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Afghanistan: Surge in Women Jailed for ‘Moral Crimes’

Prosecute Abusers, Not Women Fleeing Abuse

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(Kabul) – The Afghan government should take urgent steps to halt an alarming increase in women and girls imprisoned for “moral crimes,” Human Rights Watch said today.  Commitments by senior government officials to end such abuses have had little practical impact.

Statistics from Afghanistan ’s Interior Ministry indicate that the number of women and girls imprisoned for “moral crimes” in Afghanistan had risen to about 600 in May 2013 from 400 in October 2011 – a 50 percent increase in a year and a half. Since October 2011, there has been an almost 30 percent increase overall in the number of women and girls imprisoned in Afghanistan’s prisons and juvenile detention facilities.

“Four years after the adoption of a law on violence against women and twelve years after Taliban rule, women are still imprisoned for being victims of forced marriage, domestic violence, and rape,” said Brad Adams , Asia director. “The Afghan government needs to get tough on abusers of women, and stop blaming women who are crime victims.”

In a March 2012 report, “‘ I Had to Run Away ’: The Imprisonment of Women and Girls for ‘Moral Crimes’ in Afghanistan,” Human Rights Watch documented that some 95 percent of girls and 50 percent of women imprisoned in Afghanistan were accused of the “moral crimes” of “running away” from home or zina (sex outside of marriage).

These “moral crimes” usually involve flight from unlawful forced marriages or domestic violence. Women and girls imprisoned on “moral crimes” charges who were interviewed by Human Rights Watch described abuses including forced and underage marriage below age 16, beatings, stabbings, burnings, rapes, forced prostitution, kidnapping, and threats of “honor killing.” Virtually none of the cases had led even to an investigation of the abuse, let alone prosecution or punishment.

“Running away,” or fleeing home without permission, is not a crime under the Afghan criminal code, but the Afghan Supreme Court has instructed its judges to treat women and girls who flee as criminals. Zina is a crime under Afghan law, punishable by up to 15 years in prison. Some women and girls have been convicted of zina after being raped or forced into prostitution. Prosecution of women who are survivors of gender-based violence has continued, and many abusers of women have continued to go free in spite of Afghanistan’s 2009 Law on the Elimination of Violence Against Women (EVAW Law), which created new criminal penalties for abuse of women.

While several high-level Afghan government officials, including from the police and Justice Ministry, have in the past year publicly confirmed that “running away” is not a crime under Afghan law, such statements have yet to translate into policy, Human Rights Watch said. Some legal experts have suggested that a growing view that women and girls should not be charged with “running away” has merely resulted in a shift toward charging them with attempted zina . A charge of attempted zina unjustifiably assumes that women outside of the supervision of their male relatives must have attempted to have sex.

Women and girls accused of “moral crimes” are routinely subjected to “virginity tests” that courts rely on for the purpose of determining virginity and whether a woman or girl engaged in recent sexual intercourse. These exams can be ordered by any police official, and some women are subjected to multiple vaginal exams without informed consent for no justifiable reason. Use of such examinations is not limited to rape cases, and examinations do not focus on documenting medical injuries or collecting physical evidence to support an allegation of sexual assault. Although medical examinations can be a legitimate form of investigation in cases of alleged sexual assault, gynecological exams that purport to determine “virginity” have no medical accuracy. Use of such tests constitutes cruel, inhuman, and degrading treatment under international law.

“Coerced ‘virginity’ examinations are a form of sexual assault,” Adams said. “Afghan police, without any scientific basis, are routinely forcing these unspeakable examinations on women and girls.”

Some women and girls who flee violence at home are able to access help – rather than being arrested – through shelters. The number of women’s shelters in Afghanistan has increased from 14 in 2011 to 18 in 2013. However, the capacity of the shelters is far too limited for the number of women who require assistance, and fewer than half of the country’s 34 provinces have even a single shelter. There are no shelters in the more conservative southern half of the country. These shelters may not be sustainable as they are entirely funded by international donors, and donor assistance is dropping rapidly as the 2014 deadline for the withdrawal of international combat forces from Afghanistan approaches. The Afghan government has shown no interest in funding shelters through the government budget and has at times taken actions detrimental to the shelters, including a 2011 effort to take over the shelters and 2012 statements by the justice minister accusing shelters of “moral corruption.”

“Afghanistan’s donors have a crucial role to play in supporting shelters that are literally life-saving for many women,” Adams said. “They should not only help ensure the survival of the shelters that exist, but support expansion of the shelter system including in southern Afghanistan.”   Human Rights Watch called on the Afghan government and its international partners to take the following urgent steps:

• President Hamid Karzai should issue an administrative decree that “running away” should not be treated as a crime under Afghan law and that charges of attempted zina should not be brought. He should exonerate or pardon everyone convicted for “running away;”
• The Ministry of Interior should instruct all police of their obligation to convey immediately information pertaining to all incidents of violence against women or possible crimes under the EVAW Law to the prosecutor;
• The Attorney General should issue instructions requiring prosecutors to formally investigate all allegations of crimes against women under the EVAW Law and other laws, bring charges as the evidence warrants, and fully investigate whether women accused of crimes were acting in response to abuse; and
• International donors should make implementation of the EVAW Law, abolition of the crime of “running away,” revisions to the zina and family laws, and reforms to other laws that discriminate against women key issues in political engagement with the Afghan government.

“Moral Crimes” and Women’s Rights in Afghanistan: Recent Developments

The number of women and girls imprisoned for “moral crimes” in Afghanistan has increased by 50 percent in the period from October 2011 to May 2013. This troubling increase has occurred during a period in which there have been some new efforts by the Afghan government to protect women. In spite of these efforts, however, there has been a failure to take successful action to end wrongful imprisonment of women.

The Afghan government and its international partners have made some progress in addressing wrongful imprisonment of women and girls for “moral crimes” since 2012. Key officials have spoken out, at least on the illegality of “running away” prosecutions. Specialized units within the Attorney General’s Office have made some progress in increasing enforcement of the Law on Elimination of Violence Against Women (EVAW Law). There has been a small increase in the number of shelters for women fleeing violence, and there seems to be a growing awareness by police that many cases should be referred to family court for resolution through marriage or divorce rather than being sent to prosecutors. Some women’s rights activists report that the government, from President Hamid Karzai to the level of individual police and prosecutors, has shown increased openness to hearing concerns about violence against women and working with activists, including in individual cases.

Less encouraging, however, is the continued abusive use of coerced gynecological examinations, and a lack of progress in the recruitment of female police officers. Family court, where women can seek a divorce and custody of their children, exists only in Kabul. Even the slightly expanded number of shelters is nowhere near adequate to meet the need and women in the majority of provinces and the entire southern half of the country have no access to shelters. As long as the number of women and girls imprisoned for “moral crimes” continues to increase – as it has done by 50 percent in the last year and a half – it is clear that the Afghan government needs to do much more to end abusive prosecutions of women and girls. Below is a timeline of major “moral crimes”– related developments since March 2012:

• April 11, 2012: The Attorney Generals’ Office issued a directive stating that “running away” is not a crime under Afghan law and should not be prosecuted:

A circulation must be prepared and shared with all relevant prosecution offices in the center and provinces and the prosecutors should be instructed not to prepare unjustifiable case files regarding running away cases that have not been criminalized under Afghanistan laws and cannot be heard by courts and refrain from conducting baseless investigations. Other circumstances where people run away to commit any other crime are not covered by this instruction. The issue is being communicated to you so that you can take action in accordance with instruction of the High Council of Attorney General Office of the Islamic Republic of Afghanistan.

• September 16, 2012: Justice Minister Habibullah Ghalib, Women’s Affairs Minister Husn Banu Ghazanfar, and Deputy Interior Minister Mirza Mohammad Yarmand each strongly condemned wrongful imprisonment of women and girls on charges of “running away.” Ghalib said that police and prosecutors should never send cases of “running away” to the courts. Yarmand pledged his commitment to ending abuses by the police, saying that all police had been instructed that running away is not a crime. Ghazanfar said that women and girls accused of running away are not criminals, but generally crime victims who flee to escape violence committed against them.
• September 16, 2012: Fawzia Koofi, director of the lower house parliamentary committee on women’s affairs, and her counterpart, Siddiqa Balkhi, the director of the upper house parliamentary committee on women's affairs, called for the government to immediately free women and girls charged with running away under Afghanistan’s ambiguous and arbitrary “moral crimes” law.
• October 2012: Criminal charges of “disrespect of police” are brought against Batool Muradi, after she becomes the first Afghan woman to challenge accusations by her husband of “infidelity” through DNA testing of their children.
• Late 2012: The Attorney General announced plans to establish specialized units responsible for bringing prosecutions under the EVAW Law in all of the country’s 34 provinces from the current 8. While the number of cases brought under the EVAW law remains very low even in provinces with these specialized units, activists consider the specialized units, funded by international donors, to be a step in the right direction.
• February 2013: Gulnaz, a young woman released by presidential pardon in December 2011 after serving two and a half years of a 12-year sentence for zina after she was raped, married her rapist. Her case, which received wide coverage in the international and Afghan media, highlighted not only the frequency with which rape victims are imprisoned for “moral crimes” in Afghanistan, but also the lack of options for such women following release. Gulnaz spent over a year in a women’s shelter before social and family pressures led her to marry the man who raped her as the best available option for her and the daughter she gave birth to in prison as a result of the rape.
• May 2013: A parliamentary proposal to amend the EVAW Law risks limiting further the ability of women to flee violence or seek prosecution of their abusers.

Insufficient recruitment of female police officers

Female police officers have a crucial role to play in enforcing Afghanistan’s EVAW Law. In Afghanistan’s deeply gender segregated society, many women have difficulty even leaving their homes, and would find it impossible to report a crime, especially one involving sensitive issues of sexual assault or domestic violence, to a male police officer. In the absence of female officers, reporting crimes may even be unsafe: one woman told Human Rights Watch that when she went to a police station to report being raped, she was raped again by an officer in the station.

The percentage of women in the Afghan police has remained at about 1 percent over the last few years. A Human Rights Watch statement highlighted some of the challenges that make it difficult to recruit and retain women in the police force, including abuse and sometimes assault by male colleague in the police and a lack of the most basic toilet and changing room facilities. In spite of multiple reports of incidents of sexual harassment and rape of female police officers by male police officers, there have been no cases of successful prosecution of male police officers for these abuses and the Ministry of Interior has denied that abuses against women officers are a problem.

Continued abusive use of vaginal examinations

Afghan women accused of “moral crimes” are routinely ordered to undergo gynecological examinations that purport to provide information about whether the woman or girl is a “virgin” and whether she has engaged in recent sexual intercourse. This practice continues despite the fact that gynecological examinations that purport to determine virginity have no medical validity, and constitute cruel, inhuman, and degrading treatment under international human rights law. A modified gynecological examination that is rid of so-called virginity tests can be legitimately used for therapeutic purposes and evidence collection in rape cases, but should not be used otherwise, and should never be used without the informed consent of the woman or girl.

A senior police official told Human Rights Watch in May 2013 that these examinations can be ordered by any local police officer –“whoever sees the case first.” Another senior government official said that women are often without any justification subjected to multiple examinations. Human Rights Watch found that senior Afghan government officials seem unprepared to accept that there is no scientific validity to these examinations.

Desperate need for more shelters

In 2001, Afghanistan had no shelters for women and girls fleeing violence. The 18 shelters that exist today have demonstrated that they provide an option for women that not only can keep them from being wrongfully imprisoned, but can also literally save their lives in the many cases where “honor killing” is threatened. The success of existing shelters should lead to creation of new shelters sufficient to ensure that women in every province have access to a shelter. Unfortunately, the total dependency of these shelters on international donors, combined with the often unsupportive attitude of the Afghan government toward shelters, creates real uncertainty about the long–term sustainability of shelters. The overall decline in donor support to Afghanistan reduces the likelihood that there will be any major expansion of urgently needed shelter services.

