(Beirut) – Iran should address gaps in its long-awaited draft law on violence against women that offers limited protections for survivors of domestic violence, and put it before the parliament for a vote, Human Rights Watch said today. Over the past year alone, several widely publicized instances of violence against women in Iran have drawn national attention and outrage. The authorities should also undertake to repeal discriminatory laws that leave women at risk of domestic violence.
Iranian women’s rights activists have campaigned for such a law for 16 years and President Hassan Rouhani’s administration has been working on the draft law since the 2013 election. The cabinet has been reviewing the draft “Protection, Dignity and Security of Women against Violence” bill since September 17, 2019, after the judiciary announced that it had completed its review and submitted the bill back to the cabinet. Masoumeh Ebtekar, the vice president for women and family affairs, told the Iranian Student News Agency in August that the submission of the bill to the parliament was imminent. Authorities should act now, during the international 16 Days of Activism Against Gender-Based Violence.
“For decades, Iranian women have been waiting for comprehensive legislation to prevent violence against women and prosecute their abusers,” said Tara Sepehri Far, Iran researcher at Human Rights Watch. “With the growing national attention to this important issue, the law is long overdue, and parliament should not waste any time in adopting it.”
In a 2004 national study, 66 percent of married women polled had experienced domestic violence at least once in their lives, and of these 30 percent had experienced physical violence and 10 percent had experienced physical violence with lasting harm.
In a case that drew national attention during 2020, on May 21, 14-year-old Romina Ashrafi was gruesomely beheaded, allegedly by her father. Soon after, Iranian authorities expedited the approval of a 51-article bill to “support children and adolescents.” At the same time, several Iranian government officials, including parliament members, urged the cabinet to expedite the approval of the draft law to protect women against violence.
Human Rights Watch reviewed the draft law and spoke to five lawyers and women’s rights defenders who had direct knowledge of the drafting process.
The draft law has a number of positive provisions, including to form an inter-ministerial national committee to draft strategies and coordinate government responses to violence against women. It also obligates ministries and government agencies to undertake measures to help prevent violence and assist women, including by forming special police units for these cases. It also would create restraining orders and a fund to support women.
However, the bill falls short of international standards. While the draft law defines violence against women broadly and criminalizes various forms of violence, it does not criminalize some forms of gender-based violence, such as marital rape and child marriage. Nor does it amend the criminal code’s limited and problematic definition of rape, which explicitly excludes marital rape. Furthermore, the mandatory punishment for rape is the death penalty, which can deter women from reporting rape.
The draft law also does not define domestic violence. Some of the crimes it sets out violate the right to privacy and other protected freedoms, such as proposing an “illicit relationship” and encouraging or persuading a woman to commit acts contrary to “chastity.” While under Iranian law, there is no clear legal definition of what constitutes acts against chastity, judges have interpreted it to include, and thus criminalize, consensual sexual relationships short of sexual intercourse, and homosexual relationships.
The draft law includes several positive provisions to strengthen prosecution, including obliging enforcement agents and judicial authorities to expedite investigating complaints. This is important, said two lawyers interviewed who have represented women in domestic violence cases, because law enforcement and prosecutors often erroneously treat these cases as “family disputes,” not crimes.
The draft law provides that in cases in which a father or husband is accused, the authorities should refer the case for mediation for a month, returning the case to the judiciary if it is not resolved. The United Nations Women “Handbook for Legislation on Violence against Women” provides that mediation should be prohibited in all cases of violence against women and at all stages of legal proceedings because mediation removes cases from judicial scrutiny.
Promoting reconciliation reflects an assumption that both parties have equal bargaining power and may be equally at fault and reduces accountability for the offender.
The mediation period can also create further barriers for victims of domestic violence to obtain immediate protection through a protection order. The law would provide for such orders, though only if the victim files a criminal complaint and there is a serious threat of beating or further harm. UN Women has recommended that domestic violence survivors be able to seek protection orders without pursuing other legal proceedings, such as criminal charges or divorce. And while the draft law includes positive provisions with respect to protecting the identity of the plaintiff, it does not offer any protection to witnesses.
The draft law also does not tackle a number of discriminatory laws including personal status laws that lawyers said leave women more vulnerable to domestic violence. For instance, Iran’s civil code accords husbands control over women’s movements, including where the woman lives and what occupations she may pursue if he deems them against “family values.”
In addition, as Iranian law criminalizes consensual sexual relationships outside of marriage, punishable by flogging, it leaves women at risk of being prosecuted for reporting rape if the authorities do not believe her.
Iran is an outlier, as it is among fewer than 50 countries that do not have a specific domestic violence laws. More than half the Middle East and North Africa region countries now have such laws.
