LGBTQ rights in Afghanistan
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Homosexuality and cross-dressing have been serious crimes at least as far back as the 1970s and become capital crimes in the 1990s. As of 2008, their appears that the regime change has not had much impact on the legal status of Afghanistan's gay, lesbian, and bisexual citizens.
Taliban
When the Taliban gained control of the country in the 1990s they criminalized all sexual relationships outside of a traditional heterosexual marriage, and would often publicly execute men and women for committing fornication and adultery and for engaging in sodomy.
In 1994 Mullah Omar saved a boy from being sodomized by two feuding generals in Kandahar and when he was subsequently given control of the city he decreed that violent and consensual sodomy would be capital crimes [1].
Post Taliban
In Kandahar an ancient ethnic custom seemed to become more public after the fall of the Taliban. This is where an adult man, the "Pashtuns" selects a young teenage boy, the "Ashna" and gives the teenage boy money or gifts in exchange for sexual favors. This form of prostitution seems to flourish in Kandahar due to the poverty of the teenagers and the fact that there are strict social taboos about single men mixing with women. In fact, the government had to enact a law that banned Afghan solders from having their "ashna" live with them. [2]. Yet, the national criminal code provides harsh sanctions for anyone convicted of sexual conduct outside of a legal marriage.
The Penal Code of 1976 was reinstated after the American invasion, and its article 427 prescribes long prison terms for adultery and pederasty.However, Article 427 of the Penal Code does contain sections that likely punish homosexuality with fines and long prison sentences[3].
The maximum punishment increases if victim is under eighteen years of age, if the defendant is in a position of authority over the victim, if the defendant has repeatedly committed the crime or if the crime results in the spread of a disease. The law also increases the available punishment if a "violation of honor" takes place.
Article 512 states that a person who is engaging in public "watching" in a repugnant manner shall be imprisoned or fined.
Shariah Law
Islamic Shariah Laws are still used along with the civil Penal Code, so in theory, homosexual relations could still be subject to death penalty. The courts have, however, interpreted the laws in a more moderate way since the fall of the Taliban Regime.
The fact that homosexual relations are still illegal was confirmed by the head of the Afghanistan Supreme Court, who said that sodomy is still a capital crime. Yet, in 2004, an American advisor to the Afghanistan government was arrested and sentenced to a prison sentence for homosexual activities with an Afghan man. Similar news reports have stated that people convicted of homosexuality are being given prison sentences [4]. These news report suggest that the Penal Code, and not the Judge's statements, is the controlling authority.
The new Afghanistan constitution does stipulate that Islam will be the basis of all government rules and regulations. None of the political parties have endorsed or even mentioned the subject of gay rights. In response to foreign inquiries, only the Afghan Social Democratic Party responded by stating that it "favored an international effort to fight the AIDS-HIV pandemic, but that homosexuality and same-sex marriages are opposed by all great religions."
Buddhist
It is important to note that Buddhism, a major religion in Afghan history, has a tolerant attitude towards homosexuality. However these tolerant views have been nullified by dominating Islamic influence.
Family law
The Afghanistan Law of Marriages (1971) stipulates that a legal marriage must be two Muslim adults of the opposite sex, and that it must meet the rules of Islamic law. While the law does not explicitly address the issue of same-sex couples, Article 41 of the Marriage Law stipulates that where the law is silent on a particular issue, it shall be decided based on the principles of Islamic law. Hence, Afghanistan family law does not recognize same-sex marriages, civil unions or domestic partnerships. Likewise The Afghanistan Law on Marriages Weddings and Circumcision (1949) speaks of marriage as something between a Muslim man and woman and states that marriages must follow Islamic law.
Article 430 states that it shall be treated as "Instigation of Delinquency" if an adults promotes or assists in the act of minors (under 18) being involved in the act of adultery, homosexuality or prostitution.
AIDS-HIV
Since the fall of the Taliban regime, more information has come to light about the AIDS-HIV pandemic in Afghanistan. Article 373 of the Afghanistan criminal code stipulates that a person that spreads a "dangerous disease" by accident shall be fined, but if the disease results in death or permanent disability the punishment shall be the same as if it were an accidental murder.
Community
LGBT people in Afghanistan have not yet organized any sort of gay rights effort, and its doubtful if the law would allow such an organization to exist or to publicly advocate its viewpoints.
Censorship
Article 32 of the Afghanistan Press Law Edict (2002) prohibits publications from promoting an "incitment to depravity." Likewise Article 27(D) of the Afghanistan Postal Law (1973) prohibits the usage of the postal service to exchange material that is "repugant to public decency and morals." These two provisions could be used to censor the distribution of materials advocating gay rights or talking about homosexuality in general.
References
- Foster, Stephen Wayne. Afghanistan. Encyclopedia of Homosexuality. Dynes, Wayne R. (ed.), Garland Publishing, 1990. pp. 17-19.
