Catherine Warrick, Villanova University, catherine.warrick@villanova.edu
This is part of the MENA Politics Newsletter, Volume 3, Issue 2, Fall 2020. Download the PDF of this piece here.
The body of scholarship on gender and politics is rich and wide-ranging, as the essays in this issue of the newsletter demonstrate, and it has been particularly fruitful in the interrelation of gender issues and the law. The study of law has helped to identify and delineate the role of gender in many arenas of politics, from executive and legislative power to the role of parties, electoral campaigns, and public opinion. Conversely, scholars of gender have made significant contributions to the understanding of law and politics, particularly in the study of the boundaries and experiences of citizenship, contestation about tradition, and the role of religion in the state.
This scholarship has perhaps been most visible in fostering the inclusion of gender as an analytical category in mainstream politics. Writers on gender and citizenship in the 1980s and 1990s firmly established gender as an important issue in the analysis of state power to define its relationships with society; as Suad Joseph (1996) pointed out, “the concept of citizenship has been gendered from its origins in the Middle East, as elsewhere.[i] Citizenship, both in the sense of nationality and in terms of political participation, was a chief focus of scholarship in this era, producing foundational studies on women’s movements, informal politics, nationalism, and public opinion.[ii] More recent work on the nexus of gender and law in the past two decades has built on this scholarship, expanding our analyses of both the politics of gender and the complexities of citizenship beyond the original issues of women as subjects of the law. Studies of gendered violence, family law, and religion, among other topics, have deepened the field of gender and law in Middle East studies.[iii]
This scholarship provides tools and insights useful beyond what might seem to be its natural boundaries of either gender issues or law. Gender is often at work in political issues where it is not apparent, and the concepts developed in the study of law are useful in studying not only codes and legislative processes, but claims of authority more broadly and even the exercise of power outside the law. I argue here that gender issues in law are not just important topics in political science, but arenas and tools by which the state engages in citizenship management, differently positioning citizens with regard to state power and protection. This happens explicitly, for example, with regard to gendered nationality law, as Lilian Frost explains in her contribution to the present collection of essays. But it also happens implicitly in criminal law, and in practice in the regulation of political opposition.
This memo briefly describes some of the useful concepts and distinctions at work in the scholarship of law and gender and illustrates those in recent developments in laws of the Middle East. The examination of the broad presence of gender in the content and boundaries of the law suggests the possibility of wider application of these approaches to topics not normally considered under the umbrella of gender and law.
Gender and the law as an approach to politics research
Part of the value of studying gender issues through a legal lens, and vice versa, is that it provides an excellent analytical framework for understanding the relationship between state and society. This is of course not something unique to the Middle East; law and society research has been a valuable contributor to a wide range of disciplines and area studies. In the context of the Arab world, in particular, a number of important political developments draw on claims about law, and claims about gender deployed by the state and the state’s opponents; studying those developments and the contestation surrounding them points up some useful distinctions that we might draw.
First, in thinking about “gender and the law,” we are not solely studying laws that are specifically about gender roles or “women’s issues.” A wide range of laws are facially neutral, meaning their text does not draw gendered distinctions or appear to address gender issues, yet they have gender differential effects or are deployed in unexpected ways related to gender issues. This is the case, for example, with certain rules of criminal law described below. Second, there is a difference between “the law” – usually meaning text and rules of practice – and the use of state power by, for example, law enforcement agents. Even in extralegal abuses of power, where the state is acting outside or against the law, the law is often still important as a pretext for the application of that power in the first place.
Contestation regarding the law is sometimes about content problems (such as the marital loophole in rape law described in Aili Mari Tripp’s essay in this issue) and sometimes about boundary problems (when the state operates outside the law, or fails to encompass all its citizens equally under the law). In both cases, this is an area where the use of gender as a lens of analysis is particularly helpful in understanding political and social phenomena.
This essay discusses developments in two broad areas of law: criminal law and the regulation of political protest and speech.
Criminal law: gender-neutral texts contribute to gendered effects
Criminal law in the Arab world is most clearly gendered in areas relating to the regulation of violence against women, including “honor” crimes and rape law. The past decade has seen worthwhile progress in legal reforms in these areas, without however radically altering the gendered nature of state regulation of violence against women.
