“There is no state in this country” Legal and social treatment of marital rape in

Mahabat Sadyrbek1

Free University Berlin, Germany

In comparison to other countries in the region, Kyrgyzstan has developed relatively strong legislative framework towards preventing and eliminating the pervasive forms of and providing women with options to obtain safety and justice for violations of their rights. In reality, however, all the promising laws have yet failed to translate into effective implementation and violence against women remains an increasing issue in the country. On the basis of a concrete case-study, this paper is designated to analyse a real life situation of an ordinary Kyrgyz , who for almost two years has been fighting for a fair trial without any prospect of success. The situation of Akmatbekova is a good sample of the larger group of women, who has ever faced long term and sexual abuse. Based upon the data compiled while attending court sessions and qualitative interviews with the relevant actors, this paper highlights a galaxy of structural barriers that have grossly impeded the adequate realization of women’s sexual agency and bodily integrity. Through the socio-anthropological in-depth study of one individual and her case, the discrimination, shortcomings and fallacies of the criminal justice system in Kyrgyzstan as regards marital rape are illuminated. The numerous devastating consequences on social and cultural ground for speaking out and dominant social attitudes which exist in the field will be addressed too, as these are both a product and a contributing factor to women’s inequality in Kyrgyzstan. Further, it goes on to provide arguments necessitating the criminalization of marital rape and few reasonable suggestions for addressing some of the problems. Apart from the participant observations and interviews, the court-documents, newspaper articles and country’s criminal codes will be used. The literature review focuses on (Women) Human Rights Reports and scholarly analyses available on the conception of international human rights and the development of legal frameworks.

Keywords: ; Kyrgyzstan; women rights; sexual violence; domestic violence; marital rape

Introduction

During fieldwork in Kyrgyzstan in 2011-2013 for my dissertation project I came across a public rape trial, held in the Bishkek Military Court. А high member of Kyrgyzstan's KGB- successor had been accused of the brutal rape of his wife Nazgul Akmatbekova, which he supposedly committed together with his driver. According to the charges, in the evening of 18 June 2011, Azamat Bekboev - the high ranking GKNB officer – picked up his wife Nazgul Akmatbekova after work. He was accompanied by his longtime friend and former driver

1 The author is currently a PhD candidate at the Berlin Graduate School Muslim Cultures & Societies of the Free University Berlin, Germany. Correspondence: Mahabat Sadyrbek, Altensteinstraße 48, 14195 Berlin, Germany; E-mail: [email protected]

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Arzybek Tuuganbaev. After having bought some snacks and vodka, they arrived in the mountainous suburbs of Bishkek, where the two friends started to drink and forced the woman to join. Subsequently, the men took her clothes off and raped her in the car: While the husband entered her in the front, the accomplice forced the woman to have oral sex, keeping her arms crossed and hitting her head against the car door. After several hours of rotational rape, they arrived at home in the village Kashka-Suu in the middle of the night, where the parents of Azamat and his oldest sister with her family were sleeping. In the bedroom of the couple, the whole scene was repeated, the victim`s resistance was broken with several hard kicks in the kidney and in the abdominal area, mainly from her husband, while his accomplice most of the time was busy carrying out his ejaculation in the mouth of Akmatbekova.1 The two men had been accused in accordance with Art. 129 (part 2 and section 2) of rape committed by a group, and Bekboev additionally with Art. 122 for beating that are provided in the Criminal Code of the Kyrgyz Republic. From the first day of hearings it was a challenging and exhausting trial. Because of the lack of forensic evidence and independent witnesses, the accusations boiled down to her statement against his. Finally, after one year of stressful sessions the military court acquitted the two men on May 24 2012 on the grounds that the accusations were ill-founded and contained many shortcomings and mistakes (Trilling 2012). Akmatbekova then appealed to a higher military court that started a second trial in July 2012. А group of three judges started a new period of investigation. The trial is still running (as of this writing) and the question remains open whether it will ever produce a guilty verdict. In a phone conversation with the victim some days ago, she said: “Long ago I lost every hope for justice, because there is no state in this country.”

Concept of (marital) rape

Be it stranger rape, date rape or marital rape – rape remains a difficult concept for many to comprehend, and it is one of the most underreported and unacknowledged aspects of women’s inequality worldwide. It is defined as an offense and unwanted sexual act, committed without consent and/or against a person's will, carried out by force, or threat of force, intimidation, or when a person is unable to consent. These sexual acts include intercourse, anal or oral sex, forced sexual behaviour with other individuals, and other sexual activities that are considered by the victim as degrading, humiliating, painful, and unwanted (World Health Organization 2012). While the legal definition varies from country to country, marital rape is non-consensual sex in which the perpetrator is the victim's spouse. As different researches established, rape in marriage is the prevalent form of partner rape, of domestic violence, and of sexual abuse that millions of women face each year.2 Studies using clinical samples of battered women reveal that between one third and one half of battered women are raped by their partners at least once (Bergen, 1996; Browne, 1993; Campbell, 1989). Despite its prevalence, the legal and social concept of marital rape was widely condoned and ignored by social scientists, practitioners, criminal justice systems, and larger society as a whole. Society often takes the dangerously limited view that ‘real’ rape happens in alleyways, parks or behind the bushes, the rapist is a lunatic stranger, and the victim must be a virgin of impeccable reputation. The acknowledgement of sexual violence as a major social problem occurred during the 1960s and 1970s due to the efforts of the civil and feminist anti-rape movements. In December 1993, the United High Commissioner for Human Rights established marital rape as a human rights violation within the Declaration on the Elimination of Violence Against Women. According to last estimation 2 of UN Secretary General (2006) spousal rape is repudiated by and may be prosecuted in at least 104 States.3 The crime of rape was further specifically expanded and redefined in the Beijing Declaration and Platform for Action (1995) to reflect modern notions of equality and legal propriety. Still, in many countries, prosecution of marital rape is very rare, because spousal rape either remains legal, or is illegal but widely tolerated and accepted as a husband's prerogative. Despite the severe, long-term psychological consequences and significant levels of posttraumatic stress disorder for women, rape by one’s partner is still treated as a lesser crime than other forms of rape conveying the message that such acts of aggression are somehow less reprehensible than other types of rape (Frieze 1983; Bergen 1999).

