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Afghanistan’s “Rape Law” In Context

April 2, 2009

I thought I would provide a bit of context for Afghanistan’s infamous new “rape law”, which Reilly brought up in an appropriately incredulous post. The issue is a good reminder of just how alien parts of the Islamic world can seem, from a Canadian perspective, but I think there are also a couple of factors that make the law a bit less alarming than it might appear at first glance.

First, astute commenter Shauna Sylvester was absolutely right to point out (under Reilly’s post) that the law is a political gesture directed towards the relatively small number of Shia Muslims in Afghanistan. As the Independent explains, the “rape law” is part of something called the Shia Family Law, which would apply only to the Shia minority. Most of Afghanistan’s Shia, in turn, are from small ethnic groups including particularly the Hazaras, a Persian-speaking people who are probably descended at least partly from Mongol invaders. Hazaras make up perhaps nine or ten percent of the population, well behind the Pashtuns and Tajiks, and apparently have a history of persecution at the hands of other Afghans. The Shia Family Law is being passed because Hamid Karzai has decided he will need more Hazara votes in this year’s presidential elections, so from one perspective the new laws represent a democratic, inclusive gesture. Their impact will also be limited to a small and atypical part of Afghanistan’s population, although a separate body of law for Sunni Muslims is said to be in the works.

Second, it’s still not clear what the Shia Family Law actually says, because there has been no official publication. According to the Independent, though:

The most controversial parts of the law deal explicitly with sexual relations. Article 132 requires women to obey their husband’s sexual demands and stipulates that a man can expect to have sex with his wife at least “once every four nights” when travelling, unless they are ill. The law also gives men preferential inheritance rights, easier access to divorce, and priority in court.

I’m not sure that a law that “requires women to obey their husband’s sexual demands” must necessarily permit a husband to compel obedience by force. In the Shia nation of Iran a wife who is sexually “disobedient”, in the same sense, simply forfeits her right to financial support. If Article 132 has a similar intent, this would be somewhat less sensational than news stories about “legalised rape” would suggest – although it would still be fairly distasteful, by Canadian standards. The same might be said for the other restrictions on female behaviour built into the law.

So how should Canada react to this? In my opinion, we should certainly tell Afghans in general and Hazaras in particular that we think the Shia Family Law is unfair and counterproductive. But after politely presenting our arguments, and listening to any reply that they might wish to make, we should step aside and let them run their own country.


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7 Comments leave one →
  1. April 13, 2009 10:16 am

    Thank you for totally ignoring the fact that the architect of the law are a Pushtoon from Kandahar, Karzai’s homeland; and an Arab ‘Sayid’ from the North.

    While targeting women is an outrageous aspect of everything Islamic, including this legislation, targeting the women of one of Afghanistan’s most ignored and persecuted ethnic groups i.e. the Hazaras is even worse.

    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 had 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 Shia Family Law is being passed because Hamid Karzai has decided he will need more Hazara votes in this year’s presidential elections, so from one perspective the new laws represent a democratic, inclusive gesture.”

    Are you kidding me!? Since when does Mohsini represent the Hazaras!? You do sound like Karzai’s spokesman.

    • corsullivan permalink*
      April 14, 2009 3:07 pm

      Thanks for bringing up Mohsini’s role in drafting the Shia Family Law. In self-defence, I should point out that this was not being widely reported at the time I wrote the original post – on the contrary, many news stories were describing the new law as an attempt to fulfill the wishes of the Hazara people, and I saw no reason not to believe them. It’s interesting to find out that the picture is even more complicated.

      Now, it seems, we have a case of a Pashtun cleric trying to impose a certain interpretation of Sharia law, seen from a Shiite perspective, on the Hazaras. This seems more than ever like an dispute in which Canada has little business intervening. And I still think the whole thing is being reported in an unhelpfully sensationalistic and decontextualised way.

