Crime, Rape

Criminally Yours: When Rape Is Tolerated

When is a crime so serious that in spite of political expediency and local customs, it's time to upbraid your allies and force some change?

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Crime and punishment are relative, or should I say, the culture one lives in dictates what is labeled a crime and thus whether it should be punished at all.

For example, at one time in Italy you could kill your wife without punishment if she was caught in the act of cheating on you. In India, there was a spate of mothers-in-law setting their daughters-in-law on fire because they wouldn’t pay additional dowry. Often authorities looked the other way. Stoning is a fine punishment in some countries just for disobeying your parents. And need I mention that even in the U.S., the innocent are sometimes executed after wrongful convictions.

In Afghanistan, it appears it is quite okay to rape young boys and keep them as sex toys. Not only is this custom widespread, but it actually confers social status.

No wonder American military personnel serving there are confused. We’re supposed to be making this country safe for these guys? Turn the other cheek? Report the crime to supervisors and hope it goes up the chain of command fast enough to stop the screaming of the eight-year-old next door who’s chained to the Afghan commander’s bed?

What crime is committed, if any, by just ignoring it? I played with the idea of the crime of Misprision of a Felony, 18 USCA Sec. 4, defined as:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

A literal reading of the law, without taking into consideration the extraterritoriality issues, appears to compel some kind of action — at least that the American soldiers report it to their own commanders. But what then is the commander’s responsibility?

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According to a recent series of articles in the New York Times, soldiers, sick of seeing and hearing children being raped, took action on their own and assaulted an Afghan commander they believed to be among those raping young boys. They were reprimanded. One ultimately left military service and the other is being encouraged to leave.

I’m the first to grant anyone the presumption of innocence but according to the Times, this practice of raping young boys is so common it has its own name — “bacha bazi,” literally “boy play” — and dates back to the time of Alexander the Great. I guess old habits are hard to break.

I understand that international relations in the region are precarious and that the enemies of our enemies are our friends, but c’mon, even the Taliban outlawed this practice, and we’re instructing American soldiers to look the other way, then punishing them when they don’t?

In our country, a person arrested for this type of offense would be branded a sexual predator, would face a life sentence, and would have to register with the local precinct as a sexual deviant for the rest of his life (among other life-long restrictions on where he could live, the jobs he could have, etc.).

So when is a crime so serious that in spite of political expediency and local customs, it’s time to upbraid your allies and force some change?

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Perhaps when the criminality perpetrated is so extraordinary as to amount to a crime against humanity. Raping young boys in the systematic, culturally accepted way it’s done in Afghanistan is such a crime. And stationing American soldiers right next to such crime, then restricting their ability to intervene, is a crime, too. A crime to their morale and their humanity.

The U.S. government should demand that corrective measures be taken. While we cannot punish on a foreign soil, at least we can let our servicemen know the issue is being addressed at the highest levels and not just being ignored.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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