Will Constitution Curb Wife Abuse?

Activists are hoping provisions in the new draft constitution that make domestic violence illegal will help curtail the abuse suffered by many Iraqi women at the hands of their husbands.

Article 41 of Iraq’s current penal code allows a husband to beat his wife for various reasons, including “for the sake of righteousness, as disciplining”.

Lawyers say this provision has often been used in court to defend domestic abuse, and is backed up by a January 2002 decree by the ministry of justice stating that women who were beaten or insulted were not justified in asking for a divorce.

To date, the Iraqi parliament has lacked legislative powers and has been unable to amend any provisions in the penal code.

But some women’s rights activists are optimistic about the decision to include a clause in the draft constitution saying that “violence and abuse in the family, school and society shall be forbidden”.

“The draft constitution automatically annuls Article 41 that allows a husband to beat his wife,” said Faiza Baba Khan, a jurist and a National Assembly member. “The draft constitution prohibits family violence.”

Though high unemployment and constant insecurity on Iraq’s streets have contributed to spiraling abuse rates in recent years, domestic violence has long been a problem in Iraq.

Under Saddam Hussein, Iraq’s penal code exempted from punishment men who killed their female relatives in defence of family honour.

Another provision allowed a woman who asked for too much gold jewellery to be whipped by her husband, who was also allowed to beat his wife for "educational" purposes.

Legal expert Hameed Abdul-Wahab says that even legislation that ostensibly protect women – such as Article 413, which allows them to file lawsuits against violent husbands – are seldom invoked.

“They never dare litigate against their husbands,” he said.

The Iraqi parliament approved the draft constitution on August 28 but talks are still ongoing over minor changes in the wording to appease Sunnis, who objected to the charter.

Iraqis will have a chance to vote on the draft during a referendum on October 15. However, if two-thirds of voters in three of Iraq’s 18 governorates vote against the charter, it will fail.

Even if the constitution is passed, some women’s rights activists fear that the new provisions banning family violence don’t go far enough.

They also worry that the provisions may be outweighed by another article, which states that Islam is to be “a basic source of legislation”.

According to some interpretations of Islamic practice, the Koran may sanction marital violence in certain circumstances.

National Assembly member Asmaa al-Shubboot says conventions and social restrictions also make it less likely that the provisions will have the desired effect.

“Women here are afraid to go public because of customs and tradition and a lack of education,” said al-Shubboot.

Shareef Hazza and Raghad Ali are IWPR trainees in Baghdad.