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Sexual violence in Tunisia: From denial to dawning recognition

Publisher International Federation for Human Rights
Publication Date 2 June 2014
Cite as International Federation for Human Rights, Sexual violence in Tunisia: From denial to dawning recognition, 2 June 2014, available at: http://www.refworld.org/docid/5391b74b14.html [accessed 30 September 2016]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

2 June 2014

When looking at legislation pertaining to women, Tunisia appears to be a pioneer in women's rights, the issue of violence is one of the more marked weak spots in the arsenal of laws and policies that seek to protect women and promote the exercise of their rights and liberties. Nevertheless, these various laws and policies have not provided the necessary protection for women from violence in all forms.

Tunisia prohibited polygamy, compulsory marriage, and the duty of obedience, set a minimum marriage age, and made divorce a purely judicial matter in the 1956 personal status law. It has also instituted a policy of compulsory education for boys and girls, maintains a birth control policy, and has granted women the right of abortion and employment. Nevertheless, these various laws and policies have not provided the necessary protection for women from violence in all forms.

It was only in 2010 that Tunisia conducted the first national survey of violence against women. The official study found that 47 percent of women ages 18â€"64 had been subjected to at least one form of violence once in their lives, with little variation between urban and rural areas. At 31.7 percent, physical violence was the most common form of violence, followed by psychological violence at 28.9 percent and sexual violence at 15.7 percent. These figures raise a question: what explains the high rate of violence against women in a country considered a leader in women's rights?

The answer is multifaceted. There is first of all a political aspect. The Tunisian authorities long exploited women's rights for pro-regime propaganda and as evidence of its respect for human rights, particularly in international forums and conferences, consistently refusing to recognize the existence of gender-based violence. The confiscation of a book on violence against women, issued in 1993 by the Tunisian Association of Democratic Women, a member of FIDH, is perhaps the best illustration of the denial maintained by the Tunisian authorities.

It was not until 2007 that political discourse in Tunisia began to incorporate the issue of violence, including sexual violence, and to discuss the long-taboo subject explicitly. In the framework of the national strategy to eliminate violence against women, the aforementioned national study was conducted.

In these years, Tunisian and international feminist organizations played a vital role in pressuring the authorities to recognize sexual violence and assume its responsibility to counter it.

High rates of violence in Tunisia can also be explained by looking at the limited spectrum of legal responses to it. The Tunisian Penal Code punishes spousal violence and considers it an aggravating circumstance, and Tunisian legislation punishes several sexual crimes, including rape in Article 227 of the Penal Code and, since 2004, sexual harassment in Article 226(bis) of the code. But these provisions are not based on a holistic legislative approach that confronts gender-based violence. The legislator fails to define sexual violence in line with international standards and does not distinguish between public or private violence. The legislator is also silent on numerous types of violence, such as symbolic and economic violence. In fact, in many cases, it adopts a stereotypical view of gender relations to reproduce violence by law.

One example of this is spousal rape. The Tunisian legislator not only ignored this crime, but in fact condoned it in Article 13 of the personal status law, which states, "The husband may not compel the wife to build any sexual relationship if he has not paid the dowry." This means that the husband need only pay the dowry as the price of sexual relations and may even force his wife to have sex. In short, Article 13 permits a husband to rape his wife.

Article 13 also illustrates the legislator's failure to use a comprehensive definition of violence and the ways it is practices, with the result that Tunisian law conforms to dominant cultural and religious mentalities. Article 13 is not an isolated case unfortunately. Outside the context of marriage, Article 227 of the Penal Code provides another example of how the law reproduces sexual violence. The article states that if a man has consensual sex with a female minor, the legal consequences of the act are nullified if he marries the victim. Rights organizations consider this provision to be rewarding the rapist by marrying him to his victim, permitting him to continue to rape her in the framework of marriage as a means to avoid punishment.
As is clear, there are many obstacles to the elimination of violence, specifically sexual violence, in Tunisia, among them political and legal impediments, as well as cultural and social factors. Has the situation has evolved since the Tunisian popular uprising of 2011?

It is difficult to determine whether violence against women has increased or declined since 2011, but violence against women typically increases in periods of crisis, and this rule may hold for Tunisia as well.

In addition to violence through social media, brought to bear against female candidates in the recent elections to the national constituent assembly, and attacks on their honor and reputation, Islamist groups engaged in physical and material violence against some female political and civil activists during public assemblies and demonstrations (Maya Jribi in 2011 and 2012). In addition, Tunisia has seen cases of sexual violence that have sparked a public outcry at home and abroad due to their severity.

