March 29, 2012

III. Case Studies of “Running Away” and Zina

Under the laws of Afghanistan, all violence is criminal, whether against a man or a woman, a child or an adult, at home or in public.
—Attorney General Mohammad Ishaq Aloko [60]
The way he beat her wasn’t bad enough to keep him in jail. She wasn’t near death, so he didn’t need to be in prison.
—Prosecutor on why he had not pursued charges against the husband of Nilofar M., who had stabbed her repeatedly [61]

Women and girls in Afghanistan often have little freedom of movement and face many risks when they leave their families. As a result, a woman or girl who chooses to leave home usually does it as a desperate measure to escape an unbearable situation.

A small proportion of women and girls will seek at great personal risk to extricate themselves from forced marriage or a life of abuse. They try to escape, at times by running away, by asking authorities to intervene, or by going to the police to report the abuse committed against them.

What happens next to many of them is as horrific as what came before.

While some officials make great efforts to help, many others compound the abuse the women have already experienced. Police often arrest women and girls who flee abuse by simply accepting the statements of their male accusers. Prosecutors bring charges of “running away” on the basis of purported confessions signed by women who cannot read, who have no legal counsel, and have not been fully informed of the contents. Judges convict women without any regard that they are victims of crimes, not perpetrators. As a result, women who are victimized by forced marriage and violence in the home are victimized again by a justice system that is cruelly discriminatory as a matter of law and in practice.

Enforcing the crimes of “running away” and zina not only puts women and girls unfairly behind bars, but has also been used to punish those who assist women to safety. Human Rights Watch learned that in a number of instances police had arrested family members and friends, male and female, who had helped protect women and girls. The fact that such a wide net is cast by law enforcement authorities in pursuing “moral crimes” creates an additional barrier for women and girls fleeing abuse, as it discourages others from helping them to escape.

Domestic abuse emerged as a common theme in the lives of most of the women and girls Human Rights Watch interviewed for this report. In a significant number of cases, accounts of how women or girls ended up in prison began with an effort to escape violence or threatened violence. Of the 42 married women and girls interviewed for this report, 22 were arrested as a direct result of having run away in order to flee abuse by their husband or family members of their husband. The most common reported abuse was beatings in the home of in-laws, inflicted not only by husbands but also by fathers-in-law, mothers-in-law, brothers-in-law, sisters-in-law, and other wives and their children.

Forced marriage, often also at an unlawfully early age, was another common cause of “running away” among the girls and young women interviewed. Faced with imminent marriage to someone they did not wish to marry, girls interviewed typically said they had tried to reason with their parents and then, when these efforts failed, they fled, sometimes with a boy who they liked and preferred to marry. Some girls explained that they would have preferred not to marry at all. One girl talked about how she had tried to delay marrying anyone because she hoped to be able to finish school, but found herself in a situation where she thought the only way to avoid a forced marriage was to marry someone else instead. [62]

A few women and girls interviewed gave accounts of men forcing them to work as prostitutes to raise money. Several girls described being kidnapped and then accused of zina as a result.

Discriminatory family laws and the difficulty women face in obtaining a divorce also plays a key role in many of the accounts Human Rights Watch heard. A number of women and girls had tried to obtain a divorce from their husbands and then fled when they were unable to do so. Others, accused of zina, said that they were innocent by virtue of the fact that they had married the person they ran away with, or their husband had orally divorced them before they married another man.[63] However, in both situations they lacked documentation of marriage or divorce that could protect them from accusations of zina.

Family disputes over the behavior of women and girls sometimes end in murder. Women who family members viewed as disobedient or bringing shame upon the family have been targeted in so-called honor killings. The threat of murder by honor killing was a common feature in the accounts of the women and girls interviewed for this report: many women fled their families believing that if they were caught by them, they might be killed. A significant proportion of the women and girls interviewed said that after their arrest they received death threats from their male family members, including fathers, husbands, uncles, and brothers.

Many of the detained women and girls we interviewed came from particularly disadvantaged backgrounds, from poor families and without significant education. A significant number were orphans—a common occurrence in conflict-torn Afghanistan—and raised by extended family, sometimes in cruel circumstances. More than half of the detained women and girls interviewed by Human Rights Watch said they had no formal education at all. This proportion was particularly high among women in adult facilities, where over two-thirds interviewed had never been to school. None of the detainees had attended university. Extreme poverty was also common among detainees, in some cases a factor leading to forced prostitution. As one girl, Amina R., 17, said: “From the first time I came to this world my destiny was destroyed.”[64]

Another common theme among imprisoned women is abandonment or the failure of husbands or families to provide financial support, which meant the women had struggled to feed their families. The reasons for this failure varied: some husbands had left to seek work in other regions or neighboring countries, some were addicted to opium, and some devoted their resources to another wife or woman.

Women Imprisoned or Arrested for “Running Away”

This section contains accounts from women and girls who were prosecuted for “running away” (and occasionally zina as well) after fleeing their homes, often due to abuse. As these cases illustrate, women and girls run away for a variety of reasons, in a variety of circumstances, and sometimes face accusations of “running away” even in situations where they say they had no actual intention of doing so.

Case of Shayla P.

Shayla P., 25, told Human Rights Watch that she ran away from her husband in 2011.

My husband loved another girl. He came to me and he said, “I never want to divorce you, but I want to marry another girl.”

Shayla said she refused, telling him: “No, I don’t agree with your decision, because what will be the situation of my children if you marry with another woman?”[65]

According to Shayla, her husband became abusive and started beating her. Shayla fled. She says she wanted to reach her father’s house but that her husband caught up with her, took her to a police station, and accused her of running away. The police arrested her and her husband, presumably for his actions leading to her “crime.” As Shayla said: “They arrested me for ‘moral crimes,’ and for him they said he prepared these things for me. So they arrested both of us.”

Both Shayla and her husband were sentenced to one year in prison in 2011, and remain incarcerated. According to Shayla, the court imposed the sentence as a lesson to the couple, saying: “It should be an experience for you that you never do such things again.” Shayla says that her husband still refuses to divorce her, and her parents have told her to go back to him, arguing that he has “learned his lesson.” But Shayla believes her husband’s behavior will be worse after his release, that he will blame her for being imprisoned. She said she wants help to get a divorce, but also says:

I change my mind sometimes. Sometimes I think I will get a divorce, but sometimes I think about my son. My son is with my mother-in-law. If I get divorced, they will keep my son.

She told Human Rights Watch that she does not believe she can live with her parents, as her father has refused to visit her. She suspects he does not believe that she was fleeing to his house when she was arrested, but that she was running away with a man. When Human Rights Watch discussed with Shayla the existence of shelters for victims of domestic abuse, she indicated that she did not know they existed: “I never heard of this before. If I knew before maybe I could have gone there and requested for my divorce from there.” [66]

Case of Souriya Y.

Souriya Y. was given in baad at age 12 to marry into a family to whom her family owed compensation because Souriya’s brother had run away with one of the family’s daughters. Souriya says she was beaten and abused by her new husband. When she went to her father for help, he told her she should be patient.

After nine years and three children, the first of whom was born when she was 13, Souriya claims her husband accused her of running away with an enemy of his, a man with whom her husband had a long-running dispute but whom Souriya says she had not met until the first time they appeared in court together after their arrest. She was charged with “running away” and zina. She told Human Rights Watch, “My husband made this story up to get rid of me and hurt this man. He married another woman two days after I was arrested.”

Souriya was convicted and sentenced to five-and-a-half years in prison. The man with whom she was accused of running away and committing zina was sentenced to six-and-a-half years in prison.

Souriya told Human Rights Watch that she was pregnant when she arrested and gave birth in the prison to a baby boy, who died after three weeks. On the issue of baad, Souriya said:

Baad is a bad way. If [some people] fall in love, they should be allowed to marry. Why I should be the victim of them? If such a thing is happening, [at least there] should be an agreement that the girl is treated well, that my husband will love me and will treat me well.[67]

Case of Saida T.

Saida T., 16, began serving three years in a juvenile detention facility in 2011. She told Human Rights Watch that her ordeal began when she was on a long distance journey to visit extended family, escorted by her brother, when the two of them became separated as they changed taxis in a city along the way. Unfamiliar with her surroundings, with no way to find her brother and no phone to call relatives, she began to panic. She told Human Rights Watch: “I saw a mother and father with their son. They seemed like good people. They said come with us and stay with us until you find your brother.”