“The draft law’s promotion of family mediation and mitigating penalties to family members undermines protection for domestic violence survivors,” Sepehri Far said. “The authorities and parliament should take urgent steps to address the gaps in the draft legislation and adopt it.”
For a detailed analysis of the proposed law and its gaps, please see below.
Efforts to Pass Anti-Domestic Violence Legislation
During President Mahmoud Ahmadinejad’s administration (2005-2013), the presidency drafted a bill to protect women from violence, media reported, but never published it or sent it to parliament.
In 2013, after President Rouhani’s election, Shahindokht Molaverdi, the vice president for women and family affairs, took on completing the bill, as did Ebtekar, her successor in 2017. The version of the bill the Vice President’s Office submitted to the judiciary was not published. On September 17, 2019, the judiciary announced that it had completed its review and published the draft it submitted back to the presidential cabinet to be adopted. Several officials have promised that the bill will be submitted to parliament for a vote in the coming months.
Over the past few years, the Iranian government has taken some smaller steps to provide limited protections to domestic violence victims, including establishing a social emergency hotline at the State Welfare Organization and a limited number of government-sponsored safe houses. As of March 2019, there were 24 safe houses across the country, with places for 1,500 women for stays of up to a year.
The Draft Law
Iran is one of only four countries that have not ratified the United Nations Convention on Elimination of All Forms of Discrimination Against Women (CEDAW). Despite efforts by Iranian women’s rights defenders during the presidency of Mohammad Khatami (1997-2005) and a bill passed by parliament in July 2003 to join CEDAW, Iran’s Guardian Council, a body of religious experts and jurists empowered with vetting parliamentary legislation, did not approve the bill and it has been in legislative deadlock ever since.
International human rights standards nonetheless oblige Iran to take steps to combat domestic violence.
Human Rights Watch has analyzed the current bill in accordance with these standards including the UN Women’s 2012 “Handbook for Legislation on Violence against Women,” which sets out key elements for legislation on violence against women, including domestic violence.
Definition and Scope of Domestic Violence
The draft law provides a broad definition of violence against women as:
Any intentional act against a woman that is committed because of her gender, vulnerable position, or the nature of the relationship, and which causes harm or damage to her body, mind, character, reputation or legitimate rights and freedom, will be investigated under one of the titles of crimes against physical integrity, crimes against moral and spiritual well-being, crimes against public morals, crimes against the rights and duties of family, and crimes against women’s legitimate freedoms, in accordance with this law.
However, the draft law fails to define domestic violence. According to the UN Handbook, a domestic violence law should include a comprehensive definition of domestic violence, including physical, sexual, psychological, and economic violence. The legislation should also apply the definition to people who are or have been in an intimate relationship, including marital, non-marital, same-sex, and non-cohabiting relationships; individuals with family relationships to one another; and members of the same household.
The draft law criminalizes various forms of violence against women including forced marriage, sexual harassment in public, and physical and psychological abuse, but does not criminalize several other forms of violence as the UN Handbook recommends, such as marital rape and virginity testing.
The law does not criminalize or abolish child marriage. Under Iran’s civil code, girls as young as 13, with permission from their fathers, and boys as young as 15, can marry. Children can also marry younger, if a judge authorizes the marriage. The law also does not amend the limited and problematic definition of rape under the Criminal Code, which is defined as forced sexual intercourse with a woman to whom a man is not married, thus explicitly excluding marital rape. The mandatory punishment for rape is the death penalty, which deters survivors from reporting rape.
While the law increases penalties for physical violence, it allows for alternative sentences if the offender is the victim’s husband, father, or mother. It also does not repeal laws that endorse violence against women, including those with lighter sentences. Such sentences need to take into account the crime’s severity, equity of punishments, the victim’s safety, and consultation with women’s rights groups and domestic violence survivors on appropriate and effective punishments.
The gruesome beheading of 14-year-old Romina Ashfari by her father, and several other recent femicides have revived the conversation in Iran about how the law fails to protect women and girls against the worst forms of violence and excuses family violence. On August 28, a court of first instance convicted Reza Ashrafi, Romina’s father, of murder and sentenced him to nine years in prison.
Under Iranian law, intentional murder is punishable by death unless the family of the victim forgives the killer. The law, however, provides that if a father or paternal grandfather kills his child or grandchild, his sentence is reduced to up to 10 years. Human Rights Watch opposes the death penalty in all circumstances because it is inherently cruel and irreversible and does not act as a deterrence to crimes.
There are no clear statistics about the number and prevalence of so-called “honor killings” in Iran, but in 2014, the deputy police chief to combat criminal charges said that about 19 percent of murders in Iran are “honor”-related and that 63 percent of women killed are killed by a family member. Other academic research cites statistics as high as 40 percent in some provinces, such as Khuzestan, Kermanshah, and Ilam.