Legal position on marital rape in Kyrgyzstan

Kyrgyzstan belongs to the list of countries which do not exempt or include marital rape under general rape provisions. This was the case during the Soviet regime as well. According to Soviet law, sex crimes were divided into the following separately defined offenses: rape (e.g. Art. 117 RSFSR Criminal Code), seduction (compulsion of a woman to enter into sexual intercourse – Art. 118), sexual intercourse with a minor before puberty (Art. 119), depraved actions in respect of minors (Art. 120), sodomy and pederasty (Art. 121) and infection with a venereal disease (Art. 115) (Feldbrugge 1985: 697). The post-Soviet Kyrgyz Criminal Code entails under Art. 129 four types of rape with several sub-divisions characterizing different manners and ways of committing the crime: (1) rape through physical violence / intimidation and without consent (2) rape: 1) committed by a person previously convicted of sexual offenses 2) by a group, 3) by a group with prior agreement 4) extorted by threats of death or grievous bodily harm, and committed with extreme cruelty against the victim or other persons 5) that resulted in the infection with a venereal disease 6) of a minor (3) rape 1) which negligently caused the death of the victim, his / her infection with HIV or other serious consequences; 2) committed by an organized criminal group 3) of a juvenile (4) rape of a child with particularly serious consequences.

The law on rape calls for an imprisonment for a term of five to eight years, in case of a juvenile and child-rape a term of fifteen to twenty years or life imprisonment. As we see, the list contains only aggravating circumstances vis-à-vis the basic crime and doesn’t specifically mention spousal rape as crime. Therefore, it is not clear if marital rape may or may not be prosecuted under ordinary rape laws. The Kyrgyz justice system often deals with matrimonial offences involving the infliction of suffering through violence on the basis of the Administrative Code or through criminal offences other than rape. Art. 66-3 of the Administrative Code, for instance, states that an administrative penalty is to be applied against the perpetrator of domestic violence, including physical, psychological, and sexual 3 abuse, when that abuse does not justify criminal proceedings. Relevant other crimes include, inter alia: “inflicting physical or psychological suffering through systematic beatings or through other violent means” (three to seven years’ imprisonment) and “purposeful infliction of light damage to health having resulted in a short-term health disorder or in a minor permanent loss of the ability to work” (six months’ to one year’s imprisonment, Criminal Code, Art. 111-112). In cases where the action of one family member against another violates the person’s constitutional or other rights, results in light damage to a person’s health, causes physical or psychological suffering, or damages a person’s physical or psychological development – regardless of age or sex – and that action does not qualify for criminal liability, an administrative fine shall be levied against the perpetrator of five to 10 times the calculated indices (Administrative Code, Art. 66-3). Furthermore, Kyrgyzstan progressively adopted in 2000 the Law on Fighting Domestic Violence and Measures of Social and Legal Protection of Victims of Violence and in 2003 the Law on Social-Legal Protection from Domestic Violence, to address the problem of domestic violence. The latter was a significant step towards preventing further violence and providing women with options to obtain safety and justice for violations of their rights. Sexual domestic violence as a type of abuse forbidden under the law is defined as “an act by one family member that infringes the sexual inviolability of another family member; as well as acts of a sexual character involving a minor” (Art. 1). Additionally, the country ratified numerous Conventions on Human and Women Rights, on the Elimination of All Forms of Discrimination against Women (CEDAW) and obligated itself to protect women from violence perpetrated by state agents and private actors.4 In sum, although there is no formalization of marital rape in Kyrgyz criminal or administrative law, there is a solid legal framework to protect women’s sexual agency and bodily integrity, which lie at the heart of women's human rights. As Akmatbekova’s case exemplifies, the sexual abuse can be accepted and treated as a crime as well as prosecuted under existing ordinary rape laws. Certainly, it has to be taken into account that the sexual act was committed by two persons and therefore falls under section 2, in the second part of article 129 Criminal Code. Thereby, it remains unclear, how it would have been handled in another case if the sexual abuse had been committed by her husband alone. Nevertheless, any of these promising laws have been referred or applied to address the problems of the victim. The issue of a guilty verdict and penalty remained lost in a cloud of procedural uncertainties. The reasons for that are very diverse and enmeshed with a whole set of other problems which are of a more structural nature. In sum, one may argue that in Kyrgyzstan de facto marital rape is still not recognized, legally and socially, as a form of abuse.

