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Jennifer Afarin
International Women’s Rights
Sp 2012
A Study of Domestic Violence and Sexual Abuse Laws in the United States and
Afghanistan
Introduction
Domestic violence against women is a continuing issue in both developed and developing
countries. The United States, though it has come a long way from the days when women were
treated like property and had very little civil rights, still does not seem to treat crimes against
women very seriously in the justice system. Afghanistan, on the other hand, has few laws
protecting women from violence, and those few laws are barely enforced by the government.
Additionally, these few laws appear to be pushed aside even further by laws which make it
acceptable for a husband to rape his wife, or worded differently, eliminate the possibility of a
husband’s relations with his wife entailing rape.
A stark similarity between the two countries is that the laws in place are often so weak or
the situations so poorly handled that women resort to handling the problem themselves, although
in different ways. American women will sometimes turn to killing their abuser when the justice
system fails them and women in Afghanistan have resorted to putting themselves in hospitals to
get away from their abusers. A comparison between Afghanistan, a country where women are
struggling for the most basic rights of equality to men and the United States, a country where
women have supposedly achieved equality to men shows two major themes; First, that the laws
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are written and theoretically in place, yet enforcement is lacking and often times appalling.
Second, that the laws in place have weak penalties for crimes that are violent and cruel.
Domestic Violence Laws in Afghanistan
Violence against women in Afghanistan takes many forms, the most prevalent of which
are rape, domestic violence/battery, forced marriages of young girls, honor killings and
mistreatment by in-laws in the forms of violence, forced prostitution and forced servitude
(Afghan Law to Protect Women Rarely Enforced, NP). According to the UN, the most prevalent
of these crimes is rape, which UN reports describe as “A Human Rights Problem of Profound
Proportions.” (UN: Rape in Afghanistan, NP).
Afghanistan’s Law on the Elimination of Violence Against Women or the “EVAW” was
passed in 2009 and gave Afghan women hope that their futures would be brighter (UN: Rape in
Afghanistan, NP). The actual text of the law outlines different offenses against women as well as
the accompanying penalties (discussed in the next section). To date, crimes against women
remain prevalent due to weak enforcement. A UN report on the enforcement of the EVAW
showed that, between March 2010 and March 2011, prosecutors opened investigations on only
26% of the crimes reported and filed indictments in only 7% of those cases (Afghan Law to
Protect Women Rarely Enforced, NP). The report stated that “victims were pressured to
withdraw their complaints or to settle for mediation by traditional council…. Sometimes
prosecutors didn’t proceed with mandatory investigations for violent acts like rape or
prostitution. Other times, police simply ignored complaints” (Afghan Law to Protect Women
Rarely Enforced, NP).
In order to better portray just how poor enforcement of these laws is, it is important to
look at three factors; 1) The prevalence of violence against women before the EVAW and how
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such a small percentage of indictments does almost nothing to solve the problem, 2) The
extremely small penalties assigned to various crimes in the text of the actual EVAW, and 3) The
passing and enforcement of concurrent laws which condone the rape of women.
A study called Global Rights’ Living with Violence: A National Report on Domestic
Abuse in Afghanistan presented the shocking conclusions of surveys on domestic violence
conducted with women in 4,700 households in Afghanistan in 2006 (Nijhowne and Oates, NP).
The study found 87.2% of the women interviewed had experienced “at least one form of
physical, sexual or psychological violence or forced marriage” (Nijhowne). 62% of the women
“experienced multiple forms of violence.” 28% said they had been raped or victims of some sort
of sexual violence. 52.4% had experienced physical abuse. 39.3% of the women had been hit by
their husband in the last year. 73.9% of the women reported experiencing psychological abuse
and 58.8% of the women were in forced marriages (Nijhowne).
The study also found that husbands were not the sole abusers in these women’s lives.
30.6% reported abuse by their husbands and 23.7% indicated their mother in law as an abuser.
10.4% indicated abuse from their sister in law, 9.9% from their brother in law and 7.4% reported
abuse from their father in law (Nijhowne). The study also found that only 18% of the women
who participated in the survey knew other women who had experienced violence by their
spouses, which those conducting the study believed suggested that “most women are isolated in
their experiences of violence.” (Nijhowne).
