Criminalization of Sex in the Criminal Law
- Adultery in the current law
- Step 1. Interviewing the victim and collecting primary data
- Step 2. Intervening as representative of the victim
- Step 3. Legal procedures to be followed in this type of case
- Step 4. Appealing decisions affecting the interests of the victim
This article raises the issue of the crime of adultery [zina] in Sudan which is based primarily on the Islamic sharia law and therefore necessarily includes discrimination against non-Muslims because of the imposition of the teachings of Islam on them without their consent. It also includes discrimination against Muslims who have a different view on the issue of applying a specific understanding of the Islamic sharia law and imposing it on all.
In either case, the reason for applying the provisions of honor crimes in the Sudanese Criminal Law of 1991 is a significant violation of the principles of justice stipulated in the successive constitutions of Sudan and human rights instruments ratified by Sudan. These violations will be explained in this article.
This article also aims to assist human rights lawyers to refute the severe corporal punishments such as flogging in public place and death penalty by stoning which are provided for as punishment of adultery under the Criminal Act. The article also, illustrates the objective pleas with which lawyers can rely on while defending victims.
Extramarital sexual relations were not criminalized by law until 1983. The first criminal law was issued in Sudan in the 1899, which was put in place by the colonizers, then another law was issued in 1925 and another in 1974. Extramarital sexual relations were not criminalized under these laws, except in two cases: the case of coercion and if committed by the wife during the marriage. In the latter instance, the case is initiated by the other partner and continues at the will of the other partner, and the state was never a party to the criminal case at any stage. Every society in Sudan has its own mechanism by which it addresses the problems that occur because of this relationship without the state’s interference. These societies still use the same mechanisms in tackling any problem that arises because of the sexual relationship whenever this problem is far from the view of the state and its judicial organs that do not recognize the idiosyncrasy of these societies or their means to solve the problem. Sudanese societies have remained stable for a long period of time, either by tolerance or indulgence over this relationship, or rejecting it, and hence addressing the consequences of its occurrence within the particular community. This remained the case until 1983, when ex-President Jaafar Muhammad Numeiri announced the implementation of the Islamic sharia law, as a committee consisting of only three people worked on drafting the Islamic Sharia laws, which later became known as the Laws of September. These laws were inadequately formulated and without taking into consideration what the Sudanese society had established, socially and economically, for a long period of time. The implementation of these laws constituted a major shock in the Sudanese society due to severe penalties such as death penalty, flogging, amputation and cross-amputation that were applied to the Sudanese people in a way they had not been familiar with before. Under the Sudan Penal Code, the Completed Justice Courts applied the crime of attempted adultery to a large number of people in a distorted and horrific manner; This law unleashed the judges of criminal courts, through the text of Article (458) to apply any punishment, even if it was not stipulated in the law, in case adultery has not been proved. This law continued until 1991, when the legislator passed the Criminal Law of 1991, which is still in effect.
Adultery in the current law
The legislator in this law tried to address the errors that occurred in the Sudan Penal Code of 1983, but it did not differ much from its predecessor, as it also makes the state a litigant in the criminal lawsuit filed for committing the crime of adultery.
It also introduced vague articles in their formulation and adopted vague criteria in determining whether or not a crime occurred, for example Articles 151 (outrageous acts) and 152 (obscene acts). He also introduced a very dangerous article that violates all the newly established constitutional and legal principles, as it punishes a crime that is expected to occur. Article 154 stipulates that whoever is found in a place of prostitution and is likely to engage in sexual acts or earn from practicing it shall be deemed to have committed the crime of practicing prostitution, and shall be punished with flogging not exceeding one hundred lashes or imprisonment for a period not exceeding three years. The second paragraph of the article define the place of prostitution, with following: (a place of prostitution means any place prepared for the meeting of men or women or men and women who do not have marital or kinship relations and in circumstances in which sexual practices are likely to occur). In the sense that whoever reports the place of prostitution, whether a policeman or a Muhtasib, makes his only evaluation to the circumstances in which sexual practices are likely to occur, and then the matter is then the decision is left to the judge, who also assesses whether the facts presented before him are likely to occur or not. The accused are punished for a crime that is only likely to occur.
