As a member of the Criminal Law Reform Working Group (CRLWG), we contributed to the reform process of the Criminal Procedure Code (CPC). We suggested gender sensitive amendments to the CPC.
Additionally, we undertook an analysis of the EVAW Law punitive articles that have been integrated into the CPC. The amendments – clearly outlined and marked with the original law, the suggested amendment, and the justifications for such amendments – stem from best practices in legislation and reflect ground realities that our lawyers confront in courts on a daily basis.
We have experienced that the rather broad nature of some legislation gives judges the rein and discretion to introduce discriminatory interpretations. As such, in our amendments, we tried to limit judicial discretion by providing clear interpretive directions for the courts to follow.
These amendments are a response to where the law has failed in the last five years, what should be changed about it, and the reasons for such change. For each article we amended we were guided by our need to better serve our clients and ensure justice for survivors of violence.
Overall, the amendments included survivor-centered remedies such as (1) restraining orders [to stop the offender from doing something or prevent the offender from a place], (3) expulsion orders [to expel the offender from an institution] and (3) compensation orders [to compensate the victim], in order to, prioritize women’s real immediate and longer term needs. Provisions also hold the state accountable and/or liable when it fails to take reasonable action to prevent violence.
We have also improved the definition of crimes of violence against women and redefined “consent” in sexual-related offences in order to improve the interpretation of the law and ensure certainty and consistency in its application. The amendments address 1) EVAW articles, 2) general articles, and 3) sexual violence – related articles. A brief description follows below:
- EVAW Articles: These include amendments on beating; depriving a woman of inheritance; forced isolation; forced labor; injury and disability of victims of violence; prohibiting women from accessing health, education, and work; publishing and publicizing the identity of the victim, and setting on fire or using chemical substances.
- General Articles: These include the inclusion of a new article on the breach of duty by police, the prosecutor, and any other authority; amendments on compensation; on the definition of violence against women; and propose the inclusion of a new article about victim’s entitlement to all reasonably necessary remedy and relief.
- Sexual Violence Related Articles: These include amendments of articles 581 to 585 that include causing a person to engage in sexual or indecent activity without consent, forced zina or unlawful sexual intercourse, forced anal sex, consent of persons under the age of 18, and the prohibition of prosecution of complainant and victims of sexual crimes. The amendment also includes a new article on sexual harassment. Moreover, an amendment addresses forced prostitution; the definition of rape and the aggravating circumstances in the case of rape; the definition of zina and aggravating circumstances for male adulterer and adulteress.
MA presented the amendments to the Criminal Law Reform Working Group (CRLWG), to donors, UNAMA, AIBA and civil society. Mr. Ashraf Rasouli, the head the CLRWG, agreed to consider all the comments and amendments to the CPC by September 2016.
This was a small yet valuable step towards protection of Afghan women from violence coming from years of experience in legal representation of women. We have received positive responses and appreciation for the in-depth and thorough revision of the Penal Code from UNAMA, the second Vice President Sarwar Danish, and the EU.
While we relied on the goodwill of the CRLWG, donors, UN agencies, and civil society to consider and adopt our amendments. Advocacy activities pushing for the revision of the CPC are still ongoing.