A Closer Look at the EVAW
The EVAW begins with a statement of its purpose; “1) Maintaining Sharia and legal
rights and protecting the human dignity of women. 2) Protecting families and fighting against
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customs, traditions and practices causing violence against women and which are against Islamic
Sharia. 3) Protecting and supporting women who are victims of, or at risk of violence. 4)
Prevention of violence against women. 5) Maintain public awareness and training on violence
against women. 6) Prosecuting perpetrators of violence against women” (EVAW, Chapter 1,
Article 2, Section 1-6). It outlines the governmental institutions and their responsibilities in
carrying out the law and providing “supportive services” for female victims and educating the
public about violence against women (EVAW, Chapter 1-2). Notably, the EVAW lists the
“Rights of the Victim,” which include the right to prosecute the offenders, be provided with
shelter or other safe places, receive free emergency health services, and have an advocate and the
protection of confidentiality (EVAW, Chapter 1, Article 6).
Chapter 1, Article 5 of the EVAW lists the offenses covered by the law. Among the listed
offenses are rape, forcing into compulsory prostitution, forcing into self-‐immolation or suicide or
using poison or other dangerous substances, selling of women for the purpose of marriage, baad
(retribution of a woman for a murder, to restore peace etc…), forcing into compulsory marriage,
marriage before the legal age, harassment/ persecution, forced isolation, starving, deterring from
education and work, and forced labor (EVAW, Article 5). Chapter Three of the Act then goes on
to list the penalties for offenders.
The first of the listed crimes to be mentioned in this section is rape. The EVAW itself
presents a very confusing picture of what exactly constitutes rape. Chapter One, Article 3,
defines rape as “Perpetrating adultery and pederasty act (s) on adult women with force or
perpetrating that with an underage woman, even if the victim gives consent, or attack to the
chastity and honor of a woman.” Pederasty is not defined in this or any other section of the
EVAW, but it is defined as “one who practices anal intercourse especially with a young boy”
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(Merriam-Webster, NP.) Presumably, the EVAW is referring to the act of anal sex with a
woman. Aside from the definition, Chapter 3, Article 17 of the EVAW breaks down the crime of
rape and its penalties this way:
“(1) If a person commits rape with an adult woman, the offender shall be sentenced to continued
imprisonment in accordance with the provision of Article (426) of the Penal Code, and if it result
the death of victim, the perpetrator shall be sentenced to death penalty.
(2) If a person commits rape with an underage woman even with her consent, the offender shall
be sentenced to the maximum continued imprisonment according to the provision of Article
(426) of Penal Code, and if it result the death of victim, the perpetrator shall be sentenced to
death penalty.
(3) In the two above mentioned paragraphs (1, 2) of this Article the perpetrator shall be
convicted to pay the amount of dowry (Mahre Mesl) to the victim.
(4) If a person commits to violate chastity of a woman, but his violation does not result to
adultery or pederasty (committees touching etc…), considering the circumstances he will be
sentenced to long term imprisonment not more than 7 years.
(5) If the victim of paragraph 4 of this Article has not reached the age of 18 or the perpetrator of
the crime is close relative up to degree 3, or the perpetrator is teacher, cleaner, doctor of the
victim or somehow the perpetrator has influence and authority over the victim, in such situations,
the perpetrator shall be sentenced to long term imprisonment not more than 10 years considering
the circumstances” (EVAW, Chapter 3, Article 17).
The Penal Code which sections 1 and 2 refer to describes rape as “forced sex” and sets out the
burden of proof, “the accusing party must provide (1) the testimony of four trustworthy (i.e., of
impeccable character) male Muslims; (2) each witness must have been present at the time of the
offense; and (3) the witnesses must have seen the actual act of penetration. There cannot be the
slightest shadow of doubt regarding the veracity of the witnesses’ testimony” (Afghanistan Legal
Education Project, 90-92).
