancement of Women, May 26-29, 2009, p. 18) Often, these laws discriminate against women whether on their face or in practice. 

Example: In 2005, the Haitian government issued a decree decriminalizing adultery. The decree also provided that a wife’s adultery would no longer be considered an extenuating circumstance excusing her murder by her husband after catching her in the act of adultery, as had previously been the case in Haiti.  (See: J. Toussaint, Current Legal Framework: Adultery in Haiti, 2011; UN Secretary General’s Database on Violence against Women, Decree modifying offences of sexual aggression and eliminating discrimination against women, Haiti, 2005)

Defenses

Eliminating the Defense of “Honour”

Laws should not allow defenses of “honour” to crimes of violence against women and girls, including crimes of sexual violence. Drafters should repeal criminal provisions that allow defenses of “honour” or any other ideology that may be construed as “honour”, such as morality, tradition, culture, custom or ethics.  Drafters should also repeal legal provisions that permit “honour,” culture, custom or similar concepts to be considered as a mitigating factor in determining the severity of a criminal offense or a perpetrator’s sentence.  In addition, drafters should ensure that laws clearly and explicitly reject cultural relativism (that is, a perpetrator’s attempt to justify or mitigate an “honour” crime by arguing that such actions are acceptable in his culture) as an excuse, defense, mitigating factor, or consideration in “honour” crimes cases.  (See: Mojab, Shahrzad, The Politics of Culture, Racism, and Nationalism in Honour Killing, Canadian Criminal Law Review, Vol. 16, May 2012, at p. 115).

Example: In 2011, Palestinian President Mahmoud Abbas signed a decree suspending a law that had previously provided for greatly reduced sentences (or even complete exoneration) for perpetrators of “honour” killings motivated by a female relative’s adultery or perceived sexual impropriety. The decree applied to Article 340 of the Jordanian Penal Code, the penal code in force in the West Bank.  However, other provisions of the Jordanian Penal Code, such as the article excusing killings committed in a fit of fury, continue to allow perpetrators of “honour” crimes to obtain reduced sentences. Specifically, Article 98 allows for lower punishment for offenses committed out of rage, and Article 99 decreases a sentence by half if the victim’s family pardons him. 

(See:  U.N. Special Rapporteur on Violence against Women, its causes and consequences, Rashida Manjoo, Addendum: Mission to Jordan, May 14, 2012, para. 25; “Harsh West Bank 'honor killing' brings tougher law: Women's activists hail decision by Abbas,” NBCNews.com, Associated Press, May 19, 2011; Palestine: President Abbas Ensures Stricter Sentences After Woman’s Murder, Stop VAW, The Advocates for Human Rights; “Abbas Aid: No Plans to Outlaw ‘Honor Killing,’” Ma’an News Agency, December 24, 2012; Fournier, Pascale, et al., Dishonour, Provocation and Culture: Through the Beholder’s Eye?, Canadian Criminal Law Review, Vol. 16, May 2012, p. 170)

Reviewing Self-defense
Drafters should scrutinize self-defense provisions for vagueness that leaves open to interpretation whether the harm includes injury to “honour”. Wording such as “dangerous or unjust act” are vague and leave open to judicial discretion whether such self-defense provisions apply to “honour” crimes; for example, a perpetrator could allege that the victim’s sexual behavior constitutes an unjust act as a way to justify the “honour” crime. Laws should clearly state that self-defense provisions do not apply to offenses committed in self-defense of “honour”, adultery or domestic femicide. 

Drafters should ensure that laws do not deprive women and girls of their claim to self-defense. For example, Iraq deprives a woman of a claim to self-defense if she has killed a man attacking her because he has discovered her in the act of adultery. (See: Women's Use of Violence in Intimate Relationships,Stop VAW, The Advocates for Human Rights).