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'I Had to Run Away': Women and Girls Imprisoned for 'Moral Crimes'

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Hundreds of Women, Girls Jailed for ‘Moral Crimes’

Government Should Target Abusers, Not Victims

(Kabul, March 28, 2012) – The Afghan government should release the approximately 400 women and girls imprisoned in Afghanistan for “moral crimes,” Human Rights Watch said in a new report released today. The United States and other donor countries should press the Afghan government under President Hamid Karzai to end the wrongful imprisonment of women and girls who are crime victims rather than criminals.

The 120-page report, “‘I Had to Run Away’: Women and Girls Imprisoned for ‘Moral Crimes’” in Afghanistan, is based on 58 interviews conducted in three prisons and three juvenile detention facilities with women and girls accused of “moral crimes.” Almost all girls in juvenile detention in Afghanistan had been arrested for “moral crimes,” while about half of women in Afghan prisons were arrested on these charges. These “crimes” usually involve flight from unlawful forced marriage or domestic violence. Some women and girls have been convicted of zina, sex outside of marriage, after being raped or forced into prostitution.

“It is shocking that 10 years after the overthrow of the Taliban, women and girls are still imprisoned for running away from domestic violence or forced marriage,” said Kenneth Roth, executive director of Human Rights Watch. “No one should be locked up for fleeing a dangerous situation even if it’s at home. President Karzai and Afghanistan’s allies should act decisively to end this abusive and discriminatory practice.”

The fall of the Taliban government in 2001 promised a new era of women’s rights. Significant improvements have occurred in education, maternal mortality, employment, and the role of women in public life and governance. Yet the imprisonment of women and girls for “moral crimes” is just one sign of the difficult present and worrying future faced by Afghan women and girls as the international community moves to decrease substantially its commitments in Afghanistan.

Human Rights Watch interviewed many girls who had been arrested after they fled a forced marriage and women who had fled abusive husbands and relatives. Some women interviewed by Human Rights Watch had gone to the police in dire need of help, only to be arrested instead.

“Running away,” or fleeing home without permission, is not a crime under the Afghan criminal code, but the Afghan Supreme Court has instructed its judges to treat women and girls who flee as criminals. Zina is a crime under Afghan law, punishable by up to 15 years in prison.

Women and girls interviewed by Human Rights Watch described abuses including forced and underage marriage, beatings, stabbings, burnings, rapes, forced prostitution, kidnapping, and murder threats. Virtually none of the cases had led even to an investigation of the abuse, let alone prosecution or punishment.

One woman, Parwana S. (not her real name), 19, told Human Rights Watch how she was convicted of “running away” after fleeing a husband and mother-in-law who beat her: “I will try to become independent and divorce him. I hate the word ‘husband.’ My liver is totally black from my husband… If I knew about prison and everything [that would happen to me] I would have just jumped into the river and committed suicide.”

Human Rights Watch said that women and girls accused of “moral crimes” face a justice system stacked against them at every stage. Police arrest them solely on a complaint of a husband or relative. Prosecutors ignore evidence that supports women’s assertions of innocence. Judges often convict solely on the basis of “confessions” given in the absence of lawyers and “signed” without having been read to women who cannot read or write. After conviction, women routinely face long prison sentences, in some cases more than 10 years.

Afghanistan’s 2009 Law on the Elimination of Violence Against Women makes violence against women a criminal offense. But the same police, prosecutors, and judges who work zealously to lock up women accused of “moral crimes” often ignore evidence of abuse against the accused women, Human Rights Watch said.

“Courts send women to prison for dubious ‘crimes’ while the real criminals – their abusers –walk free,” Roth said. “Even the most horrific abuses suffered by women seem to elicit nothing more than a shrug from prosecutors, despite laws criminalizing violence against women.”

Abusive prosecution of “moral crimes” is important to far more than the approximately 400 women and girls in prison or pretrial detention, Human Rights Watch said. Every time a woman or girl flees a forced marriage or domestic violence only to end up behind bars, it sends a clear message to others enduring abuse that seeking help from the government is likely to result in punishment, not rescue.

The plight of women facing domestic violence is made still worse by archaic divorce laws that permit a man simply to declare himself divorced, while making it extremely difficult for a woman to obtain a divorce, Human Rights Watch said. The Afghan government made a commitment to reform these laws in 2007 under its National Action Plan for Women in Afghanistan, and a committee of experts drafted a new Family Law that would improve the rights of women. This new law, however, has been on hold with the government since 2010, with no sign of movement toward passage.

“It is long past time for Afghanistan to act on its promises to overhaul laws that make Afghan women second-class citizens,” Roth said. “Laws that force women to endure abuse by denying them the right to divorce are not only outdated but cruel.”

By maintaining discriminatory laws on the books, and by failing to address due process and fair trial violations in “moral crimes” cases, Afghanistan is in violation of its obligations under international human rights law. United Nations expert bodies and special rapporteurs have called for the repeal of Afghanistan’s “moral crimes” laws. The UN special rapporteur on violence against women has called on Afghanistan to “abolish laws, including those related to zina, that discriminate against women and girls and lead to their imprisonment and cruel, inhuman, and degrading punishment.” The UN Committee on the Rights of the Child has urged Afghanistan to “[r]emove so-called moral offences as a crime and release children detained on this basis.”

“The Afghan government and its international partners should act urgently to protect women’s rights and to ensure there is no backsliding,” Roth said. “President Karzai, the United States, and others should finally make good on the bold promises they made to Afghan women a decade ago by ending imprisonment for ‘moral crimes,’ and actually implementing their stated commitment to support women’s rights.”

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Homepage » Blog » Understanding the Crime of Moral Turpitude: Consequences and Case Studies

Understanding the Crime of Moral Turpitude: Consequences and Case Studies

Are you wondering what constitutes a crime of moral turpitude and its potential fallout? A crime of moral turpitude includes acts like fraud, theft, and violence that fundamentally violate societal ethics. This article demystifies the legal complexities, outlines examples, and discusses consequences ranging from deportation to professional damage. Discover the intricacies of these serious violations, how they’re handled across different jurisdictions, and the immigration consequences of committing a moral turpitude crime for non-citizens in the United States, including impacts on immigration status, green card or visa acquisition, and inadmissibility.

Key Takeaways

• Crimes of moral turpitude are fundamentally reprehensible acts, such as murder, rape, and fraud, and are viewed differently by various jurisdictions, making them challenging to define consistently.
• Convictions for crimes involving moral turpitude can lead to severe consequences, including incarceration, fines, deportation for non-U.S. citizens, professional license revocation, and damaged reputations.
• It is crucial to hire an experienced criminal defense lawyer to navigate the complexities of defending against charges involving moral turpitude, utilizing strategies like negotiating plea deals or seeking post-conviction relief.

Defining Crimes of Moral Turpitude

Crimes involving moral turpitude are essentially acts that are intrinsically wrong, often committed with evil or malicious intent. This broad category is subject to varying interpretations by courts, with definitions and interpretations varying significantly among them. The complexity of the concept becomes clearer when you consider that actions involving significant bodily harm, fraud, or deprivation of property, often committed with intent, are commonly considered crimes of moral turpitude. Some examples of crimes of moral turpitude include:

• Embezzlement
• Child abuse

It is important to note that this is not an exhaustive list, and the classification of a crime as one of moral turpitude can vary depending on the jurisdiction and the specific circumstances of the case.

Recognizing the subjectivity and context-dependence of the concept is vital to understanding it. A crime involving moral turpitude in one jurisdiction may not be considered as such in another. This fluidity of definition underscores the critical importance of understanding the specifics of the jurisdiction in which a crime was committed.

Legal Interpretations of Moral Turpitude

Legal interpretations often paint crimes of moral turpitude as acts committed with evil intent, violating societal norms, and often viewed as morally reprehensible or depraved. This means an offense involves willful conduct and can be considered a crime of moral turpitude if the offender knew their actions were morally unacceptable but proceeded regardless of this knowledge. In this context, the legal definition of moral turpitude plays a crucial role in determining the nature of such crimes.

Remember, moral turpitude serves as a categorization tool in legal contexts, but it doesn’t pin down a specific offense. Each case is evaluated individually, which means that the exact same act could be judged differently in two separate cases.

Common Examples of Crimes Involving Moral Turpitude

Gaining a deeper understanding of the concept can be achieved by exploring common examples of crimes that involve moral turpitude. The list is extensive and includes:

• Voluntary manslaughter
• Significant assault
• Spousal and child abuse
• Paternity fraud
• Lewd acts on a child

However, it also covers harmful behaviors that may not immediately come to mind when thinking of serious crimes.

The scope of the concept also extends to property and financial crimes, such as theft, robbery, burglary, arson, receiving stolen property, and fraud. Deception-related and public order crimes, like prostitution, pandering, welfare fraud, and perjury, can also fall under this category.

Other crimes, such as criminal threats, failure to register as a sex offender, felon in possession of a firearm, and felony hit and run, are also listed under crimes involving moral turpitude. When an individual is charged with two or more crimes involving moral turpitude, the consequences can be even more severe.

Distinguishing Between Moral Turpitude Crimes and Non-Moral Turpitude Crimes

While the list of crimes involving moral turpitude is extensive, not all crimes fall into this category. A key factor that distinguishes moral turpitude crimes from non-moral turpitude crimes is the intent to harm or defraud. Some examples of crimes that are considered to involve moral turpitude include:

Assault is generally not viewed as a crime of moral turpitude, unless it is carried out with the intention of causing serious harm or targeting a protected group of people.

One should also acknowledge the state-dependent variations in the definition and application of moral turpitude. What may be considered a crime of moral turpitude in one jurisdiction may not be viewed as such in another. This variance underscores the need for a consultation with legal counsel if charged with such a crime.

Consequences of a Crime Involving Moral Turpitude Conviction

Severe consequences may follow criminal convictions for a crime involving moral turpitude. These can range from:

• Incarceration
• Other criminal sanctions
• Potential deportation for non-U.S. citizens
• Professional repercussions such as loss of employment and revocation of professional licenses.

Beyond professional consequences, a conviction can erode social credibility and relationships within a community.

Immigration Implications

Being deemed inadmissible or removable from the U.S. can result from a conviction for a crime of moral turpitude, affecting individuals with different immigration statuses. After a CIMT conviction, the following individuals may risk losing their status or becoming ineligible for residency adjustments:

• Permanent residents
• F-1 students
• Individuals with lawful status
• Undocumented immigrants

This could have significant immigration consequences for their immigration status.

However, there’s a petty offense exception to CIMTs, where just one offense with a maximum term of one year probably will not result in inadmissibility or deportability. Yet, a conviction for a CIMT can affect naturalization processes and demonstrate a lack of good moral character. Even if the arrest does not lead to a conviction, immigration judges can still consider the facts of an arrest in deportation proceedings.

Crimes involving moral turpitude that are classified as aggravated felonies can lead to deportation for non-citizens if convicted within five years of entering the U.S. or if having multiple convictions from separate criminal schemes.

Professional Repercussions

Severe professional repercussions may stem from a conviction for a crime of moral turpitude. For professionals required to hold a state or federal license, such as those in law and medicine, they may face:

• Suspension or revocation of their license following such a conviction
• Damage to an individual’s professional reputation, often resulting in financial difficulties.

Certain professions are particularly vulnerable to the consequences of a moral turpitude conviction. If they are found guilty of a crime involving moral turpitude, educators, attorneys, and doctors could experience serious adverse effects on their careers and reputations. Such consequences could have a lasting impact on their professional lives.

Defending Against Charges of Moral Turpitude

Hiring an experienced criminal defense lawyer becomes of paramount importance when facing charges of a crime involving moral turpitude in the realm of criminal law. They can examine all legal avenues to avoid conviction, build a strong case, or negotiate a deal for a lesser crime not involving moral turpitude.

Defense strategies may include:

• negotiating a plea deal to change the charge to one that doesn’t involve moral turpitude
• ensuring the conviction record states the non-moral turpitude nature of the crime in divisible cases
• discussing charge reductions with the prosecution to negotiate them to crimes not classified as involving moral turpitude

Post-conviction relief methods include:

• Motions for a new trial
• Re-sentencing
• Writs of habeas corpus
• Commutations
• Expungement

Seeking post-conviction relief could lead to vacating the conviction on legal grounds, mitigating negative repercussions. Petitioning for post-conviction relief may involve reducing a felony to a misdemeanor or other re-sentencing efforts.

