We identified that advocacy for women experiencing domestic violence in Afghanistan tended to overlook the phenomena of women who killed an abusive spouse. To address this gap, a team of defence lawyers and a team of Australian SAHR legal fellows investigated international jurisprudence in this area to develop methods to defend women in Afghanistan who killed their aggressors in circumstances where their culpability should be mitigated under the law.
The starting point of this project was to create strategic advocacy guides for arguing defences to murder based on the Afghan Penal Code. The Code contains a number of defences that may be available to a battered woman including self-defence, provocation, insanity and compassionate sentencing. A guide was developed for each of these. A key focus was ensuring that the guides were culturally appropriate, practical and reflected best practice. Although Afghan is a civil legal system, the judiciary’s approach to deciding cases is ultimately informed by culture and religion. Afghanistan is not a secular society and to this extent our guides engage with Islamic law and do not exclusively preference a secular approach.
Our key insights from this project are:
Gendered laws and patriarchal interpretations of those laws are a primary challenge for defence lawyers, and our guides seek to make lawyers aware of the gendered nature of the law and arm them with strategies to rebut gendered stereotypes and assumptions in the court;
A key innovation we wish to see progressed in Afghanistan is the reliance on medical and psychological evidence in defence work or a ‘medico-legal approach’;
We also encourage advocates to reflect on the tension between competing considerations of individual justice in each case and constructing legal discourse which promotes systemic justice.
Violence against women in Afghanistan
Like many countries around the world, domestic violence is pervasive in Afghanistan and the majority of women have experienced domestic violence. Unfortunately, while progress has been made, it is still a society where domestic violence is considered a family matter, outside the purview of the State or police. When women are victims of violence and have no avenue or redress (or feel that they have no such avenue), these are risk factors for a woman killing an abusive spouse. There are no clear statistics on how many women are charged with murder in Afghanistan. One independent news source suggests it may be as high as a quarter of all incarcerated women.
Many of the women plead guilty and are convicted. The vast majority are represented by weak lawyers who do not attend the court sessions. Only a handful of lawyers conduct their case work with the cause of women’s rights in mind. Even if a defence or justification is open on the facts, defendants are rarely afforded this benefit. Researchers have criticised the culture of defence work in Afghanistan as not being zealous. It is not the norm for advocates to test the boundaries of the law in Afghanistan, to adduce expert evidence in defence of their clients, or to draw on legal developments from other jurisdictions. Therefore, one of the goals of this project was to create an educational resource for lawyers. Critical thinking and willingness to challenge traditional legal approaches is key to evolution of law. Our guides seek to encourage advocates to take a strategic and incremental approach to challenging the boundaries of traditional conceptions of criminal defences.
Zealous defence lawyering in this area requires, amongst other things, knowledge of domestic violence and its nuances, sensitivity and understanding of each client’s needs and engagement with extensive evidence including witnesses and expert testimony. Local lawyers who we have briefed with the guides will visit women’s prisons in Afghanistan and look for cases that have strong factual scenarios that can be brought to the court as test cases for defending women against murder of their abusive spouses. Local lawyers also plan to adopt some of the arguments and theories to advocacy in non-murder cases.
Legal framework for defending battered women charged with homicide
Defending battered women charged with homicide is tremendously difficult in any jurisdiction. Biases, stereotypes and gendered laws converge to deny justice to many women in these circumstances. In Afghanistan, the institutionalised patriarchal interpretations of the Penal Code make this even more challenging. Moreover, the hailed Elimination of Violence against Women Law (EVAW) which was passed by Presidential Decree in 2009, was drafted with the female victim in mind, and not, the female defendant.
Afghanistan’s former Penal Code dates back to 1976. Gender-equal amendments were recently introduced into a newly enacted Penal Code. We have not had access to the Penal Code. It remains to be seen whether traditional defences to murder were retained, or, otherwise amended to equalise women’s access to murder defences, in justifiable circumstances.
As it stands, women cannot, on the face of the Code, rely on provocation to excuse their conduct. Other defences, such as self-defence are on their face gender neutral, but the laws are inherently framed to accommodate male-centric factual scenarios, making it difficult for women to fall within the confines of these defences.
We created guides for self-defence, provocation, insanity and compassionate sentencing. We recruited a team in Australia through a partnership with the University of Queensland Pro Bono Centre to research the guides – in particular, to comb through international case law and transcripts to identify best practice approaches to defence advocacy in domestic violence contexts. The guides aim to illustrate not only how to argue a defence when the facts of the case clearly fall within the defences’ confines, but also what to do if the woman’s conduct does not neatly align with the traditional conceptualisation of the defence, which is quite often the case. We consider how advocates can push the boundaries, tweak, re-interpret and challenge conservative and gendered interpretations of the Penal Code.
While we recognise that it is unlikely that the judiciary will be immediately receptive to novel arguments, we want advocates to be informed about the kinds of legal arguments which could be brought before the court. It is a step towards changing the culture of defence work in Afghanistan and removing the legal barriers that prevent women from being able to run these defences. The change in attitudes and approaches to the law that allow women to rely on these defences in other jurisdictions, did not happen overnight. But by tracking back and analysing the development of these defences in other jurisdictions, international jurisprudence can inform and assist approaches for Afghan lawyers.
In many jurisdictions historically, there has been little scope in the law for battered women’s cases to fall within traditional defences. However, through years of strategic legal advocacy, we have seen greater recognition for battered women’s experiences as deserving of the court’s compassion and the successful application of defences in domestic violence contexts. Progressive evolution of the law or an incremental approach is more likely to be successful than radical argumentation, especially when adopting arguments from international jurisdictions to the Afghan context. We stress that international legal developments cannot simply be transplanted into other jurisdictions. Careful consideration must be given to ensure arguments are aligned as harmoniously as possible with the legal, social, religious and cultural frameworks in existence.
Read an introductory presentation to our guide here.