Iraqi penal code puts Kurdish women at a disadvantage


The previous article, “Kurdish women imprisoned for infidelity” generated a discussion on what was an alternative option in dealing with cases where women are unfaithful to their partners, and how moral crimes should be dealt with. The problem with this framework and line of analysing the issue is, moral ‘crimes’ are personal, and must be dealt with by people, not the state.

In this particular scenario, women who are unfaithful, and in contrast men who are unfaithful should solve their marital problems through divorce courts when necessary. In other words, if they wish to no longer continue their marriage because of one of them was unfaithful, they should simply divorce and settle their case through divorce courts instead of filing a case of adultery – bringing the state into their marital affairs.

Throughout Kurdistan Region ‘honour’ is perceived as sacred, in fact this is the case throughout Middle East. Once a woman’s honour is tainted, it is hard (if not impossible) in the public eye to regain its former status. Consequently, when a woman is put through the horrendous ordeal of having to justify her situation in front of a judge; she becomes publicly shunned, and disowned by her family. In many instances, when women are charged with adultery, they are later killed to preserve the family’s honour, or alternatively upon being released from prison, they enter shelter houses, which is a secondary prison because they can’t live normally out of fear of being killed.

Since the founding of Iraq in the 1920s, women enjoyed freedoms that were unprecedented in the region. Historically, they played a significant role in fighting for independence from Britain, providing shelters for soldiers, and much more. Similarly, Kurdish women have played a instrumental role in many parts of Kurdistan to preserve their culture, identity and to fight dictatorships. However, in Southern Kurdistan, which is still bound by much of Iraq’s penal code, there are laws in place that are discriminatory and puts Kurdish women at an disadvantage. For example, the Personal Status law was introduced in 1959 when Iraq became a Republic. It was generally agreed upon that the law would be orientated around the general principles of Shari’a, and many reforms were introduced. However, when Saddam Hussein came into power several of these reformatory laws were repelled.

Kurdistan Region, compared to the rest of Iraq has improved the status of women significantly, and has made progress on many levels that are unprecedented. Women have access to free legal aid, shelter houses, and there are provisions in place that protect women from abuse. Women are part of the political sphere, and hold high-ranking positions (although such positions are few, they are still more compared to the rest of Iraq). This is not to say that women in Kurdistan live perfectly, or don’t have their rights violated, but simply to highlight that some changes have been made.

Kurdistan Region has the legal capacity to change laws that puts women at an disadvantage or make provisions. For example, the penal code which was introduced by Saddam Hussein in 1990 made honour killings legal, but this was rejected by the Kurdistan Regional Government in 2000. Furthermore, under the penal code women are liable for the crime of adultery regardless of where such a crime is committed, in contrast men are liable only when such a crime is committed within the marital home (Article 377). This was amended in 2001 by the Kurdistan Regional Government under Law Number 9, which states that men are also liable regardless of where the act is committed.

Moral offences such as adultery/infidelity should be dealt with privately because they give rise to injustice towards women, and in many instances the cases are based on the testimony of the claimant, and the defendant (usually women) consequently bears the greater societal loss regardless of whether proven innocent or guilty. Since the Kurdistan Regional Government has changed other laws, which are deemed as discriminatory towards women, they should amend the current law that makes infidelity a crime to protect women from being falsely accused or at least put in place severe punishment for men who falsely accuse their wives or partners (if an overhaul of this law proves to be against the public will).

Once a woman is accused of infidelity, she is dragged through a horrendous procedure, and in general they are disowned by their families for having brought ‘shame’ upon them. They are detained or put in shelter houses until their cases are seen by a judge. Their entire lives are turned upside down, and it doesn’t make sense to selectively apply laws that are perceived as ‘Islamic’ by some, and contested by others when women continue to suffer because of it.