Understanding sexual assault through breaking the definitions / Atlas Torbati
Wednesday 16 July 2014, by
Feministschool:Sexual assault is one form of violence against women, which is likely to result in a range of negative impacts on those who experience it. The definition of activities and behaviours that constitute sexual assault differs in various cultures and legal jurisdictions. Therefore many victims of sexual assault might be unsure of whether the definition would lead them to qualify as a victim or not. This paper seeks to examine the differences on the perceptions of Iranian women towards sexual assault by breaking the definition, which is based on the Islamic penal law in Iran. The paper will compare the definition of sexual assault with the one in the UK legislation and will analyse the participantsâ€™ opinions on the preventive measures.
Iran is one of the largest countries in Middle East with a population of 74 million. The Iranian Revolution in 1979 brought forward the religious authority on both public and private spheres of Iraniansâ€™ lives. Almost all social policies changed according to the Islamic ideology. The new regime started to reshuffle the constitutional law. Many laws and policies were abolished as they had contradictions with Islam. The Guardian Council, which comprises of six jurists and six Islamic Fogaha was formed in order to oversee if the bills passed by parliament are aligned with Sharia law for approval. Family protection law, which granted many rights to women, was annulled. The state began to reinforce the religious mandate such as wearing compulsory hejab despite of initially promising to women that this would not happen. Islamic dress code and gender segregation was reinforced as well.
One of the slogans of early revolutionary days was equality of men and women. Article 20 in constitutional law declares that men and women are equal in law and have the same human, political, economic, cultural and social rights. However this doesnâ€™t mean that they have the â€˜same rightsâ€™ as Shirin Ebadi, the lawyer and Noble peace prize winner, states. As many writers of the constitution illuminated later on, men and women have complementary rights rather that equal. This means that it is not necessary to grant women, same rights as men. If men are given one right then women should be given another complementing one instead. For instance women cannot reject their husbands to have sexual intercourse because it is menâ€™s right. Instead women are given the right to claim nafaghe which is money for food, clothing and lodging ( Article 1108 Civil law).
Those who were writing the constitution where heavily influenced by Ayatollah Ali Motahariâ€™s ideology on gender differences (Mir-Husseini 2004). He introduced the idea of complementarity gender rights and duties and argues that in the Islamic view, women are equal to men in creation, and do not depend on men for attaining perfection (Mirhosseini 2004). He rejects gender equality in rights and duties as a Western concept which is not inherent to Islam and introduced the idea of complementarity gender rights and duties, both in marriage and Sharia family law. He puts forward the theory of the naturalness of Islamic law, and argues that differences in rights and duties between the sexes do not mean inequality or injustice; if properly understood, they are the very essence of justice (Mirhosseini 2004).
Therefore those who wrote the Islamic constitution did not believe in equality of men and womenâ€™s rights and considered women as a second sex with complementary not equal rights to men.
Sexual assault is one form of VAW. It does not belong to the third world and Muslim countries. It can happen everywhere round the world. For instance in the UK, Ministry of Justice, Home Office and the Office for National Statistics published a report in 2013, which indicates that over 400,000 women are sexually assaulted every year and one in five women (aged 16 - 59) has been the victim of sexual violence since the age of 16 (Office for National Statistics 2013). Sexual assault is a complicated concept that embraces many issues. It can take place in form of physical and verbal assaults. It has a different meaning in different countries and legal jurisdictions.
Legal framework of sexual assault in the UK
UK legislation has defined sexual assault as follows:
– (a) Person (A) intentionally touches another person (B),
– (b) The touching is sexual,
– (c) B does not consent to the touching, and
– (d) A does not reasonably believe that B consents.
An offence under this section may be committed in a public or private place (Public Order Act 1986). As we can see the notion of consent and intention have been highlighted in this Act. This definition embraces public and private space which indicates that state is responsible in both spheres of peopleâ€™s lives.
Legal framework of sexual assault in Iran
Sexual assault is a hidden phenomenon in Iran. There is no official statistics on number of cases reported to the police. The government does not publish any official data or report on the number of victims and conviction rates. There is hardly any academic research or articles on this issue. Media and government try to relate sexual assault to womenâ€™s own behaviour. The Islamic republic turns a blind eye to this issue and does not address it publicly.
