PRELIMINARY BIBLIOGRAPHY: “CRIMES OF HONOUR”

PREFACE


 

This bibliography has been prepared under the auspices of the Project on “Strategies of Response to Crimes of ‘Honour’”, jointly co-ordinated by CIMEL (Centre Of Islamic and Middle Eastern Law) and INTERIGHTS (International Centre for the Legal Protection of Human Rights).  It includes annotations of published material from books and journals --both general and regional -- followed by case summaries from several countries (Australia, Bangladesh, Pakistan, the UK and the USA). 

The co-directors of the Project, Lynn Welchman, Director, CIMEL, and Sara Hossain, Legal Officer (South Asia), INTERIGHTS, would like to acknowledge the work of Samia Bano, former Research Assistant on the Project, in producing this bibliography. We also thank the following people who have volunteered in preparing annotations and in suggesting further sources: Cassandra Balchin, Christina Brandt-Young, Leyla Gulcur, Connie Hackbarth, Fouzia Khan, Ana Paula Linhares, Lisa Malesky, Naz Modirzadeh, Elaine Ngai, Rupa Reddy, Javeria Rizvi, Ziyad Sheikh, Anjolie Singh and Anna Yarmon. We would like to acknowledge Amnesty International for annotations of their reports on honour killings in Pakistan and to thank the International Women’s Health Coalition (IWHC) and the University of Minnesota Human Rights Centre for placing the bibliography on their websites (see www.iwhc.org/uploads/HONORCRIMESBIBLIO.PDF or www.1.umm.edu/humanrts/bibliog/honourintro respectively).

AIMS

This bibliography aims to assist those working to combat crimes of 'honour' by facilitating research and the development of strategies of response. We invite comments from users regarding possible improvements and additions to the bibliography, as it is clearly not exhaustive, and we intend to add further items at regular intervals to increase its usefulness as a tool for advocacy and research.

SUGGESTIONS FOR CHANGE

We should underline that the annotations are the work of the project, not of the cited authors of the various items. If any of the authors, or others, feel that we have misunderstood the substance of the piece, or missed out critical points, please do contact us at the email above with corrections and we will ensure that the annotation is amended accordingly.

Please send any suggestions for changes or additions to the bibliography (indicating where such materials might be located) by email or post to

·        cimel@soas.ac.uk citing ‘changes to bibliography’ as the subject title or

·        CIMEL, SOAS, University of London, Thornhaugh Street, Russell Square, London, WC1H OXG, UK.


Contents

1. General                                                        

2. Regional                                                                                 

    a)  Africa                                                              

    b)  Americas                                                                                                         

    c)  Europe                                                               

    d)  Middle East/North Africa                                            

    e)  Asia/South Asia           

3. Case Summaries                                                  

a) Americas                                                              

         USA                                                               

b) Europe                                                                 

         England                                                       

         Ireland                                                            

         Scotland                                                          

c) Asia/South Asia                                                    

Australia                                                          

Bangladesh                                                      

Pakistan                                                          

  

1. GENERAL

NEW ENTRY:

Abu-Odeh, L., ‘Comparatively Speaking: The “Honor” of the “East” and the “Passion” of the “West”’, Utah Law Review, (1997), 287-307.

The author describes dishonouring as a “collective injury” in which daughters and sisters, not only wives and girlfriends (or ex-wives and ex-girlfriends), are victims.  In contrast, a crime of passion is an “individual injury” and a result of sexual jealousy.  Whereas Arab laws have tended, more recently, to diminish the relevance of emotion in penalty reductions for honour crimes, the “West” has essentially moved in the opposite direction; a “humanizing” movement toward accounting for emotions replaced a prior emphasis on more honour-based contexts of defence.  This movement, however, has perhaps increased the danger of violence to women, as it had more often been the paramour who was likely to be killed in the honour/provocation context.  Both honour and passion allow for retaliation against a “broad spectrum of actions”.  The defence of passion in US Penal Codes may be based on a narrow interpretation requiring an observation of the victim in a sexual act or a broader interpretation of such passion being sufficiently elicited by a belief (whether true or not) on the part of the aggressor that his partner has become sexually engaged with another.  Likewise, the defence of honour across a variety of Arab Penal Codes may be applied to crimes committed in response to a range of women’s behaviours which may provoke suspicion or be perceived in and of themselves as an affront to the violating group’s or person’s honour.  The author argues that the violence of each reveals the somewhat contradictory fallacies that the “East is different from the West” and that “violence against women all over the world is the same.” She concludes that the honour of the "West" is the passion of the "East", and vice-versa, in that the provocation defence formerly relied upon in the common law of the "West" required the restriction of flagrante delicto.  This restriction is the 'passion'’ element of the Arab Penal Codes; without it the crime is only defensible as one of honour.  The author describes parallel “structural pairings” to "honour vs. passion" of “justification vs. excuse”, “objective vs. subjective standards”, and “judge/law vs. jury”.

An-Na’im, A. A., ‘State Responsibility under International Human Rights Law to Change Religious and Customary Laws’ in Cook, R. J., (ed.), Human Rights of Women: National and International Perspectives (Philadelphia: University of Pennsylvania Press, 1993), 167-188.

International human rights mechanisms must be invoked to ensure that customary practices or religious laws do not violate the rights of minorities within communities.  The practice of some forms of Islamic family law, for example, may lead to the violation of women’s rights within certain Muslim communities.  However if real change is desired then the application of human rights mechanisms must work in conjunction with dialogue with and between communities. Furthermore, the human rights discourse has adopted a ‘western’ approach whereby notions of ‘rights’ and ‘culture’ have been defined by the West creating what seems to be a ‘cultural legitimacy’ of human rights. A new approach to the relationship between local culture and human rights standards is outlined which seeks to open dialogues between international human rights standards and local communities as a way of changing certain oppressive traits of religious and customary laws and thus ensuring conformity with international law.

Baker, N. V., Gregware, P. R. & Cassidy M. A., 'Family Killing Fields: Honour Rationales in the Murder of Women', Violence Against Women, 5 (2) (February 1999), 164-184.

The authors of this study focus on the 'basic elements' of honour rationales in the murder of women, comparing the patterns of conduct in both traditional cultures and English speaking countries, to establish that such rationales are a 'world wide phenomenon'.  In their comparative assessment of honour and the killing of women, the authors examine three elements: control over female behaviour, feelings of shame experienced by the female's family when control is threatened, and the involvement of the community.  The authors assess the existence of these elements in certain intimate-perpetrated femicides in English-speaking western states, concluding that while honour undergoes a transformation in these contexts, particularly with the weakening of the community element, “the fact that honor is not an overt rationale for many femicides in the West does not negate its significance as a possible explanatory factor.”

Coomaraswamy, R. and Kois, L., ‘Violence Against Women’ in Askin, K. D. and D. M. Koening (eds.), Women and International Human Rights Law, Volume 1 (New York: Transnational Publishers, 1999), 177-286.

This chapter sets out the international legal framework related to state obligations to address violence against women.  It describes the various manifestations of violence against women and the legal responses to such violence.  Violence against women in the family can take various forms and is often located within the patriarchal power relations of a marriage.  Studies illustrate the prevalence of domestic violence and marital rape.  Domestic violence is utilized by both formal and informal actors to control women by controlling the one space universally inhabited by women -- the home. Violence within the community is also prevalent, where sexual offences are often condoned by the  state through failure of intervention and inaction.

Coulson, N., ‘Regulation of Sexual Behaviour under Traditional Islamic Law’ in Al-Sayyid-Marsot A. L. (ed.), Society and the Sexes in Medieval Islam (Malibu, California: Undena, 1979), 63-68.

Traditional Islamic law stipulates strict codes of behaviour in relation to sex and sexual behaviour.  According to the author, there exists no distinction between law and morality. Lawful sexual relations take place only within a legal marriage.  Other sexual relations are criminalised.  In general terms, Islamic criminal law is a two-tier system. The higher tier consists of certain defined offences entailing fixed punishments and known as hadd offences. The lower tier consists of all other offences, broadly categorized as less serious versions of the hadd offences, considered to fall within the tazir (‘deterrent’) jurisdiction. Here, the determination both of the offence and of the punishment is a matter for the discretion of the authorities, executive and judicial.

Goodwin, J., The Price of Honour: Muslim Women, Lift the Veil of Silence on the Islamic World (London: Warner Books, 1995).

This book examines how the concept of honour in a number of Muslim countries may affect Muslim women. ‘Honour’ is defined as a mechanism to control female sexuality and ensure gender segregation through the operation of ‘purdah’. Women’s basic rights to education and employment and within the family and community are therefore severely curtailed. The book comprises of country studies including Pakistan, Iran, Afghanistan, Iran, Kuwait and Egypt.  One particular focus of the book is the relationship between militant repressive governments in these particular countries and the emergence of ‘political Islam’ which has led to the restriction of autonomy and choice for Muslim women.

Hassan, R., 'Feminism in Islam', in Young, S. and Young, K. (eds.), Feminism and World Religions (New York: State University of New York Press, 1999), 248-278.

This chapter examines the 'original' source texts of Islam (in particular the Qur'an and the Hadith) to challenge the historical absence of women within Islamic thought and to question the continued subordination of Muslim women under the guise of Islam. The author examines key Islamic texts and questions theological debates to consider why women are defined as 'unequal' and 'inferior'. Central to these ideas are the patriarchal constructions of 'honour' and 'shame' which seek to control female sexuality. For example, in traditional Arab society, women embodied the 'honour' of the family and community and this honour was directly linked to ideas of women's chastity or sexual behaviour. The term 'ird' was used to symbolise female honour and if women were seen to transgress this honour they were often killed. This practice of killing women in the name of honour continues in many Muslim countries today as women's sexuality is seen to be vitally related to men's honour and self-image in Muslim culture. A Muslim theology both for Muslim women and men is outlined which challenges the male interpretation of Islam and asserts that universal fundamental human rights values exist in Islam.

Leader-Elliott, I., ‘Passion and insurrection in the law of sexual provocation’, in Naffisen, N., and Owens, R.J., Sexing the Subject of the Law (Sydney: Sweet and Maxwell, 1997), 149-169.

The chapter examines the “sex and sexuality” of the plea of provocation, and its current application in Australian courts. A brief historical review of the earlier English law on adultery and theft is followed by a consideration of the relatively recent development of the modern law on provocation, which finds that “sexual provocation is a cultural defence which transcends religion or ethnic origin, and claims for itself a constituency almost exclusively masculine.” The author also considers court-imposed limits on the right of self-defence when a woman kills her violently abusive partner, and the evidence needed to establish loss of self control. The author’s question to the reader in conclusion is whether, in light of the evidence, sexual provocation should reduce murder to manslaughter

Mahmud, J., ‘Crimes against Honour: Women in International Refugee Law’, Journal of Refugee Studies, Vol.9, No.4, (1996).

This article examines two perspectives concerning refugee women in legal literature. One perspective argues that sex should be included in the Refugee Convention definition, of a ground of persecution and that the concept of ‘persecution’ itself should be reformulated to incorporate the experience of women. The second perspective argues that a distinction must be drawn between a persecutory ground and that issues relating to sex can be better addressed within the legal structures which currently exist. The article first provides a backdrop to the debate which discusses sexual violence and other forms of violence against women which exist in the refugee context; then gives a detailed exposition of both perspectives; discusses relevant practice in the area with reference to the Canadian experience; and finally provides comparisons and conclusions.

NEW ENTRY:

Mayer, A. E., Islam and Human Rights: Tradition and Politics, Third edition (Boulder: Westview Press, 1999), 106-113.

This section, part of a chapter entitled 'Restrictions on the Rights and Freedoms of Women', deals with the Universal Islamic Declaration of Human Rights (UIDHR). The author argues that the UIDHR denies women a number of rights and freedoms under the guise of applying Islamic principles. She addresses disparities between the English and Arabic versions of the Declaration and compares various UIDHR provisions to their counterparts in the Universal Declaration of Human Rights (UDHR). Article 19(a) of the UIDHR qualifies the entitlement to marry - unqualified in international law - by indicating that rules of the shari'a will impose restrictions. However, while the UIDHR contemplates retaining various pre-modern shari'a rules that impose restrictions on women, it provides in Article 19(i) that no one may be married against his or her will. As forced marriages do still take place, despite widespread prohibitions on compulsion in many modern personal status laws, the author credits the UIDHR with supporting the idea that as a matter of Islamic principle no one should be compelled to enter a marriage.

Thomas, D. Q. and Levi, R. S., ‘Violence Against Women: An Introduction’ in Askin, K. D. and Koening D. M., (eds.), Women and International Human Rights Law (New York: Transnational Publishers, 1997), 139-176.

This chapter details diverse forms of violence against women in a number of countries.  It highlights how violations against women may possess certain similarities worldwide yet the manner in which women experience mistreatment differs vastly within and between different countries. A number of country studies illustrate the varied nature of violence and abuse directed at women, including domestic violence, custodial abuse and employment discrimination, which transcend cultural, ethnic, religious and class divisions. The state is reluctant to intervene, often colluding with the perpetrators or failing to provide adequate protection for women. Discriminatory family laws are often justified in the name of tradition. Crimes in the name of ‘family honour’ are documented in a number of countries.

Youssef, N., ‘Cultural Ideals, Feminine Behaviour and Family Control’, Comparative Studies in Society and History, 15(3) (1973), 326-347.

This article highlights the importance of the structural context of family behaviour to explain the considerable dissociation in Latin America between values related to family organisation and the way women behave in actuality. Family organisation in Latin America is noted for its strong familism, patriarchalism and a tradition of male domination and the subordination of women. The family, as the primary source of identity, controls individual behaviour through the social value of honour. Family honour is linked to the interdependent characteristics of the manliness of the man (machismo) and sexual purity of the woman (verguenza). It is expected that a social system in which the security of a man's honour lies in the sexual purity of his female relatives will engender within its very structure rules confining women to a traditional role of marriage and motherhood. However, data from Latin America in the 1960s demonstrates female behavioural patterns relating to age at marriage, births outside marriage, literacy and education standards and participation in the labour force, all of which are incongruent with normative prescriptions. In contrast, data from Middle Eastern countries is presented which illustrates that most of the normative expectations regarding the female role are being met. This article further argues that women’s behaviour in Latin America diverges from cultural norms as the monolithic system of family authority and institutionalisation of ideal family norms have been weakened by two primary factors: the impact of the Spanish conquest and the influence exercised by the Catholic clergy. These situational circumstances have enabled a range of alternative behavioural patterns for women to supercede the single traditional role circumscribed by culture and sustained by family ideals.


2. REGIONAL

a)      Africa

 

NEW ENTRY:

Amnesty International & CODESRIA, ‘Monitoring and Investigating Sexual Violence’, (Basford: Russell Press Ltd., 2000).

A collaborative effort by Amnesty International and the Council for the Development of Social Science Research in Africa (CODESRIA), the report is informative and useful in its assessment of what constitutes sexual violence; for example, forced (or servile) marriage constitutes ‘a woman or girl child being given into marriage, without the right to refuse, by her parents, guardians, the community, etc.’ Moreover, the definition of sexual violence encompasses acts of torture and/ or cruel, inhuman or degrading treatment, as defined by the Convention Against Torture and Article 7 of the International Covenant of Civil and Political Rights.  It also considers when the State is responsible for holding accountable perpetrators, armed groups and private actors for their part in the commission of sexual violence. In its assessment of what practical measures should be utilised to monitor sexual violence to provide long-term observation and analysis of the human rights situation in a country or region, it proposes three steps; the collection of information on the law, political climate, organisation of the security forces and armed groups, recording and following-up individual allegations of sexual violence and finally, analysing information and allegations to identify patterns. It also proposes methods that could be employed in conducting fact-finding and how evidence ought to be assessed. It concludes with four annexes that detail the medical and social consequences of sexual violence, a check-list for interviews of victims of rape or other forms of sexual violence, recommendations and possible actions that ought to be implemented by private and/ or state actors and the international and regional standards of human rights law in relation to acts that would constitute sexual violence.

b) Americas

Andrade, V. R. P., ‘Criminologia e Feminismo’, in Baratta A., Streck L. and Andrade, V. (eds.), Editora Sulina (1999), 105-117 (Portuguese Text).

The article stresses the serious crisis of legitimacy of the criminal justice system in Brazil. It points out that the criminal justice system faces ambiguous demands by society. On the one hand, there is a demand for a minimalist approach to sentencing, and on the other a demand for the criminalisation of certain conduct. Feminist demands encompass this ambiguity, by demanding decriminalisation of abortion, adultery and seduction, for instance, and the criminalisation of other acts, such as domestic violence and sexual harassment. The article questions the logic behind this contradictory methodology and the value of the criminal justice system in protecting women against violence. It argues that the criminal justice system actually repeats the victimisation process, as women become victims of institutional violence reflecting social and patriarchal discrimination, a process which ultimately affects the unity of the feminist movement. Rather than find protection in the system, women are put on trial and divided. Perpetrators and victims are selected according to their sexual reputation, establishing a great dividing line between ‘honest’ and ‘dishonest’ women. The author considers the criminal justice system to be unable to serve as a source of cohesion and unity for women, instead acting as a dispersion and exclusionary strategy which recreates inequalities and social prejudice. Legitimisation of the criminal justice system as a forum for addressing problems faced by women also deviates efforts within the feminist movement towards more creative, radical and efficient solutions.

Andrade, V. R. P., ‘Violencia Sexual e Sistema Penal: Protecao ou Duplicacao da Vitimacao Feminina?’, in Dora, D. (ed.), Feminino e Masculino: A Igualdade e a Diferenca na Justica, (Themis, 1997), 105-130 (Portuguese Text).

This article reflects from a feminist perspective on the ability of the criminal justice system to protect women against violence. The article argues that the use of the criminal justice system for the protection of women is flawed. The system is selective and unequal and results in institutional violence which also affects the victims. Women who make use of the criminal justice system may find themselves subjected to institutional violence which reproduces the structural violence of capitalist and patriarchal relationships. In cases of violence against women, the central issue is not the aggression and violation of freedom suffered by the woman concerned, nor the conduct of the man, but the examination of the character, social status and the past of both victim and perpetrator. The article argues that sexual reputation is as decisive for female culpability as social status is for male culpability. The protected legal object in crimes against women is the dominant sexual morals and not the sexual freedom or physical integrity of women. The author concludes by affirming that only by changing the male legal paradigm can women achieve a symmetry of rights.

NEW ENTRY :

Araji, Sharon K., Crimes of Honor and Shame: Violence against Women in Non-Western and Western Societies (University of Alaska Anchorage, 2000).

The author begins by evaluating relevant literature from traditional and developing countries, to discuss the historical and cultural connections between violence against women and concepts of honour and shame, to indicate that men predominantly perpetuate this type of violence against women.  In light of the framework of the theoretical rationale of neo-patriarchy and private patriarchy, the role of the male as perpetrator and of the female as the victim is discussed within the context of honour and shame in both traditional and western societies.  The discussion also embarks upon the role of the community and the abuse of women, violence against women and the control and abuse of women in both types of societies, as well as a comparison of the community’s involvement in crimes of honour in traditional and western societies.  The author concludes that male and/ or family honour depends on the control of women’s behaviour, arguing that honour systems legitimise patriarchy, and thus define the public sphere of life as dangerous and even off limits to females.  Further, she adds that the honour cultural belief system legitimizes abuse, even the murder of women, as violations of honour codes in both traditional non-western and modernizing western societies.  Finally, the author states that honour ‘as an overt explanation for violence against women in modern western societies such as the US -- should not be negated’ and that future research should consider the importance of honour systems to explain ‘the antecedents and consequences of male violence against women in intimate relationships in Western countries.

Barsted, L. L., Metade ‘Vitimas, Metade Cumplices? A Violencia contra Mulheres nas Relacoes conjugais’,  in Dora, D., (ed.), Feminino e Masculino: A Igualdade e a Diferenca na Justica (Themis, 1997), 73-84 (Portuguese Text).

Victimology, the branch of criminology which investigates the contribution of the victim to the occurrence of crime, is the theme explored in this article. Although in certain situations the conduct of the victim may be decisive for a dramatic turn of events, it is important to bear in mind that cultural standards of behaviour work distinctively and what could be considered as contributory conduct for a woman may be regarded as normal for a man. Social scientists should not allow victimology to be manipulated by gender bias. There is no evidence to suggest that women have a docile, sweet nature and men a violent and aggressive one. Cultural patterns however influence conduct – the expression of each individual’s nature. Statistics show that men are mostly victims of violence committed by strangers, whereas women are most likely to suffer violence committed inside their own homes. It is suggested that it is not helpful to see women as passive beings suffering violence. In many recorded cases, women are killed by their husbands precisely because they are trying to separate or create conditions for a possible future separation. The article argues that the lack of a strong position by the state in relation to domestic violence reinforces the idea that this kind of aggression belongs in the private sphere. When the state does not punish, or when it treats domestic violence as a form of ‘minor violence’ or second-class offence, it gives out signals that private justice is acceptable, when in reality it is barbaric and undemocratic. It is argued that the politics of the Brazilian judicial system in relation to domestic violence implicitly contributes to gender violence in the home and family.