Eliminating the Defense for Rapists Who Marry Their Victims
Drafters should repeal provisions that provide a defense to a rapist for marrying his victim. Laws should not permit a rapist to escape punishment, or receive a reduced penalty, by marrying his victim. Laws should prohibit the practice of marriage between the perpetrator and the victim as atonement for the crime. (See: Good Practices in Legislation on “Harmful Practices” against Women, UN Division for the Advancement of Women, May 26-29, 2009, p. 25)

Example: Brazil Penal Code, 2005, Article 107. Brazil repealed a provision in 2005 that exempted a perpetrator from punishment if he marries his victim. in cases of  offenses of “honour.” This included rape and “’atentado violento ao pudor,’ in which the offender, by use of violence or grievous threat, coerces the victim to commit a sexual act.” (See Silvia Pimentel et al, The Legitimate Defense of Honour or Murder with Impunity? A Critical Study of Case Law and Legislation in Latin America, in Honour: Crimes, Paradigms and Violence against Women 252 (2005)) The law also allowed a reduction in sentence, under certain circumstances related to non-violent “offenses to customs,” if the perpetrator married a third party and if the victim didn’t open a criminal investigation within 60 days of the wedding. (See Id. at 252-53)

Limiting Crimes of Passion and Defenses of Provocation
Where laws provide a defense for crimes of passion, laws should clearly state that these defenses do not include or apply to crimes of “honour”, adultery, or domestic assault or murder. (See: General Recommendation 19, CEDAW, Paragraph 24(r)(ii) (recommending the adoption of laws to remove the defense of “honour” in a crime against or murder of a female family member); Good Practices in Legislation on “Harmful Practices” against Women, UN Division for the Advancement of Women, May 26-29, 2009, pp. 19-20). In some countries, crimes of passion or provocation defenses have been applied as a back-door way to exonerate perpetrators or reduce sentences in “honour” crimes cases, even after laws expressly permitting a defense of “honour” had been repealed. (See: Odeh, Lama Abu, Honor Killings and the Construction of Gender in Arab Societies, American Journal of Comparative Law, Vol. 58, Fall 2010, pp. 928-931; Syria: No Exceptions for ‘Honor Killings’, Human Rights Watch, July 28, 2009) This underscores the need for drafters to carefully review existing criminal defenses relating to the perpetrator’s state of mind relative to the victim, even defenses that do not expressly speak in terms of “honour,” and ensure that such defenses cannot be applied in “honour” crimes cases.

Crimes of passion and provocation defenses often have a disparate impact that discriminates against women. Although such defenses may use gender-neutral language, men are often the beneficiaries of these defenses. In “honour” crimes and killings where defendants claim a crime of passion defense, women and girls are frequently the victims. Furthermore, a lower evidentiary standard for crimes of passion statutes may allow the defense even when the perpetrator has not witnessed the act of provocation or adultery. Thus, the perpetrator could invoke this defense based on accusations or suspicions, rather than observations. In cases where “honour” or crimes of passion defenses require flagrante delicto (while the crime is ablaze or in the act of being committed) perpetrators have enjoyed the protection of such defenses even where the crime was premeditated. Legislative vagueness, discriminatory attitudes, and judicial discretion confer wide latitude in determining whether the perpetrator was still under the influence of passion. States are obligated to repeal criminal laws that constitute discrimination against women, and in this context, the application of crimes of passion and provocation defenses results in de facto discrimination against women and girls.

CASE STUDY: Brazil Penal Code, Article 25. In Brazil, as in many countries, homicide is not a crime if it is committed in legitimate self-defense. However, the manner in which Brazil’s statute on self defense has been applied and interpreted demonstrates how a defense may have a disproportionate and discriminatory impact on women. Article 25 of the Brazil Penal Code defines self defense as a person reacting to “unjust aggression present or imminent to his right or someone else’s.” After Brazil amended its penal code to limit the ability of perpetrators to use the defense of passion or emotion in cases of spousal killings (a claim of “privileged homicide” or “violent emotion right after unjust provocation by the victim” can still be used to mitigate a defendant’s sentence), perpetrators successfully argued that defense of a man’s “honor” is legitimate self-defense.  In other words, a woman’s alleged adulterous or similar act and its impact on a man’s honor (a fundamental “right”) are held to be the same as an “unjust” and “imminent” physical act of aggression against the man himself, legitimizing the killing of the woman. 

