Thesis Chapter 4

4 – The Jordanian Penal Code
AMMAN – A Jordanian who killed his divorced sister over rumors that she had a lover was cleared of premeditated murder because he acted in a ‘fit of rage,’ after his family dropped charges. The verdict was handed down Wednesday, five months after the 19-year-old university student shot to death his 22-year-old sister, 10 minutes after he was told that she had a lover out of wedlock, quoting court papers. The student received a three month jail sentence and walked free for time already served. ‘The 10 minute interval between hearing of his sister’s immoral actions and meeting her face-to-face is proof that he did not plot the murder,’ a court statement said. The young man had turned himself in to the police after the murder claiming that he acted to ‘cleanse the family’s honor’ and initially received a six month prison sentence. But the court slashed the verdict by half and changed the charge from premeditated murder to a misdemeanor ‘because the defendant killed his sister in a fit of rage,” in line with Article 98 of he penal code. It also argued that the ‘victim brought disgrace to her family and the defendant and tarnished their honor [because] her actions were against religion and social norms’ in the conservative Muslim country. The court said that it also opted for a reduced sentence ‘because his family dropped the charges against him and because he is a student.’ Medical sources however, said that an autopsy performed on the victim after the murder showed that the woman had not been sexually active before she was killed. But the court continued: ‘It is possible the victim had changed her clothes…before she was killed to hide evidence that would show she was engaged in an illegitimate affair’ (Jordan Times 02/01/2007)

The Jordanian judicial system has sought to control the practice of honor crimes, while also attempting to restrain the emergence of new "subversive" sexual types. Yet, crimes may be a response to these new sexual practices (i.e. open homosexuality, sex outside the context of marriage, etc) that are often seen as not only sinful, but shameful to society. The judicial system reacts to not only the violence, but also the unusual sexual practices by seeking to control both through crimes of honor by allowing them to continue to a certain degree so asocial individuals understand how devastating their actions may be to not only themselves, but their family as well. Divergent sexual types emerge as a response to the balance between both types of violence, social and official. In saying, a crime of honor is not merely an act that is created in a vacuum, but a cycle that feeds off of volatile social issues within a culture, such as a societies need to suppress issues it sees as unstable and immoral (Abu-Odeh 141).
The Jordanian Penal Code (no. 16, 1960), Article 340, first of three listed as, "Excuse in Murder":
i) He who catches his wife, or one of his female unlawfuls committing adultery with another, and he kills, wounds, or injures one or both of them, is exempt from any penalty.
ii) He who catches his wife, or one of his female ascendants or descendants or sisters with another in an unlawful bed, and he kills or wounds or injures one or both of them, benefits from a reduction of penalty.

The historical and structural origins of this article come from three separate countries that made an impact on the early effects of the modernization of Jordan. The article itself is a combination of the French Penal Code of 1810 and the Ottoman Penal Code of 1858. Article 324 of the French Penal Code was abolished by Article 17, Law no. 617/75 issued on the 7th of November 1975:
Porra beneficier d'une excuse absolutoire quiconque, ayant surprise son conjoint, son ascendante, sa descendante ou sa soeur en flagrant delit d'adultere ou de rapports sexuels illegitimes avec un tiers se sera rendu coupable seu la personne de l'un ou l'autre de es derniers, d'homicide ou de lesion non premedites.
L'auteur de l'homicide ou de la lesion pourra beneficier d'une excuse attenuante s'il a surprise son anjoint, son ascendante, sa descendante ou sa soeur avec un tiers dans une attitude equivoque.

"In order to have an absolute excuse for a person who has committed adultery or sexual intercourse out of wedlock he needs to have told about this misdeed to his spouse, his parent, his child, or his sister. By doing that the fault of the crime is transmitted to the person with whom he slept.

If a person who has committed a murder or injury to a person who has committed adultery, has warned or has told to his spouse, his parent, his child, or his sister about his intentions, this confession becomes an extenuating circumstance in his case."

Article 188 of the Ottoman Penal Code states:
He who has seen his wife or any of his female unlawfuls with another in a state of zina' (meaning "adultery", referring to illicit sexual relations whether the party is married or not within the Shari'a, Islamic Law) and then beat, injured, or killed one or both of them will be exempt from penalty. And he who has seen his wife or one of his female unlawfuls with another in an unlawful bed and then beat, injured or killed one or both of them, will be excused (Abu-Odeh 143).