Gupta, R. S., 'Walking on the Edge: Indian-American Women Speak Out on Dating and Marriage’ in Gupta, R. S. (ed.), Emerging Voices: South Asian American Women Redefine Self, Family, and Community (New Delhi: Sage Publications, 1999), 120-145.

This chapter outlines the processes of migration and marriage within South Asian communities in the US and questions what is meant by 'tradition' and 'culture' and how these manifest within the community. The traditional patriarchal family structure embodies specific gender roles which define women according to marriage and 'home'. Asian American women are however combining traditional and contemporary values to create a new way of being which facilitates their individual growth and aspirations within the basic family structure. Nevertheless, pressure to get married remains strong and the institution of arranged marriage is often perceived as the only acceptable form of marriage. This has led to intergenerational conflict and interviews with young women reveal many cases of secret relationships. If parents learn of such relationships there is shame and a loss of honour for the family and many women are subsequently forced into marriage or remain in long term 'secret relationships'.

Human Rights Watch, Women's Rights Project, Criminal Injustice: Violence Against Women in Brazil, October 1991, 20-26.

This section of the report focuses on the ‘honour defence’ used in Brazil to obtain acquittal of husbands accused of murdering their wives. It discusses how the defence is presented first as a ‘crime of passion’ and then as legitimate self-defence against imminent aggression against the honour of the perpetrator. A number of case studies demonstrate how the honour defence has been successfully invoked in Brazil resulting in the defendant’s acquittal. There is a tension between the rule of law and the influence of prevailing social norms which sanction wife-murder on grounds of honour and which have been endorsed by the judiciary. The report calls for changes to how the police and the judiciary deal with such cases and also for the government to be held responsible for failing to fulfil its obligations under both domestic and international law to guarantee equal protection to its citizens without regard to sex.

Leonard, K., 'The Management of Desire: Sexuality and Marriage for Young South Asian Women in America' in Gupta, R. S. (ed.), Emerging Voices: South Asian American Women Redefine Self, Family, and Community (New Delhi: Sage Publications, 1999), 107-119.

This chapter explores sexuality and marriage among young South Asians in the US. It focuses on the operation of arranged marriages and documents the levels of pressure exerted by older family members upon young Asian women to marry those deemed 'acceptable'. This in turn has led to inter-generational conflicts where young women may embark upon 'secret relationships' and define these as a form of resistance against dominant cultural influences such as arranged marriages. The chapter outlines the different levels of resistance young women may employ without challenging the patriarchal nature of the family. Women are put under great pressure to marry, which they are taught will enhance their self-worth and status within the community. These images and values are reinforced by the local 'ethnic' press who argue that parents are to be honoured and respected and to challenge their authority is to challenge their honour. It is women who are seen to embody this honour for the family and resistance to arranged marriages is perceived as a direct threat to the honour of the family and in some cases the community.

Maguigan, H., ‘Cultural Evidence and Male Violence: Are Feminist and Multiculturalist Reformers on a Collision Course in Criminal Courts?’, New York University Law Review, Volume 70 (1995), 36-99.

While both feminists and multiculturalists have advocated for inclusion of a wider variety of voices in American jurisprudence, they have perceived themselves to be on opposite sides of a vigorously disputed issue, viz. whether to permit criminal defendants to introduce cultural evidence. Some feminists argue that any admissibility of cultural evidence in cases involving male violence against women ultimately condones such violence.  Multiculturalists, by contrast, advocate the use of cultural information to counteract the injustice of applying the dominant culture’s legal standards to defendants from other cultures.  In this article, the author argues that the criminal justice system can and must begin to accommodate the seemingly irreconcilable goals of feminists and multiculturalists. After rejecting recognition of a freestanding ‘cultural defence’ as definitionally and practically unworkable, she explores alternative routes by which cultural background information can and should be used in criminal trials. Surveying current treatment of cultural evidence put forward by both male and female defendants in cases of domestic and non-family violence, she concludes that courts have wrongly adopted an all-or-nothing approach, either excluding all cultural evidence or admitting it without challenge.  To resolve tension between feminists and multiculturalist reform goals, the author advocates a more measured approach, endorsing admissibility of cultural information to the extent the evidence is relevant to prove a defendant’s mens rea.  The prosecution may then challenge this evidence, as it does other relevant defence evidence, through cross-examination, rebuttal testimony and reasoned argument.

Nelson, L. S., ‘The Defense of Honor: Is it Still Honored in Brazil?’ Wisconsin International Law Journal, 11 (1993), 531-536.

Writing in 1993, the author argues that the most significant legal event to date for the Brazilian women’s movement was the March 1991 murder trial and appeal of Joao Lopes. In that case, Brazil’s highest appellate court rejected the defence of honour which would have provided a defence to a husband’s killing of his allegedly adulterous wife. However, on remand, the State Court of Parana ignored the Superior Tribunal’s opinion and acquitted the defendant. This article examines Lopes within the context of the activities of the Brazilian women’s movement and the history of wife-murder in Brazil. It argues that the accomplishments of the women’s movement in regard to domestic violence in Brazil, like the effects of the Lopes decision, have been fleeting and illusory. While some real changes in women’s rights have taken place, these accomplishments have either had unintended negative consequences or lost their positive impact. Finally, this article considers whether the Brazilian women’s movement’s pursuit of equality based on a ‘one-size-fits-all’ vision of traditional, individual rights and assimilationist values is an effective approach to securing women’s rights in Brazil.

Scapini, M. A.,  ‘Acesso a Justica: Raca e Genero’, in Dora, D. (ed.), Feminino e Masculino: A Igualdade e a Diferenca na Justica (Themis, 1997), 27-30 (Portuguese Text).

The article examines the statistics of convicted offenders in the Brazilian prison system and describes women offenders as generally having committed non-violent crimes, or being accomplices or accessories to violent crimes. It notes that women are disproportionately represented in the criminal justice system as victims rather than perpetrators. A few important developments have occurred in Brazilian jurisprudence, particularly due to the mobilisation of feminists. It is suggested for instance that these include the increased credibility of  victims and sentencing of offenders. This may indicate a move from the traditional approach in criminal justice policy of avoidance of interference with crimes against women, particularly in the context of domestic violence. The author, a practicing lawyer, argues that changes are needed in the criminal justice system in order to give support to those involved in domestic crimes, by providing counselling to victims and offenders alike. She also suggests that judges and other officials should receive appropriate training in dealing with sensitive issues such as domestic violence and sexual crimes.

Spatz, M., ‘A 'Lesser' Crime: A Comparative Study of Legal Defences for Men Who Kill Their Wives,’ Columbia Journal of Law and Social Problems, 24 (1991), 597-638.

Throughout the world, men who murder their wives encounter legal systems lenient toward their crimes. This article examines three types of legal system which employ distinct means to reduce or eliminate criminal penalties for men who kill their wives. Criminal justice systems in Middle Eastern countries such as Saudi Arabia, Jordan, Lebanon, Morocco and Syria utilise statutes or customary law to achieve these aims. Although the Pakistan Penal Code does not recognise a defence for men who kill their wives, courts have utilised the concept of ‘grave and sudden provocation’ to serve similar ends. The article then outlines a second type of system, in which positive laws designed to protect women from their husbands are not enforced. In this context, a detailed review is made of the phenomenon of dowry deaths in India, in which young brides are murdered by their husbands to obtain higher dowries. Lastly, this article examines two countries, Brazil and the United States, in which judges have created defences for men who kill their wives. Although it has recently been rejected by the Brazilian Supreme Court, earlier invocations of the ‘legitimate defence of honour’ often resulted in little or no punishment for a man who killed his wife on the ostensible ground that she had offended his honour. Lastly, some courts in the United States have formally recognised a "cultural defence" which invokes racial, ethnic and religious factors to lessen a defendant's responsibility for certain crimes. This cultural defence is utilised disproportionately in wife-murder cases. This article concludes that the problem of lenient sentences for wife-murderers exists on a universal scale, thus not resulting from religious or cultural factors but from shared attitudes about women's worth and their proper role in society.

Spierenburg, P., Men and Violence: Gender, Honour and Rituals in Modern Europe and America (Columbus: Ohio State University Press, 1998).

This book analyses the relationship between gender relations, masculinity, and constructions of honour in Europe and America.  Violence, it is argued, cannot only be defined as ‘criminal’, as in many cultural contexts it is linked to honour and encoded in rituals.  Notions of ‘honour’ and ‘shame’ are gendered and closely linked to constructions of masculinity and femininity and male honour is therefore defined differently to female honour.  The concept of honour is defined as having three distinct layers: a person’s own feeling of self-worth; their assessment of their worth in the eyes of others and the actual opinion of others about them.  The criteria of judgement depend on the socio-cultural context of the community. Identifying the different standards of honour and masculinity is therefore a cross-cultural enterprise. A historical analysis of “western” societies reveals that a shift in the way the body and gender were perceived was accompanied by a transformation in concepts of gender and honour.  The ancient code of honour and its accompanying culture of violence have not disappeared entirely.

c) Europe

Anwar, M., ‘The Family and Marriage’ in Between Cultures, Continuity and Change in the Lives of Young Asians (London: Routledge, 1998), 99-116.

This chapter examines the changing nature of the ‘Asian family structure’ and attitudes towards arranged marriages.  The findings are based on a number of studies, conducted over a period of 25 years, which illustrate such changing attitudes. The process of migration and the creation of diasporic Asian communities in the UK have led to challenges to the ‘traditional Asian family’.  However traditional facets including patrilineal descent group, patrilocal residential rule, patriarchal authority and respect related to age and sex and preferential marriage patterns remain intact.  Many Asians continue to live in extended households or function as joint families. It is argued that power is hierarchically distributed according to age and sex, but there is little focus on the impact this may have on different members of the family household.  The notions of ‘respect’ and ‘prestige’ ensure that the basic nature of the traditional Asian family structure remains intact. Although the practice of arranged marriages has adapted over time with the introduction of marriage agencies, thus giving young people a greater say in deciding who they marry, it remains intact due to family and community pressure. Social policy studies reveal widespread support for arranged marriages among young Asians. The reasons given include personal experience and knowledge from one’s own family that the system had worked well in the past.

Asano-Tamanoi, M., ‘Shame, Family and State in Catalonia and Japan’ in Gilmore, D. D. (ed.), Honor and Shame and the Unity of the Mediterranean (Washington DC: American Anthropological Association, 1987) No.2, 104-120.

This chapter compares a village in Catalonia to a village in Japan and outlines how both communities employ the concept of ‘shame’.  It argues that the notion of shame is embedded within the concept of ‘family/household continuity’.  The state constructs a ‘moral universe’ and locates the family and the household as central to this construction, which acts as an important ‘ideological mechanism’ to control sexuality.  Reproduction is central to the idea of the ‘family/household’ and women are seen to have clearly defined roles, which control their sexuality.  Furthermore, women who are unable to reproduce are considered to bring ‘shame’ onto their family and thus to cause a loss of family honour.

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Ballard, C., 'Arranged Marriages in the British Context', New Community, Vol. VI, No. 3, Summer 1978, 181-196.

In the context of the increasing interest in how the emergent second generation of South Asians in Britain negotiate their way between the contrary value systems to which they are exposed, this article discusses the rigidly structured and detailed process of marriage among the Sikh community and identifies features of adaptation to the British context. Acknowledging the inevitable lack of material on adolescent attitudes, the author suggests that drawing on accounts of urban family life in India may help to provide a useful model of the kind of changes that may be expected to occur when traditional patterns are faced with new surroundings. The article is based upon case studies of twelve marriages between young Sikhs which took place between 1972 and 1976 in Leeds, from pre-introduction arrangements through to behaviour in marital life and marital breakdown. Constantly underscoring the entire process are the notions of izzat and status. There is competition to maintain and advance family status, and the maintenance of izzat requires that family members conduct themselves honourably and particularly that the women of the family have an unblemished reputation. While all the marriages studied in detail were arranged by the parents of the couple concerned, acceptance usually appeared to be the result of a considered examination of their personal position rather than of open coercion on their parents' part. Nevertheless, it would be difficult to deny that the decision was informed by the knowledge that rejecting one's parents' will would bring shame on the family. And while some young Sikhs in Leeds usually now expect to have a measure of  choice in finding a spouse, this remains  completely denied to others.

Baroja, J. C., ‘Honour and Shame: A Historical Account of Several Conflicts’ in Peristiany, J. G. (ed.), Honour and Shame: The Values of Mediterranean Society (Chicago: University of Chicago Press, 1966), 79-138.

Analysis focuses upon how the notions of ‘honour’ and ‘shame’ within Spanish society have evolved over time. Evidence of this is provided through analysis of four different types of text, legal, theological, literary and historical. At particular periods of time honour is connected to lineage and social class whilst at other times honour is connected to ideas of ‘pure blood’.  Nevertheless, the fact that the notion of honour has existed over a period of time indicates its ability to transform and adapt.  Some ideas embedded within notions of honour have died out over time. For example, the notion of honour as connected to genealogies is no longer prevalent. In contemporary Spanish society, honour is connected with social class. For example, the ‘left’ has sought to diminish the idea of ‘middle class honour’ and conservatives have raised challenges regarding the honour of the revolution and the poorer classes.

Basit, T., "Obviously I'll Have an Arranged Marriage": Muslim Marriage in the British Context, Muslim Education Quarterly, (13) 2, 1996, 4-19.

This study examines the views of twenty-four adolescent British Muslim girls regarding the institution of marriage. It is based on in-depth interviews with these young women, all in the final year of compulsory schooling in the East of England, and their parents, seemingly all from a working class background. The paper begins by discussing marriage in Islam, and the customs related to such a union in consideration of the views of the girls and their parents. Subsequent sections define and explore the tradition of other types of marriage, such as arranged marriage, consanguinous marriage and intermarriage. The final section concludes with the outcomes of the study, acknowledging that marriage is a dynamic phenomenon that is susceptible to change, depending on the different groups involved. In contrast with contemporary “western” views on marriage, marriage within the Muslim community is perceived as the only basis of family life and legitimate sexual relations. The study reveals that a vast majority of the young women and all of their parents were in favour of arranged marriage. Finally, in relation to the future of the institution of marriage amongst British Muslims, the author concludes that any change would largely depend upon religious prescriptions and their interpretation, for, in the life of a Muslim, a marriage is not just a custom but also a 'religious obligation'.

Bell, R. M., Fate and Honor, Family and Village: Demographic and Cultural Change in Rural Italy since 1800 (Chicago: University of Chicago Press, 1979).

This book traces the impact of demographic change upon rural Italian culture primarily through the four values of fortuna (fatalism), onore (honour/respect/dignity), la famiglia (family) and campanilismo (village), which defined a peasant's self-identity and circumscribed social behaviour. Based upon an analysis of four villages, the book contends that onore has meaning only within the context of la famiglia, the centre of Italian life. For every occurrence some response is required, and it is the pattern of such responses that establishes onore. Maintaining onore in the area of sexual behaviour is only a small part of the total effort required, for respect and dignity came with continued support of one's immediate family at a level appropriate to one's station in life. Death, significant as a denial of the cyclical continuation of la famiglia, and its connection to onore, is also explored. As procreation was a matter of onore for the husband and 'his' family, the death of a child took from the father a portion of his respect in the community. Funeral orations, especially recalling favours granted by an adult possessing onore, became a list of reciprocal debts still owed to la famiglia. The book argues that the transition from peasant to rural proletarian involved transformations of these aforementioned values.

Bhopal, K., Gender, 'Race' and Patriarchy: A Study of South Asian Women (Aldershot, Hants: Ashgate Publishing Limited, 1997).

This book examines the intersection of gender and ethnicity with specific reference to South Asian women in Britain. It investigates the dynamics of gender relations within households in order to explore differences that exist amongst South Asian women, focussing on arranged marriage, dowry, domestic labour, domestic finance, education, employment and religion. The precise focus of the study is the South Asian community in East London. Chapter 4 of the book examines the practice of arranged marriages. It points out that previous studies on arranged marriages are both descriptive and dated. It provides women's views on arranged marriages, including their definitions of arranged marriage, its importance within South Asian communities and, in cases where the women themselves were involved in arranged marriages, the type of contact they had with their prospective husbands. It also examines whether women would want their own daughters to have arranged marriages and their views towards women who do not have arranged marriages. It is argued that arranged marriages form part of the household, which is a structure which disadvantages women. Those women who participate in arranged marriages are disadvantaged through the system of arranged marriages. These women are defined as 'traditional' women. They experience private patriarchy though arranged marriages. Women who do not have an arranged marriage are defined as 'independent' women. These women are using their high levels of education to leave households and enter the public world.

Bhopal, K., ‘South Asian Women and Arranged Marriages in East London’ in Barot R., Bradley H. & Fenton S., (eds.), Ethnicity, Gender and Social Change (London: Macmillan Press Ltd, 1999), 117-134.

This chapter examines the position of South Asian women within the family and household in diasporic communities within the UK, with particular reference to arranged marriages.  It also examines the influence of education and how this affects whether South Asian women participate in arranged marriages.  Arranged marriages within South Asian communities in Britain are part of customary practices which originate from South Asia.  Little research has been conducted on the extent to which arranged marriages are practised in the UK and the processes involved.  The typology of arranged marriages put forward by researchers Stopes-Roe and Cochrane (the ‘traditional pattern’; the ‘modified traditional pattern’ and the ‘co-operative traditional pattern’) forms the basis of the research.  In Britain, the operation of kinship patrilineal networks and ‘biradari’ are vital to the operation of arranged marriages.  There exists a conflict between western norms and values of ‘marriage’ and the Asian custom of marriage.  Women have less control and influence over arranged marriages.  The right to refuse a marriage often exists for young men though not for women as they are considered to embody/carry the honour of the community.

Bourdieu, P., ‘The Sentiment of Honour in Kabyle society’ in Peristiany, J. G., Honour and Shame: The Values of Mediterranean Society (Chicago: University of Chicago Press, 1966), 193-237.

Honour exists and operates within the traditional Kabyle society in Greece as the basis of a moral code whereby elder members of the community define acceptable patterns of conduct and behaviour.  The relationship with others, through notions of ‘intensity’, ‘intimacy’ and ‘continuity’, takes precedence over the relationship the individual may have with him or herself. According to the author, the important position accorded to the notion of ‘honour’ is characteristic of all ‘primary societies’. Different values may exist which vary the application of the notion of honour but its centrality remains throughout.  In addition, the notion of honour also constitutes the political order thus transcending all arenas of life.  It is a common and intimate code, by which each individual must live.

Bradby, H., ‘Negotiating Marriage: Young Punjabi Women’s Assessment of Their Individual and Family Interests’ in Barot R., Bradley H. & Fenton S. (eds.), Ethnicity, Gender and Social Change (London: Macmillan Press Ltd, 1999), 152-166.

This chapter draws upon research conducted in Glasgow to examine what marriage means to second and third generation South Asian women. A total of 70 women were part of the three-year study. The strategies these women employ to counter the drawbacks of ‘arranged marriages’ are outlined and the balance that young women draw between their own interests and those of their patrilineality is explored.  The concept of ‘honour’ plays a pivotal role in defining marriage and the role of the community. The ‘honour community’ dictates acceptable behaviour in the community.  Women employed a number of strategies to delay marriage where the sanctions of the honour community could be avoided.  By postponing entry to a family-contracted marriage, young women were able to reassess and renegotiate their role within the system, rather than rejecting it in toto.  By preventing their behaviour from coming to the attention of the honour community of their parents, it was possible for young women to engage in activities that would be defined as of questionable honour before entering an arranged marriage.

Brandes, S., ‘Reflections on Honour and Shame in the Mediterranean’ in Gilmore, D. D. (ed.), Honour and Shame and the Unity of the Mediterranean (Washington DC: American Anthropological Association, 1987), No.2, 120-134.

This chapter provides an overview of the studies on ‘honour’ and ‘shame’ in the Mediterranean. These concepts are related to control over scarce resources including land and property, political power and female sexuality.  A number of theoretical models which separate the notion of ‘honour’ from ‘shame’ are put forward to illustrate this. The importance of cross-cultural research is emphasised which provides an insight into the ‘moral workings’ of different communities. For example, female chastity is elevated to a symbolic virtue, which means that many women become pawns in the struggle for family honour.  It is this regulation of sexuality that is particularly characteristic of Mediterranean codes of honour and shame.

Briggs, J. and Z., Runaway (Vista, June 1999).

