Women and Girls Caught between Rape and Adultery in Sudan: Criminal Law Reform, 2005–2015

This report investigates criminal law reform in Sudan, focusing on two important and controversial legal reforms related to (a) a definition of rape that is clearly de-linked from the Islamic crime of zina (i.e., sexual intercourse between individuals who are not married to each other) and (b) a definition of “child” as an individual younger than 18 in statutory rape cases.

Many legal reforms have been proposed in Sudan since the Comprehensive Peace Agreement (CPA) of 2005 officially ended the extended civil war (Africa’s longest) between the north and south of the country. The peace accord opened up some space for women’s groups after a long period of harsh authoritarian control. All Sudanese laws were to be reviewed and reformed in alignment with the Interim National Constitution of 2005, including the Criminal Act of 1991. Although the peace agreement was largely gender-blind, the interim constitution included clauses on gender equality and affirmative action (Itto 2006).  Pro-women activists as well as women within the government have been particularly active in advocating for legal reforms since 2005 with reference to the bill of rights. Two major legal reforms – in 2010 and 2015 – have dealt with rape.

The most recent legal reform redefines rape in Sudan’s Criminal Act of 1991. Until February 2015, “rape” was defined as zina (adultery or fornication) without consent. The act of zina was, and still is, punishable by 100 lashes for unmarried offenders and by death by stoning for married offenders. The blending of the ideas of rape and zina in the 1991 act meant that the strict rules of evidence used for zina were also applied to rape, something that constituted a serious legal obstacle for rape victims. Pro-women activists contested this legal position by forming the “Alliance of 149,” named after the rape article in the Criminal Act. Interviews conducted during the last five years show that the reform process on rape/zina has been politicized, especially after the International Criminal Court (ICC) indicted Sudan’s president for sexual warfare in Darfur in 2009. Around the same time as the National Assembly was amending Sudan’s rape law, it forcibly shut down the founding member and initiator of the “Alliance of 149”. In addition, the definition of apostasy was widened in such a manner that it can easily be used to clamp down on activists who are criticizing the Islamist regime.

Darfur brought the previously taboo topic of rape into the public debate by focusing attention on sexual violence in Sudanese society. This furthered debate in both government and civil society about reform of Sudan’s rape laws (including the controversial topic of marital rape), although only limited dialogue on the topic has arisen between government reformists and pro-women activists. Reformist Islamist women in government managed to effectively advocate for an amendment to the Criminal Act de-linking rape from zina, which Sudan’s National Assembly passed in February this year. However, the reform is only partial, since the Evidence Act of 1994, in which rape and zina are still conflated, has yet to be reformed. In addition, marital rape is not explicitly criminalized.

The other significant legal reform deals with statutory rape. Under the definition of “rape” in the pre-2015 version of the Criminal Act, the requirement of evidence for lack of consent does not apply to children, which means children have had better protection under the law. However, determining who was a “child” was a thorny issue. The Criminal Act of 1991 defines a child to be someone who has not yet reached puberty, as understood in Islam. Sudanese judges have taken varying approaches to defining “puberty,” however. Many have viewed age 15 as the dividing line between childhood and adulthood, while others have looked for physical signs of puberty (or “sexual maturity”). In practice, this has meant that girls over the age of 15 (and sometimes even below) who have raised rape cases in Sudanese courts have been treated as adults. And as adults, they have had to show evidence that they did not consent to the sexual act.

In 2010, Sudan enacted a new National Child Act that defines a child as an individual younger than 18 in accordance with the United Nations 1989 Convention on the Rights of the Child (CRC), which Sudan ratified in 1991. The Child Act specifically criminalizes statutory rape. As it stands now, the new law is in conflict with the Criminal Act, however. Although the Child Act should take precedence, our findings suggest that the implementation of the act in courts in Khartoum is uncertain in statutory rape cases: while some judges implement the Child Act in statutory rape cases for all girls under the age of 18, some still follow the Criminal Act and look for signs of puberty.

The definition of a child as younger than 18 years in the Child Act of 2010 did not receive much attention at the time of enactment, but it is has become the focus of heated debate as conservative actors have realized that this new definition also has repercussions for the age of marriage, which is set at puberty in Sudan’s Muslim Family Law of 1991. Two conflicting positions within the current Islamist government (including in the judiciary itself) both employ Islamic arguments. In February 2015, an amendment to the Criminal Act was proposed to the National Assembly setting the age of criminal responsibility at 18 in accordance with the Child Act and international conventions ratified by Sudan. However, this proposal was blocked, partly by the judiciary itself, which advocated for the age of 15. Meanwhile a legal counter-mobilization against the Child Act continues and has resulted in a case currently pending in Sudan’s Constitutional Court.