Local attitudes towards (marital) rape

It might be no exaggeration to state that rape and sexual assault in Kyrgyz patriarchal society are generally understood to be “expressions of passion and love and not a crime of violence and power” (Alkon 2007: 1). If we look at Kyrgyz marriages resulting from , which in two thirds of cases occur on a non-consensual basis (Kleinbach & Salimjanova 2007), rape is deemed to be a valid form of sex in marriage: the fact that the abductor rapes the abducted as soon as possible in his house legitimatises the marriage before the law and religious cleric. Moreover, it coerces the bride to remain with her abductor and commonly makes the marriage unavoidable for her and her parents out of shame. In this widespread practice the forced sexual act is not seen as rape, it is commonly justified by the tradition of getting married, after all, the man just got carried away expressing his love for her (Amsler & Kleinbach 1999; Lloyd-Roberts 1999; Handrahan 2004). The cases, in which perpetrators of 4 rape evade criminal responsibility by proposing marriage intentions to marry their victims, are very common practice in Central Asia. This outrageous outcome is alongside the material compensation a favorable result of many “reconciliation” processes in sexual assault cases, which are even brokered and mediated by criminal justice professionals (Alkon 2007). The fear of a huge stigma hindering remarriage, and ill-treatment as tainted and damaged “goods” leaves no other choice for the victim than to marry her assailant and hereby to be exposed to permanent rape. Marital rape is both a product of and a contributing factor to women’s inequality in Kyrgyz society. It is the most common and repugnant form of misogyny and domestic violence, hidden behind the iron curtain of marriage. According to a survey by the National Statistical Committee in an overwhelmingly proportion of cases (81 percent) perpetrators of sexual violence were a spouse, a partner or a former spouse or boyfriend (11 percent), with colleagues, relatives or strangers being rarely mentioned (3 percent).5 Similarly, the government statistics indicate 92 percent of rapes are committed by sexual partners or former partners. Perhaps it’s not a coincidence that the 2008 UNFPA study found that 70 percent of women convicted of murdering their husbands or other family members were victims of domestic and sexual abuse. This coincides with the recent data of the Kyrgyz Ministry for Social Development.6 Despite these facts, marital rape is in Kyrgyzstan rarely reported and men, especially husbands, remain immune from legal and penal repercussions. It is also very common to classify the violent sexual act by a man against his wife as an administrative offense in cases where the abuse does not justify criminal proceedings.7 The reasoning is that there is a broad acceptance of the archaic understanding that wives are the property of their husbands and the marriage contract entails for many the ‘license to sexual contact on demand or to rape’ (Finkelhor & Yllö 1985). According to the same survey by the National Statistical Committee above, 38 per cent of women indicated that they did not believe sexual abuse to be a crime. Many women in the country carry the implicit and explicit assumption that it is their ‘duty’ to perform any sexual act as their partners' desire. It is widely believed that it is a husband’s prerogative to get sexual satisfaction any time he demands it, and that he has the right to beat his wife or use force if she refuses sex. This awareness was confirmed by Akmatbekova as well, when she told: “I would have never gone to court against my husband, if he would not have put me under his driver; because I got used to being raped by him from the first day on, when he abducted me. It was normal in our marriage.” Kyrgyz women have in general very little sexual autonomy and often experience sexual abuse as part of an established pattern of domestic violence. As obvious from different kinds of research, marital rape appears most likely to occur in relationships characterized by other forms of violence. This has led some researchers to coin the term of “battering rapes” (Finkelhor & Yllö, 1985) and to designate the marital rape as “just one extension of domestic violence” (Johnson & Sigler, 1997: 22). This argument is fully demonstrated by the experiences of Akmatbekova: In 15 years of living together, this petite woman of 36 suffered years of violence at the hands of her husband and of her in- laws: She was frequently beaten and often raped by her husband even during pregnancy. Married with the only son of the family, Akmatbekova was a foreign body with plenty of obligations and was damned to the role of life-long caregiver of her parents-in-law. She reared four children and took over the bulk of the household duties. Moreover, she was the real bread-winner: 8-15 hours a day she worked in a tailor shop, whilst her husband enjoyed a carefree life, being away on ‘business-trips’ and having different affairs. Her -and sisters-in-law exploited and insulted her relentlessly, reinforcing her position of powerlessness in the family. They exerted an extensive control over her, including over her 5 daily schedule, her work, her contact with her natal family, and decisions related to reproduction and child-rearing. As thousands of dispossessed and disenfranchised brides in Kyrgyzstan, Akmatbekova had to put up with her troubles alone. Twice she attempted to commit suicide with pills in order to get rid of her hopeless situation.8

Legal treatment of (marital) rape in practice

Much research indicates that when women do seek assistance in marital rape cases, there is often a failure on behalf of others including police officers, prosecutors, judges, battered women’s shelter advocates, and rape crisis counselors to provide adequate assistance (Bergen 1999). Elena Tkasheva from the Chance Crisis Center in Bishkek, who attended every court session and supported Akmatbekova as a psychologist, explained:

“In my 20 years of working with battered women, I have never seen that marital rape and sexual crime were actively investigated by law enforcement bodies. The courts are always ignorant regarding this matter and they all signal the widespread attitude that the rape of a wife is a sex game. The further well-founded prejudice is that everything is a woman’s fault, when she was raped.” 9

Such entrenched attitudes and the officials’ laxness in prosecuting sexual abuse often contribute to increasing violence and to its misinterpretation as well as manifestation as a tradition. The following sections will deal with each of these groups of service providers against the backdrop of Akmatbekova’s case.

