{"id":6828,"date":"2016-08-29T13:25:12","date_gmt":"2016-08-29T11:25:12","guid":{"rendered":"https:\/\/openasia.org\/en\/?p=6828"},"modified":"2016-08-31T13:28:46","modified_gmt":"2016-08-31T11:28:46","slug":"afghanistan-end-moral-crimes-charges-virginity-tests","status":"publish","type":"post","link":"https:\/\/openasia.org\/en\/2016\/08\/afghanistan-end-moral-crimes-charges-virginity-tests\/","title":{"rendered":"Afghanistan: End \u2018Moral Crimes\u2019 Charges, \u2018Virginity\u2019 Tests"},"content":{"rendered":"
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\"rts4ffi\"<\/a><\/p>\n

(Kabul) \u2013 Afghanistan\u2019s government should urgently act to end wrongful imprisonment<\/a> and humiliating, scientifically invalid \u201cvirginity exams<\/a>\u201d of women and girls, Human Rights Watch said today. Despite a pledge from President Ashraf Ghani in a February 2016 letter to Human Rights Watch to \u201cprevent the imprisonment of women accused of running away from their family,\u201d Afghan<\/a> police and prosecutors continue to engage in the abusive practice.<\/p>\n

\u201cPresident Ghani\u2019s promise to end the practice of arresting women and girls for \u2018running away\u2019 is an important step forward for women\u2019s rights in Afghanistan,\u201d said Heather Barr<\/a>, senior women\u2019s rights researcher at Human Rights Watch. \u201cBut to make a real difference, the president needs to issue a clear and binding order that immediately changes how every police officer and prosecutor handles complaints against women and girls. For too long, women and girls fleeing violence have been treated as criminals while their abusers go free.\u201d<\/p>\n

<\/div>\n

The government should take concrete steps to implement the promised reform and ensure that women and girls who have been the victims of violence are protected by the legal system, Human Rights Watch said.<\/p>\n

In Afghanistan today, hundreds of women and girls are imprisoned on charges of \u201cmoral crimes,\u201d Human Rights Watch said. These so-called crimes include \u201crunning away\u201d from home, and committing or attempting to commit zina, <\/em>or having sex outside of marriage.<\/em> Human Rights Watch estimated in 2013 that half of all women in prison and about 95 percent of girls in juvenile detention in Afghanistan have been arrested on \u201cmoral crimes\u201d charges. Human Rights Watch research<\/a> found that in most cases, the women and girls accused of these \u201ccrimes\u201d were fleeing forced child marriage or domestic violence. In some cases, women and girls who have been raped were charged with zina<\/em>, alongside their rapist.<\/p>\n

In a March 2016 letter to President Ghani, Human Rights Watch outlined five steps the government should take to fully implement the president\u2019s commitment to end imprisonment of women who run away from their families (see appendix). The steps include reforming the law so that \u201cmoral crimes\u201d are no longer grounds for arrest. Zina<\/em> is currently a crime under the Afghan Penal Code and is punishable by five to 15 years in prison. \u201cRunning away\u201d is not a crime under Afghan law, but police and prosecutors often treat it as a crime, sometimes bringing charges as \u201cattempted zina.<\/em>\u201d<\/p>\n

The Afghan government is currently drafting a new penal code. The new penal code should bring Afghanistan into compliance with international law by ending criminalization of consensual sex between adults, Human Rights Watch said. It should also include comprehensive penal provisions providing a clear and inclusive definition of sexual assault, incorporating rape and marital rape. The penal code should also adopt a clear provision regarding the age of consent to sex identical for boys and girls, set tough penalties for an adult who has sex with a child below the age of consent, and ensure that such children are treated as crime victims and not targeted for zina<\/em> accusations.<\/p>\n

\u201cAdopting a modernized penal code would be a crucial advance for Afghan society,\u201d Barr said. \u201cPresident Ghani should ensure that the new law upholds women\u2019s rights under both the Afghan constitution and international law, by removing all references to \u2018moral crimes\u2019 and adding new provisions to protect women and girls from abuse.\u201d<\/p>\n

