Article 227 bis of the Tunisian Criminal Code:
A person who inflicted the sexual act without violence to a female child under the age of fifteen (15) shall be sentenced by imprisonment for six years. The sentence is five years if the age of the victim is greater than fifteen and less than twenty years old.
The marriage of the culprit with the victim in both cases under this article shall interrupt prosecution or the effects of the conviction.¹
This article you just read legally allows a rapist to marry his victim in order to avoid prison.
If the article is carefully read, and with a little more knowledge of the Tunisian laws, it becomes clear how absurd, archaic and tragic this text is. Let’s approach the issue point by point.
The text does not expressly mention the legal notion of rape.
The word ‘rape‘ is never used. The word ‘rape’ is used in previous article 227, but is not defined. As a lawyer, I can tell you that it is no easy task qualifying a situation as a crime, if the crime itself is not properly defined by the law. The word is used in article 227 but it is an empty shell. Everything and nothing could be understood as rape, often nothing.
The notion of legally valid consent is not expressed.
The concept of consent is non-existent. The fact that the victim was not consenting does not seem to be relevant to the legislator.
Article 227 bis operates gender discrimination.
Article 227 bis applies to females only. To my knowledge, sexual assault can be experienced by both males and females. This article written to handle a sexual crime, that is not legally qualified, towards women only gives an idea on how the Tunisian legislator considers women as a weaker gender, creating discrimination between citizens. Reading the following article 228 in the criminal code makes the gender discrimination encompassed in article 227 bis more obvious. Article 228 is about sexual assault – this time the crime is named, qualified – and does not discriminate between genders. Also, the age frame is coinciding with the legal majority, making a difference between sexual assault on minors (below 18) and sexual assault on adults (above 18). What is the point of article 227 bis then, if article 228 is clearer, more complete and applies to all? The only answer that comes in mind is gender discrimination.
The age frame does not make legal sens in the Code taken as a whole.
The age frame is odd. It first makes a difference between the girls below 15 and the ones between 15 and 20. Second, it does not take account of the legal majority, 18, in Tunisia.
This brings us to a total absurdity. A girl reaches legal majority at 18 in Tunisia. She can contract marriage at 18 as well. Following the text, this could come to preposterous situations such as this: A married woman, her age is greater than 18 but less than 20 years old, having a sexual intercourse with her husband without violence (her being consenting of course – though the text doesn’t care about that) could have her husband sued for a crime that is not really rape but still a crime.
Where does the age frame come from then?
It’s an inheritance from the French legal system. Indeed, nubility in the French law was 15 for girls and 18 years old for boys. The French law recently changed in 2006 so that nubility for men and women is 18 for both. The same legal amendment has been made in the Tunisian legal system with a law on the 14th of May 2007, nubility passing from 15 for girls and 17 for boys to 18 for both.
Another concept needs to be added here to fully understand the issue, it is legal sexual majority. In France the former age of 15 for girls’ nubility was coincident with sexual majority. The French legal situation now is that sexual majority is 15 for both genders – having consensual sexual intercourse above the age of 15 is not a punishable crime – and marital age is 18 for both genders. Now the Tunisian article 227bis can find it’s equivalent in the French legal system with article 227-25 of the French criminal code, on statutory rape on minors. This means that below 15, a child is not mature enough to give his full consent (and legally valid) to sexual intercourse with an adult and this is automatically considered as statutory rape. Above 15, a teenager is considered mature enough to have fully consented sexual intercourse (though not necessarily, as this does not annihilate the notion of rape). In Tunisia, marital majority is also 18 for both, however sexual majority is 20 for women. A married woman above the age of 18 and below 20 is not considered as having reached sexual majority. Absurd, you say?
Now how does all of this allow a rapist to marry his victim and escape prison sentence that way?
As we said, the crime defined in Art.227 bis of the criminal code does not expressly refer to rape. The notion of consent to the sexual intercourse is not expressed either. However, if a man and a woman do get married after having had extra-marital sexual intercourse, the former implies that the latter was consensual. But the text of art. 227 bis. does not talk about consent. Though it says a person who inflicts the sexual act (…). This implies that there is one person inflicting and the other suffering. In other words, the second person is a victim, and to my knowledge, a ‘consenting victim’ is not a thing. In the eyes of the Tunisian legislator, if there is marriage, then the sexual intercourse was not inflicted as it was consensual. This is how a ‘brilliant’ legislation came up with the last paragraph stating that if there is marriage, then prosecution is interrupted and effects of the conviction stopped. If the sexual act was not consensual in the first place, why on earth would the girl give her consent to the wedding. Well, the thing is that in most cases this situation happen to girls that are not 18 yet – thus did not reach marital age and do not take the decision themselves, but to girls above 15 and below 18, for whom the consent to the marriage depend on their parents.
