15 November 2011

The Laws on the Books and the Laws on the Ground

Bride kidnapping in Kyrgyzstan is against the law and has been for a long time.  In fact you have over 80 years of its technically being illegal.  So why did it increase during the Soviet Union, a time when there was certainly the will and ability to stop it?  Why is it still so prevalent today?  That's because the laws on the books are not the only laws, or the most important laws, people follow. 

There is a different law in place that is much more strongly enforced in Kyrgyzstan:  If a girl spends the night at a man's house, whether she has sex or not, consensually or not, she must marry him.  This is more than some nebulous thing called customary law, or a tradition, or a custom, and its impact is significantly more strongly felt than many laws on the books.  It is enforced as strongly as any codified law might be.



We heard an interesting story today about a Soviet leader's daughter who was kidnapped.  I'm not going to identify him because although he has died, his daughter has not.  Suffice to say that he was not a minor leader in Kirghizia.  Obviously Soviet law didn't allow kidnapping, but the daughter would also be breaking the law by not marrying her kidnapper.  Her mother knew that, so she didn't tell her husband (the Soviet leader) about the kidnapping* because she knew the consequences of breaking the second law.



Those consequences (there are several, but the most important is the perception that the girl will never get married if she doesn't marry her kidnapper) are usually considered worse than the consequences of staying with the abductor.  If that law doesn't change, it doesn't really matter how many laws the politicians pass or the foreign legal community clamors for, because that law is the one people will follow. 


There can be consequences to breaking the first law, but probably not jail time.  In my opinion, the value the first type of law has is in giving leverage to the girl's family.  Threatening to go to court often is an extremely effective bargaining tool here and making the laws on the book deal with the entire crime** is useful in making the threat more potent. 


The laws regarding bride kidnapping here conflict and are not simply about the laws written in the criminal code.  There are many things that should help reduce kidnapping here but relying on a legal solution than only looks at successful criminal prosecutions ignores other laws and also ignores ways the laws on the books might be used as leverage by the girl's family even if a case never gets to court.


A few more thoughts- It is so interesting to me that there is such strong pressure to not go to court here for any reason, especially since the defendant is almost certain to get convicted if he/she is taken to court.  If you take someone to court, you'll win.  But you still don't go.  It's also naive in my opinion to rely on the state law because no one is going to take their husband to court just for a kidnapping. It appears that if the girl's family does use the state law as leverage she can go if they agree to not take the boy's family to court.  Unfortunately it's very unlikely that a state prosecutor would pursue a trial on his or her own without the involvement of the family.


*While that might seem odd to many Americans, keeping information like this from a spouse is more normal here  


**Currently it appears that only the abductor(s) can be charged with non-consensual bride kidnapping, but there are many other players, from the boy's mother who forces the girl to put on the white scarf to the people who pressure the girl to "consent" to the marriage.  If there were more legal consequences for the actions of more people involved it may well give the girl more leverage.


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