Saida says she stayed two nights with the couple. When she could not find her brother, told them she wanted to go home: “They said ’You can’t go alone.’ The mother called her brother and she said, ‘He will escort you.’”

Soon after starting out, the woman’s brother began harassing her.

He asked me to marry him. I said no, I have a fiancé at home. He said, “You have to, you spent two nights at my house, your parents will think bad things [about you].” I refused. Then instead of [redacted] taxi stop, he took me to [redacted] taxi stop. At the taxi stop, two Criminal Investigation Division police officers asked who I was. He said, “She is my wife.” They asked me his father’s name. I said, “I don’t know, because I don’t know him.” They arrested us both.

Saida said that the man told the police that the two had been lovers for six months and had had sex together. Saida added that his relatives later came and told her that she should say the same thing, suggesting that it would lead to her being released. “So I did at first, but then the medical test showed that I was a virgin,” she said.

Nevertheless, Saida was sentenced to three years in juvenile detention for “running away,” but says that her family and her fiancé believe her and will take her back once she is released.[68]

Case of Farah G.

Farah G., 16, told Human Rights Watch that she fell in love with a friend’s brother:

I knew his sister. She was my school friend. [He and I] knew each other but there was nothing between us. Then we got a little close and he asked my family if they would agree for us to marry. My family said no. I said okay, I will do whatever my father says, but still he was my neighbor.

According to Farah, the boy’s mother suggested to them that they should run away together and that this would force her father to agree to the marriage. Farah says she did not agree, but said she would think about it for two weeks.

In that time some other families asked for me. My father picked one, but I didn’t like that family and I didn’t want to marry [into it]. So I told the boy, “Okay, I will go with you but you have to promise to be good and honest our whole lives.”

In 2011, Farah and the boy ran away to his cousin’s house in a different region. After fleeing, Farah called her brother to tell him she had run away. Her brother told her to return and said that her family would allow her to marry her friend if they came back. They decided to return, but at a checkpoint the police realized that they were not married and arrested them both. Farah was convicted for running away and sentenced to two years in a juvenile facility. The boy was released, she said, because his family paid a bribe and “knew someone in the police.” Farah remains imprisoned.[69]

Case of Rokhsana F.

Rokhsana F., 16, told Human Rights Watch that she ran away with a neighborhood boy with whom she had fallen in love. Her family, Rokhsana said, refused to let her marry because his family was poor. The two ran away and married before fleeing to another city where they stayed for almost a year, until they learned that the boy’s father, brother, and sister had been arrested—her family, she said, had accused them of kidnapping her.

Rokhsana says that she and her husband returned to their village and went to the local police to explain that his family members were innocent. The boy’s family members were released, but he and Rokhsana were both sentenced to five years of imprisonment for “running away.” Rokhsana said she was pregnant when they were arrested and gave birth in prison to a daughter, who was with her during our interview.[70]

Case of Parween D. and Roya S.

Parween D., 21, and Roya S., age unknown, were close friends. According to the court file, Parween and Roya spoke on the phone one day, and Roya confided that she was having serious problems with her husband, and asked if she could bring her children and come to stay with Parween and her husband. Parween, according to her statement to the police, told Roya that she was very welcome if her husband wanted to come with her or gave her permission, but she should not leave without his permission, since this would bring trouble.[71]

Nevertheless, sometime later, Roya and her four children arrived at Parween’s house. Parween and her husband realized after a day or two that Roya had, in fact, run away from her husband, and he did not know where she was. Concerned about bringing trouble on themselves, they called Roya’s husband and told him that his wife and children were with them. Roya’s oldest child overheard the phone call and, according to the court file, told his mother. The next morning, Roya and her youngest child had disappeared.

Roya’s husband arrived to collect his other three children. He and the children travelled back to his home city with Parween and her husband. As they reached the city, Roya’s husband told police at a checkpoint that Parween and her husband had helped his wife escape from him. They were both arrested, and charged under article 130 of the constitution with assisting Roya in “escaping from home.”

The primary court convicted them and sentenced each to three years of imprisonment. The appeal court confirmed their conviction, but reduced each of their sentences to one year. In reaching its decision, the appeal court wrote:

If the accused [Parween and her husband] had really had good intention they would have informed the husband of [Roya] in a way that she did not know about it so that the opportunity for her second escape would not have been created. Therefore the liability of the accused people in assisting [Roya] to escape is proved and justified and the accused are found guilty in accordance with article 130 of constitution. But since the accused people committed such action unknowingly and with goodwill the judicial board sees it necessary to modify the decision.[72]

Case of Asma W.

Asma W., 36, told Human Rights Watch of a long history of trouble and abuse at the hands of her husband. At one point, he fled their home to avoid prosecution for a crime, leaving Asma and her four children without financial support. At another point she learned he had been cheating on her with another woman. Already overwhelmed by trying to support her children alone, Asma was so distressed by this news that she attempted suicide by self-immolation, leaving her with burn scars down one side of her body which she showed to Human Rights Watch.The two fought constantly over his infidelity and a sexually transmitted disease which she said she contracted from him. He was also physically abusive and threatening, at one point pouring boiling water on her, ripping her clothes, and at another point threatening to pour acid on her face. Seeking help, Asma went to the Afghan Independent Human Rights Commission (AIHRC), which put her in a shelter—but only for a few days. She told Human Rights Watch:

The AIHRC had my husband come to the shelter. He cried and said, “I never divorced her, I love her.” He took me home. After he dried his tears and said, “You see, I can take you out from this place.”

Asma ran away in 2011 and says that her husband had in fact divorced her orally several times, but she did not have any documents to prove this when she fled. A male friend, a former colleague, helped her escape. Believing herself divorced, she married him to enable her to stay with him: “Not because I wanted to. I just wanted to get away from my husband and I couldn’t survive on my own so I didn’t know what else to do.”

But her husband found her, denied that they were divorced, and accused her of “running away,” zina, and stealing money. Asma was arrested and put in prison. When Human Rights Watch interviewed Asma, she had been in prison for several weeks and her case had not yet been decided. Her second husband was also arrested and is facing charges. She told Human Rights Watch:

The government should either help me get a divorce or hang me. I don’t want my first husband or my second husband. I just want a divorce and to live with my children. Why they don’t give the rights of a woman when she is suffering with so many things?[73]

Women Imprisoned or Arrested for “Running Away” Following Forced Marriage

After being married against their will, some of the women and girls interviewed for this report found life intolerable. Suffering unhappiness or unkindness, but usually also serious physical abuse, they decided they had no choice but to try to escape. Some had tolerated many years of unhappiness and abuse before reaching a breaking point. As the director a women’s prison told Human Rights Watch, “The root of all of these problems [for women in prison] is forced marriage. The women are not involved in any of the decisions by [their] family members.”[74]

Case of Bashira S.

Bashira S., 14, told Human Rights Watch that at the age of 12 her father arranged to have her marry her uncle’s son, an older boy in the household in which she had grown up: “I was not happy with this engagement and getting married to him. I was 12-years-old [when] I got married to my cousin.”

Bashira was soon pregnant. But the marriage went badly. “He was fighting with me, he was beating me. He said, ‘You don’t love me. You didn’t want to marry me.’”

In 2011 she fled to an aunt’s house and stayed there for 10 days. Bashira found a phone number for the Criminal Investigations Department and called their office, saying that she fled her marital house “because of so much fighting and beating.” The police put her in a shelter for 15 days, but she said that the investigators also called her in-laws, and they accused her of running away to see the son of the aunt to whom she had fled. She denied this:

I just wanted to inform them, to get my divorce, and get released from that man…. I said, “No, it is not the case, I don’t love him [the aunt’s son] and I didn’t love him. I only came here because I cannot go to any stranger, somebody whom I don’t know…. [So] that is why I came here.” But then they put me here [juvenile detention center].

Bashira was arrested and then convicted of “running away” and sentenced to two years in juvenile detention. Her aunt’s son was not arrested. When asked what the government could do differently to help girls in her situation, she said:

I don’t know. I went to the government to ask for help and they brought me here [the juvenile rehabilitation center]. We don’t have any problem here. It is better than home. We have food and clothes and medical care.

When she is released, Bashira plans to go back to the shelter.

She [my stepmother] is the only one who comes. She says go back to your husband and live with him. I say, “No, I can’t after all this.” They will beat me more. I want a divorce. My husband said [in court], “I will take you home and then I will give you a divorce.” I said, “No, you will kill me.”

