Punishment for Sexual Assault in Afghan Law

Abstract

Sexual assault is one of the most significant crimes that not only jeopardizes public order and morality but also deeply wounds human emotions and feelings, often trapping its victims in severe mental and psychological illnesses for many years. Although the Penal Code prescribes long-term imprisonment, life imprisonment of the first degree, life imprisonment of the second degree, and even the death punishment in cases of gang rape of a woman or gang rape of a man resulting in the victim's death, for the perpetrator. The Penal Code divides the punishment for sexual assault into two categories: Hadd (fixed punishment) and Ta'zir (discretionary punishment). If the conditions for applying the Hadd penalty are not met in a sexual assault crime, or if it is invalidated due to doubt or any other reasons, the perpetrator is sentenced to Ta'zir punishment. Perpetrators of Hudud crimes, according to paragraph 2 of article 2 of the Penal Code, are punished according to the Hanafi jurisprudence of Islamic Sharia. However, the Hadd punishment for sexual assault differs significantly from the perspectives of Hanafi and Jafari jurisprudence. According to Hanafi scholars, there is no independent title for the punishment of sexual assault; rather, the punishment depends on whether the perpetrator is married or unmarried. On the other hand, Jafari scholars prescribe the punishment of death by sword or another lethal weapon for the crime of sexual assault. The Penal Code considers various Ta'zir punishments for the perpetrator of sexual assault, which will be discussed.