The legal loophole holding Egypt back from criminalising marital rape

In the wake of a video posted on Instagram by Nada Adel, the ex-wife of an Egyptian celebrity, in which she shares how she came to realise she had been subjected to marital rape while married to him, the conversation around marital rape in Egypt has been reignited.

Adel shared her experience and expressed her pain at the fact that marital rape is still not criminalised, adding that she made the video in hope that it may act as a catalyst for legal change.

Thanks to the #MeToo movement, societies in countries across the world are beginning to change their understanding of sexual consent, and along with that has come the acknowledgement that marital rape is real.

Public discourse on marital rape in Egypt is still missing one key concept – the idea that a wife can simply say “no” to sex without needing to justify it

The psychological and physiological effects of marital rape can be devastating, and in a nation where FGM is still prevalent, with 87.2 percent of women aged 18-49 in Egypt having undergone the practice as of 2017 figures, debilitating genital injuries that occur as a result of marital rape, such as fistulas, are not uncommon.

Explaining the effects of marital rape on a woman’s mental and reproductive health in greater detail is midwife Fatima Mohamied, who is based in London and is of Egyptian and Indian descent. “For women who conceive through this physical and emotional violence, it creates a very difficult baseline from which to securely grow a new human being,” Mohamied tells The New Arab.

“The obvious insult to mental health that rape causes compounds an already mentally challenging state that pregnancy puts on even the most privileged of women, which occurs due to changes in hormonal states, drastic changes to their bodies and huge consequences for their lives.  All these stressors increase the stress hormone cortisol in pregnant women, and at high levels leads to small birth weights, complicated labour, underdeveloped foetal brains and even stillbirth.”

“Being in the presence of a perpetrator makes trust an absolute paradox. Trust, respect and love are essential for the progress of labour which is heavily dependent on the 'love' hormone oxytocin. And as you can imagine, oxytocin is difficult to stimulate in the presence of a rapist. Without such vital ingredients, women are likely to suffer from prolonged labour, physical and mental exhaustion, poor outcomes for the baby, obstetric haemorrhage and if inadequately treated, even death.”

Negative responses to Adel’s viral video, mainly from men, reaffirm an overwhelming number of people in Egyptian society who refuse to accept the concept of marital rape, with a misinterpretation of Islamic religious texts being used to justify men raping their wives. Egyptian news outlet Al Youm Al Saabi’ reports the figure of women having been raped by their husbands to be as high as 60 percent, citing records held by Egypt’s Family Court.

Egyptian American journalist and feminist Mona El Tahawy writes about rape culture in Egypt in her book Headscarves and Hymens: Why the Middle East Needs a Sexual Revolution. Speaking to The New Arab El Tahawy says, “The concept of consent has still not fully taken hold in Egypt because it is a very conservative society, because it’s a very patriarchal society, because it’s a society where rape culture, like many other cultures, is just everywhere.”

“In 1994 Egypt was the host of ICPD (the International Conference on Population and Development). At the time I was a news reporter for Reuters news agency and I will never forget that I was going around interviewing diplomats, and I asked an Egyptian diplomat would Egypt support calls to criminalise marital rape. He laughed in my face. He said ‘there’s no such thing, what are you talking about?’ I said ‘activists are trying to get marital rape recognised as a crime” and he laughed and walked away.”

Little progress has been made towards criminalising marital rape in Egypt since El Tahawy first raised the issue over 25 years ago. Despite calls from lawyers and women’s rights activists to make marital rape a crime, and irrespective of a recent statement issued by Dar al-Ifta Al-Misriyyah, the religious body in charge of issuing fatwas, which stated, “If the husband used violence to force his wife to sleep with him, he is legally a sinner and she has the right to go to court and file a complaint against him to get punished,” a legal loophole exists that holds marital rape back from being added to Egypt’s Penal Code.

Rape is criminalised in Article 267 of the Egyptian Penal Code, however Article 60 states, "The provisions of the Penal Code shall not apply to any deed committed in good faith, pursuant to a right determined by virtue of the Sharia."

"The marriage contract makes pleasure halal for both parties, and is built on shared will. If there is no shared will then this is not a marriage, and if there is a situation in which this relationship is forced, then this is rape"

Many people in Egypt believe that sex is a conjugal right in marriage according to the Sharia and that a woman does not have the right to refuse her husband, and according to them, Article 60 can be applied in this case. In addition to this, some people in Egypt have waved off marital rape as a “Western concept” and Western concepts are typically rejected on the basis of not being in line with their religious beliefs. This makes raising awareness about marital rape incredibly difficult.

One public figure who is raising awareness and speaks openly about marital rape is Dr Nehad Abol Komsan, senior lawyer and Chairwoman of the Egyptian Centre for Women’s Rights. Following Nada Adel’s viral video on social media, Abol Komsan released a series of videos on the topic.

In one video Abol Komsan says, “When a relationship is built on violence that isn’t a marriage, that’s a relationship of rape. People may say ‘okay, when they did their Islamic marriage contract that makes the sexual relationship between the two people halal, and it organises the rights between the two people.’ Yes, that’s true, but it’s a consensual sexual relationship between the two people, the marriage contract makes pleasure halal for both parties, and is built on shared will. If there is no shared will then this is not a marriage, and if there is a situation in which this relationship is forced, then this is rape.”

According to Abol Komsan the only legal recourse a woman currently has is to ask for a khulaa, the Islamic divorce initiated by a woman, or a civil divorce, although the latter sometimes takes years to finalise in Egypt, particularly if it is a fault-based divorce which can be hard to prove.

Women who take this route often do not cite marital rape as the basis for divorce, but rather use other terms such as domestic violence.

Public discourse on marital rape in Egypt is still missing one key concept – the idea that a wife can simply say “no” to sex without needing to justify it, an idea that El Tahawy says is revolutionary. Clerics and public figures often combat the misquotation of religious texts by promoting the idea that Islam promotes a marriage in which a husband is soft, compassionate, and merciful towards his wife, including their sexual relationship. But there is no talk of accepting that a woman might simply not want to have sex with her husband for no particular reason.

“As much as I'd like to see marital rape recognised for the crime that it is, I'm acutely aware that neither legislation nor the pronouncements of clerics have curbed FGM or sexual harassment or rape in contexts other than marriage,” says El Tahawy. “To do that, we need nothing short of a feminist revolution and a sexual revolution that centres consent and agency and that finally acknowledges women's bodily autonomy. As I say in Headscarves and Hymens: Why the Middle East Needs a Sexual Revolution, to say ‘I own my body’ is revolutionary.”

Yousra Samir Imran is a British Egyptian writer and author who is based in Yorkshire. She is the author of Hijab and Red Lipstick, being published by Hashtag Press in the UK in October 2020

Follow her on Twitter: @UNDERYOURABAYA