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“ECCE” Article 308: With or against abolishing art. 308?

“ECCE” Article 308: With or against abolishing art. 308?

The word “Ecce” comes from the Latin language. It means “here is, have a look to, behold”. It is ordinary use is to present, to display, in better words to exhibit something. It has religious and anthropological roots. In common sense, it is known to be related to, and to take part of the expression “ecce homo”- It seems as though, “ecce homo” (here is the man, behold the man) was used by Pilate to show Jesus to the crowd before him to be crucified – but that is a different story.

Therefore, “ECCE Article 308”. Here is Article 308: Article 308 has been part of the Jordanian Penal Code since 1960. On 1st August 2017, The Lower House of Jordanian Parliament voted, and agreed, on the abrogation of it from the Penal Code. To be more precise, the law will officially lose its validity after the authorization from both the Senate and the King, but experts are optimistic in this direction.

However, is it that advantageous and socially wholesome to be optimistic, in this regard? The abrogation itself risks to be and to beget a controversial issue. Accordingly, this article ventures to be a humble exegesis of both opportunities and negative contingencies that may result from the abrogation of Article 308 as such.

Article 308 rules and regulates the relationship, if it is possible to call it that, between a victim of rape and the rapist himself. To be more precise and more accurate with its function, the article is clearly supposed to be a safe-conduct for those men who are guilty of rape. It allows these criminals to avoid the deserved legal consequences of their brutal actions as long as they marry their victims, enduring within the marriage for at least 3 years.

This is the main reason why, supporters of the abrogation, have welcomed the initiative of the Lower Parliament as a step forward for Jordan. In this direction, Salma Nims General Secretary of women Jordan Commission talks about a victory for both women and human rights. From this perspective, this law is an impunity guarantee. Equally, it is perseverance in the crime, both for the criminal and for the society. It appears to ease social complicity and social connivance, through a general acceptation and coverage of the action.

Moreover, it is a double condemnation for the victim. A victim that is supposed to deal, the whole life, with the moral affront of an unpunished rape and with the spiritual and mental aftermaths of forced marriage. Along with this viewpoint, this legally recognized cover provides no assistance and no support to the victim since it works to physically, and morally, expose the victim even more. Who is the abrogation of article 308 may think of the law revocation as proof of official stance, for and from, a desirable national cultural achievement: in better words, rape is a crime and marriage is not an act of impunity but a consensual, free, mutual act of love.

But if rape is a crime on logic and conceptual scale, what about a legal conceptualization of rape as a crime, in case Article 308 accomplishes abrogation? Is it a fact that victims do not access to any kind of support through Article 308? This may be the position and the reasoning of those who are hesitant over the necessity to repeal the law from the Penal Code. Indeed, the procedure of removing the article may exacerbate a status of impunity with regard to criminals of rape. In this sense, Jordan appears to miss a regulation over rape. Jordan does not have a crime that is officially called rape. In better words, there are no laws that criminalize or testify the rapist as such. This leads to jurisdictionally and socially damaging effects. Indeed, these men are not prosecuted. There are no legal measures against them. They are not convicted. Therefore, this brings about the sad truth that victims are not socially considered as such. There is no social elaboration of the victim as a victim and of the rapist as a criminal. Society does not discern this as a problem. It does not recognize this like a plague.

There are some issues under the table that are related to this topic, alluding to social and cultural implications, which cannot be detached from, but still may not solve, the process of evaluation of this dialectic around the 308.

Accordingly, the way families deal with the issue is a fact. There are plenty of stories of girls, who were forced to resort to the measures of Article 308, by their own parents, to compensate the dishonor of having been raped. Dishonour is the opposite of respectability. Dishonor should not be an issue because the loss of respectability/ honor that affects raped women is a contradiction in terms, since raped women have inflicted no pain, but suffered it. This argument would lead to objectively and emotionally reject the law itself. Nevertheless, to the attention of whom it may concern: is society adequately ready to welcome raped girls and to not put them on social trials? What is more, the way pregnant girls need help is another pivotal fact.  In case girls get pregnant as a consequence of rape, how can they deal with their condition? Jordan does not allow abortion. It is illegal. Equally, Jordan does not allow women to register their babies if not born within the marriage. Their destiny is then to resort to orphanages were to leave their children.

This suggests Jordan may need the support of new legislative measures that should act as valuable frameworks for the abolition of Article 308. This could attenuate some of the consequences of the abolition of the law, an abolition that itself, risks becoming a golden age for the victims, then. There should be an adequate, equipped social and jurisdictional context around the revocation of Article 308.

To sum up, Jordan has decided to make a change. It has decided to start doing it, by focusing on women. Article 308 may look like a signal of solicitude and attentiveness in this direction. It is necessary but likewise controversial to detect the extent to which this change is a wise change, as long as it results from the abrogation of Article 308. The debate is open.

Maddalena Migliori

Bada'lya البدائلية