Unlike rape reports that one can read in newspapers, sexual assault issue is very untouched and underreported in Iranian society. The term â€˜sexual assaultâ€™ does not exist in the Islamic Penal Law in Iran. The closest definitions to sexual assault would be adultery and physical assault.
Adultery or zena be onf va ekrah comes in Act 224. Act 221 of the Islamic Penal Law has defined â€˜adulteryâ€™ (zena be onf va ekrah) as the forcible male penile insertion into the femaleâ€™s vagina or anus. According to Article 2 of Act 224, if someone has sexual intercourse with a woman without her consent and when she is drowsy, unconscious or drunk he is convicted of adultery and death penalty (Islamic Penal Law 2000).
This act emphasises on any sexual intercourse without consent (Islamic Penal Law 2000). According to this act, penile penetration can be either into vagina or anus. However, sexual assault is different to the above definition. The above definition is closer to the definition of rape as it emphasises on â€˜forcible penile insertion into female vagina or anusâ€™. Although there is no law prosecuting forced oral sex in Iran.
Physical Assault in Iran
Physical assault refers to any physical contact outside of a lawful relationship (i.e. marriage), which is against human honour such as kissing and fornication, (Act 637, Islamic Penal Law 2000). A person who commits physical assault is punished by ninety nine lashes (Act 637, Islamic Penal Law 2000).
Physical assault definition is very vague as well. It does not include any sexual touching, groping and forcible sodomy. The only two examples are kissing and fornication. Also the notion of consent is absent in the definition. The definition has left some ambiguity in interpretation of â€˜physical contactâ€™. It has left the decision to the judge to decide if an act is against human honour.
As I mentioned earlier sexual assault can be verbal too. In fact, it is the most common assault in Iran, which is called matalak in Farsi language. Verbal assault has been defined as any verbal offence or indecent language towards women and children in public and a person who commits verbal assault in public is punished by three to six months of imprisonment or 74 lashes (Act 608, Islamic Penal Law 2000).
The UK definition has emphasised on public and private life. This means that the offender would be penalised if sexual assault happens in public and private. However, the physical assault definition in Islamic Penal Law does not include public life. Only verbal assault has stressed on that. This shows that state would refuse to interfere into peopleâ€™s private life if the crime happens.
The above show that definitions of sexual assault are not always consistent, particularly across nations. In this respect, behaviours that might be defined legally as sexual assault in one jurisdiction or location may be interpreted differently in others or in a different context. The consequence of this inconsistency is that many victims of sexual assault might be unsure of whether the definition would lead them to qualify as a victim or not.
Womenâ€™s perception of Sexual Assault in Iran
I have interviewed ten women from different religious and socio-economic backgrounds in Tehran. Azadeh was 26 from a well-off family. Her perception of sexual assault is as follows:
â€œI do not perceive sexual touching or groping as sexual assault because these acts have been common in our society. I did not know that it can come under physical assault act and has a penalty. If someone touches me I get angry but move on quickly because these have had happened to me many times before. I see sexual assault as forcing someone else to have sex.â€
When I ask her about public and private life she says, â€œpeopleâ€™s private life is important for the state when we have satellite inside the house and watch Western programme or when we have a party and drink alcohol, they quickly intrude your house, fine you or even put you in jail but if all these assaults that you name happen inside the house no one cares.â€
The above narrative shows the lack of awareness and understanding of what sexual assault means and also lack of a robust and transparent law. It shows that how a crime can been normalised in an Islamic society with no one responsible to address it. Women will feel very insecure and helpless in a society where there is no powerful authority that enforces such laws.
One of my chats was with Mona, a 32 year old non-religious girl. According to her:
â€œverbal assault has been very common as if it is not an assault anymore. I have become used to it and experienced it since I matured. I did not know that it has punishment. If someone verbally assaults me I reply back because I cannot control myself and I know police will not do anything. I have been sexually assaulted many times specially in Grand Bazaar. When I go there I usually take a needle and if anyone tries to touch me I would then defend myself with the needle. If state wants to punish the offenders, more than half of Iranian men would end up going to jail.â€
Mona has developed a sense of retaliation in herself and cannot tolerate violence. Although as she says, she has got used to it but the behaviour does bother her all the time. She carries a needle because she knows that there is no robust law and powerful authority to protect her.
