Gender, sexuality and the criminal laws in the Middle East and North Africa: a comparative study

The women’s movements in the MENA and the Islamic world are increasingly demanding equality. Despite the theoretical and spiritual quality of women in Islam, Muslim women, children, and slaves were (and are) not equal to men either in ‘urf or shari’ah. This paper makes the arguments that reforms in both family law and penal or criminal codes are essential, as they continue to legitimise violations of women’s human rights in both the public and private spheres. The survey of penal codes and related crimes show that though some laws in the region have changed over time, some are still in line with customary practices of another age, but must adapt to the demands of today. This will ensure women legal autonomy over their own bodies and sexuality.

Key points made:

• The wording of penal codes provides loopholes that allow for violence against women. Also, omissions from law allow communities to privatise control over women’s, girls’ and homosexuals’ bodes and enforce community definitions of proper sexual behaviour.
• Colonial regimes influenced the codification and legal modernisation process already underway in the MENA region. In leaving matters of personal status up to religious authorities, colonial authorities were merely following the established trends of rulers.
• There is a basic contradiction between the constitutional right to equality for women and the discriminatory nature of existing penal codes and this should be a matter of concern. Historically, this has elsewhere been addressed through amendments, or redrafting of legislations that include discriminatory language or fail to provide for equal opportunity.
• Regionally, women’s exclusion from legislative and judicial systems, lack of coordination, insecurity vis-à-vis Islamist opposition, and the strength of Islamists in legal and other professional syndicates provide further obstacles to the realisation of gender equality
• The current liberal notion is that since the public is uneducated and unenlightened, the laws should cater to its “traditional tendencies”. However, this “staged” approach to equality needs to be given up, as it works to women’s detriment and not for their empowerment.