Pregnancy as a way to prove adultery

This article illustrates how the legislature has used the fundamental Islamic jurisprudence as a basis to criminalize women’s acts especially in criminalizing sexuality. The article also aims to raise the awareness of lawyers who defend women rights and freedom of religion about the ideal legal ways to resist these discriminative laws. In this article, a lawyer will find the objective pleas who can rely on them in his work and the procedural issues he can follow to proceed in the case.

Introduction

A number of controversial points arise when talking about religion as a basis for enacting a particular legislation, and these controversial points begin by giving precedence to one religion over another, or imposing a certain religion on other people who do not embrace it, or embrace it but have another understanding of the rulings of this religion, and this matter is evident in the multiplicity of religious communities and contrast in their views on applying the teachings of religion.

In Sudan, laws were enacted on the basis of Islamic sharia law as seen by the authors of these laws, namely the Muslim Brotherhood, and one of the fundamentalist Salafi groups that adopt the principle of literal application of Islamic law as stated in the books of Sunni Islamic jurisprudence. The Penal Code of 1991 includes six crimes that are called hudūd (boundary crimes), namely: riddah (apostasy), sariqah (theft), ḥarābah (unlawful warfare and highway armed robbery), zina (adultery), qazf (false accusation of adultery), and shurb alkhamr (intoxication). These crimes are punishable by very harsh and inhumane penalties, which respectively are: death penalty, death penalty and crucifixion, stoning to death, amputation of limbs (a hand and a foot), and flogging. Article (5) of the Penal Code stipulates that: “the provisions of this act shall apply to any offence committed partly or wholly in the Sudan”. According to this text, the legislator has adopted the objective criterion in applying the law instead of the personal standard, meaning that the penalties for border crimes apply to every person regardless of their religion, sect, or personal understanding of religion if this understanding is different from what was adopted in the provisions of the law, with the exception of shurb alkhamr (intoxication) penalty which applies to Muslims only.

In this article, we will discuss one method of proving these boundary crimes (hudūd), which is (pregnancy) as a method of proving the crime of (adultery). Despite the criminalization of adultery and considering it (a boundary crime) in itself is a violation of the rights of non-Muslims or the rights of Muslims who do not see it as a boundary crime, we will explore the adoption of pregnancy as a means for proving the crime of adultery and the consequent violation of religious and personal freedoms.

The criminalization of sex in modern Sudanese legislations was closely linked to the dogmatic patriarchal mentality.  The first steps to criminalize sex for unmarried people began in a number of old laws but were manifested in their worst form in 1983 in the Sudan Penal Code of 1983.

Following the assumption of power by the Islamic Front in 1989, the Sudanese regime promulgated the Criminal Code of 1991, which was in its essence another copy of the Penal Code of 1983. The Penal Code of 1989 was codified by the addition of executive mechanisms and state Public Order legislations, under which a package of vague laws was promulgated. These laws concentrated on criminalizing the personal conduct of citizens such as the work of women at certain times and the dancing of women in front of men.

Step 1: Legal analysis

Anyone familiar with modern Sudanese legislation on the criminalization of sexuality clearly and unambiguously notices the manifestations of the closed patriarchal mentality in the rules established by the legislator to proof the crime of adultery, which directly aims to criminalize women without men.  Article (62) of the Evidence Law of 1994 stipulated four ways to prove the crime of adultery, namely: 1. confession, 2. the testimony of four just men, 3. pregnancy of an unmarried woman if free of suspicion, and 4. the wife's refusal to take an oath denying adultery after her husband has taken an oath accusing her of adultery.

We clearly notice that the four means of proof virtually deny women the right to defend themselves, and that two of the four means are related to women without men, namely pregnancy and the wife's refusal to take an oath denying adultery after her husband has taken an oath accusing her of adultery. As for pregnancy, it is the easiest means to tighten the bond on women, and the taking of an oath accusing wives of adultery (li’aan) manifests the absolute power of men and a weapon which could be brandished by them whenever they want, whether to claim adultery or deny descent.  By adopting pregnancy and the taking of an oath accusing wives of adultery (li’aan) as means of proving adultery, the Sudanese legislator clearly demonstrates the ideological tendencies that essentially sought to put women under the guardianship of men, so that they were forbidden to leave the house without the permission of their guardian, if not married, or her husband's permission if married. Even this permission, after obtaining it, remains conditional on the accompanying mahram (a male unmarriageable companion, like brother, father, etc).

