A Call to Repeal Iraq’s Rape-Marriage Law

By Madeline Jones

Rape-marriage laws allow a rapist to escape punishment if the victim consents to marriage.[1] There are currently twenty countries that have some form of a rape-marriage law, including Iraq.[2] In these twenty countries, valid laws may exonerate the perpetrator of a variety of crimes, such as kidnapping, rape and sexual assault of an adult, and/or statutory rape.[3] Likewise, forty-three countries currently do not criminalize marital rape, including Iraq.[4] Although the specifics of rape-marriage laws vary from country to country, the ultimate implication of such laws is that rapists will not be held accountable for their crimes.[5] Following the repeal of rape-marriage laws in Tunisia, Jordan, and Lebanon in 2017, Iraqi activists are calling for a similar change to Iraq’s rape-marriage law.[6] Iraq’s rape-marriage law must be abolished because it furthers gender discrimination against Iraqi women, perpetuates harmful rape myths, and fails to provide protection and justice to victims of sexual violence.

Article 398 of the Iraqi Penal Code sets forth the relevant language permitting a sexual offender to evade punishment through marriage to his victim. Article 398 states that:

If the offender mentioned in this Section (Rape, buggery, indecent assault) then lawfully marries the victim, any action becomes void and any investigation or other procedure is discontinued and, if a sentence has already been passed in respect of such action, then the sentence will be quashed. Legal proceedings will resume or the sentence will be reinstated, according to the circumstances if such marriage ends in divorce brought about by the husband without legal justification or in a divorce ordered by the court for wrongs committed by the husband or for his bad behaviour within 3 years following the cessation of the proceedings.[7]

Under Iraqi law, rape may be punishable by imprisonment of no more than fifteen years if the victim does not marry the offender.[8] Additionally, if the victim is a virgin at the time of the rape, the court may grant the victim compensation.[9] Iraqi law does not mention marital rape.[10]

Societal and cultural norms have continued the implementation and enforcement of rape-marriage legislation in many countries, including Iraq. Many cultures assign strict purity standards to unmarried women and girls, thus labeling rape victims as “umarriageable” under the assumption that the rape “spoiled” or “tainted” them.[11] Victims are pressured to marry their rapist out of concern for family reputation, shame from society, and the victim’s inability to find a husband following the rape.[12] Scholar Ruban Joe Toniyo summarized a family’s concern for their daughter’s purity, writing that “[a] daughter was considered to be property of the father. Rape damages the property, so the rapist must either pay compensation for it or accept the damaged goods. Rapists usually marry the victim to avoid paying the compensation.”[13] Thus, women in countries that uphold rape-marriage laws, like Iraq, do not have rights and autonomy over their own bodies. Moreover, after a man and woman are married, the conduct that happens within their marriage is considered private, meaning that intervention is unlikely to occur in the instance of further abuse.[14]

The abolition of rape-marriage laws is necessary to promote gender equality in Iraq. However, repealing rape-marriage laws is not enough; rape culture and discriminatory gender ideals must be addressed and dismantled. Courtesy Soroush Karimi, Upsplash.

Rape-marriage laws have several detrimental consequences. First, these laws prevent victims from receiving justice. In fact, rape-marriage laws put victims in a position to be further victimized by their rapist.[15] Toniyo argues that rape-marriage laws punish the victim instead of the offender.[16] Second, rape-marriage laws reflect a view that the country does not consider rape to be a serious crime.[17] Permitting a rapist to evade punishment through marriage has the result of downplaying the harm caused to a victim and to society by the rape and rewarding the rapist for his crime.[18] Additionally, in a country where rape-marriage legislation is still upheld, women and girls are deemed chattel to be marked down in value and traded away when they are violated.[19] In fact, rape-marriage laws may result in the informal allowance of child marriage in countries that otherwise outlaw the marriage of an adult to a child.[20] Lastly, these laws reflect and maintain cultural and social values which stigmatize and shame rape survivors rather than the rapist.[21] Cultural norms are key to upholding rape-marriage laws and, therefore, educating and raising awareness to the harm of rape-marriage laws in Iraq is essential to abolition.

