Headscarves and Hymens

by Mona Eltahawy

  Criminalizing marital rape “could lead to the imprisonment of the man,” Sheikh Ahmad al-Kurdi, a judge in the Sunni religious court, told CNN, “where in reality he is exercising the least of his marital rights.”

  In Lebanon, domestic violence cases are typically heard in the religious courts, the judicial authorities that preside over each of the country’s eighteen sects and faith communities under a set of laws known as “personal status laws,” which govern divorce, child custody, and other domestic issues. The priority of those courts is the preservation of the family, not the protection of girls and women from violence.

  Dar al-Fatwa, Lebanon’s top Sunni authority, and the Higher Shi’a Islamic Council both said they opposed the draft anti–domestic abuse bill on the basis that they believed Islamic law sufficiently protected the status of women and so should remain the basis for governing legal issues related to Muslim families. According to Al Jazeera English, Dar al-Fatwa condemned the draft law in a 2011 statement for “disintegrating Muslim families in Lebanon and preventing children from being raised according to Islam, in addition to causing a conflict of competences between the concerned civil and Islamic courts.”

  Clearly, in Lebanon, a country of Muslims and Christians, conservative lawmakers agreed to the notion that religious authority must have the last word on the domestic sphere. The veneer of liberal social attitudes in Lebanon is deceptive. All eighteen of Lebanon’s personal status laws discriminate against women, in effect trapping them in violent marriages, according to Rothna Begum, women’s rights researcher for the Middle East and North Africa region at Human Rights Watch.

  In the first conviction since Lebanon’s parliament passed the draft law, a man was jailed for nine months and fined 20 million Lebanese pounds ($13,258) for a brutal assault on his wife. Nonetheless, the wife, who said her husband beat her every week during their marriage of eighteen months, had to seek a divorce through religious courts, a challenge that a women’s rights activist called a “long battle.”

  Why should a woman who has been beaten weekly and whose husband is finally held accountable still struggle to free herself? Let’s take a closer look at the patriarch’s laws, or what are known as personal status laws, the minefield of misogyny and injustice that governs marriage, divorce, child custody, and inheritance in the Muslim world. The laws that govern family life are decided by the interpretation of your religion, but you can be sure of one thing: they guarantee that men and their interests are always paramount.

  The legal codes of most countries in the region have been “modernized” in the last century, either through laws imposed by colonial rule or through a move away from religiously based legislation and toward secular laws. For example, even when a country’s constitution states—as many in the region do—that Sharia is one of the sources from which law is drawn, none of them, with the exception of Saudi Arabia’s, allow for the amputation of hands as a punishment for theft, although Sharia stipulates such a punishment.

  Why is it acceptable to move beyond Sharia when it comes to theft but impossible to do so when it comes to women’s rights in the family? The simple answer: personal status laws are the area where religious and conservative men shore up their control of women’s lives.

  Such tenacious insistence on keeping women bound by ancient codes is not specific to Islam. In predominantly Muslim countries, where several religions are practiced, everyone is subject to the same laws except in the case of family laws, which are dictated by one’s religion or sect. In Egypt, for example, Christians are subject to canonical law when it comes to marriage and divorce, child custody, and so on, while Muslims must follow Egypt’s interpretation of Islam. In the absence of a civil law governing such family issues, what ends up happening is that women and children are subject to ideas that were first formulated centuries ago. A woman’s religion or sect might be different, but her subjugation to laws that favor men is the same.

  Take the example of the United Arab Emirates, as described by the International Federation for Human Rights (FIDH):

  Prior to the adoption of the Personal Status Code in 2005, the areas of personal status and family were regulated by Sharia law. The new Personal Status Code contains numerous discriminatory provisions. For example, under Article 39 of the Personal Status Code, a woman’s male guardian and her prospective husband are the parties to the marital contract (the validity of the contract is contingent upon the woman’s approval and signature). Under Article 56, wives are required to obey their husbands, take care of the house, and raise the children.

  Concerning divorce, women can only request a divorce from the courts under the Khul procedure, under Article 110 of the Personal Status Code. Under this procedure, she must renounce all her financial rights under the marriage contract, most notably, her dowry, or mahr.

  Concerning custody of children, women are only considered to be the physical guardians. They have the right to custody up to the age of thirteen for girls and age ten for boys, after which custody can be reassessed by the family courts. If a woman chooses to remarry, she automatically forfeits her rights to custody of her children from her previous marriage. Polygamy is authorized [for men].

  The Personal Status Code also ensures that women inherit half the amount that men inherit, and makes it much easier for a man to obtain a divorce—according to the FIDH report, women who leave their husbands can be required by law to return. This, combined with age-related child custody, creates an emotional terrorism that keeps wives in abusive marriages.

  Depending on which Islamic school of thought a country follows, personal status laws stipulate that a woman needs the permission of a male guardian to marry, even if she is a widow or divorcée. (The Maliki school of Islamic jurisprudence, followed by the UAE, makes such a stipulation.) Two recent cases documented by the UAE-based newspaper The National highlight the infantilization of women that this law engenders.

