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NORGLOBAL-Norge - Global partner

Caught between Rape and Adultery: Women's Fight against Sexual Violence and for Justice in Northern Sudan

Awarded: NOK 3.0 mill.

The project looks at how the Islamic state in Sudan defines rape, how the law is applied by (in)formal courts, and efforts to reform the law. Article 149 of Sudan's Criminal Law defines rape as adultery (zina) without consent and this constitutes a s legal obstacle for rape victims attempting to bring their attackers to justice. Zina is defined as sexual intercourse between a man and women outside a valid marriage contract. It is punishable with 100 lashes for unmarried persons and stoning to death for married persons. Since zina is not sufficiently differentiated from rape in the law, the offence needs to be proved according to the rules of evidence applying to adultery. Zina can be established by (a) a confession (b) the testimony of four male eyewitnesses (c) pregnancy. If a woman goes to court she can risk being charged with the crime of zina, because her allegation of rape is in itself considered as confession of zina. Law reform: In the period following the peace agreement in 2005 and the outbreak of armed conflict in Darfur, sexual violence has emerged on women activists' agenda. While the peace agreement put legal reform high on the agenda from 2005 onwards, the Darfur conflict put attention on rape as a war crime under international law when the International Criminal Court warranted the arrest for Sudan's president for his individual responsibility for systematic raping in Darfur in 2009. This has triggered an extensive debate on legal reform of rape as it is defined in Sudan's laws, but it has also politicized the issue and the government is continuously limiting the space for actors (local, national and international) working on issues of sexual violence. It is clear that there are conflicting definitions of rape at play between women activists and the government, particularly when it comes to the area of marital rape. Court practices: An important component of the project is to look at how the rape article in the Criminal Law has been implemented in formal state courts. One important law reform that has taken place within the realm of rape legislation came with the National Child Act of 2010. This has consequences for how statutory rape cases are viewed in Sudanese law. Whereas the Criminal Act of 1991 defines rape as zina without consent, it further specifies that children cannot give consent. But the law goes on to define an adult at signs of puberty which means that it is in the eyes of the judge to decide whether a victim of rape should be treated as an adult or a child. The Child Act sets the age of a child to below 18. Statutory rape against children under the age of 18 is criminalized in article 45. Through court cases and interview with judges from child courts, we have learnt that the Child Act is only applied in some cases, but not in all. Some judges in Khartoum state employs the 1991 law and thus signs of puberty in zina/rape cases. If the girl below 18 is pregnant then she is considered an adult and thus subject to the zina penalty. Other judges employ the Child Act in all cases of girls below 18 even if she is pregnant. Currently, there is no ruling of the higher court creating precedence for the Child Act in statutory rape cases. This is related to the fact that conservative political, religious and legal actors are of the opinion that setting 18 as the definition of the child contradicts Sharia. Customary law: During Islamist rule, the government has attempted to dismantle and/or control customary law systems as they have been regarded as un-Islamic. Islamists have attempted to formalize these courts and this has affected its role in defusing conflict and protecting women. Their main aim has been to hinder family disintegration as divorce is regarded as un-Islamic. Simultaneously, gender relations have changed because of new possibilities for women within education, paid labour and also awareness raising campaigns. There is a discrepancy between the courts' decisions and women's expectations of the courts' role. Despite the courts' insistence on family integration even in cases of violence within marriage, women in eastern Sudan have decided to separate from their spouse and reject the courts' decision. In Darfur, customary law operates in a war setting in which some of the tribal sheikhs have been either coopted by the regime or recruited by the rebels. These courts do not play the reconciliatory role they traditionally did, but rather take sides in an on-going war. There are nonetheless cases in the customary law system where rape victims typically are compensated in either money or cattle. There are also cases where sheikhs help rape victims to report to the police and to access medical treatment. A new development is that there are now female sheikhs. Negative aspects of customary law practices are noted in a context with widespread violence, including sexual violence. There are instances where sheikhs encourage and facilitate child marriages as a means of protection.

Despite increasing international attention to sexual violence in armed conflict, rape is used on a large scale in most wars primarily against women. Rape has become a common weapon of war in Sudan affecting women of diverse ethnic and religious background s, particularly in Darfur. Acts of rape pose particular challenges to human rights accountability in countries ruled by Islamic law (Sharia). According to the Islamic penal law in Sudan the punishment for unlawful sexual intercourse is 100 lashes if the o ffender is not married (fornication) and stoning to death if the offender is married (adultery). Zina (adultery) is not differentiated from rape in the existing legislation. The law on Zina is thus a legal obstacle for rape victims in the northern part of the country, because if rape is not established by the courts the victim can face the death penalty. The excessive use of rape as a tool of war in Sudan makes this study particularly important. The project seeks to explore the intersections between gende r, violence and legal orders within the context of a post-war northern Sudan. The questions which this project seeks to answer are: How and why do changes in the operation of the formal legal system reflect shifting gender relations of power and interpret ations of Islamic law in a post-colonial and emergent post-conflict society? And how do informal and local mechanisms of justice reflect, inform, accommodate, resist, and reject shifting gender relations of power and the interpretations of Islamic law in northern Sudan? The project aims to map out both formal and informal legal mechanisms dealing with cases of rape/Zina as well as Sudanese women?s bargaining strategies in and outside of the courts to change these mechanisms. The project findings will cont ribute to the scant research on rape/Zina issues in Sudan and provide groundbreaking and necessary background information to Sudanese and international women?s activists.

Funding scheme:

NORGLOBAL-Norge - Global partner