The story of Gulnaz, a young Afghan woman who was raped and then jailed for having sex out of wedlock, has once again drawn international attention to Afghanistan's legal system and its institutionalized discrimination against women.
After giving birth in prison to her attacker's child, Gulnaz, who goes by a single name, was eventually pardoned, perhaps because news of her plight was reported by a documentary filmmaker. But to win her freedom, she had to agree to marry her rapist.
Even with that condition, which some reports say won't be enforced, Gulnaz's escape from a lengthy prison sentence is a welcome departure from the injustices imposed on abused Afghan women. Half of Afghanistan's female prisoners are jailed for zina, or moral crimes, and most of them stand little chance of being pardoned.
Along with outrage, stories about Gulnaz's situation have sparked the usual orgy of self-satisfaction on this side of the globe. A reader's comment posted online in response to Friday's New York Times article about Gulnaz's pardon is typical. After expressing disbelief at the subjugation of women in "most of the Muslim world and large parts of Africa," the reader added: "By the way, I must once again say how much I love America. We have our problems but boy, we do it right!!!!!!!!!!!!" Even the liberal Daily Kos observed, "We could never imagine anything like this happening here."
But before we get too smug, we should recognize that our legal tradition has roots that are not all that different from those we condemn, and you don't have to look too far back in history for outrageous examples. For example, it was only in 1980 that the California Legislature made it illegal for a husband to rape his wife. As late as the 1950s, the right of a husband to take his wife by force was enshrined in the laws of every state. As legal authority Rollin Perkins put it in 1957: "A man does not commit rape by having sexual intercourse with his lawful wife, even if he does so by force and against her will." Shocking, yes, but that had been the law for millenniums. When a woman said "I do," she was deemed to have given lifetime consent to her husband's sexual demands.
Rape has always been difficult to prove in court, especially when the man claims the woman consented. Although there is little to emulate about Afghan justice, at least the authorities there accepted that Gulnaz's child was the result of forced sex. By contrast, early English courts took pregnancy as proof that the sex was consensual. The idea was that both the man and the woman needed to experience sexual pleasure to conceive a child, so a pregnancy showed that the woman enjoyed the encounter. And this contemptible theory is not found only in history books. In 1995, North Carolina legislator Henry Aldridge, when arguing against a law to aid pregnant rape victims, said: "The facts show that people who are raped, who are truly raped, the juices don't flow, the body functions don't work, and they don't get pregnant."
Particularly galling to Western readers of the Gulnaz story was the idea of pushing a rape victim to marry her ravisher. But the Afghan judge who told her she could escape from jail by marrying the rapist was in line with Judeo-Christian tradition. Deuteronomy 22:28-29 lays out how if a man meets a virgin who is not betrothed and "seizes her and lies with her," then "she shall be his wife." The Afghan judge would also have found friendly company in the courts of Renaissance Italy, which viewed rape as a kind of mating ritual. In one case in Venice, a rapist was given the choice of going to jail for six months, paying a fine or marrying his victim. The man chose marriage.
Gulnaz's imprisonment after suffering a rape was wrong on every level. But the plight of women in Afghanistan and other countries is no cause for Western arrogance, especially when spousal rape was legal here so recently. The rights of American women have been hard won and could be easily lost. To view the Gulnaz case as anything other than a further call to action would be to disrespect her and victimized women everywhere.
Eric Berkowitz is a San Francisco writer and lawyer, and the author of the forthcoming book "Sex and Punishment: Four Thousand Years of Judging Desire."