Mandana Hendessi on the criminalisation of Afghan women's sexuality

In the Islamic legal tradition, any sexual act and behaviour outside marriage is a crime. The main category for such crimes is zina, defined as extra-marital sexual intercourse between a man and woman. There are other categories of sexual relations criminalised in these legal traditions: liwat, sexual relations between men and musahaqa, sexual relations between women.  The punishment for zina, as stated in Islamic legal texts, is the same for men and women: one hundred lashes for the unmarried, and death by stoning for the married (instances that have remained largely undocumented in history).

With the emergence of modern nation-states in the Muslim world, the laws governing zina were relegated to the ‘personal status’ issues, alongside ‘crimes of passion’. However, with the rise of Islam as a political force in the late 1970s, this changed dramatically. The crime of zina took centre stage in law, having been incorporated in the countries’ penal codes under the hegemonic leadership of Islamists in the political and judicial structures.

To explore and illustrate the intersection of religion, culture, social norms and law in the context of zina, I have used Afghanistan as a case study in this article, describing how zina laws in their various shapes and forms have been conceptualised and practised as an instrument for criminalising women’s sexuality, restricting their freedom of choice.

I worked with women who were experiencing or were at risk of gender-based violence in Afghanistan intermittently between 2008 and 2016. In addition, I worked on a voluntary basis as a prison visitor with women in Kabul prison (February-April 2010). There, I worked with 15 women who were convicted of various crimes ranging from zina to drug trafficking and murder, serving sentences ranging from 10 years to life (20 years).

Afghanistan’s Zina Prisoners

In 2009-2010, I worked with an international NGO in Afghanistan whose mission was to help and support women who were experiencing or were at risk of gender-based violence and those who had come into conflict with the law. We were operating in three of Afghanistan’s provinces: Kabul, Herat and Mazar-e-Sharif with teams of trained social workers/counsellors and defence lawyers. As I learned more about the issues and dilemmas of abused Afghan women and how their resistance to patriarchal cultural norms were perpetually tested by family violence and punitive measures on the part of the state, I became more and more intrigued by the plight of women prisoners.

I learned from lawyer colleagues that many had been disowned by their families, having been convicted of ‘moral’ crimes – a legal term used for zina –  that carried a 10–15-year jail sentence. So, I decided to work on a voluntary basis as a prison visitor. A role I had back in the UK before leaving home for Afghanistan, where I visited asylum seekers in detention centres, offering practical and emotional support to desperate detainees - people facing the brutality of asylum procedures in the UK and tormented by the anguish of possible deportation while awaiting the outcome of their asylum applications.

I started work in Badam Bagh women’s prison, situated on the outskirts of Kabul, in February 2010. A newly-built three-story white building with 24 cells, each cell accommodating up to eight women and their children. It was going to be a weekend occupation, outside my full-time occupation. I spent three months there, engaging with 15 women who had been jailed for crimes of zina, abduction, drug trafficking and murder. At that time, there were just over 150 women and 85 children held in the prison. The majority – 60 percent – were zina prisoners. Most had run away from home, fleeing family violence and forced marriage. All had ended up in prison because the prosecutors and judges applied the archaic penal code (influenced by Sharia and customary laws), bypassing the new Elimination of Violence Against Women (EVAW) law, according to which they had been convicted of committing zina or the intention to commit zina because they’d run away from home.

Moreover, in many of the cases, the women had been asked to pay a bribe by either the prosecutor or judge or both or asked to have sex with them in exchange for ceasing criminal proceedings. In all cases, they had refused to do so – hence the conviction and jail sentence. None had access to a defence lawyer whether at the time of arrest or trial. Only a few were receiving legal guidance and support from experienced lawyers, including my colleagues, helping them to appeal against their sentences. We were only scratching the surface.

In 2013 the numbers of women zina prisoners in Afghanistan peaked to 600. A damning report published by Human Rights Watch in 2016 stated that half of all women in prison and about 95 percent of girls in juvenile detention in Afghanistan had been arrested and detained on charges of zina. In some cases, displaced women and girls who had been raped were charged with zina, alongside their rapists. Police and prosecutors often charged runaway women with the intention to commit zina to justify their arrest and incarceration for rejecting a spouse chosen by their families, fleeing domestic violence or rape, or eloping to escape forced marriage.

In 2008, Niloofar (not her real name) aged 17 years was forced into marriage with a business man 20 years older than her in Herat (Afghanistan’s western province), as compensation for a debt her father had been unable to pay back. Her husband’s third and  youngest wife, she lived in a house alongside his other wives and children and was subjected to severe beatings and emotional abuse from all of them. She ran away from this unbearable situation with her lover Sohrab (not his real name) – travelling  across the border to Iran. They married and settled in the city of Mashad, north eastern Iran, not far from the border with Afghanistan. A year later, Sohrab went back to Afghanistan allegedly for taking a consignment of goods and never returned. Running out of money and owing rent to the landlord, Niloofar packed her bags and returned to Herat. Back in Herat, homeless and penniless, she was arrested by the police for loitering and later, after telling them her story of running away from home to escape abuse and violence, she was charged and convicted for zina and was subsequently sentenced to 15 years imprisonment. To protest against her sentence, she self-immolated in prison and was being treated for burns in the Herat Hospital’s burn-unit at the time of interview.

I got to know Niloofar in the autumn of 2009 on a visit to the burn unit of a hospital in Herat, a town in north-west Afghanistan, close to the border with Iran. Niloofar’s story, though harrowing, is a testament to courage shown in the face of atrocities of life for women in Afghanistan.  It’s about a brave woman standing her ground against a social order that uses zina laws, often packaged as ‘ordained by God’, to criminalise women’s sexuality, taking away their freedom of choice. An example of rebelling against a destiny pre-scripted by those who believe a woman’s sole role in life is to obey and serve her husband, enduring in silence all the viciousness and injustices of her domestic life. It is a tale of a brave woman rising against an ordeal, even if that will take her to the extremity of death by fire.

