Shurouq Al-Nsour and Mahmoud Al-Tabbakh

This investigation sheds light on the implications of “dropping a personal right” in crimes of sexual assault against minors in Jordanian courts, violating article 308 of Jordan’s penal code, which prohibits reduction to the sentence for perpetrators of sexual assault who are over the age of 18, even if the victim’s personal right was dropped.

“Instead of putting him in jail, they locked me up in my room,” says Hana Mahmoud (pseudonym) as she recalls her married cousin’s attempt to rape her when she was 13 years of age.

The assault on the minor occurred when her male cousin asked her to come to his house to pick up some things belonging to her family. Unbeknown to Hana, the perpetrator, at the time, had sent his wife and children outside the house to pave the way for his crime.

Her cousin was convicted of molestation and was sentenced to 7 years in jail. His sentence was later reduced to half that time after the victim’s father dropped his personal right , and the perpetrator served his short sentence and walked out of jail a free man to resume his life normally, according to his victim.

This incident, which took place 20 years ago, is an example to how dropping a personal right was previously used to reduce the sentences of perpetrators, who commit sexual assaults against minors, before Jordan’s Penal Code was amended to prohibit reduction to the sentence for these criminals.

Legal Code Violation

In 2011, Jordan’s passed legislation prohibiting reduction to the sentence if the perpetrator is over the age of 18, in cases of sexual assault against minors, even with the consent of the victim’s legal guardian, according to article 308 Bis of Jordan’s amended Penal Code of the year 2011.

The amendment, however, was not enough to guarantee the full punishment of a man who sexually assaulted a female under the age of 18. In 2014, a Jordanian court issued a ruling reducing the sentence of a perpetrator to half, because the plaintiff dropped their personal right, despite the presence of an article in the penal code which prohibits using the drop of personal right as a basis for sentence mitigation.

The perpetrator’s lawyer filed an appeal in the Jordanian Supreme Court which dismissed the appeal due to legal irregularities, stating that the Public Prosecutor had not filed an appeal against the issued ruling.

This was not the only case where Jordanian courts resorted to sentence mitigation in cases of sexual assault against a minor. Following the amendment of Article 308 Bis, which prohibits any sentence reduction.The investigative team found several cases in ‘First Instance and Appeals courts’, where the sentences of adults convicted of sexual assaults against minors were reduced to half the time. Such cases of sentence mitigation were also found in the High Criminal Court, in addition to cases where the Supreme Court overturned the rulings in cases appealed by the Public Prosecutor, requesting the dismissal of these illegal mitigations.

Jordanian law allows plaintiffs or their inheritors, in criminal cases, to drop their personal right, indicating their personal lack of desire to seek punishment of the perpetrator, in which case a court may reduce the sentence duration to half or up to one third of the full sentence. However, this does not include minor aged victims of sexual assault.

This investigation examined several sexual assault cases that were filed in Jordanian courts since 2011, and found that the drop of the personal right was often used as a basis for sentence mitigation despite the fact that the victims were underage girls.

The cases monitored by this investigation included two cases where the Supreme Court was unable to overturn a ruling due to the absence of an appeal from the Public Prosecutor. The court only pointed out that the ruling in question violated the penal code. Also, the High Criminal Court accepted the dropping of personal right by a minor, also in violation of the law which states that only the minor’s legal guardian or has the right to do so. The same court, in another case, implemented an abolished law and reduced the sentence of a perpetrator after he presented a certificate of his marriage to the female victim.

Lawyer Radiah Amayreh states that a crime committed against a minor in itself should be reason for a judge to give harsher penalties to the perpetrators.

In 2019, a female child was molested in a playground by a 52 year old man. After dropping the personal right, the perpetrator received a sentence that was one third of the duration indicated by law, which led the public prosecutor to take the highly unusual measure of submitting a special request to the minister to appeal the sentence which was the court’s final ruling. The case was then taken to the Supreme Court which overturned the previous court’s decision for being in violation of the law.

The decision of the Supreme Court indicated that the previous court’s ruling “violated article 308 Bis of the penal code, by using extenuating circumstances to mitigate the sentence of the perpetrator, who was above the age of 18 when the incident took place, while the plaintiff was a minor under the age of 18.”

In a television interview held several years ago with the Head of the High Criminal Court, Abdul Rahman Tawfiq, the former judge stated that the law stipulates that if a court is to consider any extenuating circumstances in its rulings, “it has to clearly justify its decision in order to enable the higher court to determine whether such a consideration was legal and/or acceptable.”

Between Temptation and Intimidation

According to Tawfiq, victims are often dropping their personal rights either through intimidation by the perpetrator or his family, or by tempting them with money.

Dr. Malak Al-Saudi, a psychologist at Solidarity for women in Jordan Institute states that very often in sexual assault cases, female underage victims and their families are pressured to drop their personal rights.

According to Al Saudi, Director of the Psychological and Social Counseling Services Department, a minor female victim and her family face pressure from the perpetrator’s family to drop the personal right under the pretense that the crime was her fault. Even the girl’s family members may pressure, threaten her, and stop supporting her to drop charges against the accused.

