The Israeli military is seeking to repeal Jordanian legal provisions that permit Palestinian men to rape their wives – old legislation that has remained in force in the West Bank under the jurisdiction of Israel’s military legal system.
The legislation, which dates to the period prior to the 1967 Six-Day War, after which Israel occupied the territory, also halts legal proceedings against a man who rapes a woman but subsequently marries her. The legislation has been repealed in Jordan itself.
The legal adviser’s department at the Israeli Civil Administration in the West Bank recently debated changing the application of the old Jordanian legislation and is expected to present its conclusions to the head of the army’s Central Command, Maj. Gen. Tamir Yadai, who has legal authority over legislation concerning Palestinians in the West Bank, including the power to amend the law by military order.
Last month, the Military Advocate General’s office filed an indictment against a Palestinian man for sexual assault against his wife, but because of the prevailing law in the West Bank, the charges did not include rape. In March, according to the indictment, the Palestinian, who is from the West Bank town of Biddya, married a woman from the Israeli Arab town of Kafr Kasem – and has since repeatedly sexually assaulted her, has forced her to have sex with him and has beaten her. He is charged in the indictment with an indecent act, assault and threats – but not rape.
The old Jordanian legal definition of rape applies in cases in which the defendant has sexual relations with “a female (who is not his wife) using force and against her will” and carries a minimum penalty of five years’ imprisonment at hard labor.
Another provision of the law states that if the defendant marries his victim – whether during or after legal proceedings, including after the defendant is sentenced – any legal proceedings on the matter are to be halted and no sentence is to be carried out.
In the proceedings in the case against the Palestinian from Biddya, Israeli military court Judge Kamal Zaharaladin made note of the absence of the rape charges. “The existing law in the area regarding sex crimes could well bring about absurd results and serious harm to the sense of justice [being done],” wrote the judge, who ordered the defendant held until the end of legal proceedings against him.
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The law, the judge added, reflects an archaic view that denies a married woman the right to protect her body from her husband. It was inherited by the Israeli legal system in the West Bank, but “has disappeared from the world, and it would be appropriate for it to do so as well” in the West Bank, he stated.
The Israeli army has confirmed that staff work has been underway in recent months on the sexual offenses in prevailing military law in the West Bank. The work, the army said, began before Judge Zaharaladin made his comments and are designed to bring the prevailing law up-to-date.
The Israeli military legal system applies only to Palestinians living in the West Bank. Israeli citizens living in Jewish West Bank settlements are subject to Israeli criminal law, and Israeli law prohibits men from raping their wives.
In the 1980s, a man charged with rape argued on an appeal to the Supreme Court that the Israeli rape statute could be interpreted as not applying in cases in which a husband forces his wife to have sexual relations. The late Supreme Court justice Haim Cohn rejected such an interpretation and noted that such acts are also barred by Jewish religious law.
In 1986, as a result of Cohn’s ruling, the Knesset amended the law to explicitly avoid an interpretation that would permit a husband to rape his wife.
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