  A fifty-one-year-old Emirati divorcée told The National that she was considering traveling to another country rather than taking her twenty-six-year-old son to court to obtain his approval of her remarriage. The second case was even more surreal—that of a forty-year-old whose eleven-year-old son would become the arbiter of her remarriage once he reached the age of puberty. “This law is a disgrace. I’m a grown woman and should be allowed to make my own decisions,” she said.

  Nonetheless, two male lawyers that the newspaper interviewed insisted that the guardianship system was in the best interest of the women. One, Dr. Shakir Al Marzouqi, a legal consultant in the UAE, actually went so far as to say “men know better”: “In the bigger picture it is the men who know more and a woman’s father, brother, or son cares for her interest more than her own self.”

  Fortunately, a female lawyer made clear to The National just how open to abuse the guardianship system is. Aisha al-Tenajii, a legal consultant, told The National that the legal office where she worked had been involved in numerous cases of legal guardians preventing a woman from getting married for questionable reasons, including because the prospective bridegroom was from a “family considered unequal in social status” or was not a UAE national.

  But even with this knowledge, al-Tenajii would not say that the guardianship system should be scrapped altogether as unfair and infantilizing to women. Rather, she suggested that after a certain age, a woman should be allowed to marry without the approval of a guardian: “We are not asking for it to be removed. After all, there should be some regulation, but not like in the case of the 51-year-old woman. After the age of 25, for example, a woman who was previously married should not require a guardian to remarry.”

  We are so socialized in our oppression that even in the face of injustice, we know to stay within the lines. Instead of a bold demand for the removal of a system that keeps women forever at the whim of male guardians, even their adolescent sons, women meekly suggest reform.

  One law in the UAE takes this absurdity further, by making women the property not only of their sons, b
ut of their babies! According to a law passed in 2014, a mother’s breasts are her child’s property. A clause that is part of the child’s rights laws makes it mandatory for a mother to breastfeed her child for two years, opening the way for husbands to sue their wives if they don’t breastfeed for the stipulated time. This in a country that gives mothers just one month of maternity leave and where existing regulations ordering offices to provide nurseries so that working mothers can breastfeed have never been enforced.

  A member—male, of course—of the UAE’s Federal National Council, which passed the law, said that it aimed to make breastfeeding “a duty and not an option” for able mothers. The council suggested that wet-nurses be provided for children whose mothers had died or could not feed them, but it did not say who should pay for these wet-nurses.

  With a few exceptions, these provisions are very similar to their counterparts in other countries in the region. Put crudely, marriage ensures that a woman, after a childhood and youth of obedience to her father, shifts that obedience to her husband, for whom she becomes a baby maker and wet-nurse to his children (for the children essentially belong to the father).

  Women’s rights groups in several countries have fought for years to mitigate the discrimination of personal status laws. After a decades-long battle by feminists in Egypt, parliament in 2000 ratified the “Khul procedure,” in which a woman who wants a divorce must renounce her financial rights under the marriage contract. But in Egypt today it is apparent that only affluent women can afford to renounce such rights to obtain a divorce. Poor women have little recourse to leave abusive marriages, and yet the personal status laws that allow such injustices to continue are treated as if they were a religious revelation in and of themselves, untouchable and unrelated to the lives of the women they harm.

  When the role and the use of religion in the continued oppression and abuse of girls and women is starkly presented, I often hear from my fellow Muslims: “But this isn’t the fault of Islam. It is the fault of Muslims who abuse religion.” Then they usually launch into how perfect everything would be if we practiced “the proper Islam.” Never mind that the clerics in Lebanon who opposed the anti–domestic violence bill fully believed they were advocating for a “proper Islam,” and had the weight of the establishment on their side. We are in denial if we do not honestly reckon with the role of religion in maintaining the patriarch’s rule at home, including how the men of religion help him to uphold his rule. The “proper Islam” defense serves only the rule of the patriarch. Our best chance for pushing back against such idealized notions is to offer examples from the lived realities of girls and women. Those who insist on holding on to the ideal will remind us over and over again that the Prophet’s last sermon emphasized love and respect for women. But has that teaching made its way into personal status laws?

  I learned the importance of the term lived realities in Kuala Lumpur, Malaysia, at the launch of Musawah (the Arabic word for “equality”), a global movement for equality and justice in the Muslim family. Bringing together activists and scholars of Islam who promote a progressive interpretation of the religion, Musawah focuses much of its work on personal status laws. The scholars who belong to Musawah (women and men) have long advocated a progressive reinterpretation of Islam to mitigate the injustices I list in this chapter.

  I am most interested in the female scholars, inside and outside Musawah, who have struggled for years to wrest the power of interpretation from men. For example, I learned of a South African scholar—who does not work with Musawah but whose religious circle focuses on challenging religiously fueled misogyny—whose students have crossed out from their copies of the Qur’an a verse that has been interpreted to allow men to beat “disobedient” wives. For many, this alteration of a sacred text is tantamount to blasphemy. In another case, an Iranian American woman has issued the first English translation of the Qur’an by a woman and has handled that verse by providing what she believes are alternative meanings to the word that is taken to mean “to beat.” Others say that regardless of the original meaning of the verse, the fact that Muhammad never beat a woman should be taken as an example, and the concepts of justice and mercy articulated in the Qur’an should take precedence over one verse allowing corporal punishment for “disobedient” wives.