The parents, having a daughter that is now impure – understand, not a virgin anymore – will have the desire to cover this shame by marrying her off to her tormentor. Another argument that I heard when talking about this subject is that as she is not a virgin anymore, no one will want to marry her ever. So it is better for her and for everyone in the family if the two just get married – it’s a win-win situation, the girl is married, the shame on the family is avoided and the prison sentence is escaped from.
If this can be of any relevance, article 227 bis is under Chapter 1, Section III – ‘indecent assaults’. I wonder how there can be decent crimes and indecent ones, thankfully the Tunisian legislator was here to make the light on this.
I was at a conference followed by a demonstration against art.227 bis this Saturday in Sousse, organized by Amnesty International and the Association Tunisienne des Femmes Démocrates (ATFD). During the demonstration we encountered many people, both men and women, religious and secular, supporting the action, telling us to continue the fight until art. 227 bis is abrogated. Some were less enthusiastic about the protest, and were rather supporting the old conservative idea of ‘avoiding the shame’.
I asked one of the men who thought it was best to avoid the shame on the girl and her family: what if it were your daughter? A simple question, but one that troubled him deeply. He looked at me startled, ‘dawa5tni’ – ‘ you dumbfounded me’, he said.
Sometimes it seems almost impossible to change mentalities, old ways, conservative traditions and break taboos. But you only need to talk. And if words are not enough, then feelings will do.
Shame is not on the victim. It shall never be. Shame is on the perpetrator of the crime. Shame is on the rapist. As Hayet Jazzar a lawyer and member of the ATFD put it, ‘shame must switch sides‘.
Amnesty International is leading a campaign to stop making excuses for sexual violence, aiming directly at the situation created by article 227 bis. in Tunisia, and its equivalents in Algeria, art. 326 of the Algerian criminal code. In Morocco the legislation changed, sadly because of another tragedy. In 2012, Amina El Filali, 16, commited suicide after being forced to marry the man who raped her.
Let’s bring an end to legal sexual violence. Here is a link to sign the petition: https://campaigns.amnesty.org/fr/actions/stop-making-excuses-for-sexual-violence
¹. The actual version of the text points out to an amendment law n°89 -23 of February 27, 1989, though after hours of scrupulous research through the year 1989 in the Official Journal of the Tunisian Republic, the law is nowhere to be found.
Pantin, Paris suburb, 21-23 november 2011.
This week-end I was one of the 21389 observers deployed for the 2014 Tunisian presidential elections, or shall I say, the first free presidential elections in Tunisia’s history. I was representing ATIDE, the Tunisian Association for Integrity and Democracy in the Elections, and observed the electoral process in one of the 79 voting centers set up in France. My observation center was Pantin (center 35), northern suburb of Paris, and I supervised a team of 5 ATIDE observers for 4 polls during those 3 historical days.
In Tunisia, the electors were invited to vote on Sunday, 23rd of November. Abroad, the polls opened on Friday morning, 8:00 am.
The first morning was filled with excitement and anxiety. How will it go? Will people come and vote? Will the organization be good, and will the members of the voting center be cooperative? Will this week-end be peaceful and smooth, or will there be troubles?
The voting center was located in a gymnasium, wide open space – not a single area was hidden to the eyes of all (except for the voting booth of course). I was there among the first people setting up the polling stations, 7:15 am. A calm tension was palpable. Obviously I was not the only one feeling excited and anxious. A couple of other national observers were present as well. The members of the High Independent Instance for the Elections (ISIE) in charge of organizing this electoral week end were buzzing around the center, setting up voting booths, tables, chairs, posters explaining the voting process and legislation, signs showing the way out and others informing that the use of phones and other photographic devices was not allowed inside. At the same time everyone was welcoming and cheerful, offering us a very much needed cup of coffee or some croissant and pain au chocolat. The wonders of Tunisian hospitality with a french touch.
8:00 am, the voting center opens. The members of the polling station are extremely professional. The observers are invited to witness every stage of the procedure. The urn is perfectly empty. The tracking numbers of the seals are noted down. The urn is sealed. The packs of empty ballots are counted. Every time a new pack is opened, the voting papers are counted in our presence. There are already a few citizens waiting to make their voice count. Five or six people. The morning starts slowly. All goes smoothly.
