Afghanistan's Domestic Violence Loophole

Campaigners are calling for the Afghan government to follow through on promises to change parts of Afghanistan’s penal code that they argue actually serves to legimitise violence against women.

Article 398 of the Afghan penal code states that a man who sees “his wife or other family members” in a compromising position and kills or injures one or both of them “in order to defend his dignity and respect” will not be prosecuted for violent assault or murder.

Instead, he may be liable to a term of imprisonment of no longer than two years.

“We can see that Afghan law gives men freedoms regarding domestic violence and the killing of women which they misuse,” said Latifa Sultani, head of the department of women’s rights at the Afghanistan Independent Human Rights Commission (AIHRC).

Quite apart from the human rights implications, Clause 398 showed clear gender bias, she continued.

Women can already be imprisoned under the loose category of moral crimes, which encompasses actions such as running away from home, and face prison sentences of up to five years if convicted of adultery.

 “If a man discovers his wife committing adultery with another man and kills her, he will be imprisoned for two years. However, if a woman finds her husband committing adultery with another woman and kills him, she will face the most serious punishment possible, and this is clearly discrimination and a problem with the laws of Afghanistan,” Sultani said.

Clause 398 was also being exploited to punish victims of sexual violence, too.

“Unfortunately, there are some cases there have some cases that have come before the courts in which rape has been deemed to be adultery, so that the woman ends up being imprisoned because of our male-dominated society that doesn’t believe in women’s rights,” she said.

Parwin Rahimi is in charge of the department to combat violence against women at the attorney general’s office.

She said that suspects often tried to exploit Clause 398 in order to minimize their sentence.

“Our investigations have shown that most murders and perpetrators of violence against women are not [related to honour killings], but there are some people who try to change their cases into ones of domestic violence in order to decrease their punishment,” she said.

Officials say that action is planned to amend the controversial clause.

“The ministry of justice is planning to bring changes in the criminal law of Afghanistan,” Sayed Mohammad Hashimi, a deputy minister at the ministry, told IWPR. He said that Clause 398 would be removed from the statute books and that all cases of murder would be treated as such.

However, international and Afghan human rights groups have long campaigned for the penal code to be brought into line with the international norms and the government has previously made such assurances without making any amendments to the law.

There were high hopes for the implementation of the Law on the Elimination of Violence Against Women, which was enacted by presidential decree in 2009 and prohibited a range of abuses from assault and rape to marriages that were coercive, involve minors or amount to a transaction between two families. However, the law was rejected by parliament in May 2013, and has been shelved ever since.

A culture of impunity had thus effectively encouraged sexual abuse and other forms of violence, Sultani explained, adding said that nearly 600 instances of so-called honour killings had been registered with the commission over the last five years. Most perpetrators had either evaded justice or received a lenient sentence at trial.

She said that the real figure was likely to be much higher, because of the culture of shame surrounding such cases.

 “When we hear about a case, we go to the families, to the hospitals, and speak to witnesses and document the case because honour killings are not often reported,” she said.

Shahla Farid, a lecturer of law and political science at Kabul university, said, “There are many reasons for domestic violence and women being killed; men consider women their property.”

She said that quite apart from the problems with Afghan criminal law, conservative traditions, poverty, illiteracy, and ignorance of Islamic precepts of human rights lay behind such murders.

Observers note that murders of this kind were often the result of men resorting to murder on the merest suspicions about female relatives, without even trying to establish whether their fears had any basis.

In a recent case in September 2016, 18-year-old Fariba  - a resident of Dahan Zara in Takhar province - was shot dead by her husband on her wedding night. He then escaped.

One of Fariba’s neighbours, Mirwais, said that she had not consented to the marriage.

“This girl wanted to marry another boy but was forced to marry this man, and when the groom and bride were carried home, she was immediately shot by her husband,” he said.

Razm Ara Hawash, head of the provincial women’s affairs department, said that the husband should have handed his new wife over to the courts if he believed a crime such as adultery had been committed.

Calling for the suspect’s arrest, she said that men had no right to take the law into their own hands.

In a similar case, lawyer Masoma Haidari said that she was currently working on a case in which a man living in the Kampany area of Kabul city who had killed his wife in September 2016.

Having been married for 13 years, the couple had no children and the husband recently took another wife.

But when the new wife conceived, he suspected her of sleeping with another man and killed her.

MISUSE OF AUTHORITY

Officials insist that action is being taken to address domestic abuse.

Spozhmai Wardak, a deputy minister at the ministry of women’s affairs, condemned all extra-judicial violence against women.

 “As well as running awareness programmes regarding women’s rights, the ministry also works together with relevant organisations and departments to arrest and punish those who violate women’s rights,” she said. “Serious action must be taken against domestic violence.”

Sidiq Sidiqi, spokesman of ministry of interior affairs, said, “Arresting those who violate women’s right is one of the priorities of the police.”

Rahimi added that the attorney general’s office was working hard to prosecute those suspected of domestic violence.

“Over 926 cases of violence against women have been registered with our office so far and 30 out of 926 cases are related to the killings of women,” she said, adding that 545 cases have been successfully investigated and 342 were still ongoing.

But others argue that a culture of impunity surrounding those who committed so-called honour crimes meant there was no deterrent to stop others following their example.

“The reason that women are killed or raped in families is that the criminals are not seriously punished; most of them avoid any punishment,” Sultani said, adding that corruption and the intervention of powerful people also had an impact on cases of domestic violence.  

There are persistent complaints of widespread graft in the judicial system. Women are at a particular disadvantage as, without financial resources or influential connections, they have little protection.

“Corruption and the misuse of authority means the people who murder or rape women and have connections to a [militia] commander, a lawyer or a judge are not punished,” she said. “They know that they are free from punishment and so feel free to murder and rape with impunity.”

Sultani added, “It is vital to increase public awareness of this issue and punish criminals in order to lower rates of domestic violence and the murder of women in our country.”

This report was produced under IWPR’s Promoting Human Rights and Good Governance in Afghanistan initiative, funded by the European Union Delegation to Afghanistan.