واکنش نهادهای عدالت کیفری در قبال خشونت جنسی علیه همسر

Abstract
A common form of domestic violence is the sexual abuse in marriage which is not explicitly criminalized in law of Iran. This research seeks to answer the following question: "How do public prosecutor's offices and criminal courts respond to victims of sexual abuse in marriage?”. Research data were collected through conducting in-depth and semi-structured interviews with judges, lawyers, and victims, as well as analyzing criminal cases and non-participant observation. The research findings reveal that while it is common practice for public prosecutor's offices to avoid recognizing sexual abuse in marriage, there exists a minority of judges that attempt to protect victims by extending the existing laws to marital sexual abuse. Nonetheless, the majority of cases that do make it to the sentencing phase get dismissed without having reached a conviction. The main reason for this is the judges' traditional interpretation of the concept of Tamkin in Islamic jurisprudence.
 

Introduction

One of the most prevalent forms of domestic violence against women is the sexual abuse in marriage. According to the statistics of World Health Organization (WHO), in industrialized countries, about 24% of married women have experienced at least once sexual violence by their husbands, and this rate rises to about 37% (approximately 1 in 3 women) in Middle Eastern countries like Iran. Empirical studies not only do not support the milder trauma to the victim in the case of marital rape in comparison to stranger rape, but also reveal that marital rape causes more severe and long-lasting trauma. Therefore, international documents have emphasized the need to protect women against domestic sexual violence.
As described by 2010 United Nations handbook for legislation on violence against women, domestic sexual violence not only does violate woman's physical integrity and her sexual autonomy but also is a crime against the unity of the family and the health of the community. United Nations encourage the member states to criminalize such behavior and recognize it as a punishable act. Although in recent decades, some countries reforming their criminal laws have criminalized the marital rape, sexual abuse in marriage is not explicitly criminalized in criminal law of Iran. In addition to the lack of criminal intervention which still keeps husbands from prosecution and punishment, there is no protection and treatment intervention for victim women suffering from this kind of violence.
When the criminal law of Iran is silent and vague, the question arises as to how do public prosecutor's offices and criminal courts respond to sexual abuse in marriage? In other words, this research aims to answer the question that despite the legislator's silence, whether it is possible to criminally protect married women of marital sexual abuse or not.
 

Methodology

In this research, a qualitative approach and a descriptive-Analytical method were used to evaluate criminal justice system response to sexual abuse in marriage. To answer the research question, in addition to library resources, three other methods were used for data collection: 1) In-depth and semi-structured interviews with 15 criminal court judges and 15 lawyers (by using snowball sampling), and 35 victims of marital sexual abuse (by using purposive sampling), 2) analysis of the content of 23 criminal cases related to the research subject, and 3) non-participant observation.
 

Results and discussion

Our findings suggest that “getting lucky” is a key driver in a safe and helpful criminal justice response to sexual abuse in marriage. As articulated by many interviewees, coming across the “right” officer, investigator or judge could make the difference. Our findings also indicate that prosecutors and investigators are divided into two groups in dealing with victims of marital sexual abuse. First, those who do not recognize sexual abuse in marriage and make decision to give the husband an absolution from accusation with the excuse of lack of law. Second, those who aim to protect women victims and therefore extend existing laws to the sexual abuse in marriage. These prosecutors and investigators attempt to file cases of marital sexual abuse under general offences such as assault and battery, threat, insult, slander, etc.
The interviews and observations showed that the aforementioned first approach is more common in public prosecutor's offices, and the prosecutors and investigators of the second approach are in the minority. The concept of the “Tamkin” (wife’s obedience to her husband in Matrimonial duties) in Islamic law plays an important role in this judicial avoidance. Influenced by this concept, judges often view the intercourse as the husband’s right and the wife’s duty. As a result of such misunderstanding, the sexual victimization of the wives by their husbands is ignored.
Another research finding was that criminal court judges, just like prosecutors and investigators, frequently avoid recognizing sexual abuse in marriage and criminal protect for women victims of it. In criminal court, judges merely convict the husband in the case where sexual abuse against his wife is accompanied by physical violence. In the case of sexual abuse accompanied by emotional and verbal abuse (not bodily violence), they simply acquit the husband because of the difficulty of proving domestic violence. Even when evidence seems sufficient, judges (at their own judicial discretion) prefer to sentence the husband to “Diya”[1] instead of imprisonment or whipping. In addition, the judges (under the pretext of preserving the family) often prefer to put pressure on the victim to forgive her husband, rather than to issue a conviction.
 

Conclusion

Research  findings reveal that the criminal justice agencies do not tend to convict or sentence the husbands for committing sexual abuse in marriage and on the contrary, they attempt to minimize victims' experience. Therefore, considering the inadequacy of existing substantial and procedural criminal laws, the first and most important suggestion is the criminalization of marital sexual abuse in legal discourse, along with the determine and impose penalties that are appropriate both to deterring the husbands from committing sexual abuse and to meet the needs of the wives. Overall, it seems that the results of this research may help legislators and policymakers of criminal justice system to solve or at least to mitigate the consequences of this ever-increasing phenomenon.
 
 
 
 

Selection of References

 
Adams-Clark, A.A., Chrisler, J.C.(2018). “What Constitutes Rape? Effect of Marital Status and Type of Sexual Act on Perceptions of Rape Scenarios”. Violence Against women, 24(16),pp.867-1886.
Auster, C.J., Leone, J.M.(2001). “Late Adolescents' Perspectives on Marital Rape: The Impact of Gender and Fraternity/Sorority Membership”. Adolescence, pp.36,141-156.
Backhouse, C., Schoenroth, L.(1984). “A Comparative Study of Canadian and American Rape Law”. Canada-United States Law, pp.7,173-195.
Basile, K.C.(2002). “Attitudes Toward Wife Rape: Effects of Social Background and Victim Status”. Violence and Victims, 17(3),pp.341-354.
Berman, J.(2004). “Domestic Sexual Assault: New Opportunity for Court Response”. Juvenile and Family Court, 55(3),pp.23-34.
[1]. Diya in Islamic law is the financial compensation paid to the victim or heirs of a victim in the cases of murder or bodily harm.