In Afghanistan there are different laws that affect each other when it comes to banning homosexuality. First, there is a different understanding of homosexuality in Afghan culture than in Western culture. For example, in Afghanistan it is not frowned upon when men touch each other in public and is not considered a sexual act. Even sexual contact with underage male youths is not considered homosexual in military circles. Rather, in the cultural understanding of many Afghans, these young people are still feminine, i.e. they are not adult men. Thus, sexual acts with them are not the same as sexual contacts between two men.1
Homosexuality is legally regulated by the Penal Code of 1976. This was temporarily suspended during the American occupation but is now in force again. There is also an additional ban on homosexuality regulated by the Islamic Sharia. However, this overlaps in many points with the penal code. For example, the legal prosecution of homosexuals in the context of honor killings, i.e. in the case of adultery or fornication on the part of the spouse or relatives under Article 398 of the Penal Code, is minimal. Article 512 states that persons who behave in an immoral manner in public in front of others are liable to imprisonment or fines. Article 427 provides for long prison sentences for, among other things, sexual contacts that do not serve the purpose of reproduction.2 Nowhere in the law is there any literal reference to same-sex acts that are punishable.
Another criminal provision is found in the Afghan Civil Law of 1971 (Article 60), where sexual acts outside marriage are prohibited regardless of sex. According to the "World Report 2018" by Human Rights Watch(HRW), this law also makes same-sex relationships punishable by five to 15 years imprisonment.3
In February 2018, Afghanistan adopted a new Penal Code. With this new penal code, Afghanistan for the first time has a code that meets international standards.4 How and whether these can be implemented in reality remains questionable.
For example, in reference to a report by the United Nations Assistance Mission in Afghanistan, HRW speaks of the highest increase in torture in detention since 2010.5
Observations of the US government's Human Rights Report of 2017 confirm that Afghan law does not clearly oppose homosexuality, but only prescribes same-sex marriage. Nor does the German Foreign Office have any information on criminal proceedings conducted for homosexual acts.6 Nevertheless, the Human Rights Report documents that homosexuals report discrimination, arrests and rapes. According to the report, the country lacks accountability and a strong judiciary. According to the report, extrajudicial killings, torture, arbitrary arrests and especially assaults on women and the rape of children are among the greatest crimes against humanity in Afghanistan.7
1 Frankfurter Rundschau: Afghanistan ächtet seine Schwulen
2 Equaldex: LGBT Rights in Afghanistan
3 Human Rights Watch: Afghanistan – Events of 2017
4 Unama welcomes Afghanistan’s new penal code
5 Human Rights Watch: Afghanistan – January 2018
6 Deutsches Auswärtiges Amt: Afghanistan – Reisewarnung (Reisewarnung)
7 U.S. Department of State: Afghanistan 2017 Human rights report
Text: Natalie Meyer