If this burden of proof applies to the EVAW as is referenced, a woman cannot prove rape
unless four other Muslim men witnessed the act of penetration. The punishment given if this
burden of proof is met is stoning to death if the rapist is married, or was previously married and
100 lashes and one year in prison if he is unmarried (Afghanistan Legal Education Project, 90-
92). Therefore, sections 1 and 2 of Article 17 provide for only one year imprisonment for an
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unmarried offender who rapes a married woman. Contrast this with sections 4 and 5 which
provide for a maximum of seven years for “violating the chastity of a woman” and a maximum
of ten years if she is underage. There is no definition provided for what constitutes “violating
chastity,” nor does the term “forced” surface in these sections.
Other offenses listed in the EVAW constitute serious violence and very low penalties.
Forcing a woman into prostitution carries a penalty of at least 7 years for an adult woman and 10
years for an underage girl (under age 18) (EVAW, Chapter 3, Article 18). The penalty is similar
to violating the chastity of a woman. Seriously violent crimes against women that do not result in
some kind of sexual act carry extremely low penalties. Burning a woman, spraying a woman
with poisons, feeding a woman poison and injecting a woman with poison carry a penalty of a
maximum of 10 years in prison (EVAW, Chapter 3, Article 20, Section 1). When considering
that poisoning a person is tantamount to attempted murder, a maximum of ten years can be
considered a shockingly small penalty.
Almost as confusing as the rape article are the articles on battery and laceration. Chapter
3, Article 22 of the EVAW states that “If a person beats a woman, considering the mitigating and
aggravating circumstances, the offender in view of the circumstances shall be sentenced in
accordance to Article 407 – 410 of the Penal Code.” The EVAW itself does not specifically
define battery or laceration. However, Section 407 of the Penal Code, referenced in Article 22 of
the EVAW (above) defines battery as “beating and laceration with the victim experiencing a cut,
injury, permanent handicap, or loss of a sense” (Afghanistan Legal Education Project,111-112).
The penalty, according to section 407 of the Penal Code, for causing permanent handicap or loss
of sense is a maximum of 3 years in prison (Afghanistan Legal Education Project, 112).
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Directly following Article 22 in the EVAW is Article 23 which states that “If a person
beats a woman which does not result in damages and injury, the offender in view of the
circumstances shall be sentenced to the short term imprisonment not more than one month.” This
article does not define damages or injury, however, article 408 of the Penal Code describes less
severe injuries as “those that prevent the victim from temporarily using a body part for more than
twenty days” (Afghanistan Legal Education Project, 112). Therefore, loss of the use of a body
part which is not “permanent” is not severe. This definition could place the perpetrators of severe
beatings carried out against women in prison for a maximum of only one month.
Additional crimes and their accompanying penalties cover areas from starvation and
isolation to theft of property. Starving a woman carries a penalty of a maximum of one month
(EVAW, Chapter 3, Article 32). Forced isolation, defined as keeping a woman from her family,
carries a penalty of a maximum of 3 months in prison (EVAW, Chapter 3, Article 31). Forcing a
woman into marriage carries a penalty of a minimum of two years, regardless of whether she is
an adult or underage (EVAW, Chapter 3, Articles 27-28). Forcing a woman to work without
compensation carries a penalty of a maximum of 3 months (EVAW, Chapter 3, Article 36).
Preventing a woman from collecting her inheritance carries a penalty of a one month maximum
and taking a woman’s property carries a maximum of 3 months in prison (EVAW, Chapter 3,
Articles 33 -25).
The words “depending upon the circumstances” also appear many times throughout the
text of the EVAW without the mention of what these circumstances may be, rendering many of
these crimes ambiguously defined. Looking at these small penalties and ambiguous wording, it is
a major possibility that such short sentences or extremely high burdens of proof are major
contributing factors to women not reporting these crimes to the police or dropping the charges. If
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the perpetrator is a family member or spouse (which most likely they are in order to be able to
commit many of these crimes), then they will return from prison in one month and be even
angrier. Conversely, they could report the crime and the charges will be dropped due to
“mitigating circumstances,” which will also render their abusers angrier. These women have a
reasonable fear that the abuse will worsen.
