Women, Law and Sexuality in Iran

Women, Law and Sexuality in Iran

Iran is a Muslim country with Shia majority. It has over 70 million populations with high percentage of young generation. According to statistical center of Iran, It is estimated over 73 percent of people are aged from 15 to 65 years old. Iran became an Islamic republic after revolution in 1979.Until then the country was served by Pahlavi’s dynasty for almost 50 years since 1925.Imam Khomeini was the leader of Islamic revolution known as supreme leader who approved the theocratic constitution. In 1980 Saddam Hossein invaded Iran. War of Iran -Iraq started and lasted for 8 years of hostility. After the death of Khomeini, assembly of experts appointed Ayatollah Khamenei as his successor in 1989. According to the constitution of Iran, president is the highest position of the executive power. During Khamenie’s leadership presidents of Iran were elected by people; Ayatollah Hashemi Rafsanjani (1989-1997), Seyed Mohamad Khatami(1997-2005), and Mahmood Ahmadinejad (2005-2013). Mahmood Ahmadinejad is a conservative populist whose fraud in election 2009 made Iranians upraise against him for imposing himself to people. During his presidency, Iranians faced a lot of repression and injustice.  He established a highly fundamentalist cabinet; gender segregation policy, and creation of moral police was on the top of his controversial approach to Islamic fundamentalism. 

During early 20th century Iran faced two period of revolution. First was the constitutional revolution in 1906 and the second was the Islamic revolution which took place in 1979. Before the Islamic revolution Iran’s criminal justice system was much influenced by French code of criminal justice of 1808.

Throughout the process of writing constitution 1906-7, As a result of dominant influence of clergies and religious scholars during the constitutional revolution, a body of five high ranking Islamic jurists was established to determine whether legislation was in accordance with Sharia or not. (Article 2 of the constitution 1906).

Iran’s judicial system has gone through four periods of transformation (Majid Mohamadi,“ judicial reform and reorganization in 20th century Iran“,2007,p.230). First period was based on the transition from patrimonial state law to  a dualistic legal system. Establishment of state law and courts in the form of modernization beside Sharia law and courts occurred after constitutional revolution. Judges had independent power and as a result functions and jurisdiction of Sharia was severe. Sharia courts were presented as customary (Urfi) courts. These courts never last power until judicial reform of Davar during Pahlavi dynasty. Second transformation in judicial system was the administration and assimilation of adjudication overcoming duality of traditional legal system. Consequently, 1940 penal code omitted any reference to Sharia and religious courts. Moreover, European laws were added to the sources of law. In the third and fourth period of transformation the judicial system tried to get rid of European sources and made it pure Islamic. First decade of Islamic revolution was characterized as transformation of Shi’a jurist law in to the law of state. Accordingly, Sharia became substantial source of legal system. During Islamic revolutionary period radical changed happened to legal system and personal authority of jurist (Faqih) became the source of law.

1911: Dual structure of courts: secular and religious (state courts and courts of Mujtaheds) was established with constitution of 1906.

1927: Unity of judge in the court, administration of the judiciary by personnel who received European education. Sharia courts were considered as special courts approved by the parliament 1931,No cases may be referred to Sharia court without authorization from state courts. Penal code of 1940 did not left room for Sharia law at all.

1979: conformity of laws with Sharia and enforcement of Islamic law in public and private sphere

1994: No hierarchy in the judicial organization other than the head of judiciary officials and generalization of the court sys.

Ali Akbar Davar was appointed as minister of judicial affairs in the cabinet of Mostowfi in 1926, he dissolved Iran’s entire judiciary with approval of the parliament. He reformed the judicial system with the aid of French judicial experts.

Immediately after the Islamic revolution, the new Islamic government passed new constitution of 1979 in which contained Islamization as an alleged reason for changing criminal laws.

Article 4 of Iran’s constitution of 1979 reads: „All civil, penal, financial, economic, administrative, cultural, military, political laws and other laws or regulations must be based on Islamic criteria.  This principle applies absolutely and generally to all articles of the Constitution as well as to all other laws and regulations and the fuqah¯a (Islamic jurists) of the Council of Guardian are judges in this matter“.

