Three years after it was sent to legislators and following heated and protracted debates, the Tunisian parliament unanimously voted in favor of a new organic law outlawing all forms of violence against women, girls, and, under certain provisions, boys. The new legislation, containing 43 articles, adopted an integrated and mutually reinforcing series of measures ranging from prevention to criminal prosecution, to fines, to protection and assistance for victims.
The law is expected to enter into effect six months after it is published in Tunisia’s official gazette. While it is unanimously hailed as a revolutionary piece of legislation, some voices feel that the Tunisian government and parliament missed a unique opportunity to abrogate other antiquated laws and decrees that still treat women as second-class citizens.
An Undeniable Achievement
The new law makes it easier to prosecute domestic abuse and imposes penalties for sexual harassment in public spaces. It defines violence against women as “any physical, moral sexual or economic aggression against women…resulting in damage or physical, sexual, psychological or economic suffering to the woman.” The definition includes key elements from the United Nations Handbook for Legislation on Violence Against Women. Rape has also been defined as an act perpetrated against a woman or a man without her or his consent.
Under relentless pressure from women’s rights organizations, the new legislation struck down the controversial provision from the penal code (the infamous Article 227, commonly dubbed the “article of shame”) that allowed a rapist to escape punishment if he married his victim. It is noteworthy that these “marry-your rapist laws” are gradually being repealed in other Arab countries, such as Morocco and Lebanon, while regrettably remaining on the books in others, despite public outcry.
Under the new Tunisian law, domestic abuse is no longer a private matter; it has now become an issue that concerns the state, as one prominent female parliamentarian put it. Even if the plaintiff were to withdraw an accusation, legal proceedings against the alleged perpetrators will proceed undeterred.
Under the newly amended Article 227, rapists incur a 20-year prison term if convicted and a life sentence if use of a weapon has accompanied the act. Having raised the age of sexual consent from 13 to 16 years, the revised article foresees a six-year prison sentence for sexual intercourse with a minor without consent. Consent is deemed absent if the victim is less than 16 years old. The sentence is doubled if the perpetrator is a close relative with influence over the victim.
Other measures include criminalizing the employment of minors as domestic workers. Contraveners will incur a three- to six-year prison sentence.
The law also includes preventive measures such as directing the ministries of health, education, and youth, among others, to train their staff to detect and prevent violence against women. And it foresees an important role for the media, imploring them not to sensationalize egregious acts of violence against women. It also calls for the establishment of family violence units within the country’s internal security forces charged with investigating violent crimes against women, stipulating that these units should include women among their staff.
Further, the new legislation calls for the creation of a national observatory to combat violence against women under the purview of the ministry responsible for women affairs. The tasks entrusted to it includes the preparation of a report during the first quarter of every year to be presented to Tunisia’s president, the president of the parliament, and the head of government. It will also be made public.
For the nearly 50% of Tunisian women who have been subjected during their lifetime to untold forms of domestic violence and abuse and the nearly 80% who have been victims of sexual harassment in public spaces, these new measures are a long overdue vindication of Article 21 of the country’s 2014 constitution, and particularly Article 46, where, inter-alia, the state is directed “to take all necessary measures in order to eradicate violence against women.”
This new law has already been called a “revolutionary” piece of legislation by Tunisian Minister of Women, Family, and Childhood Neziha Labidi. She termed it “the best gift that can be offered to Tunisian women as they prepare to celebrate Women’s Day, on August 13.” According to the French daily Le Monde, it is “a historic law.” Human Rights Watch also called it a “landmark step to shield women from violence.” The headlines hailing this legislative achievement in national and international newspapers are, in fact, too numerous to cite.
While the new law does indeed constitute an unequivocal major advance for women’s rights in Tunisia, several dissenting voices are claiming that it does not go far enough, and that the government, in its timidity and self-censorship, has left intact some antiquated, egregious provisions in the legal system that treat women as second-class citizens, despite a progressive constitution which guarantees equality of rights and duties.
Among these longstanding anachronistic provisions, three stand out. The first is the inheritance laws, which, based on Islamic jurisprudence, entitles female heirs to only half of the share of property of their male peers. The second is the “virginity tests” that are used to “prove” whether a woman or girl is a virgin—a practice the World Health Organization condemns as degrading, discriminatory, and unscientific. The third and final antiquated provision is a 1973 Ministry of Justice decree that bans Muslim women from marrying non-Muslims men, unless the latter convert to Islam and submit a certificate of conversion as proof. Tunisian men, on the other hand, have the freedom to choose their spouses regardless of their religion. Such unequal treatment is deemed unconstitutional and many civil society organizations have repeatedly called for its abrogation to allow Tunisian women to marry freely outside their faith.
These dissenting voices are calling on the president, in accordance with Article 81 of the constitution, not to promulgate the new law and send it back to parliament for a second reading. They seem to be embracing the hope that the deputies can summon the same political will to pass the recent law to address these demeaning clauses, which perpetuate the very inequality and violence that the fresh legislation purports to eradicate.
While these arguments should not be dismissed—nor should anyone underestimate the mobilizing power of civil society—it is unlikely that the president will heed the call, sacrificing the good on the altar of the perfect. A more realistic scenario, where progress is possible, is for the constitutional court, when it becomes fully operational and respected, to strike down these and other discriminatory and demeaning laws by declaring them unconstitutional.
In the meantime, what the president could do during his expected speech on Women’s Day on August 13 is to declare, as a minimum, that there is no room in Tunisia’s legal system for laws and practices that flout the egalitarian spirit and the letter of the Tunisian constitution, and that degrade women and rob them of their acquired right to be treated as equal citizens. He would thus honor the one million women who cast a decisive vote for his election as president.
What should also be done as a matter of equal urgency is to provide the Ministry of Women, the Family, and Childhood the necessary resources (which it woefully lacks) to put in place the various implementation structures and carry out the training programs and sensitization campaigns called for by the new law. To paraphrase the preamble of UNESCO’s constitution, it is in the minds of men that violence and inequality reside and it is in the minds of men that the defenses of equality and tolerance must be constructed.