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A Rape Case in Tunisia puts the Legal System on Trial
Tue, October 02, 2012 - 5:52:11

This article appeared in today's The National. To view the original article click here.


Faisal Al Yafai

At least, that's how activists see it. And, despite the provocative campaign they have run, using the accusatory slogan "Rape her, then Judge her", the implications of the case are troubling, both for how the law is applied and for gender equality in post-revolution Tunisia.

The woman, who has asked the media not to use her name, was with her fiance in a car in a Tunis suburb early last month when three police officers stopped them. According to the woman's account, the man was then handcuffed, while she was taken to the back seat of the police car and raped by two of the officers.

She subsequently filed charges and the two policemen have been arrested and now face trial. Activists say the case is unique in Tunisia because it marks the first time a victim of rape by the police has taken the case to court.

But at the end of last month, the couple were themselves also arrested on charges of "indecency", accused by the officers of being found in an "immoral" position when they first stopped the car.

Many Tunisians have reacted furiously, arguing that the charges are a clear attempt at intimidation. A group of NGOs released a statement saying the case "transforms the victim into the accused" and arguing that the charge was "designed to frighten and to force her and her fiance to waive their rights". Subsequent protests and developments in the case have been widely followed in Tunisia and abroad.

The Ministry of Interior has said the charges were brought by the magistrate, thus exonerating the government of any involvement. But the Tunisian activist Lina Ben Mhenni argues that the ministry, by giving a press conference detailing the charges, tried to "manipulate public opinion and make them forget the real scandal - the rape - by arguing that the victim and her fiance were in an indecent posture when they were arrested".

The case reconvenes in Tunis today, and the judge is expected to rule on whether to proceed. The right course of action is clear - there is no public interest in prosecuting the couple. They should be set free.

At the root of this case is a narrow question of the law, and a larger question of the public interest. It is the court's duty to consider both.

The first question is whether the couple did something illegal. Others have argued that there should be no law in Tunisia which criminalises "indecency". That is one point of view, but a point for lawmakers and politicians. The courts merely interpret the law, and in this case prosecutors have decided that there is evidence of a crime.

But there is also a wider question and context. This case is part of what is happening - legally, politically and socially - in post-revolution Tunisia.

Although the law stands above everyone, courts do not stand apart from society. Ultimately, courts must balance the facts of the case with whether a prosecution is required in the public interest. In this case, clearly, the prosecution deters other women from coming forward.

The social context in this case matters. There are concerns among Tunisians that, as the country moves to write a constitution and prepares for elections next year, the power of the Islamist majority is being felt widely.

Feminists have complained that police harass women over their clothing, an accusation keenly felt in a society where many fear the social freedoms gained over the past few decades could be reversed.

Ennahda, the largest political party, has tried to tread a consensual line in drafting the constitution, but raised eyebrows - and street protests - when it suggested dropping the "equal" status of women in favour of "complementary". The backlash was furious and the proposed change has since been dropped.

The lawyer of the woman in this case, Bouchra Belhaj Hamida, has specifically singled out Ennahda, arguing the Islamist-led government was "morally and politically" responsible for police attacks. Police violence, said Ms Hamida, was "not organised, but the language of [Ennahda] on women has paved the way for it".

To a degree, the courts will help to interpret and define Tunisian society. After so many decades of authoritarian rule, when a culture of state impunity existed and the use of security forces to intimidate opponents was routine, many Tunisians hoped the revolution signalled the beginning of a new order.

The courts should reflect that - and perhaps the judge should consider that in a post-Ben Ali era, crimes committed by agents of the state are more detrimental to society than any alleged indecency.

Rape victims already fear coming forward, and ordinary citizens still fear that police act with impunity.

It is in this political and social context that the judge in Tunis will today decide whether to proceed with the case. He should decide there is no public interest and release the couple.

The account of this young couple details a grievous attack, and the consequences of the case will follow them for the rest of their lives. With rape charges outstanding against the police officers, there is no public interest in persecuting the couple further. Tunisians will be standing outside the courthouse this morning hoping the judge agrees.