This book provides a detailed autobiographical account of the lives of ‘Jack’ and ‘Zena’, a young married couple from Bradford, UK, who have been in hiding for over six years after receiving death threats from Zena’s family, after she refused to marry in Pakistan.  It charts their struggle to live free from fear and persecution as Zena’s family, refusing to accept her marriage of choice, hire private detectives and bounty hunters to track them down and kill them in the name of ‘honour’.

British Home Office, Report of the Working Group on Forced Marriage, ’A Choice by Right’, June 2000. www.homeoffice.gov.uk

In August 1999, the Home Office Minister for Community Relations, Mike O'Brien, established a Working Group to investigate to what extent forced marriage was a problem in England and Wales and to make proposals for tackling it effectively. Baroness Uddin of Bethnal Green and Lord Ahmed jointly led the Working Group.Itsreport defines a forced marriage as a marriage conducted without the valid consent of both parties and where duress is a factor. It also outlines a number of proposals to tackle the problem of forced marriages. It states that the All Party Parliamentary Group on Domestic Violence should take forced marriage as an issue within its remit and work programme; and that the Inter-Departmental Group on Violence Against Women should monitor the action across Government Departments. )

Campbell, J., ‘Honour and the Devil’ in Gilmore, D. D. (ed.), Honor and Shame and the Unity of the Mediterranean (Washington DC: American Anthropological Association, 1987), No.2, 56-69.

This chapter examines the interplay of religious notions of ‘good’ and ‘evil’ in the constructions of ‘honour’ operating within the Sarakatsani community in Greece.  It outlines how social and religious ideals are reconciled.  ‘Honour’ is defined as a form of integrity for men who are seen to retain their honour through violence.  While both men and women are seen to embody notions of honour, they do so very differently.  The female values of honour are referred to as the ideal conduct of modesty, virginal attitudes and selfless love. In contrast, men’s role is to protect this honour.  Thus the concept of honour is seen as the guiding principle of behaviour for both men and women.

Campbell, J. K., Honour, Family and Patronage: A Study of Institutions and Moral Values in a Greek Mountain Community (Oxford:Oxford University Press, 1964).

This book outlines how honour, family and patronage operate as fundamental values and institutions within the traditional community of Sarakatsani shepherds in the Greek mountains. The community comprises six hundred families whose members accept a system of social values based on concepts of honour, strength and pride. 'Honour' is constructed in male terms. Women are seen to embody the honour of the family and community and female sexuality is deemed dangerous and weak and in need of protection from the male members of the family. Women are largely confined to the private domain. If women are suspected of committing adultery or are involved in pre-marital sex they may be killed either by their father or brother. This is seen as the only way in which family honour can be restored. Marriage remains a central feature for maintaining social relations within the community. It comprises an arrangement sometimes between opposed groups and involves important considerations of honour and prestige. In order to maintain family and community structures marriage and the position of women within the family are crucial. There are different categories of honour killings yet the control and behaviour of women remains central to all.

Cottino, A., ’Honor as Property’, Journal of Legal Pluralism, 33 (4), (1993).

This article documents research conducted in the Italian countryside in the early nineteenth century. It focuses on the local courts' functioning and the peasants' law-breaking behaviour with particular focus on conflicts within the local community and between the local community and the State. It is argued that in the peasants' view there is no clear-cut separation between different types of conflicts and that honour and land represent two pivotal interchangeable values within a larger system of equivalences including women and livestock. Honour directly concerns fundamental values, for example problems of production (land and livestock) and reproduction (women). The article provides a detailed analysis of traditional anthropological approaches which adopt constructions of honour and examines the centrality of the code of honour which structures the peasant world. It is argued that there is a direct relationship between the control of women and maintaining land and property. Both women and land are seen to represent the honour of the community. Women are used in land disputes and the institution of marriage controls the preservation of honour through women.

Davis, J., ‘Family and State in the Mediterranean’ in Gilmore, D. D. (ed.), Honor and Shame and the Unity of the Mediterranean (Washington DC: American Anthropological Association 1987) no.2, 22-34.

This chapter outlines the anthropological discussion on the question of homogeneity within a community and developments which led to diversification among peoples in the Mediterranean.  The concepts of honour and shame are linked not only to social status and importance but also to sex.  Previous writers have employed the concepts of honour and shame to illustrate homogeneity within the communities. However these concepts exist and operate in a variety of ways and according to different communities and are closely related to the ‘family’.  Honour is linked to the social status of the individual.  The ‘orientalist’ and ‘particularistic’ approaches are critiqued to illustrate how honour is used within the private domain of the family and community as a reaction to the state providing clear guidelines on issues of morality.  So the concept is used against a state which universalises ‘rules’ and fails to recognise differences within local communities.  A contrast between state rules and the rules of local communities is provided to question the extent to which universalising principles undermine local traditions.  An example of the relationship between family and state in Libya illustrates how honour and shame fit into the equation. Honour is chiefly concerned with relations between men and groups of men, much less with the control of women. The state has attempted to replace ‘honour’ with a family system of loyalties and claims of people’s lives to the state.

Delaney, C., ‘Seeds of Honor, Fields of Shame’, in Gilmore, D. D. (ed.), Honor and Shame and the Unity of the Mediterranean (Washington DC: American Anthropological Association, 1987), No.2, 35-47.

Based upon anthropological fieldwork in a Turkish village in the Anatolian steppe, this chapter argues that the concepts of sexuality and procreation differentiate the honour/shame complex of the Mediterranean from that of other geographical areas. Attempts to explicate this complex by focusing on social structure, politics and economics rather than on sexuality fail to explain why honour is primarily seen as an attribute of men and shame of women, or why male honour is seen to be so inextricably linked to women. It is argued that honour and shame are functions of a specific construction of procreation, correlative with the concept of monotheism, in which the male and his semen are perceived to create while the woman is seen as the passive recipient. This social perception of the male creative ability is the foundation upon which the notion of honour is built, and it implies the need for control of women to assure the paternity of any offspring. Family honour is augmented by the practice of endogamy, in which females are retained within the family. The honour/shame complex is not solely a function of male dominance and authority, but a distinctive system in which power, sex and the sacred are interrelated and seen to be rooted in the verities of biology.

Elden, A., ’The Killing Seemed to be Necessary: Arab Cultural Affiliation as an Extenuating Circumstance in a Swedish Verdict’, NORA, (1) 2, (1998), 89-96.

This article discusses a Swedish court's verdict in which the cultural affiliation of an Arab Christian man who had killed his own daughter was considered to be an extenuating circumstance. A discussion of the meaning of gender functions as a point of departure from which the court's description of Arab and Swedish culture as opposites is called into question. In the courts, ruling 'culture' is defined as a homogeneous unchanging entity which demarcates majority communities from minority communities. Arab communities are therefore deemed as the 'other' and cultural defences accepted in the legal process. The author challenges both the underlying assumptions adopted by the court and how violence within Swedish society is never discussed in gender norms but from an individualized perspective and thus fails to recognise the endemic problem of violence against women within Swedish society.

Giovannini, M. J, ‘Female Chastity Codes in the Circum-Mediterranean: Comparative Perspectives’ in Gilmore, D. D. (ed.), Honor and Shame and the Unity of the Mediterranean (Washington DC: American Anthropological Association 1987), No.2, 61-74.

This chapter questions traditional Mediterranean ethnographies which define honour as a cultural construct which orders social relations between individuals as well as kinship groups. The category of ‘honour’, as employed by traditional anthropologists, has failed to examine the control of female sexuality.  Instead, the term ‘female chastity’ is used to examine how it may operate as an indicator of social worth for all individuals and their respective kin groups.  Analysis focuses on how the control of female chastity operates within the community/supra-local linkages, class relations and the politics of gender.  ‘Female chastity’ is positioned within political, economic and ecological situations whereby kin groups compete over land and other scarce resources. Virginity thus comes to symbolise the family’s ability to protect its material boundaries.  This approach, which links together the concepts of ‘female chastity’, material conditions and social worth, is based upon rational responses to objective conditions and seeks to avoid earlier ethnocentric models which focussed solely upon ‘culture’. State and religious institutions legitimate, enforce and symbolically justify the cultural codes of female chastity.

Harris, R., Murders and Madness: Medicine, Law and Society in the Fin de Siècle (Oxford: Clarendon Press, 1989), 285-332.

This chapter outlines a historical analysis of how ‘crimes of passion’ in western countries have been defined around traditional constructions of masculinity. Men have claimed passion as the motive for the killing of wives, lovers or rivals in almost half of all murder cases.  In turn the courts have probed deeply into attitudes towards marital duties and sexual behaviour, searching for credentials such as honourable intent, loyalty and devotion.  The concepts of male honour, despair and outrage were thus couched in very different terms to women's use of them.  The interpretation of a crime of passion varied considerably between women and men.  The courts employed typologies of honourable and dishonourable masculinity to determine the guilt of men.  Men were seen to kill to protect their honour and traditional ideas supported this.

Herzfeld, M., ‘As in Your Own House: Hospitality, Ethnography and the Stereotype of Mediterranean Society’, in Gilmore, D. D. (ed.), Honor and Shame and the Unity of the Mediterranean (Washington DC: American Anthropological Association, 1987), No.2, 75-89.

Based upon anthropological work in a Greek village, this article examines the advantages of replacing the term ‘honour’ with that of ‘hospitality’ in researching Mediterranean societies. Arguing that ‘honour’ is semantically and logically suspect as a demonstration of circum-Mediterranean cultural unity, the concept of hospitality is presented as providing a more convincing basis for comparisons which could also be geographically extended. It is further argued that the more precise definition of hospitality, which involves reciprocity and proprietary rights, would permit escape from the well-worn generalisations about Mediterranean character and values. Hospitality can further be studied in its local, national and regional transformations and also forces anthropologists to consider their own part in constructing ethnographic generalisations which form the basis for social comparisons.

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Hossain, Sara and Turner, Suzanne, ‘Abduction for Forced Marriage - Rights and Remedies in Bangladesh and Pakistan’, International Family Law, (April 2001), 15-24.

Forced marriage is defined and then placed into a regional context in which individuals of dual nationality, British and either Bangladeshi or Pakistani, are abducted from Britain to Bangladesh or Pakistan for the purpose of forced marriage. The article examines such cases of dual nationals and assesses the obligations of the United Kingdom under international human rights law to provide protection in the incidence of forced marriage. The first section of the article describes the nature and scope of the problem, with reference to a specific case of forced marriage and its outcome.  The second section discusses the relevance and impact of addressing the issue within the international framework of human rights.  Section three reviews and assesses available remedies in Bangladesh and Pakistan, which include judicial protection, writ petitions, habeas corpus petitions, criminal law and procedure family law, consular protection and obstacles to judicial and consular protection. Following an assessment of available remedies, proposals for change in policy and practice are discussed to ensure the effective realization of the human rights of individuals threatened or affected by forced marriage. The article reinforces the view that abduction for forced marriage is a violation of women’s human rights, and that forced marriage is, in the context of Bangladesh and Pakistan, a violation of their Constitutional articles as well as their obligations under international law.  It concludes by stating that proposed UK measures of developing a systematic approach to address the problem of abduction and forced marriage would go a long way to ensuring fulfillment of these obligations but that ‘much.remains to be done to implement these in practice’.

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Longrigg, Clare, ‘Vendetta’, in Longrigg, Claire, Mafia Women, (Vintage, 1998), 72-88.

The author presents an account of different forms of vendetta which occur in Campania Italy. The chapter begins with the story of Amalia, who leaves her marital home after having been sexually assaulted by her father-in-law, whom her father, ‘urged by the dishonour done to his family’, later shoots dead.  Prison sentences such as those of Amalia’s father’s – who served two and a half years for ‘avenging dishonour’--  are considered ‘still very mild in Italy’. Amalia’s personal vendetta, which later became an obsession, also extended to avenging the murder of her brothers, who suffered violent deaths at the hands of the local mafia.  Other accounts of vendetta, accompanied by the perceptions of mafia women, include that of ‘ritual vendetta’, which was seen as a means for a man to prove his worth by avenging a wrong done to him or his family.  This principle of ‘a man who can prove his worth’ was enshrined in the law until 1975, and entailed a sentence of ‘only three to seven years: [because] a murder was justified if honour was at stake’.  Discussing the role of mafia women, and the mafia culture in general, the author indicates that the ambivalent attitude of the mafia women to the law ‘has its roots in Southern Italy’s ancient mistrust of the government’ and was created in the absence of mechanisms of the state to serve the people. Recognising that the law of vendetta did not acknowledge any other form of justice, the author discusses the redemption of honour through which the traditional Calabrian blood feud was fought in defence of a family’s honour.  In addition to a blood feud, another way to end a feud between clans, and to subsequently restore peace, was through arranging a marriage between a girl and a boy from the warring parties. 

Menski, W., ‘South Asian Women in Britain, Family Integrity and the Primary Purpose Rule’, in Barot, R., Bradley H. and Fenton, S. (eds.), Ethnicity, Gender and Social Change (London: Macmillan Press Ltd, 1999), 81-98.

The primary purpose rule, until recently a part of British immigration law, singled out South Asian women in refusing entry clearance to their lawful spouses. This chapter argues that exclusionary immigration rules aimed at certain groups not only marginalise ethnic minorities in Britain, but also wilfully disregard the legitimate expectations and socio-pyschological needs of Asian and other ethnic minority women in Britain. Exploring the consequences of such systematic disempowerment for Asian women, it is argued that while Asian women, as a class or social group, as well as individually, are being victimised and disadvantaged by the effects of British immigration laws, less prosperous Asian women in Britain are being further marginalised.

Mullick, Y. and Baker, M., ’Arranged Marriage and Own Choice Marriage: A Rationale for Both Types of Marriage Amongst Second-Generation Asian Women’, Clinical Psychology Forum, (118) August, 33-36.

The article is based on a study aiming to explore the meaning of marriage for women within the cultural value of inter-dependency, arranged marriage, and how the same women perceive the meaning of marriage within the cultural value of individualism, own-choice marriage. The twenty participants in the study were second-generation Asian Muslim women, all of whom were at an early stage of entering an arranged marriage. The 'laddering technique' of the Personal Construct Theory was administered in collecting the data, by asking each participant to imagine arranged marriage to be the preferred pole and own choice marriage to be the non-preferred pole, and vice-versa. The outcome of this applied methodology was suggestive of three outcomes, a preference for arranged marriage and interdependency, a preference for own choice marriage and individualism and a preference for arranged marriage on the one hand and own choice marriage on the other. The article concludes by stating that by incorporating the present methodology into clinical practice, the management of exploring such areas would assist and allow a western-trained therapist to surpass a Eurocentric understanding of human behaviour and to gain information about the construction of reality for an individual of a different culture; in this case, a context for formulating an understanding for second generation Asian women's attitudes towards arranged marriages.

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Pearl, D., 'South Asian Immigrant Communities and English Family Law: 1971-1987', New Community, Vol. XIV, No. 1/2, Autumn 1987, 161-169.

Focusing on the matters of arranged marriages, polygamy and recognition of foreign divorce, this article traces developments in family law as they affected Asian immigrant communities from India, Pakistan, Bangladesh and East Africa in England during the 1970s and 1980s. The central theme is the ability of the general law to accommodate the cultural traditions of these communities. Underlying this is a discussion of the need to provide a coherent pattern of guidelines with respect to the implementation of policy. An analysis of the outcomes of several petitions brought for a decree of nullity demonstrates the difficulty in identifying 'proper' from 'improper' pressures employed when 'seeking' the individual's consent in the context of an arranged marriage.

Peristiany, J., ‘Honour and Shame in a Cypriot Highland Village’ in Peristiany, J. G. (ed.), Honour and Shame: The Values of Mediterranean Society (Chicago, 1966), 171-190.

This chapter outlines a theoretical model defined as a ‘common value language’ to examine how the notions of ‘honour’ and ‘shame’ may operate within Greek Cypriot communities.  It focuses on how the values of honour and shame are perceived and reflected within this framework, when these notions are invoked and which groups are most affected.  Within the Greek Cypriot community there exist two value systems, the urban and the rural. The rural value system embodies constructions of Greek Cypriot identity; the influence of Greek Orthodoxy is also pivotal. The village is defined as the “unit of moral evaluation” and the family regulates the behaviour of individuals, outlining a set of rules, duties and obligations.  It is within this unit that  moral values take their most potent form and honour and shame operate most directly. The state has little significance in catalysing values and loyalties; it is the family which is all-important.

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Poulter, S., 'Ethnic Minority Customs, English Law and Human Rights', International and Comparative Law Quarterly, 36 (3), 1987, 589-615.

This article presents a structure within which controversies between ethnic minority customs and English law may be systematically and coherently addressed, and proposes a "general theory" which may provide some principles and guidelines as to how English law should react when confronted with a wide variety of ethnic minority customs. It considers the parameters of a policy of cultural pluralism and legal toleration, and the impact of international human rights conventions as a reflection of English public policy. The issue of forced marriage is addressed as an instance of the application of the first principle of the "general theory". The author proposes that recognition or enforcement of the custom would run counter to human rights provisions and that there is room for judicial flexibility. Specific cases are referred to in order to show that English courts have demonstrated that they have considerable room for manoeuvre in deciding  the kinds of  pressures capable of amounting to duress.

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Poulter, S. M., English Law and Ethnic Minority Customs (London: Butterworths, 1986), 22-33.

The analysis of social and legal policy in this book is based upon the premise that any satisfactory solution to conflicts between state and customary laws must depend upon finding a proper balance and  some degree of compromise between them. In the chapter on marriage, a section deals with forced and arranged marriages. Having distinguished between the two, and identified forced marriages as those which are contracted under duress and where consent is not sought, and introduced various marriage alliance traditions, the author addresses aspects of English domestic law pertaining to the validity of marriage. Particular attention is given to what constitutes duress and the need for the English judiciary to properly understand the workings of ethnic minority familial structures. In conclusion, the author argues that for English courts to uphold forced marriages under the misapprehension that they are giving effect to the respectable custom of arranged marriages would be a great mistake. The book contains extensive references to caselaw and international conventions.

Schneider, J., 'Of Vigilance and Virgins: Honour, Shame and Access to Resources in Mediterranean Societies', Ethnology, 10 (1) (1971), 1-24.

The author examines cultural codes in operation in traditional Mediterranean societies which embody the notions of honour and shame. Analysis focuses upon how these practices govern 'family integrity', controlling the virginity of young women and girls. Women define the honour of the social group and honour is linked to family status and property within the community. Inter-community conflict is central to community values and the concepts of 'honour' and 'shame' operate to restore familial and community relations. Shame is defined as the reciprocal of honour and is especially important when one of the contested resources is women. Male control therefore is seen as crucial in maintaining the virtue of women and families associate honour with the virginity of unmarried daughters and the chastity of these women after marriage. An unmarried girl's loss of virginity brings unbearable shame on her family or lineage who, if they are to recover, must first kill the girl and then her lover.

Siddiqui, H. ‘Forced Marriages: The Duty of Social Services’, Community Care, 8-14 July 1999, 20-23.

The article addresses the issue of forced marriages in the UK, focussing upon the legal duties of Social Services to act in such cases. It draws upon the work of Southall Black Sisters, a black women’s organisation, which has dealt with the issue of forced marriages over a period of 20 years. It begins from the premise that all complaints of forced marriages should be taken seriously and defines what may constitute as a forced marriage. It outlines the legal duties of Social Services with particular emphasis on Part III of the Children Act 1989 and Part IV of the Family Law Act 1996. It concludes with a useful list for social workers of ‘signs’ which may indicate a possible forced marriage, outlining what they should and should not do in such a situation.

Siddiqui, H., ‘The Ties that Bind’, Index On Censorship, No.1., 2000, 50-53.

The case of Ruksana Naz, a young Asian woman from Nottingham in Britain, who was killed for ‘shaming her family’ sets the backdrop for this article. The author argues that this case, though at the extreme end of the spectrum, reflects how many Asian women in Britain face severe violence for refusing to conform to family expectations.  Forced marriage in the UK is not confined to Muslim women but cuts across faith, age, class, caste and racial group.  Discussion focuses upon the nature of a forced marriage and the different ways in which pressure to marry may manifest. It is a practice which can affect men but one which overwhelmingly affects women, whose ‘sexual purity’ represents the honour of the family.  The practice is an abuse of women’s human rights and reduces them to a position of sexual subservience. The author argues that the British Home Office, which set up a working party to report on the nature and scale of forced marriages in the UK, must listen to radical black women’s organisations and not depend for resolution of the problem on community leaders, who are largely male, conservative and orthodox. The issue of forced marriage illustrates how racism and cultural relativism deny Asian women the right to universal rights.

NEW ENTRY:

Singer, Sir Peter, ‘When is an Arranged Marriage a Forced Marriage?’, International Family Law, (April 2001) 30-34.

