Sexual relationship between man and woman is important and essential in the marital life. It is often the main reason for the success or the failure of the marriage. Despite the importance of this relationship and its impact on the future of marriage, which is formulating the code ensuring the continuation of the rapprochement between the parties and the non-aversion to each other, legislation has fallen short of this importance of the sexual relationship and its impact on marital life and the future of marriage. On the contrary, we can say that the legislative failure has associated with the presence of certain legal provisions concerning sexual offences which harmed the freedom of wife in the relationship with her husband and facilitated the violation of her body's sanctity without fear or deterrent.
Worse still, this was not stopped at the legislative failure. Al-Azhar clerics had issued some religious fatwa allowing the husband to force the wife to sexual intercourse without her consent. They refused to give the wife the right to prosecute her husband if he cohabited her without consent (That will cause the conflict and the destruction of the relationship between the couple and encourage women to rebel against their husbands, they said).
Here, we offer the following question: Does the husband have the right to sexual intercourse without the wife consent? Does the law deal with the cases of sexual coercion between spouses in particular provisions or it subjects them to the provisions of rape? Does the law permit sexual coercion?
We should point out that sexual coercion is almost commonplace in some social circles, but the secrecy which surrounds it, whether by the husband or the wife, makes the coercion cases rare in the courts. However we will show the opinion of the Syrian Penal Code on this subject.
In the Syrian Penal Code, the rape is not occurred by the husband on the wife. The most important condition for the availability of the offence of rape is to be applied on non wife. Syrian legislature states in Article / 489 / of Penal Code, in the first paragraph: ((Who enforces a non wife by violence or threat to sexual intercourse is punished to fifteen years hard labor at least)). The legislature allows the husband to force his wife to sexual intercourse. Thus, the Syrian Penal considers the rape of the wife is already permissible and non-punishable. This is consistent with the view of the religious fatwa issued by Al-Azhar Mosque.
In fact, the Syrian legislature was more than clear in expressing its attitude from the marital rape (non-punishable). the legislature explicitly excludes the wife from rape and believes that any threat or coercion exercised by her husband is a legitimate and permissible. The condition of the rape is to be committed against non-wife. If the rape is committed against the wife, it becomes not covered by the previous article.
We believe that is a legislative serious mistake. On one hand, it is contrary to the voluntary basis of the marriage contract, which is required acceptance by men and women. On the other hand it contains a contradiction with some of the other provisions in the Penal Code.
First, the violation of the voluntary basis of marriage:
Religiously and legally, marriage is a contract between a man and a woman takes place when the two parties agree and the contract is not valid and had no legal effects unless the will of the parties is right as stated in the law. The marriage is a binding contract for both sides which includes obligations on each of them. The general rule in the binding contracts is that each party to the contract has obligations imposed on it and each party has the right to refrain from implementing its commitment until the other party meets its obligations. In all cases the harmed party can request dissolution of the contract when the other party refrains from its commitments. But if he wanted to continue the contract, he can request implementation in kind (Enforcement) or compensation when the implementation in kind is not possible. It is agreed that if the commitment is to do something, the implementation in kind could not applied, thus the affected party can only request compensation or rescind the contract.
The legislature has banned the forced implementation when the commitment is to do something. This rule is contained in the general theory of the obligations (Civil Law) and includes the provisions of all contracts of all kinds, including the marriage contract. We can not compel any person to do the same quality we would gain if he acted willfully. Therefore we do not get benefit from the forced implementation. In addition, forced implementation includes an encroachment on personal liberty, which is not favored by the legislature. Forced implementation, in some cases, may include the meanings of servitude and slavery. For example, a person agrees with an artist that the artist draw paintings each month for a period of twenty years. If the artist abstained from painting, the other party can not enforce him to paint, he can only demand compensation or rescind the contract. If we assume in this instance that the person forced the artist, under threat, to design some paintings, this action would be a punishable offence.
Sexual relationship between the couple is only one of the obligations of marriage like other commitments. What is applied on dowry and alimony should be applied on sexual relationship since all of them are implications for the contract. It is unreasonable to apply a different rule on each implication. If the women compel her husband under threat and violence to pay marital alimony or dowry, she will be punished. Why we allow the husband to force his wife to sexual intercourse without her consent although sexual relationship (an obligation to take action) can not be legally forced, contrary to the dowry and alimony where the law permits Force implementation???????
Let us assume that the husband had raped his wife. What is the rule? Is the marital rape is permissible in all cases, whether it occurred in the marital home or outside and the woman dowry were paid or not? We ask these questions from the point of view of the previous fatwa because our belief is that coercion is unacceptable under any pretext for any reason. Is not strange? who have issued this fatwa justify it on the grounds that allowing the wife to prosecute her husband in case of rape would lead to the destruction of the relationship between the couple and encourage women to rebel against their husbands.
We ask the following question: Why Women refrain from sexual relationship? When this refrain is repeated, do we need to say that the marital relationship is destroyed or at least in a great crisis? The husband has to understand this situation and bear burdens until the reform, or divorce his wife if he is no longer able to accept her abstaining from him. However, to give the husband the right to compel his wife to do what she does not want or desire is slavery and humiliation. Such slavery and humiliation is not acceptable even for prostitute (this career is licensed in some Arab countries, including Syria). The law punishes those who rape a prostitute. Is it a conceivable comparison?
Second, the contradiction in the provisions of the Penal Code:
It is true that the article / 489 / of the Penal Code has indirectly permitted the marital rape. Its ruling on this issue was explicit and clear, where the legislator has explicitly excluded the wife from the rape: "who forced a non-wife……" This phrase does not need explanation or interpretation.
However, we note that the legislature has no such clarity in other crimes less serious than rape. For example, Article / 493 / of the Penal Code states that: ((who forces somebody, by violence or threat, to bear or take an obscene action will be sentenced to hard labor no less than twelve years)). We note that the legislature did not exclude the wife although the crime contained is less serious than rape crime. Article / 520 / states: ((Each sexual intercourse contrary to the nature is punishable by imprisonment up to three years)). Not that the wife is not excluded from this article.
The Syrian legislator punishes the husband when he commits crimes against his wife such as murder, abuse and causing harm. Here we highlight a major contradiction in the law which legalizes the marital rape with violence and the threat while it punishes him when he physically abuses her wife. Which is the cruelest, rape or beating? Why we allow the wife to prosecute her husband because he beats her and do not allow her to prosecute him when he rapes her against her will??
As we put these contradictions and questions on the table, we conclude with the Prophet of Islam, Muhammad (p) when he said: ((do not fall on your wife like the animal, a messenger should be found. Somebody asked: what messenger? He said: kiss and talk!)). If the Prophet forbids having sex without kiss, would he accept the husband's brutal methods in rape?
By: Lawyer Abdullah Ali, 2008-03-22, (Sexual Coercion Between The Right of Husband and The Freedom of Wife)
Translated by Angela Shoufi