However, despite the tightening of the noose on women by the legislator, the package of the Sudanese legislations has failed in practice, as they did not succeed in limiting the movement of women or their presence in public life. Women in the Sudan work in the fields and the market and occupy jobs of various degrees, and have the right to travel outside the Sudan without a mahram. The failure that accompanied these legislations is due to many logical reasons. First, these legislations have nothing to do with the realities of life and the developments or requirements of daily life. Women in Sudan have already taken advanced steps in the field of rights, and it has become difficult to put them in a template similar to the culture of societies that lived in a historical era which is far removed from our present reality.

From this point of view, it is evident that the Sudanese legislator erroneously adopts pregnancy as a means of proving adultery. This problem can be envisaged if a woman travels to a country that does not stipulate men’s guardianship on women as a condition for the validity of marriage, such as Tunisia, Egypt and others, or a country that does not make religion a reason to deny a woman's freewill to choose her spouse.

The most obvious example of this incident is the case of the Government of Sudan v. Maryam Yahya Ibrahim and Daniel Wani Bisenso, where Ms. Maryam was brought to trial on charges of violating Article 126 of the Criminal Code of 1991 (apostasy) and Article 146 (adultery). The Court of First Instance convicted her of committing the crime of adultery because she was pregnant with a marriage which is not recognized by law, in accordance with the provisions of Article 145 (3), which reads as follows: “a marriage which is agreed upon by consensus as invalid shall not be deemed a legitimate bond”. This provision was overturned at various stages for various reasons, but it remains an example that pregnancy is a reason for convicting a woman for adultery, although she insisted that she had been married properly.

The problem of adopting pregnancy as a means of proving adultery emerges from another perspective, namely: in cases where women are displaced to cities by natural disasters, wars and famines, as well as economic conditions that force husbands to migrate to the unknown in search of livelihood, leaving behind pregnant wives or children. The same applies to migrant and refugee women from neighboring countries because of the same circumstances. This problem was clearly demonstrated in the case of the Ethiopian girl who was gang-raped in 2014, and this incident was published on social media (Whatsapp and Facebook). During the trial, it was discovered that she had become pregnant several months before the gang rape. This led the prosecutor to open a separate criminal case against her because she was pregnant without marriage, although she argued that she was married in Ethiopia and came to Sudan to escape war and deteriorating economic conditions. Although the Code of Criminal Procedure of 1991 provided for the conduct of the trial, which should begin with the case of the accusation and then the defense (Article 136), and although Article 141 (2) of the Code states that the criminal case must be removed if the indictment does not provide sufficient evidence, Article (62) of the Law of Evidence of 1994 overturns the scene so that the accusation only needed to prove the fact of pregnancy, so that the heaviest burden was placed on the accused to prove the fact of her marriage to her husband, whose place of residence was unknown, knowing that marriage in the Sudanese countryside and some other African countries does not have official documents issued by the state.

The principle of evolution requires that subsequent legislation be better than before, but the Evidence Act, which was passed three years after the promulgation of the Code of Criminal Procedure, moved a step backward when Imam Malik's opinion of pregnancy was considered evidence of adultery, placing the burden of (dis)proofing adultery solely on women. 

Islamic traditions, at various historical stages, have provided numerous outlets to avoid criminalizing women for fear of being trapped in grievances and complicating sexuality issues. For instance, Ibn Hazm insists that there should be a distinction between whether a couple are strangers or known: if they are strangers or unknown to the society, there is nothing on them and they should not be faulted even if there is proof on intercourse, and they are not required to provide evidence of marriage. However, Imam Mālik conditions proofing marriage; and the Sudanese lawmakers have colluded in choosing the most stringent and paradoxical texts which are far removed from the complexities of reality. In conclusion, the Sudanese legislator, when dealing with the criminalization of sexuality in the Sudanese legislation, did not take into account the complexities of the Sudanese reality, which impose scenarios that did not occur to the traditional jurists who lived in completely different historical and cultural contexts. It was clear to many actors that the Sudanese legal system obfuscated the problem. For example, the Honorable Judge Abdurrahman Sharfi, the former Judge of the Supreme Court and later President of the Constitutional Court, proposed to the lawmakers to reverse the rule of proof of adultery by the wife's refusal to take an oath denying adultery and pregnancy, when considering the case of Government of Sudan against K.F.E. (death sentence) No. 60/2006. What instigated him to appeal to the lawmakers to revise the rule were the practical problems and complications resulting from the application of the law.

