Erin Collins, Vol. 37 Associate Editor
Throughout law school, much of our coursework focuses on the black letter law. However, it is equally important to keep in mind the way that particular laws can have a disparate impact on individuals, and when various laws can be used in order to prohibit individuals really achieving some sort of access to justice. To demonstrate this point, this short article will look at potential obstacles to access to justice regarding gender-based violence for women in Tunisia.
Tunisia is through to have some of the most progressive women’s rights legislation throughout the Middle East/North Africa region. The Personal Status Code was promulgated in 1956 under Tunisia’s first president Habib Bourguiba. While there have been several revisions to this code, it functioned to abolish polygamy and repudiation; establish a legal right for women to ask for divorce; create a minimum age for marriage; and require consent of both spouses to marriage. The next year, Tunisian women were granted suffrage, and by 1959 they received the right to run for public office.
Tunisia’s 2014 Constitution further codified women’s status in society. Article 21 contains a general provision recognizing equal rights and duties for men and women as well as their equality before the law, and Article 46 provides that “the state guarantees the equality of opportunities between women and men to have access to all levels of responsibility in domains” and even establishes a state goal to achieve parity between women and men in elected bodies. Article 46 even goes on to state that the state will take all necessary measures in order to eradicate violence against women.
In order to accomplish this goal, Article 218 of Tunisia’s Criminal Code criminalizes domestic violence with a term of imprisonment of up to two years, and under Article 227 of the Criminal Code, “anyone who engages in sexual relations with a female without her consent through the use or threat of violence or arms is punish[able] by death.” Additionally, sexual harassment is criminalized under Article 226(3) and punishable with a fine of 3,000 TND (a little over $1,500). Tunisia also recently withdrew all reservations to the Convention on the Elimination of Discrimination Against Women.
Despite these various laws and legal obligations, women in Tunisia continue to experience issues of gender-based violence. They also continue to face barriers to accessing the justice system despite the theoretical plethora of causes of action based on the Tunisian Constitution, CEDAW obligations, and the Criminal Code. While there are various obstacles that women face when attempting to achieve justice, including obstacles linked to administration, gender norms and stereotypes, one of the most problematic is the way in which the law itself is being used to try and threaten and dissuade women from seeking justice in the first place.
Perpetrators of gender-based violence can use parallel domestic legislation to try and persuade women to simply drop their claims. Despite the progressive women’s rights legislation on the books, Tunisia also has two laws that have been used to persuade women to drop claims of, most notably, sexual harassment and rape. The first is the criminalization of public indecency under Articles 226 and 226bis of the Criminal Code, establishing a six-month prison term for indecency and undermining public morals; and the second, also under Article 226(4), states that anyone accused of sexual harassment may not only request reparations for damages incurred, but also initiate a defamation lawsuit, which carries with it criminal penalties punishable by up to two years’ imprisonment and a fine. As a result, when women attempt to confront their attackers through the legal justice system, they are often threatened with parallel suits alleging that the women were actually undermining public morals. There is also the lingering danger that, should women fail to win in court, their attacker will initiate criminal proceedings against them for defamation.
This is particularly problematic seeing as, for example, during the 2012-2013 judicial year there were only 14 convictions for sexual harassment. While the government has argued that this is due to general fear or shame, according to various women’s rights defenders, it is primarily the fear of prosecution for defamation that is actually deterring women from bringing claims.
One prominent example of this was the case of Meriem Ben Mohammed who, while driving in her car with her fiancé, was stopped by the police. During the stop, the officers extorted the couple for money, and while one officer was escorting Meriem’s fiancé to an ATM, the other two officers took turns raping her. When Meriem later accused the two police officers of rape, she was simultaneously charged with indecency for offending public morals after the police claimed that the couple had been engaging in a sex act while in their car. While the claims by the officers were dropped two months later, and in the end Meriem’s attackers were each sentenced to 15 years in prison, this case is emblematic of the types of issues women face when they attempt to seek redress through the Tunisian legal system.
The case of Tunisian women helps to demonstrate how even when there is progressive legislation on the books, the ways in which other laws are used on the ground can inhibit more progressive laws from effecting change. While there are obviously other obstacles that must be overcome in order to completely resolve this issue, this situation highlights the importance of understanding parallel domestic legislation when pushing for human rights based initiatives in order to ensure that the target audience is able to truly benefit from the rights being afforded to them.
 See generally, Mejlah al-Aḥūāl al-Shqṣīyah [Personal Status Code] (Tunis.).
 Destūr al-Joumhourīyah al-Tūnsīyah [Constitution] Jan. 10, 2014, Art. 21 (Tunis.).
 Id. Art. 46.
 Human Rights Committee, Replies of the Tunisian Government to the list of issues (CCPR/C/TUN/Q/5) to be taken up in connection with the consideration of the fifth periodic report of TUNISIA (CCPR/C/TUN/5)*, U.N. Doc. CCPR/C/TUN/Q/5/Add.1, 14-15 (Feb. 25, 2008). Tunisia Responses to ICCPR Review 2006 – with a harsher penalty for instances of violence emerging out of a marital relationship.
 Mejlah al-Jizaīyah [Criminal Code] Art. 227 (Tunis.), the article goes on to say that if the girl is under the age of 10 the threat or use of violence is not required, and if there is no consent, and not use or threat of violence then the punishment is life imprisonment.
 CEDAW, C.N.220.2014.TREATIES-IV.8 (Depository Notification) (April 23, 2014). https://treaties.un.org/doc/Publication/CN/2014/CN.220.2014-Eng.pdf; however, it did leave a general declaration that it would take no action required by CEDAW if it conflicted with the Tunisian Constitution.
 Mejlah al-Jizaīyah [Criminal Code] Arts. 245 and 247 (Tunis.) Articles 245 and 247 allow for a six-month prison sentence for charges defaming individuals, public officials and/or institutions and under Article 128 there is a two-year prison sentence and a fine for anyone who accuses a public official through any means of committing an illegal act without evidence.
 Amnesty International, Assaulted and Accused: Sexual and Gender-based Violence in Tunisia, 56 (2015), https://www.amnesty.org/en/documents/mde30/2814/2015/en/.
 Id. at 56-7.
 Louis Bonhoure, Long Sought Victory for Meriem Ben Mohammed, Tunisia Live (Nov. 21, 2014), http://www.tunisia-live.net/2014/11/21/long-sought-victory-for-meriem-ben-mohammed/.
 Id. Furthermore, the third officer was convicted of extorting money and received a two year imprisonment and a fine of 20,000 TND (or just over $10,000).