Shame and Impunity: Is sexual violence on the rise?

Shame and Impunity: Is sexual violence on the rise?

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Published in Afganistan Analysts

By Author: Wazhma Samandary on 30 November 2014

A father raping his daughter over almost ten years without the family daring to intervene (except to help with abortions); a woman burnt after a family fight; another woman mutilated because her husband enjoyed doing so – these are just some of the cases of violence against women and girls that have been reported in Afghan media over the past months. AAN’s Wazhma Samandary (with input by Ehsan Qaane and Christine Roehrs) has gathered the most prominent cases and ponders issues that arise. One is the role of the media: while they contribute to creating awareness of domestic violence and support for its victims, they also often act with little regard for victims’ safety or psychological well-being. Samandary also looks at the claims of women’s rights activists that domestic violence is becoming more brutal and that the increasing level of organisation of women’s rights groups is triggering a wave of violent counter-responses by men. She concludes by calling for more respect towards victims.

On 17 February this year, AAN provided an update of cases of violence against women that media had reported in prior months. This dispatch starts with another such update, covering reports on violence against women and girls during the past eight months. These are some of the cases:

November 2014, Takhar: armed men kidnap and rape a girl

On 14 November, Tolo TV reported that an approximately 12-year-old girl was abducted from the Yangi Qala district of Takhar province and then raped by armed men. Police officials told Tolo TV that they had found the girl in a forest near the Amu river; there was no further information on her condition. The mother of the victim told Tolo TV that “the man who is known as Rohullah came to our home at night and tortured my 12-year-old daughter and myself, threatening us to hold still as he had two more armed men on the roof. Then they took away my daughter.” One of the perpetrators – it is not clear whether it was Rohullah – was arrested and confessed that he had been on drugs when he committed the crime; the police are still searching for his collaborators. The father of the girl declared he would burn himself and his children if he was not given justice.

November 2014, Badakhshan: armed men rape a woman and get away with it for five years

On 3 November, media reported the rape of a woman that had happened five years earlier in northern Badakhshan. According to the reports, the wife of Jahangir, a border policeman, had been raped by a group of armed men while he was away. Only two of the perpetrators were arrested at the time, but were soon released. Afterwards, the perpetrators threatened the husband with death if he followed up on the case. However, as Jahangir said in an interview with Tolo TV, he lodged complaints with former President Hamed Karzai, allegedly several times, but nothing happened. He also said he now wanted to seek justice from the new government. “I want President Ghani to serve justice,” he said, and if he did not get justice he would burn himself and “my children and wife on the road.” One day after the interview, on 4 November, the BBC reported that Jahangir had received a call from President Ghani promising that he would take up the case.

September 2014, Kabul: a father raped his daughter for several years

On 9 September, it came to light that a young woman from Kabul, Khatera, 22, had for years been raped by her father. It is not yet publicly known when the abuse started, but Khatera became pregnant from her father for the first time when she was 14 years old. Since, she had five more pregnancies – one every year. Her first four children were aborted in hospitals with the collusion of her family, but the fifth was born three years ago. Khatera is now pregnant with her sixth child. In an interview with Khorshid TV on 9 September, she said that she did not know what she should do with the sixth child – and if she should call it sister or daughter. She said she was ashamed of her father. Her mother admitted in the video interview with Khorshid that she and Khatera’s two brothers knew that the father raped the girl, but kept silent because they were afraid for their lives. The two brothers at some point left because they found it “impossible to tolerate this big, shameful disgrace.” The perpetrator is now in jail and the attorney general’s spokesperson, Basir Azizi, told Khorshid TV that the attorney general will “demand the severest punishment.”

Qudsia Niazi, the head of a special unit at the attorney general’s office dealing with cases under the Elimination of Violence against Women Law (EVAW), told AAN that the case was still under investigation, though, so the primary court had not yet taken it on. Niazi said that proof that Khatera had been pregnant so many times was yet insufficient; it also still needed to be proven that the three year old child as well as the one Khatera is pregnant with have indeed been fathered by her own father.