Article 159 of the Constitution of 1979 provides: „the rule of law in administration of justice as the courts of justice are the official bodies to which all grievances and complaints are to be referred. The formation of courts and their jurisdiction is to be determined by law“’, there is Article 61, which stipulates:“the function of the judiciary are to be performed by courts of justice, which are to be formed in accordance with the criteria of Islam, and are vested with the authority to examine and settle lawsuits, protect the rights of the public, dispense and enact justice, and implement the Divine limits“  or Article 167 providing: „The judge is bound to endeavor to judge each case on the basis of the codified law. In case of the absence of such a law, he has to deliver his judgment on the basis of authentic Islamic sources or authoritative fatw¯as“.

Iranian penal code in 1925 based on French system of criminal justice which was amended several times, was for the last time amended in 1972 before the revolution of 1979. Penal code of 1925 is translation of Napoleon code of 1810.

Three years after the Islamic revolution in 1982 Iran’s penal code turned into Islamic included 41 articles which were enacted for 5 years of experimental. This law was very different from the criminal law of 1972. Article 31 of Iran’s 1982 penal code provided that everything should be according to Sharia and not contrary to Islamic principles. 10 years later in 1991, new penal code including 497 articles was proposed to the parliament which was enacted for 5 provisional years. After the expiration of provisional period in 1996, the period was extended for another 10 years. Since 2007 Iranian parliament has been working on enactment of the new penal code proposed by the judiciary.

It is evident that the first Islamic criminal law after the revolution was born with traditional Islamic legal structure which denied all the schools of criminal laws and encountered the customary laws. Despite that Figh and Islamic jurisprudence was not in every respect respondent to the needs and crimes of the society.(Reza Noorbaha, „in the view of Islamic penal code“,1996,p.247)

 

The criminal code of 1972 classified crimes according to seriousness: crime, violation and misdemeanor. While, Islamic classifications of crimes and punishments which  was introduced by penal code of Iran in 1982 consisted of Hod¯ud (determined offences with quantified, mandatory and fixed punishments based on divine sources), Qes¯as (crimes of just retaliation for intentional homicide and battery), Diy¯at (crimes of compensation for unintentional homicide and battery and as alternative for retaliation).  Provisional law of T’azir¯at (crimes of discretionary punishment) was enacted a year later in 1983 and became permanent law of country in 1996.

 

Since 1982 Iran’s penal code has been extended as provisional law which is contrary to Article 85 of constitution that allows the parliament to pass provisional enactments only if necessary and exceptional. It has been seventeen years since the Iran’s provisional penal code has been applied. The reason for provisional code was said to be the situation after the revolution that required time to experience application of law until becomes permanent.(Hajiali Mogui, „Zina and Qisas in Islamic criminal law“,2002,p.82)

 

Pre-revolutionary court system was consequently changed by the council of revolution. DADSARA entered to criminal justice system of Iran after constitutional revolution. Customary courts known as prosecutor’s office regarded as the most important body of justice at that time. In 1979 council of revolution created revolutionary courts and general courts. Revolutionary courts are designed for trail of crimes against national and international security, insulting of revolution’s leader and supreme leader, conspiracy against Islamic republic of Iran, any act of terrorism against the system, spying and smuggling any kind of opium. General criminal courts are liable for trail of any crimes except those which fall under revolutionary court jurisdiction. Public prosecutor’s office (Dadsara)is a body of judicial system in which criminal cases take place preliminary. The plaintiff files a complaint and the prosecutor’s assistant is responsible to refer the case to police investigator to conduct further interrogation. After the investigation is completed, the prosecutor issues the indictment to be sent to criminal court. Public persecutor’s office was removed from Iran’s criminal justice system in 1994 in order to give the judges full independence of investigation, prosecution and judgments of criminal cases. This was not lasted long and 9 years later revival of public prosecutor’s office (Dadsara)became necessary to the criminal justice system.