All the women I befriended through the course of my work in Badam Bagh prison impressed me with the same resilience and courage for defying the gender discriminatory social norms that have been integral to Afghan social structures and culture for centuries. Rather than submitting, some had resorted to running away from home (others by killing their assailants) – the only way they thought they could release themselves from the shackles of their oppressive domestic lives. And for them, languishing in prison was a badge of honour. It symbolised the continuation of their protests against forced marriage and other forms of gender-based violence in a society that had turned its back on them, labelling them badmaash – meaning a rogue, bad seed, in Dari – a national language of Afghanistan. They were feisty and unwilling to bow down to pressures, whether from their families or the state, even when the punishment was as harsh as being disowned and outcasted. Facing a precarious future, they had surrendered to a fate that was anything but respectability and social acceptance because they had a strong sense of self-respect and -honour. Prison life despite its harshness, they said, offered a refuge from their repressive home environment. In prison, they said, they could smoke, talk and laugh loudly, walk around unveiled, express themselves freely and make long-lasting friendships with other women. True, prison had taken away their liberty, confining them to an overcrowded cell and a rigid institutional routine, but their lives outside prison, they said, was suffocating, facing an environment that hemmed them in so tightly that they ‘couldn’t even breathe’.

It was initially hard for me to comprehend why prison was seen as a refuge, especially when I heard from Feroza (not her real name), one of the 15 women I had befriended in Badam Bagh prison, that the risk of rape in prison loomed large for the inmates. She said she often heard the clanking of chains and unbolting of the cell doors late at night. She said it was common knowledge among the inmates that women were sedated by prison guards and taken out of their cells late at night to salubrious locations in Kabul for sex with men in the Afghan political elite. This was also a common occurrence in the old women’s jail in Kabul, a section of the notorious Pol-e-Charkhi prison for men, which was closed down in 2008. There, the five inmates who had become pregnant in prison revealed that they had been routinely raped by male prison guards and their wealthy benefactors after being heavily sedated by female guards. The story became a national scandal and headline news in 2007, involving prominent parliamentarians, and led to the dismissal of the male prison governor, his female deputy and a few prison guards. However, none was prosecuted and a year later the deputy discreetly returned to work in the new prison, holding a senior administrative role.

I quizzed Feroza further on the sexual violence in prison, trying to understand how the women survived such perilous environment. She explained that their daily lives outside prison was fraught with acts and threats of violence, atrocities they had to face alone in their secluded home lives. In prison, however, they were no longer alone; they had each other for support. Domestic violence, rape and sexual assaults, pervasive as they are in Afghanistan, are taboo topics. ‘It is a sin to talk to anyone about what is going on in your family. It is seen as shaming and dishonouring your kin – a sacrilege in Afghan culture’, Feroza explained. So, while they suffered in silence outside prison, they drew enormous strength from a collective solidarity and shared strategy to mitigate the risk of rape in prison. How did they do that? ‘We secretly get rid of all medication the guards give us when we are sick, because we know the pills are usually sedatives and not pain killers; we avoid close relationships with the guards who we suspect as accomplices in this sordid game because that’s how they target you. Once they find out about your weaknesses and vulnerabilities, they know how to draw you in their seedy affairs.’

Needless to say, all hopes for democracy, rule of law and justice in Afghanistan were dashed with the Taliban’s return to power. Scores of women and men, rights activists, journalists, lawyers, judges and those working for embassies and international organisations have left Afghanistan, fearing for their lives; girls have been banned from secondary education and women public sector employees were ordered to stay at home indefinitely without pay. The new Taliban regime has inherited an economy deep in crisis. The rapid economic decline, triggered by a persistent and severe drought that has blighted Afghanistan’s agriculture for the last decade and a reduction in international grants, has led to a sharp increase in poverty and macroeconomic instability. 

Even long before the collapse of the President Ghani’s government, Afghanistan’s economic growth had slowed down, reflecting weak investors’ confidence amid a rapidly worsening security situation. In addition, Afghanistan experienced a third COVID-19 wave starting in April 2021. Infection rates have soared to record highs, with less than five percent of the population fully vaccinated. In 2020, Human Rights Watch reported that the increase in COVID-19 infection rates has led to a sharp increase in girls dropping out of school. The disruption in girls’ education has in turn increased their risk of numerous abuses: child marriage, child labour, early pregnancy, and gender-based violence. The sudden halt in donor and government expenditure, following the Taliban takeover, trade disruptions and a dysfunctional banking sector have led to a sharp contraction in output and a catastrophic rise in poverty, food insecurity and displacement in the months to come. The UN has currently classed Afghanistan’s humanitarian crises as close to the worst in the world, worse than South Sudan, Syria and Yemen with over half of the population – 22.8 million – destined for acute hunger and 7.8 million at emergency levels by the first quarter of 2022.

Badam Bagh prison, once home to the 15 women I worked with in 2010, along with other prisons and detentions centres have been shut down by the Taliban, releasing all the inmates. Sadly, no one knows where they have gone to and what has happened to them. Before the Taliban seizing power in Afghanistan, the government of President Ghani had released a large number of Badam Bagh inmates to stem the spread of COVID-19 in the prison. These women were then housed in the already overcrowded and under-resourced women’s shelters. However, these shelters have also been closed down since the Taliban takeover. The whereabouts of the women residing there are woefully unknown too.