Based on a paper given at a conference in Cape Town, ‘The Trend from Parental Rights to Parental Responsibilities’, the article discusses the problem of forced marriage as an under-recognised mode of human rights abuse as well as the abuse of parental power and one that affects children, primarily girls.  The issue of forced marriage is mainly examined in the context of England, through the decision in the case of Re KR (see below), the involvement of politicians, press coverage and extensive reporting of the problem that led to the Home Office establishing a working group to investigate and report on recommendations for tackling the issue of forced marriage.  An arranged marriage and forced marriage are subsequently distinguished on the premise of ‘consent’, the absence of which is identified in the latter situation.  In addressing how societies must respond to cultural practices which are clearly not in a child’s ‘best interests’, the author identifies, in the context of South Africa, the Constitution, the UN Convention on the Rights of the Child 1989, the African Charter, customary law and in general, the role of judges or politicians as key ‘to assist in promoting better understanding of the reasons why the practice in question is to be regarded as undesirable or unacceptable’.   

NEW ENTRY:

Southall Black Sisters, ‘Forced Marriage -- an Abuse of Human Rights. One Year After “A Choice by Right”’, (London: Southall Black Sisters, July 2001).

The report marks the first anniversary of the UK Home Office Working Group on Forced Marriage’s Report, “A Choice by Right”, and raises concerns about policy, efforts to monitor developments and the call for further reform, concluding with a summary of current recommendations. Divided into five sections, the first section addresses patterns and trends of forced marriage as domestic violence and child abuse, cutting across communities, to the realization of the scale of the problem, its nature as a crime of honour against women and girls and addressing it as a world problem.  The second section explores the problem of forced marriage from a community perspective, through interactions with the media, government ministers and members of parliament, the law and community leaders themselves.  The third section, ‘the voice of women’, refers to the submission made by SBS to the Home Office Working Group on Forced Marriage, which now forms a part of this report, and supported by other black, minority women’s and community groups, calling for ‘an end to ignoring the problem in the name of religion and culture and the practice of mediation in abusive situations’. The fourth section, ‘the state response’, outlines current practice and responses to the issue of forced marriage from government and non-governmental organisations in the UK and abroad, in light of human rights standards, mediation and reconciliation, mainstreaming, funding, minimum national standards, confidentiality and security, public information and education and monitoring and enforcement. Finally the report presents ‘issues and recommendations affecting specific government and non-government agencies’ to the Home Office and the Foreign and Commonwealth Office, in the areas of criminal justice, civil justice, social services, education, health, housing and welfare benefits. The report concludes with points that members of SBS raised at the United Nations in June 2001 and a summary of recommendations.

Thompson, A. and Siddiqui, H., ‘Clash of Cultures’, Community Care, 8-14 July 1999, 21-24.

This article questions at what point a long accepted practice may be considered to have become an abuse of rights for young girls and women from ethnic minority backgrounds.  It raises the dilemmas which social workers may experience in dealing with cases which require cultural and religious factors to be taken into account.  Social workers constantly come up against attitudes and practices of which they may disapprove, but when such cases also have an ethnic or cultural significance of which they may be ignorant, their actions and inaction can have serious implications.  The murder of Ruksana Naz and cases of forced marriages illustrate the crucial role of social workers. A number of cases are presented which demonstrate how social workers must address this complex issue with sensitivity while recognising that the human rights of the individual must prevail in all circumstances.

d)      Middle East/North Africa

Abduh, J., The Crime of Family Honour (Cairo: Cairo Institute for Human Rights Studies, 1999) [Arabic Text].

With an introduction by Nadia Abdel Wahab, this short book looks at the phenomenon of the ‘crime of family honour’ in Palestinian Arab society inside Israel. Separate chapters set the phenomenon in its socio-economic and historical context, showing how the concept of ‘family honour’ changes and considering: the status of women in the British Mandate and the Nakba of 1948; women in popular culture; the position of this part of Palestinian society regarding the issue of ‘family honour’; the women’s movement as an agent of change; and state policy regarding violence against women. An appendix sets out the programme of Al-Badeel (The Coalition against the Crime of Family Honour).

Abu Odeh, L., ‘Crimes of Honour and the Construction of Gender in Arab Societies’ in Yamani, M., (ed.), Feminism and Islam: Legal and Literary Perspectives (London: Ithaca Press, 1996), 141-194.

This article discusses crimes of honour in the Arab world. A paradigmatic crime of honour is “the killing of a woman by her father or brother for engaging in, or being suspected of engaging in, sexual practices before or outside marriage”. The article attempts to identify the role that these crimes play in the production and reproduction of gender relations in contemporary Arab life. It contends that these relations are the outcome of a complex triangular interaction between social violence, the crime of honour itself and state violence. The legal field through codification has had the effect of modernising the traditional practice of crimes of honour by defining the limits of its practice, sanctioning it in certain cases, and penalising the violators in others.  The article also argues that Arab legal systems have aimed to contain the practice of crimes of honour whilst recognising the emergence of subservient sexual types. Court rulings from Egypt and Jordan are examined to cast light on the interpretation of statute, and the different statutory provisions in Arab penal codes are considered in terms of ‘crimes of passion’ and ‘crimes of honour’.

Al-Fanar, ‘Developments in the Struggle against the Murder of Women against the Background of so-called Family Honour’, Women Against Fundamentalism Journal, 6, (1995), 37-41.

This article discusses the practice of honour crimes within Palestinian society inside Israel.  Family honour is defined as an entire social behavioural code imposed on women for the purpose of enforcing their inferiority and preserving male supremacy. It is argued that the Israeli state affords crimes of honour ‘special treatment’ attempting to portray them as part of Arab folklore and tradition in order to control the communities.  The state is directly linked to the continued perpetration of  ‘honour crimes and killings’, as women who attempt to escape are handed over by the authorities to the family or community leaders.  Thus this policy of preserving a retrogressive patriarchal tradition is part of the policy of political control over the Palestinian population.  Therefore, it is argued, the feminist struggle against tradition is an inseparable part of the struggle for equality and national liberation. The article also provides a case study of the practice of honour crimes within the Druze community in Palestine, through the illustration of a local youth colluding with the police to ensure that those who commit honour killings are not brought to justice. It discusses a demonstration by women against such killings and its condemnation by religious leaders and highlights the increasing failure of the state to take such killings seriously.

Al-Khayyat, S., Honour and Shame: Women in Modern Iraq (London: Saqi Books, 1993), 21-78.

These chapters examine how female behaviour is regulated in Iraqi society through the concepts of honour and shame, which impact upon all aspects of a female's socialisation. Negative attitudes to the birth of a girl are noted and connected to the concept of honour. As honour demands that girls be watched closely and controlled, their upbringing is considered difficult. Honour crimes occur more frequently in rural and Bedouin areas and among less educated families.  A man who avenges his dignity by killing a woman will be considered a hero by his fellow men and friends. Quotes from a variety of Iraqi women are used to illustrate attitudes concerning family relationships, education, menstruation and marriage.

Antonelli, A., ‘Crimes Not Stories’, Palestine Report, May 22, 1998, 22-24.

This article traces the work of the Women’s Centre for Legal Aid and Counselling in the Palestinian West Bank on the issue of violence against women.  Although the number of women killed in the name of ‘honour’ remains hidden from official statistics, research carried out by the Centre indicates an annual rise in killings. The restoration of  ‘family honour’ through the murder of young women is not considered unusual social behaviour within Palestinian communities and the Centre provides legal and educational training seminars and workshops to challenge such attitudes.  Women activists face an uphill struggle whilst existing legislation serves to protect men who kill in the name of honour and also fails to recognise the experience of female victims.

Antoun, R. T., Arab Village: A Social Structural Study of a Trans-Jordanian Peasant Community (Indiana University Press, 1977).

This book provides an anthropological study of the Kufr al-Ma village in the Ajlun district in Jordan.  The book examines the relationship between the structural nature of the community and the operation of its specific norms and values.  It goes on to consider what impact cultural and social processes operating within the community may have upon its members.  Two central themes discussed in the book are the issue of social control and the impact of social change due to economic changes.  Kinship descent and relations are central to the formation of the community and play a pivotal role in the relationship between community members and wider society.  This process is crucial to the control of marriage and sexual relations and those who wish to challenge such customs are often killed or made liable to pay compensation to the injured party.  The concept of ‘honour’ operates to maintain strict segregation between the sexes.  Unofficial legal bodies defined as ‘consultation groups’ regulate such behaviour and thus aim to maintain strict social codes relating to family, social and community relationships.  These groups, made up of male members of the community, are often implicated in honour killings but their behaviour is sanctioned by the community. They are therefore seen as moral guardians of the community.  A number of case studies illustrate that women are more likely than men to become victims of ‘honour killings’ and that the community condones such a practice.

NEW ENTRY:

Antoun, R.T., ‘On the Modesty of Women in Arab Muslim Villages: A Study in the Accommodation of Traditions’, American Anthropologist, 70 (4) (1968), 671-697

Prevalent in both the ‘great’ tradition of Islamic law and Quranic ethics and the ‘little’ tradition of village custom and belief, the modesty code is deemed here to be perhaps the most fundamental and pervasive cultural pattern in Middle Eastern peasant culture. In substantial detail this paper analyses the accommodation that occurs in both thought and action between these two traditions, an accommodation made necessary by the difficulty in conforming to the code due to the peculiar conditions of peasant life. It examines various historical, psychological, and structural explanations for the prominence and persistence of the value of modesty, discussing how the group’s honour is conceptualized in terms of its women’s modesty and upheld through the seclusion, punishment and control of women.

Bates, D. G. and Rassam, A., Peoples and Cultures of the Middle East (Prentice-Hall, Inc., 1983), 211-239.

This chapter discusses the concepts of honour and shame as values that inform aspects of individual behaviour and impart meaning to the lives of people in the Middle East. Crucial to these values is the idea that a man's honour is predicated largely on his ability to control the behaviour, especially sexual, of his womenfolk. This control involves a code of sexual modesty and the seclusion of women. Institutions that foster male domination and sexual segregation have accordingly become fundamental to the social order. While concepts of honour and shame are widespread among numerous Mediterranean peoples, what distinguishes them in the Middle East is the extent to which they are reflected in social institutions and form an explicit basis for social action.

Brand, A. L., Women, the State and Political Liberalization, Middle Eastern and North African Experiences (New York: Columbia University Press, 1998), 132-139.

This chapter summarises experiences of women’s organising and the evolution of women's legal status in Jordan. Early women's organisations were primarily limited to charitable work and were viewed as apolitical and less threatening by a male dominated society. Women's issues were further considered secondary due to the focus on the Palestinian national struggle.  The chapter outlines various laws which discriminate against women and transmit the message that economic, social and political control rests with men. It details external influences, particularly concerning women's right to vote and the funding of women's empowerment projects. The article also details reports of honour crimes, which appear to be rising in number and for which lenient sentences are generally given. It postulates that honour crimes in fact often have economic motives, or are committed to hide incest. Efforts to address domestic violence and honour crimes come primarily from unofficial circles and include regular coverage of these issues in the English-language press and activities by women's NGOs.

Brooks, G., Nine Parts of Desire: The Hidden World of Islamic Women (London: Penguin Books Ltd, 1995), 49-53.

This book examines the position of Muslim women in Muslim majority countries focussing upon their rights, duties and responsibilities.  It questions how Islam defines notions of equality and justice and considers whether Muslim women are ‘equal’ within the family, community and wider society.  The issue of honour killings is addressed to illustrate how Muslim women are subject to customary norms and values which control female sexuality and sexual behaviour. Honour killings are practiced in order to wipe away the shame a woman may impose on her family by committing adultery or transgressing familial norms and customs.  Such killings transcend class divisions: for example, a princess in Saudi Arabia was killed for resisting an arranged marriage. The practice however tends to be most prevalent among the poorer and less educated families.

B’Tselem, ‘Morality, Family Honour and Collaboration’ in Collaborators in the Occupied Territories: Human Rights Abuses and Violations, B’Tselem - The Israeli Information Center for Human Rights in the Occupied Territories, (January 1994), 89-99.

This chapter documents how during the first Intifada members of certain PLO affiliated groups, acting as a kind of ‘morality police’, took action against those who were deemed to have transgressed ‘traditional social norms’ in the Occupied Palestinian Territories. Prostitution was seen as corrupting society and playing into the hands of the Israeli authorities. During the six-year period of the Intifada, over a hundred women were killed on suspicion of collaboration and ‘immoral behaviour’. The concept of ‘family honour’ thus took on a national significance. Women whose behaviour was considered immoral were accused of damaging both the family and national honour and thus weakening the national struggle.  The report also includes five testimonies relating to women killed during the Intifada for transgressing traditional norms and values.

Dodd, P. C., ‘Family Honor and the Forces of Change in Arab Society’ in International Journal of Middle Eastern Studies, 4 (1973), 40-54.

Discussion focuses upon how the notion of honour, termed as ‘ird’, operates within Arab society, especially in rural areas. It is based on a secular value rather than a religious one and is an attribute both of individuals and a group. A man is considered to have honour but this is in large part a reflection of the honour of his family and his lineage.  The precise limits of the lineage of honour are not defined, although it is clear that it is traced exclusively through male kin. Male members of the family and extended family enforce the norms of honour. One major process of change, that of urbanisation, appears to have had relatively little impact on the valuation of honour.  Other processes of change, such as political revolution and military warfare, result in the suspension of the honour code but not in its abolition. However, education appears to promise substantial changes in the valuation of honour.

NEW ENTRY:

Fadia Faqir, ‘Intrafamily Femicide in Defence of Honour: the Case of Jordan’ 22/1 Third World Quarterly, 2001, No.1, 65-82.

The author draws on a number of studies and reports produced by Jordanian governmental agencies, non-governmental organisations and newspaper reports to present an overview of the reported extent and nature of violence against women in Jordan. Her approach to ‘honour killings’ as a particular type of intrafamily femicide in defence of honour is set within a ‘neopatriarchal’ analysis of Jordanian society and gender violence, as well as within the relevant international human rights framework. Statistics are presented (with reservations expressed as to the inadequate documentation of ‘honour killings’) and case examples are provided to illustrate, for example, the role played by rumour and reputation, and the ‘reasons behind honour killings.’ An overview of Jordanian law is accompanied by a short review of some of the relevant Islamic law principles. In a review of the positions taken by various groupings in the parliamentary debates on the subject, Faqir notes that “the majority of Members of Parliament perceived the bill as an attempt to legalise obscenity and encourage women to act immorally.” Among her conclusions is that the debate around amendment of the Penal Code in regard to ‘crimes of honour’ demonstrates a critical intersection of ‘traditional, national and fundamentalist’ discourses, “as Islamism and tribalism have adapted Arab nationalism to their discourse, contributing to the subordination of women.”

Goodenough, P., ‘Blood and Honour’, Middle East Digest, February 1995, 1-5.

This article discusses a number of cases in the Palestinian West Bank and Gaza, where women who have attempted to flee violent families have been killed. Local police agents are reported to collude with male members of the community to murder women. For example, Yasser Arafat’s Fatah faction includes ‘decency squads’ who assume the role of enforcers of family honour, searching for and often inventing pretexts for dealing with women perceived as ‘troublesome’. Women are killed in the name of honour for a variety of reasons, including rumours of an illicit romance or impropriety, ‘immodest’ behaviour or dress, associating with men suspected of collaborating with the Israeli authorities, or divorce and pre-marital relationships with men. Often little evidence exists against the women but only the death of the woman is seen to restore the family honour. 

NEW ENTRY:

Hammad, Suzanne H., ‘Essay: the Eradication of So-called “Honour Killings” in Jordan’ 7/84 Civil Society 1998, 17-20.

Setting her article within the definition of gender-based violence provided in the 1993 UN Declaration of the Elimination of Violence Against Women, the author notes a range of forms of coercion against women that might be considered to be forms of gender-based violence in the context of the Arab world. These include female genital mutilation (FGM), forced early marriage and ‘crimes of honour’, as well forms of ‘systems abuse’ in the area of health and well-being. The “impermeable sanctity of the family, in addition to the dearth of gender-desegregated data, has made it all the more difficult to assess the current status of women in the Arab world – let alone address the sensitive issue of gender-based violence at the national level.” Within this broader framework, Hammad reviews information from a number of conference papers and UN reports, as well as newspaper articles, to provide a consideration of “honour killings” in Jordan, including the meaning of ”honour”’ the efforts of women’s non-governmental organizations both in regard to survivors and in regard to policy issues and public opinion; and structural developments such as specialized training within the police. Her conclusions include a call for the “reinterpretation and redefinition of the notion of honour” and the establishment of an adequate legal framework: “The law has a dual symbolic role of mirroring prevailing attitudes, but also the power to shape and enforce a new set of societal values for the long term.”

Hamzeh-Muhaisen, M., ‘Violence against Women: Who Will Stop the Men?’ Palestine Report, October 10, 1997,18-10.

This article documents the rise of violence against women in the Palestinian West Bank including the refugee camps. It presents a number of case studies to illustrate the inability of victims to report crimes such as rape and sexual assault due to threats of violence and the very real danger of victims being murdered. Existing legislation is seen to be largely ineffective in prosecuting those who murder in the name of ‘honour’, and is in fact designed to protect those who kill. Those working to eliminate violence against women argue existing laws themselves embody notions of honour.

NEW ENTRY:

Humeidan, G. and Habash, V, ‘Crimes of Honour’, Al-Hayat Organisation, http://www.ecouncil.ac.cr/about/contrib/women/youth/english/honour1.htm.

This article looks at two cases of honour killings in Jordan, reviews police statistics on such crimes through the early 1990s, examines the legal framework of Jordan relating to honour crimes, and makes proposals for action. The authors identify factors such as poverty, illiteracy, overpopulated areas, Muslim laws and practices, the increasing numbers of working women, and legislation as having a bearing on honour killings. They conclude that “honour” crimes accounted for the majority of murders of women in Jordan during this period, and that these victims were mostly killed on suspicion of ‘immoral behaviour’. The Jordanian legal framework favours reductions of penalty for male-only perpetrators of honour crimes. In the social framework, crimes of honour are taboo and lobbying campaigns by organizations and activists meet with a variety of obstacles.

Ilkkaracan, P., ‘Exploring the Context of Women’s Sexuality in Eastern Turkey’, Reproductive Health Matters 6 (12) (1998), 66-74.

This article describes customary and religious laws and beliefs and their impact on both rural and urban women in Eastern Turkey. In an unusual move in 1926, the Turkish Civil Code banned polygyny and granted women equal rights in matters of divorce, child custody and inheritance. However, based on a study of 599 women from Eastern Turkey, this article concludes that early marriage and polygyny are still prevalent, religious marriage takes place earlier than civil marriage (although the former is not legally binding), forced marriages occur and arranged marriages are predominant. More than half of all married women surveyed are subject to domestic and sexual violence. The fear of honour killing is prevalent and a majority of women surveyed thought they would be killed by their husbands and/or families if suspected of improper sexual behaviour.

NEW ENTRY:

Joseph, S. ‘Gender and Relationality Among Arab Families in Lebanon’, Feminist Studies, 19 (3) (1993), 465-486

Based on work with Arab families in an urban working-class neighbourhood in the metropolitan area of Beirut, this article suggests that it is because of the dynamic “patriarchal connectivity” that families exerted such powerful influence over their members and that honour and shame could moralize and energize Arab families. The dynamic is effective because both men and women were socialized to view themselves relationally while men and women, adults and children psychologically subscribed to the demands of compliance with gendered and aged hierarchies. Extending the feminist reconstruction of object relations theory and challenging generalizations across social and cultural boundaries, the author attempts to problematize the psychodynamics of family life with a language that aims to neutralize the ethnocentrism of Western versions of the self.

NEW ENTRY:

Kandiyoti, D. A., ‘Emancipated but Unliberated? Reflections on the Turkish Case’, Feminist Studies, 13(2) (1987), 317-338.