  2. Patrick Dinnen permalink
    April 3, 2009 4:35 am

    I’m almost speechless over how you have tried justify a completely unjustifiable law. Do you by any chance work as a spin doctor for the Karzai government corsullivan?

    For one thing even if, as you suggest, this law doesn’t give the husband a right to compel sexual obedience by force that doesn’t mean it’s not rape. The threat of being left destitute is still very clearly coercion.

    And you idea that “[the] new laws represent a democratic, inclusive gesture” because one extreme segment of a portion of the Afghan population want them is simply mind boggling. Using that argument you could claim any horrific law was democratically inclusive just as long as some small proportion of a nation’s population welcomed it.

    • corsullivan permalink*
      April 3, 2009 12:06 pm

      Sorry about your attack of near-speechlessness! I’m definitely not anyone’s spin doctor, though I’ll admit to being a fairly extreme cultural relativist and also (perhaps ironically) a bit of a natural contrarian when it comes to the egalitarian obsessions my own culture seems to have slipped into of late.

      Your points are both good ones. The threat of destitution is definitely a form of coercion, and I would say that it falls somewhere in between asking nicely for sex and taking it by brute physical force. Whether one chooses to describe this as rape is a matter of definition – but I would say that if we’re going to call it rape, we should be clear that it’s a form of rape that doesn’t necessarily involve physical violence.

      I do think that allowing people to choose their own laws (as the Shia have apparently been allowed to do in this case) is democratic by definition, even if the laws in question seem horrific to an outsider. There’s no rule of the universe that says democracy must always lead to humane and pleasant outcomes. The Shia Family Law is a good example of how promoting democracy can sometimes conflict with other priorities, like promoting sexual equality (to say nothing of our Canadian idea that the state has no place in the bedrooms of the nation).

      I’m not saying that I like the Shia Family Law, or that I necessarily consider it justified (I rarely think in terms of objective justification, especially across cultural boundaries). My point is simply that media descriptions of the law (“Afghanistan legalises rape!”) have often been simplistic, that Canada doesn’t have much business telling the Hazaras and other Shias how their marriages and sex lives should operate in any case, and that we’re making a tremendous fuss about a law we haven’t even had the opportunity to read yet.

  3. Canadian Nurse permalink
    April 2, 2009 1:56 pm

    As a nurse who has worked with Shia’s, I can assurel you that it Shiite men have every right – and in fact, specific direction – to use physical force to compel their wife to obey him sexually – & in every other manner that he wishes.
    In addition, it seems the Independent misquoted the law, since it should say (as is custom) that the LEAST a man can have sex with his wife is a “once every four nights when he is NOT travelling.
    This law is legalised rape – & always has been as it has been customarily practised. I agree with you that we should tell the Afghans that Sia Family Law is against International Law (which it is), and then bring all our troops home immediately and, as you say, let them run their own country. There is nothing that we will ever be able to do that will change centuries of deeply embedded custom & practise, short of removing all the women from the country.

    • corsullivan permalink*
      April 3, 2009 11:49 am

      Thanks for the input – there’s nothing like firsthand experience. If you have time, I’d love to hear more about which Shias you worked with, and under what circumstances – I’ll bet you’ve got some interesting stories and worthwhile insights.

      Shia customs regarding marriage and sex, as you describe them, certainly sound unpleasant and one-sided. However, it still seems possible to me that the new law is intended to mitigate these traditions, rather than entrenching them. Perhaps, in other words, the Shia Family Law will actually turn out to give men less absolute authority in sexual and other matters than tradition would permit. I still think we should wait and see what the law actually says before we get too excited, as I’m willing to keep repeating until blue in the face.

      I’m curious about your statement that Shia men are supposed to have sex with their wives at least every four nights. Does that mean that men who prefer to have sex less often are violating custom?

      Finally, and just to clarify, my suggestion about “stepping aside” was not intended as a call to bring our troops home immediately. I just meant that our involvement in Afghanistan should not extend to writing their laws for them, especially in areas as culturally contingent as family life.


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