Violence against women continues to be generally treated within the “family protection” paradigm, positioning women not as individual citizens with rights to the protection of the state and equality before the law, but as members of families who should be protected by (and sometimes from) their relatives. The “family protection” approach, which also encompasses child abuse, may be regarded as a sensible basis for embarking on the improvement of women’s legal protections, or as a means of establishing only limited reforms while leaving the larger patriarchal system intact. The approach is of long standing (Jordan established a Family Protection Unit in the police force in the late 1990s) and has arguably proved a useful tactic for bringing social conservatives on board with efforts to combat gendered violence, but it may also limit the scope of such reforms. The Palestinian Authority was reportedly planning a new family protection law to be enacted by the end of 2019, dealing with a range of issues from minimum age at marriage to domestic violence and police practice; but as of the summer of 2020, the legislation is still being formulated.
Penal codes in the Arab world impose extremely harsh penalties (usually capital punishment) for murder, except for those murders, primarily of women and girls, claimed to have been carried out for reasons of family honor. This is probably the most widely-studied element of gender and criminal law in the region and an example of the ways in which laws are a product of state power, public sentiment, arguments about tradition, and legal genealogy. Despite a great deal of both activism and scholarship on the issue, the legal underpinnings of honor crimes have not been radically altered in recent years. But there have been some developments in this area, including changes both in penal codes and in sentencing.
One welcome development was the recognition that ostensibly gender-neutral elements of the legal system, such as the laws defining provocation or self-defence, have had highly gender-discriminatory effects in practice and have supported the toleration of violence against women. The Jordanian Penal Code was amended in 2017 to alter Article 98, long recognized to have been a chief element producing very light sentences in honor killing cases. Article 98 reduces culpability, and thus punishment, for criminal violence in cases where the perpetrator was considered to have been “provoked” by a wrongful act on the part of the victim. Many systems in the world have such provisions relating to provocation; though they are facially neutral as to the gender of the actors, their application is an important vehicle for bringing into legal practice the dominant social mores about “appropriate” gendered behavior.[iv]
Heavier sentences in honor crimes cases have also come from changes in judicial practice. In 2017, a Jordanian court doubled the original sentences of two brothers convicted of killing their sister by poisoning her, with the judge explicitly noting that the purpose of the harsher sentences was to set a precedent for lower courts, serve as a deterrent against honor killings, and remove the use of the exonerating excuse in trials.[v] Sentences for honor killings remain out of line with punishments for other types of deliberate homicide, but there is some evidence that longer prison terms are being imposed in recent years.
The practice of honor killings is a matter of many factors other than law, but elements of the legal system from police and prosecutorial practice to legal codes to judicial attitudes affect the extent to which this type of violence is punished or tolerated. In the law itself, many aspects of both code and practice are neither explicitly gendered nor specific to cases of honor killing, but their gendered effect is clear.
Law, extralegal power, and the regulation of political behavior
The scholarship on gender and the law has so far concentrated primarily on areas of law that are overtly gendered in text or in practice, such as criminal, family, and nationality laws. But the relevance of gender to issues of law is broader than this, shaping the operation and effect of state power even where the law’s text and purpose do not center gender or sexuality as their subject. Events of the past decade suggest that a worthwhile area for the future extension of law and gender research will be the regulation of political behavior, particularly political speech and dissent. States’ legal tactics for limiting dissent are potentially gendered in two ways: they put the weight of the state behind the enforcement of gendered social norms (as when the state restricts women’s activism on the grounds that it damages public order or morality), and they provide a pretext for criminal detention that then places individuals at the mercy of extralegal abuses related to gender and sexuality.
In the events of the Arab Spring in 2011, the attention of many outside observers was caught by the highly visible participation of women in the street protests across the region. Both this visibility as political actors and the prospect of serious systemic political change sparked a wave of commentary and scholarship[vi] on the prospects for improvements in women’s political access and their rights more generally. The predictions of the most optimistic observers about a widespread transition to democracy were, of course, not borne out by subsequent developments, but the importance of both women in politics and gender as an element of political analysis should by now be well established even beyond those of us who study gender and politics directly. Gender is prominent not solely in connection to “women’s issues” or the mobilization of women themselves, but as an integral element of oppositional and progressive politics addressing both specific policy issues and the nature of the political system, participation, and even national identity.
