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Sentencing provisions

Punishments for “honour” crimes and killings must be commensurate with the offense and sufficiently severe to deter would-be perpetrators. Drafters should ensure that laws do not impose lighter prison sentences for “honour” killings than other murders. “Honour” killings should be treated as homicides carrying the highest penalty, such as aggravated or first-degree murder, that reflects the perpetrator’s intent behind such crimes and takes into account any premeditation in the commission of the crime. Drafters should repeal any laws that allow judicial discretion in considering mitigating factors, such as the offender’s “condition” or motive or private settlements, when sentencing a defendant in an “honour” crimes case.  Sentencing guidelines for “honour” crimes are also a useful tool to ensure consistency in sentencing. Such guidelines should set mandatory minimum sentences for various types of “honour” crimes.

Drafters should exclude provisions that allow for reduced sentences or impunity in cases of “honour” crimes and repeal any such existing provisions. Laws should prohibit the reduction of penalties in cases of violence against women and girls where:

  • The murder was committed as a crime of passion or in a “fit of fury”;
  • The victim was not a virgin;
  • The perpetrator witnessed or suspects the victim of adultery or extramarital sex;
  • The perpetrator committed the “honour” crime based on the victim’s behavior., disobedience or any other “unlawful or dangerous act” of the victim; 
  • The perpetrator’s motive was “sympathetic” or “honourable” in the eyes of the court;
  • The rapist marries the victim.

Drafters should carefully review existing penal statutes and ensure that provisions that afford judges latitude in reducing penalties are inapplicable in cases of “honour” crimes. For example, Article 192 of the Syrian Penal Code permits a judge to reduce a perpetrator’s sentence if the judge finds the motive for the crime to be “sympathetic” or “honourable.”  (See: Odeh, Lama Abu, Honor Killings and the Construction of Gender in Arab Societies, American Journal of Comparative Law, Vol. 58, Fall 2010, p. 911; Lynn Welchman, Extracted provisions from the penal codes of Arab states relevant to 'crimes of honour’).

Further, drafters should consider providing that the commission of a crime in the name of “honour” is itself an aggravating factor to be considered in sentencing.  Such treatment emphasizes society’s intolerance for “honour” crimes and acknowledges the particularly insidious nature of such crimes, which not only harm the targeted victim but also serve as a tool to exert control over women throughout a community. 

Laws should also permit judges to consider other aggravating factors when sentencing perpetrators for “honour” crimes, including the perpetrator’s abuse of a position of trust or authority over the victim, the perpetration of violence against a spouse or other person in a close relationship with the perpetrator, or the involvement of multiple perpetrators. (See: Council of Europe Convention on preventing and combating violence against women and domestic violence, Art. 46; Resolution Adopted by the General Assembly, Strengthening Crime Prevention and Criminal Justice Responses to Violence against Women, U.N. Doc. A/Res/65/228, 2011, Annex: Updated Model Strategies and Practical Measures on the Elimination of Violence against Women in the Field of Crime Prevention and Criminal Justice)

CASE STUDY: Lebanon removed the reduction of sentences for “honour” killings in 1999 from its penal code. Yet, Article 252 still allows for a commuted sentence if the perpetrator committed the crime out of extreme anger because of an “unjust and dangerous act” by the victim. Similarly, Article 193 (if the motive was honorable and characterized by chivalry and decency) and Article 253 (if there are any “mitigating” circumstances) also provide for a reduction of sentence, and both articles are also applied to crimes committed on the pretext of “honour”, particularly if the perpetrator was the husband.  

The Lebanese courts have held that a husband benefited from the terms of Article 252, where the husband shot his wife “under the influence of an extreme rage” after the wife left him and had an affair (she had previously requested a divorce and been denied).  The court held that the husband met the three elements required for sentence mitigation by Article 252, namely that the wife committed a “wrongful” act in leaving the marital home and having an affair, that she undermined the “honour”, dignity and manliness of her husband by calling him undignified names and committing adultery, and that it was established that the crime was immediate, spontaneous and done in a rage. The court also noted that the wrongful act committed by the victim was “particularly dangerous” given the mindset and “mentality” of the perpetrator, who was an oven worker.  Case no. 10/1999 – decision no. 85/1999, Criminal Court of North Lebanon, cited in Hoyek, et al, Murder of Women in Lebanon: “Crimes of Honour” Between Reality and the Law, in Sara Hossain & Lynn Welchman eds., Honour: Crimes Paradigms and Violence Against Women 124 (2005).  In two other cases, the court declined to apply Article 252. In one case the court held the brother of the victim had clearly resolved to kill his sister long after the effect of rage had worn off. Case no. 582/2001, decision no. 413/2001, First Instance Chamber of Criminal Court of North Lebanon, cited in Hoyek at 124-25.  In the second case, even though the brother of the victim was clearly in an extreme rage after learning of the victim’s marital infidelity, the court held that the sister’s adultery was not potentially dangerous and not enough to warrant the brother’s act in killing her. Case no. 36/1998, decision no. 11/1998, Criminal Court of North Lebanon, cited in Hoyek at 125.