Official’s failure

There is a large body of research that addresses the inadequate, apathetic and even ‘hostile’ response of the police to the problem of wife abuse worldwide (e.g., Russell 1990; Saunders & Size, 1986). Sexual violence within the family and between intimate partners is generally perceived as something normal and a private matter, and not as a problem warranting legal intervention. This widespread attitude is shared often by Kyrgyz police. Although the law on domestic violence prescribes responsibilities and specifies measures for police upon receiving oral or written information about domestic violence (Law on Social-Legal Protection from Domestic Violence, Art. 10-19), police often do not register women’s complaints, issue protection orders, or seriously investigate the case with a view to prosecution. This is exemplified on the case of Akmatbekova, when she, three days after the incident went to the police station of Alamedin District to file a complaint. She was held there and interrogated more than 16 hours until she had a mental breakdown. Police staff who was informed about the working affiliation of Azamat Bekboev, appeared to engage in a cover-up and refused to open a criminal case (Uraliev 2012). Some of the officials openly dissuaded her from filing a complaint, asking her, “Would you really step against him and blame yourself at the end?” After three months of struggle and pursuing her cause in vein, the claimant saw no way to act against her powerful husband. Despairingly, she planned to pour kerosene over her body and ignite it with fire during the opening ceremony of the Manas-Monument at the National Day in the city centre. Committing suicide, self- immolation or self-burning in public places has emerged as the only means at women’s disposal to get out of otherwise unbearable domestic situations and has become a potent symbol of women’s plight and powerlessness throughout Central Asia including Afghanistan (Asylbekova 2012; Ahmed 2012, Hayat 2011). However, sisters of the claimant prevented it just in time and brought her first to the Crises Centre “Chance”. Then she was forwarded to 6 another Crisis Centre “Sezim”, where she got legal and psychological support. Through the active involvement of “Sezim” and some other women's rights activists, the incident became public and the lawsuit was accepted after three months. If there were no active support from journalists and women activists, her case would probably have never been investigated. Moreover, during the trial Akmatbekova turned multiple times to the district police asking for a protection order from her husband and his relatives, who tried to coerce her to withdraw her charge. Although the police did accept her complaint, they failed to undertake any meaningful measures to protect her from further attacks and intimidation.

Dysfunctional and corrupt system

Judicial reform is a critical challenge for most transition countries. The Kyrgyz justice system remains a shambolic array of dysfunctional courts and corrupt law enforcement bodies, where accountability, transparency and efficiency lag behind.10 There is a wide gap between law and practice, between the declarative commitments and real actions. Severe vulnerability of professionals to corruption and abuse of power have been creating an informality that has become an overarching problem compromising the political, economic and social development of the country. In the absence of adequate money or connections it is generally impossible for a complainant to reach a fair verdict (Heyat 2004). That means that the law is often on the side of those, who can afford it. The poor, disadvantaged and women like Akmatbekova without financial resources have limited success or no access to justice. As observed during the whole trial, there was a huge imbalance between the parties regarding their social strata. The family of the accused husband is from Kashka-Suu – a suburb of Bishkek and its superiority was based on power structures of two family members working in the GKNB. The family members showed themselves very confident, callous and arrogant towards the court-audience and demonstratively spoke Russian during the interrogation unlike the Kyrgyz speaking siblings of the complainant who came from a humble background originating from a small village of Issyk-Kul province. Nevertheless, the mere fact, that the culprit is in a high ranking position in a state agency, carried earlier disparity regarding the outcome. The GKNB is one of most respected and dreaded agencies in the country, and the members of it are very aware of their power. Bekboev demonstrated his mighty position through his ostentatious and aggressive behaviour during the whole trial process, referring in his pleas frequently to his officer-position. He was broadly supported by his colleagues and his employer, who described him as “an ideal gentleman and outstanding officer” in a documentary feature dedicated to the “Case of Akmatbekova” and in several TV-News. Further it was asserted that Bekboev, having been temporarily suspended, can “return anytime to his duties, as soon as his innocence is proven”.11 Regarding the wrongdoers with high positions, leading women’s rights advocate Bubusara Ryskulova stated in an interview:

“The most serious criminals and perpetrators of domestic violence are those, who are obliged to execute and to protect the laws: government workers, policemen, officers and prosecutors; because, they perfectly know how to defend themselves and their own interests.”12

As different cases illustrate, it is an extremely difficult and challenging issue to hold a man accountable for his actions, even in a case of murder,13 when he is a police officer or has relatives in law enforcement. “Policemen with contacts can do what they want and as a

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Kyrgyz proverb says 'a raven doesn’t pick the other raven’s eye,’ they always side with each other,” said another activist.14 Since Akmatbekova pressed charges, she has received considerable pressure from authorities, in particular from the GKNB, to drop the case. The one-room apartment in micro-rayon Tunguch in Bishkek, where she moved with her three children after the incident, was given to Akmatbekova’s husband due to his position some years ago. Therefore, it became a main tool of intimidation of Bekboev and his colleagues toward the claimant. When she filed a petition for Bekboev’s detention on remand, the judge responded to it with a farcical decision giving a house arrest to the main accused and detention for his accomplice, who actually never bothered the claimant during the trial. The ordered house arrest was nothing for the GKNB officer but a verbal warning; he kept terrorizing her during the whole first trial.