The protests of 2019 in Lebanon and Iraq made this clear again, and perhaps even more explicitly. Women were not only present and active, they were often centered by activists themselves as authoritative leaders in the arena of criticizing the many failures of the state. Bassel Salloukh described the protests in Lebanon as part of a wider phenomenon of “reimagining the Lebanese nation” as one where “alternative class, gender, and environmental interests drive political action.”[vii]
But the current prominence of gender in MENA politics is not limited to opposition movements and progressive agendas. States recognize the potential power of gender-based criticism, too, as they have long done, and their attempts to constrain or erase this power are visible in the texts and practices of the law. This falls into two broad categories: the general crackdown on political speech and protest, often via legislation, and the practices of policing and detention that arise from but may operate outside the laws. States are not only instituting repressive laws relating to political speech, but enforcing those in ways that often make use of individual and social vulnerabilities relating to gender and sex.
Any assessment of the state of the law regarding political protests must also take into account that this is not a fully law-governed arena, and the extralegal actions of the state and its agents are important not only as elements of state power but as commentary on the rule of law itself. In the arena of political protest, law often operates as a pretext for detention and thus puts people into a position in which they face extralegal abuses.
Several MENA states have enacted new legislation to regulate political opposition in the past few years.[viii] These range from restrictions on political protests to the regulation of journalism and social media. These laws operate alongside already-existing limitations on political speech, such as lèse majesté laws that prohibit criticism of the executive. Again, these laws do not establish gendered rules in themselves, but they grant to the state greater powers to punish opposition, and these powers have distinctly gendered applications. For example, during the events of the Arab Spring, activists in Egypt reported widespread sexual harassment and assault of women protestors by government forces, including the reviled “virginity tests” acknowledged to have been conducted by the military in order to demonstrate that women protestors were morally suspect.[ix]
A well-known case of political detention directly related to gender issues has been the Saudi state’s treatment of women activists involved in the driving protests. A number of women participants in the “Women to Drive” movement have been arrested over the years, and although driving without a license is not usually a criminal offence, the charge of “disturbing public order” has sometimes been used as the legal basis permitting more serious charges and punishments. One activist was sentenced to 10 lashes in 2011 (but later pardoned), and others have been in detention for extended periods, including Loujain al-Hathloul, who was detained in 2018 and held for nearly a year without charge. She was later charged with crimes relating to challenging the country’s male guardianship system and violating the laws relating to contacts with foreign media and organizations. She has reported torture during her detention, including threats of sexual violence.[x]
One of the most egregious examples of the gendered application of state power outside the formal legal rules has been the Syrian state’s use of rape as a weapon against its opponents and their families, which has been well documented throughout the current civil war.[xi] Both women and men have been subjected to sexual abuse and violence in detention; the threat of rape serves not only to punish dissidents but to silence potential opponents as well. Sexual violence by the state is so pervasive that, according to one report, it has become a general assumption in Syria that if a woman is detained, she will unquestionably be raped or subjected to other forms of sexual assault. Far from arousing compassion, such abuses are regarded as further sources of shame for the families and communities of the women concerned.[xii]
Sexual abuse in custody is not permitted by the law, but laws creating the legal pretext for detention create the situation in which citizens are made vulnerable to illegal abuse. Political protests, and the laws regulating protest via limitations on speech and on civil society, are not generally seen as “gender issues,” but it is increasingly clear that the genders of protesters, and the state’s exploitation of vulnerabilities related to gender and sexuality, are important elements of mobilization, discourse, and repression.
Conclusion
It is commonplace to note that states use the tools of law to bolster and to exercise the power of the regime; what is notable in the context of political protest is the degree to which the texts of the law are pretexts for an extralegal exercise of power that draws heavily on gender and sexuality for its ability to intimidate and to punish. We might draw a comparison here to some of the ways that gender operates in the arena of criminal law, with the text of the law serving in part as a departure point for establishing state toleration of social practices or signalling the regulation of those to various audiences of the law. Law and political power are each not fully comprehensible without the other, and while the state dominates the legal arena, it does not do so with full autonomy from its own society. There are rich opportunities here for future research investigating the ways in which gender (and sexuality) underlies the use of power within and against the law – by the state and by its opponents – in arenas of politics that have not traditionally been addressed in studies of gender and politics.
