The Public Right and the Private Right in Indecent Assault Cases under Jordanian Law

Among the legal concepts that most often confuse both the families of victims and the accused are the public right (the State's right to prosecute) and the private right (the victim's personal claim) in indecent assault (hatk al-'ird) cases. Many families believe that waiving the private right or reconciling with the accused is enough to stop the case, and they are surprised when it continues and judgments are issued despite the victim's waiver. This confusion is costly, because it leads to decisive legal choices being made on a mistaken understanding of the nature of the criminal case.

The distinction rests on the Jordanian Penal Code No. 16 of 1960 and its amendments and on the Jordanian Criminal Procedure Law, and it became even more important after the fundamental amendments of 2017, in particular the repeal of Article 308, which had allowed the criminal case to be dropped in certain sexual offenses. This article sets out the practical differences between the two rights, the limits of waiver and reconciliation, and the role of the Public Prosecution, so that each party can make its legal decisions on a clear basis.

1. Defining the Public Right and the Private Right

The public right is society's right to punish the offender for the crime. In law, a criminal offense is not seen merely as an attack on a particular person, but as an attack on public order and on the values the legislature protects. That is why the party that brings the case, and argues it, is the Public Prosecution, as the representative of society. The penalty imposed at the end of the case (imprisonment, labor, a criminal fine, and so on) is the outcome of the public right.

The private right is the right of the victim or the victim's family to material and moral compensation for the harm suffered as a result of the crime. The victim may assert the private right within the criminal case itself (instead of filing a separate civil suit), asking the court, in a single judgment, to convict the offender and order him to pay compensation. This claim makes the victim an independent procedural party to the case, with a lawyer, and with the right to review the evidence, attend the hearings and challenge the judgments.

In practice, a single case may therefore carry two parallel tracks: the Public Prosecution's track, which defends the public right, and the victim's track, which defends the private right. The court decides both together, but it may reach two distinct outcomes: a criminal conviction with civil compensation, a criminal conviction with the compensation claim rejected because the harm was not proven, or some other result.

2. Who Brings the Case and Who Can Stop It

In indecent assault cases, the offense is one that is driven by the public right, not merely by the victim's complaint. In other words, once the information reaches the authorities, whether from the victim, the victim's family, a medical or educational body that reported it, or even information that reached the police station, the case proceeds on its own, and it does not stop if the complaint is withdrawn.

Practical note: The legislative framework may change from time to time, and the rules on offenses against persons have seen successive amendments. When assessing the file, the lawyer checks the most recent provisions in force of the Penal Code and the Criminal Procedure Law on the website of the Jordanian Legislation and Legal Information database, an essential stage that cannot be done properly without consulting a specialist lawyer before taking any practical step.

This explains why the offender cannot escape a criminal trial simply through reconciliation, even if the victim waives. The Public Prosecution, as the representative of the public right, continues its case to complete the file, and it may ask for the maximum penalties.

3. The Limits of Waiver and Reconciliation

The question that comes up again and again is: "If the two families reconcile, or the victim waives, does the case stop?" The precise answer has two parts:

Part one: the private right. It can be waived. The victim may drop the private-right claim at any stage of the case, which ends the civil claim for compensation. This waiver is recorded in an official court record. Its effect is limited to the financial claim: there is no civil compensation after the waiver.

Part two: the public right. In indecent assault cases it is not extinguished by a waiver, whatever form the reconciliation takes. The Public Prosecution continues the prosecution, the court hears the case, and a criminal sentence remains possible even if the victim waives. As for the effect of the waiver, the judge may take it into account as a mitigating circumstance when setting the penalty within the legal limits, but it does not cancel the crime and does not stop the case.

The exceptions to this rule are limited and governed by specific provisions, which vary according to the particular offense and its circumstances. No one should rely on one exception or another without a careful review of the case file with the help of a specialist lawyer.

4. What Changed after the Repeal of Article 308 in 2017

Article 308 of the Jordanian Penal Code was a historic exception in the treatment of sexual offenses. It allowed the offender to escape criminal punishment if he married the victim in a valid marriage and the marriage lasted for a certain period. The provision drew wide criticism, because it created social pressure on the victim and her family to accept the marriage to avoid shame, and it turned marriage into a way out for the offender rather than protection for the victim.

The Jordanian legislature repealed Article 308 in 2017, as part of a series of legislative reforms that also included the enactment of the Protection from Domestic Violence Law No. 15 of 2017. Since then:

• The criminal case in sexual offenses cannot be dropped through a later marriage between the offender and the victim.
• A waiver of the private right and a civil reconciliation do not stop the criminal case and do not extinguish the public right.
• The effect of a waiver or reconciliation, if one occurs, remains limited to the private right and to the judge's assessment of mitigating circumstances.

For the general framework of the indecent assault offense and other legislative developments, see our detailed article The Crime of Indecent Assault under Jordanian Law.

