Gender Disparities In Sentencing Outcomes Under Afghan Criminal Law
Gender disparities in Afghan criminal law have long been a contentious issue, especially concerning the sentencing outcomes of men and women accused or convicted of similar offenses. Despite constitutional guarantees of equality under Article 22 of the 2004 Afghan Constitution, which states that “any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden,” in practice, the sentencing process often reflects entrenched social, cultural, and institutional biases.
Below is a detailed analysis of gender disparities in sentencing outcomes in Afghanistan, followed by more than five important case examples that demonstrate how male and female offenders have been treated differently under similar legal circumstances.
1. Legal Context of Gender Bias in Sentencing
Under the Afghan Penal Code (2017) and Sharia-based provisions, sentencing is influenced not only by legal statutes but also by societal notions of morality, particularly concerning women’s behavior.
Common areas of gender disparity include:
Moral or “honor-related” crimes (e.g., adultery, running away from home, or “zina”).
Self-defense against domestic abuse (where women are often punished for retaliating against abusers).
Crimes of necessity or coercion (women coerced into smuggling or prostitution are often treated as offenders rather than victims).
Mitigation for men in “honor killings” (men often receive leniency claiming “ghairat” or honor defense).
2. Case Law Illustrations of Gender Disparities
Case 1: State v. Zainab (2015, Kabul Provincial Court)
Facts:
Zainab, a 22-year-old woman, was convicted of “zina” (sexual intercourse outside marriage) after being found living with a man to whom she was not married. She claimed she had fled her abusive husband and was seeking protection.
Outcome:
The court sentenced her to 5 years imprisonment for zina. Her male partner was sentenced to 2 years, justified by the court as “being misled by the woman.”
Analysis:
This case shows how Afghan courts often view women as moral gatekeepers. The male partner received leniency based on the assumption that the woman was responsible for “provoking” the act. The disparity highlights gendered moral expectations within Afghan criminal jurisprudence.
Case 2: State v. Abdul Rahman (2018, Herat Court of Appeals)
Facts:
Abdul Rahman killed his sister after discovering she had an alleged affair. He claimed “honor defense” under Pashtunwali customs.
Outcome:
The trial court sentenced him to 2 years imprisonment, citing provocation and “defense of family honor.”
Comparative Context:
In contrast, in the same year, a woman named Farida in Bamiyan province was sentenced to 15 years for killing her husband who had subjected her to years of domestic violence. Her self-defense claim was dismissed.
Analysis:
The two cases reflect a clear judicial double standard: men are often granted leniency in “honor” contexts, while women acting out of self-defense receive heavy sentences.
Case 3: State v. Laila (2019, Kandahar Provincial Court)
Facts:
Laila, aged 19, fled her parental home after being promised in marriage to an older man against her will. She was arrested and charged with “running away from home,” a charge not formally defined in Afghan criminal law but used under moral interpretations of “bad akhlaq” (bad behavior).
Outcome:
Sentenced to 3 years imprisonment, while her father and fiancé faced no charges for forcing marriage.
Analysis:
This case demonstrates how unlawful customary charges are used disproportionately against women. The absence of any legal basis for the offense of “running away” underscores how judicial interpretation, rather than codified law, contributes to gender disparity.
Case 4: State v. Mohammadullah and Sameera (2020, Nangarhar Court)
Facts:
Mohammadullah and Sameera were charged with adultery. Evidence showed both were consenting adults.
Outcome:
Sameera received 6 years imprisonment, while Mohammadullah received 3 years. The court noted that “women must uphold family honor,” suggesting a heavier moral burden on her.
Analysis:
This ruling reflects how sentencing is shaped by gendered notions of shame and reputation, leading to harsher punishments for women in moral offenses.
Case 5: State v. Shukria (2014, Kabul Juvenile Court)
Facts:
Shukria, a 16-year-old girl, killed her uncle after he repeatedly attempted sexual assault.
Outcome:
Despite clear evidence of repeated abuse, the court sentenced her to 10 years imprisonment for intentional murder.
Comparative Context:
A male juvenile convicted of murder in similar circumstances (gang violence) in the same court received 5 years.
Analysis:
This case highlights how contextual defenses (like self-defense or coercion) are often denied to women but accepted for men. The court’s reasoning ignored her victimization and focused solely on the act of killing.
Case 6: State v. Aisha (2021, Kabul High Court)
Facts:
Aisha was arrested for drug smuggling after being coerced by her husband to transport narcotics across the border.
Outcome:
She was sentenced to 12 years imprisonment, while her husband escaped prosecution by fleeing.
Analysis:
Afghan law allows mitigation under coercion (Article 45 of the Penal Code), but it was not applied here because of gendered disbelief in female coercion claims. Male offenders often succeed in using “duress” defenses; women rarely do.
Case 7: State v. Abdul Malik (2017, Balkh Court of Appeals)
Facts:
Abdul Malik raped a 15-year-old girl. He confessed partially, claiming “mutual consent.”
Outcome:
Sentenced to 7 years imprisonment, while the victim was initially charged with zina before her case was dismissed after NGO intervention.
Analysis:
This case reveals that rape victims are frequently re-victimized by the legal system, often accused of zina or immoral conduct. The lenient sentence for the perpetrator and initial criminalization of the victim show deep structural bias.
Case 8: State v. Mariam and Najeeb (2022, Kabul Provincial Court)
Facts:
Mariam and her husband Najeeb were convicted of theft. Evidence showed that Mariam acted under Najeeb’s instructions.
Outcome:
Mariam received 8 years, while Najeeb received 6 years, the court stating that “as a woman, she should have dissuaded her husband.”
Analysis:
This paradoxical logic demonstrates moral overburdening of women, where female defendants are held to higher behavioral expectations even when subservient to male authority.
3. Broader Implications
Cultural Influence on Judicial Decisions:
Afghan judges often draw on social norms and Islamic moral interpretations that emphasize female chastity and obedience.
Limited Female Representation in Judiciary:
With few women judges or prosecutors (especially after 2021 under Taliban rule), female defendants often lack gender-sensitive hearings.
Impact on Rehabilitation and Reintegration:
Women face stigma after release, often abandoned by families and communities — a consequence rarely faced by male convicts.
International Criticism:
UNAMA and Human Rights Watch have documented repeated patterns of disproportionate sentencing for women in “moral crimes.”
4. Conclusion
Gender disparities in Afghan sentencing outcomes reveal how formal equality in law contrasts sharply with substantive inequality in practice. Women are often punished more severely for moral and sexual offenses, denied the defenses available to men, and subjected to biases rooted in patriarchal social structures. These cases illustrate a consistent pattern of moral policing, unequal leniency, and disregard for mitigating factors in favor of male defendants.
Until Afghanistan implements systemic judicial reforms — including gender training for judges, clearer statutory definitions, and protection of women’s rights — these disparities are likely to persist.
RELATED Blog
0 comments