Afghanistan: End the Unlawful Criminalisation of Women and Girls Based on 'Moral Grounds'
The Women Living Under Muslim Laws (WLUML) international solidarity network and Violence is Not Our Culture Campaign (VNC) strongly condemn the imprisonment of women and girls in Afghanistan (approximately 400 of them) for so-called “moral crimes”, including running away from home. The new study released by Human Rights Watch (HRW), “I Had to Run Away”: The Imprisonment of Women and Girls for “Moral Crimes” in Afghanistan documents the phenomenon of these “crimes”, which often involve flight from early forced marriages or domestic violence. Some women and girls have been convicted of zina (sex outside of marriage) after being raped or forced into prostitution.
Although running away (without permission) is not a crime under the Afghan criminal code, the Afghan Supreme Court has instructed judges to treat women and girls who flee as criminals. According to HRW’s report, women and girls were criminalized because they escaped from forced and underage marriage, beatings, stabbings, burnings or threatened or after reporting of having been raped, kidnapped and / or forced into prostitution. However, when women have gone to the police to report, there is rarely an investigation, let alone prosecution and punishment.
The U.S.-led military intervention in Afghanistan in 2001 was legitimized in part by “saving Afghan women” from the oppressive Taliban regime. State-building process in Afghanistan thereafter invoked the rhetorics of women’s empowerment and gender mainstreaming. In 2005, the United Nations Special Rapporteur (UNSR) on Violence Against Women, Yakin Ertük, after her mission to Afghanistan concluded that four major dynamics are at the root of the “dramatic and severe violence” Afghan women face: Afghanistan’s patriarchal social order, the erosion of protective social mechanisms, the absence of rule of law, and poverty and insecurity. The report highlighted a series of widespread violations such as domestic violence, rape, trafficking, abduction, forced marriage, selling or trading girls to settle debts, “honor killings” and lack of access to education, health services and due process.
Significant improvements may have occurred in some areas of Afghan women’s lives in post-Taliban rule such as in education, maternal mortality, employment and some degree of women participation in public life. However, prevailing laws and practices that are discriminatory against women and girls reveal serious flaws and gaps in the understanding of the vast, cumbersome body of law that constitutes the Shari’a by the Afghan judicial / legal authorities. This criminalization of women and girls based on ‘moral grounds’ is a clear example. Sentences for “moral” and ordinary crimes — often manifesting in brutal and highly visible punishments such as public stoning for adultery or amputation of limbs for theft – are derived from the harshest possible interpretation of the Shari’a (Islamic law) during the Taliban regime which continue to exist today.
The use of religion and customs to justify the police-ing of women’s behavior including control of her sexuality remains pervasive in Afghan society. “Moral crimes” which these women and girls in prison are accused of are intertwined with the customary beliefs on ‘honor’ and ‘dignity’. The notion that women are the vessels of familial and communal honor also become the justification for patriarchal control over them. ‘Honor’ is also intimately tied to a woman’s economic value. Girls are not viewed as able to generate income for the families and are therefore ‘disposable’ to men who could support them. Thus, child marriages are practiced widely, particularly as poorer families can get sizeable dowries for their daughters. Criminalization of child marriage has had little impact, in part because real age is difficult to establish when neither births nor marriages are routinely registered. Girls who are perceived as no longer ‘virgins’ are not only devalued and ineligible for marriage – they could be criminalised even if they were victims of rape. Girls and women who flee their homes because they are subject to violence or domestic abuse are seen as equally tainted as no one can vouch for her honor if she was ‘unsupervised’ outside the reach of her male family members. Police are authorized to arrest these girls if a complaint is lodged by a husband or relative, but will rarely investigate their own complaints. Prosecutors have a tendency to ignore evidence that corroborates their innocence; and judges often convict on the basis of illegally extracted “confessions”. All these despite the passage of the Elimination of Violence Against Women (EVAW) Law in 2009, which criminalizes acts of violence against women. The implementation of this law is sorely lacking.
Fears and anxieties are now growing amongst the fragile Afghan civil society, especially the women’s rights movement, of what the future lies ahead as plans to disengage from Afghanistan by the US and its allies are underway. The WLUML/VNC reminds the Afghan government that as a State party to the UN Convention on the Elimination of All Forms of Discrimination Against Women, it has the obligation to eliminate gender-based violence in all its forms and contexts.
We call on President Karzai and the Afghan authorities to correct this gross injustice by:
1. Abolishing discriminatory laws including those that criminalize women and girls who exercise their basic right to choose when and whom to marry and those who escape from violence and as a “moral crime”;
2. Oversee the effective implementation at all judicial levels – district, provincial, and central – of the EVAW law.
3. Immediately release all women and girls who have been jailed for such “moral crimes” – particularly those running away from abusive husbands – and ensure their protection upon release.
We also call on governments involved in bilateral and multilateral assistance programs to Afghanistan and the UN agencies, especially UN Women, to include these concerns in their agenda with the Afghan government. They have the responsibility to proactively address the situation of women and girls at risk of gender-based violence wrongly justified in the name of ‘culture’ and ‘religion’.
All future funding to the Afghan government must be conditional on the improvement of the situation of women particularly with regard to access to justice, education and health. State parties in multilateral and bilateral agreements with Afghanistan have the obligation to ensure that the allocation of resources through gender budgeting by the country’s Ministry of Finance translates into improving women’s access to justice, health and education.
The ministerial conference on Afghanistan to be held in Tokyo in July 2012 must address the international community’s commitments and support towards Afghanistan’s sustainable economic development through the Transition period must include a comprehensive plan of action for women’s rights in its agenda.
Women should be meaningfully represented in all peace and security negotiations especially during this transition period and in accordance with the standards set by the various UN Security Council resolutions on women, conflict and peace-building. Clear indicators based on the number of women and girls who access justice, health and education should be given priority in measuring success in the security sector.
06 April 2012
 Yakin Ertük, Integration of the Human Rights of Women and a Gender Perspective: Violence against Women. (New York: United Nations Commission on Human Rights, 2006), E/CN.4/2006/61/Add.5, 2.
 The December 2010 report on Afghanistan’s Elimination of Violence Against Women (EVAW) Law “Long way to go” highlights the problem in the implementation of this law. See http://unama.unmissions.org/Portals/UNAMA/Publication/Harmful%20Traditional%20Practices_English.pdf