The ‘legal woman’: Sexual violence, the state and the law

On June 5, 2014, an amendment to the Egyptian Penal Code saw the introduction of harassment as a definitive crime. While the amendment does not fully satisfy the aspirations of many stakeholders, who fought for years to enact it (for example, the definition confines harassment to the act of stalking and following the victim, which excludes many acts of verbal harassment), it remains a crucial victory and an achievement worth celebrating. The irony, however, lies in the fact that despite harassment being a crime, the law, the state and society encourage the harassment of women, and here is how.

The law and the courts indirectly nurture harassment through establishing a definitive image of the model woman — an image that is used by many in society to justify sexual violence and blame the victim. The law has a codified perception of the woman; of her role in society, how she should be dressed, and how valuable her various body parts are. This perception has accordingly become a legal point of reference, making women more susceptible to sexual violence.

Television host Tamer Amin and Cairo University President Gaber Nassar, were obligated to make public apologies after they audaciously blamed the female victim who was assaulted by a mob of harassers on campus, based on the way she was dressed. But a look at the opinion of the country’s highest judicial authority reveals that the essence of Amin’s and Nassar’s opinions are, unfortunately, at times in perfect harmony with that of the law.

The Supreme Constitutional Court has actually stipulated that a woman “has to wear attire that reflects her chastity … that is not inappropriate, so as not to lure men by her appearance and cause them to violate her, which would lead her to sin, and undermine her honor and status.” (Constitutional court, case number eight, legal year seven). It is quite obvious here how the courts have a definitive image of women, which makes any divergence from it, a justification for sexual harassment.

Another example of the law’s treatment of a woman’s body lies in the rape article (number 267) of the Penal Code. The Article seems to give specific reasons for why women should be protected against rape. The law does not consider a man forcing a woman to have sex with him rape, unless the act involves “complete” intercourse between the female and male sex organs. This means that the so-called “virginity tests,” or rape using anything but a male penis, or involving any female body parts apart from the vagina, are not legally considered rape.

The rape article is not — at least not exclusively — based on the female’s full right to her body. The law actually assigns the female’s body parts different “value tags,” where some organs are more worthy of protection than others. In fact, it is more accurate to say that the female body is not really the primary concern of the rape article. The law here appears to be more interested in protecting against certain outcomes of sexual intercourse, which relate to genealogy, for instance. This is particularly why the law does not consider “virginity tests” an act of rape.

The problem does not only lie in the law and its codified perception of women and the female body. The dilemma lies in the fact that those entrusted with pushing for a change in the laws to make them more protective of women’s rights, particularly society and the state, have assumed very problematic stances on the matter. If we are to assume that a crime is an act that is condemned by the majority of people in a society, who believe such behavior requires punishment, harassment would not be considered a crime at all in Egypt.

Egyptian men are not reared to realize the gravity of sexual harassment, in the same manner that they grow up perceiving crimes like theft or murder. Sexual harassment is also not one of those acts that society is pressed to accept due to dire conditions, such as bribing a government employee or littering. It is in fact an act that society encourages individuals, particularly its men, to commit in various ways.

For some Egyptian teens, harassment is often the gateway from boyhood to manhood —an entry into the gang of toughs, if you will. For others, it is possibly a show of force, or punishment for women who do not abide by societal dictates on how to behave in public. A clip that has been circulating on social media, showing minors justifying harassment, demonstrates the futility of trying to find the core reasons behind the devastating ordeal.

As a society (or at least as men in this society), we encourage a certain act, at the same time as criminalizing it. According to recent studies by UN Women and other organizations, 99.3 percent of Egyptian women experience some form of harassment, which indicates that it is a norm. If we agree that the majority of Egyptian men commit harassment — and not a mere foolish and unbelievably active small crowd of harassers — criminalizing this act becomes rather puzzling.

If we, however, try to perceive the criminalization of harassment as an attempt by a “civilized” state to restrain harassers, then this would be even more puzzling. The state’s use of sexual violence, especially by its security apparatus, has been discussed numerous times. How can we forget the 2005 Kefaya protest, when police forces overlooked and directly participated in sexually assaulting female journalists in front of the Journalists Syndicate and the Saad Zaghloul shrine? To this day, the state is unwilling to take steps to identify and punish the assaulters, or to provide reparations for the victims, despite the ruling by the African Commission of Human and People’s Rights to this effect.

