For many years, Article 398 of the Iraqi Penal Code has caused widespread controversy because it leaves a way for perpetrators to go unpunished in certain circumstances.
Although the text of the article stipulating that the penalty for a rapist can be reduced if he marries his victim is not new, as it was last amended in 1987, it remains one of the texts to receive the most repeal calls. It is unfair to force the victim to experience rape again and again for the rest of her life by the same perpetrator.
Recently, this controversy resurfaced, coinciding with legal figures justifying the need to maintain the article as the “most appropriate solution” for the victim since marriage to her rapist is her only option in a conservative society, according to the Director of the Human Rights Unit at the Bar Association, Safaa Al-Lami.
While the lawyer's remarks were his personal opinion, it is evident that he is not the only one with this vision. The Supreme Judicial Council had a similar opinion in a response to a letter from the Iraqi Women Empowerment Department of the General Secretariat of the Iraqi Council of Ministers. The response said that “the offender, in this case, is not exempted from punishment, but a reduced sentence is imposed on him…The offender’s marriage to the victim is a solution to this issue, especially since the customs, traditions, and reality of Iraqi society views the woman (the victim) with suspicion even though she was the victim."
Regardless of the motives, the only explanation of these justifications is yielding to a shameful societal view of rape victims, in addition to doubling the torment of the victim, who suffered the rape crime itself and then was married off to her abuser, whose punishment was reduced.
In fact, this article can only be seen as a reward for the offender, even if that is not the intention of the Iraqi legislator. It is not acceptable or logical to prioritize some disgraceful social behaviors over the punishment and determent of the offender. Instead, this stigma must be confronted by doubling the punishment for the perpetrator and providing greater protection for the victim.
Supporters of the article invoke that the reduced sentence cannot be applied except when a valid marriage contract is concluded based on the mutual consent of the two parties. The Supreme Judicial Council stated in the same response referred to above: "Marrying the victim off to the offender does not take place except with her consent. She is not compelled to marry. If she refuses, the legal procedures against the offender will proceed until the final decision is issued by the competent court."
Once again, the interpretation fails to follow logic. Invoking the victim's consent when concluding the marriage contract with the offender lacks accuracy. What we have here is forced consent that comes under the pressure of social stigma that haunts the victim and makes her responsible, and the fear of societal ostracism. In many cases, consent is only formal when it comes to a juvenile victim.
Article 398 has already been applied in many cases. Several judicial decisions have been issued, including, but not limited to, the following decisions of the Court of Cassation in the Kurdistan Region:
- Decision 2007/198, which ordered reconsidering the ruling against the rapist of a girl under the age of 18, after he had been sentenced to 10 years in prison, because he married her.
- Decision 156/2007, which reduced the sentence against a rapist who married his victim.
Some Arab countries have had positive experiences canceling similar articles. The Jordanian legislator repealed Article 308 of the Penal Code in 2017, in an important victory for rape victims. The legislative authorities in Morocco did the same when they abolished Article 475 of the Penal Code in 2014.
It is not enough to demand the abolition of Article 398 to combat rape crimes and protect victims. Mechanisms should be activated and developed to facilitate filing rape crime complaints and provide comprehensive protection for victims. Many rape cases do not reach court, given the pressures that victims face from society. This leads to expediting marrying rape victims for fear of social stigma.
The Iraqi legislator should take a courageous and positive step that stands for rape victims and deny the perpetrator impunity. The legislator should prioritize deterring the perpetrators over some wrong social behaviors, rectify them, and remove the negative stigma suffered by the victims. Equally important, the state is expected to take appropriate measures to provide the psychological care required for rape victims, especially minors.