On November 2, 2017, Lebanon’s Court of Cassation issued a principled decision in the Manal Assi case, sentencing her husband, Mohammad al-Nhaily, to 18 years imprisonment for murdering her. The court reached this conclusion after denying him the mitigating excuse that the offense occurred while in an enraged state.

 

Before commenting on this ruling one must consider the following:

 

  • This crime was one of the most heinous cases of spousal homicide in Lebanon. As soon as the offender learned that his wife may be having an affair, he began torturing her, inviting her family (her mother and two sisters) to attend the bloodthirsty spectacle of her slow death. The evidence indicates that he threw a boiling pot at her causing burns, kicked her all over her body, trampled her head, and tore her lips in order to spit her blood in her mother’s face. The man did not stop there; For hours, he prevented anyone from aiding her, intimidating the entire neighborhood (nobody, it seems, had the right to come between him and his wife).
     

  • Although it was proven that this savage murder took place, the Criminal Court in Beirut gave Nhaily a reduced sentence of five years imprisonment on July 14, 2016. The court granted  the legal excuse that the crime was committed while he was in a state of rage stemming from an unjust act that his wife had committed against him.
     

  • As soon as the Criminal Court issued its ruling, there was an uproar in media and civil circles. Members of both communities saw the ruling as a threat that rendered  women fair-game by legitimizing the concept of ‘honor’. Notably, in July 2016 The Legal Agenda dedicated an issue to this case under the telling title “The Return of the Macho”. The Legal Agenda discussed the bloody spectacle that Nhaily arranged to exact revenge on his wife who dared to defy him – a spectacle that the Criminal Court was subsequently sympathetic to, thereby restoring the legitimacy of excuses based on honor, along with male chauvinism in its harshest forms.

 

While the Court of Cassation’s principled ruling rectified the situation in a manner concordant with the state’s obligation to ensure the safety of its citizens, this ruling raises  three comments:

 

  1. A Principled Decision Transcending the Case Facts

 

The ruling stands out for the following reason. Not only did it rule out the excuse of rage and raise the Beirut Criminal Court’s sentence from five to 18 years, it also established protective jurisprudence in this area. This jurisprudence emerges very clearly from over two pages of grounds stated by the court in order to reach the following principled conclusion: that Article 252 of the Penal Code, which pertains to the mitigating excuse that the Beirut Criminal Court applied to reduce the sentence to five years, is inapplicable to all cases of murdering women for the sake of honor. In this reagard, the court mentioned that the legislature had gradually abolished Article 562 of the Penal Code, which pertained to honor crimes: in 1999, it abolished the excuse that completely pardoned injury or murder in the case that the offender caught his spouse, sister,  ancestors or descendants having illegitimate intercourse, replacing it with a mitigating excuse; then, in 2011, the legislature abolished the mitigating excuse in all cases of injuring women for reasons of honor, whether they are caught in the act or merely suspected. Hence, the court concluded that “the Lebanese legislature followed a clear, incremental penal policy on this type of crimes, eventually abolishing the mitigating excuses in them, not just the exculpatory ones, for murder or injury”. It continued,

 

The court, facing the legislators’ explicit intent in repealing Article 562 of the Penal Code, deduces from the spirit of the legislation and its mandating reason that the legislators took into consideration the reaction of a husband or any of said persons to any of said cases and the impact of the rage, which could deprive him of awareness and control over his will such that he kills the woman targeted by the act without grasping the gravity of the reaction to the woman’s behavior ... whereby the legislators did not wish to grant him even a mitigating legal excuse.

 

The court thereby settled the debate about the effect of the repeal of Article 562 of the Penal Code on these grounds, putting an end to fears about it being circumvented via a revival of the excuse of homicidal honor under the cover of homicidal rage (rage in defense of honor). This pioneering jurisprudence is another step in delegitimizing honor crimes and protecting women.

 

This reading complies completely with what The Legal Agenda presented in its critique of the Criminal Court’s ruling in  issue 41. In concluding its analysis of the effects of the repeal of Article 562 of the Penal Code, The Legal Agenda deemed that

 

the legislative message that was directed to society via the repeal of Article 562 is unambiguous: the law’s obligation to ensure equality between the sexes with regard to legal protection requires it to combat all traditions and beliefs that threaten said equality, and therefore ignore all excuses related to them ... While this trend does reflect a social development, it does not mean that the traditions of honor and the social roles that underpin it or are imposed by it have vanished entirely. Rather, it means that the legislature decided not to protect or give consideration to these roles and traditions in order to combat and deter them. The legislations are based on – or at least orientated towards – the principle of equality, and must therefore eradicate all values based on inequality, especially the notion that the man is the guardian and watchman over the woman’s adherence to obligations of modesty.

 

These grounds are made even more important by three things:

 

  • Via the jurisprudence, the court established what some countries in the region have established via legislation. For example, the Palestinian legislators followed the repeal of the article in the Palestinian Penal Code corresponding to Article 562 with another law that exempted crimes against women from the application of the article of this code corresponding to Article 252. This action by the court reflects the development of a new vision of the judicial function in Lebanon.
     

  • The court enshrined this orientation of its own accord without any request or argumentation from the Cassation Public Prosecution. The prosecution had based its motion on the invalidity of the accused’s invocation of the rage as an excuse given that his crime lasted several hours. It had not disputed the principle of applying Article 252 to so-called honor crimes.
     

  • The court expressed this argument without needing to do so in order to resolve the dispute pending before it. The facts that it ascertained were enough for it to deny the defendant the mitigating excuse, as will be shown in the second point. Thus, the court revealed clear determination to enshrine this protective stance.

 

  1. A Principled Decision Fortified in Case Facts

 

Once the court had concluded its analysis to rule out Article 252 in principle, it declared that it would nevertheless explore the validity of linking the accused’s actions to a ‘fit of rage’ given the case circumstances. The court thereby seemed to be attempting to reinforce its justifications for ruling out this article: it was relying not only on a legal interpretation of the effects of the repeal of Article 562 of the Penal Code, but also on its assessment of the case facts, which lead to the same conclusion. This approach fortifies the ruling against appeal and subsequently ensures that the principled gains it contains are preserved.

 

While the court allowed that the offender could justify his violent reaction in the moment he learned of his wife’s [supposed] infidelity on the basis of rage, it held that he could not link his subsequent prolonged actions (such as not aiding his wife, preventing others from doing so, locking the door on her and her family, and beating her extensively) to this rage. After beating her, “he had plenty of time to think carefully and realize what his wife’s condition, caused by the savage attack on her, might lead to ... intentionally refraining from returning to her to help her or allow her to receive aid”.

 

  1. A New Model of Positive Interaction Between the Judiciary and the Media

 

At its core, this decision constitutes a new model of positive interaction possible between the judiciary and the media. Hopefully, this interaction will create an important social dynamic that advances the legal system as a whole. By virtue of this interaction, we have witnessed a dramatic change towards protecting women in cases of domestic violence. After the “return of the macho”, we are glimpsing, via this ruling, the beginning of its demise.

 

For further analyses on this topic, see:

Judging Manal Assi: Return of the Macho

The Lebanese Judiciary Laid Bare: Changing Tides and Trials

 

This article is an edited translation from Arabic.