No evidence / witness – no justice

The lack of forensic evidence and credible witness(es) created major problems in prosecuting this rape case. All potential witnesses were from the husband’s family. They exonerated the accused and unanimously decided to label Akmatbekova as the driver’s lover. This accusation was shared and multiple times confirmed by neighbours and other inhabitants of Kashka-Suu village, which eagerly showed their ‘solidarity’ with the GKNB- officer. The few statements of the counterparty appeared as ‘ill-founded’, ‘insufficient’ and ‘unconvincing’. The so called neutral experts gave their testimony proving the innocence of Bekboev as well. Their statements during the interrogation were far from adequate: the underpants of the main accused (possibly the only piece of evidence) were eaten by mice and/or moths in the police-storage of evidence; the other clothes were tidy and clean without any sign of wear and tear; the small amount of semen found in the car Toyota Windom of Bekbov, where the rape occurred, did not match Bekboev, but his driver. Astonishingly, the car of Bekbov – the main evidence – disappeared during the additional investigation, as asserted by the accused, it broke down and burned. The claimant’s side conjectured about the officials from the forensic laboratory. Allegedly, there were bribed and manipulated: “We think his family paid all of them. Of course we don’t have any evidence. But why else would the experts commit a crime like giving false testimony and a judge would accept them all?”15 Only the gynecologist, who examined Akmatbekova after the incident, testified to some abrasions in her genital areas. As the Kyrgyz hospitals and gynecologists do not stock rape kits to collect evidence, she was not able to bring any convincing proof except her notice. Her attest was anyway degraded by the judge as a speculation, because it was issued by a common gynecologist and not a forensic doctor. Further medical reports did not contain any evidence of struggles or visible injuries, especially injuries to the hymen, suggesting that the survivor should have consented to the sexual act with the driver. An additional attorney sent by female members of Parliament initiated an additional ‘independent’ and ‘complex’ expertise in the middle of the trial, which did not bring any results worth mentioning. Due to the lack of evidence, the onus of proof has been placed on the claimant. Akmatbekova was challenged to describe the incident several times in front of the entire male court-staff and attendants in all details. This resulted in an ordeal for her: she had to relive the terrible experience over and over again: a procedure that ended in a nervous break-down and hospitalization for her. The psychological pressure from the defense and judge as well as from the audience was enormous. The defense always asked her provocative questions like “How were your legs situated during sex?” “But you have written 8 in your lawsuit some months ago that your husband penetrated you in a different position,” “Why didn’t you try to bite Arzybek Tuuganbaev (second accused) when he put his penis into your mouth?”16 etc. The judge subtly supported the systematic and harsh interrogation of Akmatbekova by the defense declining the attorney’s objection with phrases like “We have to find the truth!”17 Moreover, he used minor discrepancies to discredit her, clearly demonstrating his bias. While the two accused men kept their smirking through the whole questioning process, their family members verbally attacked the claimant from behind, calling her a ‘fallen woman’ and ‘prostitute’. More and more people joined such attacks which turned several times into violence during the breaks in the trial. The claimant’s intention to have transparency and public control through the open trial created a very negative effect on herself and became more and more unbearable. Finally, she decided to opt for a closed trial. At the advanced stage of hearing it became obvious that there would be no fair verdict. Upon recommendation of her two attorneys and the psychologists the claimant rejected the judge Zhakypbek Bektemirov. His colleague Apyshev Almazbek led the process acting more or less in a neutral and fair manner. He started some additional investigations and a more serious interrogation of the accused. Bekboev, who denied all the charges with a short statement “I am innocent”, changed his tactic insisting his wife was the driver’s lover cheating on him for a long time: “At that night of 18th June 2011, I fall asleep in the front seat after we three had drunk some alcohol in the car. Having woken up, I saw my wife having sex with my driver in the back seat. Blind in rage I had beaten them both. For a long time I had the suspicion of her betrayal that came out that night.”18 Tuuganbaev confirmed his friend’s testimony, but was not able to give any credible information about his relationship with the claimant, e.g., he didn’t know her phone number, her special body characteristics, where they met for sex or whether he gave any gift to her, etc.19 Such kind of hearing encouraged the claimant’s side and gave a little bit of hope for fairness. In the long lasting final debate the defense argued that the whole process was like a ‘Shakespeare’s drama,’ where a dissatisfied and vengeful wife had been charging her innocent husband with the offense of marital rape. “Akmatbekova just wanted to conceal her shameless sexual act with Tuuganbaev. Additionally, she aimed to harm Bekboev and cause prejudice to that person’s position.”20 The prosecutor and two attorneys of Akmatbekova did their best to prove her case and pleaded for the main accused Bekboev eleven years’ imprisonment and for his friend ten years. Finally, the military court agreed with the statement of the accused that Akmatbekova was the driver’s lover and acquitted both accused. In the seven pages long verdict Akmatbekova was often cited, in order to highlight her “instable and conflicting statements,” which were confirmed by numerous witnesses and medical reports as well as independent expertise in the course of the trial. In contrast to the claimant “the two accused gave constant and unanimous testimonies, which gained the credibility of the judge and won the case”.21

