Types of criminalisation
- Criminalises sex between men
- Criminalises sex between women
- Death penalty
1. Penal Code 2017, Section 645 Musahaqah
A person who commits “Mosahege”4 with another person, each of the former shall be sentenced to small imprisonment, not exceeding one year. (ILGA 2019 translation)
2. Penal Code 2017, Section 646 Sodomy
“(1) A person who commits sodomy with another female or male, shall be punished in accordance with the provisions of this chapter.
(2) For the purpose of this section, sodomy happens by the penetration of a male sexual organ into a female or a male anus, not considering the depth of the penetration.”
Section 647, Penalty for Sodomy
“Those who commit sodomy shall be sentenced to medium imprisonment not exceeding two years.”
Section 648, Aggravation of Sodomy
“In on of the following cases commitment of the acts, specified above, is considered to be aggravating conditions and shall be sentenced to medium imprisonment, exceeding two years.
(1) In the case where the person against whom the crime has been
committed is one of the temporary or permanent “Maharem” (with
whom marriage is prohibited according to rules of Islam) of the offender.
(2) In the case where the offender is a tutor, teacher, or servant of the
person against whom the crime has been committed or the latter has,
one way or another, has authority or influence over the former.
(3) In the case where the person against whom the crime has been
committed is affected by the genital disease because of the offenders
disclaim of having sexually transmitted diseases.”
(ILGA 2019 translation)
3. Penal Code 2017, Section 649 Tafkhiz
“When the male offender commits “Tafkhiz” with another man, the former shall be sentenced to small imprisonment (three months to a year).” (ILGA 2019 translation)
4. Penal Code 2017, Section 650 Ghavadi
“(1) “Ghavadi” is to incite two or more people to commit adultery or “sodomy” by introducing them to each other or finding them a place to do so. In recognition of the crime “Ghavadi”, repetition is not important.
(2) Those who are convicted of “Ghavadi” shall be punished in accordance with the provisions of this chapter” (ILGA 2019 translation)
5. Constitution of Afghanistan 2004, Art. 130
“In cases under consideration, the courts shall apply provisions of this Constitution as well as other laws. If there is no provision in the Constitution or other laws about a case, the courts shall, in pursuance of Hanafi jurisprudence, and, within the limits set by this Constitution, rule
in a way that attains justice in the best manner.” Full text.