  Amina Wadud, a mentor and personal hero of mine, puts it simply when she asks, “God is just—do these interpretations uphold that spirit of justice?”

  I am tempted at times to say that any woman who chooses to get married in our part of the world, knowing the personal status laws that work against her well-being and that of her future daughters, must be insane or a masochist. Yet that would be to forget that, for economic and social reasons, the choice to reject marriage is not available to most women. Whether it is for the economic support a husband provides or the ability to have socially sanctioned sex without risking the wrath of the god of virginity, marriage is not going anywhere. News articles have occasionally trumpeted an emerging class of young, hypereducated women who make more money than their male counterparts and who don’t “need” a husband for the reasons their mothers or grandmothers did, but they remain a minority, cushioned by privilege that is unavailable to most women in the region. It is a form of denial to act shocked that “even educated” women cave in to and perpetuate patriarchal values. Even worse, it negates the right of women who have not been fortunate enough to receive an education to demand a life that is free of the injustice of misogyny. Every woman in our region deserves equality and respect.

  To choose to rebel, to disobey, comes at a great cost (not least social) that not everybody is able to pay. To be ostracized by one’s family in a society that places so much emphasis on social ties is a terrible and dangerous thing. In our culture, marriage and motherhood are deified, raised up as the ultimate female experience. But for what? When a mother’s breasts are being regulated for the sake of the child, and yet the mother herself hardly has any safeguards to protect her, what is she but an incubator for offspring and breasts for their sustenance?

  She is also vagina on demand. Tunisia and Mauritania are the only countries in the region that have a law against marital rape, though these are rarely enforced due to loopholes that allow charges to be dropped if the victim withdraws her case.

  Attitudes toward rape across the Arab world are abysmal. The stigma (and often the law) is much harsher on the woman than on the rapist. Women often keep quiet rather than risk arousing blame or humiliation, or being raped again at a police station. In some cases, they risk being killed by a relative to rid the family of shame. Precise statistics are unavailable—in part because rape victims can themselves be prosecuted under zina, the area of Islamic law governing unlawful sexual intercourse. Victim services in most countries are provided by NGOs rather than the state, according to a 2010 report by the UN Committee on the Elimination of Discrimination against Women.

  In Libya, under the forty-two years of the Qaddafi regime, women accused of violating “moral codes” were locked up in “social rehabilitation” centers. The only way for women and girls to leave those centers was if a male relative took them into custody or if the women married. Human Rights Watch said most of those women went to the centers against their will, and those who went of their own volition did so because Libya had no shelters for survivors of violence.

  Other countries turn rape into wedlock by allowing rapists to escape conviction by marrying their victims. Some of the countries in the region had such legislation introduced during colonial times by their occupiers. An article in the Moroccan penal code was based on a similar measure in France, which was repealed in 1994. Morocco was a protectorate of France until 1956. Amina Filali and Amina Tamiri were two Moroccan teenagers (both sixteen, although some reports put Tamiri at twelve) forced to marry the men who’d raped them. Filali committed suicide in 2012; Tamiri, in 2013. In January 2014, after intensive lobbying by rights activists, Morocco amended the article in its penal code (Article 475) that allowe
d rapists of underage girls to avoid prosecution by marrying their victims.

  Rights groups welcomed the amendment but said that a complete overhaul of Morocco’s penal code was needed to ensure the protection of girls and women in the country, where (as in many countries across the region) rape is such a taboo that families hush it up or force survivors to marry, and where child marriage persists.

  I despise the word victim. I’ve never called myself a victim of sexual assault. I’m a survivor, and so is every girl and woman who survives the crime of sexual violation. But there is no word other than victim to describe Amina Filali and Amina Tamiri. How do you survive a marriage to your rapist? Trapped in a state of perpetual victimhood as the wife of your rapist, where is the chance to heal, to mourn, to grieve over what happened to you, to overcome and overpower the trauma, when your rapist is there with you every day? It does not bear thinking about. There is no survival. The two girls’ suicides underline that.

  Listen to Dalal, who was just sixteen when she was forced to marry her rapist. Dalal is from Jordan, where Article 308 of the penal code allows rapists to escape punishment if they marry their victims. She spoke to us in March 2014 for the BBC World Service radio documentary Women of the Arab Spring. In 2012 her assailant kidnapped and raped her and then held her against her will for five days. She escaped. A judge sentenced her rapist to twenty-three years for rape and armed kidnapping, and for drugging Dalal, but he told Dalal’s assailant that if he persuaded her to marry him, he could get out of the sentence. Dalal initially refused to marry him, but then gave in under pressure from her rapist’s parents and her own.

  “When I married him it was like he was raping me again because I didn’t want him. I didn’t want to get married, and he raped me and hit me and burnt me with cigarettes and his parents would encourage him to do these things,” she said.