Afghan Women's Plight: Imprisonment And The Stain Of Rape

Afghanistan has been criticised by human rights organisations for its treatment of women, particularly in cases of rape. Women in Afghanistan are often imprisoned for 'moral crimes', including 'running away' from home, which is not a crime under the Afghan criminal code. Women and girls who have been raped are often convicted of zina (adultery) and imprisoned for 'moral crimes'. Rape victims are vulnerable to incrimination for zina, and the grounds for incrimination are unpredictable. This hinders their access to justice and protection against rape.

Women are often persuaded to marry their rapist to restore their family's honour

In Afghanistan, women are often persuaded to marry their rapist to restore their family's honour. This is because women are respected for their virginity, and even if the woman gets pregnant after being raped, it is uncommon for her rapist to marry her. Thus, a woman is punished for being "impure".

In Afghanistan, rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration perpetrated against a person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or against a person who is incapable of giving valid consent. This can include one who is unconscious, incapacitated, has an intellectual disability or is below the legal age of consent.

In Afghanistan, a woman who is raped is often considered to have brought shame to her family. As a result, she may be persuaded to marry her rapist to restore her family's honour. This is also done so that the rapist can avoid facing charges.

In 2013, Afghanistan made international news when a woman was raped by a man, jailed for adultery, gave birth to a child in jail, and was then forced by government officials to marry her rapist.

In Afghanistan, rape victims in the country face a double risk of being subjected to violence. On one hand, they can become victims of honour killings perpetrated by their families, and on the other hand, they can be victimized by the laws of the country.

Women who are raped are often persuaded to marry their rapist in hopes of restoring honour to her family. This is also done so that the rapist can avoid facing charges. Thus, putting women in the very often dangerous position of either marrying the man who raped and attacked them or facing honour crimes, possibly murder, at the hands of their own family members.

Women are punished for zina (adultery) under Afghan law instead of getting justice

Women in Afghanistan are often punished for zina (adultery) under Afghan law instead of getting justice. This is due to the conflation of rape and zina in Afghan law, which leaves victims of rape with little protection. The 1976 penal code, for instance, does not include rape as a distinct crime but refers to zina, which is punishable by 5–15 years imprisonment. The code appears to apply zina to both consensual and non-consensual acts, without any guidance on how to distinguish between coercive and consensual scenarios.

The situation is made worse by the fact that, in practice, it is very rare for rape to be reported in Afghanistan, and most of the laws for rape are not implemented. As such, there are immense risks that women face if they report it. Women who are raped can be and often are punished, while their male counterparts rarely face jail time when accused of rape.

The Afghan government's failure to protect women's rights has been criticised by human rights organisations. In 2013, for example, the number of women and girls imprisoned for "moral crimes" in Afghanistan rose to about 600, a 50% increase in a year and a half. This included women who had been raped or forced into prostitution and were subsequently convicted of zina.

The Elimination of Violence Against Women (EVAW) law was passed in 2009 to address this issue, but it has had limited success. While there has been an increase in the reporting of violence against women, underreporting remains a serious concern, and the mediation rate is 61%. In addition, the EVAW law does not address so-called moral crimes under Sharia law, under which most women and girls are prosecuted.

The situation has deteriorated further since the Taliban seized control of Afghanistan in 2021. The Taliban have violated the rights of females and destroyed the system of protection and support for victims of violence. For example, in 2023, there were reports of Taliban members gang-raping a woman and her two minor daughters.

Women are often forced to undergo virginity tests, which are a form of sexual assault

Women in Afghanistan are often forced to undergo virginity tests, which are a form of sexual assault. These tests are conducted to determine whether a woman's hymen is intact, and they are carried out by doctors, police, judges, or even representatives of the Ministry of Women's Affairs. While there are efforts to curb this practice, it remains widespread and deeply entrenched in the country's culture and legal system.

The tests themselves are invasive and traumatic for the women involved. They involve a doctor inserting their fingers into the woman's vagina to check for the presence of a hymen. This procedure is not only humiliating but also extremely uncomfortable and can have long-lasting psychological effects. In some cases, women have attempted suicide or fled the country after undergoing these tests.

The purpose of virginity testing is to determine whether a woman has engaged in sexual intercourse outside of marriage, which is considered a "moral crime" in Afghanistan. If a woman is found to have had sex outside of marriage, she can be sentenced to up to 15 years in prison. This punishment is based on the belief that a woman's virginity is vital to the family's honour. As a result, women who are suspected of having sex outside of marriage, even if they are victims of rape or sexual assault, are often forced to undergo these tests.