Knowledgeable attorneys can negotiate deals to plead to lesser offenses not classified as crimes of moral turpitude.

Case Studies: Moral Turpitude in Real-Life Cases

Real-life cases help illustrate the gravity of crimes involving moral turpitude and their repercussions. Such crimes are handled by court systems with significant consequences for the accused, affecting areas such as immigration, professional discipline, and credibility as a witness.

For instance, in ‘Jordan v. De George’ (1951), the U.S. Supreme Court ruled that conspiracy to defraud the U.S. government of taxes on distilled spirits is a crime of moral turpitude, which can result in the deportation of non-citizens with multiple offenses.

In California, crimes such as:

• aggravated assault

Crimes that involve actions which society deems as particularly reprehensible are often classified as involving moral turpitude, and this classification involves moral turpitude having a direct impact on legal proceedings and the standing of individuals in various professional fields.

Tips for Avoiding Convictions Involving Moral Turpitude

To avoid convictions involving moral turpitude, one needs to be aware of legal interpretations, societal expectations, and should seek qualified legal counsel if accused. Keeping abreast of current legal interpretations and societal expectations that shape the evolving definition of such crimes can minimize the risk of a conviction involving moral turpitude.

Awareness and avoidance of actions that can be construed as inherently wrongful or against societal norms is crucial to exercising good judgment and steering clear of moral turpitude convictions. In the event of legal accusations, seeking qualified legal counsel can provide the necessary defense against charges involving moral turpitude to possibly avoid a conviction.

Hire Elliot Silver Law firm

Engaging an experienced criminal defense lawyer such as Elliot Silver could significantly alter the course of your case. With over 25 years of experience, Elliot Silver has a strong dedication to protecting the rights of the accused. He has taken more than 50 trials to verdict and knows how to achieve the best possible outcome regardless of the charge or situation.

When Elliot Silver is in your corner, he is dedicated to fighting at every turn as your advocate when facing criminal charges. Over the past 25 years, Elliot Silver has cultivated an intimate knowledge of how law enforcement crafts their cases and how to respond to their tactics. In a criminal case, there are various outcomes beyond being incarcerated, such as alternative punishments like home detention, electronic monitoring, community work programs, etc.

In this exploration of crimes involving moral turpitude, we’ve examined the complexities of the concept, how it’s interpreted by the law, and its profound consequences. We’ve also provided tips on how to avoid such convictions and how to navigate the legal landscape if you find yourself accused. Remember, moral turpitude is a complex, fluid concept, and skilled legal counsel is crucial in these cases.

Frequently Asked Questions

What are some examples of crimes involving moral turpitude.

Crimes involving moral turpitude include violent crimes like murder and rape, harmful behaviors like incest and bigamy, property and financial crimes like theft and fraud, and deception-related and public order crimes like prostitution and perjury.

What differentiates a crime involving moral turpitude from other crimes?

A crime involving moral turpitude is differentiated from other crimes by the presence of intent to harm or defraud. This intent is a primary factor in classifying such offenses.

What are the consequences of a moral turpitude conviction?

A moral turpitude conviction can lead to criminal sanctions such as incarceration and fines, immigration problems like deportation, and professional consequences like job loss and license revocation.

How can I defend against charges of moral turpitude?

You should hire an experienced criminal defense lawyer to examine legal options, build a strong case, or negotiate a deal for a lesser crime not involving moral turpitude. This is essential for defending against charges of moral turpitude.

How can I avoid a moral turpitude conviction?

To avoid a moral turpitude conviction, it’s important to be aware of legal interpretations, societal expectations, and to seek qualified legal counsel when accused. This will help you navigate the situation effectively.

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Missing from the picture: Men imprisoned for ‘moral crimes’ in Afghanistan

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Introduction

The law: men and consensual sexual crimes in afghan criminal codes, the numbers: men in prison for moral crimes, table 1: men and women imprisoned for adultery, running away and rape, preliminary conclusions.

How to cite this publication:

Aziz Hakimi, Torunn Wimpelmann (2018). Missing from the picture: Men imprisoned for ‘moral crimes’ in Afghanistan . Bergen: Chr. Michelsen Institute (CMI Insight 2018:2)

Recent years have seen sustained focus on the prosecution of Afghan women and girls for ‘moral crimes’ such as adultery and ‘running away’. However, many Afghan men are also charged with and convicted for moral crimes. This paper examines how Afghan law penalizes men for consensual heterosexual acts, and presents statistics suggesting that hundreds of men are currently imprisoned for such ‘moral crimes’ in the country. It argues that although women are particularly vulnerable to prosecution for moral crimes in Afghanistan, debates and advocacy over this issue must include men’s experiences too.

This paper provides a first discussion of a neglected topic in debates and activism about gender equality in Afghanistan – the prosecution of men for ‘moral crimes’, or more specifically, consensual heterosexual crimes such as adultery and elopement. Research and advocacy have almost exclusively focused on women and girls’ imprisonment for moral crimes. We argue that although women and girls are particularly vulnerable to charges of moral crimes, this does not justify a total omission of men’s experiences and situations. Men are not exempted from the controls imposed on sexuality in Afghan society and by the Afghan state, even if such controls are applied somewhat differently to men than to women. This paper summarizes how Afghan criminal law penalizes male consensual heterosexual acts, and presents some initial statistics suggesting that hundreds of men are currently incarcerated for such crimes. It ends with some pointers regarding the need for further research on the topic.

The imprisonment of women for consensual sexual crimes such as adultery, attempted adultery and ‘running away from home,’ has received a fair amount of attention and scrutiny in post-2001 Afghanistan. At any one time during this period, between 300 and 600 women have been incarcerated in Afghan prisons for these ‘moral crimes’ (Human Rights Watch 2013; Human Rights Watch 2016). Activists and human rights workers – both local and international – have kept track of the number of women in jail for moral crimes, provided legal aid, and engaged systematically with the Afghan authorities on the issue. In particular, they have criticized the imprisonment of women for ‘running away from home’, pointing out that, in contrast to actual adultery (zina), running away from home (farar az manzel, lit. ‘escaping from the house’)2 is not listed as a crime in Afghan law.

(...) there is a noticeably lack of attention to the fate of men in debates and advocacy over moral crimes. Whilst there have been several reports on the number of women in jail for ‘moral’ crimes, we know of no attempts to map the number of men charged with, or imprisoned, for the same crimes.

Afghan legal officials have responded to this criticism by invoking article 130 of the Afghan Constitution, which they see as permitting the application of Islamic fiqh3 in matters not covered by codified legislation. In 2010, the Supreme Court issued an advisory directive4  sanctioning the charging of women who run away from home by defining it as ‘attempted adultery’ (eqdam ba jorm-e zina). This directive spelled out why, according to Sharia, women running away from home were committing a punishable crime. It argued that ‘runaway’ women who went to the home of ‘strangers’ (lovers, friends, neighbors) rather than straight to the appropriate authorities (police or judiciary) or to the house of relatives or legal intimates (mahram- e shara’i) were in danger of committing actions prohibited by Sharia, such as adultery or prostitution. By relying on the principle of the means of prevention in fiqh (sa’d-e- zaraye), the judges of the Supreme Court constructed a new legal category of ‘attempted zina’ on the basis of which runaway women are being prosecuted in state courts.

Subsequent government statements suggest there is some disagreement within the justice sector over whether women going to the house of ‘strangers’ can be charged with a crime. In 2012, the Attorney General’s Office issued a directive stating that ‘running away’ has not been criminalized under Afghan law and state prosecutors should not file criminal cases under this term (cited in Hashimi 2017).5 However, the Supreme Court has continued to insist on the distinction between those women approaching recognized authorities and those fleeing to the houses of strangers. When asked by international actors to clarify whether running away from domestic abuse was a crime, the court issued another instruction on the issue. It declared that the actions of those women who leave their homes to escape family violence and importantly, who immediately ‘go to the judiciary, law enforcement agencies, legal aid organizations or their relatives’ houses do not constitute a crime’ (cited in Hashimi, 2017:217). It also stated that those running away for the purpose of moral crimes should be prosecuted, but legal officials should not use the term ‘runaway’ for such cases (ibid).

Legal practices in Afghanistan clearly discriminate against women. An explicit government policy, as spelled out in the Supreme Court directive, states that women can be punished not only for actual sexual acts – the crime of zina – but also for simply abandoning or moving beyond spaces supervised by close relatives or state authorities. This policy must be understood as part of a broader patriarchal gender regime in which women’s bodies must be tightly monitored and placed under authorized surveillance (either by the family or the state), and where the chastity of women is given infinitively more importance than the chastity of men. As such, women’s scope for moral transgressions is much more limited than those of men.

Nonetheless, there is a noticeably lack of attention to the fate of men in debates and advocacy over moral crimes. Whilst there have been several reports on the number of women in jail for ‘moral crimes’, we know of no attempts to map the number of men charged with, or imprisoned, for the same crimes. In fact, even media reports on individual cases of women charged with moral crimes seldom report on the fate of their male partners, who might be facing jail sentences of up to 15 years.6

Below, we undertake an initial survey of when and how men might be prosecuted and convicted for consensual heterosexual acts under the Afghan legal system.7 We present Afghan government statistics indicating that the number of men imprisoned for moral crimes are in the hundreds, possibly even surpassing that of women. We discuss what we can and cannot conclude from these numbers, including from the statistics that actually suggest a considerable number of men are serving prison sentences specifically ‘for running away’ from home.

The Afghan criminal code makes the act of zina – sexual intercourse between a man and a woman not married to each other – a criminal offense.8 Under the 1976 penal code, in force until February 2018, zina was punishable with between 5 and 15 years in prison. Afghanistan’s new penal code, currently in force,9 has reduced the maximum punishment to 5 years imprisonment.10 The zina provisions in both laws apply to both men and women equally, with no differentiation.

However, the question of exactly what constitutes ‘Afghan law’ is disputed. In the early 20th century, Afghan ruler King Amanullah, then presiding over one of the few sovereign Muslim countries in the world, consolidated a unique legal system based on a pioneering combination of Islamic fiqh and codified law (Ahmed 2017). Since then, the place of Islam in Afghan state law has been understood in radically different ways by the country’s legal scholars and practitioners. As mentioned above, article 130 in the Afghan Constitution permits the application of Hanafi fiqh in matters not covered by codified law.11 To more secular oriented legal officials, this article merely provides a small, supplementary and limited role for uncodified fiqh. To others, article 130 reflects an overall perspective on Afghan law as proceeding in its totality from divine sources– the Quran and the Sunnah, the saying and deeds of the Prophet. As such, the country’s written codes (qanon) are derived from fiqh,12 and at the same time they make up only a part of the overall applicable legal framework.13 It is based on this second view that the Afghan Supreme Court has officially and explicitly sanctioned the prosecution and imprisonment of women for ‘attempted zina’, even though ‘attempted zina’ is not defined as a crime in the penal code.14

The Supreme Court directive (Approval 572) was a response to human rights officials and others demanding an explanation for the many women they had found in Afghan prisons convicted for ‘running away.’ Our research suggests, however, that Afghan jails also contain men charged with or convicted for moral crimes, including ‘running away’ from home. In turn, this means that also when it comes to men, an assessment of applicable Afghan law regarding moral crimes would need to go beyond codified law, i.e. the penal code.

Finally, it should be added that in the 1976 penal code, in force until very recently, zina also referred to coerced scenarios (i.e. rape).15 In practice, therefore, men (and very rarely, women)16 could be charged with both ‘consensual’ and ‘coerced’ zina under the 1976 code. As discussed below, this significantly impacts the practical possibility of identifying the number of men incarcerated for consensual sexual crimes – since actual records might not differentiate between rape and consensual adultery. The 2018 penal code and a 2009 separate piece of legislation on violence against women clearly differentiate between rape (tajavoz-e jinsi) and consensual adultery, reserving the term zina for consensual acts only. However, the 2009 law has been applied selectively by prosecutors and judges, with many preferring to only apply the 1976 code (Wimpelmann 2017). Whether the new penal code will have a significant impact on the adjudication of moral crimes remains to be seen.

