Afghanistan: Don't Prosecute Sexually Assaulted Children

The Afghan government should take urgent steps to ensure that rape and sexual abuse of children leads to prosecution of the abusers - not of victims, Human Rights Watch said today. InAfghanistan's western Herat province, in an October 2012 case that only recently came to light, a court convicted a 13-year-old boy on moral crimes charges, and sentenced him to one year in juvenile detention after he was accused of having sex with two adult men in a public park.

Afghan law prohibits "pederasty," commonly understood to mean sex between a man and a boy, and makes it a crime punishable by 5 to 15 years in prison. "Moral crimes" charges, which under Afghan law include not only pederasty but also all sexual relations between people who are not married to each other, have frequently been used to punish the victim of a criminal offense.

"When a man has sex with a 13-year-old child, the child is a victim of rape, not a criminal offender," saidBrad Adams, Asia director. "The Afghan government should never have victimized this boy a second time, but instead should have released him immediately with urgent protection and assistance."

A prosecutor involved in the case told Human Rights Watch that the boy was prosecuted because he said he had consented to engaging in sexual relations with several adult men. The decision in the case is under appeal. The authorities also arrested the men and charged them with moral crimes, but the outcome of their case is unknown.

There is no age of consent for sex under Afghan law. Children under age 19 convicted of crimes are entitled to reduced sentences under the 2005 Juvenile Code. United Nations bodies responsible for protecting the rights of children have said that countries should have an age of consent sufficiently high to protect children.

In spite of Afghanistan's strict prohibitions on sex outside of marriage, the United Nations and other organizations have documented numerous instances of sexual abuse of boys through a practice known as "bacha bazi." The phrase, which translates as "boy play," refers to boys who work as dancers, performing at parties attended by men, and typically living under the protection of a military commander or other patron. Afghan culture typically prohibits women or girls from dancing for a male audience. While their role as entertainers can be innocent, in many instances these boys are also the victims of sexual assault and abuse.

"The Afghan government needs to take urgent steps to protect children from sexual assault, including boys who are abused through the practice of bacha bazi," Adams said. "Treating boys who have been raped as criminals undermines all government efforts to protect children from abuse."

In 2009, Afghanistan enacted the Law on Elimination of Violence Against Women, which for the first time introduced the term "rape" as a criminal offense under Afghan law. The law imposed sentences similar to the 5-to-15-year sentences for pederasty and sex between people who are not married to each other. Although some alleged rapists have been prosecuted under this law, in 2012, Human Rights Watch documented repeated incidents in which prosecutors pursued criminal charges against alleged rape victims for engaging in extramarital sex. Prosecutors told Human Rights Watch that they had pursued criminal charges in such cases because they did not believe victims who said they had been raped, or they believed the victims were of "bad character."

Since the law's passage, specialized units responsible for prosecuting crimes against women and children have been established in several Afghan provinces with support from international donors. The UN in 2012 documented numerous cases of sexual assault of boys and girls, including sexual assault of boys by armed men and in detention centers.

A major limitation of the 2009 law is that it refers only to the rape of women or girls. There is no comparable specific prohibition on rape of men and boys. A wide-ranging revision of Afghanistan's penal code has been planned for several years, but there has been little progress in drafting a new law.

"Afghan lawmakers should move forward promptly in revising the Penal Code to provide better protection for both victims and criminal suspects,"Adams said. "The revision should ensure that rape is seen as a serious crime, whether committed against men and boys or women and girls, and that victims are not treated as criminals."