While the draft law does increase penalties if the victim has specific vulnerabilities – a pregnant woman, a child under 18, or a person who is sick, elderly, with mental or physical disabilities, homeless, or displaced – it fails to include other vulnerable groups such as undocumented migrants. More than two million Afghan refugees and migrants living in Iran face discrimination and abuse, and it is particularly important to clearly include them in the draft legislation.
The UN Handbook recommends that legislation on domestic violence should make clear that women survivors of violence should not be deported or subjected to other punitive actions related to their immigration status when they report such violence to authorities. The draft law should also allow immigrant survivors to confidentially apply for legal immigration status independently from the abuser.
Law Enforcement and Evidentiary Standards
Lawyers who have represented women in cases involving domestic violence believe that law enforcement and prosecutors’ lack of familiarity with best practices to address domestic violence cases, and hesitation to intervene and prosecute what they treat as “family disputes,” and not as crimes, leave women at risk of domestic violence.
This appears to have played a role in the case of Romina Ashfari. According to media reports, the local police in Gilan province returned her to her father after she had left her parents’ house with a 35-year old man, despite her expressed fear of going back home.
Under Iranian law the police can intervene and enter a private residence in the case of “evident” crimes, but two lawyers interviewed said that the police often do not insist on entering private homes and checking on potential victims. “Imagine the police get a call regarding a case of domestic violence and they dispatch someone to the door,” a human rights lawyer who represents women in domestic violence and divorce cases said. “Very often the husband is either the owner of the place or the principal person on the lease. He can simply refuse to open the door or say everything is fine and that’s the end of the story.”
Due to this practice, the lawyers say they recommend that survivors of domestic violence should go to the Legal Medicine Organization under the judiciary’s supervision as a first step to document any injuries and ensure that they can provide documentation when the case is being registered with the police.
In a positive step, the draft law would oblige the police to establish specialized units responsible for protecting women, where necessary to have female policers handle cases, and to refer women for legal and medical services, and shelter where necessary. Most important, it also obliges law enforcement agents and judicial authorities to expedite the process of investigating complaints filed under the law. However, it goes on to provide that, in cases where if the father or the husband is the accused, authorities should refer the case to the mediation council for a month and if there is no reconciliation, the case comes back to the judicial process.
The UN Handbook recommends explicitly prohibiting mediation, in all cases of violence against women, both before and during legal proceedings because mediation removes cases from judicial scrutiny. Promoting such reconciliation reflects an assumption that both parties have equal bargaining power and may be equally at fault for violence, and thus reduces accountability for the offender.
Lawyers interviewed said that judges often have unrealistic evidentiary standards, which makes it extremely difficult to prove allegations of domestic violence. “From an Iranian law perspective, there is no difference if the abuse has been committed out in the open in a busy street or by a close partner inside the house,” one lawyer said. “They expect witnesses, testimonies and pieces of evidence that are almost impossible to produce.” While the draft law sets out training for certain authorities in forensic medicine, it fails to provide for other forms of evidence that should be made admissible in cases of violence against women.
The UN Office on Drugs and Crime recommends that countries develop guidelines on evidence that should be admissible in court for domestic violence cases. This may include medical/forensic evidence, victim statements, photographic evidence, expert witnesses, physical evidence, such as torn clothing and damaged property, and cell phone records, emergency call recordings, and other communications. The UN Women Handbook recommends that the law should provide that medical and forensic evidence is not required to convict an abuser and that prosecution and conviction of an offender can be “based solely on the testimony of the complainant/survivor.”
The current draft law includes provisions for protecting identifying information about the woman making the complaint, but does not offer any protection to witnesses. A lawyer familiar with earlier drafts of the law said that the initial draft included provisions for witnesses, but the judiciary did not include it in the publicly available draft. “In many instances, even when neighbors have witnessed or hear any abuse, they are not willing to testify in a court because they do not want to find themselves in a difficult situation with the neighbors,” one of the lawyers said.
The UN Handbook provides that states should adopt measures to protect the safety of victims and witnesses before, during, and after criminal proceedings.
Protection Orders
In a positive step, article 71 of the draft law provides that the judiciary can issue a protection order if there is a serious threat of beating or more harm to a survivor or her children, or pressure to drop her complaint. A protection order can impose a range of measures, including obtaining a pledge from the accused, prohibiting the accused from entering the residence and place of work of the victim for three months (restraining order), obliging the husband to provide separate housing to his wife for three months, obliging the husband to attend therapy, and transferring the victim and any children to a safe house.
Protection orders are among the most effective legal remedies available to survivors of violence against women. However, protection orders would only be possible under the draft law if a criminal complaint is filed and could be issued at any time before a final verdict. But the UN Handbook recommends that domestic violence complainants/survivors should be able to seek protection orders without pursuing other legal proceedings, such as criminal trials or divorce. Moreover, the provisions in the draft law for a mediation period if the accused is a husband or father can create additional barriers to seeking protection.
