ABU DHABI // Public prosecutors and defence lawyers have joined together in court to argue that a 14-year-old girl jailed for having consensual sex with her school bus driver should not have been tried under Sharia. The basis of the lawyers' argument is that, first, the girl is not a Muslim, and second, the offence of which she was convicted is covered by UAE law and not Sharia.
The Brazilian teenager was sentenced to six months in jail followed by deportation for consensual sex, after initially claiming she had been raped by MH, a 28-year-old Pakistani.
Court records show that the initial Sharia charge of zina (sex out of wedlock) was changed to one of consensual sex because the charge did not meet Sharia standards after the girl withdrew the rape allegation. For a conviction of zina, according to Sharia, four reliable witnesses should have seen the act or the accused should confess before the court. Consensual sex should be prosecuted under UAE law. Also, under UAE law, a defendant must be over 18 to be tried as an adult. The lawyers argue that Abu Dhabi Criminal Court of First Instance has therefore made an error.
The UAE legal system follows a dual track, with laws passed by Government functioning alongside Sharia. Judges choose which laws take precedence, although Sharia must be implemented in certain cases, such as sex out of wedlock. Legal experts said yesterday that while Sharia says a defendant can be tried as an adult when they have reached the age of puberty, it also requires mental and emotional maturity. Evidence of puberty includes facial hair for boys and menstruation for girls.
The judge at the Criminal Court, according to court records, asked the girl in a private hearing whether she had begun menstruation. The teenager replied that she had, at the age of 12.
Implementing Sharia on non-Muslims is subject to debate, said Dr Ahmed Abdulzaher, a legal consultant for the Abu Dhabi Judicial Department. "Depending on which interpretation of Sharia they use, judges could try a case according to either Sharia or the country's secular law," Dr Abdulzaher said.
Another major issue that complicates the case, according to the advocate Nehro Hajjaj, is a lack of UAE legislation concerning defendants involved in offences against minors, other than domestic abuse cases.
The teenager initially accused MH of raping her in her home in Abu Dhabi home April 4, but at a hearing in Abu Dhabi Criminal Court last month, after being charged with consensual sex, the girl retracted all her claims, denying she ever had sex with the man.
The driver denied the charge and prosecutors argued that it would have been difficult for MH to enter the girl's home without her consent, which meant any sex was consensual. They also said a maid, who was home at the time, did not mention hearing any cries that could have indicated rape.
The teenager is still free on bail and attended the hearings with her Brazilian mother and German stepfather. Although the court sentenced her to imprisonment, court officials said yesterday it was difficult to put her in a prison because there are only adults. The criminal court did not state she could be put in a correction centre for minors, making it difficult to take her into custody.
MH was held in police custody throughout the proceedings and sentenced to a year in prison followed by deportation.