Marital Rape in Afghanistan

I wanted to address the Afghan law that many liberal and feminist bloggers have spoken about, which guarantees a man's right of sexual access to his wife. Under the law, a man has a right to have sex with his wife every fourth night (which I assume is a minimum). One of the law's drafters, Mohammad Asif Mohseni, has condemned the outcry from Western leaders (including Obama), saying that if the West wants a democracy in Afghanistan, then it needs to let the Afghan people pass laws like this, if the people decide they are necessary.

Mohseni's underlying argument boils down to "Western influence over our laws is unacceptable". This view seems to be shared by Noah Feldman, as described in his article Imposed Constitutionalism (37 Conn. L. Rev. 857, 869 (2005)). To thse who think Westerners should have little or no say in Afghanistan's laws, I must ask: are you serious? How can the West avoid interfering with Afghanistan's legal system? The US was attacked by the Taliban, which was effectively running Afghanistan, since its government was broken. As a response to a devastating attack, we invaded Afghanistan. The logical conclusion of that invasion, whenever it may come, must include a new, stable Afghan government, with American support. And, we as Americans have an obligation, having taken on the burden of invading and trying to stabilize the Afghan state, to safeguard human rights there.

Avoiding Western intrusion into Afghan affairs is impossible in 2009. In fact, an American refusal to get involved with this particular law would be a Western interference that comes down on the side of men who think women exist to be used for sex. There is no neutral, non-invasive ground for the US or the rest of the West in this situation. By standing idly by, Westerners are complicit in deprivation of Afghan women's constitutionally protected rights. We are complicit in the legalization of marital rape and the statutory reduction of women to sex objects rather than people. We ruin our own strategic objectives if we don't push back, because we contribute to the instability of the Afghan state when we support fundamentalists like Mohseni. When fundamentalists and regional clerics are given power over government and the laws thereof, they will not back off and support whatever government we pick to nominally run the country. Giving fundamentalist warlords an inch on these types of debates silences women and legitimizes virulent fundamentalism that reads no human rights guarantees in the Quran.

Mohseni contends that marital rape and women's sexual availability to their husbands is a Quranic principle, and is therefore beyond analysis and reproach:

Afghanistan is an Islamic state and its constitution defers to the Quran as the ultimate authority. Mr. Mohseni said the law simply reiterates rules from Islam's holy book.

The Quran, like every other authoritative religious text, is open to interpretation. Does the Bible say things that were only culturally appropriate in the context (temporal and cultural) in which it was written? You bet. Does the Torah? Sure. It is an indefensible position that the Quran, in 2009, necessarily restricts human rights and mandates that women function as objects of sexual gratification for their husbands regardless of their own feelings on the matter. There are 1.2 billion Muslims in the world (according to some sources). Not all of them practice or interpret their religion in the same way. It is unnecessary and inappropriate for the US to entertain arguments that the Quran mandates that women are their husband's property, or any argument that similarly reduces women's humanity. To accept such an argument is to support a hard line, fundamentalist interpretation rather than a more progressive, democratic interpretation. There is no reason to accept any interpretation of Islam that doesn't comport with modern understandings of human rights.

Our failure to insist upon a liberal interpretation of Islam in the laws of the Muslim governments we influence will doom our goals in Iraq ad Afghanistan by empowering fundamentalists there. Such a failure would also doom our efforts to achieve democracy in those countries, since it is disingenuous to describe a state as a democracy if it lacks meaningful participation by its women.

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