The 'Marital Rape Law' That Isn't One
There is lot of fuzz in the 'western' media about a marital rape law that is supposed to be implemented in Afghanistan.
There are three big misunderstandings here.
1. Afghanistan is an Islamic Republic and according to its constitution Sharia is already the law of the land except for certain minorities who under the Afghan constitution can settle family disputes under their own jurisprudence.
2. The 'martial rape' paragraph is part of the 270 page Shia personal status law implementing the civil code for the often abused Shia Hazara minority. It was introduced by the relative conservative Ayatollah Mohammed Asif Mohseni and certainly does not fit our liberal ideals. But the law is urgently needed to protect the minority and has already languished for one and a half year in the parliament. It is good that it passed at all.
3. The law has nothing to do with marital rape. In a comment to a post by Joshua Foust, Sam Zarifi, Amnesty International's Asia Director (but writing in private capacity), translates and comments on the law:
The particular provision that has been mistranslated and misinterpreted as 'allowing' marital rape doesn't do so, legally speaking: article 132 includes the following relevant provisions:
- The spouses are obliged to socialize with one another and their parents and family.
- The spouses are obliged to cooperate and collaborate for welfare of their families and children.
- The spouses must abstain from any actions that would cause the hatred and displeasure of one another; whenever the husband wants his wife to attend to her appearance, the wife is obliged to do so.
- The husband is obliged, except during period of travel, to spend the night in one place with his wife at least one night out of four, except when it is harmful to one of the spouses or one of them suffers from a venereal disease. It is the duty of the wife to tend to the husband's inclination for sexual liaison. The husband is obliged to not postpone intimacy with his wife for more than four months without his wife's consent. [...]
As you can see, this is not an explicit endorsement of marital rape. From a purely legal point of view, the offending language in section (4) ("It is the duty of the wife to tend to the husband's inclination for sexual liaison") has to be read in light of section (3)'s injunction against actions that would cause "hatred or displeasure". And under basic jurisprudential principles the article could be interpreted so as to prohibit rape, in fact. [...]
So the law is not allowing rape within marriage nor outside. The Telegraph has an interview with Ajatollah Mohseni where he gives his interpretation which sounds about the same.
The 'western' outrage over this will have negative consequences. While the law may now get changed but the outcome of that change may well be worse than the original text. Additionally the 'western' criticism of the Afghan parliament over this is interpreted as Christian interfering in Afghan Islamic affairs (always remember - Islam is as much a legal system as a religious one.) The negative feeling such interference creates will be projected on the Hazaras.
This is not a law 'western' societies would implement today. But let us also acknowledge that equal rights for men and women in marriage in western societies were only implemented during the last 50 years (and in some countries are still not) and that it takes a society time to change.
This is also not the law young liberal Shia women in Afghanistan, many of whom grew up in the more liberal Iran, would like to have. But that is a general problem with minority opinions in a democracy and not something the 'west' should criticize.
And yes, I do feel sorry for the women in Afghanistan that do not have equal rights. I feel also sorry for the women in Ireland who do not have the right to choose and for the women in Germany who in average get payed 20% less than men in comparable positions. And where is the liberal outrage about the status of Saudi women?
Posted by b on April 17, 2009
http://www.moonofalabama.org/2009/04/the-martial-rape-law-that-isnt-one.html
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Palash Biswas
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