Bashira’s son is with her husband.[75]

Case of Jawana S.

Jawana S. does not know her age, but thinks she might be in her 40s. She told Human Rights Watch that she was given in marriage to a man from a family linked with the Taliban. The family was powerful and feared in the community. Her father tried to resist giving her in marriage but the groom’s father threatened to kill him if he did not cooperate and offered 120 sheep and approximately US$4,000 as dowry. Jawana’s father agreed.

After Jawana was married, she said, her father-in-law returned and demanded her sister as a bride for another son. Jawana says that one of her brothers tried to resist these demands and that her husband’s family killed him.

Jawana said that her father-in-law asked her to live with him and then tried to sleep with her. According to Jawana, her husband knew about this, but could not do anything. She told Human Rights Watch that she went to village elders and asked for help, but one of her brothers-in-law threatened to kill her because she had embarrassed his father. “The mullahs defended me [from him],” she said. “Then I asked for a divorce.”

Jawana said her husband agreed, but her surviving brother was afraid of what would occur if she left, telling her: “We have already lost our brother, and your in-laws are in touch with the Taliban. They will kill all of us. Go home to your children.”

Jawana became convinced that if she stayed in their house, her male in-laws would kill her. She ran away to a nearby city where she said she met a younger man who agreed to marry her just to help her. She says that she called her first husband, who had initially allowed her to flee, to explain the situation. She said that he told her, “Do whatever you want.” She married the second man and lived in his house, but after a year her first husband accused her of “running away” and stealing money. Jawana and her second husband were both arrested. She was sentenced to three years in prison. Her second husband received the same sentence.

“I’m happy in here,” she told Human Rights Watch. “I am not afraid. I know no one is coming in the night to kill me.”[76]

Case of Fatema A.

Fatema A., 18, was subjected to a forced marriage at 15 and says she was unhappy from the start. She was a second wife, and her husband and his first wife were a “love match.” But life was tolerable until a few months into the marriage when her father-in-law became sexually abusive:

My father-in-law asked for me to have sex with him. Once I did. And the next time when he asked again, then I said I’m going to tell to the police or I’m going to tell anyone who can help me.

Fatema said she raised her plight with her husband and her brother-in-law, but no one in the family believed her, or cared.

Nobody accepted my words and nobody trusted me. They said, “No, you are lying, you are just saying lies about our father.” The only one who accepted my words and believed me was my mother-in-law. She said, “Yes, he is a really bad person and he is the kind of person who can ask you such things.”

Fatema fled. She stayed in several different relatives’ houses and then travelled to another city where her sister lived. When she arrived, she called a man who lived there whom she had been in touch with by phone for several months. She said that he had helped her, at her request, by passing messages back and forth to her mother for her. He came to meet her after she called, but they were arrested almost immediately, Fatema says, because he was wanted by the police for a previous crime that had nothing to do with her. Fatema was charged with “running away.”

When Human Rights Watch interviewed Fatema, she had been in the juvenile detention facility for a month and had not yet been charged in court. She said she hoped to get a divorce and said that her husband had agreed to divorce her, but has begged her not to accuse his father of rape or zina. “Whatever god brings to me, I will do,” she said. The man who was arrested with Fatema is also in jail, but she does not know whether he has been sentenced.[77]

Case of Gulara J.

Gulara J., 22, told Human Rights Watch that she was married against her will at age 15. Her husband had been promised to another girl when he was born but his father, for reasons unknown to Gulara, decided to break the engagement and marry his son to her instead. She said this caused disagreements within her husband’s family, but her family was unaware of this when they agreed to the marriage. She told Human Rights Watch:

I had so many problems with domestic violence. Everyone in my husband’s family was treating me in a really bad way. When we got engaged, it was my father-in-law who came to our house and asked for me for his son. But the father-in-law himself was beating me a lot from just the time I got married.

She said she was also beaten by her brother-in-law. Gulara went to a shelter to try to get help with these problems and asked them to help her obtain a divorce. Instead, Gulara says that the shelter returned her to her husband after he promised not to repeat his prior actions. However, the situation worsened.

My husband said, “Now you have found the ways and the places where you can go and complain about us.” My situation day-by-day got worse and then I was forced to run away.

Gulara says she called a female friend and said she was going to run away to a neighboring country where she could rejoin her family. Her friend arranged for her brother to drive Gulara, but while they were waiting to cross the border the police found them and they were arrested.

Gulara was sentenced to seven years in prison for running away with her friend’s brother, and had served two years of her sentence when Human Rights Watch spoke to her. She says her friend’s brother was just helping, that there was no sexual relationship between them, and that she doesn’t know what happened to him.

She has one son who is with her in prison. Her husband has agreed to give her a divorce, but she says he will take the son from her when they divorce. “The government should decrease forced marriages. That should not happen,” she said.[78]

Case of Parwana S.

Parwana S., 19, was given in a baadal arrangement when she was 16. Her husband’s family was supposed to give a daughter from its side to one of Parwana’s brothers. Parwana said, “In our village they don’t ask [permission] from a girl, they just decide for her [that she will] get married to a boy.”

The agreement broke down when her husband’s family reneged, and soon her husband turned on her and began beating her. “First he was good with me,” she said. “But after one month he had [the problem] with my father and then he started beating me.”

Parwana said her mother-in-law also engaged in beatings. Parwana said eventually she ran to the police, knowing that she would be put in jail for running away. “I told [the police officer], ‘Take me to jail.’”

Parwana was sentenced to six months in prison for running away from home. When she is released she plans to go home to her father’s family, where she believes she will be accepted and treated well:

I will try to become independent and divorce him [her husband]. I hate the word “husband.” My liver is totally black from my husband. … If I knew about prison and everything [that would happen to me] I would have just jumped into the river and committed suicide.[79]

Case of Marjan W.

Marjan W., 20, told Human Rights Watch that she had recently been given to a man in an arranged marriage: “I never saw him before the [ceremony].” She said her husband was abusive and that the marriage lasted 10 months.

Always I had a bad time. All the time he was beating me and he had bad behavior with me. One night he beat me very badly. He threw a mirror at me. I was injured in my hand and in my head.

Marjan said she fled the house around 6 p.m. that same evening.

I left the house in a very bad condition and situation. My mind was really not working and I was in bad pain.

Marjan knocked on several doors in her community, but she said neighbors were afraid to help her, and would say things like, “No, you are a young woman,” “We cannot give you any help,” “Maybe, tomorrow there will be a case [against us] and any kind of thing [might] happen with us.”

Marjan said she spent the night in an empty building. In the morning, crying, she started walking on the streets. She said a woman took her to a police station and the police took her to the AIHRC, which arranged to have her placed in a shelter. But Marjan claims the AIHRC also contacted her husband, who went to a police station and accused her of “running away” and stealing jewelry and money. Police took her from the shelter and arrested her for “running away” and stealing.

When Human Rights Watch interviewed Marjan in custody, she had not yet been to court. At the time of writing, she had spent approximately four months in jail.[80]

Case of Aisha H.

Aisha H., 20, told Human Rights Watch that she was engaged to a cousin when she was 10-years-old. Her fiancé was killed in an accident before they married. Her fiancé’s much older brother, who has children in their twenties with his first wife, then asked her father to give her in marriage to him as a second wife. She said:

My father said, “No, if you want my daughter to get married to your son it’s okay, I will give her to your son.” But then he forced and he pushed that, “No, I don’t want her for my son, I want her for me.” So then by force he got married to me. He said to my father, “I will kill you, but I will get married to your daughter.”

Aisha was 16 or 17 when she married. Aisha said her situation was good for several months. But over time, her husband’s first wife became increasingly hostile, and Aisha believes that the first wife cast a spell on their husband to make him cruel to Aisha.

My husband’s behavior completely changed with me. My husband’s son beat me many times and also my husband beat me many times because his behavior changed because of the spell. My husband’s son was beating me and saying, “Why did you get married to my father? Why did you come to my house?” He didn’t want his father to take a second wife.

Aisha says the family made her work constantly with no rest and regularly denied her food and clothing. She also says that her husband also had sex with young men in their house, and that when she opposed this, he beat her. She says it was at this point that she decided to run away. A neighbor’s son helped Aisha to escape, but police stopped them at a checkpoint and took her to a shelter when she explained her situation. When her husband filed a complaint against her for “running away,” she was arrested, prosecuted, and sentenced to three years in prison.[81]

Case of Mezghan A.