Over the week-end, some incidents happen. On the third day, an elector warned me about a person working in an other voting center giving voting indications to vulnerable citizens – understand old persons not knowing for whom to vote and asking advice. The person asked did not seem to understand that he was not supposed to answer. Another time, a little over-zealous voting station’s president wanted to assess his authority over the entire center, he eventually stuck back to his position. Now and then a few lost citizens, not able to vote because they did not register and did not understand why they were not allowed to vote.
There were also beautiful moments, reminding you that these elections are historical. An aged man, who could barely walk and had eyesight problems came by himself to vote. The members of the voting station set a chair for him at the booth so he could take all the time he needed to decipher the ballot and make his decision. He told us afterwards that he had to come, as it might be his only chance to practice his right to vote in his life. A woman, 54 years old told me that she came to vote for the first time of her life, because for the first time her voice counted. In an another center, a man with both arms amputated insisted on voting by himself without help. He used his feet. He claimed dignity and independence. People brought their young kids, stating that they came to vote today for the future of their children. Another man came in our center proudly waving the Tunisian flag. After he put his ballot in the urn he shouted ‘Tahya Tounes’: ‘long live Tunisia’.
To all those who do not believe it, this is democracy. People expressing their opinion. People proud to exercise their right to vote. People realizing the value of this right to vote, because they have been kept silent for so long.
The great missing in this wonderful electoral week-end was Youth. The Tunisian youth, so great in number does not seem to be really implicated in the democratic process. Or perhaps was not integrate enough in it. About 22% of the Tunisian population has between 18 and 29 years old, almost the forth of the population. However, from what I saw at the polls, most of the voters were aged 40 and plus.
Where is the Tunisian youth? What is certain is that while being the fresh strength of the Nation, they are not integrated in the process of building it, whether politically or economically.
Sunday, 6:00 pm the voting center closes its doors. Time for counting the ballots. But before that, all the procedures. The urn is sealed for one last ceremonial time. The members of the polling station reorganize the space for the counting. Empty tables in the middle where the urn is enthroned, a large panel on the side on which is fixed large pages with the names of all the candidates on columns. Chairs facing all of this, for us, observers. Another large table, that will be later used to put the counted ballots in piles. Everyone gets in place. Tension is more than palpable, it’s breathable. It is 7:15 pm, the urn is opened.
After about two hours and a half counting the ballots, it is done. It’s all done. The electoral week end, the tension, the anxiety, the exhaustion, the sleepless nights and the wait. The wait is over. Some might dare ‘all of this for that?’, well yes. All of this incredible work and dedication from thousands of people around Tunisia and abroad, uncountable hours of work and liters of coffee and tea for this: a smooth transparent and peaceful election.
Voters turn out in France Nord circumscription was 48,64% (almost same as for the legislatives – 48,37%). The exiting president, Moncef Marzouki is leading with 41,93%, followed by the leader of right wing democrats party Nidaa Tounes, Beji Caïd Essebsi with 37,50%. The third man is Hama El Hammami, leader of the left wing party Front Populaire with 11,00% of the expressed votes.*
In Tunisia and abroad, voters turn out was 62,91%. Beji Caïd Essebsi leads the first round with 39,46% of the votes, followed by Moncef Marzouki with 33,43%. The third man is behind with 7,82% of the expressed voices.
Today we are still waiting for the date of the second round, as some legal actions have been introduced (and retracted) concerning certain polling stations. The High Independent Instance for the Elections should communicate a date in the coming days. We are waiting. After 23 years of dictatorship, patience is a Tunisian virtue.
I am writing because I can. I can put down letters, that will form words and eventually sentences – hoping they make sense – because here I am sitting at a café, in a free country. A country where you bring up any topic you like. You can talk about flowers and sunshine. You can write poems about love or spleen. You can talk about sex and religion. You can take apart politics and politicians, praise them if you wish. The only threat, on this comfortable couch, would be receiving angry comments, perhaps insults. As long as I do not harm anyone’s life or freedom with my words, I will live through it. My voice is unchained and can confront all minds.
This is not the case everywhere. I grew up in a country where speaking was dangerous. People censored their very thoughts. Friends and families didn’t dare to whisper certain topics. Politics. Relatives had to live in exile for speaking their mind.
