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04KUWAIT598 2004-02-23 07:18:00 UNCLASSIFIED//FOR OFFICIAL USE ONLY Embassy Kuwait
Cable title:  

(SBU) FEMALE LAWYERS BREAK TABOO AGAINST

Tags:   PHUM PGOV PREL KWMN CASC KU 
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1.(SBU) SUMMARY: Kuwait's family law code, which governs
personal status matters such as marriage, divorce, and
inheritance, offers numerous protections to women, including
a provision for divorce on grounds of domestic abuse.
However, there are no shelters or hotlines for domestic
violence victims, and no provisions or institutionalized
procedures for removal of domestic violence victims from
abusive households. The law provides no clear legal standard
as to what constitutes abuse, and assistance to victims of
child abuse, in particular, is limited except in the most
egregious cases. Socially and culturally, the subject of
domestic violence remains taboo and regarded by many as a
private family matter. As a result, many victims are
unwilling to come forward to authorities to report abuses. A
few influential female lawyers are advocating for reform of
Kuwait's family law code to better protect women and children
who are victims of domestic violence. They meet informally on
a regular basis to share experiences and develop advocacy
strategies. While the women have not yet put forward any
specific proposals to amend Kuwait's family law code, they
have broadened the public debate on the sensitive issue of
domestic violence and, through their own legal and advocacy
work, are encouraging more women to report abuses. END
SUMMARY.

(U) Family Law and Domestic Violence


--------------------------



2.(SBU) Kuwait's family law code, based on the Maliki school
of Sunni Islamic jurisprudence, was promulgated in 1984 and
contains 347 articles governing marriage, divorce, child
custody, inheritance, and other personal status matters. It
has been amended only slightly since 1984. (Note: Shi'a have
their own family law courts at the first-instance and
appellate levels to adjudicate Shi'a personal status matters
in accordance with Shi'a jurisprudence. In October 2003, the
GOK approved a long-standing Shi'a request to establish a
Shi'a Court of Cassation, or "Supreme Court," to handle Shi'a
personal status cases. End Note). Article 126 of the family
law code addresses domestic violence and states that abuse,
whether committed by the husband or the wife, is grounds for
divorce. However, it does not provide a clear legal standard
as to what constitutes abuse and therefore gives family law
judges tremendous discretion in abuse cases. A prominent
female lawyer and women's rights activist, Dr. Badria
Al-Awadi (protect throughout), told Poloff that many judges
refer to social and cultural "norms" to make determinations
in domestic abuse cases because the law is vague. She said
they tend to look, for example, at a woman's social position,
tribal affiliation, or educational background to determine
whether or not the abuse is "acceptable" (i.e., whether it is
"common" for a woman of a certain social standing to be
"insulted" physically by her husband). There are no female
judges or prosecutors in Kuwait. There are criminal laws
against rape, sexual assault, incest, and other "moral"
crimes, and such crimes are considered felonies. However,
there are no provisions of the family law code that deal
specifically with child abuse, battery, or provide for the
removal of abuse victims into the protective custody of a
third party or shelter. According to Waem Al-Misri, another
prominent female lawyer interested in domestic abuse cases
(protect throughout), police officials, lawyers, and family
law courts sometimes dismiss legitimate abuse cases due to
lack of documented evidence of the abuse. As elsewhere, if
there is no documented evidence (i.e., doctor's report,
police report, social worker testimony), she added, it is
easy for abusive husbands to deny the abuse and difficult for
attorneys to win abuse cases in court.

3.(SBU) Female lawyers point out other problems with Kuwait's
family law code. One provision in particular, derived from
French Napoleonic law rather than Islamic Shari'a, gives a
husband the right to kill his wife in a "crime of passion" if
he finds her "in the act" with another man. Instead of life
imprisonment or hanging, the two most severe criminal
punishments, the husband will typically serve from 6 months
to 3 years in prison as such a crime is not regarded as a
felony. However, Dr. Al-Awadi pointed out, if a woman finds
her husband "in the act" with another woman, she does not
have the right, by law, to kill him in an "act of passion."
If she does, it is regarded as a felony and she would most
likely be sentenced to life in prison. Dr. Al-Awadi said
although such acts are rare in Kuwait, the law must be
reformed to better protect the rights and welfare of married
women. (Note: A local English language daily reported on
February 18 that police arrested a Kuwaiti man for allegedly
killing his wife in their home as a result of his suspicions
that she was "flirting" with another man. End Note).