Islamic criminal law imposes regulations and criminal responsibilities which are appointed for sinners by divine legislator.  There are types of retribution and criminal responsibilities in Islamic law books which are mainly: Hodud (plural form of Had) literally means impediment. Had is a divine punishment set by the sacred law –Qisas literally means retaliation and in Islamic law is a body revenge from the criminal who has committed the crime intentionally –Diyat (plural form of Diya), it means blood money and in Islamic law is the financial compensation for unintentional crimes and Ta’zirat (plural of Ta’zir) which means disciplinary action set as an Islamic punishment for crimes which are not subjected to Had. (Abolghasem Gorji, Hodud,Qisas,Diyat,1381,Tehran university press,p.7)

Five kinds of punishments are set for adultery in Islamic law; lashing, hanging, head shaving,exile and stoning. The aims of such punishments are cleansing the criminals from sin. Such punishments are not comprehensive for countries with customary legal systems. Islamic criminal policy for sexual offences is a set of measures and mechanisms for repercussion and also to eradicate immorality in the society.(Hajali Mogui, „Zina and Qisas in Islamic criminal law“,2002.p.29).

Ahmad Hasri (Ahmad Hasri „Alsiyasat Aljenaiya“, Vol.1,p.138) an Arab criminologist scholar explains the reason for adoption of such Had punishments is to consider the expedient and interest of the society not the criminal. Sharia does not allow changing of the Hodud laws, because these kind of crimes lead to immorality, instability and breakup of the family union. Reinforcement of such laws are not applied to the criminals because of the crime itself. (ibid,p.75). Grounds for Hodud punishments are said to be the violation of God’s rules, and also highly awkwardness and decadence of the sin which leads human to grave punishments. Moreover, it is believed the subject of Had is the sin committed by human against God. (ibid,p.81).

Islamic criminal justice system has responded to the crime of adultery with stoning and murder, the base of justice system is the criminal who is dangerous for the society, and as a result of the awful act of adultery  there is no way except exclusion of criminal from social system. Efficiency of adultery sentence is the lesson to be learned by others. (ibid.p.81).

Current criminal justice system in Iran is based on investigation and judgment, DADSARAs and criminal courts work together. Investigator and prosecutor work in DADSARA, Judges work in the courts.

Adultery

As it was mentioned earlier, Iran adopted Hodud punishments after the revolution due to Islamization process in 1979. The return to Sharia, Islamist forces used Sharia as a legitimate tool to bring their vision of moral and just society to prevent criminality, corruption and immorality (Ziba Mirhosseini, criminalizing sexuality; Zina laws as violence against women in Muslim contexts,2009,http://www.stop-killing.org), and this could be best done through criminal laws.

Criminal law of 1972 did not criminalize extra marital sexual relationship between unmarried man and woman. Until Islamic revolution mixing sexes was not seen as the main cause of social disorder and crimes. In Iran’s pre-revolution legal system, premarital consensual sexual relations were not criminalized, however, illicit sexual relations between married man and woman was criminalized. This was said to protect family union. Article 207 of criminal law of 1925 meted out hanging punishment for married person who commits adultery. It was repealed by law of 1933 and according to article 212 of penal code, new punishment of imprisonment from 6 months to 3 years was set for married woman and man having sexual relationship with others, married or not married. (Article 212).

Before moving on to the texts of penal code it is necessary to explain what Zina known as adultery means in Iran’s criminal law. Zina literally means illicit sexual relation between man and woman outside marriage contract. Adultery is considered a crime against public decency. Zina is criminalized under Hodud book in Iran’s penal code, different punishments are set  for each type of Zina.  Therefore any person can file a complaint against the accused. There are 4 types of Zina mentioned in the law books. 1- Zina: can be translated to fornication when unmarried persons have sexual relation punishable to 100 lashes 2- Zina Mohsene: translated to adultery when the parties are married and have extra marital relations punishable to stoning. Zina Maharem: occurs when relatives have sexual relations with eachother punishable to execution. Zina be Unf: can be translated to rape and happens when a man forces a woman to have sexual intercourse with him punishable to execution.

Iran’s Penal code of 1925: Section five, article 207: perpetrator of men’s sexual relation (Liwat), adultery, incest and rape will be sentenced to death if the crime is proven according to Sharia regulations. This law was revoked by amendments of 1931 and punishments changed to imprisonment from six months to 3years for married person.