It’s also important to note that the EVAW does not explicitly mention murdering a
woman or the penalty for such an act. Granted, it does mention that the penalty if a woman dies
during the perpetration of rape warrants the death penalty, but there is no explicit mention or
definition of murder (EVAW, Article 3, Section 1).
In competition with rape laws allegedly designed to protect women in the EVAW, there
are laws which protect a husband who rapes his wife. These laws are perhaps not merely
competition, but have pushed the fight for equal rights for women even further to the backburner.
In 2009, a law was passed in Afghanistan which states explicitly that, “The wife is bound to be
preen for her husband as and when he desires.” Article 132 of the law also says that, “As long as
the husband is not traveling, he has the right to have sexual intercourse with his wife every fourth
night, unless the wife is ill or has any kind of illness that intercourse could aggravate, the wife is
bound to give a positive response to the sexual desires of her husband” (New Afghan Law
Legalizes Rape, NP).
The law goes further to state that “A man should not avoid having sexual relations with
his wife longer than once every four months" (New Afghan Law Legalizes Rape, NP). The law
applies to the Shiite community which makes up almost 20% of Afghanistan’s population (New
Afghan Law Legalizes Rape, NP). The passing of this law strikes yet another blow to the
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movement for women’s rights because this law was never discussed or debated in Parliament
(New Afghan Law Legalizes Rape, NP).
Not only is the EVAW hardly being enforced, but the Afghan justice system is
imprisoning women who are the victims of abuse and rape. Women who run away from their
abusers and forced prostitution as well as women who report being raped to the authorities are
often imprisoned because it is considered a “moral crime” for a woman to run away from home
or have sex outside of marriage (even though it is rape). It is also considered adultery and thus, a
moral crime, if a married woman is raped. According to Rights Watch, at least 400 women are
being held in prison due to “moral crimes” (Kimball, NP). Often, the abusers and rapists of these
women roam free while they are imprisoned and if the women are released, they face a stigma in
the community and many cannot return home for fear of becoming the victims of honor killings
(Kimball, NP).
Two examples of the “dysfunctional justice system,” are those of two women, Aisha and
Nilofar. Aisha is a 20 year old woman who fled a forced marriage to an abusive husband. She
was caught and sentenced to 3 years in prison. Her husband and father were never charged with
forcing her into marriage or for the abuse. Once she is released, Aisha cannot go home for fear
that her father will kill her and her entire family has “left her behind.” (Kimball, NP). Nilofar is
a woman who was repeatedly stabbed in her chest, arms and head by her husband with a
screwdriver because she let a man into the house and he considered it “adultery.” The police
arrested Nilofar for alleged “adultery” and her husband was never charged for beating her
because it was deemed that the repeated stabbing was not “serious enough” to constitute a crime
(Kimball, NP). Not only are the penalties in the EVAW so low that they provide almost no
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justice at all, but they are being enforced backwards; with the abusers walking and the victims
being imprisoned.
The situation has become so bad for many women in Afghanistan that they have resorted
to the practice of Self-immolation, in which women who are victims of domestic violence in
their homes set themselves on fire or mutilate themselves in order to have prolonged hospital
stays in burn wards or in the hopes of dying in the process because they feel there is no way out
(Women's Rights Trampled despite New Law, NP). In 2010, doctors had reported that there were
over 90 self-immolation cases in Herat’s burn hospital alone in the time span of 11 months and
55 of those women had died from their burns (Women's Rights Trampled). The lack of
enforcement of the alleged women’s rights law (EVAW), the imprisoning of female victims
while the perpetrators of those crimes go free and the last resort of self-immolation by so many
women begs the question, is the EVAW anything but a political show?
Women in United States Law
Laws in the United States are complex and vary at federal and state levels. There are laws
covering domestic violence, rape, stalking and sexual harassment. There are also federal laws,
such as The Violence Against Women Act and The Family Violence Prevention and Services
Act which establish funding for domestic violence hotlines, shelters, and support and community
programs (Laws on Violence against Women, NP). This section discusses the penalties that
convictions under these domestic violence and rape laws carry as well as their effectiveness. For
purposes of differing state laws on what is normally an issue in state courts, this paper focuses on
Illinois state law for discussion of penalties but will explore effectiveness of the enforcement of
these types of laws throughout the U.S.