Article 340 assumes the terms, "female unlawfuls" and "unlawful bed" from the Ottoman Penal Code; and from the French Penal Code it takes the phrase "ascendante, descendante," and "une excuse attenuante", which is a reduction of sentencing. French terminology is also used that subsequently benefits only men (fathers, husbands, and brothers) who find themselves in such circumstances (Abu-Odeh 144-145).
The structure itself of the Jordanian Criminal Code is taken directly from that of the Egyptian jurisprudence. Since Egypt is seen as the birthplace of Arab jurisprudence and also where it is thought to be most developed, it was adopted almost without change in numerous Arab countries, including Jordan. This has made it nearly as untouchable as the Islamic Hadiths in realms of tradition, and rather than being critiqued and made to stand as an independent historical subject, it has been followed and imitated for nearly a hundred years. This in itself carries the processes of tribal mentality (i.e. the values that play into that of an agonistic culture; supporting the honor of a tribe, family, or in-group seeking to reduce the chance of shame.) into modern day judicial systems, which continue to violate essential human rights (Abu-Odeh 145-146, 157, Malina 1993).
Commentators on the subject of the Egyptian court agreed that three conditions must be met before the article is to apply to a defendant: 1) the defendant must be related to the victim as father, husband or brother. 2) Surprising the victim in the act, thus having proof, and not basing deeds on rumors. 3) The act of killing itself has to be immediate and impulsive. On this note the Egyptian Court of Cassation decided that if a man tried to kill his wife/daughter/sister after her discovery and she escapes to her family and he finds her two hours later and kills her he is not to benefit from the reduction in penalty – At that point it is no longer seen as an act of passion that did not have premeditation. As is seen by this and many other examples, the Egyptian provisions apply more to cases of passion than to cases of traditional honor. Holding true to this form the Jordanian code also finds it necessary for the element of passion to be involved in the murder, once again an aspect that is not part of the traditional view of honor in the honor/shame society of the Arab world (Abu-Odeh 147).
For a crime that is committed out of passion, there must be an intimate relationship between the two people to place substance in the emotions that are being felt. The misconduct of one or the other is seen as a personal assault to an individual's feelings, instead of their public reputation that would become something shameful to the family and community. Thus, it has less to do with honor, and more to do with a personal relationship that is between two individuals. For example, a traditional crime of honor would be the murder of a bride on her wedding night when she has not been found to be a virgin; at which point the family's reputation is at stake and it is the duty of the men in the family to cleanse this honor with her blood (Abu-Odeh 155).
Because the honor/shame social system of the Middle East produces what is called "honor crimes" the legal system seeks to intervene in the way it sees best. Since they are also coming from the same honor/shame mentality some crimes are legitimized while others are not. In the end governmental attempts to strike a balance between both crimes of passion and crimes of honor, while seeking to subdue various aspects of female sexuality that is traditionally seen as haram, or sin (Abu-Odeh 148-149).
In looking at real cases from 1953-1982, one is hard pressed to see any of this holding any significance in the light of the actual dealings of honor crimes. Between the years of 1953 and 1965 Article 333 (changed to 340 in 1960) was never used in relation to honor crimes, because a different article was favored by the judges of the time. Article 93 (which changed to 98 in 1960) states:
He who commits a crime in a fit of fury caused by an unrightful and dangerous act on the part of the victim benefits from a reduction of penalty.

The Jordanian Court of Cassation (JCC) began to debate against the application of Article 98 beginning in 1953. First and foremost, in the cases of the time it did not appear that the victim's behavior was an "unrightful and dangerous act" against the defendant with regards to Article 98. The JCC found that nothing less than "a minor case of self-defense" would justify applying this article. In 1954 the JCC began to take a different approach by stating that Article 98 was general and Article 340 was specific, so Article 340 should be used on the specific crime it was meant for. Yet, in 1964 there was a change in the JCC's position, as it was decided that there were not any problems with applying Article 98 to honor crimes that were committed in a state of fury. It was at this point in the Jordanian legal history that a man's honor became synonymous with himself and the court saw the victim's acts as an unrightful act against the defendant and his honor.
A 1975 decision exemplified this change when the JCC stated: "The victim's act of adultery is a material act that touches the defendant's honor and that is why it is not a violation of the law to grant him a reduction in penalty." It was after this massive change in the system that the JCC became concerned with three issues regarding honor crimes: 1) the nature of the victim’s act itself; is it an unrightful act against the family's honor? 2) The passage of time between the defendant's knowledge of the victim's unrightful act and the killing. 3) The defendant's knowledge of the victim's act. In 1978 a court case found an illegitimate pregnancy to fit these criteria, because it was of a "dangerous nature according to our society's traditions." In 1973 a man killed his sister a day after he learned rumors of her licentious behavior were true and the court granted him a reduction in sentence. They deemed it an insufficient time for a man to gain his senses, regardless of the fact that the Egyptian court cases, that Jordanian law is modeled after, found two hours too much of a time lapse for a reduction in sentencing based on the contingency that it was a crime of fury. A 1981 case where the defendant murdered his sister after only hearing rumors, did not find the man applicable for the reduction in penalty, but a 1970 case where a man asked his sister about rumors and had them confirmed was granted the reduction (Abu-Odeh 157-160).