Document Type : Research/Original/Regular

Authors

• Abazar Afshar ¹
• Zeinab Nafar ²

¹ PhD in Jurisprudence and Fundamentals of Islamic Law, Ferdowsi University of Mashhad, Mashhad, Iran; Visiting Professor of Shahid Motahari University

² PhD. Jurisprudence and foundations of Islamic law,Tehran, Iran.

Abstract

In many countries' legal systems, marital rape is considered a crime. Even though the wife has a special obligation to obey, the husband has no right to coerce her. His range of action in response to disobedience is limited to the wife's severe emotional rejection, and he is not allowed to use physical force. In light of this, Article 42 of the bill Protection, Dignity, and Security of Women Against Violence criminalizes spousal rape. The meaning and scope of illegitimate compliance have not yet been determined. According to the research findings, there is no reason to criminalize the simple obligation of the wife to obey without her consent unless there are religious, intellectual, or customary obstacles, such as sexual relations without the wife's consent during menstruation, fasting or physical illness. According to jurisprudence texts, the use of the term "illegitimate compliance" in the text of the law is incorrect because it implies certain legal and religious effects, such as " suspicious sexual intercourse" and "suspicious birth," which cannot have been the legislator's intent in Article 42 of the bill.

Highlights

Background and Purpose

Although "special obedience" and other obligations have been established for the "permanent wife" in marriage, this does not imply that she should be a captive of the husband's unusual demands, especially since the commitment to good behavior toward the spouse is the duty of the spouses towards one another, and it requires that the husband does not force the wife to obey and does not confuse love with imposition. Although the creation of laws does not ensure the survival of men's and women's romantic relationships, tyranny and injustice must be avoided by abiding by the law. In most legal systems, marital rape is considered a form of sexual violence against women and is therefore criminalized. In the meantime, various strategies have been employed over the past two decades to encourage governments to criminalize sexual violence in couple relationships, particularly physical and mental coercion. These mechanisms result in the criminalization of this violence in more than 104 countries. (Finkelhor & Yllo, 1982). The majority of countries have not differentiated between rape and coercion by the spouse and by others. (Miller, 2004).

Despite the criminalization of this violence, some governments have limited the scope of its inclusion to specific cases and have given various rulings and punishments for sexual abuse. This crime is realized in some countries only when the woman has officially withdrawn her consent according to the court order with divorce. The 2012 Islamic Penal Code states that the perpetrator of rape against a woman who is not known to them shall receive the most severe punishment, namely death. However, the code does not provide any penalty for the act of coercing a woman to engage in sexual activity without her consent by her husband. In contrast, Article 42 of The Bill "Protection, Dignity, and Security of Women Against Violence" (2019) states: "Forcing a wife to obey illegitimately is a crime, and the perpetrator is sentenced to one of seven punishment levels." The present article highlights the ambiguity and abstractness of the notion of illegitimate obedience, rendering it difficult to discern instances of such behavior in the context of marital relations for judicial purposes. Additionally, the extent of its applicability remains undefined. The rising incidence of unconventional sexual behaviors within the context of marriage, and the imperative to safeguard the physical, psychological, and sexual well-being of women, underscores the need to contemplate stringent legal penalties, both criminal and civil, in this domain. This article aims to comprehensively evaluate and examine Article 42 of the "Protection, Dignity and Security of Women against Violence" bill (2019) through the lens of Imami jurisprudence and criminal legislation in Iran and other nations.

Method

Using documents and a library search, a descriptive and analytic method has been implemented in the current research design. The comparative method was used to analyze the data; thus, the problem and hypotheses of the study were formulated using deductive reasoning based on theorems and general knowledge. Data from the opinions of jurists, legal materials, and legal doctrine in Iran's jurisprudence and legal system have been collected, categorized, and summarized, and new results have been extracted through the development of appropriate research tools and methods. The amendment proposals for the "Protection, Dignity, and Security of Women Against Violence" bill (2019) can be utilized comparatively.

Findings

The bill "Protection, Dignity, and Security of Women against Violence" (2019) suggests that the drafters prioritize combatting violence against women as the primary and fundamental issue within the realm of women's issues, as evidenced by the high quality of the bill's drafting (Mohammedzadeh et al., 1400). In accordance with Article 42 of the "Protection, Dignity, and Security of Women Against Violence" (2019) bill, compelling a wife to obey him illegitimately is a crime, and the perpetrator is sentenced to one of seven punishment levels. Article 19 of the 2012 Islamic Penal Code stipulates that the principal punishments for the seven levels are imprisonment for more than three to six months, 11 to 30 lashes, a fine of thirty to sixty million rials, and deprivation of social rights for up to six months.