Very little statistical data on criminal justice is readily available in Afghanistan. Although the Supreme Court collects records of individual court cases at all levels, it does not process or publish this in a form that provides information on conviction rates or detailed specification on types of crime. Neither are records specified by the gender of the offenders.17 Likewise, the Attorney General’s Office maintains individual file records, albeit in tabulated form, but does not publish statistical information related to moral crimes. A long running project intended to create an online database containing the status of all legal cases in the country apparently remains work in progress.18

We know of no published estimations of the numbers of men imprisoned for ‘moral crimes’ in Afghanistan.

This dearth of available statistics has been a major challenge to researchers and human rights workers who have sought information about women’s treatment in the Afghan justice system. They have had no option but to create their own datasets, through review and compilation of individual case files. Such undertakings could require months, if not years, of efforts by multiple-member research teams. For instance, when the Ministry of Women’s Affairs published an overview of the outcomes of registered cases of violence against women over a one year period, it was based on extensive research over several years (MOWA 2014). A 2012 research report on women’s imprisonment for moral crimes (HRW 2012) similarly found no statistics. To establish the grounds for the incarceration of women for moral crimes, Human Rights Watch researchers interviewed female prisoners (58 in total) in six different prisons and juvenile detention centers and when available, reviewed the women of girl’s individual records on file with the prison authorities and the prosecutor’s office.

When it comes to male prisoners and moral crimes, no corresponding undertakings appear to have been initiated. We know of no previously published estimations of the numbers of men imprisoned for ‘moral crimes’ in Afghanistan. The closest appears to be a 2008 UN report, which provides details on the number and legal grounds of imprisonment of juvenile boys – but not adult men (UNODC 2008). This report found that around 13 percent of all male juveniles were incarcerated for moral crimes19 – 52 boys. 35 female juveniles were incarcerated for the same crimes. The 2008 report notes that there is no data available for the legal grounds of the imprisonment of adult male inmates. Some ten years later, however, the Central Prisons Directorate under the Ministry of Interior provided our research team with data on men (and women) incarcerated for various moral crimes; categorized by the gender of the offenders and their place of incarceration (judicial custody and/or prison). The table below shows the number of male and female inmates (nationwide) in the Afghan prison system, as recorded by the Prisons Directorate in recent years, for the following moral crimes: adultery, running away from home and rape.

To our knowledge, the figures in Table 1 represent the first government data available about the number of adult men imprisoned for consensual sexual crimes in post-2001 Afghanistan. The figures are rather astonishing at first sight. Not only do they contradict commonly held assumptions that Afghan men commit sexual transgressions with impunity, they also suggest that men are incarcerated for moral crimes at a much higher rate than women. Nonetheless, these numbers must be treated with considerable caution.

Firstly, given that zina is applied to both forced and consensual sexual acts, the figures of men imprisoned for zina are likely to include a considerable number of men who have been convicted for ‘forced’ zina – i.e. rape. Even some of the men imprisoned for ‘consensual’ zina are likely to have forced themselves upon their co-defendants, since legal aid providers and others have repeatedly found female rape victims to be imprisoned for adultery instead.

Secondly, the number of men imprisoned for zina also includes those arrested in police raids on brothels, a situation where coercion can also be said to feature, since many women are forced into prostitution. In such raids, the number of men present, and therefore arrested, are typically higher than the number of women, which may go some way in explaining the higher number of men imprisoned for zina compared to women.

Thirdly, it is possible that the gender of some of these people might simply have been wrongly recorded, so that some of those appearing as men in the records might actually be women.21

Most strikingly, the statistics we have obtained indicate that a large number of men are currently in prison for ‘running away’ from home (farar az manzel).

These caveats should not detract from the fact that the statistics on male inmates merits further investigation. The fact that the number of females imprisoned for zina and running away in the Prisons Directorate’s data is broadly consistent with the patterns documented over the years – between 300 and 600 at any one time– is a good-enough reason to take the Prison Directorate’s figures on male prisoners seriously. It should be added that female prisoners have often benefited from the Afghan state’s pardoning policies, for example female prisoners detained for moral crimes are regularly pardoned by the President during Eid. The practice of pardoning women and not men for moral crimes might partly explain the high number of men detained for consensual sexual moral crimes, as reflected in official records.

Most strikingly, the statistics we have obtained indicate that a large number of men are currently in prison for ‘running away’ from home (farar az manzel).22 For example, in the year 1395 (201623) 298 men and 90 women were in prison on this basis whereas in 1396 (2017) 239 men and 88 women were imprisoned. In both years, the number of men imprisoned for running away was more than three times those of women. Given that Afghan legal and judicial authorities have never publicly endorsed the prosecution of men for ‘running away’, we sought further clarifications from the relevant government authorities (specifically from the Attorney General’s Office) in order to better understand the legal grounds for the incarceration of men currently serving jail time for ‘running away’ from home. As a result of our inquires, the Attorney General’s Office has initiated a judicial review of the case files of the 25 male prisoners presently recorded as serving jail terms for running away in Kabul’s central prison.

Even at this stage, our conversations with legal officials and practitioners suggest that men are regularly prosecuted for running away —and more generally, that the practice is endorsed by many Afghan legal officials. In particular, many legal officials see it as problematic that Afghan codified law does not criminalize, or as they prefer to put it ‘is not very clear’ about the act of running away ‘in cases involving a married or engaged women’.24 Engagement has no status as a legally binding agreement in Afghanistan, and even married women do not violate any codified law in Afghanistan by ‘running away’, as long as the act of zina does not feature. But as mentioned previously, many legal officials hold the view that Afghan law in its totality cannot be reduced to its legal codes. Consequently, and based on the view that running away with a married or engaged women is a violation of Sharia, if not codified law, some legal officials report that they apply article 130 of the Constitution and charge both the woman and the man with running away.

It should be noted that whilst women are also deemed to be committing a crime when they run away on their own, men are said to be running away only when they run away with a woman. But even if the basis for men’s incrimination in cases of running away is narrower, it nevertheless appears to occur frequently. Indeed, it has been specifically suggested that in cases involving the running away of an engaged or married woman, her male co-eloper is considered a ‘partner in crime’ and as such liable for prosecution by the state.25 The men convicted for actual zina also deserve further attention. Previous research and media reports suggest that numerous men are convicted of zina in the context of elopement. These are cases where a man and a woman have eloped with the intention of getting married. Often, the woman is already engaged to another man, sometimes with the unwanted marriage imminent. In other cases, the parents of the woman have been unwilling to agree to a match proposed by their daughter, upon which the woman runs away with the man of her choice. Whatever the case, Afghan codified law recognizes the right of men and women of majority age to marry without a guardian’s permission, and explicitly states that ‘carrying away a women for the purpose of marriage’ is not a crime (Article 425/ 599 in the 1976 and 2018 Penal Codes respectively).

Despite these legal guarantees, eloped couples often face numerous hurdles to getting married, which in turn might lead to charges of zina: local mullahs might refuse to perform the nikah (marriage rites) of an eloped couple. Our research also shows that even courts in Kabul might create extra-legal obstacles to eloped couples wanting to marry, such as consent of parents, proof of virginity (from women), proof of identity (a tazkira can only be issued on the basis of the father’s tazkira, thus requiring his consent), affidavits from witnesses, or reconciliation between the two families before a nikah can be officiated by a judge in the family court. Men (and women) might also find themselves convicted for zina based on flawed or circumstantial evidence. If a hymen examination, routinely forced upon eloped women,26 is held to show that an unmarried woman is not virgin, both parties might be charged with, and convicted of zina. Some judges are also inclined to rule that any unmarried couple who have spent time in privacy are guilty of adultery.

The debate on moral crimes prosecutions in Afghanistan has almost exclusively focused on women, but as researchers have long argued, patriarchal gender orders also marginalize certain men (Cornwall and Lindisfarne 1994; Connell 1995). In the kinds of scenarios discussed in this paper, men – typically poor, young and lower status – feature as victims of patriarchal gender relations alongside their female partners. Like their female counterparts, many men are imprisoned for consensual zina, and – as it appears – merely for running away. It is certainly the case that women are, as a gender, more vulnerable to moral crimes charges, and they generally face more severe repercussions – both socially and legally. However, the disproportionate impact on women should not justify complete disregard for the plight of their male counterparts.

At the time of writing, we await further numbers and investigations on this issue, including verified statistical data from the Attorney General’s Office and the result of their internal investigation regarding 25 men currently held in Kabul’s central prison for ‘running away’. However, the numbers obtained from the Central Prisons Directorate, as well as other preliminary investigations strongly suggest that more focus on the incarceration of men for moral crimes is warranted. Admittedly, with the overall legal system in Afghanistan displaying severe weaknesses, the hundreds of men imprisoned for moral crimes are only a fraction of the male prison population, estimated at around 25,000. Many other of these 25,000 inmates might have also suffered unjust treatment in the courts. From this perspective, it might seem unfair to single out for attention only those men who are incarcerated specifically for (heterosexual) moral crimes.

However, if the starting point is to problematize the Afghan state’s prosecution of consensual relations outside of marriage, then the complete exclusion of men from the picture seems a glaring omission. The relative attention and support provided to women incarcerated for moral crimes has brought about real positive effects. The yearly rounds of presidential pardons have included significant numbers of women convicted for moral crimes. Women charged with moral crimes have also been more or less guaranteed free legal representation in recent years (Day and Rahbari 2017).

From this perspective, it only seems reasonable to ask how many men are in fact jailed for adultery and running away. The data presented in this brief represents a first and initial attempt to answer this question. It indicates that hundreds of Afghan men are currently in prison for consensual (hetero) sexual relations, including running away. More comprehensive research is needed to uncover the legal grounds for their imprisonment and to better understand how many men have been affected by the Afghan state’s prosecution of moral crimes.

A first step would be the release of the results of the Attorney General’s Office’s investigation regarding imprisonment of the 25 men for ‘running away’ in Kabul’s central prison. Moreover, similar investigations should be undertaken across all the provinces in Afghanistan. We also welcome the release of the Case Management System data on men’s prosecution and imprisonment for moral crimes. However, establishing a comprehensive, detailed picture of men’s imprisonment for moral crimes would require in depth studies of a substantial number of individual cases, including men convicted for zina as well as ‘running away’. In other words, efforts similar to those already undertaken over the Afghan state’s punitive actions against women for ‘moral crimes’.

1     The research upon which this paper is based forms part of the research project New Afghan Men? Marriage, Masculinities and Sexual Politics in Contemporary Afghanistan, funded by the Research Council of Norway (grant 249707), carried out by Peace Training and Research Organization and Chr. Michelsen Institute. We want to thank Masooma Sa’adat for her tireless, persistent and skillful research assistance. We also want to thank Deniz Kandiyoti, Magnus Marsden and Siavash Rahbari for helpful comments on an earlier version of this paper.

2     The phrase ‘escaping from the house’ is a more accurate translation of the Dari term farar az manzel. However, since the term ‘running away’ has so far been used in English language discussions about the topic, we have chosen to use this latter term.

3     In Muslim-majority countries, the basis of law has historically been the will of God, and fiqh refers to the methodology of ascertaining legal conclusions from divine sources (the Quran and the Sunnah- sayings and deeds of the Prophet). Sharia, whilst sometimes used interchangeably with fiqh, refers to rules of God and thus includes a broader domain of life, such as fasting and praying (see Wimpelmann, 2017, 182).

4     High Council of Supreme Court Approval #572, dated 24 August 2010.

5      Hashimi argues that the AGO directive is open to misuse because it adds ”other circumstances where people runaway to commit any other crime is not covered [by this directive]” (2017: 217).

6     ‘Moral crimes’ (jarayem-e akhlaqi) might also refer to other, non-sexual acts deemed contrary to public moral and religion, such as drinking and gambling. In fact, government records sometimes include these acts under the rubric of moral crimes. In this paper, we use the term moral crimes to refer to sexual crimes only. Also, we only cover heterosexual crimes.

7     Men are also charged with and convicted of lawat (sodomy). The prosecution of homosexual acts in the Afghan justice system is beyond the scope of this study, but it is certainly a question meriting further research.

