When rape is not rape: The inadequacy of Egyptian legislation
YOUM7 (Archive)
By HANAN FAYED

CAIRO: When a woman was anally raped in a hospital in December 2012, the incident revealed the wide and deep cracks that have long existed in the Egyptian penal code, after she was shocked to discover that anal rape in not legally considered rape.

Shereen Nasser, a woman in her early thirties, has long maintained that she was anally raped in December 2012, while anesthetized for an appendicitis procedure at Cleopatra Hospital, an upper-class hospital in Cairo’s Heliopolis neighborhood.

But slow procedures and a general unwillingness to cooperate from the hospital, the Forensic Medicine Authority and the prosecution have prevented Nasser from taking her case to a court, according to her blog.

The real blow came when she discovered that only non-consensual, out of wedlock vaginal penetration with a penis is considered rape in Egyptian law. Any other form of coercive sex is considered “indecent assault,” which therefore leads to far less severe penalties.

“I am not just defending my honor. I am fighting a culture that blames the victim and protects the rapist with impunity,” Nasser says in her blog.

Nasser did not test positively for any sexually transmitted diseases prior to the operation, she says. She was diagnosed with herpes and anal fissure after the operation, according to medical documents published on her blog. Then, she opted for a virginity test, which she says turned outpositive.

When Nasser reported her case to the prosecution, the hospital management accused her of being a “spinster with sexual hallucinations,” she said. Nasser created a Facebook page, a Twitter account, a YouTube channel and an online petition to support her case.

She said in one of her YouTube videos that she has been told by many people, including the forensic doctor, to forget about the issue, since she is still a “virgin” and because the hospital is “reputable and expensive” and therefore would only harm her own reputation.

Adultery and rape in Sharia Law

Ahmed Kereima, professor of Sharia Law at Al-Azhar, told The Cairo Post that Egyptian law does not comply with Sharia Law in this regard.

Though the parallel may be questionable in terms of rape cases, nonetheless, Sharia deems anal adultery as a more serious sin than vaginal adultery, and as such its punishment should follow.

“The punishment for adulterers who partake in vaginal penetration varies according to whether or not the perpetrator is married. In the case of adultery through anal intercourse, his marital status is disregarded,” Kereima said.

The way that adulterers who partake in anal penetration should be put to death is a matter of jurisprudential dispute amongst Islamic theologists, Kereima added.

Article two of the Egyptian constitution stipulates that Sharia Law is the main source of legislation. However, in many cases such as this, Sharia Law is not considered, nor does it even translate as a moral basis in a conservative society that seemingly seeks religious bases to legitimize it actions.

Perhaps the severity of the punishment is why it is not considered, as married adulterers should be stoned to death and single adulterers should be lashed with 100 lashes and exiled for a year, according to Kereima.

However, not even the principle is translated into Egyptian law, and instead the perpetrator is subject to much smaller sentences in the case of anal rape, whereas Sharia states that all kinds of rapes are subject to death penalties.

The Egyptian Penal Code

The penalties for rapes and indecent assaults in the Egyptian Penal Code were toughened in 2011 by the then-ruling Supreme Council of Armed Forces to deter wide-scale violence against women, in light of the widespread lawlessness that followed the January 25 Revolution.

Article 267 of the Penal Code stipulates that if a female is raped, the rapist can be sentenced to up to 25 years in prison. If the female is younger than 18, or if the perpetrator is a relative, he is sentenced to death.

Article 268 sets “rigorous imprisonment” as a punishment for indecent assaults, which means between three and fifteen years in prison. If the victim in younger than 18, or if the perpetrator is a relative, he is sentenced to at least seven years in prison. If the victim is less than 18 and the perpetrator is a relative, he is sentenced to 25 years in prison.

Rape in the international law

According to international law, unwanted sexual penetration of the vagina or anus of the victim using the penis or any other object is considered rape, and coercive penetration of the mouth using the penis is also considered rape.

The Taskforce of Combating Sexual Violence, a coalition of 23 Egyptian feminist organizations, proposed significant amendments to the chapter on rape and sexual assaults of the Penal Code in 2010 to comply with the international law.

“These laws were set in the 19th century and were inspired by the French law. While the world has expanded the definition of rape, our laws have barely changed since then,” Huda Nasrallah, lawyer at the Egyptian Initiative for Personal Rights, and member of the Taskforce told The Cairo Post.

“The legislator is protecting ‘honor’ from his point of view, as is clear from the book’s title ‘Indecent Assault and Corruption of Morals,’ in the Penal Code,” Nasrallah added.

Furthermore, Head of the Cairo Center for Development Intsar Saed told The Cairo Post, “The Indecent Assault and Corruption of Morals book does not recognize that a man can be raped, and considers that a woman has been raped only if she was penetrated in the place where her hymen lies.”

The CCD adopted the case of a nine-year-old girl, who was repeatedly raped by her uncle over eight months. Although private doctors told the girl’s mother that her daughter lost her hymen, the forensic medicine report said that “she still has a hymen, but the incident can take place without leading to loss of virginity.”

The forensic report led to considering the case as indecent assault rather than rape, and the uncle was sentenced to five years in prison in absentia, in December 2013.

“Although the sentence does not satisfy us, and although the judge used clemency with the uncle, we consider it to be one of the best sentences issued by the Egyptian judiciary in such cases, because they are very difficult to prove,” Saed said.

The hymen and virginity tests

In Egypt, the hymen is vastly considered to be the only evidence of a woman’s virginity, and in the pervasively traditionalist atmosphere, this makes it the only way to safeguard her ‘honor.’

The notion has been legitimized to the extent that state services have been reportedly performing forcible virginity tests on detained women.

One of the most well-known incidents was in March 2011, when Samira Ibrahim and at least 18 other female protesters in Tahrir Square were subject to virginity tests by male military doctors.

In December 2011, the State Council Administrative Court ruled that the practice is illegal. However, the doctor whom Ibrahim claims had carried out a virginity test on her was acquitted in March 2012 by a military court.

Egypt is party to the United Nations Convention to Eliminate all Forms of Discrimination against Women, but its laws are still a long way from protecting the rights in the convention it ratified.

The Egyptian authorities are expected to present its Universal Periodic Review in 2014 to the UN committee that monitors the implementation of the convention. A group of Egyptian human rights organizations is also expected to present its own report on the condition of women’s rights in the country to the committee.

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