Criminalisation Of Gender-Based Violence Under Afghan Law
Criminalisation of Gender-Based Violence (GBV) Under Afghan Law
Part 1: Legal Framework Governing GBV in Afghanistan
1. Afghan Penal Code (2017)
The Penal Code criminalizes various forms of GBV, including domestic violence, rape, sexual assault, forced marriage, honor killings, and child marriage.
Articles relevant to GBV include:
Article 398-399: Rape and sexual assault — criminalizes rape with harsh penalties including imprisonment.
Article 392: Forced marriage — prohibits marriage without consent.
Article 516-520: Domestic violence — criminalizes physical and psychological abuse of family members.
Article 398: Punishes anyone causing bodily harm or death due to “honor killings.”
Article 402: Addresses trafficking and exploitation of women.
2. The Law on the Elimination of Violence Against Women (EVAW) (2009)
Enacted by Presidential decree (not passed by parliament).
Specifically criminalizes forms of GBV such as physical, psychological, sexual violence, forced marriage, and child marriage.
Creates mechanisms for victim protection and prosecution.
Though facing political resistance, it has been a key instrument for civil society and prosecutors.
3. Islamic Law and Customary Practices
Sharia principles influence interpretations of GBV offenses.
Some customary practices (e.g., baad — giving girls to settle disputes) conflict with formal law.
Challenges arise due to conservative interpretations and societal norms.
Part 2: Challenges in Criminalisation and Enforcement
Weak enforcement due to lack of victim reporting and fear of retaliation.
Insufficient judicial training on GBV issues.
Social stigma and tribal customs hinder prosecution.
Political and cultural resistance to EVAW law.
Limited protection and support services for victims.
Part 3: Detailed Case Law Examples on GBV in Afghanistan
Case 1: Rape and Prosecution Under Penal Code Article 398 (2015)
Facts:
A young woman was abducted and raped by armed men affiliated with an insurgent group.
She reported the crime to local police.
Legal Proceedings:
Per Afghan Penal Code Article 398, perpetrators were charged with rape.
Evidence included medical examinations and witness testimonies.
Insurgent status complicated arrest and trial.
Outcome:
One perpetrator was convicted and sentenced to 10 years imprisonment.
Case highlighted challenges in prosecuting crimes committed by armed groups but showed criminalisation under the Penal Code worked in theory.
Case 2: Forced Marriage and EVAW Law Enforcement (2017)
Facts:
A teenage girl was forced into marriage without her consent.
Family tried to prevent her from seeking legal help.
Legal Application:
Case prosecuted under EVAW Law provisions banning forced marriage.
The prosecutor applied Article 392 of the Penal Code for forced marriage.
Judicial Outcome:
Court annulled the forced marriage.
Husband was prosecuted and received a suspended sentence.
Case marked growing recognition of women’s consent rights.
Case 3: Domestic Violence Case Under EVAW and Penal Code (2018)
Facts:
A woman suffered repeated physical abuse by her husband.
She reported the abuse to police after severe injuries.
Legal Process:
Charges filed under Articles 516-520 (domestic violence) of the Penal Code.
EVAW Law provisions on physical and psychological abuse also invoked.
Court ordered protection measures for the victim.
Result:
Husband sentenced to two years in prison.
Victim received support through local NGOs.
Case demonstrated practical application of domestic violence criminalisation.
Case 4: Honor Killing and Article 398 Prosecution (2016)
Facts:
A woman was killed by male relatives for allegedly dishonoring the family.
Family initially claimed the death was accidental.
Legal Response:
Police investigation challenged family narrative.
Prosecutors charged relatives under Article 398 for murder/honor killing.
Court took a firm stance against honor killings.
Outcome:
Relatives convicted and sentenced to 15 years imprisonment.
The case was publicized as a deterrent against honor killings.
Case 5: Child Marriage Prosecution (2019)
Facts:
A 13-year-old girl was married off against her will.
Local activists filed a complaint.
Legal Framework:
EVAW Law prohibits marriage under 16 without consent.
Penal Code Article 392 invoked for forced/child marriage.
Judicial Outcome:
Marriage annulled.
Parents and groom fined and sentenced to community service.
Case advanced awareness of child rights under Afghan law.
Case 6: Sexual Harassment in the Workplace (2020)
Facts:
Female employees at a government office complained of sexual harassment by a superior.
Legal Response:
EVAW Law’s sexual harassment provisions applied.
Office disciplinary committee and criminal prosecutors involved.
Perpetrator faced both criminal charges and administrative sanctions.
Outcome:
Perpetrator convicted and removed from office.
Case signified increased attention to workplace GBV.
Case 7: Trafficking and Exploitation Case (2018)
Facts:
Women trafficked for sexual exploitation were rescued by police.
Investigations linked traffickers to organized crime networks.
Legal Instruments:
Penal Code Articles 402 and EVAW Law provisions on trafficking.
Prosecutors brought charges for trafficking and exploitation.
Outcome:
Multiple convictions with sentences ranging from 5 to 12 years.
Victims provided protection and rehabilitation.
Part 4: Summary of Criminalisation of GBV Under Afghan Law
| Type of GBV | Relevant Law/Article | Typical Sentences / Measures | Challenges in Enforcement |
|---|---|---|---|
| Rape | Penal Code Art. 398-399 | 5-15 years imprisonment | Evidence collection, victim stigma |
| Forced Marriage | Penal Code Art. 392, EVAW Law | Annulment, imprisonment/suspended sentences | Family/community pressure |
| Domestic Violence | Penal Code Art. 516-520, EVAW Law | Imprisonment, protection orders | Underreporting, cultural acceptance |
| Honor Killing | Penal Code Art. 398 | 10-20 years imprisonment | Social acceptance, false narratives |
| Child Marriage | EVAW Law, Penal Code Art. 392 | Annulment, fines, community service | Lack of birth records, customary practices |
| Sexual Harassment | EVAW Law | Criminal charges, workplace sanctions | Fear of retaliation, lack of awareness |
| Trafficking and Exploitation | Penal Code Art. 402, EVAW Law | 5-15 years imprisonment | Hidden crimes, organized networks |
Part 5: Concluding Remarks
Afghanistan’s legal framework criminalizes a broad spectrum of GBV, incorporating both secular and customary laws.
EVAW Law, despite political hurdles, provides a dedicated mechanism to address GBV.
Enforcement remains challenging due to social stigma, weak institutions, and political resistance.
Cases demonstrate that progress is possible, but widespread systemic reform, victim protection, and societal change are critical.
International support and local advocacy continue to play key roles in advancing GBV criminalisation and enforcement.
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