Mezghan A., 16, is an orphan. She said that after her parents died she lived at her uncle’s house. Her uncle, she said, often beat her and gave her in marriage when she was 14, to a nephew of his who she says was about 45. After six months her husband left, leaving her with a brother-in-law and his wife.

One day, after Mezghan and her brother-in-law’s wife had a fight, her brother-in-law beat her. She ran away the same day in 2011, and tried to find a nearby cousin’s house but got lost. The police found her wandering and asked if she was okay. When she explained that she was lost, they took her to a shelter. But three weeks later they came back and arrested her for “running away” from her husband, who himself had left her.

When Human Rights Watch interviewed Mezghan she had been in detention for several weeks, but believed she would be acquitted. She said she does not want to go back to her husband, but hopes her uncle will take her back. ”My uncle was always beating me,” she said. “But I don’t have anywhere else. Where should I go?”[82]

Women Imprisoned or Arrested for “Running Away” from Impending Forced Marriage

A number of women and girls interviewed for this report said they fled after being threatened with violence after resisting a planned forced marriage, including underage forced marriage. Others fled because they saw it as the only way to avoid forced marriage.

Case of Wajma J.

Wajma J., 20, told Human Rights Watch that five years earlier, at 15, she was given in baad to a male cousin in her family, after her brother had run away with the man’s wife. “My brother ran away with my uncle’s son’s wife,” she said. “My father gave me as a baad to our cousin, the one whose wife my brother stole.”

Wajma said her new husband was about 20 years older than she was:

As he was a very old man I didn’t want to get married. I just talked with my father. I said, “Your son did a kind of wrong thing, and now you are going to give me to your cousin, this very old man. So I am not going to live in this situation, I cannot live.” But still my father would not hear me, and without saying [anything] to me, gave me to him.

To avoid the marriage, Wajma fled and went to stay with another uncle. Wajma’s maternal uncle arranged for her to marry his son instead. They spent several years together and had a child, who later died.

Eventually, Wajma’s father found them, told the police, and the two were arrested. After a trial, Wajma was sentenced to six years for running away from her father. Her husband was also convicted and given the same sentence. Wajma, who was pregnant at the time of her arrest, has since had a second child in prison. The baby has stayed with her in prison.

Her father has told her that he wants her to come home and live with him, but he says he does not want to have her child in his house and does not want the father to have the child. Wajma says he has told her she should sell her son.

Wajma says that when she and her husband finish their sentences they hope to be able to live in peace together, but she fears that her father plans to kill her.[83]

Case of Storai T.

Storai T., 17, told Human Rights Watch that she was 12 when her father had her engaged to a man she had never met. She told Human Rights Watch:

From other people I heard he [the groom] is good, he is bad, different things… sometimes I was hearing he was not a good person. My cousin [who had met him] said, “He’s not the kind of person that you should go and get married to … and also the age difference, you are 13 and he is 32, he is like your father and you will not have a good life, you will not have good future with him.” I said I don’t care about the ages, if he is a good person, if he is treating me well, if he is a good man, then it is no problem about the age.

However, when Storai met the proposed groom, she said her cousin’s concerns were validated. Storai said he was an opium addict and drank alcohol: “I sat with my father and I said I am not going to marry this person. He is addicted, he is drinking alcohol, he is not a good person.”

Storai’s father asked the groom in front of her whether Storai’s allegations were true. The man denied it, saying there was “no proof” of Storai’s allegations. “Then my father said, ‘He is your fiancé, why are you saying these bad words about him?’”

Storai said she asked her parents if she could marry someone else, such as a man she liked who taught her computer class. Storai said her mother said, “That will never happen in a hundred years.” Desperate, Storai told her father that if he insisted that she marry the man he had chosen, she would kill herself. She said he replied: “Then go and kill yourself.”

Storai decided to run away with her teacher. But they were caught after they were in a car accident. Storai was sentenced to one-and-a-half years in prison. The teacher was arrested but released after two months.

Storai said the man her father wants her to marry has agreed that their engagement can be cancelled if her father gives back the US$6,000 dowry he already delivered. But if Storai’s father refuses, he continues to insist that she marry him.[84]

Case of Zargona F.

Zargona F., 14, was essentially orphaned after her father died when she was five, and her mother left her with relatives.

The relatives who took in Zargona were neglectful and abusive. Zargona described being excluded from family events, isolated, locked in her room, and simply not loved:

I didn’t have a good time with my uncle and with my uncle’s wife. But still I suffered and I passed all this. But the last thing that happened is my uncle’s wife wanted me to get married to her sister’s son. In an accident he lost his two legs. She wanted me to get married to him. Then I escaped from home.

Zargona said she managed to sneak out of her relatives’ house at 4a.m. one day and ran away alone to a nearby city, but she did not know anyone there. She was found by the police and arrested for running away. Speaking of her life today in a juvenile detention facility, she said:

I am happy with everything here, happier than I was at home, except for thinking about why I can’t see my mother. But maybe in time I will forget about my mother as well.

Zargona was convicted of “running away” and sentenced to six months.[85]

Case of Khalida P.

Khalida P., 17, fell in love with a boy she met who was a tailor for her family. She told Human Rights Watch:

He said he would send his family to ask for me, but I said I have to finish school first, so wait. My family knew that I liked this boy and my mother was always saying, “I will not let you marry him.”

Khalida said the reason for her family’s opposition to her marrying the boy was that he had already been engaged to someone else as a baby, and that he was a “stranger” not related to their family. Meanwhile, one of Khalida’s cousins wanted to marry her.

I refused many times and I told my mother I don’t like him. The boy I love called me and I gave the phone to my mother. He told her, “I will send my family. I love her and I want to marry her.” My mother took away my phone and said I could not have any more contact with him. Then they engaged me to my cousin.

Khalida said a week later she called the boy she loved and asked him to come and get her so they could run away. He came to pick her up from school and she fled with just the clothes she was wearing. Khalida said they married before a mullah the same day. They then hid in another city for two-and-a-half months. When they ran away, the family of the boy had fled as well out of fear of Khalida’s father, leaving behind only the boy’s father.

My father took his [the husband’s] father to jail. [When we learned this] my husband asked his brother to come to [name of town redacted] for a Jirga. We were in [that town] for 15 days. My brothers were looking everywhere. They finally found us.

Khalida said a powerful commander from her area came to take the couple to his house, promising to solve the problems between the two families.

I didn’t know the commander had called my family to come there too. My whole family came. My grandmother and my father’s sister told me, “Say that the boy kidnapped you, otherwise your uncles will kill you.”

She said that her husband was able to call to get the police to come to the house and this saved them, but that they were then both arrested for running away. She was sentenced to one year in juvenile detention for “running away,” but her husband was sentenced to 10 years, a result, she said, of bribes paid by her uncle. Her family is unappeased.

My uncles say, “When you are free you will come to my house. And then we will kill the whole family of the boy that you ran away with.” They say, “Even if he passes 10 years in jail we will kill him finally, we will not let him live.” Also, they will kill me when I go to my mother’s house, so my life is in danger . [86]

Case of Bahar Q.

Bahar Q., 18, was sentenced to three years for “running away” from a forced marriage set up by her father to a man she did not want as a husband. She told Human Rights Watch:

I was seven-years-old when my father engaged me. As I got older, I kept telling my family, especially my mother, I’m not marrying him. I told my father, “This is not the hope I have. This is not the dream of a girl.” My father beat me very badly. Even two of my fingers were broken. He said, “You have to marry him. “

Meanwhile, over a number of years Bahar got to know a male cousin who was in business with her father. He began sending her messages and asking for photos of her.

He asked me to run away with him. He said that if I didn’t he would show my family the photos I had sent him. I was afraid my family would kill me. I had no choice but to go with him. I was completely against my fiancé and I also liked this guy so it was a good opportunity to go away. I knew he had another wife, but he told one of my cousins, “I don’t love my wife, I want to marry [Bahar].” He said that he would divorce his first wife.

When she was 17, Bahar fled her home, and she and the man spent a month together. He did not divorce his first wife or marry Bahar. She told us they had sex: “I said to him this is against the law. He made a fake letter to say that we were married.”

After one month, Bahar’s father found out where they were and had them arrested. Bahar was sentenced to three years of imprisonment for “running away” and zina. She says the man she ran away with was sentenced to six years.

