Abdullah Al-Shadli (South24) 

On October the 3rd, Al-Buraiqah First Instance Court in the governorate of Aden in South Yemen issued a verdict in a case against a group of adults who raped a child in turns. The defendants from the first to the fifth were sentenced to 7 years and to keep the first one under surveillance for additional two years as a supplementary punishment.

Moreover, the sixth to the tenth defendants were convicted and sentenced to two years. It ordered releasing the eleventh defendant after deciding that his investigation period in prison was enough. The court ordered the defendants from the first to the fifth to pay a compensation of 50 million riyals, and defendants from the sixth to the tenth to pay a compensation of 20 million riyals. The eleventh was obligated to pay a compensation of 400,000 riyals. 

These judicial verdicts have caused furious public reactions as many called for more harsh verdicts which commensurate with the size of the offense in the case which has become a public opinion for a long time. 

This has brought back to the forefront the criticism against the Yemeni laws regarding a number of crimes, foremost of which is rape, as they described them as being “weak” and “not deterrent”. 

Penalty of rape 

The Yemeni law defines rape as being “each sexual insertion against any person (male or female) without their (his/her) consent (coercion). 

As for the penalties scheduled for raping a minor, Article (269) of Crimes and Penalties Law stipulates that: “Whenever the legal penalty has fallen for one of the fixed reasons, punishment is through imprisonment for a period not exceeding seven years for anyone who assaults by rape any person whether it was a male or female without a consent”. 

The article added: “The sentence shall be imprisonment for a period not less than two years and not more than ten years if the crime is committed by two persons or more or the guilty is in charge of the victim or under his protection or upbringing or care or treatment or the victim is injured because of the incident with a grave harm to his body or health or the victim happens to conceive due to the crime”. 

The same article stipulated that “the punishment shall be imprisonment for a period not less than three years and not more than fifteen years if the age of the victim does not exceed fourteen years or if the enact led to the suicide of the victim. It is deemed rape, every sexual insertion which is committed on the other person be it male or female, without consent”. 

In this regard, legal researcher Nasr Al-Jubaie told “South24 Center” that “we have to differentiate in the committed crimes between minors and adults and between a rape crime under duress and consent harassment with its two forms, whether male or female”. 

On how powerful are the penalties against the rape crime in the Yemeni Law, Al-Jubaie believes “they are not deterrent and don’t commensurate with the size of the offense. They also don’t take into consideration psychological and moral conditions of the victims and their families as well as the subsequent heavy losses”. 

The legal researcher added: “When we go back to the most Arab legislations and compare them with this part specifically, we will see the weakness of the Yemeni law which does not suit the level of offense committed by the offender. They must change to keep pace with the Arab legislations which include death penalties for such crimes ”. 

For his part, Dr. Hisham Al-Jabri, Professor of Law at Hadramout University told “South24 Center” that “these penalties don’t achieve the aim of deterrence and rebuke”. He noted that “Whenever the legal penalty has fallen for one of the fixed reasons, punishment is through imprisonment for a period not exceeding seven years”. 

In comparison with other laws related to the same crime in other countries such as the Egyptian Law, the rapist there is sentenced to death or life imprisonment. Previously, the maximums penalty for the crime of rape was aggravated imprisonment but it was amended under a 2011 law which was later approved by the Egyptian House of Representatives. 

Lawyer Etab Al-Amoudi told “South24 Center” that “We have witnessed many rape cases, especially against children. The maximum penalties were 7 years in some of them”. 

She added: “The life, the future, the psychology of any child who is subjected to such a crime is destroyed. In a society where the oppressed is the oppressor, this child will be despised while the criminal will leave a normal life after serving his sentence. On the other hand, their victims including women or children will remain in a very difficult state that accompanies them”. 

What is the basis of the Yemeni Law? 

Islamic Sharia is the main source of laws in most Arab and Islamic countries, including Yemen; in addition to laws derived from other countries. 

Commenting on that, Al-Amoudi said: “The Yemeni Law is based upon the Islamic Sharia according to Article (1). The legislators used other laws such as the Egyptian law but the differences in customs and traditions were more dominant when setting a law. Furthermore, the tribal traditions violated some laws”. 