[i] Suad Joseph, “Gender and Citizenship in the Middle East,” Middle East Report No. 198 (Jan.-March 1996).
[ii] Important examples are too many to list fully but include Mervat Hatem, “The enduring alliance of nationalism and patriarchy in Muslim personal status laws: the case of modern Egypt. Feminist Issues 6: 19-43 (1986), Diane Singerman, Avenues of Participation: Family, Politics, and Networks in Urban Quarters of Cairo. Princeton: Princeton University Press, 1996, Valentine Moghadam’s Modernizing Women: Gender and Social Change in the Middle East (Boulder: Lynne Rienner, 1993), Marianne Tetreault’s and Haya al-Mughni’s work on citizenship and nationalism in Kuwait, and Mark Tessler’s studies of gender and public opinion. Outside the social sciences, historians and legal scholars have made major contributions as well, including Ann Elizabeth Mayer, “Law and Religion in the Muslim Middle East,” American Journal of Comparative Law 35:1 (1987), Ellen Fleischmann’s work on the Palestinian women’s movement (The Nation and Its ‘New’ Women: the Palestinian Women’s Movement, 1920-1948. Berkeley: University of California Press, 2003), and Judith Tucker, In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley: University of California Press, 1998).
[iii] See, for example, Lama Abu Odeh, “Honor Killings and the Construction of Gender in Arab Societies,” American Journal of Comparative Law58:4 (2010), Catherine Warrick, “The Vanishing Victim: Criminal Law and Gender in Jordan,” Law and Society Review 39:2 (2005), and Stephanie Nanes, “Fighting Honor Crimes: Evidence of Civil Society in Jordan,” Middle East Journal 57:1 (2003). Comparative treatments of family law include Lynn Welchman, Women and Muslim Family Laws in Arab States. Amsterdam: Amsterdam University Press, 2008, and the contributions to Lynn Welchman, ed., Women’s Rights and Islamic Family Law: Perspectives on Reform (London: Zed Books, 2004).
[iv] In the case of honor killings, the provocation is identified in the behavior of female victims, but such defences have also been used to partially excuse violence against male victims in response to insults for example.
[v] https://www.jordantimes.com/news/local/cassation-court-sets-precedent-toughens-sentence-honour-killing’
[vi] See for example Valentine Moghadam, “Explaining divergent outcomes of the Arab Spring: the significance of gender and women’s mobilizations,” Politics, Groups, and Identities 6:4 (2018).
[vii] Bassell Salloukh, “Reimagining an alternative Lebanon: what lies beyond the sectarian system,” Executive, 8 November 2019.
[viii] Examples include Egypt’s “Protest Law” of 2013, Jordan’s 2015 cybercrime law, and a wide range of counterterrorism laws in the region that increase governments’ legal powers to restrict speech.
[ix] For a thorough treatment of women and gender in the 2011 uprising in Egypt, see Sherine Hafez, Women of the Midan: the Untold Stories of Egypt’s Revolutionaries (Bloomington: Indiana University Press, 2019) and Nermin Allam’s Women and the Egyptian Revolution: Engagement and Activism during the 2011 Arab Uprisings (Cambridge: Cambridge University Press, 2018). Both works make it clear that gender issues are not simply policy questions of the moment, but integrally connected to state-society relations both historically and currently.
[x] On Saudi dissent and repression in this case and more broadly, see Jennifer Pan and Alexandra A. Siegel, “How Saudi Crackdowns Fail to Silence Online Dissent,” American Political Science Review 114:1 (2020).
[xi] See for example Human Rights Watch, “Syria: Sexual Assault in Detention,” June 2012; Louisa Loveluck, “Syrian forces use widespread sexual violence to humiliate and silence male prisoners,” Washington Post, 11 March 2019.
[xii] Euro-Mediterranean Human Rights Network, “Detention of Women in Syria: a weapon of war and terror,” https://www.alnap.org/system/files/content/resource/files/main/321-emhrn-womenindetention-en-final.pdf (Copenhagen, 2015).