In August 2020, the UN Office of the High Commissioner (OHCHR) Special Rappoteur on violence against women and girls, its causes and consequences asked for States to submit a questionnaire on the criminalization and prosecution of rape in their countries as part of a report on the condition of gender-based violence in each State.[22] The United Nations Assistance Mission for Iraq (UNAMI) Human Rights Office was provided with recommendations as part of the Thematic Report on Rape As A Grave And Systematic Human Rights Violation And Gender-Based Violence Against Women.[23] The report found that Iraqi traditions, norms, and customs have acted as obstacles to reporting and, thus, rape cases often go unspoken and unacknowledged.[24] First, the report stated that under the rape-marriage law, rapists are pardoned for their crimes through marriage.[25] Iraqi rape-marriage laws encourage men to rape women who reject their marriage proposals in order to force them into an unwanted marriage.[26] Additionally, the law results in familial pressure on the victim to marry the rapist in order to preserve family dignity and honor.[27] In fact, the report indicated that in some cases where the victim refused the marry the rapist, “the [family] would try to marry the victim to any suitor available or as a last resort put pressure on the victim to commit suicide or even kill her to preserve the honor of the family and prevent a scandal.”[28] Iraq’s rape-marriage law discriminates against and undervalues the lives of women in its country.

Moreover, Iraqi law awards the victim compensation if she was a virgin at the time she was raped. The report found that this focus on the victim’s virginity reinforces the notion that women and girls are valued higher and deemed “pure” if they are virgins.[29] To determine if the victim is a virgin, the victim must be questioned extensively about her own sexual history.[30] Moreover, proof of virginity may involve unethical medical practices such as hymen testing.[31] Legal provisions rewarding victims or providing dissimilar protection based on the victim’s virginity furthers the notion that a woman’s worth and respectability is dependent upon her sexual history.

Rape-marriage laws are a violation of international human rights law. International human rights law acknowledges that rape is a violation of human rights and is gender-based violence.[32] In fact, in some circumstances, rape may amount to torture, a war crime, a crime against humanity, or a genocidal act under international human rights law.[33] International human rights law forbids rape-marriage laws under all circumstances because rape-marriage laws amount to gender discrimination and preclude a country from reaching gender equality.[34] Furthermore, international human rights law protects a woman’s right to choose if and when she will marry. In 2017, the UN Committee on the Elimination of Violence against Women (CEDAW) recommended that States “repeal all legislation that enshrine, encourage, facilitate, justify or tolerate any form of gender-based violence against women.”[35] Furthermore, CEDAW recommended that States take action against rape culture that “make women responsible for their own safety and for the violence they suffer.”[36] Both recommendations incorporate Iraq’s rape-marriage law and the cultural attitudes that uphold the law.

The abolition of rape-marriage laws is necessary to promote gender equality in Iraq. However, repealing rape-marriage laws is not enough; rape culture and discriminatory gender ideals must be addressed and dismantled. If Iraq’s rape marriage law is repealed, the forced marriage of a victim to her rapist may continue unofficially through familial and social pressure upon the victim to not report and to marry her rapist to protect her and her family’s reputation. Thus, Iraq must take measures to address the culture that has stemmed from and upheld rape-marriage law.[37] Gender-based violence must be treated as a humanitarian crisis.