September 2014, Kabul: a father raped his daughter for about one year

The victim in another case of incestuous rape is Sahiba, 17, one of nine children in her Kuchi family, who has repeatedly been sexually assaulted by her father for almost one year. The case came to light when one night Sahiba decided to go to the police. 1TV reported on the case on 9 September; Sahiba now lives in a shelter. The mother of the victim told 1TV that the father had started abusing Sahiba when they were still living in Laghman, before the family moved with their nomad tent to the Qarabagh district of Kabul five months ago. The atmosphere between the spouses seemed to have been tense, with the father and mother continuously arguing. The perpetrator was arrested and jailed; his wife and sons are demanding the death penalty. One son, 19, has announced that he would kill his father (more 1TV reports on the family).

The trial took a dramatic turn for the worse for the girl, though. At the first session on 19 October at the primary court in Kabul, Sahiba’s father claimed that Sahiba had had a sexual affair with a boy, presenting 20 eyewitnesses testifying that they saw the boy with her several times and also noticed the boy coming out of the family’s tent, alleging that the girl must have had “sexual contacts with the boy.” In addition, the medical examination apparently found no proof for Sahiba’s claim that her father had committed acts of ‘sodomy’ (Dari: lawat; however, proving that sodomy took place is generally difficult) while it did prove that Sahiba was no longer a virgin. This meant – at least to the court – that Sahiba and her two eyewitnesses, mother and one brother, had lied when testifying. In cases like these, judges can choose to apply article 31.2 of the Criminal Procedure Code that says, “the eyewitness is bound to tell the truth and in case if he/she omits the truth, he/she should be prosecuted based on principles of this law.” The judge chose to apply it, considering it together with the accounts of the father’s eyewitnesses, and all three of them were jailed. It seemed not to have appeared strange to the judge that none of the 20 eyewitnesses did anything about ‘the boy’s sexual contacts with Sahiba’ earlier.

Susan Sadaat, the defence lawyer for Sahiba told AAN that the case has been sent back to the attorney general’s office “for reinvestigation without a final decision by primary court because of the new accusations against Sahiba.”

September 2014, Daikundi: a man cuts off the nose of his wife

On 27 September, in the Shahrestan district of Daikundi, the husband of Chaman Gul, 20, cut the young women’s nose off with a scythe. According to Jawad Dadgar from the Afghanistan Independent Human Rights Commission (AIHRC) in Daikundi, which had been following the case closely, Chaman Gul had also been beaten severely several times, “usually for household problems.” When the man wanted to take Chaman Gul to her father’s house to kill her, neighbours saved her, she later told Dadgar. Before the husband could be arrested, he escaped, allegedly joining a group of Taleban in Gizab district. Dadgar also told AAN that Chaman Gul has been transferred to Kabul for treatment and now lives in a shelter. The husband is still on the run.

August 2014, Kabul city: a man burns his pregnant sister-in-law

On 12 August, an appeal court sentenced a man to death for having burned alive his brother’s pregnant wife, basing the sentence on article 20 of the EVAW law and article 402 of the penal code of Afghanistan. Article 20 of EVAW says that “If a person burns a woman or spray [sic] chemical or other poisonous substances on her body causing injury, or makes her eat a poisonous substance or injects it into her body, the offender in view of circumstances shall be sentenced to long term imprisonment not exceeding ten years.” (1) It adds that “If the commission of acts included in paragraph 1 of this Article is for the purpose of establishing fear in society in order to prohibit women from exercising their civil rights or results in the death of victim, considering the circumstances the offender shall be sentenced to long term imprisonment or to death penalty” (text as copied from the official English translation of the EVAW law). Article 402 of the Afghan penal code says, “A person who intentionally causes the abortion of a human fetus by beating or any other harmful means shall be sentenced to long imprisonment not exceeding seven years.”

The man first threw fuel on the victim, then set her on fire; the woman and her unborn child died. The perpetrator claimed in court that the victim had been fighting with his family. Qudsia Niazi, the head of the EVAW special unit at the attorney general’s office in Kabul, told AAN that the case was currently under process in the appeal court.

