How Law Affect Rape Culture in Afghanistan and USA?

khadija hussaini
Posted April 10, 2015 from Afghanistan

According to United Nation Population Fund report of 2008, 25% of women in Afghanistan are subjected to sexual violence and rape (Mowahid). This is while in United States of America, according to National Institute of Justice in 2007, 19.0% of college women and 6.1% of college men are raped and sexually assaulted in a year. Laws in a country are usually believed to solve and irradiate crimes while in some cases like the case we will study laws appears to help certain behaviors to nourish and anchor within the culture. Laws of punishment for committing rape exist in Afghanistan and USA countries somehow or another but those laws are not being sufficiently applied on individuals or some perpetrators circle the law procedure to escape free. Afghanistan, after establishing new governmental system based on democratic values, was supported by USA . Part of United States focus on Afghanistan after war, has been bringing a change on status of women. Thus, most of US humanitarian and social programs were lunched to solve issues women struggle from and suffer. The attempt to bring change in women’s condition in Afghanistan does not seem much efficient because there is a big part of problem which haven’t being focused on yet. Frankly speaking, it appears that when it comes to rape and sexual assault USA has got problems which is also similar to Afghanistan. Comparing both countries in terms of rape laws, there is a considerable difference in ambiguity and enforcement of law between the two systems. However, both societies are still dealing with a tremendous rate of rape and sexual assault. The cause appears to be insufficiency in law enforcement that helps rape culture to contentious in both communities.

The first difference between these two law systems comes with ambiguity of laws. Afghanistan, in its law system, does not differentiate punishments between those who are being forced to have sexual activities and who have illegal sexual activities . Quoted from Parvin Rahimi, official of AIHRC, she says “Rape needs to be legally recognized as a heinous crime and must be dealt with separately from Islamic adultery penal codes”. For instance, 21-year-old Gulnaz, who was attacked by a relative two years ago, was given sentence of 12 years in jail for adultery. The sentence in rape cases for women remains the same unless if they agree to marry the sexual abuser which is another flaw of rape law (Walsh CNN). Moreover, there is no direct law which addresses sexual harassment as a crime and no penalty exist for it in Afghanistan criminal law (Kaitlin McKenzie HRB). Lack of recognition of sexual harassment as a crime as well as ambiguity in dealing with rape cases are significant examples of flaws in Afghanistan criminal law. However, there is more certain and clear distinctions about rape and sexual assault in US law. US law codes on rape and sexual assault address terms “Rape”, “Sexual Assault”, Aggravated Sexual Contact”, “Threat” and “Abusive Sexual contact” directly and declare judicial approach to these cases ( Legal Information Institute). According criminal law of US the perpetrators who are proved to be guilty of mentioned acts will be punished according to court- martial verdict ( LII).

The second difference in case of rape laws is lack of law enforcement which is shown in traditional courts, run alongside with the system in Afghanistan. Afghanistan is bound with traditions that are as much acceptable and powerful as governmental laws. Even in some conditions society condemn law to declare justice by themselves. A clear example of this claim is the tradition “Giving to Baad”. In other word, in this tradition women are being used as compensation to wash out a family’s or faction’s crime or debt (Wahida Paykan IWPR). It often happens that to settle down a fight and make peace between two tribe women are being given as reparation. Human Rights Watch conducted preliminary research between December 2009 and June 2010, in order to document a number of cases in Kabul and surrounding provinces. According to women's rights activists interviewed by Human Rights Watch, cases of “baad” regularly occur, involving babies, girls, adolescents, and adult women (Human Right Watch). USA on the other hand is less traditional country. Law enforcement in USA is more powerful to let domestic courts take place in solving juridical issues instead of authorization of the state. There might flaws accrue in consolidation and enforcement of law as John Berkly from The Economist Magazine claims in his article “The United States needs to overhaul its law-enforcement system” (Criminal Jastic). However, there is no such known tradition In United States as “Baad” which enforce rape and rape culture in the society, like it exist in Afghanistan.

Correspondingly, Afghanistan and USA share similar flaws in law system which elevate and promote rape culture and nourish it. Afghanistan for instance, The Guardian reported a law being passed by president Karzai in Afghanistan, retrieving relatives of victim of rape till second generation from being testified in 2014, which legalize further cases of rape and creates more victims.Accordingly, as NRP article on Rape in Afghanistan illustrate, UN reports suggests laws to protect women and children in Afghanistan from rape and forced marriage are still not being enforced which allows rapists to walk free from the sentences. In addition, In USA criminal justice system, academic conception of rape have not taken the perspective of the victim and victims experiences are being undermined by stereotypical judgments which give chance to perpetrators to skip free ( Giacopassi. Wilkinson 387). Another example of these flaws is wrong accusation of victims of rape. As Annie Clark and Anna Roth witness in their interview to Huffprt Live, a US social Chanel program, victims of rape are mostly accused by misbehavior or immoral conditions which justifies rape and assault cases. Accusations like lack of proper dress or being drunk or in a abnormal physical condition are most common false accusation of rape victims. Mentioned flaws in USA and Afghanistan court system can promote more rape cases to happen and more rape victims to suffer. Rape culture nourishes from wrong practices of society which mentioned similar law practices are part of those.

Given these points, law in a society has a significant influence on culture. If laws cannot provide a correct and justified role in addressing the problems crimes and enforcing justice, then it may become the means to transmute those problems and crimes in to a culture. A culture where false behaviors seems normal, Criminals are being set free and victims are questioned and accused on their innocence. Afghanistan and USA despite their many differences in criminal law related to rape both have the potential to promote and nourish rape culture. To correctly address this problem and put an end to rape culture in these societies, laws should be reviewed and changed. Reviewing the laws should be done by different stakeholders of this issue. Women lawyers who have a different interpretation of law and the issue should be given the chance to study the existed law and compare and correct it according different dimensions this issue contains.

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