In applying Article 193, the courts have found a legitimate claim to honourable motive characterized by chivalry and decency if the perpetrator is the husband, but not in cases involving other relatives of the deceased such as a mother or brother.  See: Hoyek and cases cited therein at 122-23.

However, in most rulings involving claims of “honour”, the Lebanese courts apply 253 whether or not they apply 252 or 193. Article 253 allows courts simply to reduce sentences in the presence of “mitigating factors.” What constitutes a mitigating factor is not defined, leaving a great deal of discretion to the courts, and they have used that discretion to reduce the sentences of perpetrators who commit crimes under the pretext of “honour”, for example in cases involving perpetrators who kill wives, sisters, or daughters because of illegitimate pregnancies or suspected infidelity. The courts note such “mitigating” factors as the “circumstances” of the crime, or the tribal or other customs prevailing in the particular region where the crime occurred, or the “psychological agitation” of the accused when he killed his victim. (See: Hoyek and cases cited therein at 125-27)

 

Example: Tunisia reformed provisions reducing sentences for husbands who caught their wives in an act of adultery.

 

Example: A presidential decree amended Article 548 of the Syrian Penal Code, which previously exempted men who kill female relatives out of provocation for illegal sex acts or husbands who murdered spouses for adultery from punishment. The new article states that, "He who catches his wife, sister, mother or daughter by surprise, engaging in an illegitimate sexual act and kills or injures them unintentionally must serve a minimum of two years in prison." Article 192, which allows judges to lessen the punishment for any crime motivated by "honor," is still intact. Article 242 also mitigates punishment for individuals who murder out of rage and in response to an illegal act by the victim. Drafters who increase punishments for “honour” crimes and killings should ensure the punishments are commensurate with other crimes and reflect the seriousness of the crime. When reforming laws, drafters must conduct a comprehensive review of all legislation for other provisions that may reduce or eliminate punishments for perpetrators. (See: Presidential Decree Increases Penalty for Honor Killings in Syria, StopVAW, July 22, 2009. Syria: No Exceptions for ‘Honor Killings,’ Human Rights Watch, July 28, 2009)

Example: A 2011 amendment to Jordan’s Penal Code introduced Article 308 bis. This article renders mitigating factors inadmissible if the victim is under 18 years old. See:  U.N. Special Rapporteur on Violence against Women, its causes and consequences, Rashida Manjoo, Addendum: Mission to Jordan, May 14, 2012, para. 26. Drafters should render mitigating factors inadmissible in any honour crime regardless of the victim’s age.

Example: Turkey’s new penal code introduced mandatory life sentences for perpetrators who commit crimes or killings of custom (Article 82), which is considered an aggravating factor. A provocation of an ‘unjust act’ in ‘killings in the name of custom,’ however, could reduce the life imprisonment sentence. Article 29, formerly “unjust provocation” was amended as “unlawful acts” and states that the sentence reduction is not applicable to killings in the name of honor. The provision’s commentary notes, however, that this may not be applicable for all honour killings, thus leaving a loophole. (See: Turkish Civil and Penal Code Reforms from a Gender Perspective: The Success of Two Nationwide Campaigns, Women for Women’s Human Rights, 2005, pp. 62-62)Drafters should ensure that statutory language clearly states that sentence reductions will not apply to “honour” crimes and killings, adultery or domestic femicides. There should be no exceptions for unjust acts or provocations in “honour” crimes or killings, murders in response to adultery, or domestic femicides. (See: Tackling honour in the aftermath with a good practice prepared by Leylâ Pervizat)