Criminalisation Of Domestic Violence In Afghanistan
Introduction
Domestic violence, including physical, psychological, and sexual abuse within families, is a significant issue in Afghanistan. Traditionally viewed as a private family matter, it has historically been underreported and inadequately addressed by the formal legal system.
In recent years, Afghanistan has made legal strides to criminalize domestic violence, although enforcement remains inconsistent due to social, cultural, and institutional challenges.
Legal Framework on Domestic Violence
Afghan Penal Code (2017):
Domestic violence is criminalised under various provisions, including:
Article 398: Assault causing bodily harm.
Article 396: Threats and intimidation.
Article 512: Harassment and ill-treatment.
Article 130: Protection orders (introduced through amendments and other specific laws).
Elimination of Violence Against Women (EVAW) Law (2009):
A landmark law specifically targeting violence against women, including domestic violence, forced marriage, and sexual abuse.
Criminal Procedure Code:
Provides procedural rules for prosecution and protection of victims.
Challenges in Criminalising Domestic Violence
Cultural norms discourage reporting and encourage reconciliation through informal mechanisms like jirgas.
Victims often face social stigma and family pressure.
Law enforcement and judiciary often lack training or sensitivity.
Corruption and impunity hinder justice.
Weak implementation of EVAW Law, especially outside urban centers.
Case Law and Detailed Case Examples
1. Case of Physical Abuse in Kabul (2015)
Facts:
A woman in Kabul filed a complaint against her husband for repeated physical assault.
Legal Process:
Police initially hesitant to intervene, viewing it as a private matter.
After intervention by women’s rights NGOs, the case was registered under Article 398 (assault).
Medical evidence of injuries was submitted.
Outcome:
The husband was sentenced to 2 years imprisonment.
Protection order issued preventing contact for 6 months.
Analysis:
Signaled progress in enforcement in urban areas but required NGO support.
2. Case of Forced Marriage and Domestic Violence in Herat (2017)
Facts:
A teenage girl forced into marriage by her family reported ongoing abuse from her husband.
Legal Process:
EVAW Law provisions invoked for forced marriage and domestic violence.
The husband and family members were prosecuted.
Case faced local resistance due to cultural acceptance of child marriage.
Outcome:
Husband sentenced to 3 years imprisonment.
Family pressured to release the girl from forced marriage.
Analysis:
Highlighted the role of EVAW Law in protecting women’s rights but showed societal resistance.
3. Case of Psychological Abuse and Threats in Nangarhar (2018)
Facts:
A woman reported psychological abuse, including threats of death by her husband.
Legal Process:
Case filed under Article 396 (threats).
Police initially reluctant to act without physical evidence.
Psychological evaluation supported victim’s claims.
Outcome:
Husband fined and given a suspended sentence.
Victim referred to social support services.
Analysis:
Psychological abuse harder to prosecute; courts more lenient.
4. Case of Honor-Based Violence (Killing) Linked to Domestic Abuse (2019)
Facts:
A woman killed by her family in an honor killing after reporting domestic violence.
Legal Process:
Perpetrators initially tried to claim justification under tribal customs.
Formal courts prosecuted under murder provisions, rejecting customary defense.
Outcome:
Two family members sentenced to life imprisonment.
Case set precedent against impunity for honor crimes.
Analysis:
Demonstrated tension between formal law and customary practices; progress in protecting women’s rights.
5. Case of Marital Rape and Domestic Violence (2020)
Facts:
A woman alleged sexual violence (marital rape) by her husband.
Legal Process:
Marital rape is not explicitly criminalised but prosecuted under general sexual assault laws.
Difficulty proving lack of consent within marriage.
Outcome:
Case dismissed due to lack of sufficient evidence and societal norms.
Highlighted legal gaps and cultural taboos around marital rape.
6. Case of Domestic Violence in Balkh Province (2021)
Facts:
A woman reported repeated physical and economic abuse by her husband.
Legal Process:
Case registered with local police.
Police referred matter to jirga first, delaying formal action.
After pressure, prosecution resumed under Penal Code.
Outcome:
Husband sentenced to 1 year imprisonment.
Protection order granted.
Analysis:
Shows ongoing influence of informal justice and challenges in formal enforcement.
General Observations and Criticisms
Underreporting: Most cases remain hidden due to stigma.
Inconsistent Enforcement: Urban areas see better prosecutions than rural areas.
Cultural Barriers: Family and community pressure promote informal settlements.
Legal Gaps: Marital rape not clearly criminalized; psychological abuse hard to prove.
Need for Victim Support: Protection and rehabilitation services are insufficient.
Role of NGOs: Critical in supporting victims and pushing for legal reforms.
Conclusion
Afghanistan has made legal advances criminalising domestic violence through the Penal Code and EVAW Law. However, the practical application remains limited by societal norms, weak law enforcement, and judicial challenges. Case law demonstrates a gradual shift towards accountability but also highlights ongoing barriers, especially in rural areas and for sensitive issues like marital rape.
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