International coverage of UAE law: ignorance is no excuse
One of several widely quoted but wrong assertions in the international coverage of Marte Dalelv is that in the UAE a man can only be convicted of rape if the act is observed by four male witnesses.
It is a claim carried by otherwise reputable news organisations, including the BBC, that adds to the general level of criticism about the country's legal system abroad in recent days.
"Saying that the criminal law in Dubai is from Sharia law and needs witnesses, this is not true," says Hassan Elhias, a leading lawyer with Al Rowaad advocates and legal consultants in Dubai. "The information is totally false and misleading."
The UAE penal code is not based strictly on Islamic Sharia, but derives elements from it.
Sharia law does exist in the UAE but is only used in specific circumstances, such as in the payment of blood money. Individual emirates have also suspended some Sharia punishments such as flogging, replacing them with jail terms.
In the case of rape, the accused is charged under the Rape and Ravishment section of chapter 5, which relates to Crimes Against Honour.
Article 354 in its entirety states: "Without prejudice to the provision of the Law of Delinquents and Neglected Juveniles, shall be sentenced to death any individual who forcibly compels a female to carnal copulation or a man to sodomy. Coercion shall exist if at the moment of commission of crime the victim is under 14 years of age."
Although this makes execution the ultimate penalty for rape, this requires the consent of three judges and is very rarely carried out.
If the accused is acquitted of rape but there is evidence of sexual relations, accused and accuser could face charges of consensual sex. This is what happened with Ms Dalelv.
The UAE's penal code states it is legally correct that Ms Dalelv be jailed after admitting unmarried consensual sex, regardless of her motivation for doing so.
Article 356 of the Crimes Against Honour chapter, which deals with this, makes it "punishable by confinement for a minimum period of one year any individual who commits an act of disgrace and dishonour with the consent of the victim".
While parts of the law seem confusing and the lack of detail in some articles makes them more vulnerable to different interpretations, experts say that does not make the law wrong.
Some news reports have suggested Ms Dalelv was charged with having sex outside of marriage after telling police she had been raped.
While the sequence is true, the reports did not make it clear she had asked police to drop the rape charge and had admitted to consensual sex outside marriage.
"If she was raped she would not face this charge, she is a victim," says Mr Elhias, who has handled 3,000 criminal cases in Dubai. "She is well protected in law. That is a misconception.
"But if there was no rape the judge has to punish her by sending her to jail. That's her mistake [in this case]. The second part will be considered, that she had a relationship without force so she has to be punished."
It is the risk of going to prison if a rapist is cleared that critics of the system say makes women wary of reporting rape. She may also have to admit to sexual activity outside marriage before the rape.
Melca Perez, who set up the women's rights group Gabriela in early 2011, says she had plenty of experience of rape claims being dismissed by the police.
One of the most distressing cases, Ms Perez recalls, was a domestic worker who had been raped several times by her employer and on the final occasion removed her own underwear after he threatened her. After complaining to the police, she was charged with consensual sex because of this.
Cases like this can scare other women into silence, Ms Perez says, or worse in her opinion, agree to settle for money, allowing an abuser to get away with the crime.
"Sometimes women are given money to stay quiet," she says. "They do not think they have other options. They do not have anyone who will give them proper advice. They are told to 'take the money and go home', and this is done without the police."
Legal consultant Magdy Al Wakil, of Al Khazraji advocacy and legal consultants, says there are several factors that the court considers before charging a suspect with rape.
"If a women is under the influence of alcohol and there has been fondling and she has agreed to go with the suspect to a private place, then the court might consider this as consensual sex.
"There is also a huge difference between rape, attempted rape and sexual assault."
Mr Al Wakil says the physical, emotional and psychological implications of rape, mean the charge is not taken lightly.
"Every factor is considered, like how far or strongly did the victim resist," he says.
"The incident might have started out by force then the victim might have got aroused and consented. If this is the case then they will both be charged with adultery."
When Ms Dalelv retracted her accusation of rape, saying she had consented, the charges against her increased.
Public Prosecution was obliged to charge her with making a false statement under Article 276 of the Calumnious Denouncement chapter.
It reads that the perpetrator: "Shall be punishable by confinement and by fine or by one of these two penalties any individual who, falsely and in bad faith, informs the judicial or administrative authorities that a person committed an act subject to criminal punishment or administrative sanction, even if this denouncement did not result in the institution of a criminal or disciplinary action".
If the charges had stood, Ms Dalelv would have been deported after serving her sentence, under Article 121 of Measures Restrictive of Liberty.
* With additional reporting by Shareena Al Nuwais
Published: July 23, 2013 04:00 AM