8     In classical Islamic jurisprudence, zina is one of several crimes of Hudood. The definition, punishment and evidentiary requirements of Hudood crimes are derived from holy sources (the Quran and the Sunnah- the sayings and deeds attributed to the Prophet). As such, Hudood crimes are invested with special religious significance, and to formally abolish Hudood would represent a secularization of law. Hudood punishments are formally recognized in the current Afghan Penal Code (Article 2 (2) but largely not enforced in practice. The Hudood punishment for zina is stoning to death if the perpetrator is married, and lashing if he or she is not.

9     The new penal code (as the previous one) has been enacted as a presidential decree and must be submitted to the parliament for ratification.

10     Both the old and the new penal codes also explicitly recognize the Hudood punishment for zina (Article 643 (2) in the 2018 code and article 426 in the 1976 code) - but without spelling out these punishments.

11     Article 130 reads: “In cases under consideration, the courts shall apply provisions of this Constitution as well as other laws. If there is no provision in the Constitution or other laws about a case, the courts shall, in pursuance of Hanafi jurisprudence, and, within the limits set by this Constitution, rule in a way that attains justice in the best manner.”

12     See footnote 3.

13     For a (rare) analysis of the early development of Afghanistan’s rather unique combination of codified law and Sharia, see (Ahmed 2017).

14     Approval 572, dated 24 August 2010 (1389/6/2), High Council of Supreme Court of Afghanistan. Some would argue that the enactment of the new penal code in February 2018 renders this advisory directive null and void, since the new penal code supersedes the directive.

15     The definition of all sexual intercourse (whether consensual and coercive) out of wedlock as the crime of ‘zina’ is in line with classical understandings of Islamic law (Azam 2015). The 1976 penal code therefore signals adherence to Islamic jurisprudence. For the same reason, despite the establishment of rape as a distinct crime in the 2009 EVAW law, many prosecutors and judges still prefer to use the word zina to refer to rape, sometimes (but not always) applying the term ‘forced zina’ (zina bil jabr). However, reading the 1976 penal code’s provisions on zina (articles 425-429) one is inclined to conclude that these were written mainly with rape in mind, since the articles formulate a number of aggravating factors applicable to rape scenarios. Most likely, the term zina was inserted as a late compromise to placate more conservative groups who wanted a stricter adherence to classical fiqh. Indeed, (Samandary 2014) suggests that the initial text of the law used ‘rape’ and that zina only appeared in a later version . Whatever the case, the articles have in practice been used to adjudicate both consensual zina and rape.

16    As abettors to the crime.

17     Upon our request, the Supreme Court made available the following figures; in 1394 there were 3520 convictions for moral crimes and 451 convictions for rape (tajavoz-e jinsi). The corresponding numbers for 1395 were 2197 and 285 respectively. There were no further specifications of the type of offenses contained in the moral crime category or information about the offenders’ gender.

18     We have been informed by AGO that the Case Management System (CMS) database, currently operated by a private international contractor contain technical errors that needs to be corrected before we can access data about the prosecution of men for moral crimes. One example we were given relates to the gender specification of offenders; the gender of some of the female offenders had been wrongly recorded as male.

19     The figure is believed to include an unspecified number of boys convicted of lawat (sodomy). The authors note that these boys might in reality have been raped.

20     The Afghan year 1394 corresponds to 21 March 2015-20 March 2016, 1395 corresponds to 21 March 2016-20 March 2017 and so on.

21     It appears that this error has occurred at a large scale in the Case Management System (CMS), an online database set up by donors to provide up to date information on the status of all legal cases in the country. The CMS is designed to collect and centrally process case information from all the different judicial organs, including the Supreme Court, Attorney General’s Office, Ministry of Justice and Ministry of Interior. The default gender category in the CMS is male and those entering data might have failed to change the gender to female in many cases. AGO staff compiling data from the CMS found up to 140 cases of ‘running away’ where it appeared that women had incorrectly been recorded as men. Our request for access to the data on moral crimes in the Case Management System has been put on hold by the Attorney General’s Office following the discovery of this mistake. We have been informed that we will receive new data from AGO once the technical errors had been rectified. At the time of writing it is unclear when the process of reviewing and correcting the data in the CMS will be finalized and how soon after we might get access to this data.

22     The Attorney General’s Office claims to have ceased prosecutions for running away in 1395 (2016). We have not seen any instructions issued by the AGO to that effect. Neither have we been able to access data that would verify this claim, such as details of indictments and convictions by year. The statistics from the Prisons Directorate simply provides the number of inmates currently imprisoned for running away at any one time, it does not tell us anything about the year of conviction.

23     See footnote 20.

24     Interviews with legal officials and lawyers in Kabul, autumn 2017.

25     Personal communication by a member of the research team with a group of prosecutors in the Attorney General’s Office in Kabul, 11 December 2017.

26    Following pressure from human rights activists, Article 640 of the new penal code lists virginity tests without the women’s consent or the order of an authorized court a sexual assault, punishable by short term imprisonment.

Ahmed, F. (2017). Afghanistan Rising. Islamic Law and Statecraft between the Ottoman and British Empires. Cambridge/ London, Harvard University Press.

Azam, H. (2015). Sexual Violation in Islamic Law: Substance, Evidence, and Procedure. Cambridge, Cambridge University Press.

Connell, R. W. (1995). Masculinities. Cambridge,UK, Polity.

Cornwall, A. and N. Lindisfarne, Eds. (1994). Dislocating Masculinities: Comparative Ethnographies. London, Routledge.

Day, D. and S. Rahbari (2017). Legal Aid Assessment and Roadmap (LAAR). Kabul, Asia Foundation: 1-256.

Hashimi, G. (2017). ”Defending the Principle of Legality in Afghanistan: Towards a Unified Interpretation of Article 130 to the Afghan Constitution.” Oregon Review of International Law 18(185): 185-226.

Human Rights Watch (2013) ”Afghanistan: Surge in Women Jailed for ‘Moral Crimes’. Prosecute Abusers, Not Women Fleeing Abuse.”

Human Rights Watch (2016) ”Afghanistan: End ‘Moral Crimes’ Charges, ‘Virginity’ Tests

President Ghani Should Honor Pledge not to Arrest Women Fleeing Abuse.”

MOWA (2014). First Report on the Implementation of the Elimination of Violence against Women ( EVAW) Law in Afghanistan Kabul, Islamic Republic of Afghanistan, Ministry of Women’s Affairs.

Samandary, W. (2014). Shame and Impunity: Is violence against women becoming more brutal? Kabul, Afghan Analyst Network.

UNODC (2008). Afghanistan. Implementing Alternatives to Imprisonment, in line with International Standards and National Legislation. Assessment Report. Vienna/ New York, United Nations Office on Drugs and Crime: 1-101

Wimpelmann, T. (2017). The Pitfalls of Protection: Gender, Violence, and Power in Afghanistan. California: University of California Press.

Torunn Wimpelmann

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Aziz Hakimi

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Edward Snowden: Traitor or Hero?

Was Edward Snowden’s release of confidential government documents ethically justifiable?

In 2013, computer expert and former CIA systems administrator, Edward Snowden released confidential government documents to the press about the existence of government surveillance programs. According to many legal experts, and the U.S. government, his actions violated the Espionage Act of 1917, which identified the leak of state secrets as an act of treason. Yet despite the fact that he broke the law, Snowden argued that he had a moral obligation to act. He gave a justification for his “whistleblowing” by stating that he had a duty “to inform the public as to that which is done in their name and that which is done against them.” According to Snowden, the government’s violation of privacy had to be exposed regardless of legality.

Many agreed with Snowden. Jesselyn Radack of the Government Accountability Project defended his actions as ethical, arguing that he acted from a sense of public good. Radack said:

“Snowden may have violated a secrecy agreement, which is not a loyalty oath but a contract, and a less important one than the social contract a democracy has with its citizenry.”

Others argued that even if he was legally culpable, he was not ethically culpable because the law itself was unjust and unconstitutional.

The Attorney General of the United States, Eric Holder, did not find Snowden’s rationale convincing. Holder stated:

“He broke the law. He caused harm to our national security and I think that he has to be held accountable for his actions.”

Journalists were conflicted about the ethical implications of Snowden’s actions. The editorial board of The New York Times stated, “He may have committed a crime…but he has done his country a great service.” In an Op-ed in the same newspaper, Ed Morrissey argued that Snowden was not a hero, but a criminal: “by leaking information about the behavior rather than reporting it through legal channels, Snowden chose to break the law.” According to Morrissey, Snowden should be prosecuted for his actions, arguing that his actions broke a law “intended to keep legitimate national-security data and assets safe from our enemies; it is intended to keep Americans safe.”

Discussion Questions

1. What values are in conflict in this case? What harm did Snowden cause? What benefits did his actions bring?

2. Do you agree that Snowden’s actions were ethically justified even if legally prohibited? Why or why not? Make an argument by weighing the competing values in this case.

3. If you were in Snowden’s position, what would you have done and why?

4. Would you change your position if you knew that Snowden’s leak would lead to a loss of life among CIA operatives? What about if it would save lives?

5. Is there a circumstance in which you think whistleblowing would be ethically ideal? How about ethically prohibited?

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Bibliography

Whistle-Blowers Deserve Protection Not Prison http://www.nytimes.com/roomfordebate/2013/06/11/in-nsa-leak-case-a-whistle-blower-or-a-criminal/whistle-blowers-deserve-protection-not-prison

Eric Holder: If Edward Snowden were open to plea, we’d talk http://www.politico.com/story/2014/01/eric-holder-edward-snowden-plea-102530.html

Edward Snowden: Whistleblower http://www.nytimes.com/2014/01/02/opinion/edward-snowden-whistle-blower.html?_r=0

Edward Snowden Broke the Law and should be Prosecuted http://www.nytimes.com/roomfordebate/2013/06/11/in-nsa-leak-case-a-whistle-blower-or-a-criminal/edward-snowden-broke-the-law-and-should-be-prosecuted

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Study: 400 Afghan women jailed for "moral crimes"

March 28, 2012 / 7:37 AM EDT / AP

(AP) KABUL, Afghanistan - Afghanistan's criminal justice system has made little progress in the way it treats women accused of running away or adultery, despite public commitments from the Afghan president to protect women's rights, Human Rights Watch said Wednesday.

The New York-based group's report on women jailed for so-called "moral crimes" comes as many women's rights activists say they're worried that President Hamid Karzai will abandon promises to protect those rights as he tries to court the Taliban for peace talks. Under the Taliban regime, women were forced to wear body-and-face covering burqas and were not allowed out of the house without a male family member as an escort.

There is no entry in the Afghan penal code for the crime of "running away" and yet hundreds of women have been jailed for fleeing their families or husbands.

11 suicide vests found at Afghan military HQ Poll: Support for Afghan war hits all-time low Video: Gen. Allen says Afghan mission "essential"

Women interviewed by Human Rights Watch often said they were trying to escape abusive husbands or forced marriages. In some cases, those who had left were assumed to have cheated on their husbands, and therefore were jailed for adultery, which is a criminal offense in Afghanistan.

The report said police, prosecutors and judges routinely ignore women's accusations of abuse, arguing even in the face of physical evidence that women are either lying about the abuse or making it seem more severe than it was.

"What's needed first is the political will on behalf of the Afghan government to prosecute violence against women," Kenneth Roth, executive director of Human Rights Watch, told reporters in Kabul.

In one case cited, prosecutors declined to file charges against the husband of a woman who went to police with wounds from being stabbed repeatedly with a screwdriver. The prosecutor did not question that her husband had inflicted the wounds, but declined to prosecute him because the injuries had not been life-threatening. The woman, identified as Nilofar M., was then imprisoned for adultery because she told prosecutors she had invited another man to her house.

"Police, with a crime victim sitting in front of them, see a criminal instead," said Heather Barr, the group's Afghanistan researcher and author of the report.

The report is based on interviews in October and November with 58 women and girls in Afghanistan who have been jailed for "moral crimes" — primarily running away from home or adultery. About 400 women are currently in Afghan prisons because of moral crimes, the report said. That's lower than in August 2010, when the U.N. reported that 565 women were in detention in Afghanistan for moral crimes.