(U) Divorce Rights and Options


--------------------------



4.(SBU) Female lawyers uniformly praise one aspect of
Kuwait's personal status law that benefits women seeking
divorce from their husbands. The personal status or family
law grants women the right of "khul'", the right to a divorce
by court order on condition that the woman relinquish many if
not most of her financial and other entitlements (but not
custody of her children). Some of the financial entitlements
a woman must forego in order to divorce her husband under
this Shari'a practice include the financial sum agreed upon
by both parties to be paid to the woman in case of divorce
(instituted by the male, the Islamic precursor of a
pre-nuptual agreement), alimony payments, and her share of
property or other financial assets. In 2002, according to Dr.
Al-Awadi, there were more than 800 cases of "khul'" in
Kuwait, up significantly from previous years. Most women, she
acknowledged, are not willing to give up their legal rights
to marital property and financial assets. However, as divorce
proceedings can often drag on in family law courts for some
time, more women are starting to utilize this option. Dr.
Al-Awadi said "khul'" might be an especially favorable
divorce option for foreign women, including American citizen
women, seeking a quick "no hassle" divorce and return to
their home countries.

(U) Lack of Shelters Hinders Victim Assistance


--------------------------

-

5.(SBU) The lack of shelters or other forms of community
assistance to domestic abuse victims is an area of concern
for female lawyers and some women's rights activists. It
reflects the cultural taboo against airing "private" family
matters and the widespread belief in the sanctity of the
patriarchal family as the fundamental societal unit. Lawyer
Al-Misri, who is particularly interested in child abuse and
incest cases, informed Poloff of a recent "honor killing" of
a teenage citizen girl by her relatives because the girl
apparently became pregnant after being raped repeatedly by
her own father and brother. The hospital in which the girl
delivered the child released her into the custody of the
abusive family because, Al-Misri said, the girl was a minor
(under age 18 and therefore under the primary guardianship of
her father) and there are no third party custody alternatives
or shelters. Al-Misri plans to take up the case arguing that
the girl should never have been released from the hospital
without intervention by social workers or access to an
attorney to protect her rights and welfare. She plans to use
this and other similar cases to win broader support for
amending the family law code to include specific provisions
guaranteeing the safety and rights of abuse victims,
particularly children.

6.(SBU) COMMENT: Influential female lawyers and women's
rights activists agree that Kuwait's family law code upholds
numerous basic rights of women in matters of personal status
and guarantees women many valuable protections, particularly
in cases of divorce. Most believe that a major obstacle
facing women in Kuwait is lack of knowledge about their
rights and the legal protections available to them.
Nevertheless, they advocate for amendment of the family law
code to address remaining weaknesses that adversely affect
women, particularly the addition of provisions dealing
specifically with child abuse, battery, and protective
custody issues. Although they have not yet developed any
specific reform proposals, they are raising awareness and
encouraging discussion about sensitive and often ignored
problems. In order to support such local advocacy efforts,
post sent lawyer Waem Al-Misri to Jordan this month to
participate in the MEPI-funded "Women and the Law" workshop
to dialogue with other Arab women on reforming aspects of law
that fail to protect the rights of women and children. It
appears that at least some parliamentarians and government
officials are starting to listen to women's legal concerns.
The National Assembly's Legal and Legislative Affairs
Committee this month announced that it has added to its
official agenda a draft bill granting Kuwaiti women married
to foreign men the right to government-provided housing
allowances, a right long demanded by women's rights groups.
Another female lawyer, Dr. Kawthar Al-Jouan, told Poloff
recently that she expects the government to approve and
license her new NGO, Women's Development and Training
Institute, by May, to educate women about their legal rights,
assist women involved in family law disputes, and advocate
for stronger protections for women. (Note: This would be
significant considering the GOK has only licensed 6 new NGOs
since 1985).
URBANCIC