This article explores the inadequacies of ‘western’ feminism as applied to Muslim women on the one hand, and how the experiences of Muslim women have not been used to evaluate ‘western’ feminism on the other. The author states that, “…different cultural modes of control of female sexuality create different subjective experiences of femininity.” We are reminded, as well, that Islam is not a single ideology and that “the Islamic nature of a society can only be evaluated with reference to its broader political project….” Turkey is described as a “unique case” among Islamic societies. It was never colonised and has not felt a need to maintain cultural traditions simply as a reaction or refusal to concede to a coloniser. Turkey “addressed the question of women’s emancipation early, explicitly, and extensively” with legal reforms in the 1920s and 1930s for voting, divorce and custody rights. These reforms seem to have been based solely on political aspirations for greater engagement with western democracies, but the recruitment of women into professional positions for political and social expansion created its own momentum in advancing women’s status and provided role models for younger generations of Turkish women. The author maintains, however, that a “double standard of sexuality and a primarily domestic definition of the female role [remain] virtually untouched.” Three cultural controls which influence the internalisation of gender are examined in detail: (1) “corporate control over female sexuality”, in which everyone in the community takes an interest in the control, giving women a great deal of “negative power” and an inalienable femininity, in contrast to a more impermanent sense of masculinity among the men that must be achieved and always maintained.  Men in this society seek to “neutralise” women’s sexuality, thereby distorting women’s “essential humanity” while reinforcing their femininity. (2) sex segregation forms strong bonds and networks among women that actually seem to increase their sense of independence from men. (3) female life-cycle characteristics (e.g., early marriage, son preference, sharp age hierarchy) socialise women from a very early age to be subordinate. This “socialization is at every stage overseen by other women whose authority [the younger women] may covet, [which] leads to a thorough internalization and reproduction of this particular form of patriarchy.’

Kocturk, T., A Matter of Honour: Experiences of Turkish Women Immigrants (London: Zed Books, 1992), 33-58.

This chapter discusses how Islam defines the role and position of women within contemporary Turkish society.  It first provides a historical overview of the development and evolution of Islam and outlines the conflict and diversity within Muslim communities, thus providing a contextual background to the practice of Islam in Turkey today.  The second part of the chapter then focuses on the position of women within Islam.  The public/private dichotomy is fiercely maintained and male members of the Muslim household are obliged to determine acceptable patterns of behaviour for women members. Islamic law affords women limited choice and autonomy, and the system of patriarchal control it maintains is backed up by the ‘honour ethic’.  This ethic, though it may be traced back to the pre-Islamic period, continues to remain in force and operates to control female sexuality.  The honour of the male members of the community is considered to be directly linked to the chastity of women.  Obedient women are accorded respect and admiration.  The honour ethic is so valued that male members of the family resort to murder to protect its practice.  Women internalise this ‘ethic’ and recognise that to challenge its practice would bring a loss of respectability for themselves and their families.  They are complicit in its survival and a case study of a Turkish case is provided to illustrate this point. The remainder of the book examines the changing contemporary roles of women in Turkey among different socioeconomic groups, Turkish immigration patterns and experiences in Europe, and a case study of Turkish families in Sweden.

NEW ENTRY:

Kressel, G. M., ‘Sororicide/Filiacide: Homicide for Family Honour’, Current Anthropology, 22(2) (1981), 141-158.

This article comprises a survey of anthropological literature on honour-related homicide and suicide in Arab Muslim culture and an analysis of the same in Israel and the Occupied Territories. It includes a survey of press reports from 1973 to 1977, a number of case studies examining the issue among a variety of classes and circumstances, and an outline of characteristics of these killings that in the author’s view distinguish them from other types of murder: “Intrafamily murder for the sake of family honour is not explicable in terms of the anthropological theories used to explain murders of other kinds.” Case studies are analysed to illustrate the importance of status as “the line between excusable and inexcusable deviation” which “is blurred unless matters are viewed against the background of the status of the family that is redeeming its honour.” The author argues that such killings may be more likely when the family is seeking upward social mobility and finds new opportunities for status threatened by a perceived loss of honour.  It is also asserted that in the author’s research context, the material examined for this study “points to [a] special relationship with the fabric woven of Arabism and Islam.” The article is followed by a collection of seven comments from other academics reviewing and critiquing the author’s methodology and conclusions, and a reply from the author.

Marcus, M., ‘Horsemen are the Fence of the Land: Honor and History among the Ghiyata of Eastern Morocco’ in Gilmore, D. D. (ed.), Honor and Shame and the Unity of the Mediterranean (Washington DC: American Anthropological Association 1987), No.2, 49-59.

This article uses historical data to shed light on the conception of honour among the Ghiyata, an Arabic-speaking tribe of eastern Morocco. The Ghiyata elaborated an ideology of honour that involved aggression as a principle for governing and legitimising the allocation of strategic resources. While not wishing to minimise the importance of the honour and shame complex to Mediterranean male dominance and codes of sexual behaviour, the author emphasises its relationship to wealth and 'fiscal sexuality.' With the early 20th century disappearance of the Ghiyata's quasi-feudal relations of production and ensuing changes in tribal organisation, their conception of honour changed to emphasise generalised moral imperatives over feuding. This article argues that it is inaccurate to posit for the Mediterranean region a timeless and universally applicable definition of honour and its modes of realisation. Instead, more historical work is required to specify the social purposes that people have represented to themselves as the pursuit of honour.

Moghaizel, L., ‘The Arab and Mediterranean World: Legislation Towards Crimes of Honor’ in Schuler, M. (ed.), Empowerment and the Law: Strategies of Third World Women (Washington DC: OEF International, 1986), 75-78.

This article examines legislative measures dealing with crimes of honour in the Arab world (Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Syria and Tunisia) and five Mediterranean countries (Spain, Italy, France, Portugal and Turkey). Penal codes in Jordan, Lebanon and Syria completely absolve a person who surprises another in the act of adulterous flagrante delicto from the penalty of his subsequent actions, including murder. Other Arab countries do not provide absolute defences for men who kill their wives in such situations, but these men nonetheless receive reduced sentences. The Syrian and Lebanese penal codes recognise a further defence of ‘questionable attitude’, thus permitting a man accused of murdering his wife or sister to claim in mitigation that her actions had marred the family honour. The Spanish, Portuguese and Turkish penal codes also provide a partial excuse for crimes of honour, while similar measures earlier applicable in Italy and France have since been abolished. The article concludes that as these measures discriminate against women and are in violation of international law, they must be abolished.

Moghaizel, F. and Abdelsatir, M., Crimes of Honour: A Legal Study (Beirut: Joseph and Laure Moghaizel Institute, 1999) [Arabic Text].

This study, with special reference to the previous work of Laure Moghaizel on this subject, details the developments in Lebanese law regarding ‘crimes of honour’ -- culminating in the 1999 amendment to the Penal Code. After setting out relevant extracts from the penal codes of other Arab states, the study examines 36 ‘honour’-related rulings from Lebanese courts in the period 1995 - April 1998; an appendix sets out the text of the draft law amending the Penal Code.

Shalhoub-Kevorkian, N., ‘Crimes of War, Culture and Children's Rights: The Case of Female Palestinian Detainees Under Israeli Military Occupation’ in Douglas, G. and Leslie, S. (eds.), Children's Rights and Traditional Values (Dartmouth: Ashgate, 1988), 230-250.

This paper examines the issue of Palestinian girl children detainees under Israeli military occupation, particularly during the Intifada (popular uprising). In discussing the relationship between children's rights and social justice, and its implementation within certain cultural contexts, it emphasises the connection between gender, patriarchy and the political activism of Palestinian girls. Girls as well as women took part in the national struggle against Israeli occupation, thereby challenging the social and cultural definition of female roles within Palestinian society and contradicting traditional beliefs concerning the need to preserve and protect women's honour. This study introduces empirical data and case studies of Palestinian girl children arrested by Israeli authorities, who exploited the traditional Arab notion of female sexual purity as a political weapon against the former. Upon their release from prison, girl children frequently faced cautious and suspicious social reactions and some families took measures to limit the dangers to which they felt their daughters were exposed. This resulted in a drop in marriage age for girls and attempts by various segments of the community to protect women by hiding them away and curbing their activities.

Shalhoub-Kevorkian, N., ‘The Politics of Disclosing Female Sexual Abuse: A Case Study of Palestinian Society’, Child Abuse & Neglect, Vol.23, No.12, 1999,1-19.

This article argues that by understanding the socio-cultural and political context within which disclosure or non-disclosure of sexual abuse takes place, we are better able to develop an analytical framework that might shape culturally sensitive social policy towards sexual abuse and thereby reduce its incidence.  The data for this study was extracted from records available on 38 cases of sexually abused Palestinian girls and interviews conducted with victims and their parents.  The data revealed that acknowledgement of sexual abuse took place only in situations where the abuse was extremely traumatic, publicly apparent, and the victim was absolved of blame.  Disclosure resulted in approximately 10% of the cases in the killing of the victim.  Responses involving measures such as hymen reconstruction, marriage to the rapist, and abortion were used by family and society to ‘nullify’ sexual abuse.  The intricacies bearing on the decision to disclose or not disclose sexual abuse are discussed within a socio-cultural and political frame of reference.

Shalhoub-Kevorkian, N., ‘Towards a Cultural Definition of Rape: Dilemmas in Dealing with Rape Victims in Palestinian Society’, Women’s Studies International Forum, Vol. 22, No.2, 1999, 157-173.

Although rape is a cross-cultural crime, stemming primarily from patriarchal ideologies and gender power, the analysis of its effect on victims from various cultural groups remains to be unveiled.  This study analyses dilemmas that face mental health workers when dealing with rape victims within a specific cultural context, namely that of Palestinian society.  It demonstrates the multidimensionality of the crime and the intricacy of social relations to rape, the rape victim, and the abuse of women, deriving from a socio-cultural need to protect and/or control victims. This in-depth analysis suggests that socio-cultural determinants, such as the need to silence attempts to speak out about the occurrence of the rape, preserve female virginity, and privatize the crime in order to safeguard family honour and reputation, revictimize and weaken the victim.  This article argues that there is no universal method of dealing with rape victims and that professionals who are assisting victims of rape need to anchor their efforts within the cultural context, while at the same time treating each victim as a world unto herself.  This calls for rethinking at both the socio-political and the individual levels.

Shalhoub-Kevorkian, N., ‘Law, Politics and Violence Against Women: A Case Study of Palestinians in Israel’, Law & Policy, Vol.21, No.2, April 1999, 189-209.

This study examines the utility of law enforcement in the context of violence against women and emphasises the relationship between gender, culture and politics. It points to the difficulties arising from the shift from private, traditional methods of dealing with violence against women to a more public approach characterised by the intervention of the state and the criminal justice system. It argues that the enforcement of the ‘Israeli Law against Family Violence’ among the oppressed and discriminated Palestinian minority generates new conflicts within the group, exacerbating control and abuse and re-victimising women. Interviews with officials reveal their perceptions and attitudes regarding the applicability of such a law. An attempt is made to show that application of the law without prior preparation and understanding of its socio-cultural and political ramifications may produce adverse effects at the victim’s expense. Unless power struggles, cultural pressures and political priorities are taken into consideration, criminal strategies that seek to eliminate abuse may prove to result in further harm to women.

Tucker, J. E., In the House of Law: Gender and Islamic Law in Ottoman Syria and Palestine (California: University of California Press, 1998), 148-178.

This chapter examines the Islamic legal discourse on sexuality in Ottoman Syria and Palestine. This discourse focused on ways in which female sexuality could be regulated, reproduction controlled and transgressions punished. Sexual desire was to be curbed by eliminating situations in which illicit relations could develop and through the imposition of heavy sanctions for transgressions. Unlawful intercourse that could result in illegitimate births was condemned; the control of sexuality was thus exercised to minimize social conflict and above all, to oversee reproduction. The identity and paternity of children were seen as being key components of a strong patrilineal family and social system. The muftis denied family members any defined role in the punishment of a woman for sexual crimes, which were defined as crimes against religion and not an offence against the family. However, the virtual absence of court cases on this issue demonstrates that a family's monopoly over the sexuality and reproduction of its women, which underlined most political and economic arrangements, was not usually surrendered to the courts.

Warnock, K., Land Before Honour: Palestinian Women in the Occupied Territories (London: Macmillan, 1990), 19-34.

This chapter explores how women in traditional Palestinian society were viewed within a framework of an ideology of family, honour and chastity. Within this framework, men were expected to protect female family members from dangers, especially sexual impurity. Society's ideal of honour, its perception of women and the requirement for female sexual modesty were seen to be connected. The honour of families, particularly the virtue of their women, was accepted as being the responsibility of the entire community. Since this honour was a matter of external appearance, it consisted precisely in what other people said and was therefore open to continuous public scrutiny and judgement. While women's freedom was thus limited, they had a respected place in a viable social system that could not have survived so long without the women themselves internalising this ideology of honour.

NEW ENTRY:

Welchman, Lynn, ‘Jordan: Capacity, Consent, and Under-Age Marriage in Muslim Family Law’, The International Survey of Family Law, (2001), 243-263.

The article examines the position of present day Muslim family law and court practice in Jordan  in the areas of marriage registration, the age of marriage, the effects of a void or invalid marriage, the implications of consent and duress and concluding with proposals for future change. Defining duress, the Jordanian Civil Code states that it is ‘unlawfully forcing (ijbar) someone to do something without their consent; it may be physical or mental’. Whilst the JLPS explicitly envisages foreseeable situations of duress, that would render a marriage irregular, there is no explicit mention of the nature of consent required to conclude the parties’ marriage valid.  It is within this context of duress and consent that ‘the phenomena of forced marriage’ and remedies under Jordanian law are discussed. The article is based on the texts of relevant laws and on published cases from the Shari`a Court of Appeal in Amman. Finally, the article addresses proposals made by civil society groupings for amendments to the current law, in the areas of the spouses’ capacity at the time of marriage and clarifying the role of the guardian; and the age of marriage.

Zied, A. A. M., ‘Honour and Shame among the Bedouins of Egypt’ in Peristiany, J. G. (ed.), Honour and Shame: The Values of Mediterranean Society (Chicago: University of Chicago Press, 1966), 243-260.

Honour and shame are closely associated with kinship relations within the Bedouin community in Egypt.  These concepts only have specific meanings if they are understood within the context of the community in which they operate.  Thus, for example, the Bedouin community is patriarchal and the notion of honour is closely associated with the strong powerful male.  It is men who occupy the dominant social position in all aspects and activities of life.  A study of the ‘bonds and values’ embedded within kinship highlights the importance of such notions of ‘honour’ and ‘shame’. Male pride and the maintenance of lineage embody the concepts of honour and shame and ensure its survival.  Women preserve the honour of the community and therefore play a vital role in its operation.  The reputation of a woman and the community depends mainly on her willingness to observe the rigid rules governing sexual relationships and her ability to preserve her chastity.

e) Asia/South Asia

Ali, S. S., ‘Is an Adult Muslim Woman Sui Juris? Some Reflections on the Concept of ‘Consent in Marriage’ without a Wali (with particular reference to the Samia Waheed case)’, (1996) 3 Yearbook of Islamic & Middle Eastern Law, 30-43.

The article discusses the question arising from the Saima Waheed judgment in Pakistan regarding the capacity of an adult Muslim woman to enter into a valid contract of marriage without the consent of her guardian.  Issues addressed include whether parents have a right to be obeyed and whether this right of obedience is judicially enforceable, whether marriage in Islam is a civil contract or not and whether permission of the guardian is necessary for a valid nikah (Islamic marriage).  An overview is provided of the definition of the institution of marriage in Islam, and the nature, capacity, form and requisites of a valid contract of marriage.  A section is devoted to the concept of guardianship in marriage in Pakistan and the related right of khiyar ul-bulugh (option of puberty) and how statute law has impacted on the traditional Islamic rules. Also discussed is the interaction of Islamic law, statutory law and customary norms and practices in relation to the issue of equality within marriage. It is argued that black letter law is not the sole determinant of what, when and how women’s rights are recognised and conceded in a legally pluralistic society such as Pakistan and that customary practices and societal norms hold sway over and influence dispute resolution, whether formal or informal.

Amnesty International, Pakistan: Women's Human Rights Remain a Dead Letter: No Progress Towards the Realization of Women's Rights After the Ratification of the Convention on the Elimination of All Forms of Discrimination Against Women, March 1997, AI Index: ASA 33/07/97.

This report notes that Pakistan ratified the Convention on the Elimination of All Forms of Discrimination on 12 March 1996, with the reservation that no provision which conflicts with the Constitution of Pakistan would be adopted. Despite the international obligation to amend or repeal domestic laws which conflict with the Convention and to ensure the end of discriminatory practices, the Government of Pakistan has taken no effective steps to end discrimination against women. The report also lists the measures that were to have been adopted to improve the status of women in 1996, but which had still not come into force at the time the report was prepared. The report also discusses the Zina Ordinance of 1979 which encompasses zina, rape and abduction for the purpose of committing a sexual offence. Zina and rape attract different punishments according to the evidence on which the conviction is based.  The Zina Ordinance clearly breaches requirements of the  Convention. Charges of zina and rape may also be brought wrongly against couples in Pakistan on the basis of discriminatory interpretations of the family law and lead to  imprisonment, cruel punishment or even a death sentence. The report calls on the Government to abolish the Zina Ordinance, to ensure that legal safeguards available under the law to women in custody are implemented and to abolish all cruel, inhuman and degrading punishments including the death penalty for women as a step towards the eventual abolition of the death penalty.

Amnesty International, Pakistan: No Progress on Women's Rights, September 1998, AI Index: ASA 33/13/98.

This report is an update to Amnesty International’s previous report of March 1997 (see above).  Despite the passage of another year, the Government of Pakistan appears not to have acted upon its commitments.  This report outlines developments relating to the status of women during the year and a half following the earlier report. It calls on the Government of Pakistan to consider urgently the report issued by the Commission of Inquiry for Women which it had established. It also describes the lack of progress in women's political participation, in employment and education. The report then looks at the abuses suffered by women in the custody of the state, in the family and in the wider social context. In the period under review, torture, including rape in police custody, remained widespread but under-reported, under-prosecuted and under-punished. Domestic violence continued to be viewed as a domestic affair; only in cases of particularly extreme cruelty did the media report it and police take action. Many women in Pakistan became victims of criminal violence, including rape. Dozens of women were killed on the mere allegation of harming the family's or clan's honour. Others were harassed and sometimes criminally prosecuted and/or killed for choosing their own marriage partners; the killings were sometimes sanctioned by tribal councils or jirgas. Police frequently failed to register complaints of rape, honour killings, domestic violence and other forms of abuse. In some instances, they concealed evidence and turned a blind eye to perpetrators threatening their victims into dropping charges. Judicial decisions sometimes reflected insensitivity to women's issues and contributed to a climate in which women's rights continue to be abused with impunity.

Amnesty International, Pakistan: Violence against Women in the Name of Honour, 22 September 1999, AI Index: ASA 33/17/99.

This is a full report on honour killings in Pakistan, setting out the context in which honour killings occur. The report states that every year in Pakistan hundreds of women, of all ages and in all parts of the country, are reported killed in the name of honour. Many more cases go unreported. Almost all go unpunished. The lives of millions of women in Pakistan are circumscribed by traditions which enforce extreme seclusion and submission to men. Male relatives virtually own them and punish contraventions of their proprietary control with violence. For the most part, women submit to traditional male control over every aspect of their bodies, speech and behaviour, but exposure to media, the work of women's groups and a greater degree of mobility have seen the beginnings of women's rights awareness seep into the secluded world of women. But if women begin to assert their rights, however tentatively, the response is harsh and immediate: the curve of honour killings has risen parallel to the rise in awareness of rights.

Bangash, M. A., ‘Administrative Justice in the Tribal Areas’, in Journal of Law & Society Vol.XVIII, No.30, (July 1997), 39-59.

This article outlines the three primary and interrelated components of justice administration in Pakistani tribal areas: the jirga system, political authority and the 1901 Frontier Crimes Regulation (FCR). The jirga, an indigenous arbitration body composed of respected community members, resolves disputes according to local custom requiring satisfaction of the aggrieved rather than punishment of the aggressor. Promulgated by the British, the FCR legally institutionalised the jirga and made both its composition and decisions subject to approval by political officers. This concentration of judicial and executive functions with a political officer was intended to establish a strong government and ensure cooperation with the colonial authorities. It is argued that the jirga is a useful medium which provides a sense of community participation in the relatively quick and inexpensive attainment of justice. However, it lacks external supervision and accountability while tribal affinity, required for its successful functioning, is disappearing. The article concludes that ordinary laws which safeguard fundamental human rights should apply in parallel to this existing system of justice.

Butalia, U., ‘Abducted and Widowed Women: Questions of Sexuality and Citizenship During Partition’ in Thapan, M. (ed.), Embodiment: Essays on Gender and Identity (Oxford: Oxford University Press, 1997), 90-106.

Focusing on questions of sexuality and citizenship, this article examines the experiences of women who were abducted or widowed during the 1947 Partition of India. India’s Central Recovery Operation was mounted to locate, recover and rehabilitate the approximately 33,000 Hindu and Sikh women abducted or forcibly married in Pakistan after 1 March 1947. India also established a women’s section of the Ministry of Relief and Rehabilitation to aid these women and the 75,000 women widowed because of the Partition. What differentiated these two groups was the former’s sexual contact with men of the ‘other’ community, perceived as resulting in a loss of male honour in the family, community and nation. The Central Recovery Operation was a relative failure (only 8,000 women were returned) primarily due to the refusal of many families to accept the women back, now seen to be polluted from this contact, and the children resulting from these mixed unions. This sexual chaos reflected the chaos experienced by the nation and it became imperative to restore order, either by regulating female sexuality within the family or by the state. Women now became crucial, for by protecting them, the state was perceived as protecting its national honour. Women were thus seen as constructed differently from men; not as citizens in their own right, but as mothers, sisters and wives who had to be both protected and rehabilitated.