In 2010, Reporter Sans Frontière was ranking Tunisia 164 out of 178, just a few ranks above Cuba (166), China (171) and North Korea (177). This year’s report shows a little improvement – 133 – as an achievement of the so called Arab Spring. The situation in Tunisia today is indeed way better than what it was three years ago. The media scene changed drastically, new television channels, new programs, new printed press and information websites. Political debates, caricatures, satirists… But more important, the Tunisian people is now speaking. The joke right after the 2010-2011 revolution was that Tunisia had gone from 10 million football coaches to 10 million political analysts. You will hear no one telling you that you are being too loud on a sensitive topics. The more sensitive the subject is, the louder you should get.
Of course, there is still work to do. A lot. Artists are still victims of the former regime system. Last year, Weld El 15, a Tunisian rapper, had to bear the consequences of his words in a song denouncing police abuses. He was first sentenced to two years of imprisonment, before being released on appeal and after months of detention and media coverage of the story, as well as a strong support from fellow artists. But this is also proof of change: three years ago, no one would have heard of this story. Perhpas rumors. But no media would have covered the story, and no public personality would have stood up, and no one would have made a social media campaign to support him. Or if they did, they would have been quiet fast.
In 2012, Nabil Karoui, owner of Nessma TV, was being prosecuted after screening the movie Persepolis for ‘violating sacred values’ and ‘disturbing the public order’ because of a scene in the film depicting a representation of God. At the end of the trial he was sentence to a 2400TND fine (about 1100€).
The same year, three journalists were arrested for a scandalous cover on the newspaper Ettounsyia, a reproduction of the GQ Germany cover with a picture of Tunisian football player Sami Khedira embracing his naked wife.
Nowadays, journalists in Tunisia can talk politics. But religion and mores are still sensitive, directly mirroring the situation in the Tunisian society.
Countries like Tunisia need a new generation of professional journalists. Now that people can speak, write, debate, they need the tools for it. Your voice will go nowhere if your tong is twisted. Hopefully, Tunisia still benefits from highly educated individuals with good entrepreneurial skills, and a strong civil society commitment, creating business that profits the community. New internet media are growing. Websites such as http://www.nawaat.org or http://www.inkyfada.com are doing an interesting work on journalism, both in their publications as well as in training new generations and offering employment opportunities.
Security is another terrible concern for the free speakers. Two Tunisian journalists, Sofiene Chourabi and Nader Ktari disappeared the 8th of September in the east of Libya. Today it has been 2 months and 10 days. Let’s not forget them. Their names add up to the long list of detained/disappeared/taken hostage journalists around the world.
As of 2014 in the world: 58 journalists killed, 21 netizens and citizens journalists killed, 177 journalists imprisoned, 174 netizens imprisoned (Reporters without Border).
14 January 2011 17 December 2010. – Mohamed Bouazizi sets himself on fire, the Tunisian Revolution is en route. His answer to years of police bullying, racket, and administrative abuse. He only wanted to sell his vegetables in the street in order to feed his own family. In Sidi Bouzid people are angry. Enough is enough. Protests start. First there, then the movement spreads quickly, enhanced by social media calls, and soon it hits the capital. A caravan that left from Sidi Bouzid rallies Tunis, gathering thousands of people on the way.
13 January 2011. – The infamous ‘Fhemtkom’ speech of Ben Ali – ‘I understood you’. Not sure what he understood, but whatever it was, it only made the people madder.
14 January 2011. 18h43 – A friend calls me. “He fled! He fled! He fled’ cries the hysterical voice on the phone. Everyone is astonished. 23 years of dictatorship and 27 days to end it. The first stone of what has since then been called the Arab Spring was set. It is winter in Tunisia, Jasmine has not yet bloomed, and the country is flooded with exhilarating emotion. One thought is in every mind : WE DID IT.
Since that crucial day of January 14, a lot happened. The Arab World fell in turmoil. Egypt on the 25th of January, Yemen on the 27th, Libya on the 17th of February, Morocco on the 20th, then Syria tears itself apart… And this list is not exhaustive of all the places that breathed the intoxicating scent of jasmine.
As pointed out by Duncan Pickard in his excellent article Tunisia’s elections: a test of commitment from Oct. 20th, 2014, Tunisia has gone through at least six peaceful transfer of power since the revolution. While other countries fell into civil wars and military coup, Tunisia remained peaceful.
Of course the country had its own challenges to face. Two political assassinations, two great figures of the opposition fell – Chokri Belaïd, shot in front of his house the morning of the 6th February 2013, and Mohamed Brahmi, five months later, also shot outside his home in front of wife and children on the 25th of July. Countless protests. Slow economy. Security issues. Apparition of terrorist groups. Political uncertainties. But we had and still have hope. And an unshakable love for the Tunisian Nation, that seems to be the element never taken into account by foreign political analysis on the future of the country.