Justice delayed – justice denied

After the first daunting verdict the claimant took the case to the second instance of the Military Court. Some additional investigations have been made since, such as a review of the whole expertise, the evidence material and a ‘profound’ psychological test. As did other witnesses and experts before, the independent group of psychotherapist and psychologist gave pro-accused statements, assuming mental instability, confusion and hypochondria of 9 the claimant. In her perspective it was a very rigorous and complex interrogation in Russian language, in which she was unable to understand and express her thoughts.22 The psychological testimony, nevertheless, was strongly objected by the claimant shortly before the judgment, and its repetition by other professionals was approved. The organizational concept of the trial within these two years has been characterized by delays and drawn-out procedures: there has been lack of information about the whole development of the procedure, multiple times the venue was cancelled or postponed because of absence of a Kyrgyz-Russian translator or an important expert or witness; sometimes the claimant did not receive any notice about the upcoming appointment, etc. All these inconsistencies and insufficiencies gave the impression that such delays occurred deliberately and intentionally in order to make the process time-barred or to physically and emotionally exhaust the claimant. The excessive delay of this trial for more than two years involved disproportionate cost and effort of all participants, especially of the claimant, who lives from hand to mouth. Her countless public requests and petitions to the most important politicians, i.e., President, Prime Minister, numerous MPs and judges, and the General Prosecutor, asking for promptness, fairness and acceleration of the trial brought no positive results. The protest actions of different human rights activists and Bishkek Feminist Groups in front of the Bishkek garrison and the White House could not change the extraordinary shoddy investigation and ill-founded court decision. They couldn’t do more than to express their grief and disappointment with the ‘solidarity’ of the officials with the national security officer and the corrupt justice system. In line with the old adage that justice delayed is justice denied, there seems nothing remains to be done for the positive turn of the process.

Consequences for speaking out

It is in the public domain that cultural norms and the social stigma are often attached to rape. The woman in Kyrgyzstan, who decides to go through the case against her husband, should be aware of devastating consequences like fear, shame and poverty. The past experiences with police failure to protect the claimant left her fearful and afraid about the threats on her life. Bekboev threatened in a rage multiple times to kill her and to put everybody in her family in a prison referring to his connections and power. Now, she is living in a state of constant fear that sooner or later her ex-husband would take vengeance and retaliate against her and her siblings. “Sometimes I regret that I pressed charges at the urging of my sisters, I often think of withdrawing it and stopping this nightmare, because I just want to live in peace and without fear of being hurt.” Similarly, many women face a choice between pursuing legal action or being allowed by their former abuser to move on with life in peace. Many researchers have written about the discomfort that women feel when they discuss the sexual violence experienced with their partners (Bergen, 1996; Russell, 1990). In Kyrgyzstan, most women are ashamed to speak about sexual matters not to mention sexual crimes. Some women find the prospect of suing their husbands or sexual assailants daunting and too emotionally painful. They don’t want to be re-traumatized by confronting their abusers in court. In the experience of Elena Tkacheva “not every woman is able to stand such a public humiliation and shame; six of seven survivors do not come forward to report the offense or feel pressured to give up their fight for justice midway. Only one of seven dares to go through this plight.”23 The fear of being stigmatized by their community for turning to law enforcement authorities is another barrier for women. As the victims of different types of violence confessed to Human Rights Watch, they consider it shameful to 10 complain about their own families and undermine their husbands.24 Akmatbekova was no exception; she faced the risk of double stigma – as a “fallen woman” who had cheated on her husband with the driver and thereafter washed her dirty laundries in public, and as “home-wrecker”, who destroyed her own family separating the children from the father, grandparents and their familiar surroundings. She is a traitor in the eyes of her neighbours and her ex-family-in-law, because the spousal relationship is highly private in Central Asian’s insular culture. Spousal disputes should have been kept and dealt within the confines of the family and to a certain extent non family-trusted individuals. In different talks with other people who read or heard about this case I often realized that the great majority, irrespective of their sex, was not on the side of the victim, rather of the culprit. There was a pervasive idea that a husband cannot rape his wife. The victim was blamed and accused of not thinking about her moral obligation as a mother and wife, and this is what is compromising the women’s social status in the country. The final systematic barrier to reporting sexual violence is the financial and material dependency in marriages and families. Kyrgyz marriage and family structure are closely related to the patriarchal, patrilineal and patrilocal way of life. Many families consist of at least three generations living in one house or in a small community based on male blood kinship. The wives and brides always move into the men’s family compound and are outsider in the house, community, and village, and even in this area. The family is organized on a strict hierarchical system. The male head of the household is considered to be the owner of all the family property. His partner has supreme authority in all matters relating to household management and domestic tasks. According to Kyrgyz tradition, parents and elders command great respect. The brides surrounded by the husband’s power base are subordinate almost to everyone adopting a position of obedience, submissiveness and patience. This turns many young women into the property of men and families who own them and could use and abuse them. Conversely, leaving a violent relationship means for many women displacement from their homes and communities, and facing poverty. Akmatbekova is about to stay homeless with her three children. Her ex-husband allegedly claimed the restitution of the apartment, where she is residing at present. According to the demands and letters from GKNB in the last five-six months, she will be facing another trial regarding her eviction from the flat by the end of 2013.25 Further, the claimant lost her third child to her family-in-law and she has been denied the right to see him since she left. There were no legal measures undertaken to regulate this issue as well. She neither expects any support from her husband, nor can she assert any right to property, alimony and custody of children. Without her siblings Akmatbekova would not even be able to keep her attorney for so long and there are simply no resources for another battle with her ex-husband. All these challenges and pitfalls make it seem like it’s an impossible mission and not worth the effort for a battered woman in Kyrgyzstan to file lawsuits and to undertake legal proceedings.