Chowdhury, P., 'Enforcing Cultural Codes, Gender and Violence in Northern India', in Jayawardena, K. and de Alwis, M. (eds.), Embodied Violence, Communalising Women's Sexuality in South Asia (India: Kali for Women, 1996), 332-367.

This chapter deals with gender-based violence and the complexity of the caste system in the rural Northern Indian area of Haryana through an analysis of community norms and attitudes. Such violence often manifests itself because of the taboos against inter-caste marriages whereby a woman of higher caste 'defiles' her family and her caste honour by marrying a man of a lower caste. Similarly, there is a taboo against certain intra-caste liaisons, which are considered incestuous. In both cases, the family and, quite often, the community, react to these transgressions by levying punishments ranging from various forms of social boycott to physical attacks often resulting in the death of one or both people. The violence tends to be gender-oriented and is carried out because of a perceived injury to the honour of the family or clan by the transgression of the woman, since honour is seen as connected to control of female sexuality and reproductive labour. The existence of repression and of honour crimes based upon repression is further underscored by a lack of interest or initiative by the authorities who do not interfere in the matters because the crimes are so deeply rooted in history and cultural practices.

Commission of Inquiry for Women, Report, Government of Pakistan (August 1997), 87-88.

This Commission was set up in 1997 by the then Government of Pakistan to review all existing laws in Pakistan which are discriminatory to women and affect their rights as equal citizens of Pakistan. A section of the report analyses how customary practices oppress Pakistani women, and how such practices are condoned both by local communities and the state.  The report notes that the practice of karo kari (whereby any man or woman who has an illicit relationship is considered to dishonour the tribe and must be punished with death) often targets women, and refers to research in the Sindh province indicating that the police rarely arrest and convict offenders in such cases.  It notes that honour killings are rooted in the cultural and patriarchal perceptions of the ownership of women and that a woman’s body is seen as the repository of family honour.  The report recommends that there should be no mitigation of sentence in cases of ‘honour killings’.

Das, V., ‘National Honour and Practical Kinship: Of Unwanted Women and Children’ in Critical Events: An Anthropological Perspective on Contemporary India (Oxford: Oxford University Press, 1995), 53-83.

This chapter focuses on how concepts of purity and honour function in the sphere of kinship as well as in constituting the nation.  The basis of the analysis is the stories of women who were abducted and sexually violated during the widespread riots accompanying the Partition of India in 1947. The sexual and reproductive violence to which women were subjected cannot be understood as belonging only to the discourse of family: it has to be understood as doubly articulated in the domains of kinship and politics.  The author puts forward two questions: firstly, does the state produce its own codes of honour and shame, or purity and pollution, when it comes to undesirable children and secondly, are these codes then adopted by the order of the family as the codes of Indian society? This fragment of South Asian history points to the fact that, in periods of collective violence such as war, insurgency and widespread communal riots, women can come to the centre of consciousness as an abstract category and the regulation of their sexuality and reproductive functions can become visibly a matter of state.

NEW ENTRY:

Derné, S., ‘Hindu Men Talk about Controlling Women: Cultural Ideas as a Tool of the Powerful’, Sociological Perspectives, 37(2) (1994), 203-225.

Interviews with Hindu men as part of the author’s research reveal their self-conscious embrace of particular gender structures of Indian society which maintain their power and self-interest. Hindu men benefit from women’s subordination by actively promoting and enforcing rituals which restrict the movement and interactions of Hindu women.  The author states that “While it is often argued that people are unaware of how the social structure is maintained in day-to-day interactions… Hindu men seem to know that gender inequalities are maintained by their day-to-day talk.” The men believe that restrictions on the movement and interactions of Hindu women decrease “negative public opinion” and help maintain the family or community honour, which is essential to the professional lives of the men. These restrictions drastically limit the participation in women's public, political or professional spheres. Strategies employed by the women to challenge their domination are still constrained within these gender structures, and so amount to no more than “a patriarchal bargain” in which the women “deliberately assume the feminine role… in order to manipulate patriarchal authority.” In this way, the women’s strategies (e.g. feigning incompetence, criticizing other women) reinforce gender stereotypes.

Dhagamwar, V., Law, Power and Justice (New Delhi: Sage Publications, 1992), 303-310.

This chapter discusses the extent to which courts in India appear to take into consideration the ‘character’ and ‘sexual ethics’ of women victims in determining sentences in homicide cases.  Analysis of three murder cases illustrates how the Indian Supreme Court often commutes the death penalty in favour of a life sentence if a man alleges that he has killed due to loss of his ‘honour’.  Analysis of case law further reveals patriarchal attitudes towards women, and implicit acceptance of the notion of family honour as residing in the body and behaviour of women.

Dube, L., Women and Kinship: Comparative Perspectives on Gender in South and South East Asia (United Nations University Press, 1997).

This book examines the complexity of institutions that make up the structural and cultural dimensions of a kinship system and the impact it has upon women's lives and on sustaining a specific ideology of gender. Aspects of family and kinship are examined in communities in Bangladesh, India, Indonesia, Malaysia, Nepal, Pakistan, Philippines and Thailand within a comparative perspective. Across these countries, honour operates as an important mechanism in maintaining the seclusion of women within the private domain of the family household. Yet the extent to which this operates is relational to class, caste, ethnic and community differences. Women's sexuality is deemed a threat and as needing to be controlled through their invisibility. Marriages are mostly arranged and used to ensure that the honour and status of the family is maintained.

Geetha, V., ‘On Bodily Love and Hurt’ in John M. and Nair J. (eds.), A Question of Silence? The Sexual Economies of Modern India (New Delhi: Kali For Women, 1998), 304-331.

This chapter examines ‘woman battering’ within the family and outlines how this practice embodies notions of honour and female sexuality. ‘Battering’ is symptomatic of the sexuality of everyday life as women experience it in the context of marriage and the family.  Drawing upon the experience of women from the district of Snehidi in India, it is argued that constructions of female sexuality and honour operate to determine the subordinate position of women. Understanding masculinity is central to understanding how husbands represent their familial, economic and social status and power within the family. Suspicion within marital relationships is used by men to control female independence.  A husband may accuse his wife of promiscuity, call into question her ‘honour’, her competence as a good, chaste wife and dutiful mother and keep the children away from her.  Women are often killed in the name of honour in order for men to assert their superiority both within the community and family.

Haeri, S., ‘The Politics of Dishonour: Rape and Power in Pakistan’ in Afkhami, M., Faith and Freedom: Women’s Human Rights in the Muslim World (London: I.B. Tauris, 1995), 161-174.

This chapter discusses how notions of ‘honour’ and ‘shame’ operate in Pakistan to prevent women from reporting incidents of rape to the police. It examines a number of cases of rape which are historically located and defined as culturally specific to the socio-political context of Pakistani society. ‘Political rape’, the term given to highlight this phenomenon is defined as a modern improvisation on the theme of ‘feudal’ or ‘honour rape’. It is argued that rape is used as a political tool against women to dishonour and shame the whole family. One case study reveals how rape victims are unable to report crimes due to the fear of political persecution and that justice is sought by resorting to the tribal jirga, a practice condoned by the state. Once the rape has taken place, the notions of ‘honour’ and ‘shame’ are seen to come into play in their most extreme form, as male members of the family and community encourage the victim to commit suicide, as death is seen as the only way in which the honour of the family can be salvaged. As women’s honour is seen to be inextricably linked to family honour, rape is used against rival political factions to ‘dishonour’ and humiliate the whole family. The concepts of ‘honour’ rape and ‘political’ rape are thus shown to be inextricably linked.

Human Rights Watch, Crime or Custom? Violence against Women in Pakistan (August 1999), 30-31 & 40-45.

The report is based on research conducted in Lahore and Karachi and documents how the state in Pakistan fails to protect the rights of women victims of violence and denies them justice. Violence against women is treated as an accepted custom rather than a serious crime. Honour killings are documented as a form of intra-family violence which is condoned by the state. The report notes that in such cases, the police fail to arrest suspects and the courts pass lenient sentences whilst embodying notions of morality, honour and shame in their judgements. It calls for widespread reforms within the police and the judicial system to ensure that violence against women in Pakistan is addressed by the state, ensuring changes to domestic law and implementing international human rights standards.

NEW ENTRY:

Jillani, T. H., ‘Implementing the Right to Marry – A View from the Pakistan Courts’, International Family Law, (April 2001), 25-29.

This article discusses the right of women to marry in Pakistan. The debate is firmly located within the international human rights framework, with particular attention to the notion of equality between men and women as enshrined in CEDAW. In Pakistan women may be killed in the name of 'honour' for demanding the right to choose their own spouse as reflected in Humaira Mahmood's case. The author discusses three main areas central to this issue. Firstly, the sociological and historical issues central to this debate; secondly, how Islamic principles and jurisprudence affect the right of women to marry and finally, the constitutional provisions and the role of the courts in Pakistan. The author argues that education and human rights work will see a change in attitudes over time. Most importantly, however, the Superior Courts in Pakistan are playing a central role in interpreting the tenets of Islam in regard to marriage in a more dynamic, liberal and progressive manner. This approach is in consonance with the Islamic ethos of Pakistan, the constitutional commitment on gender equality and the underlying principles of CEDAW.

Mandelbaum, G. D., Women's Seclusion and Men's Honor: Sex Roles in North India, Bangladesh and Pakistan (Tucson: The University of Arizona Press, 1988).

This book outlines how the practice of 'purdah' and honour operate to control female sexuality. 'Purdah' is described as the physical covering of women within a enclosed space. The public and private domains are thus clearly marked with women being largely confined to the private space and being perceived as weak and vulnerable and in danger if they enter the public space alone. Women are seen to embody male honour and their behaviour can result in enhancement or loss of honour. Rape or illicit sex can lead to women being killed as their paternal family or husbands are seen to have suffered a grave dishonour. Women are therefore encouraged to remain in the private arena to avoid any possible loss of honour. The practice of 'purdah' can only be maintained by notions of honour. Honour is constantly reaffirmed in practice, reinforced in action and defended against in challenge. Marriage ensures that both honour and 'purdah' remain intact and that women remain confined within the private space.

Menon, R. and Bhasin, K., ‘Abducted Women, the State and Questions of Honour’ in Jayawardena, K. and de Alwis, M. (eds.), Embodied Violence, Communalising Women's Sexuality in South Asia (India: Kali for Women, 1996), 1-31.

This article examines the Partition of India through the hitherto absent voices of women made destitute by the event. More specifically, this article reviews the Central Recovery Operation of India, carried out between 1948-1956, which recovered approximately 30,000 women who had been abducted, forcibly converted and married during the upheaval, and restored them to their families and countries, for example, India and Pakistan. Material is presented in the voices of the government, the women themselves and the social workers involved in the rehabilitation and resettlement of the recovered women. It is argued that the state, in its articulation of gender identity and public policy, underlined the primacy of community identity and departed from its neutrality in assigning values to the ‘legitimate’ family and community ‘honour’ and that it did so through a regulation of women’s sexuality. The construction of woman first and foremost defined her as member of a community and invested her with full responsibility for upholding community honour. It also denied women autonomy by further defining them as victims of a transgression that violated the most critical site of patriarchal control – their sexuality. The article additionally questions why the matter of national honour was so closely bound up with the bodies of women and children born of what were seen as ‘wrong’ marriages.

Palmer, M., ‘The People’s Republic of China: Problems of Marriage and Divorce’ in Journal of Family Law, Volume 27, No.1(1988-89), 57-79.

In the post-Mao era, the Chinese State has assigned an increasingly important social role to the family and sought to intrude deeply into family life. However China’s economic policies have led to an increased conflict between traditional and modernist positions, defined as a conflict between ‘bourgeois liberalism’and ‘feudalism’. In the light of social and economic developments, the authorities have been more prepared to revise family law rules.  It has been difficult to apply existing family law rules in the rural areas.  Marriages contracted below the required minimum ages and forced marriages are considered to be the most important problems. Local state officials collude with family members by withholding marriage certificates. Such practices rarely attract punitive measures, and the continue largely unnoticed. Women embody the honour and prestige of the family and community and may be killed if they are considered to have failed to comply with accepted norms and customs. Discussion of the laws of divorce, property rights, custody and the pressure on women to bear sons (through the one child family programme) illustrate the problematic position of women in China.

Sarwar, B., ‘…On Suspicion of Illicit Relations’ in Davis, M. (ed.), Women and Violence (London: Zed Books, 1994), 220-222.

This short chapter discusses honour killings in Haripur, Sindh in Pakistan.  It focuses on a discussion with a local lawyer and his defence of a man who killed a young woman on suspicion of her having an illicit relationship. It discusses the position of women within the area and the strong patriarchal traditions embedded within local society. Women have few educational opportunities and the public/private dichotomy is enhanced and strictly maintained.  If women choose to challenge social norms they may face the risk of death. The state fails adequately to address such cases, and often family and friends conspire to protect the murderer.

Sen, S., ‘Offences Against Marriage’ in John, M. E. and Nair, J. (eds.), A Question of Silence? The Sexual Economies of Modern India (New Delhi: Kali For Women, 1998), 77-110.

This chapter traces the development of criminal laws relating to marriage in India from the early twentieth century.  It examines the relationship between economic developments, customary laws and imperial control.  The first section of the paper deals with some of the issues involved in the definition and categorisation of plural marriage practices in India.  The second section deals with the problems faced in implementing the criminal provisions that were codified in the mid-nineteenth century.  The third section discusses the overlap between criminal/penal enforcement of the marriage contract and immigration legislation.  The prioritisation of the marriage contract placed many restrictions on women’s mobility.  In both penal and immigration law, the marriage contract was privileged in favour of the husband, and wives were denied the right to escape unhappy marriages by flight, divorce or migration.

Shah, N., ‘Faislo -- The Informal Settlement System’ in Shirkat Gah, Shaping Women's Lives: Laws, Practices and Strategies in Pakistan (Lahore: Shirkat Gah, 1998), 227-252.

Based on research carried out in interior Sindh, this chapter looks at the traditional forum of settlement, faislo, prevalent in the area. The paper details the structure and mode of functioning of the faislo institution, apparently one of the strengths of the tribal system. Over the years the faislo system has not only survived, but has adapted to changed circumstances, impacting on both the state justice system, and the communities which use the informal settlements. The chapter, which includes case studies, looks at how women are used in the settlement and how the concept of honour is used in the tribal definition of crime and compensation, as well as at the background of the relationship between women and honour and its association with women’s bodies.

Shah, N., 'Role of the Community in Honour Killings in Sindh' in Hussain, N., Mumtaz, S. and Saigol R. (eds.), Engendering the Nation-State (Lahore: Simorgh Publications, 1998), 242-259.

This chapter examines how the community operates and facilitates the practices of honour killings in parts of the Upper Sindh, Uttardi. These killings are encoded in the ancient custom of karo kari where men and women are killed on suspicion of adultery or pre-marital sexual relations. This practice may however also be used to get rid of unwanted women and for settling tribal or familial scores. Tribal honour and tribal feuds are linked to land where women are treated like property and are often the chief victims of property disputes among men. Within the community, karo kari murders are not perceived as a crime and those who are suspected of committing adultery or commit adultery are defined as the criminal. Women are more susceptible to a karo kari killing as these are often committed within the private space of the family and household. The article outlines a number of case studies detailing the practice of karo kari and illustrates how community elders, local police and politicians are in collusion with the practice. The community asserts its supremacy and autonomy over the state and the state has in turn delegated its role to the communities and given them the authority to settle community issues according to their own tradition.

Shaheed, F., ‘Engagements of Culture, Customs and Law: Women's Lives and Activism’, in Shirkat Gah, Shaping Women's Lives: Laws, Practices and Strategies in Pakistan (Lahore: Shirkat Gah, 1998), 61-80.

This chapter argues that both customs and law are intricately linked to culture and flow from existing structures of power. Though distinguishable one from the other, culture, customs and law operate in a linked fashion and together define the space and rights available to women. Drawing on the experience of the Shirkat Gah Women’s Resource Centre, this chapter looks at the implications of this understanding for activism. It argues that converting women’s struggles for survival into workable strategies for transforming a patriarchal society into a more gender-equitable one requires more than small initiatives. These initiatives must be pursued on a much larger scale in order to address the political framework within which this process takes place. Networks can accelerate this process by sharing successful strategies for change. Women’s and human rights groups can provide mutual support to each other, including by generating an increased awareness of both common and diverse situations confronting women.

Shaheed, F., ‘The Experience in Pakistan’ in Davis, M. (ed.), Women and Violence (London: Zed Books, 1994), 213-219.

This chapter documents the use in Pakistan of specific legislation, in particular the Hudood laws, and the law of Qisas and Diyat,  to erode women’s human rights and the independence of the judiciary. Analysis of different types of gender specific violence is provided, including discussion of the use of rape as a political tool to dishonour male political opponents. It is argued that the state has consistently failed to protect women’s human rights and at times condoned and perpetrated the violence through inaction and collusion with local communities. 

Shirkat Gah/Women Living Under Muslim Laws, ‘Chart of Customary Practices in Pakistan in Comparison with Statutory Law’, Women & Law Pakistan Country Project (Lahore: S.P Creative Design, 1995).

This manual provides a detailed analysis of the operation of both customary and statutory laws related to women in Pakistan.  It aims to raise women’s legal awareness and options by outlining practical solutions.  Part III of the manual deals with violence against women, addresses ‘honour killings’ and sets out a number of examples are put forward to illustrate how men may murder in the name of ‘honour’ to avoid legal or social persecution.

Viswanath, K., ‘Shame and Control: Sexuality and Power in Feminist Discourse in India’, in Thapan, M. (ed.), Embodiment: Essays on Gender and Identity (Oxford: Oxford University Press, 1997), 313-333.

Focusing on the concepts of honour and shame, this chapter analyses feminist discourse in India regarding the understanding of the female body. Anthropological studies have examined the female body and sexuality within symbolic systems, demonstrating how male and family honour is dependent upon control of female sexuality, perceived as insatiable and dangerous, and the spaces women can occupy. These discourses view honour and shame from the point of view of men and women as merely sites or symbols. The focus is thus not on shame as an individual emotion but as a principle of social organisation and relationships. The women’s movement has dealt with female sexuality primarily through the issues of rape and sexual violence. A woman who has been raped is seen as having completely lost her honour, and the honour of her family. In colloquial usage, women do not use the explicit Hindi word for rape (balaatkaar), using instead the phrase izzat lootna (losing one’s honour). Feminist discourse locates shame as a form of patriarchal power that is imposed upon women from outside and which must be resisted. However, this article argues that shame becomes part of a woman’s understanding or definition of self. The women’s movement could sharpen its politics if it incorporates an anthropological understanding of shame and honour as centrally defining women’s sexuality.


3. CASE SUMMARIES

a) Americas

 

USA

 

NEW ENTRY:

State of Missouri v Maria Isa [1993] 850 S.W.2d 876; 1993 no. LEXIS 38

Supreme Court, Missouri, USA

Robertson J                                                                                                                                          

23 March 1993

The defendant (“D”), a Brazilian Roman Catholic, appealed from a conviction and sentence in state court in which she was tried jointly with her husband, a Palestinian Muslim. Both had been found guilty and sentenced to death for the first degree murder of her sixteen-year-old daughter, Palestina Isa (“Tina”), who had acquired an after-school job against her parents’ wishes and begun dating a man of colour. The evidence at trial tended to prove that D had held Tina’s head while D’s husband stabbed Tina at least sixteen times. D raised 35 different points of error, all but one of which were rejected. These included failure to sever the joint trial or to perform a competency examination; jury selection rendered improper by exclusion of jurors opposed to the death penalty; and other procedural and evidential motions.

At the lower court trial, the prosecution introduced into evidence a tape recording of the murder, made during Federal Bureau of Investigations surveillance of D’s husband on suspicion of terrorism. Introduction of the tape was contested but ultimately approved by the Eighth Circuit Federal Court in U.S. v Isa, 923 F.2D 1300 (8th Cir. 1991)

The judgment notes that on defence counsel’s cross-examination, Tina’s high school guidance counselor stated she was aware of a call to a Child Abuse Hotline on Tina’s behalf, and that the State of Missouri had investigated this. Another witness at trial had stated that Tina had bruises on her face and neck in 1989 after an altercation with her parents. D had sought but had not been allowed to place on record a report by  the Missouri Department of Social Services showing Tina had not been subject to child abuse.