Hana recalls what her uncle, the perpetrator’s father, said to her father after the incident: “Don’t worsen this scandal which was caused by your daughter. It’s unfair for her to ruin his life and throw him in jail. His kids are still young.” Hana adds, “After that, whenever my uncle would come to our house, he’d buy us groceries and give my father money.”

Her family almost forced her to marry one of her paternal cousins if it wasn’t for her mother’s refusal. Hana says: “My family wanted to marry me off to one of my cousins and pressured my father to do so, but my mother refused to allow that to happen.”

A 2015 study conducted by the Solidarity for women in Jordan Institute revealed that the main reason victims of sexual crimes in the country are hesitant to come forward and report these incidents is their fear of a scandal and of being shamed.

Female victims of sexual crimes in Jordan are stigmatized for “bringing shame upon their families”, and are often pressured to change their statements and may end up themselves being criminalized.

In 2017, the Jordanian Parliament abolished article 308 of the Penal Code, which suspends the punishment of a sexual assault perpetrator if he marries the victim. The assaults include rape, molestation, sexual intercourse with a minor, and sexual relations with the promise to marry among others.

Psychologist Malak Al Saudi says that cases where perpetrators marry their victims still occur in return for implicitly dropping the victim’s personal right . “The law may have been abolished but rapists are still marrying their victims.” The Psychologist, who works with sexually abused women, says that when victims marry their rapists, they leave one cycle of violence and enter another one which is worse, enduring physical and psychological abuse, and having children who are unrecognized by her “husband”, the perpetrator, who, in turn, may continue to remind her of the incident and the crime he himself committed.

Al Saudi adds: “He marries her, pays her a sum of money only to begin a series of abuse in different forms,” saying that she has worked with victims who had married their rapists and ended up in women’s shelters due to their subjection to forms of abuse far worse than the sexual assault they initially experienced.

Freedom in Return for Rights

Female victims of sexual abuse who are threatened with danger are often sent to women’s shelters for their own protection. The shelters offer programs for physical healing, mental rehabilitation, raising awareness, legal assistance among other services, in accordance with the regulations of shelters for females at risk.

Regulations for these shelters stipulate that in order to qualify to stay there, a female’s life should be threatened by a family member with no other source of protection.

Girls are not kept in the shelters against their will, but the shelter’s building is heavily guarded both internally and externally by personnel from the Public Security Directorate, Also, police women in civil attire monitor the situation inside the shelters and accompany the girls if they leave the shelter to visit hospitals or administrative institutions.

Lawyer Radiah Al Amayreh, specialized in criminal law says that assault victims who are at risk are later transferred to a prison if their lives remain in danger. The girls may be subjected to administrative detention by a decision issued by the administrative governor only to find themselves living behind bars until their lives are no longer in danger.

The investigative team requested, from the Ministry of Social Development, permission to interview some of the girls residing in these shelters. Our request was denied.

Twenty year old Suad (pseudonym ) spends her days in a Jordanian women’s shelter after she was raped while still a minor, according to social worker Nuha Ahmad (pseudonym) who works with victims of assault in women’s shelters.

Suad was admitted to the shelter to protect her from danger. She had been subjected to abuse twice; first when she was raped and then when her family threatened her. Today, there does not appear that there is any hope for her to resume her life outside the guarded shelter.

A Gift to the Perpetrator: Dropping the Personal right

Dropping a personal right does not cancel common law, which is a society’s right to punish a perpetrator for the sake of public deterrence. Although a common law cannot be dropped, it may be subjected to a public or special pardon.

Despite all the above, dropping a personal right is still one of the most mitigating circumstances that are admissible in Jordanian courts, according to a statement made by the former head of the High Criminal Court, Abdul Rahman Tawfiq in a television interview.

Al Amayreh says: “The Public Prosecutor has the jurisdiction to prosecute perpetrators in crimes committed against minors, which would supposedly prevent a guardian from unjustly dropping their personal right.

Amayreh also adds that the Public Prosecutor is entrusted with protecting victims and ensuring the toughest punishments for convicted perpetrators. No data is available regarding the nature of cases where perpetrators benefitted from dropping a personal right, the type of crime committed or the victim’s gender. However, an analytical paper published by the Jordanian National Commission for Women shows that 77% or perpetrators in murder cases against women within a victim’s family benefitted from dropping a personal right.

The investigative team presented a request to the Jordanian High Criminal Court to obtain data regarding the types of cases which included a drop in personal right, and the gender of the perpetrators. The court declined our request due to the “unavailability of data.”

This investigation also monitored a sample of 128 cases of assault against females filed in Jordanian courts, and all included instances of dropping a personal right. The majority of cases in the sample were sexual assault crimes.

The percentage of case rulings that were confirmed by the Supreme Court reached 62% of the sample studied. Our analysis showed that punishments were reduced to half in almost 60% of those cases.

Minors: Victims Twice

Sexual assault cases constituted 67% of the total number of physical and sexual assaults on children in Jordan during 2020. Official statistics show that females in Jordan were more susceptible to sexual assault crimes than males according to cases registered in the Family and Juvenile Protection Department under the Public Security Directorate which deals with cases of sexual assault.

Statistics show that for every 8 sexual assaults on female children, there are 4 physical assaults against them. For male children, the ratio is 6 sexual assaults for every 4 physical assaults against them.