The articles provided in Part XV of the Sudan Penal Code of 1991 titled “Offences against Honour, Reputation and Public Morals”, including Article 145 which is the subject of this of the article constitute a cause for violating the sanctity and privacy of people and defaming them, and damaging their reputations and honor under the pretext of applying the provisions of the Islamic sharia law.
The law did not stipulate special procedures for charging a crime. Rather, the second table attached to the Criminal Procedure Law of 1991 places the crime of adultery in the list of crimes of public right, in which the perpetrators may be arrested by the police without an arrest warrant, which makes the state a party to the dispute presented to the court, so that the Public Prosecution represents the prosecutor and the two persons to the criminal sexual activity as the defendants. This matter opened the door wide for the police and the Prosecution to pursue people in a manner that destroys social cohesion in society due to the seriousness of the charge of the crime of adultery, which is not limited to the person arrested, but its impact extends beyond his family and the community in which he lives. The Code of Criminal Procedure does not include any provision for the crime of adultery, but it rather considers it as an ordinary crime. Because of this legislative shortcomings, the police have exercised their duty to prevent the crime of adultery using the same police methods used to fight the rest of the crimes. In many cases they have even climbed the walls of houses and broken into offices to arrest people suspected of committing zina (adultery).
Step 1. Interviewing the victim and collecting primary data
The so called crime of adultery is a crime of high sensitivity and the arrest of the victims by police and sending them to public order court has very negative effects on the victims and their families; therefore, the lawyer must exercise caution and give priority to the confidentiality and keep privacy of the victims and their families, and try to give priority to desire of the victims and see if they want to tell their family members about the case or not.
When the lawyer meets the victims, s/he has to ask the one about his/ her full name, religion, job, address, the date of arrest and any other information about the case. Then the lawyer has to give the victims enough time to talk about the facts of the case and arrest, as it is very important to understand their opinion. It is also important to know if they were threatened or harassed by police and the lawyer has to report any threat or harassment.
Step 2. Intervening as representative of the victim
According to Advocacy Act of 1983, the licensed lawyer is considered a public attorney and has the right to represent clients without any need to show a power of attorney or any other document to the court.
When the lawyer appears on behalf of the accussed before the court of first instance, s/he shall use all legal and technical skills to refute the criminal case of adultery. Also in oral pleas or written arguments, s/he may cite some of the modern Sudanese judicial precedents supporting the law reform of in this regard. For example, there was a long lasting controversy in the Supreme Court in this regard in the case of the Government of Sudan vs. F.A.J. with the number SC/ Death Penalty/3/2008, published in the Judicial Provisions Journal’s issue of 2008. Its facts are that a man whose initials are A. M. Q had sex with a married woman whose initials are F. A. J. without her consent, and when she got pregnant, she told her family about what happened. After the criminal case was opened and tried, the trial court issued its verdict against F. A. J. under Article (146) of the Penal Code, and sentenced her to stoning to death. The second defendant was condemned under Article (151) of the Penal Code punishable by forty lashes a fine of four hundred pounds, and in the case of non-payment, imprisonment for a period of six months, and a fine of six hundred pounds for violating Article (183) of the Penal Code, and in the case of non-payment, imprisonment for a year in succession. When the judgment was appealed to the West Kordofan Court of Appeal, it upheld the conviction and sentence of the female defendant F.A.J. and cancelled the conviction and sentence of the second male defendant, A. M. Q. and requested his immediate release. The papers were submitted to the Supreme Court for the purpose of endorsement or otherwise. The Supreme Court (Review Chamber) concluded after a long juristic controversy that:
- It is important to investigate how pregnancy occurred because pregnancy may occur without penetration, and penetration is a condition for proving the crime of adultery;
- As an absolute rule, pregnancy is a presumption of adultery against an unmarried woman, according to the provisions of the Penal Code, and is not a presumption of adultery against a married woman.