Bahar still hoped that the man she ran away with will marry her. “I have to go and get married to that guy,” she said. “I lost my good name so even if he has another wife, I have to marry him.”[87]

Women Imprisoned or Arrested for Zina

This section contains accounts of women accused of zina. Like those accused of “running away,” many had fled their homes due to domestic violence and threats.

Women Imprisoned or Arrested for Zina Following Child Marriage

For a number of the women and girls interviewed, their problems began with a very early marriage. Married at an age far too young to have had any say in the matter, and with a child’s inability to negotiate the terms of their marriage, they sometimes spent many years enduring abuse and neglect before a breakdown led to an accusation of zina.

 

Case of Roqia D.

Roqia D., 23, was married when she was12-years-old. She told Human Rights Watch:

My husband is an opium addict. He used drugs in front of me. When I asked him why he did this, he said he needed them for a pain in his leg. I told him to stop using it, but he said that was impossible.

Roqia said her husband often left their home for six months to a year at a time.

I had to support the family myself because my husband couldn’t work, although my father-in-law and brother-in-law helped sometimes. Everyone helped us because they knew about my husband’s addiction. Everyone tried to get him to stop.

Finally Roqia asked her husband for a divorce. He had started stealing to pay for drugs.

He refused. He said, “Who will take care of the children if you go? Besides, I won’t be able to find another wife since I am an addict. So you will have to stay.”

Soon after this, he left the house again for several months. While he was away one of Roqia’s sons was seriously injured in an accident, and Roqia had to ask for help from neighbors to pay for medical care. Roqia called her husband and told him that the boy had died, because she thought that would make him more likely to come home and help. He just said, “That’s okay that your son died. It’s one less to take care of, only two now.”

Unable to obtain a divorce, abandoned, and almost helpless to support her children, Roqia eventually married another man who was willing to take care of her and her children. But when her first husband discovered this he reported her to police. Both Roqia and her second husband were arrested and convicted of zina. Roqia was sentenced to five years in prison. Her second husband received the same sentence.

Roqia had three children with her first husband and one with her second husband. The first husband took custody of his children. Her youngest, fathered by her second husband, was in prison with her and was present when Human Rights Watch interviewed her.[88]

Case of Farozan A.

Farozan A.,27, said that when she was 11 her family married her to a neighbor. She told Human Rights Watch, “Our life was good for seven years and we were happy. But after seven years he got addicted to opium and other drugs.” Farozan said she and her husband lived outside Afghanistan in a neighboring country and had three children and supporting them was a struggle.

My husband became lazy and quit working. I had to work then, so I got a job as a home attendant. They paid me US$40 a month. My husband was jealous about where I was all day. He started beating me in front of the neighbors and our children.

Farozan said she suffered beatings for four years. Eventually she left her husband and travelled back to Afghanistan without him, leaving their children with him, with the help of a man she met along the way. She says there was nothing romantic or sexual about their relationship, but they remained in touch.

Farozan said that soon after she returned to Afghanistan, her husband brought their children and followed her. She said that her husband began demanding that she sign over to him the deed for property in Afghanistan that belonged to her. After she refused, she said her husband went to a police station and accused her of running away with the man who had helped her travel to Afghanistan, attempted zina, stealing money from him, and stealing their daughters.

Farozan was tried and sentenced to six years in prison. She said that after she was arrested, her husband managed to sell her property and collect the proceeds even though she never gave him the deed.

If the husband was good, why would the girl escape from home? It is because the man is not good. There should be punishment that both sides receive. For women of this country there should be something to help them rather than destroy them.[89]

Case of Rabia T.

Rabia T., 20, told Human Rights Watch that she was married at age 14, and had four children with her husband (one of whom was present with her in prison during the interview). Rabia said she was from a very conservative family. In 2011, she went to visit her family while her husband remained at their marital home in a different city. During this visit, a male cousin who is the brother of Rabia’s sister-in-law was also in the home. According to Rabia:

I went in a room and said hello to my [male] cousin. My brother shouted at me. He said, “You have no permission to talk with him.” He kicked our cousin out of the house and he said he would kill me. The same day, my brother kept saying he would kill me.

Rabia explained that both she and her cousin, fearing they might be killed, fled that night around 9 o’clock. She said she took her brother’s threats seriously because their mother was killed seven years before by another brother who thought she was talking to men on the telephone.

Rabia said she and the cousin hid in another city in a friend’s house. There was no romantic or sexual relationship between them, she said, and that they just fled together because they both needed to escape her brother’s rage. After several weeks, Rabia’s brother found the male cousin and had him arrested. After this, Rabia said she turned herself in to the police because she believed that her family and her husband’s family would all be against her and thought that was the only safe thing she could do: “I was very scared that I would be killed. I believed that the whole world is my enemy and I chose this [prison] as my safe place.”

Rabia said that she was arrested for zina. She was convicted and sentenced to seven years in prison.[90]

Case of Durukhshan W.

Durkhshan W., about 30, said was married against her will a year after she began to menstruate:

After one year [of marriage], my husband gave me a divorce. He said, “You are free. I won’t kill you, I won’t even ask about you.” I told him I will get married with someone in the village. My husband gave a divorce just by telling me, not in writing.

Durkhshan went back to her family for help, but found none. She was able to find another man to marry her, a relative of her first husband. She became his second wife and says life was better. The family remained in the same community and her second husband had contact with her first husband.

Durukhshan said that 12 years after marrying her second husband, after they had had two children in addition to the daughter from her first marriage, her second husband was on his way to the mosque when he was shot and wounded by the brother of her first husband. The police came and asked about the dispute and then arrested both Durukhshan and her second husband, accusing them both of zina, because her first husband now denied they divorced and wanted her back. She told Human Rights Watch:

Everyone knows that I was married to my second husband. I don’t know why [her first husband made these accusations after so many years]. Satan came and asked him to do this.

Durukhshan said that the court demanded proof of her divorce. She was unable to provide it and was sentenced to 16 years in prison. Her second husband was also arrested and accused of zina. He was also sentenced to 16 years in prison.[91]

Women Imprisoned or Arrested for Zina after Being Raped

A longstanding and deeply disturbing practice in Afghanistan has been the criminal prosecution of women for zina after they have been raped.

Rape is a crime under Afghanistan’s 2009 EVAW Law and is punishable by a minimum of five years in prison and a maximum sentence of death in cases where the victim dies from the rape.[92] Although the EVAW Law is the first Afghan law to use the term “rape,” a crime of a “violation of honor” that includes certain elements of rape, does exist under the 1976 Penal Code, which provides in article 429:

 (1) A person who, through violence, threat, or deceit, violates the chastity of another (whether male or female), or initiates the act, shall be sentenced to long imprisonment, not exceeding seven years. (2) In the case where the person against whom the crime is committed is not eighteen years old, or the person who commits the crime is one of the persons specified under paragraph 2 of Article 427 of this Law, the offender shall be sentenced to long imprisonment, not exceeding ten years.[93]

It is not clear if the explicit crime of rape under the 2009 EVAW law has yet been prosecuted. Government data from October 2011 on the number of people in prison for different charges showed that of 20,901 male and female prisoners, 993 were in prison for zina, and 414 for pederast.[94] Rape was not even recorded as a category, nor was “violation of honor.”[95] It is likely that to the extent that rape ever has been prosecuted, it was prosecuted under the penal code provisions regarding zina, not under the section of the new EVAW Law that specifically criminalizes rape.

Rape of women, girls, and boys is almost certainly chronically underreported in Afghanistan. Rape victims are often stigmatized and persecuted, as the accounts below show. In Afghanistan women who report a rape to the police are more likely to be prosecuted themselves, than to obtain justice.

In Afghanistan, as in many other countries, documenting sexual violence is a challenge in part because of women’s subordinate status, family concern with “honor” and “dishonor,” cultural taboos about discussing sex, and the understandable reluctance of women and girls to share or relive details of a traumatic assault. Afghan women often symbolize their families’ and societies’ honor, particularly within Pashtun communities.[96]

Historically, some communities have sanctioned “honor” killings in which a woman could be killed by her own relatives for bringing “dishonor” upon the family by conduct perceived as breaching community norms of sexual behavior—including being a victim of sexual violence.[97] At a minimum, a girl or woman who has been raped may be considered unmarriageable or may be cast out by her husband. Boys who are raped can also face discrimination, but the social penalties are not nearly as harsh. In many areas, social penalties are meted out even for the perception that a marriageable girl or woman is at risk, both on the woman or girl and on her family, who may be perceived as having failed to protect her adequately.[98]

Accordingly, it is likely that the women and girls Human Rights Watch interviewed underreported their experiences of sexual violence. In conducting interviews in the prisons and juvenile rehabilitation centers, Human Rights Watch did not systematically ask women and girls about their experiences of sexual assault. Accounts of sexual assault came up only if women or girls raised them. Yet 11 of the 58 women and girls interviewed described accounts of being raped, and several others described attempted rapes committed against them.