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Domestic battery is defined as knowingly and without legal justification, causing bodily
harm to any family or household member or making physical contact of an insulting or
provoking nature with any family or household member (720 ILCS 5/12-3.2.). Domestic Battery
is generally a Class A misdemeanor, which carries the penalty of a maximum of one year in
prison and a $2,500 fine (730 ILCS 5/5-4.5-55). Courts can, in lieu of jail time, sentence a
defendant to anger management classes, therapy, community service etc. (Gainor, NP). This is
generally the case unless the violence falls into different categories such as prior and subsequent
convictions or aggravated battery, which raise the crime to a Class 4 Felony.
Class 4 felonies carry a penalty of 1-3 years in prison as well as the possibility of
probation (720 ILCS 5/12-3.2, Gainor, NP). Aggravated battery is defined as “A person who, in
committing a domestic battery, knowingly causes great bodily harm, or permanent disability or
disfigurement commits aggravated domestic battery” (720 ILCS 5/12-3.3). More than one
conviction of aggravated battery upgrades the crime to a Class 2 Felony, which carries a penalty
of 3-7 years, or 7-14 years (720 ILCS 5/12-3.3, Gainor, NP).
In addition to domestic battery, the Illinois Domestic Violence Act recognizes different
aspects of abuse. The first kind is physical abuse, which entails “sexual abuse, physical force,
confinement or restraint, purposeful, repeated and unnecessary sleep deprivation, or behavior
which creates an immediate risk of physical harm” (750 ILCS 60/103 (1), (14), Orders of
Protection, NP). A second aspect of abuse is harassment, which is defined as “unnecessary
conduct which causes a victim emotional distress,” and entails an offender creating disturbances
at a victim’s place of work or school, repeatedly following the victim in public, surveilling the
victims home, repeatedly calling the victim, threatening the victim and hiding or threatening to
take away the victim’s child or children (750 ILCS 60/103 (1), (7), Orders of Protection, NP).
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Third is interference with personal liberty, which is defined as “committing or threatening to
commit physical abuse, harassment, intimidation or deprivation (i.e., not providing food,
medicine, or shelter) with the intention of forcing one to do something they don't want to do or
not allowing them to do something that they have a right to do” (750 ILCS 60/103 (1), (9),
Orders of Protection, NP). These offenses can range from Class A misdemeanors to Class X
felonies depending upon the circumstances.
Sexual abuse (which constitutes rape, forcible rape, and sexual assault) is defined as
follows: “A person commits criminal sexual abuse if that person: (1) commits an act of sexual
conduct by the use of force or threat of force” (720 ILCS 5/11-1.50). The burden of proof in
these cases is “guilt beyond a reasonable doubt” and the prosecution may use witnesses,
testimony from a professional about rape trauma syndromes, the victim’s testimony and rape kits
(Kilpatrick, NP). Rape is a difficult case to make in the absence of evidence of physical violence
(bruising etc.) and DNA (Kilpatrick, NP). Sexual abuse is a Class A misdemeanor, with a prior
or subsequent conviction it is a Class 2 felony, with 3-7 years in prison and the possibility of
probation (720 ILCS 5/11-1.50). Basically, someone convicted of rape on a first offense will
spend a maximum of only one year in prison.
Forced prostitution is defined as any person who knowingly commits any act promoting
prostitution and profits from prostitution by compelling a person to become a prostitute (720
ILCS 5/11-14.3). This is classified as a Class 4 Felony and carries a penalty of 1-3 years in
prison, with the possibility of probation (Gainor, NP). Promoting juvenile prostitution is defined
as knowingly profiting from prostitution by any means where the prostituted person is under 18
years of age” (720 ILCS 5/11-14.4). “Any person who knowingly confines a child under the age
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of 18 against his or her will by the threat of imminent harm and compels the child to engage in
prostitution is forcing juvenile prostitution” (720 ILCS 5/11-14.4).
