Tearfully, Gulnaz recounted the story of the assault that took place in 2009. The attacker, nearly twice her age, pinned her down, tied her up and then savagely raped her. She described going to the police with her disabled, widowed mother to report the rape. There she was instantly imprisoned for reporting the crime. With no male head of household present, the two women were not taken seriously.
After years of advocacy by human rights groups and other activists, and a decade of war by the United States and its allies — a war in which the need to uphold the rights of women has often been invoked — Afghan women remain trapped in a legal system that often punishes them for being the victims of brutal crimes.
My illiterate client told me of her experience going to court with her illegitimate daughter and not understanding the legal process. She was forced to represent herself after her Afghan lawyer failed to show up, yet the judges who presided over the case refused to allow her to speak. Instead, they berated Gulnaz for lying, insisting that women cannot get pregnant by having sex just once. This assertion was the basis for the 12-year sentence that was imposed, with a wrenching caveat: Marrying her attacker would allow her to be “free.”
Unfortunately, Gulnaz’s case is not an anomaly but represents the situation that more than half of the imprisoned women in Afghanistan find themselves in — locked up for moral crimes, according to a recent studyby the United Nations.
I submitted a pardon application for Gulnaz, accompanied by a petition with more than 6,000 signatures. She had no family willing to take up her cause, but the world, as we discovered, supported her release.
Standing up for the rights of women like Gulnaz was part of the reason the United States went to Afghanistan in the first place. In 2001, one of the key political arguments that President George W. Bush’s administration used to support the military deployment was stopping the terrorists, for whom “the brutal oppression of women” was “a central goal.” In November 2001, Congress passed a bill noting Taliban oppression of women and stressing the need for Afghan women and children to have better access to health care and education.
International attention to the fate of women in Afghanistan has been an issue throughout the war. In 2009, the Afghan government focused on violence and human rights when it passed the Elimination of Violence Against Women Law. Though this measure garnered substantial support worldwide, oversight has been limited. The law is largely ignored in Afghanistan’s justice system, and abused women are routinely imprisoned as a result. While Gulnaz’s case brought international media attention to the plight of Afghan rape victims, inside Afghanistan, gross violations of basic human rights are often business as usual.
In Gulnaz’s case, after we submitted the pardon application, President Hamid Karzai formed a judicial committee with members from the Ministry of Justice, the Supreme Court and the attorney general’s office. They were to investigate Gulnaz’s case and, reportedly, the cases of all other women imprisoned in Kabul. The formation of this committee was an unprecedented step for the government: It was directly confronting the realities of women imprisoned for moral crimes.
Ultimately, Karzai’s investigation found that Gulnaz’s conviction was based on oppressive, misogynistic interpretations of Islamic sharia law. These views were in part remnants of the Taliban regime’s swift and unforgiving justice system. A more contemporary interpretation of sharia law, Afghan laws and international conventions supported her exoneration.
On Dec. 14, 2011, Karzai acted upon the pardon application and exonerated Gulnaz. He acknowledged that the charge of adultery against her was a “misjudgment” and that the cultural norms leading to her imprisonment were long overdue for an overhaul. This decision has the potential to set a precedent for other rape victims seeking justice and is a significant recognition of the persecution that Afghan women have long endured under the veil of cultural appeasement.
After 10 years of foreign assistance, it should not have taken the president of Afghanistan to overturn the decisions of three Kabul courts that receive vast amounts of international funding. It should not have taken international media attention to embarrass the Afghan government into finally doing the right thing. And it should not have taken a Western lawyer to give Gulnaz legal representation to achieve exoneration.
According to an October report by the Special Inspector General for Afghanistan Reconstruction, which works to monitor aid spending there by various U.S. governmental agencies, almost $73 billion has been appropriated to Afghanistan since 2002. This money needs to be used more wisely.
Rule-of-law initiatives, particularly on women’s rights, have a better chance of success if the international community exercises more oversight and makes a greater effort to understand how the Afghan justice system really works. At present, I am the only Western lawyer in Afghanistan taking on such cases. Gulnaz’s case came to me through concerned people who knew of the miscarriages of justice that she endured. I took it to advocate for her and other women in Afghanistan’s legal system.
Although her case has a suitable ending, it took agitating for attention at the highest levels in the country to get a rape victim out of prison. The laws intended to protect her, and the international initiatives meant to do the same, did nothing.
Clearly most of the responsibility should lie with the Afghan government. Prosecutors and judges perpetuate human rights abuses on women, especially in cases involving domestic abuse, with little to no accountability. Because the justice system has failed to deter people within the government from committing human rights abuses, more than half of the women imprisoned in Afghanistan continue to be prosecuted for moral crimes.
The government should establish a standing committee within the attorney general’s office and the judiciary to ensure that cases of women charged with moral crimes never make it to court — or at the very least, that women are not prosecuted for being victims of violence. From one “misjudgment” could come a real chance to save other women from similar suffering.
I realize that it may take years, if not generations, for significant improvements on women’s rights in Afghanistan. I am optimistic, however, that Gulnaz’s case can serve as a turning point to encourage changes that can protect other women enduring her same plight.
One pardon, one release, one woman, is not good enough.
Kimberley Motley is an American lawyer who practices in the United States and Afghanistan, where she works on human rights and other cases.
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