The use of virginity testing as a form of control over women's sexuality is not unique to Afghanistan. Similar practices have been documented in nearly 20 countries, including Indonesia, Iraq, and Syria. However, the test has been widely discredited by medical professionals and human rights organizations, who argue that it is unreliable, unethical, and a form of sexual assault.

Despite the efforts of women's rights activists and some government officials, virginity testing remains a common practice in Afghanistan. In 2018, the country adopted a new penal code that allowed for virginity testing with the consent of the woman or under a court order. However, this has done little to protect women, as they often lack control over their bodies and cannot give meaningful consent.

The persistence of virginity testing in Afghanistan highlights the broader challenges faced by women in the country, who continue to fight for their basic rights and equality. It also underscores the need for a comprehensive societal response, supported by public health and legal professionals, to eliminate this harmful practice.

Women are at risk of honour killings by their families if they report rape

Honour killings are a traditional form of murder in which a person is killed by their family due to the perceived dishonour brought upon the family by the victim. Honour killings are often connected to religion, caste, or other forms of hierarchical social stratification. They are most often carried out against women and girls by male family members.

In Afghanistan, honour killings are a serious risk for women who report rape. Women in Afghanistan are respected for their virginity, and even if a woman becomes pregnant after being raped, it is uncommon for her rapist to marry her. Instead, she is punished for being "impure". Rape victims in Afghanistan are more stigmatized than the rapists themselves. Women who are raped can be, and often are, punished for zina (adultery) under Afghan law, while their male counterparts rarely face jail time.

In 2013, the Afghan Independent Human Rights Commission (AIHRC) reported that violence against women in the country had reached record levels. The chair of the AIHRC, Sima Samar, told Reuters:

> The brutality of the cases is really bad. Cutting the nose, lips and ears. Committing public rape… mass rape… it’s against dignity, against humanity.

In Afghanistan, rape victims' families often keep the incident secret due to pressure and the fear of honour killings. In one case, a 10-year-old girl was raped by a mullah in a mosque. The girl's family openly planned to carry out an honour killing, and the mullah offered to marry the victim instead. The girl was removed from the shelter that had given her refuge and returned to her family, despite complaints from women's activists that she was likely to be killed.

In another case, a woman was convicted of zina and sentenced to death by stoning when she declared that she had been raped by her brother-in-law. The judge considered her pregnancy as proof of adultery since her husband was in jail at the time, and she was unable to produce witnesses for the rape.

Human rights groups report that about 150 honour killings a year come to light in Afghanistan, and many more probably go unreported. Women's rights organizations and other civil society groups have raised concerns that there will be less international support for the advocacy and training needed to protect and strengthen the implementation of laws against violence towards women.

Women are often pressured by police to not file a case or to withdraw their case

Women in Afghanistan face immense risks if they report rape, including the possibility of being subjected to honour killings by their families or being victimized by the country's laws.

Women in Afghanistan are often pressured by police to not file a case or to withdraw their case. From the moment an Afghan woman decides to file a complaint under the EVAW law, she faces resistance. If she files the complaint with the police, they are supposed to either take the complaint or refer her to the nearest EVAW investigation unit. However, in many cases involving violence from a male family member, often the husband, police discourage women from filing a case and pressure her to go home and reconcile.

Even if she manages to file a case, pressure or threats from relatives frequently compel women to withdraw cases before or after they reach the investigation stage. In most of these cases, the women do not have access to lawyers. Because the EVAW law provides that prosecution of most crimes must be based on a complaint that the victim, her family, or her attorney files, the case cannot proceed and is dropped if a complaint is withdrawn.

Although mediation is often dangerous for women who are put at risk by being convinced to reconcile with their abuser, EVAW cases are commonly resolved through family mediation. The EVAW law prohibits mediation in only five kinds of offenses against women: rape, forced sale of sex, publicizing the identity of a victim, burning or the use of chemical substances to cause harm, and forced self-immolation or suicide. For these offenses, even if the woman does not file a complaint, or tries to withdraw it, the state is obligated to prosecute. In all other cases, police and other officials can pressure the woman to have her case resolved through mediation.

In violation of the law, EVAW officials have sometimes referred cases to mediation when it is prohibited. Particularly outside major cities, officials often refer women and their relatives to traditional councils to resolve cases, including violent crimes, thereby bypassing the justice system altogether. This kind of mediation often leads to outcomes that deny women protection and justice and reinforces impunity, even for the most serious crimes.

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