Niaz 29 who comes from a religious background and practices Islam believes:
â€œMen have been given many rights in our society and do whatever they want. They do not care if you wear chador (Islamic veil) or a tight dress. They enjoy assaulting women verbally and no one can stop them. I know many religious men who enjoy assaulting women sexually and verbally, so I cannot say that religion is a prohibiting factor. It is something cultural and I am sure if you investigate in these menâ€™s childhood life most of them have had experience of assault or come from a violent familyâ€ .
Niaz sees menâ€™s desire for sexual assault as a cultural issue rather than religious. Although Sharia law is the foundation of Islamic penal law in Iran but she does not see a link between religion and menâ€™s sexual behaviour. She believes that menâ€™s childhood and upbringing can have a great impact on the way they treat women.
However, Fatemeh who comes from a religious family and practices Islam says:
â€œI accept that verbal and physical assaults are very common but I believe women perpetuate it themselves. If you dress and behave appropriately according to Islamic dress code and do not wear makeup you are secure when you go outâ€ . When I challenged her that you can be sexually assaulted even with Islamic dress code (according to N) she says, â€œ pervish men are everywhere, but if I dress inappropriately I will pass a message come and touch meâ€ . I asked her that some people might not be as religious as you and she replies: yes and that is why religion can save and secure people. So if you want to be safe, be religious. Fatemeh sees religion as a tool that can extremely reduce the risk of experiencing verbal and physical assaults and one from which women can gain peace and security.
The Islamic republic turns a blind eye to this issue and does not address it publicly. The reason is according to existing cultural traditions, sexual acts whether voluntary or forced should not be part of public discourse because this would intensify wider negative effects on public morality. Moreover, the victims are too ashamed or scared to talk about it. Therefore state and self-censorship impede an effective public discourse and debate about this issue (Aghtaie 2011).
This also highlights the power relation between genders in the society. All my participants count men as being more powerful than women because they live in a patriarchal society where men are given more rights than women.
Forbidding and sentencing for sexual assault depends on state willingness and flexibility to reform the Islamic Penal law. Social beliefs and ideologies on gender and family relations would affect formations of laws and regulations. State plays the most important role in Islamic countries. State mediates gender relations in the society. It fosters or impedes the social change in the society and allows more equality to women. It can ban and punish violence.
The challenge to promote womenâ€™s rights in societies where it is run by religious law is very difficult. In most Muslim countries Sharia law is interpreted to permit or tolerate different forms of violence against women. Misinterpretations of Quranic verses about womenâ€™s rights have made the task even more difficult for activists to call for equality between men and women (Mir-Husseini 2004).
As Ziba Mir-Husseini (2004), the Muslim feminist anthropologist, states the inequalities embedded in Islamic law are neither manifestations of divine will nor an inherent component of social system, but is human construction like any other religion and is open to negotiation and change.
Sexual assault has been the focus of Iranian filmmakers recently. Two recent movies namely, â€˜I am a motherâ€™ and â€˜Hush girls do not screamâ€™ have broken the taboo in Iranian film industry and showed the sensitivity and consequences of the subject. The first movie directed by Fereydoon Jeyrani mainly focused on issue of rape and the second one directed by Pooran Derakhshandeh was about a girl who was continuously sexually assaulted by the security man in their residential building during her childhood. Derakhsandeh had a massive international success and held many educational workshops and TV programmes in Iran, which can be a start of uncovering this issue in the society. More attention needs to be paid to this issue by media through publishing the reports and cases. A rigorous and clarified law that defines sexual assault along with an accountable state is required in the society. Having sexual assault as a subsection of adultery or physical assault leaves women in a vulnerable situation. A lax law that does not count women equal to men is not only unable to protect women but also fails to punish the criminals. Therefore sexual assault becomes a normal part of life where women are the first targets.
Aghtaie, Nadia. â€œBreaking the Silence: Rape Law in Iran and Controlling Womenâ€™s Sexuality,â€ 2011 in Westmoreland, N and Geetanjali Gangoli, G International Approach to Rape 2011, Bristol: Policy Press
Mir-Hosseini, Ziba. â€œThe Quest for Gender Justice: Emerging Feminist Voices in Islam.â€ Islam 21 (2004): 36.
Shirin Ebadi (2006). Women’s Rights In the Laws of the Islamic Republic of Iran. 2nd ed. Tehran: Ganj-e- Danesh. 33.
Source in Persian: