Prosecute Abusers, Not Women Fleeing Abuse
(Kabul) – The Afghan government should take urgent steps to halt an alarming increase in women and girls imprisoned for “moral crimes,” Human Rights Watch said today. Commitments by senior government officials to end such abuses have had little practical impact.
Statistics from Afghanistan’s Interior Ministry indicate that the number of women and girls imprisoned for “moral crimes” in Afghanistan had risen to about 600 in May 2013 from 400 in October 2011 – a 50 percent increase in a year and a half. Since October 2011, there has been an almost 30 percent increase overall in the number of women and girls imprisoned in Afghanistan’s prisons and juvenile detention facilities.
“Four years after the adoption of a law on violence against women and twelve years after Taliban rule, women are still imprisoned for being victims of forced marriage, domestic violence, and rape,” said Brad Adams, Asia director. “The Afghan government needs to get tough on abusers of women, and stop blaming women who are crime victims.”
In a March 2012 report, “‘I Had to Run Away’: The Imprisonment of Women and Girls for ‘Moral Crimes’ in Afghanistan,” Human Rights Watch documented that some 95 percent of girls and 50 percent of women imprisoned in Afghanistan were accused of the “moral crimes” of “running away” from home or zina (sex outside of marriage).
These “moral crimes” usually involve flight from unlawful forced marriages or domestic violence. Women and girls imprisoned on “moral crimes” charges who were interviewed by Human Rights Watch described abuses including forced and underage marriage below age 16, beatings, stabbings, burnings, rapes, forced prostitution, kidnapping, and threats of “honor killing.” Virtually none of the cases had led even to an investigation of the abuse, let alone prosecution or punishment.
“Running away,” or fleeing home without permission, is not a crime under the Afghan criminal code, but the Afghan Supreme Court has instructed its judges to treat women and girls who flee as criminals. Zina is a crime under Afghan law, punishable by up to 15 years in prison. Some women and girls have been convicted of zina after being raped or forced into prostitution. Prosecution of women who are survivors of gender-based violence has continued, and many abusers of women have continued to go free in spite of Afghanistan’s 2009 Law on the Elimination of Violence Against Women (EVAW Law), which created new criminal penalties for abuse of women.
While several high-level Afghan government officials, including from the police and Justice Ministry, have in the past year publicly confirmed that “running away” is not a crime under Afghan law, such statements have yet to translate into policy, Human Rights Watch said. Some legal experts have suggested that a growing view that women and girls should not be charged with “running away” has merely resulted in a shift toward charging them with attempted zina. A charge of attempted zina unjustifiably assumes that women outside of the supervision of their male relatives must have attempted to have sex.
Women and girls accused of “moral crimes” are routinely subjected to “virginity tests” that courts rely on for the purpose of determining virginity and whether a woman or girl engaged in recent sexual intercourse. These exams can be ordered by any police official, and some women are subjected to multiple vaginal exams without informed consent for no justifiable reason. Use of such examinations is not limited to rape cases, and examinations do not focus on documenting medical injuries or collecting physical evidence to support an allegation of sexual assault. Although medical examinations can be a legitimate form of investigation in cases of alleged sexual assault, gynecological exams that purport to determine “virginity” have no medical accuracy. Use of such tests constitutes cruel, inhuman, and degrading treatment under international law.
“Coerced ‘virginity’ examinations are a form of sexual assault,” Adams said. “Afghan police, without any scientific basis, are routinely forcing these unspeakable examinations on women and girls.”
Some women and girls who flee violence at home are able to access help – rather than being arrested – through shelters. The number of women’s shelters in Afghanistan has increased from 14 in 2011 to 18 in 2013. However, the capacity of the shelters is far too limited for the number of women who require assistance, and fewer than half of the country’s 34 provinces have even a single shelter. There are no shelters in the more conservative southern half of the country.
These shelters may not be sustainable as they are entirely funded by international donors, and donor assistance is dropping rapidly as the 2014 deadline for the withdrawal of international combat forces from Afghanistan approaches. The Afghan government has shown no interest in funding shelters through the government budget and has at times taken actions detrimental to the shelters, including a 2011 effort to take over the shelters and 2012 statements by the justice minister accusing shelters of “moral corruption.”