The stories of the women and girls interviewed for this report illustrate how frequently women and girls who have survived the trauma of a sexual assault are prejudged by a justice system that seems to view women as themselves culpable in any situation where their “honor” has been “stained” by sexual assault.

Gulnaz

A widely publicized case from November 2011 demonstrates how rape victims in Afghanistan have been persecuted when they seek justice.

Gulnaz, a young woman from Kabul, was raped in 2009 by the husband of a relative, and became pregnant. When the police learned of the case, they arrested both Gulnaz and the man who allegedly raped her. Either disbelieving or disregarding Gulnaz’s accusation of rape, prosecutors instead charged both Gulnaz and her attacker with zina. Both were convicted. Gulnaz was sentenced to 12years in prison for zina, and gave birth to her daughter on the floor of Badam Bagh prison.[99] The man who raped her was also sentenced to 12 years in prison, but his sentence was reduced to 7 years on appeal.[100]

The case received international attention after the European Union blocked the release of a film about her case and other women in prison in Afghanistan because of concerns about the safety of the women depicted.[101]

The publicity led to President Karzai pardoning Gulnaz in December 2011. But the case continued to capture attention when Gulnaz, in an interview, explained that she planned to marry the man who raped her, becoming his second wife, because it was the only way that her daughter could be spared the stigma of being illegitimate. Gulnaz also told reporters that her situation might require a girl from the family of the rapist being given in marriage to her family , along with a large dowry, as a means to bring peace between the families.[102]

The Gulnaz case illustrates a theme that arose repeatedly in Human Rights Watch’s research: the failure of authorities to investigate allegations of rape properly, and their readiness to assume that women consented to having sex and to instead charge both parties with zina. In repeated accounts, women and girls provided examples of being convicted for zina despite making allegations of being raped.

Case of Marya K.

Marya K, 15, was taking a taxi to visit her mother in a hospital. In Afghanistan, taxis often pick up multiple passengers, so Marya got into a taxi in which a man was already a passenger. Marya told Human Rights Watch that the driver and the other man abducted her, took her to the house of one of their sisters in the same city, and raped her. Marya said she was released the next day and went straight to see her mother in the hospital. She told Human Rights Watch:

All day I was not feeling good and all day I was not good. Then my father and my family got to know about it and they came to see me and they asked me different questions. They asked me if I knew them [the men] and if I knew the place they took me.

Marya was able to show her family the house. One of the men’s sister was there, but the two men were not. The sister told them to stay away. Marya says her family took her to the police to report the rape, and she showed the police the location of the house. The police arrested the men, but they then brought accusations against her. “They put all the blame on me,” Marya said. “They said, ‘She herself wanted to go with us and she herself wanted to be with us.’”

Marya was prosecuted and sentenced to a year in juvenile detention. She said that one of the men was convicted and sentenced to two years in prison, but she did not know the other’s sentence. “I don’t know why the court has decided such things about me. It’s a government decision. I don’t know why.”[103]

Case of Tahmina J.

Tahmina J., 18, fled her home in 2011 to escape domestic abuse and forced marriage to a cousin. She told Human Rights Watch:

My mother was always beating me and fighting with me. I always said to her, “I will escape from you one day.” I was engaged to someone, but I loved [a male friend]. . . . My mother’s brother had made the arrangement [for a marriage]. They didn’t tell me.

Tahmina fled her house to go in search of the boy she liked. According to court records, Tahmina went without permission from her parents’ home to the home of her aunt, who lived in the same neighborhood of the boy. She did not know where he lived, but hoped to find him. That night, she left her aunt’s house without permission to go to look for him. Without finding him, she encountered two men in the street who she said abducted her by force and raped her.

In her statement to the police, Tahmina stated:

They took me to an abandoned house. I tried to resist them doing zina with me, but they were two people so I couldn’t and they did the bad act. They attacked my reputation and did zina with me. Then they handed me to the wakili guzar [neighborhood elder]. He took me to the police station.

According to the police report, the two men were brought to the police station in 2011. “I identified them as the two people who by force assaulted me and did zina with me,” her statement says.

Police records noted that a medical exam of Tahmina indicated recent and past sexual activity.[104] The file then claims that Tahmina gave conflicting accounts about her earlier sexual activity, saying initially that she had once had sex with a cousin at an earlier point, at another point saying she had had sex with her friend. There is no indication in the court file that the police inquired about whether this prior sex was consensual. In the end, the police accused her of two instances of zina, one with the two men she accused of raping her, and another with the friend.

A prosecutor in the case told Human Rights Watch that he was skeptical of Tahmina’s allegations of rape because no witnesses had reported hearing screams when she was raped, and because of conflicts in her account relating to her earlier sexual activity. According to the prosecutor:

She said they took her to an abandoned house and raped her….What she is saying is not completely true or certain because she said she had sex with her cousin [at an earlier point] but then later denied this. There must have been consent [with the two men] because she didn’t scream or say anything until she was handed to the wakili guzar [neighborhood elder].

When asked whether they had investigated the allegations of forced marriage Tahmina made against her mother, the prosecutor said there were “contradictions” in her statement, including that “she had zina with her cousin but later said it was with someone else.”

The court, in considering Tahmina’s case, wrote, “A woman going out, especially at night, is followed by certain dangers.” The court described the two men as having “sexually assaulted” Tahmina, but then notes that she had “gone with these men of her own intention and she didn’t make any screaming.” The court found Tahmina guilty of two counts of zina (once with the two men and once previously with the man she liked) plus “running away.”

She was sentenced to one-and-a-half-years for having sex with her friend, two-and-a-half years for the incident with the two men in the abandoned building, and one year for “running away” from home, for a total of five years. The sentence was then reduced by half because of her status as a juvenile under Afghan law.[105]

Case of Malalai H.

Malalai H., 18, told Human Rights Watch that one day she received a love letter from a neighbor named Ahmed. He soon sent more. Later he sent Malalai a cell phone and started calling her. “One day he came to my school and introduced himself and I saw that he was handsome,” she said. “We started a relationship and saw each other all the time.”

Malalai said that at one point in 2011, Ahmed traveled out of town for work for several months, and when he returned, Malalai invited him to her house when she was home alone. It proved to be a mistake. “He wanted to have sex with me. I refused. He did sex with me from the backside by force.” Malalai said she thought her family “will kill me if they know,” and fled her home.

I ran away because my family is very serious and I knew they would kill me so I thought it is better to commit suicide. I tried to die by jumping in front of a car but the car stopped.

Malalai said she called a friend named Sidiq for advice. He told her she should go home. She went home, but her parents had reported her missing and took her to the police and accused her of “running away” with Sidiq. Malalai and Sidiq were both arrested. Malalai says no one believes that Sidiq is entirely innocent and that she was raped by Ahmed.

When Human Rights Watch interviewed Malalai, she and Sidiq had been imprisoned for several months but had not yet had a trial. She hopes the court will find them not guilty. She has not heard from Ahmed since the rape and she does not know where he is, but she still hopes to marry him: “I have to marry Ahmed or go and die, because my life is damaged. I still love him. He said I will marry you.”[106]

Case of Gul Chehrah M.

Gul Chehrah M., 17, was engaged to be married to a male cousin at the age of 13, a forced marriage arranged by a grandfather. She told Human Rights Watch that she ran away from home with another male cousin when she was 13, married him, and the two made a new life together. Four years later, in 2011, she said six men came to their home at night when she and her husband were sleeping. She said:

They beat my husband a lot and told him, “We want to take your wife.” My husband said, “As much you want to beat me, beat me, but I will not let my wife go with you.”

Gul Chehrah said that she knew two of the six men. One was the cousin to whom she was to be given in the forced marriage. The other was a cousin of her father.

That night they killed my husband. They raped me. There was some money in the house and I had some bracelets that they took.