August 2014, Takhar: a man tortures and mutilates his wife

Five days before Eid al-Fitr, on 22 July, a man from Takhar tortured his wife, slicing her genitalia with a knife. Sadia is 20 years old. She married when she was 17; her husband is three times her age. Obaidullah Mansur, Sadia’s defence lawyer, told AAN that during the three years of her married life, Sadia’s husband had attacked her regularly. According to a Tolo TV report, her husband had tied her hands and legs so she could not move, then took a knife and started cutting into her genitalia. Currently, Sadia is getting medical treatment at a safe house in Taloqan, Takhar’s capital; her husband is in jail.

During a court session in Takhar on 17 August, he claimed that his wife had attempted to kill him by mixing glass in his food. Officials of the Takhar provincial public health department said they could not find proof for that after examining the man. Razem Arah Awash, the head of the Women Affairs Directorate of Takhar, told AAN that the court decided to sentence the perpetrator to three and a half years of imprisonment, basing the decision on article 22 of EVAW law (2) and article 407 of the penal code. (3) The appeal court confirmed the decision on 12 October. Defence lawyer Mansur also told AAN that he was “not happy” with the court decision. “The perpetrator would have deserved a more severe punishment,” Awash told AAN, though “the perpetrator had powerful people behind him. It was already quite hard to achieve this period of imprisonment.”

July 2014, Balkh: a man forces his wife to commit suicide

Some four months ago (the concrete date is not known), a man named Abdul Shokur from Balkh province forced his wife, Malina, a mother of six, to commit suicide. There had been “family conflicts.” On 15 July, in the appeal court session, the man denied the accusation and claimed that he “had not had any problems with his wife.” Nevertheless, the appeal court sentenced him to seven years imprisonment based on article 21 of the EVAW law that deals with perpetrators forcing “a woman to commit self‐emollition, suicide or spray chemical or other poisonous substances on herself.”

April 2014, Kunduz: a mullah rapes a girl

On 2 May, Tolo News reported on Breshna, a girl of 11 years from northern Kunduz, having been raped by her mullah on 29 April. Breshna had been sent to the mullah to learn the Quran. The girl was taken to the hospital; the mullah was arrested. On 26 October, in a court session in Kabul, he was sentenced to 20 years imprisonment and a fine of 1,500,000 Afghanis. On 26 October, ToloTV broadcasted an interview with the victim, which was harshly criticised by some women’s rights activists and media institutions for showing pictures of the victim’s face which, they feared, might lead to the social isolation of the girl in the future.

August 2014, Kabul: a group of men gang-rapes several women

The case that received the greatest attention among the cases of violence against women reported by Afghan media in recent months was the Paghman gang rape. On 28 August, a group of ten armed men dressed in police uniforms stopped a car in Paghman district near Kabul. They forced the passengers, men and women, out of the car, tied up the men and took the women’s jewellery. Some of the men raped four of the women, one of whom was pregnant. The family had been on its way home from a wedding party.

The case resulted in a public outcry and in a vigorous reaction by former president Karzai, demanding the death penalty for the perpetrators. Seven alleged perpetrators were arrested on 3 September.

Just a few days later, on 7 September, the primary court in Kabul sentenced all seven arrested men to death. Angry protesters outside the court supported the decision, demanding that the men be hanged. In the appeal court session on 15 September five of the perpetrators were sentenced to death and two to 20 years’ imprisonment based on articles 6 and 7 of the Law on Human Trafficking and Abduction, (4) article 427 of the penal code (5) and article 15 of Crimes Against Internal and External Security (6). After the decision by the appeal court, Karzai signed the death penalties on 27 September. The men were hanged at Kabul’s Pul-e Charkhi prison on 8 October.

This case and how it was handled by the Afghan authorities received much attention in the Afghan media and public. It also triggered reactions from international diplomats and human rights organisations that have consistently argued against the use of the death penalty in a country where the justice system is known to be marred by corruption and lack of professionalism; these critics argued that there was no due process in this case.

AIHRC spokesperson Rafiullah Bidar said in an interview with Azadi Radio on 7 October, “The defense lawyers of the Paghman perpetrators were not given enough time during the courts session to present their defense.” During an appeals court session on 15 September, the alleged perpetrators complained that their faces had been exposed to the media before there was evidence of their guilt. One of the alleged perpetrators claimed that he had been tortured to confess. Also the new president, Ashraf Ghani, was criticised for failing to stop the executions and have the case reviewed. Amnesty International called the executions an “affront to justice” and Franz-Michael Skjold Mellbin, the EU ambassador in Kabul, wrote on his Twitter page that “Today’s executions cast a dark shadow over the new Afghan Government’s will to uphold basic human rights.”