Iran’s Penal code of 1972: Section five: crimes and violations against public moral and decency and family duties, article 207: anybody violates honor of any women through threatening and violence is liable to prison with hard work from 3 to 10 years. Any of the following acts is liable for aggravated punishment: 1-perpetorator is a teacher, servant or somebody who has authority over victim.2-the victim is below age of 18.3-the victim is married.4- the victim is virgin.5-disabled victim who can not resist.6- perpetrator is married,7- whenever a man’s sexual intercourse with another man is with threat and assault, and If the perpetrator is relative to the victim or is the guardian or officer from government to look after the victim, the punishment is life imprisonment with hard work.

 

Iran’s Penal code of 1982: Forms of Had punishments for adultery in article99: „punishment of Hadd is murder for incest, adultery with the wife of father, non Muslim man with Muslim woman, and adultery with assault. There is no difference between old, young, married and non-married person“.Article100: „Punishment of Hadd is stoning for the case of adultery if the man is married in the form of permanent marriage(Zina Mohseneh) and also if the woman is married permanently and is able to have sexual intercourse with her husband at any time. Clause 1 of Article 100: „A woman who commits adultery with a child is liable to Hadd punishment of 100 lashes not stoning“. Clause 2:“ If a married person commits adultery when the other spouse is away or in prison, he or she is not liable to stoning“. Journey, imprisonment and plausible conditions do not amount to stoning punishment due to lack of access to wife and husband.  These are the circumstances when the conditions of Ihsan do not prevail.

Iran’s penal code of 1991: Article 83:“ Had punishment of adultery amounts to stoning if married man (a man who is married in the form of permanent marriage and has sexual intercourse with his wife any time) commits adultery- if a married woman(a woman who has permanent husband in the form of permanent marriage and her husband has sexual relations with her and she is able to have sexual relation with her husband) commits adultery.

Article 74: „adultery whether punishable by flogging or stoning may be proven by testimony of four just men or that of three just men and two just women“. Adultery is not proven by testimony of women only they should be accompanied by male witnesses.

Article 75: „if adultery is punishable only by flogging it can be proven by the testimony of two just men and four just women“. Article 76: „The testimony of women alone or in conjunction with the testimony on only one just man shall not prove adultery but it shall constitute false accusation which is punishable act“.

Iran’s Penal code of Oct. 2009: enacted by the Iran’s Islamic parliament for the period 5 years of provisional. The proposed penal bill contained stoning sentence for adultery (Zina Mohsene).The bill was suggested to the parliament by the judiciary in 2007, which faced many critiques from scholars, human rights activists and lawyers. The controversial bill of 2007 proposed Sharia punishments and regulations for all the crimes. It also contained stoning sentence for adultery. The 2007 bill in Article 221 provided: „for the following cases Had punishment for adultery is murder for ;1- incest,2-adultery with father’s wife,3- non-Muslim man commits adultery with Muslim woman,4- adultery through violence,5- when a married man and woman commits adultery they are punished to stoning to death. In waver 4 it proposed that whenever execution of Had punishment of stoning brings  about Mafsadeh(disgrace and degradation), it is predicted  the judge can along with prosecutor’s suggestion and agreement of the head of judiciary considering  the crime is approved by Islamic evidence, change the stoning punishment to hanging or 100 lashes. (stop stoning forever campaign, 2009)

The enacted bill of 2009 in section two, article225 says: “ for the following cases of adultery Had punishment is murder;1- incest,2-adultery with father’s wife,3- non-Muslim man  with Muslim woman.  Article 228 of 2009 act has only addressed unmarried adulterous which reads:“ unmarried adulterers will be sentenced to 100 lashes.“ Nonetheless, in this act Article220 orders the Hodud crimes and punishments which have not been mentioned in this code will be treated as it is clarified in article 167 of constitution“. In the following article it is predicted when the necessity of referring to article 167 of Iran’s constitution arises, the judge should ask the supreme leader for his opinion (article 221 of 2009 penal bill).Article 167 of constitution provides: „the judge should try to find the judgment of any lawsuit or litigation in the text books, otherwise he is liable to make a judgment based on Islamic sources and jurists‘ opinions. Judge is not allowed to remain silent in any trial or refuse to make judgments on the cases referred to him.“

Islamization of penal laws and creation of Hodud laws during late 19th century as a era of  political turning point in the Muslim world did not leave Iran intact. As Dr.Mir-Hosseini provides revival of Hodud or Zina laws and women being the main targets of such laws is the call for return to Sharia by Islamist to establish and enforce their authority.