Although higher courts over-turned acquittals based on the “honour” defense starting in the 1950s, and Brazil’s Supreme Court explicitly rejected the “honour” defense in 1991 as having no basis in Brazilian law, it survived in lower courts, particularly in rural areas, where juries (and their social prejudices) have the responsibility to decide homicide cases and judges have broad discretion. In Brazil’s civil law system, high court decisions do no create binding precedent on lower courts, giving rise to widespread jurisprudential conflict over the “honour” defense. For example, after the Supreme Court’s 1991 ruling, the lower court in the same case again acquitted the defendant of double-murder on defense of “honour” grounds, with the judge stating that the “honour” defense was at “the heart” of the case. (See Human Rights Watch, Criminal Injustice: Violence Against Women in Brazil (1991)) As one commentator has noted: “Use of the honor defense signals a persisting conflict within Brazilian culture over female sexuality and within Brazilian legal institutions over the status of honor and the scope of legitimate defense.” (Culture, Institutions and Gender Inequality in Latin America, 197 (2000)) Reports indicate that the defense persists to this day in the interior provinces of Brazil. (See 39 Law & Soc'y Rev. 315)

CASE STUDY: In 2001, Jordan amended Article 340, which provided a defense of “honour” for a man who killed or assaulted his wife or female mahrams upon witnessing their adultery. However, the amended law does not preclude the Judiciary from applying Article 98 of the Penal Code to “honour” crimes, which the perpetrator can use as a defense/mitigating factor and which many argue is more important to the prosecution of “honour” crimes than Article 340. Article 98 allows for reduced penalties (as little as 6 months in prison and rarely more than two years) where the perpetrator committed the crime in a fit of fury because of an unjust and dangerous act by the victim. One translation of Article 98 reads: "The committer of a crime who undertakes it in a furious passion produced by a bad [ghair muhiq, lit. unrightful] or dangerous act performed by his victim, benefits from a mitigating excuse" (Jordanian Penal Code 1961: Art. 98); Catherine Warrick, The Vanishing Victim: Criminal Law and Gender in Jordan, 39 Law & Soc'y Rev. 315, 337 (2005). A 1964 decision by the Jordanian Court of Cassation ruled that if the defendant did not meet the strict elements set forth in Article 340 (including the requirement that the perpetrator actually witness the alleged adultery), the court could apply Article 98 in cases of “honour” crimes. 23 Penn St. Int’l L. Rev. 251, 276 (2004). In such cases, and despite the premeditated nature of many “honour” crimes, the man can argue that his damaged “honour” provoked a “fit of fury” or “furious passion” resulting in the woman’s injury or death. This has allowed men to escape punishment for murder even where they killed a woman on mere suspicion of improper behavior. Thus, even before Article 340 was amended, most perpetrators of “honour” crimes relied on Article 98 for exoneration. When amending and drafting legislation, drafters must canvass laws carefully to ensure other provisions do not similarly absolve the perpetrator or mitigate his sentence.

There is no clear pattern to the Jordanian Cassation Court’s application of Article 98 to “honour” killings, and the Court seems to take a broad view of what constitutes a “bad” or “dangerous” act on the part of the victim, including pregnancies. (See: Kathryn Arnold, Note, Are the Perpetrators of Honor Killings Getting Away With Murder? Article 340 of the Jordanian Penal code Analyzed Under the Convention on the Elimination of All Forms of Discrimination Against Women, 16 Am. U. Int'l L. Rev. 1343 (2001))

In 1975, the Court of Cassation stated:

“The fact that the law has provided for a reduction of penalty in a specific case does not mean that the court cannot apply the general rules provided for in Articles 97, 98, as well. The general rules are applied when the provisions dealing with the specific cases do not. The victim's act of adultery is a material act that touches the defendant's honour and that is why it is not violation of the law to grant him a reduction of penalty.” 

(See: Cassation Criminal 19/68 494 (1968)) (holding that a killing committed two days after the defendant learned his sister was engaging in adultery occurred in a fit of fury and was not, therefore, premeditated); see also Cassation Criminal 58/73 849 (1973) (finding that a boy who killed his sister after one day is justified under Jordanian law, as opposed to premeditated murder because the court found that the boy did not have time to "cool off").

(See: Kathryn Arnold, Note, Are the Perpetrators of Honor Killings Getting Away With Murder? Article 340 of the Jordanian Penal code Analyzed Under the Convention on the Elimination of All Forms of Discrimination Against Women, 16 Am. U. Int'l L. Rev. 1343 (2001))

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