There is the case of Maryam, a 29-year-old woman who was gang raped by security personnel in a police car while with a male friend in a neighborhood in the capital. In September 2012, security personnel came across Maryam and her friend at night in her car. They threatened to charge them if they did not pay a bribe. One of the policemen went with her friend to an ATM to obtain the money while the other two policemen took Maryam into the police vehicle and raped her.

Maryam bravely sued her rapists and also turned to the media and women's and rights groups for support. The response of the Tunisian authorities came in a statement from the official spokesman for the Interior Ministry, led by the Islamist Ennahda Party at that time. The spokesman stated that Maryam had willingly offered herself to the policemen fearing she would face legal action for having sex with her friend.

Immediately after this statement, the public prosecutor charged Maryam with infringing good morals, turning her into the guilty party and making the victim responsible for her own rape. This spurred Tunisian and international rights groups to take action and make efforts to provide Maryam with psychological and health support. Organizations, among them FIDH, formed a defense team to represent Maryam in court, and the case received much support from the media and activists on social media.

On March 31, 2013, a first-instance court sentenced the rapists to seven years in prison. Although FIDH considered this a positive step toward ending impunity, it believed the penalty was not appropriate for the circumstances of the crime, since the fact that it was committed by two public servants tasked with securing citizens is an aggravating circumstance in Tunisian law.

Maryam's case became a symbol and example, reflecting the philosophy of state institutions in dealing with cases of sexual violence against women, as they quickly sought to justify the crime in any way possible. The case also drew public attention to the flaws in Tunisian legislation.

The case moved public opinion and led rights organizations to demand a review of all laws related to violence and sexual violence in Tunisia. Although this is a long-standing demand of Tunisian civil society, the new margin of freedom opened up by the Tunisian revolution enabled them to intensify their struggles to achieve it.

Today, Tunisian women have made gains, at least on the level of legislation, seen in:

1. The adoption of the new constitution on January 27, 2014, Article 46 of which states that the state must "take all measures to eliminate violence against women." This article is the outcome of efforts of rights activists in Tunisia. It is a constitutional recognition of violence against women and requires the state to protect women from it.

2. Tunisia removed its 1985 reservations to CEDAW on April 23, 2014, fulfilling another long-standing demand of rights activists and feminists.

These two historical achievements for Tunisian women are the result of strong, years-long campaigns conducted by Tunisian organizations and supported by international NGOs. In raising these demands, Tunisian civil society was accused of holding maximalist, impractical stances divorced from Tunisian reality and culture. But civil society's reliance on the international human rights reference, its belief that women's rights are an indivisible part of human rights, and its unwavering, uncompromising views strengthened it and made it possible to put its demands on the agenda and mobilize society around them.

A clear vision, networking, and working with partners on the regional and international levels are the most significant best practices adopted by civic organizations in Tunisia, while their general strategy of maximalist demands combined with constant negotiation enabled them to achieve a set of gains.

Regarding the constitution, the Tunisian Association of Democratic Women and the Tunisian League for the Defense of Human Rights, one of the oldest members of the FIDH in Tunisia, submitted draft constitutions to the constituent assembly with similar provisions in the section on equality and women's rights. The associations worked to mobilize society and raise social awareness of their proposed constitutions in the media, successfully garnering public support.

At the same time, civil society organizations attended various debates within the assembly and followed the drafting of the constitution minute by minute over two years, confronting every attempt to erode women's rights in the charter. This includes Ennahda's first draft constitution, presented in August 2012, which advanced the notion of gender complementarity rather than equality. Tunisian civil society drew attention to the danger such a conception posed to Tunisian women and mobilized the street into demonstrations against it until Ennahda withdrew it. These organizations also demanded support for gender parity, enshrined in the new constitution in Article 46.

This is evidence of the importance of civil society for promoting civic and democratic awareness and engaging in real time with every attempt to undermine women's rights. Tunisian civil society is a force for pressure and lobbying, as well as documenting, monitoring, and exposing violations of women's rights. As a result, researchers consider Tunisia "the gift of civil society."

While the constitution is a significant step, today we need to move further by bringing all Tunisian legislation into compliance with the constitution and purging it of all discriminatory provisions. FIDH and its member organizations are currently engaged on just this front and to this end will pursue an integrated program to review all legislation and propose revisions that respect international human rights standards for women. FIDH is also supporting a program to draft a comprehensive law on violence against women that will rely on internationally approved definitions of violence; the law will give prior protection for women from violence, guarantee the deterrence and punishment of offenders, and provide shelter and care services for survivors of violence.

These programs and others, such as raising social awareness of citizenship and human rights education, support the efforts of organizations active in Tunisia to ensure that the democratic transition is built on respect for and the improvement of women's rightsâ€"whitch is the true test of the success of the Tunisian experiment.

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