Conclusion

Having properly looked at this special case I realized many risks of being a woman in Kyrgyzstan, where the state and justice are intangible, where the progressive and promising laws are irrelevant in mundane life, and where the traditional structures and attitudes mutually endorse the female vulnerability. Through this case study it can be concluded that sexual violence receives far less attention in Kyrgyz society at the present time than it should. The country’s major problem – the lack of rule of law, a ubiquitous system of bribing 11 officials, the facts that laws are not followed by practices and function mostly to the disadvantages of the poor and/or female victim are main conditions why the sexual abuse remains shrouded in silence. A far more common response I found in researching some of the challenges Kyrgyz women and face in seeking justice after sexual assault is a combination of indifference of police to women’s plight, delays, inaction, ineffective investigations, widespread impunity for crimes on women and degradation by the very officials who should be helping these victims. Different opinions and my personal observations corroborated the widespread attitudes by pursuing a charge, prevalent consequences of speaking out and difficulties from emotional, psychological and ethical points of view. Some of these major problems can be tackled in legal, traditional and socioeconomic structures of society. On a formal basis, it is necessary to improve the legislation to explicitly criminalize marital rape. “Sexual domestic violence” defined as “an act by one family member that infringes sexual inviolability of another family member … ” in Kyrgyzstan’s 2003 Law on Social-Legal Protection from Domestic Violence should be integrated into Art. 129 of the Criminal Code. Also the definition of domestic violence in the Criminal and Administrative Codes is to be refined and expanded. The recognition of rape in marriage may be important as a symbolic recognition of women’s equality and right to bodily integrity. It would alter to some extent the socialized reasoning processes by which lawyers and laypeople alike determine what constitutes criminal sexual coercion within a marriage. Further, defining the different types of marital rape (e.g. violent, sadistic and obsessive rape, or through exposure of the victim to others by one's own spouse) as a heavy criminal offense warranting a harsh sentence would have a deterrent effect on prospective rapist husbands. When it comes to even thorny challenges like the legislation on bride kidnapping, the Kyrgyz government has shown that political will can address some of the problems. Certainly, the additional law cannot alter the practice, if it is not connected with concrete measures. Real solutions for successful investigation of cases and punishment in a timely, effective, and appropriate manner in the face of the lack of rule of law require a long-term view. However, on the basis of existing programmes and initiatives some actions could be taken such as introduction of a monetary compensation-programme to victims of rape; around-the-clock services for victims; a uniform protocol for medical treatment, examination, collection and documenting of medical evidence in sexual-assault cases should be backed by training for police officers and doctors to ensure its use.26 These could be coupled with mechanisms for monitoring the use of such protocols and accountability where they are being flouted. Further, special measures are to be taken to save the pieces of evidence and to keep them from any manipulation. Two major sources of potential support for victims of marital rape are battered women’s shelters and rape crisis centers. There are just few of them in Kyrgyzstan with disproportionately very limited places. As mentioned above, society in Kyrgyzstan is highly patriarchal, with women’s roles in public and private life circumscribed. Female vulnerability is often created at the native home, where Kyrgyz daughters are traditionally educated to become brides, and caregivers according to different proverbs like “the daughters are guests in the parent’s places” or “the family is raising a child for someone else.”27 They are taught submissiveness and tolerance unlike their brothers – who are regarded as real continuers of the family- lineage. Most women like Akmatbekova who was exposed to many years of tyranny, were never taught by their parents to be aware of their rights, and subsequently this has negative consequences for the exercise of their rights. Equal and proper education at home would contribute to reduce misogynous ideologies and the widespread attitudes towards sexual 12 violence, sexual rights and prosecuting sexual crimes. Especially education, be it at home or at school, could change to a certain extent the structural inequalities, especially the domestic productive roles of women in kin-based households and the “ownership” views. Parental support for girls to create their own viable economic base might lead to preventing numerous problems in their further life. It is well-tried and well-proven that female financial independence can cause changes in women’s favour. The alteration of the family structure to matrilocality and a shift of power would go a long way to alter the conditions that generate violence and rape. Nationwide public campaigns and trainings against sexual violence also play a decisive role in changing a society that teaches the youth “don’t get raped” rather than “don’t rape!” If public awareness of sexual violence as a crime will rise, more women would break free of societal shackles and avail themselves of their rights. This could lead to prosecute sexual crime in a broader spectrum of society in the future. With politicians and the public at last giving sexual assault the attention it deserves, the time is to come for action—and for dignified treatment of the victims of sexual assault.

