Tim Elliot: Welcome once again to Lawgical, the U.A.E.’s first legal podcast brought to you from the Dubai-based law firm, HPL Yamalova & Plewka. My name is Tim Elliot. I am socially distanced, and I’m with the firm’s Managing Partner, Ludmila Yamalova. Great to see you again.
Ludmila Yamalova: Great to see you too, Tim.
Tim Elliot: In this edition of Lawgical, an examination of Article 356 of the U.A.E.’s Penal Code. This is the area of the law that covers the crime of rape here in the Emirates. Ludmila, let’s start by considering Article 356, if you could run through that particular article. There is a recent amendment to the law, but what exactly has been amended.
Ludmila Yamalova: Yes. It’s interesting because Article 356 as of now, as you rightfully said, does cover only rape in relevant terms. But previously a lot of other things that were until recently considered as crimes, were covered by this particular article, including cohabitation, pregnancies out of wedlock, or extramarital relationships, adultery, and so on and so forth. Under the previous version of this article, any sexual relationships or any aspects of physically intimate relationship that stemmed from an out of marriage relationship were considered to be criminal and, importantly, in those cases both parties would be considered as having committed a crime, which means that in the past even if you were a victim of rape, that article was drafted in such a way that it would actually criminalize both the perpetrator of rape and the victim of rape. Among other things, the reason for why that article was read so broadly was because it said any kind of physical intimacy or out of wedlock was considered to be indecent behavior even if it was consensual.
So now that article has been trimmed and revamped completely, and in relevant terms, it now only criminalizes rape. In particular it states in the order of temporary imprisonment shall be imposed on whoever commits sexual molestation against a person by coercion, threat, or some other kind of assault. In short, this Article 356 of the U.A.E. Penal Code now specifically and only covers rape, not only, but among other things covers rape, but really it is just something by coercion.
Tim Elliot: The amendment to the law addresses specific situations, whether it is rape committed against a minor, against somebody employed as domestic help, for example, as well as rape committed by a guardian, doesn’t it?
Ludmila Yamalova: Yes. In general terms, if you look at rape, rape is at least in classical terms usually has an element of force in it. It’s a force relationship or coercion. However, Article 356 also classifies or categorizes certain kinds of sexual assaults as rape, even if they are consensual or if the victim is below 14 years of age, or does not have the necessary mental capacity to judge what’s happening to him or her, which means that under Article 356 even if consensual, relationships or physical intimacy with somebody who was 10, 12, 13 years old, or below 14 is considered as rape. In these kinds of cases, obviously again, a jail sentence is the punishment. Depending on the gravity of the offense, the jail sentence obviously can be protracted, or it can be increase, in correlation with the seriousness of the offense. That is one type of perhaps twist to the article on rape that even consensual relationships, if they are with minors or somebody who doesn’t have the mental capacity, are considered as rape and therefore punishable under this article.
Furthermore, if sexual assault happens towards certain individuals as defined in this article, the severity of punishment is a lot greater. If rape, and here it really refers to coercion or force, if the sexual assault happens, for example, against a domestic worker, then the penalty is much greater, and it can be all the way up to life imprisonment. Similarly, if rape happens by a guardian, which is quite groundbreaking, the punishment can also be life imprisonment. Now with regard to the guardian, it is a fairly broad category. The guardian is considered to be any ascended guardian, caregiver, or anyone that has the authority over the victim. For example, there could be an uncle or some kind of a relative within the family that perpetrates sexual assault against another family member, then those crimes are not only considered to be as rape and punishable under Article 356 of the U.A.E. Penal Code, but the punishment can be life imprisonment. This is quite significant because in the past there wasn’t a differentiation to this level at least in terms of punishment depending on who commits assault and then under what circumstances. But now it definitely adds a lot more protection to family members and in particular which is quite, I think, groundbreaking with regard to the domestic workers because let’s face it, the U.A.E. is very heavily dependent on domestic workers. The majority of families here do quite routinely use domestic workers and these domestic workers are people who take care of us, our children, the elderly, and the household. But also because of the capacity in which they work and in which they reside in this country, at least historically or at least by the accounts of some, those people tend to be in a fairly vulnerable position and a defenseless position by virtue of not knowing the laws of the country, not having all the contacts, not having enough money to retain help, and not being able to just get on a plane and fly out because when you are a domestic working in this country they are a part of a family and live with the family. They don’t really have much day to day freedom to go out, and perhaps because of that they’re considered to be a special class that deserves additional protection. In that sense, this law now adds much more severe penalties for any kind of sexual assaults against people from that sector of the population.
Tim Elliot: As we’ve mentioned in previous podcasts, Ludmila, the amendments to the Penal Code reflected in Article 356, that was a part of a raft of changes to the law towards the end of last year, 2020. Now that you’ve had time to, I guess, digest what was a great deal of change to the Penal Code here in the Emirates, how do you view, from the outside looking in, Article 356?
Ludmila Yamalova: It truly is groundbreaking. This particular change to the article is not just groundbreaking, but much welcomed and perhaps somewhat long overdue. It does open up so many doors and opportunities to so many people out there and in the short period that this article has been in existence we’ve seen an influx of inquiries of cases of interest from people from all segments of life. Somebody, for example, who wants to have a baby on their own or somebody who perhaps got pregnant outside of marriage or somebody who might have had an extramarital relationship, before any of those people were considered to be criminals and they had to ultimately flee the country or serve a jail sentence and be deported at the end. Similarly, with regards to anyone perhaps who fell prey or victim to some kind of domestic abuse or sexual assault, many of them because of the previous version of the article did not really have the option of reporting these kinds of assaults and had to ultimately live in fear and have more or less traumatized lives for the rest of their lives, which obviously was not the way that this society wants to embrace. It’s been groundbreaking and what we are seeing, more importantly, is that the awareness is growing. Now, even if people don’t act on the back of this article, they now know that they have rights. They know what their legal rights are and how drastically the law has changed in their favor. Perhaps with time we will see more of them coming forward and actually filing cases with the courts so we will see more actually precedents that are adjudicated by the various authorities in the U.A.E. which will hopefully give more hope to the future generations.
Tim Elliot: That’s another episode of Lawgical. In this edition, examining Article 356 of the U.A.E. Penal Code, the area of the law that covers the crime of rape here in the U.A.E. As always, our legal expert on Lawgical was Ludmila Yamalova, the Managing Partner at Yamalova & Plewka. Thank you once again for your time and expertise.
Ludmila Yamalova: As always, it’s always a pleasure to be talking to you.
Tim Elliot: If you have a legal question you would like answered in a future episode of Lawgical, or if you would like a consultation with a qualified U.A.E. experienced legal professional, it is very easy to get in touch. Just head to LYLawyers.com and click the Contact button.