Human Rights Watch also called on the government to ban all use of \u201cvirginity examinations.\u201d At present, women and girls accused of \u201cmoral crimes\u201d are routinely subjected to invasive vaginal and rectal examinations by government doctors. These examinations purport to provide information regarding whether the woman or girl is a \u201cvirgin\u201d and whether she recently or habitually engaged in sexual intercourse. Reports describing these findings are used in criminal prosecutions and frequently contribute to convictions and long sentences for women and girls found guilty of \u201cmoral crimes.\u201d<\/p>\n

In reality, so-called \u201cvirginity tests\u201d have no scientific validity. Their use is based on the mistaken belief that \u201cvirginity\u201d can be determined by examining a woman or girl\u2019s hymen to determine whether it has been broken during sexual intercourse. In fact, some girls are born without a hymen, hymens often break during daily non-sexual activities, and some hymens remain intact after sexual intercourse. These factors make \u201cvirginity examinations\u201d so unreliable that the World Health Organization has said that they have no scientific validity and health workers should never conduct them.<\/p>\n

\u201cPresident Ghani can end the abusive and unscientific use of \u2018virginity exams\u2019 with the stroke of a pen,\u201d Barr said. \u201cIt\u2019s well past time he did so.\u201d
\nHuman Rights Watch letter to Ashraf Ghani regarding \u201cmoral crimes\u201d and \u201cvirginity exams\u201d <\/em>
\nAppendix to March 17, 2016 letter from Human Rights Watch to the Government of the Islamic Republic of Afghanistan responding to the January 29, 2016 \u201cStatement by the Government of Afghanistan on the Human Rights Watch Report\u201d<\/strong><\/p>\n

Re: Government of Afghanistan reforms regarding \u201cmoral crimes\u201d charges<\/p>\n

This memo is a response to the following passages in the statement issued by the Afghan government:<\/p>\n

In order to prevent the imprisonment of women accused of running away from their family, the President recently asked the Supreme Court to issue a ruling on the application of article 130 of the Constitution that is the basis for the courts\u2019 decision to sentence such women. In December 2015, the Supreme Court issued a judicial ruling that bars judges from imprisoning women for running away from family.<\/em><\/p>\n

Running away from home is not defined as a crime by law, but from the misinterpretation of a constitutional provision that has created a wrong practice, which is now being stopped.<\/p>\n

Since the statement was issued, Human Rights Watch has made requests to the President\u2019s Office for a copy of the Supreme Court judicial ruling alluded to above, and has received some clarifications regarding the contents of the ruling, but not a copy of the actual ruling.<\/p>\n

We understand that it is accompanied by a second document, a paper prepared by the research and studies directorate of the Supreme Court that responds to questions from the President\u2019s Office regarding whether zina charges should be brought against victims of rape. Our understanding is that this paper states that the scholars have reached a consensus that a haram act of zina has occurred only when a mature person with full consent has committed it, therefore a person who has not consented to zina but has been forced to engage in sexual intercourse is instead under law a victim of rape.<\/p>\n

We would be very grateful if you could share with us a copy of the full text of these two documents. Our comments below are based on the statement above and the clarifications we have received from the President\u2019s Office.<\/p>\n

We commend the Afghan government, and in particular President Ghani, for taking up these two important issues: 1) the practice of charging women and girls with the so-called offense of \u201crunning away\u201d; and 2) the practice of charging women and girls with the offense of zina when they have been the victims of sexual assault or statutory rape.<\/p>\n

Human Rights Watch has been calling for reform on these issues for many years, including most recently in a 2012 report<\/a> based on 58 interviews with women and girls imprisoned for \u201cmoral crimes,\u201d as well as several follow-up statements<\/a>, which documented a sharp increase<\/a> in the number of women and girls imprisoned on these charges.<\/p>\n

The previous administration had been unwilling to pursue reform on this issue. We also noted with dismay the memos issued by the Supreme Court in 2010 and 2011, in which the Court advised that \u201crunning away\u201d should be treated as a crime if a woman or girl flees somewhere other than to a relative.<\/p>\n

We appreciate the steps that your government has now taken, and hope that the government will follow through vigorously to ensure that the proposed changes are fully implemented and have the desired effect of ending these harmful and illegal practices. The following are some key steps that we believe are necessary in this regard:<\/p>\n

1)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Reform the Penal Code provisions on \u201cmoral crimes\u201d and sexual assault<\/strong><\/p>\n