Profiting from juvenile prostitution is a Class 1 Felony, which carries a penalty of 4-15
years in prison (720 ILCS 5/11-14.4, Gainor, NP). Confining and compelling juvenile
prostitution is a Class X felony, which carries a penalty of 6-60 years in prison (720 ILCS 5/11-
14.4). Prior or subsequent convictions as well as committing these acts “within 1,000 feet from a
school” raise the Class 1 Felony to a Class X (720 ILCS 5/11-14.4).
Orders of protection are offered to victims of domestic violence to protect them from
repeat attacks and/or from the attacker. The violation of an order of protection (which is often the
only protection a battered woman has against an abuser) is a Class A misdemeanor unless an
offender has prior convictions or violations, which makes the violation a Class 4 Felony, 1-3
years in prison (720 ILCS 5/12-3.4, Gainor, NP). Battery and violating orders of protection are
offenses for which probation may be available if certain conditions are met (720 ILCS 5/12-3.3).
This presents a problem (as discussed later) when an offender who consistently violates orders of
protection is granted probation.
Orders of protection are civil remedies and the burden of proof is “preponderance of the
evidence,” which means that the evidence shows that the allegations made are more likely true
than not (Russell, NP). There are three different kinds of orders of protection in Illinois (may
differ from state to state). Two of these types are temporary orders and the third is a plenary
order which extends for what is considered to be long term (Russell, NP).
Plenary orders, if entered with a divorce, run for the entire course of the decree. If the
order is entered during a criminal case, it extends as long as the sentence plus two years, in
conjunction with any proceeding it extends for the duration of that proceeding and an
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independent order is fixed for a term no longer than two years and must then be extended to
continue their protection (Russell, NP, 750 ILCS 60/201 et seq). A woman under an order of
protection must always be on her guard for order expiration dates, court appearances and gaps in
time when the orders may be expired or suspended in between extentions.
Enforcement of US Laws
The crux of the effectiveness of any laws lies in the way they are enforced. The words
are there but where does that leave battered women and victims of sexual abuse? Unfortunately,
the daily news in the U.S. is filled with stories and cases in which battered women report abuse
by their spouses only to have their reports go unheeded or to find that the justice system can be
lenient with their abusers. In many cases, arrests are not even made and they are granted orders
of protection which their spouses often breach. In fact, half of all protective orders obtained by
women who are victims of abuse are violated by the offender and more than two thirds of all
protective orders obtained by rape victims are breached by their attackers (Domestic Violence
Facts, NP).
Once the breach of the Order of Protection occurs, the abuser is arrested and released on
bond pending trial. If convicted, the sentence could be a very brief period of time in prison, after
which the abuser is released and free to repeat the cycle again; possibly stalking and harassing
the woman who pressed charges (No Safe Place: Violence Against Women, NP). Throughout
this process, the woman is in constant fear of bodily harm or death and sometimes, the abuser
does kill the abused (No Safe Place: Violence Against Women, NP). In fact, it is reported that in
“70-80% of intimate partner homicides, no matter which partner is killed, the man physically
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abused the woman before the murder” (Domestic Violence Facts, NP) and there are about 16,800
deaths per year due to intimate partner violence (Domestic Violence Facts, NP).
Studies show that “Battering is the single major cause of injury to women, more frequent
than auto accidents, muggings and rapes combined” (Stepnick, NP). According to the FBI,
domestic violence occurs every 15 seconds in the U.S. and 30% of female homicide victims are
killed by their husbands or boyfriends (Stepnick, NP). The Cook County (Illinois) Dept. of
Corrections study of the Chicago women's prison found that 40 percent of inmates incarcerated
for murder or manslaughter had killed partners who repeatedly assaulted them (Stepnick, NP).
These women had sought police protection at least five times before resorting to homicide. A
similar study in the state prison system in California showed that 93% of the women who killed
their spouses had been abused by them and 67% stated that it was a last resort to protect
themselves and their children (Stepnick, NP).