“Afghanistan’s donors have a crucial role to play in supporting shelters that are literally life-saving for many women,” Adams said. “They should not only help ensure the survival of the shelters that exist, but support expansion of the shelter system including in southern Afghanistan.”
Human Rights Watch called on the Afghan government and its international partners to take the following urgent steps:
- President Hamid Karzai should issue an administrative decree that “running away” should not be treated as a crime under Afghan law and that charges of attempted zina should not be brought. He should exonerate or pardon everyone convicted for “running away;”
- The Ministry of Interior should instruct all police of their obligation to convey immediately information pertaining to all incidents of violence against women or possible crimes under the EVAW Law to the prosecutor;
- The Attorney General should issue instructions requiring prosecutors to formally investigate all allegations of crimes against women under the EVAW Law and other laws, bring charges as the evidence warrants, and fully investigate whether women accused of crimes were acting in response to abuse; and
- International donors should make implementation of the EVAW Law, abolition of the crime of “running away,” revisions to the zina and family laws, and reforms to other laws that discriminate against women key issues in political engagement with the Afghan government.
“Moral Crimes” and Women’s Rights in Afghanistan: Recent Developments
The number of women and girls imprisoned for “moral crimes” in Afghanistan has increased by 50 percent in the period from October 2011 to May 2013. This troubling increase has occurred during a period in which there have been some new efforts by the Afghan government to protect women. In spite of these efforts, however, there has been a failure to take successful action to end wrongful imprisonment of women.
The Afghan government and its international partners have made some progress in addressing wrongful imprisonment of women and girls for “moral crimes” since 2012. Key officials have spoken out, at least on the illegality of “running away” prosecutions. Specialized units within the Attorney General’s Office have made some progress in increasing enforcement of the Law on Elimination of Violence Against Women (EVAW Law). There has been a small increase in the number of shelters for women fleeing violence, and there seems to be a growing awareness by police that many cases should be referred to family court for resolution through marriage or divorce rather than being sent to prosecutors. Some women’s rights activists report that the government, from President Hamid Karzai to the level of individual police and prosecutors, has shown increased openness to hearing concerns about violence against women and working with activists, including in individual cases.
Less encouraging, however, is the continued abusive use of coerced gynecological examinations, and a lack of progress in the recruitment of female police officers. Family court, where women can seek a divorce and custody of their children, exists only in Kabul. Even the slightly expanded number of shelters is nowhere near adequate to meet the need and women in the majority of provinces and the entire southern half of the country have no access to shelters. As long as the number of women and girls imprisoned for “moral crimes” continues to increase – as it has done by 50 percent in the last year and a half – it is clear that the Afghan government needs to do much more to end abusive prosecutions of women and girls.
Below is a timeline of major “moral crimes”– related developments since March 2012:
- April 11, 2012: The Attorney Generals’ Office issued a directive stating that “running away” is not a crime under Afghan law and should not be prosecuted:
A circulation must be prepared and shared with all relevant prosecution offices in the center and provinces and the prosecutors should be instructed not to prepare unjustifiable case files regarding running away cases that have not been criminalized under Afghanistan laws and cannot be heard by courts and refrain from conducting baseless investigations. Other circumstances where people run away to commit any other crime are not covered by this instruction. The issue is being communicated to you so that you can take action in accordance with instruction of the High Council of Attorney General Office of the Islamic Republic of Afghanistan.
- September 16, 2012: Justice Minister Habibullah Ghalib, Women’s Affairs Minister Husn Banu Ghazanfar, and Deputy Interior Minister Mirza Mohammad Yarmand each strongly condemned wrongful imprisonment of women and girls on charges of “running away.” Ghalib said that police and prosecutors should never send cases of “running away” to the courts. Yarmand pledged his commitment to ending abuses by the police, saying that all police had been instructed that running away is not a crime. Ghazanfar said that women and girls accused of running away are not criminals, but generally crime victims who flee to escape violence committed against them.
