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https://equalitynow.org/news_and_insights/decriminalizing-adultery-in-south-sudan/
Submission: On December 10 via api (December 10th 2024, 1:20:34 pm UTC) from US — Scanned from US

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DECRIMINALIZING ADULTERY IN SOUTH SUDAN

News and Insights
December 5, 2024
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Email

Why ending any form of patriarchal control is imperative to realize both human
rights and gender justice in Africa and beyond.

By Paleki Ayang

As South Sudan rebuilds in the shadows of conflict, the country has a pivotal
chance to reshape its justice system to serve its people better. However,
outdated laws such as the criminalization of adultery stand in the way of
progress when it comes to realizing the rights of women and girls in line with
regional and international human rights instruments, including the Maputo
Protocol, an important treaty ratified by President Salva Kiir in March 2023.

Rooted in patriarchal control, laws addressing inequalities when it comes to
adultery, for example, perpetuate gender inequality and subject women to
disproportionate violence, social exclusion, and legal oppression.

Decriminalizing adultery is more than a legal reform — it is an urgent human
rights and feminist demand for the autonomy, dignity, and rights of women across
the nation.

A TOOL OF CONTROL OVER WOMEN

In South Sudan, adultery is criminalized with severe consequences — including
fines, imprisonment, public humiliation, and even death in extreme cases.
Article 266 of the Penal Code defines adultery as “consensual sexual intercourse
with a man or woman who is and whom he or she has reason to believe to be the
spouse of another person….”

While the law ostensibly applies to both men and women, its application is
deeply skewed. Women are the primary victims, as societal norms place the burden
of sexual morality almost exclusively on them. This law serves as a tool that
polices women’s bodies and reinforces their subordinate status. Women accused of
adultery face not only the threat of legal punishment but also societal
ostracization, domestic violence, and even “honor” killings.

For men, the consequences of adultery accusations are far less severe. The
patriarchal system affords them protection, allowing them to evade
accountability while maintaining control over women’s lives. This gender bias is
exacerbated by the lack of access women have to legal representation and the
discriminatory burden of proof, which often presumes their guilt. In this way,
the law institutionalizes the violence and inequality women experience daily.

South Sudan lacks a statutory framework for family law, as evidenced in Equality
Now’s 2024 research on family laws in Africa. This legal gap leads to
significant disparities in marriage, divorce, and inheritance rights. For
example, there is no minimum age for marriage under customary law, no equal
inheritance provisions, and polygamy is legal for men, which exacerbates the
vulnerabilities of women and girls.

POLYGAMY AND ADULTERY: A PARADOX

One of the most glaring contradictions within South Sudan’s legal framework is
the contrast between polygamy’s legal sanction and the criminalization of
adultery. With the responsibility of moral conduct regarding family and sexual
norms disproportionately on women, it enforces traditional roles and limits
women’s autonomy.

Laws like the criminalization of adultery are enforced in a way that reinforces
these roles, pressuring women to conform to stringent standards while giving men
more leniency. This legal and social setup not only restricts women but also
ingrains inequality as a cultural norm. Polygamy enables men to marry multiple
women freely, yet women accused of adultery face severe penalties. This double
standard primarily targets women, subjecting them to criminal trials,
punishment, and societal condemnation.

Decriminalizing adultery would remove this discriminatory practice and protect
women’s rights.

BREAKING FREE FROM PATRIARCHAL CHAINS

The continued criminalization of adultery is incompatible with South Sudan’s
stated commitments to gender equality and human rights. It violates women’s
rights to autonomy, privacy, and dignity — basic principles enshrined in
international human rights law. The United Nations Human Rights Committee has
already called for the abolition of adultery laws globally, recognizing their
inherent discrimination against women.

From a feminist as well as a human rights perspective, decriminalizing adultery
is not only about legal reform — it is a rejection of patriarchal control over
women’s sexuality. It represents a challenge to a legal system that uses women’s
bodies as battlegrounds for moral superiority. This move is about reclaiming
agency, ensuring that women have the right to make choices about their bodies
without fear of legal or social retribution.

A CALL FOR COMPASSIONATE JUSTICE

Opponents of decriminalization often claim that the law protects family values
and the sanctity of marriage. However, in reality, the criminalization of
adultery erodes the very foundations of family and community.

When women are prosecuted for adultery, their families are torn apart — not
preserved. Marriages end in divorce, children are separated from their mothers
and women are left with the lifelong stigma of being branded as immoral. This
law, far from upholding family values, weaponizes morality to control women.

Instead of punitive legal measures for address family disputes, South Sudan
legal system should embrace compassionate justice — one that acknowledges the
complexity of marital disputes and prioritizes mediation, counseling, and
reconciliation over criminal prosecution. Family dynamics and cultural values
can still be respected without the state’s interference and targeting of women.

Global lessons in gender justice

South Sudan is not alone in facing these issues. Many countries have
successfully decriminalized adultery without the feared collapse of social
morality. In fact, legal reforms in other countries have demonstrated that
decriminalization strengthens gender equality, upholds human rights, and
promotes social stability.

* In India, for example, the Supreme Court in 2018 struck down Section 497 of
the Indian Penal Code, which criminalized adultery, recognizing it as
discriminatory against women.
* In Mexico, in 2011 the country’s Supreme Court declared adultery laws
unconstitutional in several states, resulting in decriminalization across
much of the country.
* Benin and Mali, both countries in Africa, have decriminalized adultery as
part of broader reforms to promote gender equality. In 2022, Benin repealed
adultery laws, while Mali’s decriminalization efforts aimed to align with
international human rights standards.

The importance of learning from other nations

South Sudan should learn from these global examples and reframe its legal system
to reflect a more equitable future.

By decriminalizing adultery, the country can send a powerful message to the
world: That it is committed to building a society where women are no longer
punished for seeking autonomy over their lives.

Civil society, women’s rights organizations, and feminist activists have a
crucial role to play in this transformation. They can build the momentum
necessary to drive change by raising awareness, engaging in legal advocacy, and
pushing for gender-responsive lawmaking.

Most importantly, women’s voices must be centered in these efforts —
particularly those of women from marginalized and rural communities, who are
most affected by these draconian laws.

Conclusion: A just future, at long last

Despite the progress in addressing gender inequality, significant gaps remain,
particularly in family law and the fight against sexual violence. In South
Sudan, where customary law often governs family matters, harmful practices such
as polygamy, forced marriage, and child marriage persist, undermining women’s
rights and perpetuating cycles of abuse and poverty.

The criminalization of adultery in South Sudan is a relic of a patriarchal past
that has no place in a just society. It is a stark reminder of the entrenched
gender inequalities that persist in South Sudan’s legal framework.

As the country takes steps toward rebuilding its society, it is time for global
allies to support this pivotal shift toward justice and equality. International
human rights advocates, policymakers, and grassroots organizations can play a
critical role by amplifying South Sudanese voices and pushing for change.
Whether through raising awareness, supporting local advocacy, or partnering with
women’s rights groups in the region, global actors can help sustain momentum.

By standing with those fighting for decriminalization, we can make a powerful
statement that a fairer, more inclusive legal system benefits everyone.

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

Equality Now works with partners in South Sudan and around the world to address
discrimination in family law. We are a founding Coordination Committee Member
and the secretariat of the Global Campaign for Equality in Family Law,
co-convenors of the Africa Family Law Network, and currently the secretariat of
the Hurra Coalition, which is working to address unequal family laws in the MENA
region. In May 2024, we released Gender Inequality In Family Laws In Africa: An
Overview Of Key Trends In Select Countries.

This article was originally published in The Globalist on November 8, 2024.

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