Media not protective enough of victims’ privacy or safety

But there are more issues to watch regarding the Paghman case and the others on our list. With many high-profile cases occurring on a regular basis, one issue is the role of the media, Afghan as well as international, in creating momentum against domestic violence, and resulting in more public awareness and support for the victims, but also causing concerns regarding the protection of victims’ safety and their privacy or psychological well-being.

Local and international media regularly choose to publish reports disclosing personal details of victims, including their name, their home district or even village and their face. One example is widely broadcast scene in which two of the victims in the Paghman case, in a crowded corridor of a government building, are pointing out their perpetrators from a line of suspects. Staged probably to display the justice sector’s willingness to respond to the public outcry, the scene, however, put the raped women on a stage that they will have a hard time escaping from ever again. Not only have they been publicly portrayed as victims, which can psychologically re-victimize women. Such practices also make them known to their communities and beyond as women who had sexual intercourse outside marriage. In Afghan society, it often does not matter that the woman has been forced. This has been proven repeatedly by cases in which rape victims were killed by their own relatives, who argued that they had harmed the family’s honour. The women’s names often remain tainted.

Ruqia Sarwary, a legal advisor from the Ministry of Women’s Affairs (MoWA), for example worried about Khatera, the rape victim from Kabul, after watching her interview on Khorshid TV in which the girl was “clearly recognizable.” Another prominent example is the media coverage on Lal Bibi’s case. This 18-year-old girl from Kunduz had been abducted by an ALP commander on 17 May 2012 and subsequently raped and tortured.The photos of Lal Bibi show the girl clearly distressed and anxious, wide eyed and close to tears. Lal Bibi and her mother had apparently been wearing burqas, but were asked by journalists to remove their veils.

Also, in the recent case of Breshna, the 11-year-old girl raped by her mullah in Kunduz, the nation knows exactly what the victim looks like and where she lives. AAN spoke to Breshna’s uncle who accompanied the girl to Kabul for the continuation of the court case. He told AAN that “Breshna cannot go to school anymore and also not to the madrassa. She is isolated and feels ashamed to speak to other children. It was a bad thing to publish her pictures and show her face on TV.”

Media organisations such as NAI or the South Asian Free Media Association (SAFMA) now call for more decency when dealing with victims. NAI’s most recent statement reminded journalists that “Article 45.7 of the Mass Media Law does not allow media to show pictures of victims of criminal offenses if they damaged the victim’s dignity.” In some of the cases mentioned above, victims contacted media themselves or offered to tell the story, but also in these cases – maybe particularly here – the media should recognise its specific responsibility to them. Victims are often illiterate and probably always distressed and emotional at the time they are giving interviews. They probably do not understand the consequences the media exposure might have for their lives.

Incest – a gap in the laws

Another obvious detail in the list of recent cases is the number of incestuous rapes and the confusion within the legal system about how to deal with them. Incest – sexual intercourse between close relatives – is not a new type of crime in Afghanistan, but the Afghan penal code does not include specific regulations to address it.

Article 429, established in 1976, does cover the crime of rape (tajawoz jensi). It states that “A person who, through violence, threat, or deceit, rapes another one (whether male or female), or initiates the act, shall be sentenced to long imprisonment, not exceeding seven years.” It does not address rape within the family or even rape of children within the family – incidents that are usually regarded as even harsher offenses. For these offenses, lawyers or judges used to refer to an additional article, 427, that provided guidance regarding eight special circumstances that might increase the severity of the punishment, with prison sentences of up to ten years. Article 427 did indeed mention “the case where the person against whom the crime has been committed is a relative, up to the third degree of the offender.”

However, in 1977 article 427 was amended, removing the list of additional items. Now it only addresses adultery (zena, sex outside the marriage, but a consensual act among adults), prescribing punishment for anyone involved. With this, the Afghan state has removed additional safeguards for victims, particularly victims raped within the family or even children raped within the family – an odd decision as the Afghan society traditionally values the family as the safest place of all, especially for women and children.