5. Comparing the Effect of the Public Right and the Private Right

To clarify the practical differences between the two rights in a court file, the following table summarizes the main points of distinction:

Point of comparison	The public right	The private right
Who represents it	The Public Prosecution	The victim or the victim's heirs
What is claimed	Punishment of the offender (imprisonment, labor, criminal fine)	Civil compensation (material and moral)
Who can bring it	The Public Prosecution, on its own initiative	The victim, through a private-right claim
Can it be waived	Not waivable in indecent assault after 2017	Waivable at any stage
Effect of a waiver	Does not stop the case; may be taken as a mitigating circumstance	Ends the civil claim only
Final outcome	A criminal penalty enforced by the Attorney General	A sum of money the offender is ordered to pay
Nature of proof	Purely criminal; requires certainty	Civil; a preponderance of the evidence is enough

This table does not cover every detail of a case, but it puts those dealing with the file on a sound conceptual footing. What remains necessary, however clear the concepts are in theory, is reading each case on its own with the help of a lawyer, because the answers change depending on the offender's status, the victim's age, the circumstances of the incident, and what has actually been documented in the file.

6. The Role of the Public Prosecution in the Case

The Public Prosecution is responsible for representing the public right in indecent assault offenses, and it holds central powers at every stage:

• The investigation stage: it receives the complaint from the Family Protection Department or from the police station, decides on pretrial detention based on the evidence, and orders forensic medical examinations and the seizure of physical evidence.
• The referral stage: once the evidence is complete, it decides to refer the accused to the competent court (the Major Felonies Court in aggravated forms), in an indictment that sets out the legal characterization of the acts.
• The trial stage: the Public Prosecution argues before the court, requests the appropriate penalty, and objects to whatever in the defense arguments it considers inconsistent with the evidence.
• The enforcement stage: the Public Prosecution carries out the judgments issued, oversees how periods of pretrial detention are counted toward the sentence, and determines the competent penal institutions.

It is important to distinguish between the role of the Public Prosecution, as the representative of the public right, and the role of the victim's lawyer, who defends the private right. Both seek to prove the crime, but the two tracks may differ in the nature of what they ask for and in the weight they give to different parts of the evidence.

7. Considerations the Lawyer Weighs before Asserting the Private Right

Not every victim asserts the private right; the decision is shaped by the lawyer's reading of the file and the lawyer's weighing of a number of considerations that a non-specialist would find hard to assess alone:

• The expected scale of compensable harm: the lawyer weighs the value of the material and moral harm and whether it is better recovered within the criminal case rather than through a separate civil suit later.
• The limits of the victim's participation in the proceedings: the lawyer assesses whether the benefit of becoming a party (reviewing the file, attending hearings and submitting evidence) outweighs the procedural exposure for the victim.
• Protecting the victim from pressure to reconcile: the lawyer may find that asserting the private right strengthens the victim's position and reduces the social pressure to drop the case, or may find the opposite, depending on the circumstances of the file.
• Coordination with the Public Prosecution: the lawyer weighs what evidence can be added that the Prosecution may not have noticed, especially evidence of the psychological and social impact of the crime.

On the other hand, the lawyer may find that relying on the complaint alone, without a private-right claim, to avoid exposure in court, is the better option, while the prosecution of the public right continues. This too is a legal decision that requires reading the whole file before acting on it.

8. Frequently Asked Questions

Can the victim waive after the trial has started?

Yes, the victim can waive the private right at any stage of the case. The waiver is recorded in an official record. The public right, however, is not extinguished by a waiver.

If the victim waives, is the offender still punished?

Yes, the criminal prosecution by the Public Prosecution continues, and the offender may receive a penalty that may be reduced according to the judge's assessment of the circumstances. But a criminal conviction remains possible.

Does the offender benefit from reconciliation in reducing the penalty?

Reconciliation or a waiver of the private right may be treated as a mitigating circumstance, assessed within the discretion of the trial judge, within the minimum and maximum of the penalty set by law. But it is not a legal ground for dropping the penalty.

Does the victim need a lawyer of their own?

Legally, the Public Prosecution represents the public right and argues in the name of society. But the victim may need an independent lawyer to defend the private right and handle the compensation claim, especially if the victim wants to review the entire file or attend the hearings.

What is the difference between a waiver of the private right and a criminal settlement?

A waiver of the private right is a unilateral act by the victim that ends the victim's compensation claim. A criminal settlement, where the law allows one, is an agreement under which the legislature drops the criminal case itself in a limited number of offenses, and it is not available in indecent assault offenses.

Can the offender offer compensation without admitting the crime?

Legally, compensation may be offered within a civil, conciliatory framework without being treated as a criminal confession. But the courts look at conduct in its context, and compensation may be counted as one presumption among several. This is where a carefully considered step taken with the help of a lawyer matters.

Legal Consultation

The distinction between the public right and the private right in indecent assault cases is not a theoretical luxury; it is the framework that decides whether the case will be prosecuted despite a waiver, whether compensation is possible, and whether the position of the victim or the accused will be taken as a mitigating circumstance or not. For the victim, rushing to waive may cost a legitimate material and moral right. For the accused, believing that reconciliation is enough to end the criminal case may lead to a painful surprise when the judgment is issued. For specialist legal consultation in criminal cases, or to read our related articles on the crime of indecent assault under Jordanian law and civil compensation under Jordanian law, you can contact Alabwini Law Firm.