The “social tradition” is considered one the sources of the law. Once it has been stabilized in people’s minds and hearts and became a custom, a certain tradition could be transformed to a recognizable legal text. 

Al-Jubaie said that “the legislative committee is the one which determines the texts of the law and what is consistent with the nature of society as well as formulating deterrent texts against such crimes, including: rape, harassment and underage marriage”. 

Crimes without penalties 

According to the legal rule ”Without Law, There is No Crime or Punishment”, if there is no law, there will be no crime. However, there are some crimes occurred whose penalties are not determined. Legislators don't deny the existence of legal loopholes in most laws across the world".

However, Al-Jubaie said: "In case of there is no explicit text in the law, we resort to the general rules of the law to apply the penalties scheduled in such matters". 

Although the Yemeni Law sets penalties in crimes of indecent act and disgrace to honor with coercion according to Articles (270-275) of the Crimes and Penalties Law, the penalties are not severe to some extent. They are either a fine or imprisonment for a period not exceeding one year, with the exception of the crime of disgrace to honor with coercion when it is under duress whose punishment penalty is five years. 

Al-Jabri believes that "these penalties are still insufficient. As for molestation (sexual harassment), there is no such crime within the Yemeni Law". 

In many times, the inherited community traditions support the legal loopholes such as underage marriage which spread in the Yemeni rural areas and even in the cities. This sort of marriage stirred sharp criticism as some describe this as "lawful and legal rape". Al-Jubaie looks at the underage marriage as "a full crime which has much damage on society". 

He added: "the law did not criminalize a certain marriage age. (It is worth mentioning that the law of the People's Democratic Republic of Yemen [South Yemen] before 1990 determined the age of marriage, and the same applied in the Yemen Arab Republic [North Yemen]. After the union between the two states, this condition was abolished and the age of marriage was left undetermined" 

Al-Jubaie believes that this has been impacted by” Some extremist or religious parties who have a sexual desire towards minors before they reach the legal age.” He added: “The phenomenon of underage marriage is dangerous and must be confronted in the media and society, especially as it repeatedly occurs in the Northern regions of Yemen, namely in areas where a tribe is bullying other ones". 

Needed amendments 

Despite the obvious loopholes in the Yemeni Law, Al-Amoudi said that "the Yemeni law has not any articles which facilitate committing crimes but the penalties need to be modified". 

She added: "Previously, rape crimes were not common like that, especially against children. If they spread then I think the law would be amended". 

Al-Jubaie agreed with that saying that "the weakness and the lack of deterrence for Yemeni legal texts are basically the responsibility of the then Yemeni regime and legislators". 

He added: "There is a need to make amendments related to the texts of laws, especially those related to honor such as rape, molestation and underage marriage. 

This will only be through a specialized and legal committee which is aware of the rights of childhood and society as well as the significant effects that children or minors are exposed to. 

He pointed: "Law has to adapt with all changes and requirements of what we call ’the speedy era'. We suffer due to the laxity in changing the legal texts. There are laws which don't suit the nature of the society and don't match the rest of Arab legislations. The texts should be monitored and amended". 

Nonetheless, the amendment of the legal texts amid current circumstances may be hard. 

Al-Amoudi pointed out that "any amendment passes through certain stages is presented to the House of Representatives, and it is approved after discussing it through certain mechanism. Then, it is delivered to the president of the state to ratify it". 

 "Unfortunately, responsible state structure does not exist, at the moment," she added. 

Al-Jubaie, said that "this matter has to be fulfilled by the political leadership and how they are interested in developing legislations. A legislative committee, specializing in law should be established to draft the texts of the Yemeni constitution and to formulate texts that are compatible with the nature of society, to keep pace with Arab legislations and to enact laws that deter such crimes against children". 

Professor Al-Jabri stresses the need to "issue new legislations such as a law to combat cybercrime, human trafficking, and human organ trafficking, for example, as many countries have done, including the Gulf states". 

He concluded: "Yemeni legislations, especially the criminal ones, need to be amended as well as the issuance of new laws, to keep pace with the changes that occur in the country and in the world in general".