While the draft law provides that some protection measures would be limited to three months, it says that if the order issued has no time limit, it would remain in effect until the final verdict, or the judge can amend or change the order if either party requests it in light of new circumstances. However, the draft law does not distinguish between short-term emergency orders, which can be issued quickly on the basis of a victim’s testimony, and longer-term protection orders, which require a full hearing and review of evidence,as recommended by the UN Handbook.
Criminalizing Legitimate Conduct
The new draft law includes a positive provision that obliges the authorities not to ask the woman who is filing the complaint “irrelevant” or “unnecessary” questions or investigate the victim’s record.
This is important as the UN Handbook recommends legislation to prevent the introduction of the complainant’s sexual history in both civil and criminal proceedings. This can help protect women’s privacy and avoid the introduction of evidence that could prejudice the judge or jury against the survivor.
However, the draft law does not explicitly exclude prosecution for extramarital affairs. Iran’s criminal code criminalizes consensual sexual relationships outside of marriage with a punishment of 100 lashes. While there is growing social acceptance of relationships outside marriage, commonly referred to as “white marriages,” Iranian law violates the right to privacy and leaves victims of domestic violence at risk of prosecution if they report domestic violence by a partner who is not a spouse.
Instead, the draft law prescribes new penalties and reinforces existing “crimes against chastity and public morals,” some of which violate the right to privacy and further criminalize legitimate conduct.
For instance, article 46 of the draft law criminalizes “encouraging women to act incompatibly with chastity.” While the law does not clarify what constitutes acts incompatible with chastity, legal precedents include various forms of sexual relationships without sexual intercourse, as well as same-sex relationships.
Article 49 provides that anyone who invites women to mixed-gender parties or other places of “corruption or prostitution” using telecommunication tools or social media could be sentenced for establishing a center of corruption. Under article 639 of the Islamic penal code, anyone who establishes a center of corruption and prostitution or encourages corruption and prostitution can be sentenced to up to 10 years in prison.
Discriminatory Personal Status Laws as Barriers to Justice
Numerous discriminatory legal provisions in Iran create barriers for women victims of domestic violence in seeking support, justice, and remedies.
The civil code includes several provisions that discriminate against women and provides men with more control over women’s lives, facilitating domestic violence. Iran’s civil code defines the husband as head of the household, assigning him the responsibility of providing financial support to his wife and giving him the power to choose where the family should live. A woman can lose her right to financial support if she “refuses to perform her spousal duties without a legitimate excuse.”
A husband can also prohibit his wife from an occupation he deems against family values or harmful to his or her reputation. However, the law does entitle a woman to financial support if she leaves because being at the same place with her husband causes her fear of bodily or financial harm, or harm to her honor. Under article 18 of the passport law, married women must receive permission from their husbands to get a passport.
Over the past several decades, to offset the impact of these discriminatory provisions, couples have begun to sign separate contracts that grant the woman additional rights in marriage. In many of these cases, equal rights, particularly a woman requesting an equal right to divorce, are granted by men in exchange for forgoing dowry provided to the woman under the law. People occasionally note that registration offices refuse to include such provisions in marriage contracts. On May 8, the Office of the Vice President for Women and Family Affairs said that the judiciary had issued a new directive that obliges marriage offices to include additional provisions in marriage contracts when requested by the couple.
The law also discriminates against women in divorce. Under article 1133 of Iran’s civil code, a man can divorce his spouse unilaterally at any time, but a woman needs to apply to the courts for a divorce on limited grounds such as proving that her husband has stopped supporting her financially or that she is experiencing “a difficult and undesirable situation” (article 1130). One example of such hardship is the “husband beating and mistreating the wife in a manner that is customarily intolerable for her.” However, the judges have the discretion to decide what constitutes intolerable hardship and in many instances women have a difficult time proving the abuse they experience.
Women can also seek a mutually agreed divorce in the courts. However, when Iran established “family courts,” in a 2013 family law, the law only reinforced existing discriminatory civil code provisions and mandated courts to refer mutually agreed divorce requests to mediation councils. The law did have some positive provisions, including mandating the presence of female clerk judges at court and providing the possibility of forgiving or delaying the court fees if the person could not afford them. This provision is particularly helpful for victims of domestic violence who may be financially dependent on their abusers. A family lawyer interviewed said that depending on type of divorce, a mutual divorce case can be concluded in two months, but if a woman is requesting the divorce it usually takes more than a year. “If proven, domestic abuse can be used as a ground for divorce but it usually does not happen,” the lawyer said.
“The reality is that in many of these cases, it would be a lot easier to end the abuse if the woman could get a divorce, but these laws trap women in a cycle of violence that can last months and years,” another lawyer said in a telephone interview.
