Protection of women victim of rape: Islamic and international legal perspectives

Date: 25 November 2014

Venue: Tilburg University - Ruth First Room - Warandelaan 2 - 5000 Tilburg

Time: 4:15 PM

Organization / co-organization: Faculty of Law

PhD candidate: Hajar Azari

Principal investigator: Prof. dr. Koen De Feyter en prof. dr. Rianna Letschert

Short description: PhD defense Hajar Azari - Faculty of Law

Abstract: The frequency of sexual offences, particularly of rape against women, has become an issue of major concern for the police, the courts, the government and non-governmental organizations. Addressing the issue of rape and violence of any nature against women and ensuring justice for them lies at the heart of any attempt at promoting gender equality. The root of victimization in this discourse results from putting the blame on the women victims themselves. The relationship between the victim and offender is used to create an excuse to escape culpability for rape, e.g. when the victim and the rapist have had a previous sexual liaison or if the woman victim has had a previous conviction for a sex crime. Through this discourse, women victims are considered as partners in crime instead of as victims, and this attitude has been the main reason for not recognizing the mass complaints of rape victims by the police and judicial system.
In Islamic countries, the situation is sometimes worse because of a particular interpretation of Islamic law in conjunction with cultural or political attitudes towards rape. This may result not only in a lack of justice, but even in the actual punishment of the victim. Sometimes victims are themselves brought before the courts and punished for 'intimacy' because they were deemed to have had a sexual relationship outside of marriage. Consequently, less rapes are reported, while the cases that are brought forward result in minimal punishment for offenders, and at worst, severe punishment for victims. In addition, many victims are also subject to persecution from their families or communities as a result of cultural responses to rape that many justify through association with Islam.
The thesis investigates how different interpretations of Islamic texts impact on rights of women victims of rape in different schools of Islamic law, how the Iranian legal system – through selected case studies – interprets Islamic law and addresses the crime of rape in order to protect women victims of this crime and to what extent such policies and attitudes comply with the origin of Islam and the original text of Islamic law. A collateral component of thesis explores how international law protects women victim of rape and whether international law can assume a protective role for these victims in the context of a legal system based on Islamic law such as Iran. Finally, by examining the status of international law within Iranian law, clarifies why only a limited use can be made directly of international law in Islamic countries such as Iran.
By comparing the two legal frameworks (Islamic law and international law), the gaps and differences between the two systems, regarding rape, are highlighted. Significant differences occur on issues such as the inequality between men and women in compensation rights, death punishment for rape, marital rape etc. Therefore, the thesis suggests that although Islamic human rights instruments in broad terms represent values similar to international human rights law, practical difficulties prevent to provide enough protection for victims in Islamic context i.e. Iran. As a way forward, a plea will be made for a creative interpretation of Islamic law that allows safeguarding the rights of women victims of rape.
The research will conclude that in order to provide "effective" protection system for victims, the difficulties of the Islamic criminal system need to be solved by employing domestic methods and local facilities coming from local and domestic context of Islamic countries. Otherwise, victims could be put in a worse situation than before. International law, on the other hand, will provide a framework to take into account the expectations of the international community, indicating the direction for legal reform.