Under international law, Afghanistan has an obligation to end all arrests and prosecutions of \u201cmoral crimes.\u201d International law does not support the criminalization of consensual sex between adults. As part of the revision of the Penal Code, the government should remove articles 426 and 427 from the Penal Code, and replace them with comprehensive penal provisions providing a broad and inclusive definition of sexual assault, incorporating rape and marital rape. The government should also adopt clear law regarding the age at which a young person can consent to sex, set tough penalties for an adult who has sex with a child below the age of consent, and ensure that such children are treated as crime victims and not targeted for zina accusations. We urge the government to consider the guidance from the United National Handbook for Legislation of Violence Against Women<\/a> in regard to formulating these provisions.<\/p>\n

Until Afghan law is reformed to abolish \u201cmoral crimes,\u201d we recommend that the government take the following steps to stop the harmful practices of charging women and girls with \u201crunning away\u201d and charging rape and statutory rape victims with the offense of zina.<\/p>\n

2)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>Abolish not only \u201crunning away\u201d charges but also \u201cattempted zina\u201d charges<\/strong><\/p>\n

As the Supreme Court has noted, \u201crunning away\u201d is not an offense under the Penal Code, and should never be used as grounds for arrest, detention, prosecution, or conviction. However, Human Rights Watch\u2019s research indicates that ending the practice of charging women and girls with \u201crunning away\u201d will not be sufficient to end abuses by justice officials in \u201crunning away\u201d cases. The use of \u201crunning away\u201d charges seems to have diminished in recent years, in recognition that \u201crunning away\u201d is not an offense under statutory law, but that does not appear to mean that women and girls who would have been charged with \u201crunning away\u201d now go free. Instead, police, prosecutors and judges appear to be moving ahead with arrest, prosecution and conviction in many of these cases, but doing so under the rubric of \u201cattempted zina\u201d rather than \u201crunning away.\u201d<\/p>\n

Police, prosecutors, and judges have argued to Human Rights Watch that, in their view, \u201cattempted zina\u201d charges are justified when there is evidence that a woman or girl left their family\u2019s home without permission, or was in a location where \u201cshady things are happening,\u201d or was in the company of a man who is not a halal relation.<\/p>\n

In our view, this is a misapplication of Afghan law, as well as a violation of Afghanistan\u2019s obligations under international law. None of these circumstances meet the requirement of Penal Code article 34, which requires that in order for a finding of criminal intent, \u201cthe will of the doer to commit an act which produced the crime.\u201d Charging an individual with a crime based on the attempt to commit any offense, including zina, also requires that the facts satisfy the following requirements of article 27 of the Penal Code:<\/p>\n

(1) Initiation of a crime is the starting of an act with the intention of committing a felony or misdemeanor, but whose effects have been stopped or offset by reasons beyond the will of the doer.<\/em><\/p>\n

(2) Only the decision to commit a crime or performance of preliminary works is not considered initiation of crime.<\/p>\n

The fact that a woman or girl has fled her home, has spent time in an unsafe or unsupervised location, or has been in the company of a man who is not a halal relation cannot reasonably be seen as sufficient evidence that this woman or girl has \u201cstarted the act\u201d of committing zina. It is very difficult, in fact, to identify circumstances in which zina has not occurred, but the evidence would legitimately support a finding that an individual has started \u201can act with the intention of committing\u201d zina.<\/p>\n

Charging individuals with attempted crimes makes sense in cases where it can be clearly determined that an attempt has taken place but has not been completed: for example, a murderer fires a gun at the intended victim, but misses, or a burglar breaks the window of a home but is attacked by a dog before entering. There is no comparable set of facts in regard to the offense of zina; rather the charge of \u201cattempted zina\u201d has been used by prosecutors to continue the practice of prosecuting women and girls for \u201crunning away.\u201d<\/p>\n

The government\u2019s decision to end the prosecution of women and girls for \u201crunning away\u201d will not have its full effect \u2013 or perhaps even an incremental effect \u2013 unless the government also prohibits police and prosecutors from pursuing \u201cattempted zina\u201d charges. We urge you to do so.<\/p>\n

3)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>Direct justice officials to inquire into consent in all zina prosecutions<\/strong><\/p>\n

The government has taken an excellent step by instructing that victims of rape should not be charged with zina. However, this reform should not require rape victims to bear the burden of defending themselves from a charge of zina by raising lack of consent. Instead, the government should instruct all police and prosecutors that in all zina cases they should investigate whether women and girls gave their consent to sex, from the earliest stages of arrest and throughout the duration of the case. Judges should be offered training on this issue.<\/p>\n