The only other regulation in the Afghan laws addressing rape of family members (tajawoz jensi ba mahroom) exists within the EVAW law, article 17 paragraph 5 (“If the victim of paragraph 4 [paragraph 4 refers to women raped] has not reached the age of 18 or the perpetrator of the crime is a close relative up to degree 3. . .”) – a law that is still often bypassed by courts. Judges prefer to use the penal code, because they are either not familiar with EVAW or consider it as not ‘rightful’ as it has not yet been approved by the parliament. The UN Assistance Mission UNAMA in its 2013 report about the implementation of the EVAW law said, “the overall number of cases processed by the courts under the EVAW law in UNAMA’s sample remained relatively small.” It continues, “From data obtained in 16 provinces, over the one-year period, UNAMA observed that 61 per cent of violence against women cases tried in courts – or 108 of 178 cases – resulted in conviction.” From these 108 cases the courts used the EVAW law in 56 per cent of adjudicated cases or in 60 of 108 cases.

The lack of familiarity with legislation regarding these issues also showed during the execution of the Paghman gang rape case, where sentences were based on article 427 of the penal code, which, as discussed, covers adultery, not rape.

Are cases becoming more brutal?

Another question arises, reading through the list provided at the beginning of this dispatch: Is domestic violence in Afghanistan becoming more brutal? Some women’s rights activists claim it is, citing an increase in particularly cruel incidents over the past two years. Qazi Fawzia from the AIHRC told AAN, “we hear of a lot of women being mutilated. In the past, this kind of crime might have occurred, but rarely. Now, the number is increasing.” However, the question remains whether anyone can say this with certainty – or if the fact that more cases are surfacing is due to better reporting and more awareness. Suraya Parlika, who has been a women’s rights activist for decades, suggests that “some acts of violence as the cutting off of nose might have increased recently because men copy crimes they hear or read about.”

However, given the very limited information about past violence against women in Afghanistan (attempts at monitoring only started a few years ago and remain patchy), it is difficult to reliably determine whether the character of the violence has changed. UNAMA in its last report emphasized again that incidents of violence against women remain underreported, especially in rural areas: “Those incidents that reach law enforcement and judicial authorities or receive public attention represent only a small percentage of thousands of incidents of violence against women throughout the country.”

Aziza Adalatkhwa, head of the legal department in the Ministry of Women’s Affairs, raises another question: does the increasing belligerence of Afghan women insisting on their rights – a small group, still, but occasionally a loud one – trigger a counter-reaction that finds its expression in attempts to exert more control over women, for example by using force? Indeed, the debate of the EVAW law in parliament in 17 May 2013 alone resulted in extremely emotional, partly violent reactions. The general assumption makes sense: the more resistance, the greater the urge, particularly of conservative men, to control a society where traditional values and practices often still trump the rule of law. Aziza Adalatkhwa says, “Some from the conservative segment of the society, which is even against granting the most basic rights to women, try to silence women by committing cruel acts of violence against them. They want to create fear among the women, they want their obedience.”

According to the statistics of the Ministry of Women’s Affairs, 5,406 cases were registered in 2013, while it had been 4,505 cases in 2012, illustrating a 16 percent increase in the violence registered. Reliable figures for 2014 are not yet available. But whether domestic violence is on the rise or not, becoming more cruel or not, it is still aided by a weak justice sector and a culture of impunity, accompanied by victims’ fear of social stigma and of reprisals. “This results in a lot of families not reporting cases,” says Ruqia Sarwary, a legal advisor from the MoWA, “allowing men to think they can get away with committing acts of violence. And if violence is not stopped right at the beginning, there is a chance it is getting more and more evil.”

Calling for more respect for victims

The new president of Afghanistan has made women’s rights a focus for his government. But it remains to be seen if this is lip service or if progress will be real. On 25 November, the Ministry of Women’s Affairs announced an initiative “to curb violence against women.” The initiative includes cooperating with mullahs who are supposed to talk about women’s rights in mosques, media initiatives and conferences. But this is a 16-day campaign only.

