Press conference report on the recent decision of the Cabinet Law Committee to amend article 640 of the Afghan Penal Code
Protection Women and Standardized Forensic Examination Advocacy Group which have more than 20 national and international organizations members, held a press conference about the recent decisions of the Cabinet Law Committee to amend Article 640 of the Afghan Penal Code on Monday, September 7, 2020 in the presence of media in Afghanistan Civil Society Forum Organization hall.
In this conference, 37 people consisting of 22 women and 15 men have participated. In the panel of the conference, Ms. Jamileh Afghani, Head of Medica Afghanistan, Ms. Najla Rahel, Vice of the Independent bar Association of Afghanistan, Ms. Homeira Rasuli, Head of the Women’s Office for Justice, Mr. Latif Pedram, Head of the Office for Human Rights and Violence elimination, Mohammad Ashraf Bakhtiari, executive director of the Afghan Forensic Science Organization Yalda Ahmadi, Project Manager of Medica Afghanistan. Eight media including Khorshid TV, Shamshad TV, Ayneh TV, Rah-e Farda TV, Zhowandon TV, Radio Azadi, Radio Kilid and VOA, were present to cover the conference.
At the conference, the protection women and standardized forensic examination advocacy group concluded that the amendment of article 640 paragraph 2 of the Afghan Penal Code as unacceptable and called the recent decision of the Cabinet Law Committee unprofessional. The members emphasized their two demands; first, the hymen examination be prohibited unconditionally in cases of adultery, second, gynecological examinations be performed along with full physical and psychological examinations of women with the permission and consent of the court only in rape cases. It should be noted that this examination should be performed under the protocol inquiry connected to sexual violence and the Istanbul Protocol and other scientific and medical protocols.
The press release states: The Government of the Islamic Republic of Afghanistan is obliged by the national laws and international human rights instruments to respect support and implement human rights in the country. Advocacy Group for Women Support and Standard Forensic Medicine Examination appreciated The Ministry of Higher Education of the Islamic Republic of Afghanistan and Kabul Medical University for updating of the Criminalization of Virginity Examination and Forensic Medicine Curriculum and emphasizing that these steps are useful and effective in realizing human rights values, but the recent decisions of the Cabinet Law Committee in connection with the amendment of article 640 paragraph 2 of the Afghan Penal Code which was adopted on 12 September, 2020 are criticized which are as follows: any order for implementation of forensic medical examinations of hymen without the consent and court order is forbidden, the perpetrator will be condemned to short imprisonment sentence.
Therefore, the protection women and standardized forensic examination advocacy group which has more than 20 national and international organizations members known the amendment of article 640 paragraph 2 of the Afghan Penal Code as unacceptable and considers that the Cabinet Law Committee is somewhat does not believe in human rights values.
Virginity and anal examinations to prove crimes of public chastity and morality not only have no scientific basis, but are physically, psychologically and socially harmful to the examinees, and also cause serious violations of human rights, while it is leading judiciary to the country to astray. In addition, other examinations such as sperm examination without DNA analysis to prove moral crimes and examinations to determine the criminal responsibility of children are among the unscientific and discriminatory examinations that ease human rights violations in the country.
The above-mentioned institutions believe that hymen examination conduction with the court permission and women consent is considered a permitted violation of human rights in the country and paves the way for violence and discrimination against women; torture and invasion of women’s privacy. Therefore, in order to realize human rights values, we emphasize the responsibilities of the Government of Afghanistan and express the following demands:
- Examination of virginity to prove crimes of adultery and determining the sexual status of women should be strictly and unconditionally prohibited, and instead police, prosecutors and experts should use scientific and standard ways mentioned in article 19 of the Law of Criminal execution.
- Gynecological examinations should be allowed only in proving rape along with complete physical and psychological examinations of women with the consent and court order. This examination should be performed in the light of the Gender-Based Violence Protocol and the Istanbul Protocol and other scientific and medical protocols.
- Women, who have been convicted based on these examinations’ results, should have their cases reviewed. Also, if there are no other reasons and evidence other than the results of these examinations, they should be released from prison and be reinstated and compensated.
- Anal examination to prove sodomy, examination of sperm without DNA machine and determining examination for criminal responsibility of children should be criminalized and severe penalties should be imposed on the perpetrators of these examinations. In this case, the guidelines mentioned in the updated book of forensic medicine should be used.
- The Ministry of Higher Education of Islamic Republic of Afghanistan should most emphasize on implementation of forensic updates in public and private universities of the country and assure of their implementation to the people of Afghanistan.
A media reporter asked whether virginity examinations are an example of violence or not?