STATE’S RESPONSIBILTY

There has not been any punishment of stoning for „Zina Mohsen“ before the revolution 1979. No person had been sentenced to stoning in the history of Iran’s legal system before Islamic revolution.

After the revolution, it is reported by Amnesty International that 8 people convicted of adultery (Zina Mohsene) were stoned to death in 1986. Zahra was another victim of stoning punishment jailed in 1990 and  was stoned to death in 2006. In 1995 reports show 10 people were stoned to death. In May and July 2001 two women stoned to death. In 2002 two persons and in 2004 an unknown man was stoned to death after execution of 80 lashes and 10 years prison. No stoning was reported until 2006 when Abas and Mahbube’s stoning became public. In 2008 3 men were stoned to death whom one of them escaped. In 2007 jafar kiyani who was convicted of adultery was stoned to death in Takistan, a township in Qazvin province located in northwest of Iran. In Dec.2008 a man was stoned to death in Rasht, a northern city of Iran.

 

In early times of Islamic revolution, cases of adultery, prostitution and illicit sexual relations did not  have fixed punishments, it is evident in the newspapers of early years of Islamic revolution, persons convicted of adultery were differently sentenced to execution by hanging, shooting and also stoning to death.

In 1980, Azam Taleghani, a politician and journalist who was a member of parliament at that time and founder of Society of Muslim Women, objected stoning punishments occurred in Kerman, a city in central south of Iran. She protested the action of government stoning some people in Kerman province, and addressed it as unjust action (Keyhan newpaper, August 1980, No.11049,p.3).

There were other grand Ulamas (jurist scholars) who viewed stoning punishments as disturbing social security.  Dr.Mohamad Mojtahed Shabestari, a philosopher and great Shi’a theologian expressed his concern about execution of different punishments for the same crime in different parts of the country. He said this is dangerous and demonstrates insecurity of judicial system. Ayatollah Meshkini, a hardliner clergy who became the head of assembly of expert after the death of Khomeini, also declared that execution of stoning is not good for the country’s situation and implementation of Hodud punishments should be carried out more wisely by judges. It can be clearly understood from the scholar’s statements in early 1980s that fears existed among religious leaders and government officials of being considered as unjust Islamic state by foreign countries (Keyhan newspaper,No.11045,July1980,p.5)

Hadi Rostami, a lawyer scholar believes Hodud crimes are too difficult to prove. Islamic approach towards crimes against decency is based on the idea of being unknown. Four times confession under special circumstances is critically needed. It is clarified in the law that confession to adultery can be denied and in view of that the punishment will be changed to lashes from stoning. Contrary to what the current judicial policy carries out, the judge’s reasoning is not considered as a proof of evidence for adultery (Amnesty International, Iran and execution by stoning, 13/1/2008).

In year 1982, Ayatollah Khomeini ordered the judiciary not to execute stoning punishment. Thus, supreme council of judiciary imposed a moratorium for judges stop making stoning punishments. Despite that, stoning was carried out secretly.[1]

It was also ordered by the head of Iran’s judiciary in 2002 that judges should not punish anybody to stoning and alternative punishments must be meted out for crime of adultery.

