Conflation between rape and zina
These are some excerpts of my interviews with over 30 judges, lawyers, prosecutors and professors of law in Kabul, Afghanistan.
The conflation between adultery and rape.
‘Most judges do not deal with such cases fairly. I saw a case where a woman was accused of zina with 4 police officers. She ran away from home and was caught by the 4 policemen who later raped her. Although the defence counsel argued that she was raped, he convicted her of Zina along with the 4 policemen.’[1]
He later went on to say, 'In my career, that was the fairest judgment I had ever seen. This was a good judge. But then, even when it was clear the girl was raped, somehow she had a role to play in it and she was convicted of zina.’ [2]
Many who I had interviewed believed that a rape victim should be charged with zina if she failed to prove her case.
‘She must be punished. Up until now, in cases that are investigated, they are punished for zina if they cannot prove that they were raped’[3]
‘The unavailability of evidence creates the doubt as to whether rape took place. And thus she is accused of the crime of sexual intercourse’[4]
‘She should be charged with zina ta’zir’[5]
Some said she was innocent until proven guilty.
‘Until it is proven we cannot say that this is a crime of zina’[6]
I pointed out that rape victims would refuse to report for fear that they may be charged with zina. This was not an ideal position for victims of genuine cases of rape.
One disagreed: ‘This is to protect Islamic rules and prevent prostitution’[7]
Another agreed: 'This is not ideal because the rate of rapists led free will increase and this might encourage them to commit more of these crimes because no one is suing them’[8]
‘It is extremely dishonourable on a girl if others find out about an illicit sexual affair, even if the girl is rape. They would be considered as prostitutes, there will be gossip in the village. Many people will continuously talk about her and her character. It is a big social problem here in Afghanistan. The women have great fear to complain rape – firstly they will be defamed for life – chastity is extremely important in our society. The consequences of claiming rape is worst than not claiming rape.’[9]
It is not advisable for a rape victim to initiate an investigation and move forward with criminal proceedings. Her position is exacerbated when the risk of a zina conviction is annexed to her complaint. Furthermore she exercises no degree of control over that risk because the availability of evidence on site is to a large extent circumstantial. After a violent, traumatic experience, she cannot be expected to report her rape immediately to the police, primarily staffed by men who are strangers to her.
‘What if the village finds out that I’ve lost my chastity’ ‘She will not disclose it- not even to close family members and friends’.[10]
[1] Lawyer U (Legal Aid Organisation Afghanistan) interviewed, 25/09/07
[2] Ibid.,
[3] Questionnaire 1, handed in 25/09/07
[4] Questionnaire 4, handed in 25/09/07
[5] Questionnaire 8, handed in 30/09/07
[6] Questionnaire 6, handed in 01/10/07
[7] Questionnaire 2, handed in 27/09/07
[8] Questionnaire 5, handed in 01/10/07
[9] Lawyer U (Legal Aid Organisation Afghanistan) interviewed, 25/09/07
[10] Questionnaire 1, handed in 25/09/07
[11] Interviewees were asked to consider testimonies by rape victims explaining why they had not registered a complaint immediately or soon after the rape. These testimonies include statements such as ‘I did not know how to approach the police’, ‘I was afraid’ and ‘I was threatened not to tell the police’.
[12] X (Juvenile Court) interviewed, 03/10/07
[13] Lawyer Y (Global Rights) interviewed, 26/09/07
[14] Judge (Provincial Court, Kunar) interviewed, 27/08/07
[15] Lawyer U (Legal Aid Organisation Afghanistan) interviewed, 25/09/07
[16] Judge (Primary Court, Kabul) interviewed, 23/08/07
[17] Questionnaire 1, handed in 25/09/07
[18] Former Judge M (Afghan Women Judge Association) interviewed, 24/09/07