- September 16, 2012: Fawzia Koofi, director of the lower house parliamentary committee on women’s affairs, and her counterpart, Siddiqa Balkhi, the director of the upper house parliamentary committee on women's affairs, called for the government to immediately free women and girls charged with running away under Afghanistan’s ambiguous and arbitrary “moral crimes” law.
- October 2012: Criminal charges of “disrespect of police” are brought against Batool Muradi, after she becomes the first Afghan woman to challenge accusations by her husband of “infidelity” through DNA testing of their children.
- Late 2012: The Attorney General announced plans to establish specialized units responsible for bringing prosecutions under the EVAW Law in all of the country’s 34 provinces from the current 8. While the number of cases brought under the EVAW law remains very low even in provinces with these specialized units, activists consider the specialized units, funded by international donors, to be a step in the right direction.
- February 2013: Gulnaz, a young woman released by presidential pardon in December 2011 after serving two and a half years of a 12-year sentence for zina after she was raped, married her rapist. Her case, which received wide coverage in the international and Afghan media, highlighted not only the frequency with which rape victims are imprisoned for “moral crimes” in Afghanistan, but also the lack of options for such women following release. Gulnaz spent over a year in a women’s shelter before social and family pressures led her to marry the man who raped her as the best available option for her and the daughter she gave birth to in prison as a result of the rape.
- May 2013: A parliamentary proposal to amend the EVAW Law risks limiting further the ability of women to flee violence or seek prosecution of their abusers.
Insufficient recruitment of female police officers
Female police officers have a crucial role to play in enforcing Afghanistan’s EVAW Law. In Afghanistan’s deeply gender segregated society, many women have difficulty even leaving their homes, and would find it impossible to report a crime, especially one involving sensitive issues of sexual assault or domestic violence, to a male police officer. In the absence of female officers, reporting crimes may even be unsafe: one woman told Human Rights Watch that when she went to a police station to report being raped, she was raped again by an officer in the station.
The percentage of women in the Afghan police has remained at about 1 percent over the last few years. A Human Rights Watch statement highlighted some of the challenges that make it difficult to recruit and retain women in the police force, including abuse and sometimes assault by male colleague in the police and a lack of the most basic toilet and changing room facilities. In spite of multiple reports of incidents of sexual harassment and rape of female police officers by male police officers, there have been no cases of successful prosecution of male police officers for these abuses and the Ministry of Interior has denied that abuses against women officers are a problem.
Continued abusive use of vaginal examinations
Afghan women accused of “moral crimes” are routinely ordered to undergo gynecological examinations that purport to provide information about whether the woman or girl is a “virgin” and whether she has engaged in recent sexual intercourse. This practice continues despite the fact that gynecological examinations that purport to determine virginity have no medical validity, and constitute cruel, inhuman, and degrading treatment under international human rights law. A modified gynecological examination that is rid of so-called virginity tests can be legitimately used for therapeutic purposes and evidence collection in rape cases, but should not be used otherwise, and should never be used without the informed consent of the woman or girl.
A senior police official told Human Rights Watch in May 2013 that these examinations can be ordered by any local police officer –“whoever sees the case first.” Another senior government official said that women are often without any justification subjected to multiple examinations. Human Rights Watch found that senior Afghan government officials seem unprepared to accept that there is no scientific validity to these examinations.
Desperate need for more shelters
In 2001, Afghanistan had no shelters for women and girls fleeing violence. The 18 shelters that exist today have demonstrated that they provide an option for women that not only can keep them from being wrongfully imprisoned, but can also literally save their lives in the many cases where “honor killing” is threatened. The success of existing shelters should lead to creation of new shelters sufficient to ensure that women in every province have access to a shelter. Unfortunately, the total dependency of these shelters on international donors, combined with the often unsupportive attitude of the Afghan government toward shelters, creates real uncertainty about the long–term sustainability of shelters. The overall decline in donor support to Afghanistan reduces the likelihood that there will be any major expansion of urgently needed shelter services.