Additionally, a Police Foundation study conducted in Detroit and Kansas City found that in
“85-90% of domestic/partner homicides, police had been called to the home at least once during
the 2 years preceding the incident; in more than half of these cases they had been called 5 times
or more.” (Stepnick, NP). As these studies show, enforcement of domestic violence laws is
lacking when the police are called to a home where abuse is going on or where a victim reports
abuse. In fact, a study of police departments across the country conducted by the National
Institute of Justice found that of all arrests made for domestic violence; approximately 43%
resulted in convictions (Domestic Violence Cases: What Research Shows, NP).
Why are these women, victims of abuse, ending up in prison for defending themselves?
Especially in light of the ineffectiveness of the justice system in protecting them and, in many
cases, their children? The answer is that these women are convicted of murder based on the
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timing of the killings. At law, it is only considered self-defense if the woman kills her spouse
while she is being beaten or attacked. A battered woman who feels desperate enough to kill her
spouse to protect herself and/or her children, and who undertakes to kill her spouse while she is
not under attack in order to prevent further abuse, is treated as a murderer (Hatcher, NP). The
defense of Battered Woman’s Syndrome is allowed in courts in order to prove that the abused
woman’s state of mind was such that she felt she was constantly under attack or in fear of the
next attack, and therefore acted in self-defense (Hatcher, NP).
Statistics (as the above) on the incarceration of women who kill their abusive spouses is
still so high that it appears that juries are not so willing to accept this defense as legitimate, most
likely due to prevailing sexist attitudes towards women (Hatcher, NP). Journalists, prosecuting
attorneys and citizens in general often paint these women as cold blooded killers who lie about
being abused or using Battered Woman’s Syndrome to “get away with murder” (Hatcher, NP).
Statements such as “Why didn’t she just leave him?” “Why didn’t she just call the police?” are
prevalent sentiments in the opinions of those who do not accept BWS as a valid defense
(Hatcher, NP). These women are often painted as Black Widows rather than victims who acted
in self-defense.
A similar attitude occurs in relation to rape. Too often there is the attitude of the women
being dressed a certain way, flirting, being intoxicated or in some other way “asking for it,”
“giving the wrong impression,” or “seducing their attackers” (Dickson, NP). Rape carries a
stigma for the victim and 54% of sexual assaults are not reported to the police (Rape, Abuse and
Incest National Network Statistics, NP). This is a large number when faced with the fact that
sexual assault occurs every 2 minutes in the US, leading to an average of 207,754 victims each
year (Rape, Abuse and Incest National Network Statistics, NP).
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Though incidences of rape have decreased by 60 % in recent years, little comfort can be
found in the fact that 97% of sexual offenders will never spend time in prison (How Often Does
Sexual Assault Occur, NP). According to the Justice Department, “of every 100 rapes that occur,
46 are reported, 12 lead to arrest, 9 are prosecuted, 5 lead to felony convictions, 3 will spend
time in prison (possibly very little time), and the other 97 will walk free.” (Reporting Rates
RAINN, NP). These circumstances create a scenario where the stigma attached to reporting rape
as well as the low conviction rates; discourage victims from coming forward (Dickson, NP).
For many women who do come forward, justice is denied as their claims are dismissed or
swept under the rug. This pattern of sweeping rape under the rug is very clearly seen in the
military. Some female members of the military report being raped to their superiors only to be
told to forget about it, to be accused of lying or to be discharged from the military because of a
“psychological or personality disorder” (Martin, NP). Military records show that: “1) In the
Army, 16% of all soldiers are women, but females constitute 24% of all personality disorder
discharges, 2) In the Air Force: women make up 21% of the ranks and 35% of personality
disorder discharges, 3) In the Navy: 17% of sailors are women and 26% of personality disorder
discharges, and 4) In the Marines: 7% of the Corps and 14% of personality disorder discharges”
(Martin, NP).
Even more disturbing than the low reporting and conviction rates for rape is the systematic
response to rape in some cases. Aside from the challenges victims of sexual abuse will face in
reporting the rape, undergoing testing for the rape kit and giving testimony in court, there are
victims who are jailed for “reporting false rapes.” This is a police response to reports of sexual
abuse by victims, in which they follow a certain protocol to investigate if the rape allegation is
false. According to the FBI, “a report should only be considered unfounded when investigation
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reveals that the elements of the crime were not met or the report was ‘false’ (which is not
defined)” (Gross, NP).
