Legalized Spousal Abuse Is Coming to Afghanistan

Nina Strochlic

A proposed law would ban relatives of accused child abusers, rapists and murderers from testifying against them in court—and women’s rights advocates are terrified that it spells a return to Taliban-era repression. Nelosar was 15 years old when she was married off to a man more than twice her age. When she told her father she did not want to marry and wanted to continue her education instead, he replied that he would kill her if she didn’t comply. She entered into the marriage, but was ruthlessly beaten by her in-laws and her husband. “I never loved him, but I had to stay,” Nelosar (not her real name) says.

Just two months ago, with the support of her children, she applied for a divorce from the man she says abused her their entire marriage. Now 41 years old, Nelosar works as a caregiver for senior citizens and lives in Queens, New York. Her husband stopped beating her when they moved here because he feared the police, but the verbal attacks continued. She couldn’t divorce him in Afghanistan, but says she’s thrilled to live in the United States where the law is in her favor. “There should be law that supports women, not abuses them,” Nelosar says.

But in Afghanistan, a dangerous bill has slipped through two houses of Parliament and is poised to devastate women’s rights advocates and victims of abuse. The law would ban all family members of accused criminals—be they abusers, rapists, murderers—from being questioned by police or testifying against them in court. Doctors and psychiatrists would also be barred from providing evidence. In most domestic cases it would be virtually impossible to get a conviction. The bill awaits the signature of President Hamid Karzai—as of last Sunday, he had 15 days to veto it before it automatically goes into effect.

Activists warn it’s the latest in a series of setbacks that could propel Afghanistan back to a time when women had no rights or freedoms under Taliban rule. And as U.S. and NATO troops depart this year and a long-term security agreement is on the rocks, the climate for Afghanistan’s women and girls is growing more unpredictable.

The proposed law would allow men to abuse their wives, children, and sisters without threat of judicial repercussion. It would quash any legal consequences for cases of honor killings, child marriage, and domestic violence—in a country where 87 percent of women have experienced some form of abuse. In family-centric Afghanistan, there would be few unrelated witnesses in such cases. If this law was in place three months ago, the father of a 16-year-old girl named Nabiza would not be serving a 12-year prison sentence. He was arrested by police after Nabiza’s mother reported him, and was jailed thanks to testimony from Nabiza, her mother, and uncles. Another recent case in which a woman observed her husband murder a loan officer would similarly have gone unpunished.

It’s a familiar limitation for Nelosar, who hasn’t been back to her homeland in 20 years. “At that point when I was there, the situation was worse because [I heard] stories of women reporting to the police, but they were returned to families and in-laws because police told them, ‘Your husband has right to beat you, you need to accept this,’” she says.

“If this law is signed we will go backwards, slowly back to the Taliban era,” says Manizha Naderi, executive director of advocacy group Women for Afghan Women. Four little words in the bill, a criminal procedure code that parliament has been drafting for years, could destroy the gains made for women’s rights in the years since. Buried in Article 26 of the 128-page draft, a section outlining people who cannot be questioned as witnesses lists: “Relatives of the accused.” Naderi says that two months ago, she and other advocacy groups pressured lawmakers to change the section preventing family members from testifying, so it instead stopped them from being compelled to testify. But suddenly, as it came up for a vote last month, the offending segment had been reverted back to its original form, thanks to parliamentarians Naderi describes as conservative and uneducated or undereducated.

Women for Afghan Women has been jockeying for a meeting with President Karzai, but in the meantime they’ve drafted a letter to him urging a rejection of the bill on the grounds it that it “is illegal and contrary to fundamental Islamic tenets.” As they point out, the Koran specifically states that the truth should be revealed in order to “stand out firmly for justice, as witnesses to Allah, even against yourselves, or your parents, or your kin.” Naderi warns that if Karzai signs something unconstitutional it could create a ripple effect, paving the way for other illegal laws to go on the books.

But activists are nervous, saying that Karzai has become increasingly unpredictable in the months leading up to the April election that will strip him of executive power after nearly 14 years. “His first motivating factor is he wants to negotiate with Taliban,” Naderi says of a recent revelation that Karzai has been holding secret talks with the Taliban. “This could be a way of appeasing the Taliban and saying ‘I’m on your side.’” Right now, there’s no telling what the president will do, says Heather Barr, senior Afghanistan researcher for Human Rights Watch. Karzai may be quick to ratify it in hopes of wrapping things up in his last few months of power, or he could leave behind the controversial issue for his successor. Six years ago, Karzai signed the groundbreaking Elimination of Violence Against Women law, which criminalized rape, child marriage, and other abuses for the very first time. “If this law passes it will basically rip the heart out of that law,” Barr says.

Before that 2009 legislation, bringing a case of abuse to court “would have been virtually unheard of.” In the years since, progress has been slow—the number of cases is still in the low hundreds, and there are some provinces where no cases have been reported yet—but moving forward. In 2013, the United Nations Assistance Mission in Afghanistan found a 28 percent rise in reported violence against women. But now it appears those gains are reversible. After 12 years of advancement, the past nine months have seen a series of setbacks for women’s rights. In July, parliament lowered its quota for female lawmakers on provincial councils from 25 percent to 20 percent. Lawmakers also blocked an effort to endorse the 2009 anti-violence law in May, and in November, a draft of a law that would reinstate public execution by stoning was scrapped after it leaked to the media. A current bill in front of parliament awaiting a vote would allow men more authority over children, including the right to marry an adopted female child.

“Men within Afghan society always been unhappy with these changes that they see as challenges to Islam or tradition,” Barr says of the liberties afforded in the 2009 law. “They’ve been biding their time waiting for a chance to put things back to where they think they ought to be.” This fragile crossroads is another reason that the International Violence Against Women Act needs to be passed by the American Congress, says Christine Hart, the policy and government affairs manager for the D.C.-based Women Thrive Worldwide. IVAWA—which was reintroduced to the House in November and will be brought to the Senate in the next few weeks—would make preventative measures against gender-based violence a permanent addition to U.S. foreign policy and strengthen diplomatic weight behind gender equality. In Afghanistan, U.S. agencies would have to incorporate gender-based violence concerns into trainings and programs.

Hart is hoping that Secretary of State John Kerry will speak out against the bill, but for now the only American acknowledgement comes from the U.S. Embassy in Kabul, which is “extremely concerned.” The bill has also been criticized by the EU’s foreign policy chief. But for months, HRW’s Barr says, there was “deafening silence” from the world. There must be incentives, she says, to keep Afghanistan on track as international involvement on the ground disappears. Money going to the Afghan police force should be earmarked for programs eliminating gender-based violence, and a message should be sent to the government that any reversals on gender issues are unacceptable.

“These opponents of women’s rights have said to themselves, ‘We don’t have to wait to 2015 after the troop withdrawal, we can get started now,’” Barr says of recent backsliding. “And unfortunately, the lack of involvement by the international community proved them right.”