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

is criminal, it is not clear on the legal response to sexual exploitation of children in
prostitution, or whether children would be considered criminals or victims.
Procuring a child for prostitution could be addressed through the provision in the Penal Code
of ‘Instigation of Delinquency’, which prescribes penalties for an adult who promotes or
assists in the act of minors (under 18) being involved in ‘a profession pertaining to
delinquency’. 122 A subsequent provision increases the sentence if the perpetrator is a relative,
tutor, teacher or servant of the person, or if the act results in the ‘deflowering of a maiden’. 123
3.2.4.2 Exploitation in travel and tourism
Afghanistan has neither legislation that directly addresses sexual exploitation of children in
travel and tourism, nor does it have extraterritorial agreements with other countries for
prosecution of internationals who exploit or abuse Afghan children.
3.2.4.3 Trafficking for sexual exploitation
In public conception and in law, ‘trafficking’ is not clearly recognized and is often conflated
with kidnapping or human smuggling. 124 Trafficking cases are adjudicated under the Penal
Code articles on kidnapping of children. 125 The articles on kidnapping, while addressing both
girls and boys under 18 years, impose stricter penalties for kidnapping of girls. Additional
penalties are imposed if the crime is committed by a person who has influence over, is
responsible for raising or is a servant of the victim. Abducting a girl 16 years old or older
from her parent’s home for the purpose of marriage is not deemed an act of kidnapping. The
kidnapping provisions do not encompass all of the acts inherent in the trafficking process,
according to the Palermo Protocol. There are also provisions related to trafficking in the Penal
Code, chapter 8, which regulates “adultery, pederasty and violation of honour”.
Afghanistan needs a coherent law to clarify the conceptual confusion in practice and
legislation between smuggling, kidnapping and trafficking. The Ministry of Justice has
drafted a law provisionally titled Law on Combating Kidnapping and Trafficking in Persons,
which would provide an official definition of the crime and establish a legal framework for its
adjudication. The law is presently under review by ministries. 126
3.3 Policy
The Afghanistan National Development Strategy 2008-2013 includes a chapter on social
protection that targets two main groups of children: those ‘at risk’ and war survivors. Among
others, the population ‘at risk’ includes children living on the street, working in exploitive
conditions or in conflict with the law, and victims of violence, abuse and human trafficking.
Implementing social protection reform requires building capacity in the Ministry of Labour,
122
Afghanistan Penal Code, Article 430(1).
123
Afghanistan Penal Code, Article 430(2), 427(2).
124
UNICEF, 2008, ‘A discussion paper on child trafficking in Afghanistan’ (internal document).
125
Afghanistan Penal Code, Articles 420, 421.
126
International Organization for Migration, 2008, ‘Trafficking in persons in Afghanistan: Field survey report’.
38