Impunity and the conflation of rape and adultery in Sudan’s Criminal Act

Under Sudan’s Criminal Act (1991), rape is defined as zina (adultery and fornication) without consent. This constitutes a serious legal obstacle for rape victims in the country.

Hudud (singular, hadd, meaning limit, restriction, or prohibition) are regarded as the ordinances of Allah, and they have fixed punishments derived from Islam. Among the offenses for which hudud penalties are prescribed is zina which is defined as sexual intercourse between a man and woman outside a valid marriage contract and must be proved by confession before the court, the testimony of four adult men, and pregnancy if the woman is unmarried. The punishment is stoning to death for married offenders and 100 lashes for unmarried offenders.

The evidentiary rules applying to zina are historically based on the rationale in classical Islamic law that there should be indisputable evidence for the severe punishment. When applied to rape, however, it contributes to impunity for rape as a conviction can realistically only be secured where the perpetrator confesses to the crime. As the evidence is virtually impossible to obtain, a rapist can only be incriminated if he voluntarily decides to confess. Even in situations where the rape is not reported to the police and no court case is initiated, an unmarried woman who becomes pregnant because of rape is at risk for charges of zina. The consequence, in the words of an activist, is that if you cannot prove rape, you become the perpetrator.” According to the Sudanese scholar Abdel Salam Sidahmed in an article from 2001

“The categorization of rape as a form of zina […]does not just result in a rapist walking free from the court room or receiving a very light sentence, but may even lead to incrimination of the victim of rape”.

In Sudan, the introduction of hudud was embedded in a larger call for Islamization: first under President Nimeiri, who enacted the so-called September Laws in 1983, and later under the Islamists, who came to power in a military coup in 1989. President Omar al-Bashir and his circle of supporters introduced what they called the “civilization project” (al-Mashru al-Hadari). An intrinsic part of this project was the Islamization of Sudanese law, with the hudud penalties incorporated in the Criminal Act. Greater control of women’s bodies and movements and the protection of their morality and honor were central to the Islamization project.

Over the last several years, the reform of criminal law on rape/zina has become a priority for Sudanese women activists, despite government repression of those advocating extensive reforms. The Interim National Constitution of 2005 following the peace agreement sparked a review of Sudan’s laws codified by the current Islamist regime during their 23 years in power, including the Criminal Act.

Meanwhile, the outbreak of armed conflict in the western province of Darfur, with rampant sexual violence, put rape on the agenda of women activists. They highlighted the conflation of rape and zina in the current Criminal Act and the impact of this on rape victims in the Darfur conflict. In the words of a Sudanese activist, “We never thought of sexual violence as an issue. Darfur changed that”. The recent attention by Sudanese activists to sexual violence and the advocacy for reform of Sudan’s laws on rape has coincided with growing international awareness of rape in armed conflict over the last 15 years. Sexual violence has been recognized as a “weapon in war” and as a threat to international peace and security in numerous UN Security Council resolutions.

The ICC’s indictment of Sudan’s president in connection with the systematic practice of rape in Darfur further politicized the debate and the work on criminal law reform. The indictment has proved to be a double-edged sword. It made it possible to put sexual violence, beyond the Darfur conflict, on the political agenda and stirred public debate on the issue for the first time in Sudanese history. At the same time it made activism within this area more difficult because calls for reform are framed as a direct threat to the current government. The room for maneuver is small, and activists operate under severe constraints.

This blog is based on Liv Tønnessen’s  article in Women’s Studies International Forum.

Access the full article here.