- If the hadd (boundary) in the crime of adultery is prevented on suspicion of coercion or anything like it, a ta'zīr (disciplinary) penalty shall not be imposed because there is no provision in the criminal law to impose a ta'zīr penalty if adultery is not proven.
The Supreme Court (Review Chamber) ordered the conviction and punishment to be canceled and the accused released immediately. However, this ruling was not issued unanimously by the judges of the Chamber, as there was a different opinion which believed that (“preventing hadd (boundary) for the existence of suspicion does not entail acquitting, as suspicion may be in place, deed or evidence, and then the crime will be less and the legislative text in Article (151) of the Sudan’s Penal Code helps with this.” The five judges of the Chamber agreed to cancel the conviction under Article 146 of the Criminal Code, but they disagreed on whether to automatically transfer changes to Article 151 of the Penal Code or not. The reasons for the opinion for not to transfer to Article 151 include the following: “There is no legislative text that justifies the issuance of a ta’zir penalty when the adultery crime falls. According to the text of Article (8) of the Penal Code, there is no responsibility lies on persons except those who are with second mind and who act voluntarily; therefore, the person who is forced to act is not considered perpetrator in violating the law, as there is no punishment – whether hadd (boundary) or ta’zir punishment – according to the text of Article 8.
Step 3. Legal procedures to be followed in this type of case
Certainly, each lawyer has his own way of defending his clients, but we recommend raising the following points as one of the effective defence strategic litigation;
- The texts on honour and reputation crimes discriminate against non-Muslims, and even Muslims themselves, because the legislator has adopted a certain understanding of religion and tried to impose it on others.
- Appeal against the unconstitutionality of methods used for proving the crime of zina (adultery), because (the methods) seriously discriminate against women, wrapping the crime ropes around their neck, while allowing the man to escape the punishment easily. The legislator has specified four ways to prove the crime of adultery, which are: confession, the testimony of four just witnesses, pregnancy without adoubt, and the wife’s abstinence to swear that she is innocent if her husband swears. The two methods of confession and the testimony of four just witnesses apply to both men and women, but pregnancy and the wife’s abstinence to swear that she is innocent if her husband swears apply to women only. Consequently, the law constitutes discrimination based on gender, which is inconsistent with human rights principles.
Article 2 of the Universal Declaration of Human Right reads as follows: Everyone is entitled to all the rights and freedoms set forth in this Declaration, distinction of any kind, such as race, color, sex, language, religion, political opinion or any other opinion, national or social origin, property, birth, or any other status. Article 2 of the International Covenant on Civil and Political Rights reads as follows: 1. Each State party to the present Covenant undertakes to respect the rights recognized therein, and to guarantee these rights to all individuals within its territory and within its jurisdiction, without any discrimination on the grounds of race, colour, sex, language, religion, or political or non-political opinion, or national or social origin, property, birth or other status.
The two punishments of flogging and stoning to death are very barbaric, inhumane and highly dangerous punishments. Because flogging is humiliating, and degrading to the human dignity. The penalty for stoning to death is the most severe of all, and these two penalties constitute a clear violation of the principles of the Constitution and the international human rights covenants ratified by Sudan.
Step 4. Appealing decisions affecting the interests of the victim
If the Court of first instant issued a decision affects the interests of the accused person, the lawyer has to appeal this decision to the Court of Appeal within 15 day from the date of decision according to article (184) of the Criminal Procedures Act 19912. If the Court of Appeal supported the decision of the Court of first instance, its decision should be appealed to the Supreme Court. And if the same happened at the Supreme Court, then the appeal should be submitted to the Review department at the Supreme Court.
Finally, after the exhaustion of these stages of litigation, the lawyer shall submit a constitutional action before the Constitutional Court demanding the Court to declare unconstitutionality of articles (145) and (146) of the Criminal Act of 1991based on the grounds mentioned above.