“A report of rape might be classified as unfounded if the alleged victim did not try to fight
off the suspect, if the alleged perpetrator did not use physical force or a weapon of some sort, if
the alleged victim did not sustain any physical injuries, or if the alleged victim and the accused
had a prior sexual relationship. Similarly, a report might be deemed unfounded if there is no
physical evidence or too many inconsistencies between the accuser's statement and what
evidence does exist. As such, although some unfounded cases of rape may be false or fabricated,
not all unfounded cases are false” (Gross, NP). Studies conducted in various cities found that
some areas found 41-50% of reported rape cases to be “unfounded” (Gross, NP).
One particularly shocking scenario of accusations of false reports by the police is that of a
woman who reported being raped at gunpoint in 2009. The police determined her report to be
false and she was jailed pending trial. While she was in jail, her attacker raped more women at
gunpoint before he was caught and she was released (Actual Victim Jailed for False Police
Report, NP).
There has been an alarming rise in numbers of arrests made of rape victims who
are alleged by police to be false or unfounded, especially when the cases come down to no
evidence other than the claims of the alleged rapist versus the alleged victim, not just in the
United States but in the United Kingdom as well (Alleged Rape Victim Arrested for False
Reporting, NP). Additionally, victims of sexual abuse who withdraw claims of abuse or rape are
sometimes arrested and jailed for “falsely withdrawing their real allegations” (Pidd, NP). Sexual
abuse is extremely prevalent in the U.S. and so are victim blaming attitudes.
19. 19
Conclusion
A comparison between Afghanistan, a country where women are struggling for the most
basic rights of equality to men and the United States, a country where women have supposedly
achieved equality to men shows two major themes; First, that the laws are written and
theoretically in place, yet enforcement is lacking and often times appalling. Second, that the laws
in place have weak penalties for crimes that are violent and cruel.
Rape is a big problem in Afghanistan because the laws are murky at best and barely
enforced. Victims are jailed for “moral crimes” when they report being raped while their rapists
walk free. Rape is also a big problem in the United States. Sexual abuse is underreported because
of the victim blaming attitudes of “it’s her fault,” “she brought it on herself,” “she seduced him”
and “she’s lying.” Victims who report rapes can be sent away by police as liars and in some
cases, jailed for providing what police claim to be “unfounded reports” and some victims are
even jailed for choosing to retract their “true” reports; not to mention that 97% of the
perpetrators of sexual abuse never spend even a day in prison.
The EVAW lays out the penalty for battery of a woman that does not lead to permanent
physical disability or death at a maximum of one month in prison. The U.S. will provide the
victim with an order of protection which 50% of all perpetrators will violate and which has
expiration dates. A breach of these orders will lead a court to order fines, community service and
anger management before resorting to imprisonment, which will range no longer than one year
for a first offense and 3-7 years for subsequent offenses; penalties which are eligible for
probation under certain conditions.
The US has more of a structure to its domestic violence laws and the penalties that,
although weak, look stronger in writing than those of Afghanistan. The question remains, how
20. 20
well enforced are these laws where only 43% of all domestic violence reports result in
convictions? How well enforced are these laws when police have been called to homes where
domestic violence was occurring 1-5 or more times preceding 85-90% of domestic partner
homicides?
Self-immolation is a problem in Afghanistan because of continuing violence against
women and the lack of enforcement of laws passed to protect them. In the United States, 40% or
more of female inmates in prison for murder or manslaughter reported killing their partners
because of a cycle of domestic violence for which the law had failed to protect them and their
children.
Victim blaming attitudes against women are inherent in the weak enforcement of laws as
well as a deterrent factor to female victims reporting crimes committed against them. Is this
attitude present at the law enforcement level or is it a flaw in the system as a whole? Are the
weak penalties assigned to these violent crimes a sign that crimes against women are simply not
taken seriously? It is apparent that developed and developing countries alike have a long way to
go in improving the ways that their justice systems treat violence against women.
21. 21
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