Ms. Rahel responded that in order to prove rape and adultery in articles 640 paragraphs 2 of the Afghan Penal Code, the examination of the hymen was allowed in two conditions; court order and the woman’s agreement. The Department of Forensic Medicine of Afghanistan fills in the consent form by the victim before the virginity examination, while an illiterate woman knows nothing about the consent. According to the principles of criminal law, the victim is divided into primary and secondary, that is, a woman who has been raped and hurt in the second stage will be examined and injured in forensic medicine. Ms. Rahel suggested that the examination must be strictly prohibited and alternative methods of examination mentioned in the GBV and Istanbul protocol should be used. She continued that there is no need to refer the victim to forensic medicine because the effects and symptoms left in the body of victim can be documented and used to prove the case. Also, in cases of adultery, the accused should not be necessarily referred to forensic medicine, because article 19 of the Criminal Executive Code points out to more than 30 cases and evidence to prove such cases. Ms. Rahel emphasized that such examinations are torture and harm women. She said that there are many ways to prove crimes, including rape, based on laws and the case should be sent to court.
Related to this question, Mr. Bakhteari added that the Advocacy Group for Women and Forensic Medicine Examinations believes that like any other crimes, crimes against chastity and public morality require detection, investigation and expert opinion. Based on legal and scientific standards, Afghan courts should consider this important issue during criminal trials, but unfortunately, based on the evaluations and monitoring that has been done on this process, these legal criteria are not considered at all in this process. Failure to comply with these criteria will, firstly, result in the violation of the human rights of the suspect and the accused, and secondly, the suspect and the accused will be harmed physically, mentally and prestigiously. On the other hand, the judiciary will be misled. Therefore, in order to investigate such crimes, it is necessary to refer to the GBV Protocol, the Istanbul Protocol and article 19 of the Penal Code, which unfortunately is not acted upon. These examinations and the way they are conducted are legally not only violence, discrimination and torture, but also a crime against humanity. Therefore, in order to clarify this issue in the Law of Violence Prevention, this case was mentioned, but unfortunately it was not taken into consideration. Also, we introduced these examinations as violence against women, which unfortunately was not approved. The lack of attention and disapproval of this issue is due to the lack of knowledge about the consequences and physical and psychological injuries of these examinations while these injuries are a kind of torture when they are caused on a person by public service employees. Bakhteari specified that these examinations are accomplished incorrectly, which is known as a two-finger examination and according to rape definition this examination itself is measured as rape The definition of rape under the Afghan Penal Code states that inserting any organ or foreign object into a person’s vagina and anus is considered rape. If a person is raped and harmed, he or she is expected to achieve his or her rights and justice through the criminal justice system. Yet not only these people do not achieve their rights, but they are also tortured and harmed more.
Bakhteari continued that these examinations have no scientific basis, so the condition and restriction on it is meaningless, so it is necessary that such examinations should be eliminated from the ground and forbidden. Scientific and alternative methods can be used to prove adultery cases so that a victim is not harmed repeatedly. For example, in cases of rape, there are special scientific criteria, that is, a person the raped person has not consented to it and has resisted and will have certain psychological and physical symptoms in his body that medical and psychiatric doctors could find out after inspection. At the same time, the police and the prosecutors can collect and examine evidence from the scene in accordance with item 19 of the Criminal Executive Code. He said that article 2 of article 640 of the Penal Code criminalizes virginity examinations, but also allowed this examination, in the sense that this examination can be done in accordance to the following two conditions; one is the order by a competent court and the other is the agreement of examinee. These two conditions are in conflict because consent means that a person conscientiously and voluntarily undergoes these examinations, but when the court ruling is involved, the will of that person will be revoked. Therefore, the advocator group demands that this examination is completely disqualified in adultery cases and female examinations are conducted in rape cases. In cases of rape, a gynecological examination should be performed only to determine the victim is not pregnant or to determine that she is not infected to contagious diseases like AIDS. Therefore, the amendment has not made a change because these examinations were done with the court order or the woman’s consent in the past, but now it has been slightly modified with the court order and the woman’s consent which is unprofessional and non-standard. The advocacy group demands that this cruel and humiliating examination and anal examination be completely banned and eliminated. Anal examination is humiliating, unscientific, and torturous because it is performed in a completely incorrect manner. In this examination, a finger is inserted into a person’s anus to measure the strength of its wall against pressure. If the sensitivity of the anal block against pressure is less, doctors conclude that the anus is loose and sodomy has taken place while anal looseness is related to many other factors; such as constipation, hemorrhoids, and other diseases can damage the anus. For these reasons, this examination is unscientific and has to be criminalized, but unfortunately, the judiciary violates the legal and scientific standards, instead of observing the process of justice and fairness, otherwise the committers of such criminal examinations must be punished.
Bakhteary further stated that age determination is also unscientific. He said that he has repeatedly raised the issue with relevant institutions that there are no specific criteria in the world to determine the exact age of individuals. Whichever method is used, a time frame of 4, 5 or 6 years must be considered. But forensic doctors set a certain age for people in age determination cases. For example, they write that he/she is 16 years old or he is 18 years old which is a completely wrong way of determining age and the probability of making a mistake is very high. It causes a child to be wronged and his rights violated. Therefore, it is necessary for such an examination to be criminalized and specific punishment should be considered for those who execute such unscientific examinations. There are better ways to determine the age like; checking the family history, school and educational centers of the person and checking his identity documents through statistics can be useful.