She said that they tried to abduct her, but she screamed for help and neighbors called the police. The police arrested her and took her to a juvenile detention facility. Gul Chehrah told Human Rights Watch that the police were suspicious of her description of events, even accusing her of being complicit in the murder of her own husband. She said the police told her:

In one way, maybe you have a hand in all these things which have happened. In another way, maybe if you don’t have a hand in these things that happened, you will get protection in this way [in prison]. Maybe if you are free, then these people will do something with you.

At the time of her interview with Human Rights Watch, Gul Chehrah had been in the detention facility for several weeks and had not yet been charged in court. She said that a defense lawyer appointed for her told her she would be released without charges once the attackers were caught, as only one of the six had been arrested.[107]

Women Imprisoned or Arrested for Zina after Being Kidnapped

The kidnapping of a woman or girl is a crime under the Afghan Penal Code of 1976, and is punishable by a sentence of imprisonment of 5 to 15 years.[108] The accounts below show that female kidnapping victims sometimes end up in prison.

Case of Gulpari M.

On the day of her wedding at age 16, Gulpari M. was abducted as she walked alone in the afternoon to her uncle’s house to have her hands painted with henna for the wedding ceremony, a traditional practice in Afghanistan. Her kidnapper, she said, was a boy who had repeatedly tried to woo her, and whom she had rejected, along with two of his friends.

Gulpari said she learned later that they had been waiting across the road for her to come outside for three days. She described them telling her to get in the car and when she refused, putting a cloth over her nose and mouth and forcing her into their car. When Gulpari began screaming as they drove away, she says that the boy she had refused to marry threatened her with a gun and told her that they would rape her and then kill her if she were not quiet.

They were heading to the border with [redacted] and when they came to a police checkpoint, the boy who wanted to marry Gulpari told her that she had to tell the police that everything was fine and she was with the boys by choice. She was frightened enough to do so, but the police were suspicious because of her shaken demeanor and arrested all of them.

Gulpari said that when she was separated from the kidnappers, she immediately explained that she had been taken by force. But the police arrested Gulpari and prosecutors soon charged her with zina. The boys told the police that they were helping her escape at her request.

When interviewed by Human Rights Watch, Gulpari had been in a juvenile rehabilitation center for several months, awaiting trial, and said that she hoped to be acquitted and allowed to go home, but that her marriage to her former fiancé will not go forward. Her kidnapper’s family, Gulpari told Human Rights Watch, gave one of the kidnapper’s sisters to her fiancé’s family as baad to compensate them for having lost a bride. Gulpari’s former fiancé married her instead.[109]

Case of Jeena R.

Jeena R., 14 told Human Rights Watch that as she walked to school one morning in 2011, two men accosted her and threw her into a car. She believes she was then drugged. The men then drove to another city. After four days in which she says she was mostly unconscious, she woke up and escaped. She jumped into a motor rickshaw and asked to be taken into the city. As soon as she saw some traffic police, she stopped to tell them what had happened. They radioed for the Criminal Investigation Division police, who took her to a police station where she was arrested and charged with zina.

Jeena said that the kidnappers were also arrested and the main kidnapper’s family warned her against testifying against him, telling her that she would be sentenced to prison herself if she did so. She said that she testified against him anyway. The court convicted her of zina and sentenced her to one year in a juvenile detention facility. She said that the main kidnapper paid bribes and had been released.[110]

Women Imprisoned or Arrested for Zina Resulting from Forced Prostitution

“Forcing [a person] into prostitution” is a crime under the EVAW Law and is punishable by a minimum of seven years in prison. If the person forced into prostitution is not yet an adult woman, the minimum sentence is 10 years’ imprisonment.

In December 2011 the issue of forced prostitution received attention in the Afghan and international media as a result of the case of Sahar Gul. Married at around age 14, Sahar Gul within months faced attempts by her husband and his family to force her into prostitution. When she refused to cooperate, they locked her in a basement with little food or water where she remained for five months until neighbors told her uncle that the family was hiding her and he brought the police, who broke down the door to the basement. The family had also beaten Sahar Gul, ripped out some of her fingernails, broken her fingers, pulled out chunks of skin from her chest and other parts of her body with pliers and burned her with a hot poker.[111]

Some of the 58 detained women and girls interviewed described being forced into prostitution, yet they are the ones in prison. Some examples are provided below.

Case of Najiba F.

Najiba F, 18, told Human Rights Watch that she was an orphan who lived with her uncle after her mother and father died. Her uncle, she said, forced her to marry when she was 17. Her husband was abusive from the beginning, and after a few months Najiba says that his sister suggested that he could make money by sending her to a brothel:

My husband sent me to a place. They did bad things to me. It was a place with drugs and alcohol. The people from there came to take me from my husband’s house. They paid money to my husband. They asked me to dance with them and [have] sex with them, and when I refused they forced me.

Najiba was arrested in 2011. She told Human Rights Watch that in the police station she was raped again by a police officer. She was convicted of zina in 2011 and sentenced to four years of imprisonment. Najiba’s uncle moved to the United States soon after she was married, so she says that there was no one to help her deal with the problems with her husband, nor is there anywhere safe for her to go after she gets out of prison.[112]

Case of Amina R.

Amina R., 17, told Human Rights Watch that she was scheduled to be married to a man she did not want to marry. She was also unhappy at home because her mother was beating her, including in front of her future in-laws. She fled in 2011 with the help of an aunt. “My aunt gave me a phone number,” she said. “She told me to call and escape with that man [whose phone number it was] and marry him instead.”

Amina did as her aunt told her, only to discover that the man she had escaped with, though she was told he was not married, lived with his wife and did not actually want to marry Amina. Instead he kept her in his house, with his wife, for six months, using her as a concubine and forcing her into prostitution. She told Human Rights Watch:

We were not married, and we did zina. I had sex with him and with other men…. First they gave me alcohol and made me unconscious, then they did this [sex] to me.

After six months, Amina said, the man “sold” her to another man. The second man wanted to take her to another city but they were stopped at a police checkpoint. The police realized that they were not married and arrested them in 2011.

When Human Rights Watch interviewed Amina she had been in detention for several months, but there had not yet been a decision in her case. She said she believed that her father plans to kill her when she is released.[113]

Case of Fawzia S.

Fawzia S., 15, was unhappy at home. She told Human Rights Watch that she felt unloved and neglected among numerous other sisters and brothers and tried on three occasions to kill herself. A teenage friend of hers who Fawzia later discovered was pregnant was planning to run away from her family and convinced Fawzia to come with her.

Fawzia said she stole several hundred dollars from her father and the two girls used the money to buy plane tickets to another city. They spent the first two nights in a hotel, but Fawzia’s friend then found a family for them to stay with. “They were not a good family. They were stealing things,” Fawzia said. Worse, Fawzia said her friend turned on her, and made her have sex with men for money. “She drugged my food to make me unconscious. Then they did all the bad things with me. I’m not sure how many times.”

Fawzia described these events as happening in the family house. She fought with her friend and ran away a month after they had gone to stay with the family. She went to the police and told them what had happened. She said the police arrested the family and her friend, but also arrested her and accused her of zina and “running away.” Fawzia had been in detention for several months when we interviewed her, but had not yet been tried.[114]

Case of Gul Jan D.

Gul Jan D., around 35-years-old, told Human Rights Watch that she was married through a baadal arrangement five years ago:

My husband was smuggling powder opium and drinking wine. He was a bad man. He was bringing other men to have sex with me for money. I became very sad. I went to the police to complain about him. I had witnesses so the police arrested him. All the village was witness.

After her husband was arrested, convicted and sentenced to three years in prison, Gul Jan struggled to survive. “I was not a snake to eat sand,” she said, explaining that her in-laws did not support her and she had no way to feed herself. She managed to find a job as a domestic servant to a rich family, but they left to go overseas and she was on her own again. She was travelling back to her family and night fell while she was on the road. A man invited her to stay at his house and she went and stayed at the home where he lived with his two wives. The next morning, as she was about to leave, Gul Jan says that the second wife brought police to the house, complaining that her husband intended to take Gul Jan as a third wife. Gul Jan says that she and the man were both taken to police who alleged that he had brought her to his home for prostitution and that the two of them had had sex, which Gul Jan denies.