But those 400 remain imprisoned despite a numbers of releases by President Hamid Karzai of groups of women accused of moral crimes in recent years. In the most recent such incident, Karzai announced a blanket pardon earlier this month for women who ran away from their parents to make a love match or who chose a different husband than their families wanted. The government says it is working on identifying and releasing these women.

Neither the Interior Ministry, which controls the police and the prisons, nor the attorney general's office responded to calls seeking comment.

A spokesman for the Supreme Court said that men and women are treated equally in Afghanistan's laws and courts.

"The courts of this country hear equally cases of all Afghan citizens, without paying attention to whether they are men or women," spokesman Abdul Wakhil Omery. He said the chief justice had seen the Human Rights Watch report, but did not find specific enough evidence to prove wrongdoing or negligence in any individual cases.

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Moral Crimes

• Reference work entry
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• Cite this reference work entry

• Robert Meier 5  

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Crimes without victims ; Public order crimes

The study of moral crimes requires awareness of differences in the degree of moral condemnation of conduct. While a number of crimes seem to generate a consensus regarding their immoral character, there are some that do not. These crimes set the stage for conflict and to understand their nature one must be sensitive to the role of power in putting such acts within the criminal law.

What Are Moral Crimes?

In April 2009, the Supreme Court of the State of Iowa ruled unanimously to permit same-sex marriage. In November 2010, three of the judges, who were on the ballot for their job retention, were defeated and removed from office, largely because of their vote on same-sex marriage. One poll found that 41 % of Iowans said they would vote for a ban, while 40 % said they would not; the rest said they would not vote or were undecided (Clayworth and Beaumont 2009 ). And 92 % said the legalization of gay marriage had brought no real...

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Recommended Reading and References

Black D (2011) Moral time. Oxford University Press, New York

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Carpenter D (2011) How the law accepted gays. New York Times, April 29, p A25

Carpenter D (2012) Flagrant conduct: the story of Lawrence v. Texas: how a bedroom arrest decriminalized gay Americans. Norton, New York

Clayworth J, Beaumont T (2009) Iowa poll: Iowans evenly divided on gay marriage ban. Des Moines Register, September 20: Accessed online at: http://www.desmoinesregister.com/article/20090921/NEWS10/909210321/1001/NEWS

Durose MR, Langan PA, Schmitt EL (2003) Recidivism of sex offenders released from prison in 1994. Bureau of Justice Statistics, Washington D.C, Accessed online at: http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=1136

Erikson K (1966) Wayward puritans: a study in the sociology of deviance. Wiley, New York

Hakim D, Kaplan T, Barbaro M (2011) After backing gay marriage, 4 in G.O.P. face voters’ verdict. New York Times, July 4, pp A1 and A3

Lancaster RN (2011a) Sex panic and the punitive state. University of California Press, Berkeley

Lancaster RN (2011b) Sex offenders: the last pariahs. New York Times, August 21, pp 6–7

Lovett I (2011) California to require gay history in schools. New York Times, July 15, p A16

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Oshinsky D (2012) Flagrant conduct. The New York Times Book Review. March 18, pp 1, 10–11

Pennington K (1993) The prince and the law, 1200–1600: sovereignty and rights in the western legal tradition. University of California Press, Berkeley

Quinney R (1970) The social reality of crime. Little Brown, Boston

Sample L, Evans M (2009) Sex offender registration and community notification in Wright R, Sex offender laws: failed policies, new directions. Springer, New York, pp 211–242

Tavernise S (2011a) Access to health care benefits for gay partners is gauged. New York Times, July 27, p A12

Tavernise S (2011b) New numbers, and geography, for gay couples. New York Times, August 25, A1 and A4

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Gerben Bruinsma

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David Weisburd

Faculty of Law, The Hebrew University, Mt. Scopus, Jerusalem, Israel

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Meier, R. (2014). Moral Crimes. In: Bruinsma, G., Weisburd, D. (eds) Encyclopedia of Criminology and Criminal Justice. Springer, New York, NY. https://doi.org/10.1007/978-1-4614-5690-2_302

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Euthanasia and the case of Daniel James

October 18, 2008.

The case of Daniel James raises important issues concerning the right to die.  What are the ethical principles we might invoke in this case? And should Daniel’s parents be prosecuted for assisting him? Go to the CASE STUDIES section under TOPICS for a powerpoint case study of this case.

On September 12 th Daniel James, aged 23, travelled to Switzerland with his parents and killed himself by lethal injection in a suicide clinic run by Dignitas, an organisation that exists to facilitate voluntary euthanasia .

 Daniel was the youngest British person of the 100 people who have taken their own life by this route.

 In March 2007, during a practice session at Nuneaton Rugby Club, the U-16 England International was paralysed from the chest downwards when a scrum collapsed on top of him, breaking his neck.  His mother explained: “he couldn’t walk, had no hand function, and had constant pain in his fingers.  He was incontinent, suffered uncontrollable spasms in his legs and upper body, and needed 24-hour care”.

His parents supported his decision to die: “Daniel continually expressed his wish to die and was determined to achieve this.  He was not prepared to live a second-class existence…his death was, no doubt, a welcome relief from the prison his body had become and the day-to-day fear and loathing of his living existence”.

 Although no-one has ever been successfully prosecuted for assisting suicide in the UK, the police investigated the case and sent a file to the Crown Prosecution Service.  Did the parents do the right thing in assisting Daniel to die?

A Utilitarian  might argue that they did.  Utilitarians seek to maximise happiness or pleasure or preferences of individuals.  Daniel clearly chose to die: no-one forced him.  His life had become intolerable, we are told.  And parents and friends were consulted, and so presumably, though sad, were happy that his wishes were fulfilled or they would not have driven him to Switzerland.

And yet something about this case leaves us uneasy.  Even from the Utilitarian standpoint, can we be sure Daniel’s life wouldn’t have improved?  Part of the problem with Utilitarian ethics is that we cannot be sure of the consequences. We aren’t God: we cannot precisely predict the future.   Daniel’s physiotherapist expressed deep shock: “I was totally shocked.  Daniel was improving and still had the use of his arms and hands.  He could feed and dress himself…most paralysed people do improve over time…perhaps two or three years after the accident. It was early days for Daniel”.  So not only are we uncertain of the future consequences, in this case Daniel’s closest carer suggests he would have improved.  How can we be sure he wasn’t simply suffering from depression, which might have lifted as his condition improved?

 To a natural law theorist (like Aquinas) suicide is an absolute wrong because it breaks the intrinisic relationship between the primary good of self-preservation and the sanctity or sacredness of life.  If you are a Christian  natural law theorist, you might go further: God knit us together in our mother’s womb (Psalm139:13) and his gift of life is something only God can take away.  It is our job to minimise suffering, not to take the role of God in ending life.  Such an action is to repeat the sin of Eden, where Adam and Eve usurped the power of God by eating of the tree of the knowledge of good and evil.

  Kantian ethics would seem to provide a more complex answer.  Kantian ethics has three  main strengths.  It is reasonable because decisions should be universalisable.  It promotes equality because the individual is seen as morally autonomous (ie can take his or her own decisions), and it is consensual , because laws should go through a moral parliament where most people should agree.

Kant himself argued in Metaphysics of Morals   that suicide was self-contradictory as it violated the second formulation of the categorical imperative : treat people not just as a means but as an end in themselves.

“Firstly, under the head of necessary duty to oneself: He who contemplates suicide should ask himself whether his action can be consistent with the idea of humanity as an end in itself. If he destroys himself in order to escape from painful circumstances, he uses a person merely as a mean to maintain a tolerable condition up to the end of life. But a man is not a thing, that is to say, something which can be used merely as means, but must in all his actions be always considered as an end in himself. I cannot, therefore, dispose in any way of a man in my own person so as to mutilate him, to damage or kill him”.

 Daniel’s action might be universalisable, however, according to the first formulation of the categorical imperative: act in such a way as you action could be willed as a universal law.  Would you or I want the right to do the same thing in similar situations?  Or would our moral parliament decide that we need to be protected from our depressed self in such situations, and so pass a law saying it was absolutely wrong to assist a suicide?

 Peter Baron October 18 th 2008 to make a comment please go to the front page and click on Peter Baron.  You can send me an email, and I’ll publish your comments!

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A landmark study of criminal activity in teenagers indicates that some never see crime as a course of action while others are vulnerable to environmental inducements to crime. The study reveals factors that explains why some young people are ‘crime-prone’ and others ‘crime-averse’, and explains why crime hot spots occur.

The idea that opportunity makes the thief - that young people will inevitably commit crime in certain environments - runs counter to our findings. Per-Olof H Wikström

A unique study of teenagers and the community in Peterborough over ten years shows that most adolescent crime is not just youthful opportunism but the combined result of personal characteristics and environmental factors. The findings show that certain urban environments provide triggers for crime to which some teenagers are more vulnerable, while others remain highly resistant to the potential for crime – regardless of the circumstances.

The groundbreaking Peterborough Adolescent and Young Adult Development Study - or PADS+ - at Cambridge’s Institute of Criminology, tracked in detail the criminal activities of around 700 young people and explored how these relate to both their personal characteristics and social environments - while most studies of crime and its causes only focus on one or the other. The findings from the first 5 years of the study from ages 12-16 have been published in the book ‘ Breaking Rules ’ (Oxford University Press).

The young people self-reported about 16,000 crimes during the study period - dominant types being violence, vandalism and shoplifting. Crime is often publicly perceived to be a natural part of teenage life in the 21 st century - but the findings show that a third of teenagers committed no crimes at all, and the vast majority of the rest only occasionally - one or two minor crimes a year on average.

The bulk of offences were committed by a small group - with around 4% responsible for almost half the crime and the overwhelming majority of the most serious property crimes - such as burglaries, robberies and car theft. Often beginning before the age of 12, the most persistent offenders in the study were also highly versatile in their criminality – committing a wide range of offences.

The study suggests that a major reason why certain young people refrain from crime is not because they fear the consequences; it’s that their morality simply prevents them from even seeing crime as a possible course of action in the first place.

The researchers found two main characteristics in teenagers resistant to committing crime - who they describe as ‘crime-averse’ - namely, a personal morality that closely matches the law and greater self-control. Those who committed little or no crime fit this model to a large extent.

Young people at the other end of the spectrum don’t care very much about breaking the rules of the law and tend to be impulsive and short-sighted, leaving them more vulnerable to the temptations of crime – they are ‘crime-prone’.

The 16% most ‘crime-prone’ young people committed 60% of the crimes, while the 16% most ‘crime-averse’ were only responsible for 0.5% of the crimes.

“Many young people are ‘crime-averse’ and simply don’t perceive crime as a possible course of action - it doesn’t matter what the situation is,” says Professor Per-Olof H Wikström, FBA, who leads the PADS+ research team. “The idea that opportunity makes the thief - that young people will inevitably commit crime in certain environments - runs counter to our findings. Rather, only the ‘crime-prone’ become vulnerable to said opportunities when taking part in environments with a moral context that encourages, or, at least, does not discourage, crime.”

The research included not just an in-depth longitudinal study of the lives and habits of 700 young people, but also a survey of over 6,000 local residents combined with large amounts of cross-referenced census and land use data to create a detailed impression of the environments in which the young people spend their time.

The findings show that crime is not only concentrated to a small group of young people, but also in certain times and places - known as ‘hot spots’. In many previous studies, crime hot spots have often been explained by the fact that they occur in areas where opportunities for crime are plentiful.

This new study goes much further, showing that crime hot spots are not only a consequence of opportunity but crucially the moral context - the level of enforcement of key common rules of conduct - in which these opportunities occur, and the presence of ‘crime-prone’ young people. Essentially, crime happens when ‘crime-prone’ people take part in moral contexts that encourage crime.

While some urban environments are largely free of youth crime, others include hot spots for young people’s crime. The study findings show that these crime hot spots occur in city and local centres, and residential areas that are characterised by poor informal social control resulting from weak social cohesion – known as poor collective efficacy. The findings also show that poor collective efficacy almost exclusively occurs in areas with a higher level of social disadvantage.

City and local centres and residential areas with poor collective efficacy have moral contexts in which ‘crime-prone’ young people are vulnerable to committing crime, particularly when they are engaged in unstructured and unsupervised activities.