The word "illegitimate" in Article 42 of the Women's Protection and Dignity Bill can be critiqued because, first of all, the illegitimacy of relationships is not possible in the form of coercion, while the provisions of the bill are based on violence and the wife's lack of consent, and lack of consent is one of the main elements of coercion; As a result, a relationship between the husband and wife, which is associated with the wife's absence of consent, is not viewed as illegitimate. Second, does a woman's pregnancy during a sexual encounter between the couple constitute evidence of the couple's illegitimacy as defined by Article 42 of the Law on the Protection of Dignity and the Protection of Women, in accordance with the specific meaning of the word "illegitimate"? And will it be subject to the consequences and rulings of the dubious birth? Thirdly, according to Article 637 of the Islamic Penal Code, non-sexual relationships between a non-mahram man and a woman are called illegitimate, and in fact, marital relations are specifically excluded from the discussion. Fourthly, according to the legal meaning of illegitimate (non-sexual relations) between spouses, if the wife does not consent, it is referred to as unconventional, and unconventional relations are not necessarily illegitimate; Therefore, the term illegitimate in the requirement of obedience between spouses is inappropriately used, and this term has many jurisprudential and legal effects, and it is suggested to replace this word in Article 42 of this bill with the phrase " the wife's obedience without consent or forcing the wife to have sex by the husband."

In general, the scope and extent of the duty to illegitimate obedience and examples are classified into two main categories.

1. A) Obligation to obey in normal circumstances where there are no other obstacles to obedience.
2. B) Obligation to obey without consent in circumstances where the wife faces obstacles, such as the following:

1) Physical illness (Helli, 1987, Vol. 2, p. 152); 2) Menstruation period (Helli, 2010, Vol. 3, p. 281); 3) During heavy or moderate Istihaza before Ghusl (ritual bathing) (Khorasani, Bita, Vol. 3, pp. 294 and 295, issue 1231); 4) During the postpartum period (Khosravi, 2009, vol. 14, p. 48); 5) When taking the obligatory fast (Khoei, 1989, vol. 2, p. 297, issue 1445) 6) When one cannot perform Ghusl or Tayammum due to entering the prayer time; 7) During I'tikaf; 8) When the age of the wife is less than nine years; 9) In the state of Ihram; 100  Mental illness, taking into account the expert's opinion and custom; and 11) Anal sex.

Consequently, it is possible that cases in which a woman refuses to engage in marital sex may not constitute Nushuz (wife's disobedience) rationally, Shariah-wise, or customarily; In this case, the husband's violent behavior and the wife's reluctance to have sex can be criminalized and serve as examples of Article 42 of the bill; However, the obligation to obey without consent in a normal situation where there is no other impediment to obey, and the woman is considered to be Nushuz is not capable of being criminalized. According to the obligatory nature of special obedience for the wife, the husband may encourage his wife to engage in intercourse in accordance with the ''easiest to the easy orders,'' resulting in severe non-violent emotional rejection. But it is not possible to oblige through physical coercion - battery - and mental coercion - threat - in any way; Hence, it can be inferred that the scenario above does not fall under the scope of Article 42 of the bill. However, by considering certain jurisprudential principles, rules, and legal remedies, a resolution can be reached, including the inclusion of conditions in the marriage contract, limiting the spouse's right to enjoyment, the condition of the wife's representation in divorce, invoking the prohibition of the abuse of the right and the rule of harmlessness, and imposition of fines and reparations may serve as a viable solution to prevent and deal with some sexual violence within the context of marriage by bringing it closer to violence and coercion in marital relations.

Discussion and Conclusion

According to Imami jurisprudence, the wife's obligation regarding the right to alimony is special obedience in marital relations. However, the husband cannot beat the wife under the pretext of her disobedience. Iran's laws are reticent about using sexual violence and coercion to compel a woman to obey and prescribe the legal remedy of alimony termination to force a wife to obey. In accordance with Article 1130 of the Civil Code, family courts view such violence as a manifestation of a wife's adversity. In addition to violating the wife's human dignity and safety, the physical harm and psychological disgust caused by this forced relationship can have a negative impact on the family and society as a whole. According to Article 42 of the 2019 bill "Protection, Dignity, and Security of Women Against Violence," compelling a wife to perform illegitimate acts is a crime punishable by one of seven levels of punishment. The following criticisms have been made in this article based on the findings of the research:

1. The term illegitimate obedience between spouses is inappropriate; Therefore, replacing the phrase "forcing the wife to obey, assuming the absence of consent" is suggested.
2. The scope and extent of the obligation to comply with the assumption of the absence of consent and its examples should be determined and specified, and it seems that cases of a woman's refusal in marital relations should not be considered intellectually, religiously, or ritualistically; In this assumption, the obligation and coercion to specific compliance can be criminalized and can be one of the examples of Article 42 of the bill. Otherwise, civil sanctions and measures, not necessarily criminal ones, should be used to ensure women's safety and dignity.
3. In the absence of consent, the scope and extent of the obligation to obey and its examples should be determined and specified, and it appears that some cases of a woman's refusal in marital sex should not be considered Nushuz intellectually, religiously, or ritualistically; In this case, the obligation and coercion to specific obedience can be criminalized and can be one of the examples of Article 42 of the bill. Otherwise, civil sanctions, not necessarily criminal ones, should be used to assure the safety and dignity of women.

Keywords

• Illegitimate Obedience
• Marital Rape
• Husband's Sexual Violence
• Husband's sexual Abuse
• Support For Women

20.1001.1.23452692.1402.11.2.3.1

Main Subjects

• women law