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.