The city and local centres provide many opportunities and frictions due to the presence of retail outlets and entertainment venues and also lack social cohesion among temporary visitors. Residents of areas which lack collective efficacy are less likely to intervene when young people engage in disorders and crime.

“In prevention we need to focus on developing policies that affect children and young people’s moral education and cognitive nurturing – which aids the development of greater self-control - and policies that help minimise the emergence of moral contexts conducive to crime” says Wikström. “In this context, one of the most important but least understood questions is the role of social disadvantage and how it affects the content and efficacy of young people’s moral education and cognitive nurturing.”

This work is licensed under a Creative Commons Licence . If you use this content on your site please link back to this page.

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• 8. Quality Assurance and Legal Aid Services
• 1. Context for Use of Force by Law Enforcement Officials
• 2. Legal Framework
• 3. General Principles of Use of Force in Law Enforcement
• 4. Use of Firearms
• 5. Use of “Less-Lethal” Weapons
• 6. Protection of Especially Vulnerable Groups
• 7. Use of Force during Assemblies
• 1. Policing in democracies & need for accountability, integrity, oversight
• 2. Key mechanisms & actors in police accountability, oversight
• 3. Crosscutting & contemporary issues in police accountability
• 1. Introducing Aims of Punishment, Imprisonment & Prison Reform
• 2. Current Trends, Challenges & Human Rights
• 3. Towards Humane Prisons & Alternative Sanctions
• 1. Aims and Significance of Alternatives to Imprisonment
• 2. Justifying Punishment in the Community
• 3. Pretrial Alternatives
• 4. Post Trial Alternatives
• 5. Evaluating Alternatives
• 1. Concept, Values and Origin of Restorative Justice
• 2. Overview of Restorative Justice Processes
• 3. How Cost Effective is Restorative Justice?
• 4. Issues in Implementing Restorative Justice
• 1. Gender-Based Discrimination & Women in Conflict with the Law
• 2. Vulnerabilities of Girls in Conflict with the Law
• 3. Discrimination and Violence against LGBTI Individuals
• 4. Gender Diversity in Criminal Justice Workforce
• 1. Ending Violence against Women
• 2. Human Rights Approaches to Violence against Women
• 3. Who Has Rights in this Situation?
• 4. What about the Men?
• 5. Local, Regional & Global Solutions to Violence against Women & Girls
• 1. Understanding the Concept of Victims of Crime
• 2. Impact of Crime, including Trauma
• 3. Right of Victims to Adequate Response to their Needs
• 4. Collecting Victim Data
• 5. Victims and their Participation in Criminal Justice Process
• 6. Victim Services: Institutional and Non-Governmental Organizations
• 7. Outlook on Current Developments Regarding Victims
• 8. Victims of Crime and International Law
• 1. The Many Forms of Violence against Children
• 2. The Impact of Violence on Children
• 3. States' Obligations to Prevent VAC and Protect Child Victims
• 4. Improving the Prevention of Violence against Children
• 5. Improving the Criminal Justice Response to VAC
• 6. Addressing Violence against Children within the Justice System
• 1. The Role of the Justice System
• 2. Convention on the Rights of the Child & International Legal Framework on Children's Rights
• 3. Justice for Children
• 4. Justice for Children in Conflict with the Law
• 5. Realizing Justice for Children
• 1a. Judicial Independence as Fundamental Value of Rule of Law & of Constitutionalism
• 1b. Main Factors Aimed at Securing Judicial Independence
• 2a. Public Prosecutors as ‘Gate Keepers’ of Criminal Justice
• 2b. Institutional and Functional Role of Prosecutors
• 2c. Other Factors Affecting the Role of Prosecutors
• Basics of Computing
• Global Connectivity and Technology Usage Trends
• Cybercrime in Brief
• Cybercrime Trends
• Cybercrime Prevention
• Offences against computer data and systems
• Computer-related offences
• Content-related offences
• The Role of Cybercrime Law
• Harmonization of Laws
• International and Regional Instruments
• International Human Rights and Cybercrime Law
• Digital Evidence
• Digital Forensics
• Standards and Best Practices for Digital Forensics
• Reporting Cybercrime
• Who Conducts Cybercrime Investigations?
• Obstacles to Cybercrime Investigations
• Knowledge Management
• Legal and Ethical Obligations
• Handling of Digital Evidence
• Digital Evidence Admissibility
• Sovereignty and Jurisdiction
• Formal International Cooperation Mechanisms
• Informal International Cooperation Mechanisms
• Data Retention, Preservation and Access
• Challenges Relating to Extraterritorial Evidence
• National Capacity and International Cooperation
• Internet Governance
• Cybersecurity Strategies: Basic Features
• National Cybersecurity Strategies
• International Cooperation on Cybersecurity Matters
• Cybersecurity Posture
• Assets, Vulnerabilities and Threats
• Vulnerability Disclosure
• Cybersecurity Measures and Usability
• Situational Crime Prevention
• Incident Detection, Response, Recovery & Preparedness
• Privacy: What it is and Why it is Important
• Privacy and Security
• Cybercrime that Compromises Privacy
• Data Protection Legislation
• Data Breach Notification Laws
• Enforcement of Privacy and Data Protection Laws
• Intellectual Property: What it is
• Types of Intellectual Property
• Causes for Cyber-Enabled Copyright & Trademark Offences
• Protection & Prevention Efforts
• Online Child Sexual Exploitation and Abuse
• Cyberstalking and Cyberharassment
• Cyberbullying
• Gender-Based Interpersonal Cybercrime
• Interpersonal Cybercrime Prevention
• Cyber Organized Crime: What is it?
• Conceptualizing Organized Crime & Defining Actors Involved
• Criminal Groups Engaging in Cyber Organized Crime
• Cyber Organized Crime Activities
• Preventing & Countering Cyber Organized Crime
• Cyberespionage
• Cyberterrorism
• Cyberwarfare
• Information Warfare, Disinformation & Electoral Fraud
• Responses to Cyberinterventions
• Framing the Issue of Firearms
• Direct Impact of Firearms
• Indirect Impacts of Firearms on States or Communities
• International and National Responses
• Typology and Classification of Firearms
• Common Firearms Types
• 'Other' Types of Firearms
• Parts and Components
• History of the Legitimate Arms Market
• Need for a Legitimate Market
• Key Actors in the Legitimate Market
• Authorized & Unauthorized Arms Transfers
• Illegal Firearms in Social, Cultural & Political Context
• Supply, Demand & Criminal Motivations
• Larger Scale Firearms Trafficking Activities
• Smaller Scale Trafficking Activities
• Sources of Illicit Firearms
• Consequences of Illicit Markets
• International Public Law & Transnational Law
• International Instruments with Global Outreach
• Commonalities, Differences & Complementarity between Global Instruments
• Tools to Support Implementation of Global Instruments
• Other United Nations Processes
• The Sustainable Development Goals
• Multilateral & Regional Instruments
• Scope of National Firearms Regulations
• National Firearms Strategies & Action Plans
• Harmonization of National Legislation with International Firearms Instruments
• Assistance for Development of National Firearms Legislation
• Firearms Trafficking as a Cross-Cutting Element
• Organized Crime and Organized Criminal Groups
• Criminal Gangs
• Terrorist Groups
• Interconnections between Organized Criminal Groups & Terrorist Groups
• Gangs - Organized Crime & Terrorism: An Evolving Continuum
• International Response
• International and National Legal Framework
• Firearms Related Offences
• Role of Law Enforcement
• Firearms as Evidence
• Use of Special Investigative Techniques
• International Cooperation and Information Exchange
• Prosecution and Adjudication of Firearms Trafficking
• Teaching Methods & Principles
• Ethical Learning Environments
• Overview of Modules
• Module Adaption & Design Guidelines
• Table of Exercises
• Basic Terms
• Forms of Gender Discrimination
• Ethics of Care
• Case Studies for Professional Ethics
• Case Studies for Role Morality
• Additional Exercises
• Defining Organized Crime
• Definition in Convention
• Similarities & Differences
• Activities, Organization, Composition
• Thinking Critically Through Fiction
• Excerpts of Legislation
• Research & Independent Study Questions
• Legal Definitions of Organized Crimes
• Criminal Association
• Definitions in the Organized Crime Convention
• Criminal Organizations and Enterprise Laws
• Enabling Offence: Obstruction of Justice
• Drug Trafficking
• Wildlife & Forest Crime
• Counterfeit Products Trafficking
• Falsified Medical Products
• Trafficking in Cultural Property
• Trafficking in Persons
• Case Studies & Exercises
• Extortion Racketeering
• Loansharking
• Links to Corruption
• Bribery versus Extortion
• Money-Laundering
• Liability of Legal Persons
• How much Organized Crime is there?
• Alternative Ways for Measuring
• Measuring Product Markets
• Risk Assessment
• Key Concepts of Risk Assessment
• Risk Assessment of Organized Crime Groups
• Risk Assessment of Product Markets
• Risk Assessment in Practice
• Positivism: Environmental Influences
• Classical: Pain-Pleasure Decisions
• Structural Factors
• Ethical Perspective
• Crime Causes & Facilitating Factors
• Models and Structure
• Hierarchical Model
• Local, Cultural Model
• Enterprise or Business Model
• Groups vs Activities
• Networked Structure
• Jurisdiction
• Investigators of Organized Crime
• Controlled Deliveries
• Physical & Electronic Surveillance
• Undercover Operations
• Financial Analysis
• Use of Informants
• Rights of Victims & Witnesses
• Role of Prosecutors
• Adversarial vs Inquisitorial Legal Systems
• Mitigating Punishment
• Granting Immunity from Prosecution
• Witness Protection
• Aggravating & Mitigating Factors
• Sentencing Options
• Alternatives to Imprisonment
• Death Penalty & Organized Crime
• Backgrounds of Convicted Offenders
• Confiscation
• Confiscation in Practice
• Mutual Legal Assistance (MLA)
• Extradition
• Transfer of Criminal Proceedings
• Transfer of Sentenced Persons
• Module 12: Prevention of Organized Crime
• Adoption of Organized Crime Convention
• Historical Context
• Features of the Convention
• Related international instruments
• Conference of the Parties
• Roles of Participants
• Structure and Flow
• Recommended Topics
• Background Materials
• What is Sex / Gender / Intersectionality?
• Knowledge about Gender in Organized Crime
• Gender and Organized Crime
• Gender and Different Types of Organized Crime
• Definitions and Terminology
• Organized crime and Terrorism - International Legal Framework
• International Terrorism-related Conventions
• UNSC Resolutions on Terrorism
• Organized Crime Convention and its Protocols
• Theoretical Frameworks on Linkages between Organized Crime and Terrorism
• Typologies of Criminal Behaviour Associated with Terrorism
• Terrorism and Drug Trafficking
• Terrorism and Trafficking in Weapons
• Terrorism, Crime and Trafficking in Cultural Property
• Trafficking in Persons and Terrorism
• Intellectual Property Crime and Terrorism
• Kidnapping for Ransom and Terrorism
• Exploitation of Natural Resources and Terrorism
• Review and Assessment Questions
• Research and Independent Study Questions
• Criminalization of Smuggling of Migrants
• UNTOC & the Protocol against Smuggling of Migrants
• Offences under the Protocol
• Financial & Other Material Benefits
• Aggravating Circumstances
• Criminal Liability
• Non-Criminalization of Smuggled Migrants
• Scope of the Protocol
• Humanitarian Exemption
• Migrant Smuggling v. Irregular Migration
• Migrant Smuggling vis-a-vis Other Crime Types
• Other Resources
• Assistance and Protection in the Protocol
• International Human Rights and Refugee Law
• Vulnerable groups
• Positive and Negative Obligations of the State
• Identification of Smuggled Migrants
• Participation in Legal Proceedings
• Role of Non-Governmental Organizations
• Smuggled Migrants & Other Categories of Migrants
• Short-, Mid- and Long-Term Measures
• Criminal Justice Reponse: Scope
• Investigative & Prosecutorial Approaches
• Different Relevant Actors & Their Roles
• Testimonial Evidence
• Financial Investigations
• Non-Governmental Organizations
• ‘Outside the Box’ Methodologies
• Intra- and Inter-Agency Coordination
• Admissibility of Evidence
• International Cooperation
• Exchange of Information
• Non-Criminal Law Relevant to Smuggling of Migrants
• Administrative Approach
• Complementary Activities & Role of Non-criminal Justice Actors
• Macro-Perspective in Addressing Smuggling of Migrants
• Human Security
• International Aid and Cooperation
• Migration & Migrant Smuggling
• Mixed Migration Flows
• Social Politics of Migrant Smuggling
• Vulnerability
• Profile of Smugglers
• Role of Organized Criminal Groups
• Humanitarianism, Security and Migrant Smuggling
• Crime of Trafficking in Persons
• The Issue of Consent
• The Purpose of Exploitation
• The abuse of a position of vulnerability
• Indicators of Trafficking in Persons
• Distinction between Trafficking in Persons and Other Crimes
• Misconceptions Regarding Trafficking in Persons
• Root Causes
• Supply Side Prevention Strategies
• Demand Side Prevention Strategies
• Role of the Media
• Safe Migration Channels
• Crime Prevention Strategies
• Monitoring, Evaluating & Reporting on Effectiveness of Prevention
• Trafficked Persons as Victims
• Protection under the Protocol against Trafficking in Persons
• Broader International Framework
• State Responsibility for Trafficking in Persons
• Identification of Victims
• Principle of Non-Criminalization of Victims
• Criminal Justice Duties Imposed on States
• Role of the Criminal Justice System
• Current Low Levels of Prosecutions and Convictions
• Challenges to an Effective Criminal Justice Response
• Rights of Victims to Justice and Protection
• Potential Strategies to “Turn the Tide”
• State Cooperation with Civil Society
• Civil Society Actors
• The Private Sector
• Comparing SOM and TIP
• Differences and Commonalities
• Vulnerability and Continuum between SOM & TIP
• Labour Exploitation
• Forced Marriage
• Other Examples
• Children on the Move
• Protecting Smuggled and Trafficked Children
• Protection in Practice
• Children Alleged as Having Committed Smuggling or Trafficking Offences
• Basic Terms - Gender and Gender Stereotypes
• International Legal Frameworks and Definitions of TIP and SOM
• Global Overview on TIP and SOM
• Gender and Migration
• Key Debates in the Scholarship on TIP and SOM
• Gender and TIP and SOM Offenders
• Responses to TIP and SOM
• Use of Technology to Facilitate TIP and SOM
• Technology Facilitating Trafficking in Persons
• Technology in Smuggling of Migrants
• Using Technology to Prevent and Combat TIP and SOM
• Privacy and Data Concerns
• Emerging Trends
• Demand and Consumption
• Supply and Demand
• Implications of Wildlife Trafficking
• Legal and Illegal Markets
• Perpetrators and their Networks
• Locations and Activities relating to Wildlife Trafficking
• Environmental Protection & Conservation
• CITES & the International Trade in Endangered Species
• Organized Crime & Corruption
• Animal Welfare
• Criminal Justice Actors and Agencies
• Criminalization of Wildlife Trafficking
• Challenges for Law Enforcement
• Investigation Measures and Detection Methods
• Prosecution and Judiciary
• Wild Flora as the Target of Illegal Trafficking
• Purposes for which Wild Flora is Illegally Targeted
• How is it Done and Who is Involved?
• Consequences of Harms to Wild Flora
• Terminology
• Background: Communities and conservation: A history of disenfranchisement
• Incentives for communities to get involved in illegal wildlife trafficking: the cost of conservation
• Incentives to participate in illegal wildlife, logging and fishing economies
• International and regional responses that fight wildlife trafficking while supporting IPLCs
• Mechanisms for incentivizing community conservation and reducing wildlife trafficking
• Critiques of community engagement
• Other challenges posed by wildlife trafficking that affect local populations
• Global Podcast Series
• Apr. 2021: Call for Expressions of Interest: Online training for academics from francophone Africa
• Feb. 2021: Series of Seminars for Universities of Central Asia
• Dec. 2020: UNODC and TISS Conference on Access to Justice to End Violence
• Nov. 2020: Expert Workshop for University Lecturers and Trainers from the Commonwealth of Independent States
• Oct. 2020: E4J Webinar Series: Youth Empowerment through Education for Justice
• Interview: How to use E4J's tool in teaching on TIP and SOM
• E4J-Open University Online Training-of-Trainers Course
• Teaching Integrity and Ethics Modules: Survey Results
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• Module 6: Causes and Facilitating Factors
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E4J University Module Series: Organized Crime