Both Gul Jan and the man were arrested. Gul Jan has one daughter, who is in prison with her. She says that her husband, who is out of prison now, has divorced her and plans, with community support, to take her daughter from her when she gets out of prison. Gul Jan said:

All the white beards [elders] in the village took a decision that they will take my daughter from me and give her to my husband’s family. There is a poem that says, “Nobody likes to leave their husband truly, unless they go because of poverty or bad times.” I go because of bad times.[115]

[60]Forward to International Development Law Organization, “Know Your Rights and Duties: The Law on the Elimination of Violence against Women,” undated brochure, http://www.idlo.int/Publications/EVAW%20ENGLISH.pdf (accessed February 22, 2012).

[61]Human Rights Watch interview with prosecutor (name withheld), Kabul, January 16, 2012.

[62] Human Rights Watch interview with Khalida P., November 22, 2011.

[63]Afghan law permits a husband to divorce his wife simply by telling her that he has done so. Civil Law of the Republic of Afghanistan, published in Official Gazette no. 353, January 5, 1977, art. 139.

[64] Human Rights Watch interview with Amina R., November 2, 2011.

[65]Under Afghan law, Shayla P. arguably had a right to object to her husband taking a second wife, if his doing so was not in accordance with the requirements of the law. The Civil Law provides that:

Article 86: Polygamy can take place after the following conditions are fulfilled: 1) When there is no fear of injustice between the wives; 2) When the person has financial sufficiency to sustain the wives. That is, when he can provide food, clothes, suitable house, and medical treatment. 3) When there is legal expediency, that is when the first wife is childless or when she suffers from diseases which are hard to be treated.

[66]Human Rights Watch interview with Shayla P., November 2, 2011.

[67] Human Rights Watch interview with Souriya Y., November 1, 2012.

[68] Human Rights Watch interview with Saida T., November 22, 2011.

[69]Human Rights Watch interview with Farah G., November 28, 2011.

[70] Human Rights Watch interview with Rokhsana F., November 21, 2012.

[71]Statement of Parween D. to the police, AGO court file, case of Parween D., reviewed by Human Rights Watch on January 23, 2012.

[72] Human Rights Watch interview with Parween D., October 31, 2011.

[73] Human Rights Watch interview with Asma W., November 1, 2011.

[74]Human Rights Watch interview with director of women’s prison (name withheld), November 28, 2011.

[75]Human Rights Watch interview with Bashira S., November 28, 2011.

[76] Human Rights Watch interview with Jawana S., November 29, 2011.

[77]Human Rights Watch interview with Fatema A., November 28, 2011.

[78] Human Rights Watch interview with Gulara J., November 29, 2011.

[79]Human Rights Watch interview with Parwana S., November 23, 2011.

[80] Human Rights Watch interview with Marjan W., November 2, 2011.

[81] Human Rights Watch interview with Aisha H., October 31, 2011.

[82]Human Rights Watch interview with Mezghan A., November 28, 2011.

[83]Human Rights Watch interview with Wajma J., November 1, 2011.

[84]Human Rights Watch interview with Storai T., November 28, 2011.

[85]Human Rights Watch interview with Zargona F., November 28, 2011.

[86] Human Rights Watch interview with Khalida P., November 24, 2011.

[87]Human Rights Watch interview with Bahar Q., November 28, 2011.

[88]Human Rights Watch interview with Roqia D., November 29, 2011.

[89]Human Rights Watch interview with Farozan A., November 29, 2011.

[90] Human Rights Watch interview with Rabia T., November 23, 2011.

[91]Human Rights Watch interview with Durukhshan W., November 23, 2011.

[92]EVAW Law, art. 17.

[93] Penal Code of October 7, 1976, available at http://webapps01.un.org/vawdatabase/uploads/Penal%20Code%201976.pdf.Art. 427(2) contains a list of aggravating factors relating to cases of zina and pederasty.

[94]Pederasty means sexual activity involving a man and a boy. Oxford Dictionary online, http://oxforddictionaries.com/definition/pederasty?region=us (accessed March 10, 2012).

[95] CPD Inmate Crime Categories, Central Prison Directorate, Ministry of Justice, October 22, 2011 (on file with Human Rights Watch).

[96]Palwasha Kakar, “Tribal Law of Pashtunwali and Women’s Legislative Authority,” http://www.law.harvard.edu/programs/ilsp/research/kakar.pdf (accessed March 1, 2012).

[97]“Afghanistan: Rights Watchdog Alarmed At Continuing 'Honor Killings,'” Radio Free Europe/Radio Liberty, September 20, 2006.

[98] For example, see Deborah J. Smith, “Decisions, Desires and Diversity: Marriage Practices in Afghanistan,” Afghanistan Research and Evaluation Unit Issues Paper Series, February 2009, http://www.areu.org.af/Uploads/EditionPdfs/905E-Marriage%20Practices-IP-web.pdf (accessed February 22, 2012), p. 1 and 37-38. See also Tarek Fatah, “"A Man's Honour Lies Between the Legs of a Woman," Huffington Post, December 7, 2011,http://www.huffingtonpost.ca/tarek-fatah/honour-killing_b_1133349.html (accessed March 16, 2012).

[99]Quil Lawrence, “For Afghan Women, Rape Law Offers Little Protection,” NPR, December 2, 2011, http://www.npr.org/2011/12/02/143057341/for-afghan-women-rape-law-offers-little-protection (accessed February 26, 2012).

[100]“Freed Afghan rape victim Gulnaz 'may marry' attacker,” BBC, December 15, 2011, http://www.bbc.co.uk/news/world-asia-16201956 (accessed March 18, 2012).

[101] Orla Guerin, “EU censors own film on Afghan women prisoners,” BBC, 10 November 2011, http://www.bbc.co.uk/news/world-asia-15678935 (accessed February 26, 2012).

[102]Alissa J. Rubin, “For Afghan Woman, Justice Runs Into Unforgiving Wall of Custom,” December 1, 2011; “Freed Afghan rape victim Gulnaz 'may marry' attacker, BBC, December 15, 2011.

[103]Human Rights Watch interview with Marya K., November 28, 2011.

[104]Many of the women and girls interviewed for this report described being subjected to gynecological examinations, and court files also indicated the routine use of and reliance upon such examinations for the purpose of determining virginity and whether a woman or girl had engaged in recent sexual intercourse. Use of such examinations was not limited to rape cases, and examinations did not focus on whether forced intercourse had taken place. Although medical examinations can be a legitimate form of investigation in a case of alleged sexual assault, gynecological examinations that purport to determine virginity have no medical accuracy. As party to the International Covenant on Civil and Political Rights, Afghanistan is obliged to protect women from cruel and inhuman treatment and discrimination, and to ensure their right to privacy. Coercive virginity tests violate all three of those obligations. Virginity tests also violate guarantees of freedom from discrimination in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The CEDAW Committee has stated that it views with the “gravest concern the practice of forced gynecological examinations of women … including of women prisoners while in custody.” The committee “emphasized that such coercive practices were degrading, discriminatory and unsafe and constituted a violation by state authorities of the bodily integrity, person and dignity of women.” Committee on the Elimination of Discrimination against Women (CEDAW Committee), “Concluding comment: Turkey,” A/52/38/Rev.1 part I, January 31, 1997, para. 178. Conducting virginity tests without the informed consent of the girl or woman violates her right to bodily integrity, dignity, privacy, and equality before the law, and would amount to a sexual assault. Such assaults cannot be justified, being based on an intrinsically discriminatory presumption that an examination of female virginity can be a legitimate interest of the state. Under international law virginity tests committed in custody constitute cruel and inhuman treatment. These exams are painful, degrading, and frightening.

[105] Human Rights Watch interview with Tahmina J., November 21, 2011.

[106]Human Rights Watch interview with Malalai H., November 21, 2011.

[107]Human Rights Watch interview with Gul Chehrah, November 28, 2011.

[108] Penal Code, arts. 418-425.

[109] Human Rights Watch interview with Gulpari M., November 24, 2011.

[110] Human Rights Watch interview with Jeena R., November 24, 2011.

[111]Graham Bowley, “In one girl's story, a test of women's rights in Afghanistan,” New York Times, January 11, 2012, http://atwar.blogs.nytimes.com/2012/01/10/in-one-girls-story-a-test-of-womens-rights-in-afghanistan/ (accessed February 22, 2012).

[112]Human Rights Watch interview with Najiba F., November 2, 2011.

[113]Human Rights Watch interview with Amina R., November 21, 2011.

[114]Human Rights Watch interview with Fawzia S., 21 November 2011.

[115]Human Rights Watch interview with Gul Jan D., November 23, 2011.