The Anti-Sexual Harassment Committees in the Ministry of Justice, Ministry of Higher Education, Ministry of Labour and Social Affairs and Ministry of Women’s Affairs have not received any complaints of sexual harassment since the enactment of the law in 2016.
Issue 1: We are informed of reports by victims of sexual harassment who had initiated complaints but stated that their claims were not properly addressed. In some cases, victims were reported to have been turned back by the Committee and told to dress more appropriately, with one victim saying that the Committees are “male-dominated” and “they take the sides of men who harass them” and “blame victims for their dressing”.
The Law on Prevention of Sexual Harassment is problematic on many counts, some of which were raised in 2017 in a petition by women’s civil society, addressed to President Ashraf Ghani. Essentially, it failed to preempt, prevent and address gender-discriminatory practices endemic to sexual harassment cases.
Under the law, the anti-harassment committee could comprise a two-thirds male majority to receive and adjudicate complaints, which in itself is an absolute deterrent for victims to complain especially in a country such as Afghanistan where women do not openly speak about private/sexual matters.
This is exacerbated by the fact that committee members are often colleagues of harassers, they often are lower-ranking staff, or depend on harassers’ goodwill for their appraisal and continued or peaceful employment. For example, most sexual harassment complaints in universities are against teachers, particularly high-ranking teachers, yet other teachers themselves are members of the Committee. Due to high incidences of tribalism in Afghanistan and high risk of members’ bias towards their colleagues, students have shared that they cannot trust that the process will be independent and impartial or that their complaints will be kept confidential.
Adding to the above, the government has not issued any directives on anonymity, non-retaliation and conflict of interest nor are there procedures and policies on the same. This is causing victims to be intimidated to silence, undermining the objectives of the system and breeding more distrust in justice processes.
Recommendation:
The committee should be an all-female committee staffed by qualified individuals who have received mandatory training on the complaints process and reviewing of evidence.
The committee members should independent (not employees of the institution) and impartial (its work should be governed by rules of procedure).
Committee members should be physically accessible to persons in the institution and at the same time, interface between committee members and victims must account for confidentiality, anonymity and safety.
Anonymity, confidentiality and non-retaliation policies and procedures must be developed.
Rules of procedure and evidence must be developed.
Issue 2: The law does not define or set the threshold of evidence to prove sexual harassment thus, leaving gender-discriminatory norms and practices to determine the threshold of proof. As most acts of harassment are non-contact and take place in private and as most discerning offenders go to all ends to avoid an evidence trail most complaints will not be admitted.
This expectation is evident in the practices of the police in 3 cases in 2019. In a report we received, a policewoman was disguised as a female student and used as a seductive lure to catch an offender red-handed. The mission was hailed as a success but when questioned why the mission had to reach to that extent (endangering the honour and safety of the said policewoman and exposing her to ill-conduct by fellow colleagues), it was reported that they needed more evidence. The testimony of the victim and text messages were insufficient. It was the third report we had received about such missions in 2019, with two other reports involving the police setting up the victims themselves in an operation to ensnare their offenders. In the latter case, there were two witnesses testifying to several sex offences yet their testimonies were insufficient.
Recommendations:
A single testimony of a credible victim should be adequate for a committee to make a finding.
The government must provide directives (which are updated from time to time and constitute an amendment to policy) on how to handle certain situations. One of such directives is how the committee should handle “he said, she said” situations. Another of such directives is how the committee should handle inconsistencies or gaps in the testimony of traumatised victims.
Issue 3: Victims, even the most discerning ones, are simply not equipped to draft their own complaints. The complaints which we have reviewed (in prosecution cases) are brief, vague, omitting details, including extraneous information and even prejudicial information.
Recommendation: Victims should be advised that they are entitled to free legal representation or advice and be referred to a lawyer, legal advisor or case manager to prepare their statements.
Issue 4: Historically, women are characterised as ‘liars’, ‘untrustworthy’, ‘emotional’ and ‘irrational’, their complaints are often disbelieved. The law supposes this as it includes a provision on false accusation.
Recommendation: Law, policy or directive should state that the burden of proving “false accusation” lies with the person alleging that a person has falsely accused and generalized motives should not be accepted as intent to falsely accuse. Failure to prove a case should not be equated to false accusation.
Issue 5: The law places the burden on victims to recognise that they have been harassed, report the harassment and bear the consequences of the report.
Recommendation: Since sexual harassment occurs as a result of institutional neglect, the law should place the onus on the Afghanistan government to set up an independent process to audit institutions, hold council to answer questions, gather constructive feedback from women and encourage and obtain anonymous reporting.