In affirming the conviction, commuting the death sentence and remanding for resentencing, it was held that:

1.        The surveillance tape was not hearsay inadmissable against D because the tape was evidence of her state of mind at the time of Tina’s death and of her participation in it. The Missouri statute for first-degree murder requires that the accused must “knowingly cause the death of another person after deliberation upon the matter.” RsMo. § 565.020.1.

2.          D could be charged as a principal to murder but tried as an accomplice to murder. The Court had eliminated the distinction between principals and accessories in Goodman, 482 S.W.2d 490, 492 (Mo. S.C. 1972), and all persons who act together with a common intent and purpose in the commission of a crime are equally guilty.

3.          The common-law presumption of spousal coercion is outdated and cannot be applied in a case of murder. No duress by D’s husband was shown. “First, the presumption that a wife, acting in the presence of her husband, acts under his coercion, had its foundation in the notion that marriage “cast upon [a wife] the duty of obedience to and affection for her husband.” State v. Miller, 162 Mo. 253, 62 S.W. 692, 694  (1901). Our society no longer tolerates the common law fiction that wives are the property of their husbands, unable to think independently, and obedient to the point of criminal acts. Second, even the common law presumption did not extend to murder. … Such a presumption takes the marital commitment, “to love and obey” to an unreasonable extreme. More importantly, we note that the presumption did not arise because of any use or of threatened use of unlawful physical force.”

4.          During the sentencing phase of the trial, the jury instruction on aggravating circumstances relating to the sentencing contained numerous grammatical errors and also mixed in phrases borrowed from a guilt-phase instruction on responsibility for conduct of another. The instruction was patently confusing and invited the jury to sentence D based on her husband’s role in Tina’s death.

Observation:

Although it is possible to find a person guilty of murder for acts done in concert with another, it is never permissible to sentence a person to death for acts of another.

 

b) Europe
 

England

 

NEW ENTRY:

Buckland v Buckland [1967] 2 All ER 300

High Court of Justice (Probate, Divorce and Admiralty Division), England
Scarman J.                                                                                                                            

19 February 1965

 

The Petitioner (“P”) was charged under Maltese law with corruption of a 15 year old girl.  He maintained his innocence, but was advised that he would almost certainly be found guilty of the offence, given a long prison sentence, and ordered to support the child he was believed to have fathered.  The only alternative to this would be to marry the girl, which, terrified, he did. Several days after the marriage ceremony he went to England, where he acquired domicile. There he petitioned for annulment of the marriage on the ground that fear had vitiated his consent, and in the alternative for divorce on the grounds of adultery).

In granting his petition for a nullity declaration, the Court held that:

 

1.        Duress vitiating consent would be shown if  “the petitioner agreed to his marriage because of his fears”.  In this case P only agreed to the marriage due to his fear of imprisonment.

2.        These were fears which had to be “reasonably entertained”, and which “arose from external factors for which he was in no way responsible”.  P was informed twice that he had no option but to marry the girl to avoid imprisonment, despite the fact that he had not brought the fear upon himself.

 

 

H. v  H. [1953] 3 W.L.R. 849

High Court of Justice (Probate, Divorce and Admiralty Division), England

Karminski J.                                                                                                                          

30 October 1953

The Petitioner (“P”) lived in Hungary.  Due to the dangerous political climate existing in the country at that time, she feared danger to her life, liberty and virtue.  In order to leave she, then 18, obtained a French passport by going through a marriage ceremony with her cousin, a French citizen.  By agreement the couple then separated without the marriage having been consummated; she escaped the country, and duly petitioned for the marriage to be annulled on the ground of duress.

In allowing the undefended petition for a decree of nullity, the Court commented that:

  1. The reason P married was out of desperation to escape Hungary, which was in turn caused by fear of the danger she would be in if she remained.  This fear was reasonable given the political and social circumstances, and thus “of such a kind as to negative her consent to the marriage.  In the absence of consent there can be no valid marriage”.
  1. Although there appeared to be no case reported where the fear or duress emanated from a party other than the respondent or his agents, in this case the fear seemed reasonably caused by P’s political and social circumstances, rather than any fear caused by the respondent himself. 

 

 

NEW ENTRY:

Harper v Harper, [1981] C. L. Y. 730

County Court, Kingston Upon Thames, England

Baker J                                                                                                                                  

25 November 1980

H and W were married in a church in 1979.  H and his family appeared to have overborne the will of W, who tried to indicate on a number of occasions that she did not want to go through with the marriage.  On one occasion W even ran away from them for two days. On the day before the wedding, there was a violent incident involving H and W leading to the police being called. W was in a very shocked and distressed state and so a doctor administered a tranquilliser to her in the belief that the wedding would not then take place.  However, the wedding went ahead. H and his family asserted that W was merely suffering from wedding nerves, but W had very little recollection of the ceremony and did not give very strong responses in church.  On W’s evidence the marriage was not consummated.  H did not appear.

In declaring the marriage void, the Court held that: -

1.        There was no valid consent beyond the mere formality of presence. 

2.        There were some elements of duress in the very particular and special circumstances of this case.

 

 

Hirani v Hirani [1983] 4  F.L.R. 232

Court of Appeal, England

Ormrod LJ                                                                                                                             

5 May 1982

The Petitioner (“P”) was a woman aged 19 years living in England with her parents, who were Hindus of Indian origin.  In order to prevent P’s association with a young Muslim, also of Indian origin, which they regarded as abhorrent to their religion, her parents arranged for her to marry a man whom neither they nor P had previously met.  The marriage took place at a registry office and then religious ceremony, but was not consummated and P left after 6 weeks.  She petitioned for a decree of nullity on the ground of duress exercised by her parents, upon whom she was financially dependent, and who had threatened to turn her out of the home if she did not go through with the marriage.  P appealed from the decision at first instance where no decree was granted, the judge finding that since there was no threat to life, limb or property, there was no duress.

In allowing the appeal and granting the decree of nullity, the Court held that: -

  1. It was not necessary to find a threat to life, limb or liberty in order to find duress. The crucial question was whether the threats or pressure were such as to overbear the will of the individual in each case and destroy the reality of their consent. 
  1. Whatever the form of the duress, it must involve a coercion of the will so as to vitiate consent.  On the facts of this case the threats and pressure used by the petitioner’s parents had clearly overborne her will and thus invalidated or vitiated her consent.

“The crucial question in these cases, particularly where a marriage is involved, is whether the threats, pressure, or whatever it is, is such as to destroy the reality of consent and overbears the will of the individual. It seems to me that this case, on the facts, is a classic case of a young girl, wholly dependant on her parents, being forced into a marriage with a man she has never seen and whom her parents have never seen in order to prevent her (reasonably, from her parents’ point of view) continuing in an association with a Muslim which they would regard with abhorrence. But it is as clear a case as one could want of the overbearing of the will of the petitioner and thus invalidating or vitiating her consent.”

 

NEW ENTRY:

Hussein Otherwise Blitz v Hussein [1886] 12 P. D. 21.

High Court of Justice (Probate Divorce and Admiralty Division), England

Henn Collins J                                                                                                                     

21 March 1938

The petitioner asked that her marriage to the respondent be annulled on the ground of duress.  At the time of the marriage ceremony, the petitioner was eighteen years of age.  It was alleged that the petitioner never cohabited with the respondent and that the marriage was never consummated.  It was also alleged that the petitioner was induced to be a party to the ceremony of marriage not of her own free will, but through fear, duress and terror of the respondent who had repeatedly threatened to kill her if she did not marry him.  The petitioner believed that the respondent would carry out his threats.  Before the ceremony, the respondent prevailed upon the petitioner to sign a document which bound her to certain conditions of marriage including, inter alia, that she was aware of and would follow the Egyptian habits and character of the respondent, that she would never go anywhere without him, that she was signing the document without any obligation from any side, and that if she broke any of the conditions she would separate from the respondent, and would have no right to claim support from him in any Court, whether Egyptian or English. 

In granting a decree nisi of nullity, it was held that:

1.        The court had jurisdiction to entertain the suit notwithstanding that the de facto husband was domiciled abroad.

2.        The petitioner's evidence was corroborated in material respects.

3.        In the words of Butt J. in Scott v. Sebright: "Whenever from natural weakness of intellect or from fear - whether reasonably entertained or not - either party is actually in a state of mental incompetence to resist pressure improperly brought to bear, there is no more consent than in the case of a person of stronger intellect and more robust courage yielding to a more serious danger."

4.        The respondent's conduct clearly amounted to threats.  He dominated the petitioner by fear and exercised the power which he had over her to coerce her into signing the document and into marriage.

 

 

NEW ENTRY:

McLarnon v McLarnon, [1968] 112 S.J. 419

Stirling J                                                                                                                                

10 April 1968

Petition

W, then aged 17 years, refused to marry H who then lied to W’s parents that she was pregnant. Both parents refused to accept W’s denials and strongly pressed her to marry H, her father threatening to put her in a convent or home unless she agreed. The marriage thus took place and was consummated. W showed no signs of happiness with the marriage and soon after it became obvious that she was not pregnant. The parents realised the wrong that had been done and W petitioned for a declaration (undefended) that the marriage was null and void on the ground of duress. Her mother stood as next friend.

In granting the declaration that the marriage was null and void, the Court held that: -

  1. It was highly undesirable that the mother against whom duress had been alleged should be acting on behalf of W. The Official Solicitor should have been evoked, but since W was now of age and was satisfied with the case as prepared this would be disregarded here.
  1. The father’s threats, by which W believed she would be virtually incarcerated until she came of age, went far beyond ordinary pressure. W had been unjustly subjected to a grave fear stemming from an external consequence for which she was in no way responsible (applying Buckland v. Buckland).
  1. Although the marriage had been consummated this was no bar to an allegation of duress; it was no more than evidential weight and not a ratification or estoppel.  Mere sexual intercourse after a marriage had been entered into ex hypothesi under duress, would not negative a plea of duress.

 

NEW ENTRY:

R V. Haq; R V. Saleem, The Times 28 February 1996

Court of Appeal (Criminal Division), England

Swinton-Thomas LJ, Harrison, Thomas JJ                                                                      

16 February 1996

The appellants ("H" and "S") were sentenced to life imprisonment at Leeds Crown court for the murder of their sister, Sharifan Bibi ("B") and her lover Hasmat Ali ("A"). B and A disappeared on 19  December 1988 and were never seen again.  No bodies were ever recovered.  At the trial the Crown had alleged that the motive for the murder was that B, who was a married woman, had brought disgrace upon the family by taking a lover. The trial judge rejected the submission that there was no case to answer. 

H and S appealed against the conviction on the basis that the circumstantial evidence relied upon by the Crown at the trial did not give rise to an inference of guilt in relation to the crime of murder.  This evidence included a statement allegedly made by H to the effect that "she was my sister but she is not my sister any more because she has brought a bad reputation to my family".  Witnesses from Pakistan also gave evidence alleging that S had made statements to the effect that they had murdered B and A, and that he had told his wife that "if we can kill our sister, we can kill you also".

In dismissing both appeals, the Court found that: -

1.        The case put forward by the Crown to establish the offence of murder against H was extremely strong, and the circumstantial evidence by itself was quite sufficient to found a verdict of guilty by the jury.

2.        The Court was in no doubt as to the safety of the convictions, and the trial judge had rightly rejected a submission of no case to answer.

 

 

NEW ENTRY:

R v Shabir Hussain [1998] Crim LR 820 : LTL 12/11/98

Court of Appeal, England

Waller LJ, Owen J, Sullivan J                                                                                            

7 November 1997

The appellant (“A”) appealed against his conviction for the murder of his sister-in-law on the ground that the Bradford Crown Court judge had improperly allowed a witness (“X”) to name him and had ruled X's evidence admissible. A had been convicted of murdering the deceased by driving at and over her several times. X witnessed the appellant drive the car in question before the killing and claimed that he recognised the appellant because he had seen or thought he had seen him on two previous occasions. X claimed that he knew that the appellant was the deceased's brother-in-law because he had been told so by the deceased.     

In allowing the appeal and ordering a re-trial, it was held that:

1.        It is against the hearsay rule for the witness to identify the appellant by name. The lower court judge was not entitled to allow the Crown to call X to give evidence that he had recognised the appellant.

2.        The identification evidence was weak and had been left to the jury to be supported by any circumstantial evidence. Therefore, the conviction be unsafe. 

3.        A re-trial could be ordered because, even without the hearsay evidence of X, there was sufficient circumstantial evidence on which the jury, properly instructed, could have convicted and because the judge made it clear that if the identification evidence was all that had been before the jury, he would have stopped the case.

 

 

NEW ENTRY:

R v Shakeela Naz LTL 23/3/2000

Court of Appeal, England

Mance LJ, Douglas Brown J, Sachs J                                                                              

23 March 2000

The appellant (“A”) appealed against her conviction on 25 May 1999 at Nottingham Crown Court for the murder of her 19-year-old daughter Rukhsana ('R'). A's two sons, 'S', aged 21, and 'I', aged 17, were tried with her.  S was convicted of murder and I was acquitted. After an arranged marriage, R had an affair with an old boyfriend and became pregnant. She planned to keep the child and live with the boyfriend. The Crown alleged that A and S murdered R because she refused to have an abortion and because of the shame she would bring on the family. A held down R’s legs while S strangled her with electrical wire. Allegedly, I assisted S by pulling the ligature and S and I took R’s body wrapped in a pillow case by car to a field 70 miles away. Evidence was led hat R’s sister was prevented by the family from reporting her disappearance and that A tried to get R to make a will in favour of her two children. Subsequently, I made a statement admitting that he had been present when R was murdered. I's statement implicated both S and A in many respects.

A appealed on the ground inter alia that in light of the Crown's case that the murder had been motivated by the disgrace that R would bring on the family, it was submitted that in reference to the Equal Treatment Bench Book the judge should have warned the jury about the risk of deploying their own assumptions to evaluate others' behaviour. 

In dismissing the appeal, it was held that:

1.        The lower court judge gave sufficiently careful and appropriate directions to the jury on how to treat L's evidence and of its risks. The jury was also aware of the risk involved in the outstanding charge casting doubt on L's testimony.

2.        The summing up by the lower court judge was fair and given in neutral terms. The possible motive suggested by the Crown was justified by the evidence.

 

Re KR (A Child) (Abduction: Forcible Removal By Parents) [1999]4 All ER 954

High Court of Justice (Family Division), England

Singer J                                                                                                                                 

18 May 1999

A British citizen of Indian Sikh origin (“P”) left home and established a relationship with a man, to the deep disapproval of her parents. Her younger sister (“KR”), then sixteen, also attempted to leave her parents and go to live with P in her home. KR’s father alleged to the police that P had effectively kidnapped her. P claimed that her sister was at risk of being forcibly removed to India and forced into marriage by the parents as soon as she reached the age of eighteen. The police returned KR to the custody of her father, who beat her and forcibly took her to India, where her passport was removed and she was kept as a prisoner. On application by P, KR was made a ward of the Court.  Her parents claimed that she had gone to India willingly and wished to remain there. The judge drew up an order inviting the Indian authorities to establish KR’s whereabouts and to put her in contact with the British High Commission in New Delhi. KR succeeded in persuading her family to take her to High Commission and she was returned to England.

In ordering the wardship to continue until the end of KR’s minority, The Court held that :-

1.        Child abduction is still child abduction when both parents are the abductors and the child is very nearly an adult.

2.        Although the English courts are not insensitive to considerations of certain traditional values and concepts of family authority that may be held by minority communities, such sensitivity would usually give way to the integrity of the individual young person or child. On the specific issue of marriage the Court noted “the voice of the young person will be heard, and in so personal a context as opposition to an arranged or enforced marriage, will prevail”. 

3.        The risk faced by many young girls seeking to depart from the traditional norms of their religious, cultural or ethnic group, and the specific pressures caused by “the desire of their parents and family that they should marry in the way culturally expected of them”, needed to be bought more fully into the public consciousness.  Thus education and local authorities should consider creating policies to easily enable children under such pressures to seek their help, and teachers and lawyers should also be aware of the issues involved.  Parents of such children should be made aware of the difficulties and conflicts they faced in attempting to retain every aspect of their traditions and expectations, whilst simultaneously raising their children in an English educational system and society.

 

NEW ENTRY:

Sakina Bibi Khan & Mohammed Bashir, [1999] 1 Cr.App.R (S).

Court of Appeal, England

Henry LJ, Sir Patrick Russell and Beaumont J                                                

28 July 1998

Sentencing Appeal

The appellants (“K” and “B”) wished to contract an arranged marriage for their twenty year old daughter Rehana (“R”), and regularly tried to persuade her to go to Pakistan in order that this could occur.  R would not agree to this and left the family home in order to study at university in Luton.  R was later informed that her maternal grandfather had died suddenly, and consequently she returned to the family home and was persuaded to remain over the New Year period.  K then gave R a drink into which she had placed sleeping tablets, and while R was asleep K and B took her to Manchester Airport with a view to boarding a flight to Pakistan.  Since R was acting strangely and did not appear to wish to board the flight, the police were called to the airport. R was taken away and received medical treatment, later making an uneventful recovery. 

K and B pleaded guilty at Manchester Crown Court to an indictment of two counts of kidnapping and  administering a noxious thing.  K received a sentence of 6 months imprisonment on each count concurrent, and B received a sentence of 2 years imprisonment on each count concurrent.  They appealed against the sentences on the grounds that there was as objectionable disparity between the sentences imposed on the appellants.  The sentence imposed upon B was four times the length of that imposed upon K, despite that fact that the activity of both parties in the case had been the same.

In allowing the appeal against the length of the sentence imposed upon B, but dismissing the appeal against the sentence imposed upon K, the Court held: -

1.        K was fortunate to have been initially sentenced as leniently as she was and therefore her appeal had no merit.

2.        The judge had justifiably taken into account the fact that K was a mother in imposing a lenient sentence.  However, there was undue disparity between the sentences of the two parties.  Therefore B’s sentence of two years imprisonment would be quashed and replaced by a sentence of 12 months imprisonment.

 

 

Singh v Singh [1971] 2 All ER 828

Court of Appeal, England

Davies, Karminski and Megaw LJJ                                                                                  

1 February 1971

The petitioner (“P”) was the 17 year old daughter of Sikh parents who arranged her marriage . When P met the man, 21 years, chosen by her parents  for the first time at the registry office she did not wish to go through with the civil ceremony, but claimed that she did so out of deference to her parents’ wishes and to her religion.  According to Sikh custom, the parties separated after the registry ceremony, and arranged for the religious ceremony, after which the marriage was to be consummated, to be held in a Sikh temple a week later.  However, P refused to attend the religious ceremony and did not have anything further to do with the husband.  P’s undefended  petition for nullity on the ground of (inter alia) duress induced by parental coercion was dismissed at first instance.

In dismissing the appeal, the Court held that in order to establish that there had been duress which vitiated consent to the marriage, a petitioner would have to show that their will was overborne by genuine fear induced by threats of immediate danger to life, limb or liberty.  In the present case, even though P had acted out of respect for her parents and her religion, there were no such threats and hence no duress.  The Court noted in particular that: -

  1. “It is common ground .  .  . that the first essential of a valid marriage is consent.  Anything short of consent makes the marriage a nullity ab initio”. (Karminski J).
  1. The cases of Szechter v. Szechter, H. v. H., and Buckland v. Buckland applied in this case with regard to what constitutes duress sufficient to vitiate a marriage.

[N.B. P’s second argument, based on failure to consummate the marriage due to invincible repugnance, also failed, due to her inability to demonstrate that she had some physical or mental defect which made it impossible to have intercourse with the other party. The Court said that in this case there was no such a defect, only a lack of desire to consummate marriage.]

 

 

Szechter v Szechter [1971] 2 W.L.R. 170

High Court of Justice (Probate, Divorce and Admiralty Division), England

Sir Jocelyn Simon P., 9 July 1969

The parties went through a marriage ceremony in a Polish prison in order to extricate the wife from the three-year prison sentence she was serving for “anti-state activities”.  She was of poor health and the parties feared she would not survive the prison term.  The plan succeeded and both came to live in England where the wife petitioned for a nullity decree on the ground of duress.

The Court held that according to Polish law the marriage would be void for duress, and that they had jurisdiction to reflect this by issuing a decree of nullity.  It commented that:

  1. “Where a formal consent is brought about by force, menace or duress… it is of no legal effect.  This rule, applicable to all contracts, finds no exception in marriage.”
  1. Usually “the source of the fear and the agent of duress will generally be the other party to the marriage.  But this is not necessarily so.”  The source of the fear may also originate from some other source such as political and social danger (see H. v. H.).
  1. In order for this danger to amount to duress so as to vitiate an otherwise valid marriage, it must be shown that the will of one of the parties has been “overborne by genuine and reasonably held fear caused by threat of immediate danger (for which the party is not himself responsible) to life, limb or liberty, so that the constraint destroys the reality of consent”.

