“There is no state in this country” Legal and social treatment of marital rape in Kyrgyzstan 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 violence against women 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 woman, 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 domestic violence 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: Central Asia; 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] 1 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.