Another dreadful example are the so-called “virginity tests” that took place in 2011 under the rule of the Supreme Council of Armed Forces (SCAF). It went as such: Girls were dragged into a hallway, while being verbally assaulted, and then forced to undress by officers — not all of whom were men, a woman assisted them. The act was not merely sexual; it was punitive and repressive. The military officers conducted the so-called virginity tests by force, against the girls’ wills, claiming this was to protect themselves from possible rape allegations. They repeated the same act 17 times, the same grueling dreadful routine, sexually assaulting 17 women.

They sexually assaulted the women, so that these women didn’t later claim they had been assaulted! Absurdly enough, that was the official statement.

We are led to believe that officers — armed and in possession of the prison keys as well as other symbols of power — were actually just protecting themselves from potential false allegations. It is not only that we are not supposed to blame them, but also we are expected to empathize with them. Is this really the best line of argument they could come up with? Or is it that they do not really care? Or have given us such an absurd justification to show us that they have no remorse for their assault?

One of the victims bravely took the case to the military prosecutor — the exclusive arbitrator in military affairs, despite belonging to the same institution as the accused. After the military trial, the military judge acquitted the accused military officer. The judge partly based his decision on the grounds that the victim was delayed in reporting the crime, as the case was filled 100 days after the incident. He added, “she should have reported it to the prosecution when her case was being tried” (Supreme Military Court ruling on March 11, 2011, Case 918 of 2011). In other words, the judge wanted the victim to report the prison guards and the military doctor who assaulted her, while she was still being held inside the military prison!

The acquittal of the military doctor has raised concerns about the absence of justice, but what if justice was in fact upheld? What if the judge had found the military doctor guilty?

Before answering these questions, there is a need to highlight the scope of this case. It is an incident in which 17 young women were sexually assaulted, which raised a significant uproar among citizens who were not familiar with virginity tests as a torture method, and not used to females being the victims of such assault. I am not sure if this case came as a shock because of the horror of the act, or because such horror was different from the kind of horror we had previously been familiar with. At any rate, the act was grave enough, to the extent that it forced authorities to publicly announce that it was “routine,” which indicates that they were aware of its occurrence, even if there were no higher orders given for this particular incident.

Going back to the question of justice, what would’ve happened if the military doctor was found guilty? He would have served a period of no longer than a year, and paid a fine of no more than LE300, for committing an “immoral act.” The doctor was accused of violating Article 278 of the Penal Code, which criminalizes “anyone committing a public act that breaches the moral code.” It is, by the way, the same article that might be used to convict two lovers showing affection on the Corniche, should the authorities deem they to have breached the state’s moral standards. Following this line of reasoning, the act of violating the body of a woman (or 17 women) is not considered a crime against the victim, but against society’s moral standards.

The tragedy of the matter is that even if the doctor was tried for sexual assault (Article 268), the judge could have still have reduced the sentence, which the law dictates to be “maximum-security imprisonment,” by utilizing the clemency article (Article 17 of the Penal Code). According to a study by lawyer Taher Abu al-Nasr, this Article has been often used to reduce sentences in sexual assault cases, without giving adequate justification.

This entire ordeal finally boils down to a simple fact: The state does not want daring women who take to the streets to protest. This image of a female protestor defies the boundaries of the model female citizen that the state prefers. This is possibly most evident in the words of military general Ismail Itman, who commented on the case when he was a SCAF member. The famous journalist, Shahira Amin, told the court that Itman justified the virginity tests saying, “Miss Shahira, those girls are not like your daughters or mine; they camp out in Tahrir square, and what we did is just routine, so that they don’t accuse us of raping any of them after they leave … and military chief Sami Anan insisted on this.” (Shahira Amin’s account in court during the virginity tests case proceedings on February 26, 2012).

The tragedy does not end here. The state could have monopolized the use of sexual violence for political and punitive reasons, and forbidden others from committing such acts. The state could have protected women in general against sexual violence and lifted its protection on women who drift away from the state-sponsored model of the female citizen. But the state does not even want to monopolize sexual violence.

Despite the griminess of the situation, the amended anti-sexual harassment law — and other proposed amendments by various entities — are all positive steps for various reasons. The laws relating to women are not objective “natural” laws, but reflect a specific societal perception of women. The laws and the court rulings (whether they reflect societal or personal biases) play active roles in the debate about the “model woman,” her role and her right to her body. This legal perception plays a role in constructing and shaping the narrative. The problem is that the law is often cloaked in a visage of objectivity, which makes its biases and flaws often unclear. In other words, the law pushes a particular perception forward, giving the impression that any diversion is “unnatural” and “illegal.”

This article was originally written in Arabic here prior to the recent incidents of mob sexual assault in Cairo’s Tahrir Square during public celebrations of Abdel Fattah al-Sisi’s inauguration.

This article was orignially published at Mada Masr on the 11th of June, 2014