 

Islam (AP) v Secretary of State for the Home Department; R v Immigration Appeal Tribunal Ex Parte Shah (AP), [1999] 2 WLR 1015, [1999] 2 All ER 545.

The conjoined appellants were two Pakistani married women who fled to the UK after suffering domestic violence in Pakistan. After being granted exceptional leave to remain in the UK, the appellants claimed refugee status according to Art 1A(2) of the Convention Relating to the Status of Refugees, 1951, as 'members of a particular social group'. Both appellants claimed that they faced the risk of being falsely accused of adultery in Pakistan by their husbands and that if they returned to Pakistan they would be subject to criminal proceedings for sexual immorality, which could lead to punishment by flogging or stoning to death.

The Court of Appeal dismissed their appeals against the Immigration Appeal Tribunal. In allowing the appeal setting aside the decision of the Court of Appeal, and remitting the cases to the Immigration Appeal Tribunal, the House of Lords held inter alia that:

1.        Domestic violence and abuse of women is prevalent in Pakistan. However, the distinctive feature in these cases is that discrimination against women in Pakistan is partly tolerated and partly sanctioned by the state.

2.        It is accepted that each appellant has a well founded fear of persecution if returned to Pakistan and the issue therefore turns on the meaning and the application of the words 'persecution for reasons of … membership of a particular social group' in Art 1A(2).

3.        This reasoning covers Pakistani women because according to the legal and social conditions existing in Pakistan they are discriminated against on grounds of gender and as such are a social group unprotected by the state.

4.        Even if Pakistani women themselves are not a 'particular social group', the appellants are members of a more narrowly circumscribed group based on the unifying characteristics of gender, suspicion of adultery and lack of state protection.

 

Ireland

 

NEW ENTRY:

 

W. (C.) v.  C., [1989] I.R. 696

High Court, Ireland

Barron J                                                                                                                                

17 February 1989

The petitioner (“W”) and the respondent (“C”) had formed an abusive relationship, which she unsuccessfully attempted to break off on a number of occasions.  When C had sexual intercourse with her against her will and she became pregnant, her parents told her she would have to marry him, and the principal of the school where W was employed as a teacher informed her that she could not stay on at her job as an unmarried mother.  Accordingly, W felt that she had been dishonoured and had lost her position within society, and that unless she married she could not recover her self-respect or work again in the teaching profession.  Unable to think beyond her pregnancy, she decided to marry C, who agreed.  However, C was cruel, sadistic and sexually abusive and W eventually left him.  She sought a decree of nullity on the grounds that (1) there had been no valid consent to the marriage, and (2) C was unable to sustain a proper marriage relationship due to a personality disorder which had been diagnosed by a psychiatrist.

In granting the decree, the Court held that:  -

  1. There was no valid consent by W to the marriage because the strain of her circumstances had made her unable to see beyond her pregnancy.  Her decision to marry was not due to a wish to set up a matrimonial home with C, and she had only married him in order to resume profession and her place in society.  Although the circumstances were not as extreme as the repressive political regime as in Szechter v. Szechter and H. v. H., the quality of consent was the same and the cases were applied.

 

Scotland

 

NEW ENTRY:

Akram v Akram [1979] WL 69232 (OH)

Outer House, Scotland

Lord Dunpark                                                                                                                      

3 November, 1978

The petitioner (“P”) asked for a declaration that her marriage was null on the ground that no true matrimonial consent was exchanged between her and the defender.  Both P and the defender were of Pakistani origin and Muslims.  While P had lived in Scotland for many years, the defender had only lived in Scotland for a short period at the time of the ceremony.  The parents of both parties arranged the wedding for the defender and the petitioner, who were cousins. P decided to go through with the ceremony out of deference to her parents and so that the defender would be allowed to extend his stay in Scotland.  In addition, because she believed that her religion did not recognise any form of marriage other than a religious ceremony in accordance with Muslim custom, P did not consider that the civil ceremony binding. Likewise, the court inferred that the defender's motive in participating in the civil ceremony was to enable him to extend his stay in Scotland and that he also did not regard the civil ceremony as binding.  While it was intended that a Muslim religious ceremony would follow the civil ceremony, this ceremony did not take place as neither P nor the defender wished to proceed.  Shortly after the civil ceremony, the defender returned to Holland and the marriage was never consummated. 

In pronouncing a decree of declarator of nullity, the court held that:

  1. If it is proved that, notwithstanding the trappings of a formal marriage ceremony, the parties did not voluntarily and seriously exchange their consent for the purpose of obtaining married status, the marriage may be annulled. As neither of the parties intended to be married by the ceremony, they cannot be said to have exchanged their consent for the purpose of obtaining married status.  The ceremony therefore had no legal effect. 
  1. The petitioner's second motive for participating in the ceremony, namely to enable the defender to apply for an extension of his residential permit, is irrelevant to the question of validity.

Observations:

  1. If the only motive for participating in the civil ceremony had been to extend the defender's residence permit, the decree of nullity would have been denied.  To have granted the decree in these circumstances would have allowed the defender to defraud the Home Office.
  1. The parties in this case abused the law by presenting themselves to the marriage registrar for marriage even though they did not intend to be married.  The law permits itself to be abused in this way.  It is for Parliament to decide how to respond to this abuse. 

 

Mahmood v Mahmood [1993] S.L.T. 589

 

Outer House, Scotland

Lord Sutherland (Lord Ordinary)                                                                                      

4 November 1992

The pursuer, Shamshad Mahmood (“SM”), brought an action seeking to have the marriage between herself and the defender, Zahid Mahmood (“ZM”), nullified on the ground that duress had vitiated her consent to the marriage.  She alleged that her parents and ZM’s parents had arranged the marriage without her prior knowledge or consent, and that when she protested against the arranged marriage her parents threatened to disown her, to stop supporting her financially, and to send her to live in Pakistan. They said that by refusing she would bring disgrace on herself, her family and the Pakistani community. She had a boyfriend of whom her parents disapproved. In support of her belief that they would carry out these actions, SM claimed that her parents had already disowned her older brother and sister for refusing to enter into arranged marriages, and that she was totally reliant on her parents for financial support. She claimed that due to these factors her ability to give genuine consent to the marriage was affected by duress. She entered into the marriage and lived with ZM for three months before the parties separated. ZM argued that in the present case the threats were not grave enough to constitute duress sufficient to vitiate consent to the marriage.

Due to the specific nature of the alleged threats, the Court ordered that the case be sent for proof before answer, and held that: -

  1. Duress to a sufficient degree could vitiate consent and therefore form a ground for nullifying a marriage. However, the threats offered must be such as to overcome the will of the particular pursuer. Whether this had in fact occurred would be a question of degree on the facts of each case.
  1. In this case the specific threats claimed by the pursuer could be argued as being beyond the limits of proper parental influence. In particular the threat to cut off financial support and send her back to Pakistan could be regarded as sufficient to overcome the will of a woman of her age and cultural background.  However, disapproval of the parents or the community alone would not be sufficient grounds for vitiating consent.
  1. In determining whether the pursuer’s consent was genuine it would also be necessary to explore the circumstances leading up to the threats being made, as well as what had happened after the marriage ceremony.
  1. Observed, that the consent which had to be given *590 to a marriage need not be enthusiastic consent; reluctant consent would suffice provided that the consent was genuine (p 592B-C).

 

NEW ENTRY:

Mahmud v. Mahmud [1977] S.L.T. (Notes) 17

Outer House                                                                                                                         Scotland

Lord Kincraig                                                                                                                        15 December 1976

The petitioner asked for a declaration that her marriage to M was null, on the ground that she had not consented to the marriage.  The petitioner had lived in Glasgow since 1964 with her parents.  She was of Pakistani origin and was Muslim.  M, the petitioner's cousin, was Pakistani and also Muslim.  He had been granted a three month visa to study in Glasgow.  Before M arrived in Glasgow, the parents of both parties arranged that M would marry the petitioner while he was in Glasgow.   In February 1975, M arrived in Glasgow and moved into the petitioner's parents house, where the petitioner was also living.  However, M neither saw nor spoke to the petitioner before the marriage ceremony.  The parties went through the marriage ceremony on 27th February 1975.  On the following day, M left for London.

About a week after the ceremony, at M's request, petitioner's father delivered the marriage license as well as the petitioner's passport and nationality documents to M.  M required these documents in order to extend his stay in the United Kingdom.   After another week, M telephoned the petitioner's father in order to inform him that he did not want to see the petitioner and did not wish to be contacted further by her or her family.  This was the last contact between the petitioner's family and M.  The parties had never cohabited and the marriage was never consummated. 

It was clearly understood between the parties that a religious ceremony would follow the civil ceremony.  Both parties, as Muslims, understood that they would only truly be married following the religious ceremony.  The petitioner submitted that M regarded the civil ceremony as a mere formality necessary to enable him to remain longer in the United Kingdom.

In granting an annulment, the court held that:

1.        Despite the fact that the statutory formalities of a registry office marriage were fulfilled, the marriage could be declared null on the ground that no true consent to marry was present.

2.        The petitioner's appearance before the registrar was solely to comply with the formalities of Scots law as to the constitution of marriage in Scotland,  and her consent was given before the registrar in that belief.  She did not agree to be married by the procedure. 

 

 

NEW ENTRY:

Mahmud v Mahmud [1994] S. L. T. 599

Outer House                                                                                                                         Scotland

Lord Prosser                                                                                                                         16 June 1993

Duress vitiating consent to marriage

The Pursuer ("P") was a member of a Muslim family of Pakistani origin under pressure from his parents and other family members to enter into an arranged marriage with a cousin from Pakistan ("D"). When he refused to do so he was made to feel that he was bringing shame on his family in the eyes of the wider Pakistani community by disobeying his parents' wishes in relation to marriage. Eventually, after twelve years and when aged thirty, he married D whom he had not seen prior to or since the marriage ceremony, at a registry office in Glasgow. At the time of the marriage he had been living with his girlfriend whom he intended to marry and with whom he had a child. After the marriage, P informed the immigration authorities of the situation and D was deported.  P claimed that the marriage was null and void due to the fact that he had not fully consented to it, having acted under duress.

In granting P the undefended declarator of nullity of marriage, the Court held that:

1.        The fundamental question in cases of this kind was whether the consent in the marriage was "free" consent showing an "agreeing mind".  Such consent would not be present if it had been compelled by force. 

2.        In the present case the pressure did amount to force, resulting in the overbearing of P's mind and vitiation of his consent.  The Court was satisfied that "in going through the ceremony of marriage with D , P was doing something directly in conflict with his own established wishes, intentions and strong commitments" to his girlfriend and their child.

3.        The method by which consent was vitiated need not take any specific form.  The crucial matter was the state of mind produced in the person giving the forced consent, which was a question of fact.

4.        Parents and other persons were entitled to apply pressure upon someone refusing to marry, with a view to producing a change of mind.  The marriage would only be invalid if the consent thus induced could not sensibly be described as a genuine change of mind, but was rather an act contrary to the party's own true intent.

5.        The general cultural and social background of the parties involved should be taken into account, including "traditions of authority and deference" inherent in the custom of arranged marriages.  However, one should assume from this that a female rather than a male, or a younger rather than older person, would be more likely to be coerced by moral pressure.

c) Asia/South Asia

 

Australia

 

Barca v R, [1975] 133 C. L. R. 82

High Court, Sydney and Melbourne Australia

McTiernan, Gibbs, Stephen, Mason and Murphy JJ, 18 – 20 August 1995

10 October 1995

 

The appellant (“A”) was a Calabrian immigrant who had been convicted of the murder of his sister’s husband.  At the trial evidence was given of a Calabrian custom of vindicating the honour of a woman by murdering the man who has dishonoured her, and leaving a “sign of honour” in the form of a cross on his body.  In this case the court heard that the deceased had been accused by his wife of dishonouring her, and that the bullets that had killed the deceased had intersected in his skull in the sign of a cross.  According to custom the prime responsibility for vindication of the woman’s honour in such a situation rests with her father.  At the trial A attempted to argue that the father of the deceased’s wife had carried out the killing, and not A.  The trial judge directed the jury that there was no evidence that the father was responsible for the killing and that it would be wrong for them to acquit A on the basis that the murder may have been committed by the father.  The appellant was granted leave to appeal against his conviction.

In setting aside the conviction in the Supreme Court of New South Wales, allowing the appeal, and ordering a new trial, the majority of the Court (McTiernan J dissenting) held that: -

  1. It was for the jury to decide whether or not the evidence as a whole was inconsistent with the hypothesis that the father and not A had murdered the deceased.  The judge had erred in directing the jury that they could not decide that issue in favour of A.
  2. A was entitled, through the presumption of innocence, to advance the hypothesis that someone else committed the murder.  Since the Crown had adduced evidence which tended to show that the murder was committed by a member of his family, he was entitled to attempt to show that since he was not guilty another member of his family was.
  3. The evidential basis for inferring that a member of the family had murdered the deceased was the fact that “the method of killing was that of a ritual murder of vengeance for dishonour under Calabrian custom.  The deceased had dishonoured A’s family in a way which warranted his execution under this custom”. In police transcripts A suggested that the deceased had not been killed for money or any other reason, but for reasons of honour.
  4. The basis for inferring that the father was guilty rather than A was partly that he had allegedly been involved in a similar incident with his daughter’s previous husband.  Also, Calabrian custom in such situations was for the father of the woman who had been dishonoured to vindicate her honour.  Therefore the father in this case was “of the class who, according to what is said about the custom, may carry out the murder” in the name of honour.

 

NEW ENTRY:

R. v Dincer [1983] 1 V.R.  460

Supreme Court Victoria, Australia

Lush J.                                                                                                                                  

28, 30 August 1982

The Defendant (“D”), a Muslim man of Turkish descent, was alleged to have killed his sixteen-year-old daughter, Zerrin, after a period of some months in which she had run away from home twice, associated with young men against her parents’ wishes, and been arrested for shoplifting. Two days before her death, Zerrin and her boyfriend asked for her parents’ permission to live together, and they eventually acquiesced and took the couple to the railway station. However, the parents then tried to trace her to bring her home. On receiving a call from the young man’s mother that they were at her home, the parents proceeded there, via the police station where they discussed, among other things, reports of her sexual activity. D and his wife confronted Zerrin and her boyfriend in his parents’ home, and D there stabbed his daughter fatally. 

The question before the court was whether in the circumstances the defence of provocation could be pleaded to reduce the charge from murder to manslaughter. The Crown argued that the provocation defence requires the circumstances to be of a type that would include a similar loss of control in an “ordinary man”, and that since the ordinary Australian man would not respond in such a way there was no reason for the provocation issue to go to the jury. D argued that the jury should be allowed to take his Turkish and Muslim background and his traditional views into account in its consideration of the characteristics of an “ordinary man”. D further argued that he had for a long time lived with the stress of being shamed by his daughter and that this grievance smouldered into flame during the confrontation at the boyfriend's home and resulted in a loss of self-control and the killing.

The Court noted that there was evidence “that such a man expects to be the undisputed head of his house and that he expects his daughters to live in fairly close confinement in the home circle and to avoid contacts with young men other than those of the family’s selection. There is evidence that the loss of virginity of the daughter is a matter of shame and disgrace to the parents which may lead to their social ostracism. It is a matter which will, perhaps, make it impossible for them to secure a marriage for their daughter, and, although it has not been expressly said in the evidence, it appears implicit that the marrying of the daughters is regarded as the proper order of things for them.”

However, no witnesses could testify on D’s cultural or religious background.

The Court held that the issue of provocation should be left to the jury, noting that:

 

1.        The characteristics put forward on behalf of the defendant were not characteristics amounting merely to more than an unusual excitability or pugnacity. They were characteristics of a permanent, as opposed to transitory nature, that distinguished the accused from the ordinary man of the community.  As such, these characteristics could properly be taken into account in the consideration of the characteristics of the ordinary man. The question to be put to the jury was whether the ordinary man, possessed of a traditional Muslim and Turkish background, might have acted as the accused man did.

2.        The defence of provocation applies only in the presence of loss of control.  Accordingly, it is incapable of applying to anything in the nature of a ritual killing, or a killing dictated by the accused man's religious or political beliefs and convictions.

3.        In order for the defence of provocation to apply: (i) the accused must have lost self-control  as a result of the provocation and must have reacted in a state of lost self-control; (ii) the provocation must be of such a kind that an ordinary man might in the same circumstances have reacted in the same manner as the accused. The provocation and the accused man’s reaction must therefore be proportionate in order for the defence to apply. 

4.        The crown carried the burden of proving either that the accused did not lose self-control or that an ordinary man with the defendant's characteristics would not have responded to the alleged provocation by losing self-control or by killing his daughter.

 

Bangladesh

 

Rehana Begum v Bangladesh  50 DLR [1998] 557-559.

 

High Court Division , Bangladesh

Chowdury J, Haque J                                                                                                         

4 September 1997

The petitioner (“R”) had been detained in judicial custody in Moulvibazar prison by order of  the magistrate although she had committed no crime nor was there any allegation of any offence committed by her. R, a British national, was taken at the age of 16 by her father from Britain to his village Raipur, District Moulvibazar in Bangladesh.  On arrival her British passport was taken away by him and he left for the UK.  R was left in Bangladesh for an indefinite period in order for a prospective husband to be found.  She later married Isa Khan (“K”), a Bangladeshi national, out of choice and against her father’s wishes.  In fear of their lives R and her husband went into hiding and only agreed to return once a verbal agreement had been reached that the issue would be resolved amicably.  The couple was arrested without warrant under section 54 of the Code of Criminal Procedue. R’s father alleged that she had been abducted and was a minor when marriage took place thus rendering it invalid. He also accused K of rape, and he was sent to prison pending trial and R was sent to judicial custody. Both her husband and father made separate applications for her to be released into their custody.  Both applications were refused and R had remained in judicial custody until the issue of whether the marriage was genuine and legitimate could be resolved.

R claimed her detention in judicial custody was without any lawful authority and therefore of no legal effect.

The Court held:

1.        Rehana’s detention in judicial custody was without any lawful authority and she must be set free at once.

2.        Rehana shall not leave Bangladesh without the permission of the Court pending disposal of the case filed by her father.

 

Pakistan

 

Mst Humaira V Malik Moazzam Ghayas Khokhar & Ors[1999] 2 CHRLD 273

 

High Court, Lahore, Pakistan

Justice Tassaduq Hossain Jilani                                                                                      

18 February 1999

Humaira, who was on pre-arrest bail, was arrested and beaten by the police whilst attempting to leave Pakistan with Mehmood Butt. She had previously been pursued to Karachi from Punjab and arrested there whilst attempting to flee her home. Her family claimed that she was the wife of M. Khokhar and they had pursued a number of strategies using the police to find and detain her. However, Humaira argued that her alleged marriage to M.Khokhar was a sham, formed under duress and at a later date than her actual marriage to Mehmood and therefore the former marriage was void. Thus, the petitioner, Humaira, claimed that the case registered against her under s 16 Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, based on statements of M.Khokhar and her brother, which were false and mala fide, should be quashed. 

In quashing the registered cases against Humaira, fining and jailing the police officer and ordering an investigation of the police officials connected with the case, it was held that:

1.        It is a settled proposition of law that in Islam a sui juris woman can contract nikah (marriage) of her own free will and a nikah performed under coercion is not valid in law.

2.        Where consent to a marriage is in dispute and a nikah nama, which is being challenged, is owned by a man and a woman who claim to be husband and wife, then the presumption of truth attaches to the nikah nama acknowledged by both spouses and not by the intervener.

3.        The alleged nikah with M.Khokhar has a number of aspects which prima facie create doubt in its authenticity of being first or having been performed with Humaira's consent. As the petitioner and Mehmood Butt have owned their nikah, a presumption of valid marriage would arise in their favour in view of s 268(c) of Mohammadan Law.

4.        This is in accordance with Arts 4 and 25 of the Constitution, which guarantee that everybody shall be treated in accordance with the law and Art 35, which provides that the state shall protect marriage and the family.

5.        The precedent case law shows that this court has ample powers in its Constitutional jurisdiction to interfere where there is material on record to show that a police investigation demonstrates either malice in law or fact. In the present case there is strong credence to the allegations of mala fide levelled against the police and state functionaries.

6.        (6) The state functionaries became partners in a feudal vendetta notwithstanding the mandate of their office as the guardian of the equal protections of the lives, liberties and honour of the citizens. Further, the police officials obstructed the process of justice and committed a gross contempt of court in attempting to cover up their actual role in H's two arrests.

7.        (7) By lying to the court, obstructing the process of justice when arresting Humaira despite her being on pre-arrest bail, the acting police officer is sentenced under s 3 of the Contempt of Courts Act to imprisonment for three months and a fine of Rs 5,000.

 


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