[1] Rape-marriage laws are also known as “marry-your-rapist” laws. This article will refer to laws allowing a rapist to evade punishment through marriage as “rape-marriage” laws. Rape-marriage laws stem from the French Napoleonic Code of 1810, which permitted a man to evade prosecution for kidnapping a girl or woman if he married her. Rothna Begum, Middle East on a Roll to Repeal ‘Marry the Rapist’ Laws, Human Rights Watch (Aug. 24, 2017), https://www.hrw.org/news/2017/08/24/middle-east-roll-repeal-marry-rapist-laws. These laws perpetuated into the practice of “bride abduction,” wherein a man kidnapped and raped a victim, and the victim was subsequently persuaded by her relatives and/or relatives of her rapist to consent to marriage by convincing her that she has been “tainted” by the rape. Maria Alejandra Gomez Duque, Towards a Legal Reform of Rape Laws Under International Human Rights Laws, 22 Geo. J. Gender & L. 487, 515 (2021).

[2] The continued horror of “marry-your-rapist” laws around the world, Freedom United (Apr. 15, 2021), https://www.freedomunited.org/news/the-continued-horror-of-marry-your-rapist-laws/.

[3] Begum, supra note 1.

[4] Id.

[5] Ava Dullard, The Reign of ‘Marry your Rapist’ Legislation, Monash L. Students’ Soc’y (July 30, 2021), https://www.monashlss.com/post/the-reign-of-marry-your-rapist-legislation.

[6] Heba Kanso, Will Iraq be next to abolish controversial ‘marry your rapist’ law?, Reuters (Mar. 29, 2018), https://www.reuters.com/article/us-iraq-law-rape/will-iraq-be-next-to-abolish-controversial-marry-your-rapist-law-idUSKBN1H5318.

[7] Iraqi Penal Code art. 398.

[8] Iraqi Penal Code art. 393.

[9] Id.

[10] Submissions to the UN SRVAW Thematic Report on Rape As A Grave and Systematic Human Rights Violation and Gender-Based Violence Against Women, UNAMI Hum. Rts. Off. 1, 6 (2020).

[11] Begum, supra note 1.

[12] Campaigners Demand End to ‘Marry Your Rapist’ Law in Iraq, PR Newswire (May 3, 2018), https://www.prnewswire.com/news-releases/campaigners-demand-end-to-marry-your-rapist-law-in-iraq-300641871.html; Kanso, supra note 6.

[13] Ruban Joe Toniyo, Marry-Your-Rapist Law: An Exquisite Solution to Rape, 27 Supremo Amicus 395, 396 (Dec. 2021).

[14] Campaigners Demand End to ‘Marry Your Rapist’ Law in Iraq, supra note 12.

[15] Repealing ‘Marry Your Rapist’ Laws, Equal. Now, https://www.equalitynow.org/repealing_marry_your_rapist_laws (last visited Jan. 16, 2023).

[16] Toniyo, supra note 13 at 395.

[17] Repealing ‘Marry Your Rapist’ Laws, supra note 15.

[18] Kanso, supra note 6.

[19] Repealing ‘Marry Your Rapist’ Laws, supra note 15.

[20] Begum, supra note 1.

[21] Repealing ‘Marry Your Rapist’ Laws, supra note 15.

[22] Special Rapporteur on violence against women and girls, its causes and consequences, Rape as a grave and systemic human rights violation and gender-based violence against women, UN OHCHR, https://www.ohchr.org/en/calls-for-input/rape-grave-and-systematic-human-rights-violation-and-gender-based-violence-against (last updated Aug. 5, 2020).

[23] Submissions to the UN SRVAW Thematic Report on Rape As A Grave and Systematic Human Rights Violation and Gender-Based Violence Against Women, supra note 10.

[24] Id. at 14.

[25] Id. at 3.

[26] Id.

[27] Id.

[28] Id. at 14.

[29] Id. at 2.

[30] Id.

[31] Id.

[32] Special Rapporteur, supra note 22.

[33] Id.

[34] Iraq’s Criminal Laws Preclude Justice for Women and Girls, Global Justice Center 1, 4 (Mar. 2018), https://globaljusticecenter.net/files/IraqiLawAnalysis.4.6.2018.pdf.

[35] End in sight for “marry your rapist” laws, UN OHCHR (Aug. 25, 2017), https://www.ohchr.org/en/stories/2017/08/end-sight-marry-your-rapist-laws.