While certainly not the only issue on the new government’s agenda, continued work on violence against women and girls will be important. This will involve continuing to familiarise police, prosecutors and judges with these issues and the existing laws and regulations. It also includes a push for the approval of the Family Law – a law that would back up women’s basic rights and freedom within the family and that would help to prevent traditional practices such as baad marriage (marrying off girls or women as ‘compensation’ for a crime), under-age marriages or polygamy. This law has not yet been passed, although it had been promised for 2014 by deputy justice Minister Sayed Yusuf Halem and Abdul Rauf Herawi, the head of the Presidential Decrees Unit.

AAN researchers working on this dispatch also think more attention must be paid to the victims and how they are dealt with within the legal system and in broader society. AAN was disturbed by the utter disrespect that shone through in many of the interviews and scenes witnessed. One judge, talking to AAN, joked about one of the female victims’ ugliness (“she can be glad she was given away for baad marriage, I don’t think she would have gotten a husband otherwise”). In Khatera’s case, who had been raped by her own father for years, AAN repeatedly met, even from women’s rights activists, the suspicion that the girl must have been “immoral.” One activist said, “Maybe she wanted this herself. Otherwise, why would she have kept silent for years and tolerate this big disgrace?” Another pondered whether the whole family “was immoral. Why did her mother and brothers not stand up against the father?”

The general suspicion that victims of violence did something to ‘deserve’ what they went through, or somehow contributed to the deeds hurting them, needs to be countered by intensified public education. This also must tackle the aspects of shame and stigma that hinder many victims from reporting crimes committed against them as well as the terminological confusion in the laws.

Cases like Sahiba’s or the Paghman rapes – where the female victims became a very public part of the government’s show of force – also demonstrate that in the perception of the Afghan legal system, domestic violence is more about the perpetrators, less about the victims. However, as long as legal and societal reforms do not put the victim first, domestic violence cannot be eliminated.

 

(1)  The Afghan law divides the terms of punishment for crime into six categories: execution, continued imprisonment from 16 to 20 years, long imprisonment from 5 to 16 years, medium imprisonment from 1 to 5 years, short imprisonment from 24 hours to 1 year and cash punishment. For the conditions that aggravate punishment, see the following penal code regulation.

Chapter Six

General Aggravating Conditions

Article 148

Without prejudice to the special conditions of aggravation of punishment anticipated in this

Law, general aggravating conditions are:

  1. When the motive of crime is low and corrupt.
  2. When the crime takes place in realization of weakness of the senses of the person against whom a felony is committed or his inability to defend himself.
  3. When the crime is committed in a savage manner or the person against whom a felony is committed has been disfigured.
  4. When an official of public services, making use of his official prestige and influence, commits a crime.
  5. When, making use of the state of economic crisis, crime is committed.

Article 149

If an aggravating condition is present in the crime, the court can order as follows:

  1. To death, in cases the anticipated punishment is continued imprisonment.
  2. To more than the maximum of punishment, in cases where the anticipated punishments are long, medium or short imprisonment provided it does not exceed the double of maximum of principal punishment. In any case, the aggravation of long imprisonment cannot exceed twenty years.

(2) “If a person beats a woman, considering the mitigating and aggravating circumstances, the offender shall be sentenced in accordance with Article 407 – 410 of the Penal Code.”

(3) “A person who intentionally beats and lacerates another such that some bodily member of the latter is cut, injured or defeated, or that the person permanently becomes handicapped or that the latter is deprived of one his senses, in addition to compensation, shall be sentenced to medium imprisonment of not less than three years.”.

(4) “Any person who abducts another person by threatening, using of force or any other type intimidation or by using of intoxicating substances, he/she shall be sentenced to long imprisonment of not less than 12 years.” For the Human Trafficking and Abduction Law google “Decree of the president of Islamic Republic of Afghanistan concerning the enforcement of the Law on Combating Abduction and Human Trafficking.” PDF-version. No link available).

(5) “If the victim of abduction is exploited through employment to sexual activities and provision of pictures and movies prejudicial to public morality (pornography), the perpetrator shall be sentenced to continued imprisonment.”

(6) “Armed Looting (Banditism): Anyone organizing armed attacks on institutions, state offices, or social, economic, and private facilities, corporations and joint cooperatives, and individuals, in order to loot or cause damage, including participating in armed groups and bands (gangs) will be convicted to life in prison or execution.”