Module 6: causes and facilitating factors of organized crime, introduction and learning outcomes.

• Structural Factors and Organized Crime
• Ethical Perspective: Moral Failure in Decision-Making
• Perspectives on Crime Causes and Facilitating Factors
• Case studies
• Thinking critically through fiction

Possible class structure

Core reading, advanced reading, student assessment.

• Review and assessment questions
• Research and independent study questions

Additional teaching tools

Published in May 2018

Regional Perspectives: Pacific Islands Region - added in November 2019

Regional Perspectives: Eastern and Southern Africa - added in April 2020

  This module is a resource for lecturers  

Ethical perspective: moral failure in decision-making.

The ethical perspective sees crime as the result of a moral failure in making decisions. Crime takes place when a person fails to appreciate the wrongfulness of an act or its impact on the victim. The ethical explanation of crime appreciates that external factors have a role to play in influencing some people toward criminal conduct, but these factors do not cause the conduct by themselves.

The ethical perspective also agrees that a free-will decision underlies criminal behaviour, but contrary to what is asserted by the classical approach, the inherent tendency to engage in crime is not controlled by the risk of apprehension. Instead, the presence or absence of ethical principles informs one's decisions.

According to the ethical perspective, crime occurs when criminal acts bring pleasure rather than guilt or shame (Albanese, 2016). Ethicists argue that people often do not make decisions in ethical terms because ethical principles and their application to decision-making are often not part of the educational process, or are not modelled by parents or family members. Lacking education and experience in making ethical decisions, people often do what comes naturally and thus make decisions based on self-interest, failing to understand or appreciate the legitimate interests of others or the community at large (Narvaez, 2006).

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AC1.1- moral crimes

• Criminology
• analyse different types of crime
• Created by: zara vyas
• Created on: 02-12-22 18:59
• definition: crimes that go against what society would class as normal and acceptable
• victims: deemed as being victimless however the offender themselves can be seen as the supposed victim- people who are vulnerable, having trouble at home, recently unemployed, struggling with money
• victims: 28,882 homeless people in the years 2021/22 with men constituting a high amount of this number
• offenders: victims themselves, higher up drug dealers and people who allow gambling addicts to carry on
• level of public awareness: quite low as people are ashamed to hide it also public empathise with them so don't see it as an extreme crime
• unreported: number of reported cases of soliciting a prostitute in y2021/22 is 368 compared to 409 in y2018/19
• unreported: lack of public concern, complexity, disinterest, not affected, shame
• both criminal and deviant but more deviant
• RLE: JJ Symonds aged 22 was fined a total of £197 for being in possession of 6 grams of cannabis
• criminal offences: prostitution, vagrancy, under-age drinking, illegal gambling, illegal drug use
• laws: fined for first time offenders, repeat offenders spend small amount of time in prison varies depending on the crime

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Australian court rules in landmark case that asked 'what is a woman?'

A transgender woman from Australia has won a discrimination case against a women-only social media app, after she was denied access on the basis of being male.

The Federal Court found that although Roxanne Tickle had not been directly discriminated against, she was a victim of indirect discrimination - which refers to when a decision disadvantages a person with a particular attribute - and ordered the app to pay her A$10,000 ($6,700; £5,100) plus costs.

It’s a landmark ruling when it comes to gender identity, and at the very heart of the case was the ever more contentious question: what is a woman?

In 2021, Tickle downloaded “Giggle for Girls”, an app marketed as an online refuge where women could share their experiences in a safe space, and where men were not allowed.

In order to gain access, she had to upload a selfie to prove she was a woman, which was assessed by gender recognition software designed to screen out men.

However, seven months later - after successfully joining the platform - her membership was revoked.

As someone who identifies as a woman, Tickle claimed she was legally entitled to use services meant for women, and that she was discriminated against based on her gender identity.

She sued the social media platform, as well as its CEO Sall Grover, and sought damages amounting to A$200,000, claiming that “persistent misgendering” by Grover had prompted “constant anxiety and occasional suicidal thoughts”.

“Grover’s public statements about me and this case have been distressing, demoralising, embarrassing, draining and hurtful. This has led to individuals posting hateful comments towards me online and indirectly inciting others to do the same,” Tickle said in an affidavit.

Giggle’s legal team argued throughout the case that sex is a biological concept.

They freely concede that Tickle was discriminated against - but on the grounds of sex, rather than gender identity. Refusing to allow Tickle to use the app constituted lawful sex discrimination, they say. The app is designed to exclude men, and because its founder perceives Tickle to be male - she argues that denying her access to the app was lawful.

But Justice Robert Bromwich said in his decision on Friday that case law has consistently found sex is “changeable and not necessarily binary”, ultimately dismissing Giggle’s argument.

Tickle said the ruling "shows that all women are protected from discrimination" and that she hoped the case would be "healing for trans and gender diverse people".

“Unfortunately, we got the judgement we anticipated. The fight for women’s rights continues,” Grover wrote on X, responding to the decision.

Known as “Tickle vs Giggle”, the case is the first time alleged gender identity discrimination has been heard by the federal court in Australia.

It encapsulates how one of the most acrimonious ideological debates - trans inclusion versus sex-based rights - can play out in court.

‘Everybody has treated me as a woman’

Tickle was born male, but changed her gender and has been living as a woman since 2017.

When giving evidence to the court, she said: “Up until this instance, everybody has treated me as a woman.”

“I do from time to time get frowns and stares and questioning looks which is quite disconcerting…but they’ll let me go about my business.”

But Grover believes no human being has or can change sex - which is the pillar of gender-critical ideology.

When Tickle’s lawyer Georgina Costello KC cross examined Grover, she said:

“Even where a person who was assigned male at birth transitions to a woman by having surgery, hormones, gets rid of facial hair, undergoes facial reconstruction, grows their hair long, wears make up, wears female clothes, describes themselves as a woman, introduces themselves as a woman, uses female changing rooms, changes their birth certificate – you don’t accept that is a woman?”

“No”, Grover replied.

She also said she would refuse to address Tickle as “Ms,” and that “Tickle is a biological male.”

Grover is a self-declared Terf, which stands for "trans-exclusionary radical feminist". Typically used as a derogatory term for those considered hostile to transgender people, it has also been claimed by some to describe their own gender-critical beliefs.

“I’m being taken to federal court by a man who claims to be a woman because he wants to use a woman-only space I created,” she posted on X.

“There isn’t a woman in the world who’d have to take me to court to use this woman only space. It takes a man for this case to exist.”

She says she created her app “Giggle for Girls” in 2020 after receiving a lot of social media abuse by men while she worked in Hollywood as a screenwriter.

“I wanted to create a safe, women-only space in the palm of your hand,” she said.

“It is a legal fiction that Tickle is a woman. His birth certificate has been altered from male to female, but he is a biological man, and always will be.”

“We are taking a stand for the safety of all women’s only spaces, but also for basic reality and truth, which the law should reflect.”

Grover has previously said that she would appeal against the court’s decision and will fight the case all the way to the High Court of Australia.

A legal precedent

The outcome of this case could set a legal precedent for the resolution of conflicts between gender identity rights and sex-based rights in other countries.

Crucial to understanding this is the Convention on the Elimination of Discrimination Against Women (CEDAW). This is an international treaty adopted in 1979 by the UN - effectively an international bill of rights for women.

Giggle’s defence argued that Australia’s ratification of CEDAW obliges the State to protect women’s rights, including single-sex spaces.

So today’s ruling in favour of Tickle will be significant for all the 189 countries where CEDAW has been ratified - from Brazil to India to South Africa.

When it comes to interpreting international treaties, national courts often look at how other countries have done it.

Australia’s interpretation of the law in a case that got this level of media attention is likely to have global repercussions.

If over time a growing number of courts rule in favour of gender identity claims - it is more likely that other countries will follow suit.