There were also historical moments. On the 23rd of October 2011, Tunisia held the first free democratic elections of its young history, to elect a Constitutional National Assembly (ANC in French for Assemblée Nationale Constituante). A wave of emotions, happiness and pride overwhelmed the country. The outcome of the scrutiny unsettled some. The Islamist party Ennahdha won the elections with 37,04% of the votes. What people tend to forget was that 62,96% of the ANC was not religious, there were democrats, republicans, socialists, liberals, secular groups. This and the natural pragmatism of Tunisians resulted on reaching consensus after heated debates on social questions mainly. Three years later, on the 26th of January, 2014, the new Constitution is enacted and it is today the most progressive and human rights protective constitution of the Arab World.
Yesterday, Sunday Oct. 26th 2014, another historical moment in the consolidation of democracy, a test in the eyes of the world of this newly acquired political freedom. The second free elections, this time in order to elect the members of the National Assembly. Will Tunisians convert the try? Or will they collapse like their neighbors and other sister Arab Nations did? Will they remain peaceful, a peace that was questioned because the Tunisian nation was not following the path that everyone else took? Will everyone play the democratic game by the rules?
All foreign analysis on Tunisia few days before the elections were negative, skeptical at best. To cite an example, the New York Times published three negative and quite biased articles in a row, such as Carlotta Gall’s ‘At birthplace of the Arab Spring, discontent opens a door to the past‘ or David Kirkpatrick’s ‘New Freedoms in Tunisia drive Support for ISIS‘ – the title itself tells a lot on the writer’s conflict here. In a way, it is understandable. Tunisia is the exception of the Arab Spring. In terms of political developments, but also in terms of society, population and culture. It is a society that has more depth and is more complex than what international analysts know of. Very few actually took the time to make proper research and study on the country. Most come for a few days, perhaps few weeks, missions to cover one topic specifically. This gives a limited vision on the country. Thankfully there are still excellent authors such as my good friend Monica Marks, who lately denounced the narrow vision of international media on Tunisian politics in this very good article, ‘Beyond Islamism vs. secularism, towards new coalitions?‘.
Yesterday I was a national observer for the elections in a polling station in Aubervilliers, France, a northern suburb of Paris. I witnessed the electoral process from A to Z for the Tunisian citizens living abroad. There have been a few incidents, all concerning people that did not find their names on the lists, hence were not able to vote. This seems to have been the case for all polling stations abroad, but not in Tunisia. Apart from that, I witnessed a very well organized election procedure. The officers of the polling station were all extremely professional and following the rules of transparency to the point where the vote counting had a theatrical aspect. When we had the results, people of all parties, political and non-political, congratulated each others for the great work we put together during this electoral marathon. People were simply plain happy about the peaceful outcome.
I also witnessed the incredible emotions emanating from voters when entering the polls during the day. People were happy, people were smiling, I saw tears. People were proud to vote. A friend in Strasbourg, responsible for a polling station had a citizen coming to exercise his right to vote by himself : both his arms were amputated. He insisted that he did not need help, he used his feet to tick a box and fold the paper. People took flights to be able to vote in the polling station they were registered at. Newly weds went to vote with their wedding dresses. A 105 years old woman went to the polls and voted. A man had a suit made out of the Tunisian flag specially for voting day. Tears, smiles, in Tunis people were hugging strangers in the streets, overwhelmed by the emotions. In Tunisia, politics divide and elections unite. The sens of nationhood is great. At the end of the day, 51,8% of registered people voted. Not as much as in 2011. The youth was notably absent. However the people that did vote – and that is about 3 million people – were deeply convinced of the importance of this right. The right to vote. The right to express an opinion. People were kept quiet for too long, and they will never let anyone take their voices away anymore. This is what outsiders don’t take into account. This is why I will always stay positive when it comes to Tunisia’s future.
I believe in this Nation, and I am not the only one.
If Tunisia is great at something, it is at surprising the world – and itself at the same time. When Hannibal marched on Rome with his elephants, when lady Kahena stopped the Arab invasions, when abolishing slavery in 1842, when granting women the right of abortion in 1972, when being the spark and the beacon of hope of the Arab Spring. We surprised the world in 2011, in 2013, and we do it again today. Will the world finally understand: Tunisia does not follow paths, Tunisia makes its own path.