SEXUAL ABUSE AND EXPLOITATION OF BOYS IN SOUTH ASIA A ...

well as the ‘violation of chastity of another (whether male or female)’. It also considers sexual
abuse by a tutor, teacher or servant to be an aggravating condition. Notably, the Penal Code
does not distinguish the sex of the perpetrator, so females could also be charged with offence.
Other forms of child sexual abuse are not addressed in Afghan state law. It has no provisions
readily applicable to molestation or sexual harassment. Parents and siblings are not identified
as possible perpetrators in sexual abuse, although they are not excluded from penalties for
rape under the Penal Code. Legislation does not specifically cover other forms of child sexual
abuse, including using indecent sexually explicit language towards a child as well as indecent
exposure to sexual activities, showing children pornographic material or forcing a child to
witness sexual acts. However, presumably some of these crimes could be addressed through a
provision in the Penal Code prohibiting a person from “instigating a male or female, not
eighteen years old, to delinquency”. 119
While the Penal Code, Sharia law and customary laws may protect boys from sexual abuse
and exploitation, the Penal Code’s prohibition of adultery and pederasty can also expose the
abused boy to accusations of perpetrating an ‘unnatural act’. This provision provides an
opportunity to criminalize persons engaged in prostitution, extramarital sex and homosexual
sex, regardless of consent.
3.2.3 Sexual exploitation in pornography
Afghan legislation has limited application to exploitation of children through exposure to
pornography, and no reference to child pornography/child abusive images. As in other South
Asian countries, it is more concerned with preservation of moral integrity than with the
impact of pornography on the victim. The primary provision regarding pornography in State
law is the Press Law 2002, which criminalizes inciting others “to seek depravity by means
of…publication of obscene articles or photos which tend to debase public morals”. 120
Exposing a child to pornography could perhaps be adjudicated through the Penal Code laws
on ‘exposing a child to delinquency’, but this has not occurred in practice.
3.2.4 Other forms of sexual exploitation
3.2.4.1 Prostitution
Prostitution is not formally recognized in the Afghan legal system; it is neither defined nor
expressly prohibited. The law is focused around the integrity of the institution of marriage;
sexual contact outside marriage is prohibited. A person committing prostitution, either male
or female, would be penalized under articles 426-428 of the Penal Code, ‘Adultery, Pederasty
and Violation of Honour’, 121 with the assumption that the person was married and conducting
sexual intercourse out of wedlock. Child prostitution is not clearly defined, and while the
Penal Code is clear that sexual intercourse with a minor (anyone under 18, either boy or girl)
119 Afghanistan Penal Code, Article 430(1).
120 Press Law 2002 (No. 81).
121 Afghanistan Penal Code, Articles 426-428.
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