The issue of the criminalization of sexuality as found in the Sudanese laws depends on the fact that Islamic jurisprudence recorded during the period of hadiths documentation and ijtihād (mental effort and reasoning made by Muslim jurists to resolve a legal question) is the ultimate example that embodies Islam, without taking into account the great contrast between the objective historical, social, economic and cultural circumstances in which this jurisprudence was produced, and the objective circumstances of the Sudanese society at the time of issuance of these laws.  This dogmatic devotion has led to a significant imbalance in Sudanese legislation and its alienation from society and its issues and its effectiveness in establishing justice.  These laws put women and the Sudanese society in contradiction between the structure of the modern state and its international obligations and the steady development of women and their roles in society on one hand, and the laws that call for flogging and stoning to death on the other hand, merely because the legislator has adopted criteria such as pregnancy to prove adultery.

Step 2. Interviewing the victim and collecting primary data

Charging a person of adultery in our community has a negative psychological effect on the victim, besides the intervention of personal affairs of the victim. So, the lawyer when meets the victim at the police custody or after her release on bail, shall be care while taking the personal bio data of the victim and the facts of the case. Also, it is important to ask about the witnesses who have attended the arrest by police, their names and addresses.

The lawyer has to investigate about any allegation of sexual harassment by the police, because harassment is a common practice in this type of cases, and if it happened to be the lawyer has report this immediately.

Step 3. Intervening as representative of the victim

According to article () of Advocacy Act 19831, 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.

To defend women in this type of cases, several human rights issues can be raised and included in the Constitutional Document or international human rights instruments ratified by Sudan. Among these issues are the following:

Adopting pregnancy as a means of proving adultery contains clear discrimination against women on the basis of their gender, and that is in violation of the principle of non-discrimination enshrined in the international covenants and also included in the Constitutional Document of Sudan.

Trial procedures in such type of cases reverses the proof equation so that the mere pregnancy becomes a cause for obliging the woman to provide evidence to prove the fact of her marriage, even though the basic principle in Criminal Procedures Law and Evidence Law in criminal cases is that the accusation proves that the woman is not married through conclusive evidence, and in case it fails to it removes the criminal case. The conduct of procedures and evidentiary rules in this manner is a grave violation of the principle of a fair trial stipulated in the Constitutional Document and the International Covenant on Civil and Political Rights.

We should note that challenging pregnancy as a means of proving adultery must not distract us from the basic principle of combating the criminalization of sexuality based on religion and the discrimination such an issue brings against religions and other sects of the same religion. What we have provided in this article is what may be required by the nature of the procedures in the court on the one hand, and on the other hand the discrimination that they entail can be explained and used in the defense case to oppose the enforcement of the provisions of a particular religion by the force of law.

These points can be raised before the ordinary courts of various degrees. They can also be raised before the Constitutional Court, accompanied by a petition declaring that these texts are unconstitutional because they violate the Constitutional Document and international human rights covenants which are ratified by Sudan.

Step 4. Appealing decisions affecting the interests of the victim

If the Court of first instant convicted the accused woman under article 146 of the Criminal Act and sentenced her to flogging or stoning, the lawyer shall request verbally the suspension of sentence immediately according to article () of the Criminal Procedures Act2, and then the lawyer has to appeal this decision to Court of Appeal within 15 day from the date of decision according to article () of the Civil Procedures Act of 19833. 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 the Review Circuit at the Supreme Court.

Finally, after the exhaustion of these stages of litigation, the lawyer shall submit a constitutional action before the Constitutional Court claiming the Court to declare unconstitutionality of articles 62 of the Evidence Act 1994 and article 146 of the Criminal Act 1991 and to declare the accused innocent.