Acknowledgements

I would like to thank Prof. Thomas Kruessmann, Prof. Russell Kleinbach, Dr. Jeanine Elif Dagyeli, Dr. Beate Eschment and Dr. Philipp Schroeder for their comments on this article.

Notes

1 Accusation read out by the prosecutor in the 1st session of the trial, Bishkek Military Court, on 18 October 2011, Lawsuit to the Alamedin Police District, no. Nr. 1587. Most of the data for this paper was compiled from October 2011 to August 2013 while attending court sessions and meetings. 2 Russell, Diana E. H. 1990. Rape in marriage. Expanded and rev. ed., with a new introd. Bloomington: Indiana University Press. 3 32 countries of 104 have made marital rape a specific criminal offence, while the remaining 74 [sic] do not exempt marital rape from general rape provisions. Four States criminalize marital rape only when the spouses are judicially separated (Study of the Secretary-General 2006). 4 Kyrgyzstan has ratified over 50 international human rights instruments; instruments which are an integral part of Kyrgyz law as per the Constitution (arts. 12, para. 3, 17, para. 1 and 18). See http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en, last visited on 17 December 2012 5 National Statistical Committee of the Kyrgyz Republic. 2007. Women and Men in the Kyrgyz Republic. p. 130 6 Ministry for Social Development of the Kyrgyz Republic. August 2013. Gender Politics. 7Human Rights Watch. 2006. “Reconciled to Violence: State Failure to Stop Domestic Abuse and Abduction of Women in Kyrgyzstan.” Volume 18, No.9 (D). Kyrgyzstan. 8Akmatbekova, Nazgul 2012. Interview by M. Sadyrbek. 13 November. Bishkek. In particular, see Isakunova 2012 and Trilling 2012 9 Tkacheva, E. 2012. Interview by M. Sadyrbek. May 25. Bishkek, during the protest in front of the White House on 25.05.2012, the meeting was initiated by the family and friends of Akmatbekova, Bishkek Feminist Collective SQ and crises center activists one day after the verdict. 10 Kyrgyzstan with 154 scores is among two-third of the 176 countries, which are perceived to be highly corrupt. Transparency International: Transparency International. “Corruption Perseptions Index 2012: Kyrgyzstan.” Accessed July 02, 2013. http://www.transparency.org/cpi2012/results. 11 Kyrgyz National TV on 12 March 2012 and 03 May 2012 Ryskulova, B. 2011. Interview by M. Sadyrbek. September 12. Bishkek. 13 Human Rights Watch. 2006. “Reconciled to Violence: State Failure to Stop Domestic Abuse and Abduction of Women in Kyrgyzstan.” Volume 18, No.9 (D), p. 57-59 Kyrgyzstan.

13

14 (Kyrgyz: Karga karganyn köchün chokubajt) Isakunova, T. 2012. Interview by M. Sadyrbek. May 24. Bishkek, Military Court. 15 Akmatbekova, Nazgul & Mirgul after the court session 05 November 2011, Bishkek 16 Questions from the defense Zhumagulov, Zamir during the court-session on 18 December 2011 17 Zhakypbek Bektemirov during the court session on 20 December 2011, Bishkek Military Court 18 Bekboev, Azamat during his interrogation on the court-session from 12 March 2012; Exemplarily Women Rights. 2012. “The military court acquitted the major of National Security Committee, who was suspected of raping and beating his wife: Today, May 24, at the Military Court of the Kyrgyz Republic holds meeting on a rape and beating of Akmatbek kyzy Nazgul by her husband and his friend.” News release. May 24. Accessed July 06, 2013. http://www.inkg.info. 19 Tuuganbaev, Arzybek during his interrogation on the court-session from 12 March 2012 20 Zhumagulov, Zamir in his statement during the court session on 23 May 2012 21 Court-Desicion (Prigovor imenem Kyrgyzskoj respubliki). Voennyj sud Bishkekskogo garnizona (Military Court of Kyrgyz Republik), May 24. 22 Akmatbekova, Nazgul in phone conversation on 28 February 2013 23 Tkacheva, E. 2012. Interview by M. Sadyrbek. May 25. Bishkek. 24 Human Rights Watch. 2006. “Reconciled to Violence: State Failure to Stop Domestic Abuse and Abduction of Women in Kyrgyzstan.” Volume 18, No.9 (D). p. 43 Kyrgyzstan. 25 Akmatbekova, Nazgul in phone conversation on 21 May 2013 and 03 July 2013 26 It is partly given in legal clinic Adilet which was initiated within the program Equal Before the Law (EBL of Eurasia Foundation and the Ministry for Foreign Affairs of Finland under the social sustainability priority of Finland’s Wider Europe Initiative. For more visit: http://equalbeforethelaw.org 26 Kyrgyz: Kyz ata-enesinin üjündö konok. Kyz kishi bashkanyn bülösü.

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