It should be noted that Islamic state of Iran’s official never acknowledged stoning punishments is being carried out through the country. Stat’s policy of silence, as Shadi Sadr calls it, it is highly interesting that only reaction Iran’s Islamic state made to the voice of protesters on execution of stoning ; scholars, journalists, lawyers, human rights activists, especially within women’s movement was to keep silent, deny existence of such punishment or introduce alternative punishments to the judges.(??? maajale zana)

On 21 of Nov 2006, a few months after the stoning of Jafar Kiyani, Minister of justice, Mr.Jamal Karimi Raada denied execution of stoning in Iran. Following his announcement on 8th of Dec.2006, the head of Iran’s prisons endorsed and supported Mr.Karimi Raad’s declaration.[2]

Sep.2007, spokeman of Iran’s Human Rights Headquarter in a TV program stated: „stoning as a criminal punishment is quite fair and has no sign of torture, because the criminal has the chance of staying alive,Despite that stoning occurs in Iran very rarely and the case of Takistan was a mistake from the judge“.[3]

In Nov. 2007, Alireza Jamshidi, spokeman of judiciary declared there have been changes on stoning punishments in the new criminal bill by which stoning sentence should be execute in special cases with approval of the prosecutor and the head of justice.

Mola Yusefian, a member of judicial commission said, stoning sentence has not been executed for many years, it is the judges‘ mistakes who do not decide reasonably in such cases.he believes stoning punishment shows how Islam is concerned about the family.[4]

 

I have chosen three well known cases of adultery sentenced to stoning to enlighten how such crimes go to court, how the trail process take place and to what extend gender becomes an issue in proceeding of judgment. Selected cases are known internationally through stop stoning forever campaign which was launched by a group of lawyers, scholars and human rights activists in 2006.

It is apparent from the governments officials and the work of human rights activists that the more wave of protests sparked, the more state’s officials denied stoning being held in criminal justice system.

Mokarameh Ebrahimi

She was 43 years old when she was convicted of adultery and sentenced to stoning to death with her husband. Mokarameh and Jafar married (temporary marriage) each other when she left her first husband, She had run away from her first husband, because she couldn’t get divorce from him. She told the judges she tried to get divorce but her husband wouldn’t divorce her and forced Mokarameh to live with him. According to Mokarameh, her first husband was a very aggressive man and used to beat her violently. Jafar helped her to get away and they went to a  clergy in the village to announce their temporary marriage .two years later her first husband reports kidnapping of Mokarameh to the police, she and her second husband get arrested, but in the court session the judge dismisses their case, After four and half years of living in the village far from her first husband’s place, the couple get caught again upon the first husband’s complain, they were sent to the prison with adultery charges. At that time they had a child together and she was pregnant her second child who is born in prison. After hearing sessions of criminal court of Takestan province, Supreme court of country confirmed the stoning sentence of lower court and ordered stoning sentences  for both Jafar and Mokarameh. Jafar was stoned to death in June 2007 and Mokarameh was released on mercy of the judiciary.

Said Eghbali, Mokarameh’s lawyer recommended the volunteer lawyers network to appoint a woman lawyer in order to talk to her easily. Shadi Sadr got involved in her case since. Regarding stoning, Shadi believes that according to Islamic regulation, stoning sentence is not appropriate for such a case when the couples believe to be married legitimately. Mokarameh presumed she is divorced from her first husband. She was not acquitted from adultery, but repented and pleaded for mercy, the judiciary and commission of impunity granted her mercy. She reiterates that the opinions of three grand Ayatollahs were effective in her mercy, according to their Fatwas, her children from Jafar are legitimate and they were not liable to stoning. Said Eghbali, her first lawyer, provides absent divorce did not happen virtually. Absent divorce occurs when a woman asks for divorce while her husband is not available and disappeared for a long time. Jafar lied to Mokarameh to encourage her be with him. Jafar had a first wife. Therefore, they went through temporary marriage[5]. Moreover, they lived in a village and a clergy man announced them husband and wife. This shows if they were intended to have illicit relationship, they wouldn’t go to the clergy man for their marriage (religious marriage). What’s important is that they lived publicly and had social relations in their village with two children.[6]Mokarameh had an unhappy marriage with her first husband, as a villager woman she did her best to leave out the relationship she suffered, Having had that in view she relied on Jafar and believed on legitimate relationship with him.

