Rape Law? What Rape Law?

by Joshua Foust on 4/13/2009 · 8 comments

Afghan Ambassador Said T. Jawad has said the so-called “Rape Law” is dead on arrival.

The Afghan government won’t permit any law to take effect that would require women to have sex with their husbands or restrict them from leaving their homes, the Afghan ambassador to Washington said today.

“Definitely not,” Ambassador Said Jawad said in an interview on Bloomberg Television’s “Political Capital with Al Hunt,” scheduled to air today. “This is not the law yet, and it will not become the law, because it contradicts some important principles of the Afghan constitution.”

Of course, Mohammad Asif Mohseni, the law’s primary architect, disagrees, and wants us all to butt out of it.

“The Westerners claim that they have brought democracy to Afghanistan. What does democracy mean? It means government by the people for the people. They should let the people use these democratic rights,” Mohseni told reporters in the capital, Kabul…

Mohseni argued that women and men are very far from equal in today’s Afghanistan and should not be treated as such. He pointed out that many rural women are illiterate and would not be able to find work if they were asked to provide some of the family’s financial support. Men are typically the breadwinners in Afghan households, expected to provide for their wives and children.

“It is not possible for all women to pay the same amount of money as men are paying. For all these expenses, can’t we at least give the right to a husband to demand sex from his wife after four nights?” he said.

Right, at least give them that.

But here’s what bothers me in all the hullabaloo: the law, while certainly bad about women, was ostensibly meant to protect Afghanistan’s Shia minority—the vast majority of whom are Hazara. The Hazara are the punching bags of Afghanistan: Khaled Hosseini dramatized how badly they’re mistreated in his first novel, and they suffered particularly egregious crimes under the Taliban embargo that culminated in the Buddhas of Bamiyan being destroyed. More recently, the Hazara of Wardak were victimized by rampaging Kuchi nomads furious at land use provisions—notably, Hamid Karzai declined to take action about the dozens of innocent people who died in their homes.

As the above photo, taken by a colleague on February 3 indicates, the Buddhas of Bamiyan are being rebuilt. That hasn’t stopped the almost relentless defamation of Hazaras. While I was there, I saw and heard Pashtuns, Tajiks, and Uzbeks all decry Hazaras as “worthless,” “spies and saboteurs,” or even just plain old “bad people.” In Ghazni province, there is a curious alliance of Tajiks and Pashtuns that is meant to exclude Hazaras from provincial-level politics and reconstruction.

Indeed, it is the religious aspect of this law, rather than the provisions against women (which are, let us remember, not especially novel), that worries me the most. While it may sound calloused, women have been rather publicly fighting for their rights and inclusion in Afghan society for many years. They have strong western advocates right up to the President and First Lady of the United States, and the UN and NATO Secretary-Generals, along with countless other heads of state. The Hazara, on the other hand, have precious few advocates in the International Community.

While a law targeting women for new restrictions—people should really stop throwing around the ‘Taliban’ word, since it’s not nearly as bad as their Shari’a—is bad, targeting only the women of a forgotten, ignored, and often abused minority is even worse. And that is the angle so many are ignoring in their condemnation of the law. Assuming it even passes.

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– author of 1848 posts on 17_PersonNotFound.

Joshua Foust is a Fellow at the American Security Project and the author of Afghanistan Journal: Selections from Registan.net. His research focuses primarily on Central and South Asia. Joshua is a correspondent for The Atlantic and a columnist for PBS Need to Know. Joshua appears regularly on the BBC World News, Aljazeera, and international public radio. Joshua's writing has appeared in the Columbia Journalism Review, Foreign Policy’s AfPak Channel, the New York Times, Reuters, and the Christian Science Monitor. Follow him on twitter: @joshuafoust

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Monk April 13, 2009 at 11:38 am

Let’ see.
Said Jawad really needs to get proper updates about what is happening on the ground in the country he claims to represent. Is it the first and only purely religious law to have been rammed through the parliament and on the recommendations of the President? He probably needs to re-read the constitution of Afghanistan, which, with all its contradictions, declares Islamic law as supreme. You can not behold Shariah as the law of the land and reject legislation for being Islamic yet undemocratic.

As for Mohsini’s definition of democracy, that’s as far as his knowledge of democracy goes. I wonder what he has to say about his multiple wives, jihadi crimes including the rape of a girl almost a tenth of his age, massacre, summary executions and more. What does he have to say for the fact the while Hazaras were being slaughtered in central Afghanistan, his Shiite madrassa prospered right inside Kandahar and since when does he represent the Hazaras, who I am sure have better alternatives to a dogmatic puppet from Pushtoon south.

It is a shame that religious and racist extremists like Mohsini have become power brokers while the Hazaras, despite their never ending persecution by Islamic and ethnocentrist extremists; are being increasingly marginalized. Let’s not even start discussing how the dedication of all aid and reconstruction funds to Taliban hit south and warlord hit north have let down the Hazaras right from the start of “democracy in Afghanistan”.

This law is yet another attempt to undermine the progress Hazaras have made during the last eight years. The facts speak for themselves. Hazara women still refuse to wear full hijab, they have had active participation in programs like Afghan Star. They hold posts such as Afghanistan’s only female governor, only female mayor, head of Afghanistan’s Independent Human Rights Commission and more in NGO’s and offices across the country. Hazarajat has the most promising female to male ratio in school and university enrollment.

These are facts, unmatched in any of the areas Mohsini or Karzai could ever actually represent. The rest is pure bullshit.

