Afghanistan: Change The Law To Make Justice System Work For Women Survivors Of Violence

Instead of the Afghan justice system working effectively on behalf of female victims of violence, the burden of making the system work is for the most part borne by the women and girls themselves, particularly in cases of child marriages, according to a new UN report published on Monday.

The joint report by the Human Rights Service of the UN Mission in Afghanistan (UNAMA) and the UN Human Rights Office – entitled In search of justice for crimes of violence against women and girls – is based on monitoring of the judicial processing of reported crimes of violence against women and girls between September 2018 and February 2020. During that period, a total of 303 crimes of violence against women and girls were analysed.

The reporting period was before the impact of the COVID-19 pandemic, which is feared to have increased the vulnerability of women and barriers to protection and justice.

While the justice system’s response to female victims of violence has improved in recent years, it continues to fail them in many respects, the report says. Only half of the documented crimes of violence against women and girls reached a court and impunity remains prevalent.

Prosecution of most crimes listed under Afghanistan’s Elimination of Violence Against Women Law (EVAW Law) depend on the victim or her attorney filing a complaint, and the case stops if the victim withdraws her complaint. This places an enormous burden on women, especially when reporting such a crime may place the victim at odds with her family and community, and even put her in danger.

This situation is particularly problematic in the case of children who are forcibly married. Of 16 cases of child marriage documented in the report, only one resulted in the conviction of the perpetrator. Given that the vast majority of child marriages are arranged or condoned by the girls’ families, it is unrealistic to expect that girls themselves would be able to register a complaint and pursue it through the courts.

Among the cases the report details, two men reportedly exchanged their 13 and 14-year old daughters as wives. The girls lodged a complaint with the local police and the alleged perpetrators were promptly arrested. However, a few weeks later, the prosecution closed the case because the girls, along with their mothers, withdrew the complaint. The alleged perpetrators were released.

“In far too many cases, the EVAW Law re-victimizes women and girls who have already suffered enormously. It is appalling that survivors who have been beaten or married against their will are left to fend for themselves and that the State does not protect them unless they bring and pursue their complaints,” said the UN High Commissioner for Human Rights Michelle Bachelet.

“I call on the Afghan authorities to amend the EVAW Law to ensure that authorities have the power to investigate and prosecute all offences irrespective of whether the victim files or withdraws her complaint,” she added.

Another concern highlighted in the report is the treatment of women and girls who leave their homes without permission from their male guardian or without telling their families where they are. While this is not a crime under any Afghan law, they are sometimes arrested for “running away” and charged with attempted zina (having sexual intercourse outside of marriage).

The report documented 22 cases of murder perpetrated for reasons of so-called “honour”. While honour is no longer accepted as a mitigating factor for murder under Afghanistan’s 2018 Penal Code, the fact such killings continue indicates how the belief persists among some communities that women may be punished to preserve or restore the family’s moral integrity. The report highlights that documented “honour killings” resulted in a much lower rate of conviction (22.7 per cent) than murders unrelated to “honour” (51 per cent).

The investigation and prosecution of rape cases also raise serious concerns. Medical examinations provided to women after reporting a rape appeared in many cases to not meet best practices, such as ensuring that women provide fully informed consent. Information also indicates that some women are in fact subjected to so-called “virginity testing” after reporting. Such tests have no scientific basis and, as a form of sexual violence themselves, are a serious violation of women’s human rights. The report calls for these examinations to be fully criminalized, without exceptions, and for those who conduct them to be prosecuted. The results of such “tests” must not be used as evidence in criminal proceedings.

The report also documented cases where women were prosecuted for extramarital sexual relations after reporting a rape. As such relations are criminalised, the risk of being charged is likely to seriously undermine a survivor’s willingness to report sexual violence.

Equally concerning is the documentation of 40 cases of women resorting to self-immolation or committing suicide after being subjected to violence. These desperate acts suggest they do not feel that the justice system offers them a chance for safety or redress.

“It is both heart-breaking and appalling that girls and women don’t see any other option to escape violence but to end their lives,” said Bachelet.

“I acknowledge the efforts made by the Afghan authorities over the years to ensure the justice system is fair, equal and does not discriminate against anyone, including women. However, it is clearly not enough. Legal, administrative and cultural changes must be implemented to leave behind a profoundly unjust justice system. My Office stands ready to help in this challenge.”

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