US embassy cable - 04KUWAIT598

UNCLAS SECTION 01 OF 03 KUWAIT 000598 
 
SIPDIS 
 
SENSITIVE 
 
DEPT FOR NEA/ARP, NEA/REA, DRL/PHD, DRL/CRA, CA/OCS/ACS/NEA 
TUNIS FOR NATALIE BROWN 
 
E.O. 12958: N/A 
TAGS: PHUM, PGOV, PREL, KWMN, CASC, KU 
SUBJECT: (SBU) FEMALE LAWYERS BREAK TABOO AGAINST 
DISCUSSION OF DOMESTIC VIOLENCE 
 
REF: KUWAIT 05764 
 
(U) SENSITIVE BUT UNCLASSIFIED; PROTECT ACCORDINGLY. 
 
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