Chris Mewett April 13, 2009 at 12:02 pm

I’ve seen you make the point several times that “this law is really intended to protect the Shia,” but I haven’t seen an explanation. Could you elaborate on that point?

Ali April 14, 2009 at 10:37 am

“the law, while certainly bad about women, was ostensibly meant to protect Afghanistan’s Shia minority—the vast majority of whom are Hazara”–I am inclined to take an exception to that. Also, how? The constitution already has a clause on the issue in light of which this can be read as an attempt by certain groups from within the Shi’ia community–largely the wayward and marginalized former powerplayers–to carve out a space for themselves as the bill is also supported by some from within the Hazara community.

And yes, I will second Monk in asking since when does Mohsini represent Hazaras? Most Hazaras (as Shi’as) don’t follow him on religious and legal matters–which is ever the more reason for him to posture and pretend for the mantle. Certainly there is no unanimity on the matter between Shi’a Ayatollahs.

It is crucial to understand how the Shi’ite juridical system works: all Shi’ites must follow an Ayatollah (which is typically represented by an accomplished and recognized individual that heads a whole institution of dedicated researchers and tools that issue judgements after thorough research). The only demand is to stick with the Ayatollah for all matters juridical (there is variation in the interpretation of the finer points of the law so this does matter). Traditionally the Ayatollah’s may be based in Iraq, Iran or Lebanon simply because they will have more resources available to them in those countries rather than Afghanistan and Afghan Shi’as may follow any of them. There are Hazara Ayatollahs in both Iran and Iraq, so a Hazara in his right senses will have nothing to do with this Afghan equivalent of Cher.

Mohsini’s constituency is mostly non-Hazara Shi’ites from Kandahar. If Karzai wants to make a play for their loyalty so be it.

Monk April 15, 2009 at 10:04 am

Pardon me but the opiate has worked. Today’s events prove that there is at least some support for “the rape law” amongst the Hazaras considering how few came to protest against the law versus the huge crowd that that came out of Mohsini’s madrassa chanting ‘allah akbar’ and pelting stones. It may have been a strategy but most of those women were Hazaras and made good use of their Persian accent, a sign that they were returnees from Iran. It couldn’t have Stockholm Syndrome or could it?

Sam April 16, 2009 at 9:00 am

Hi there,
Just a quick point on this law — it is certainly a bad development from a political point of view, for the reasons enumerated above.

However, purely as a law, it has been caricatured as the ‘marital rape’ law. In fact, the Dari version shows it to be basically pretty middle of the road Shi’a jurisprudence, slightly to the right of Iran, but not egregiously so.

The particular provision that has been mistranslated and misinterpreted as ‘allowing’ marital rape doesn’t do so, legally speaking: article 132 includes the following relevant provisions:
(1) The spouses are obliged to socialize with one another and their parents and family.
(2) The spouses are obliged to cooperate and collaborate for welfare of their families and children.
(3) The spouses must abstain from any actions that would cause the hatred and displeasure of one another; whenever the husband wants his wife to attend to her appearance, the wife is obliged to do so.
(4) The husband is obliged, except during period of travel, to spend the night in one place with his wife at least one night out of four, except when it is harmful to one of the spouses or one of them suffers from a venereal disease. It is the duty of the wife to tend to the husband’s inclination for sexual liaison. The husband is obliged to not postpone intimacy with his wife for more than four months without his wife’s consent.
(5) Whenever a man has more than one wife, he is obliged to spend at least one night out of four in view of section (4). The right of the wife (to intimacy) may, upon her consent, be transferred to the husband and other spouses.
(6) The husband may increase the rights (of intimacy) to more than one night, on the condition that no harm or shame comes to the other spouses.
(7) The wife is obliged to manage and perform those areas of domestic chores that the husband has specified in the marriage contract; otherwise, the wife is not obliged to perform domestic chores.

As you can see, this is not an explicit endorsement of marital rape. From a purely legal point of view, the offending language in section (4) (“It is the duty of the wife to tend to the husband’s inclination for sexual liaison”) has to be read in light of section (3)’s injunction against actions that would cause “hatred or displeasure”. And under basic jurisprudential principles the article could be interpreted so as to prohibit rape, in fact.

No question that the language about the wife’s obligation to satisfy the husband’s sexual needs is highly problematic. But the point of article 132 is to govern the mutual responsibilities of spouses (including up to four wives) in the sexual sphere.

No question this is absolutely discriminatory toward women, and deeply troubling, given Afghanistan’s current political climate, as well as the absence of a functioning judiciary, and the absolute lack of state protection for women, in particular Shi’a women.

But it is not a ‘marital rape’ law, and by casting it thus, the Western media and policy makers have actually given a sop to Mohseni and others who make a living by positioning themselves as defenders of Islam against Western interlopers. The law should never have been rammed though, but the Wolesi and Mishrano Jirgas’ foolishness, and Karzai’s weakness, are other issues.

Now, Afghan civil society and their international supporters should focus on ameliorating some of the political damage, and not try to engage in a debate on Shi’a jurisprudence.

Transitionland April 16, 2009 at 9:58 am

Re: above.

Interesting to see the actual wording.

Wait, is this…Sam Zarifi, Amnesty’s Asia Director?

Sam April 16, 2009 at 10:37 am

This is Sam Zarifi, though writing in a purely personal capacity, not as an Amnesty International spokesperson.

Joshua Foust April 16, 2009 at 6:26 pm

Sam, you make a powerful argument. I thought I was perhaps being over-cautious in my calls for people to calm down about the law, but you’re telling me I might have been under-cautious.

Thank you for the input — I really appreciate it.

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