In the event that evidence indicates that one or more individuals did not consent to sexual intercourse or were below the age of consent, those individuals should be treated as crime victims. There should be no criminal charges brought against victims, and any pending charges should be dropped immediately and victims informed of this. As warranted by the evidence, the perpetrator or perpetrators should be charged with sexual assault (under a revised Penal Code) or rape under the Law on the Elimination of Violence Against Women (article 17).<\/p>\n

Police should also be informed and trained regarding their responsibility to detect cases of sexual assault and rape and to refer for prosecution all matters where evidence suggests that a rape or sexual assault has been committed.<\/p>\n

4)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>Inform justice officials of new rules on \u201crunning away\u201d and rape cases, and ensure full compliance.<\/strong><\/p>\n

In Afghanistan, as in many countries, there are often significant gaps between the instructions issued by the central government and the practice of police and prosecutors at the provincial and district level. In order to ensure that full implementation of the government\u2019s ban on the use of \u201crunning away\u201d charges and the charging of rape victims with the offense of zina, the government should take steps to distribute clear and compulsory guidance on these two issues to all police station and prosecution offices. Justice officials who do not comply with the new rules should face employment sanctions up to and including dismissal.<\/p>\n

This information should also be made available to judges at the provincial and district level.<\/p>\n

5)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/strong>Ban all use of \u201cvirginity exams\u201d<\/strong><\/p>\n

As the Afghanistan Independent Human Rights Commission (AIHRC) documented in a recent report, the vast majority of women and girls accused of \u201cmoral crimes\u201d are subjected to vaginal and rectal examinations \u2013 sometimes repeatedly \u2013 performed by government doctors. These doctors then prepare reports, which are used in criminal prosecution, which purport to provide information regarding whether the woman or girl is a \u201cvirgin\u201d and whether she recently or habitually engaged in sexual intercourse. In the AIHRC study, out of a sample of 53 women and girls as young as 13 who had been accused of \u201cmoral crimes,\u201d 48 had been sent for \u201cvirginity exams.\u201d Twenty were examined more than once \u2013 up to four times in two cases. One woman said that there were six people in the room watching the examination.<\/p>\n

So-called virginity examinations have no scientific validity. Many people mistakenly believe that virginity can be determined because the hymen is always broken when a woman or girl has sexual intercourse for the first time. In fact, some girls are born without a hymen; hymens often break during daily non-sexual activities; and some hymens remain intact after sexual intercourse. Purported virginity exams are so unreliable that the World Health Organization has said that they have no scientific validity and health workers should never conduct them.<\/p>\n

There is no requirement in Afghan law that \u201cvirginity exams\u201d be conducted or submitted into evidence in criminal proceedings. President Ghani should immediately, by decree, ban all government doctors from performing \u201cvirginity exams\u201d and ban all prosecutors from submitting reports gathered through such exams into evidence.<\/p>\n

Source: Human Rights Watch<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

(Kabul) \u2013 Afghanistan\u2019s government should urgently act to end wrongful imprisonment and humiliating, scientifically invalid \u201cvirginity exams\u201d of women and girls, Human Rights Watch said today. Despite a pledge from President Ashraf Ghani in a February 2016 letter to Human Rights Watch to \u201cprevent the imprisonment of women accused of running away from their family,\u201d Afghan police and prosecutors continue to engage in the abusive practice.<\/p>\n","protected":false},"author":2,"featured_media":6829,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6,51,19,89,5,85,43,11,17,49],"tags":[],"class_list":["post-6828","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-afghanistan","category-child-rights","category-citizens-and-civil-society","category-events","category-geography","category-human-rights","category-human-rights-online-library","category-issues","category-women","category-womens-rights","country-afghanistan","Documents-conventions"],"acf":[],"_links":{"self":[{"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/posts\/6828","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/comments?post=6828"}],"version-history":[{"count":3,"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/posts\/6828\/revisions"}],"predecessor-version":[{"id":6831,"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/posts\/6828\/revisions\/6831"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/media\/6829"}],"wp:attachment":[{"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/media?parent=6828"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/categories?post=6828"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/openasia.org\/en\/wp-json\/wp\/v2\/tags?post=6828"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}