Hajieh Esmailvand

She had a son of 6 and a daughter of 10 years old when she got arrested in 1999. She is born and lived in Jolfa, a city in the west of Iran. she doesn’t speak Farsi. Hajieh and her husband lived in a school as housekeepers. Her husband was a gambler, alcoholic,and cock fighter. An irresponsible husband/father towards her family. Hajieh didn’t have a happy life, her husband used to beat her up. She even gave him the house she inherited from her father to calm him. A man in the neighborhood named Roohallah finds out about Hajieh’s relationship with her husband. He keeps disturbing her by phone calls whom she had fights with several times. After some time Roohallah threatens her to have relationship with him, but she refuses. After some time her husband gambles with Roohallah, they fight and Roohallah kills Hajieh’s husband. Hajieh had gone to Tabriz for her daughter’s treatment when her husband gets killed. Police want her back and arrest her immediately with charges of adultery and accessory murder. She confesses to adultery (Zina)in the court not knowing what it means literally. The judge misunderstands and sentences her to 5 years prison and hanging punishment for adultery and accessory murder respectively. Her sentence of hanging was suddenly changed to stoning after serving 5 years of jail. She is finally acquitted from adultery and its punishment of stoning, consequently she is released after retrial in 2006. Roohallah convicted of having extramarital relationship punishable to 100 lashes and Qisas(retaliation) for murder. he has been in jail since 1999 to obtain the consent of victim’s family to receive blood money of victim and forgive the murderer to be released.[7]Hajieh is back to her normal life, married to a decent man and is happy with her family.

Hajieh could understand Farsi but not speak it, her mother thong is Turkish. When she was informed to be stoned after serving of imprisonment, she even didn’t know what Rajim(stoning)means. She was convicted of accessory murder and adultery, while she was not in the city when her husband gets killed. She previously told the court that Roohallah had attempted to rape her couple of times, but the court did not take any notice. Clearly, the judgment is questionably weak. Hajeih had mentioned in the court session that she didn’t know what Dokhool(intercourse) mean. It is notable at the beginning of trial she had an appointed lawyer from the Bar association who did not put enough time for her case. Later on, after 6 years, Bahareh Davaloo accepted her case through the volunteer lawyers network in 2006, when she got involved in Hajieh’s case, the judiciary had published an advertisement for her stoning to be executed by the people of Jolfa. But the executive judge objected the judgment and suspended the execution. Accordingly, the head of judiciary ordered to stop execution of stoning. Ms.Davaloo told me Hajieh’s conviction of accessory murder was based on the murder’s false declaration. Roohallha had said to the prosecutor that Hajieh wanted her husband dead, therefore, went away to keep the house empty for him to kill her husband, he claimed Hajieh had promised him some money and marry him after her husband’s death. The court found Hajieh guilty of accessory murder punishable to 5 years prison. Roohallah was the one who reported the murder and adultery, he falsely claimed that Hajieh had sexual relationship with him. He described some parts of Hajieh’s body to prove his allegation, which was found incorrect through examination. Hajieh denied having any sexual relation with Roohallah, but the court did not take notice. In re trail session, her lawyer objected stoning sentence upon invalid confession based on prison keeper’s testimonies, the judge was satisfied to acquit Hajieh from adultery (stoning punishment)however,found her guilty of having illicit relationship with another man punishable to prison.

As it was mentioned, the executive judge did not execute the sentence due to the mistakes of judgment delivered by the judge of lower court. The Supreme Court reversed the lower court judgment due to lack of judge’s reasoning for adultery conviction. The evidence of proof were not sufficient enough, therefore, supreme court returned the case to the lower court for re trail. Her lawyer, Bahare Davaloo, said Hajieh’s children had a bad image from their mother and didn’t show respect when she went back home. However, their relationship gradually became better and Hajieh got married t.  What are the main reasons for being accused of adultery, Bahare Davaloo declares: „The main reasons for women being accused of adultery is that they not only have minimum education but also have no knowledge of legal defense, and what was sparking in Hajeih’s case, was that the first judge was personally against Hajeih, he tried his best to convict her of adultery. He even didn’t let  me as her lawyer to visit Hajieh“[8].

 

 

Shamameh Malek Ghorbani

A 35 years old villager woman who was born and lived  in Naghde,  a village in Orumeih province in west of Iran. She is illetirate, has a 13-year old daughter and a 10-year old son. She gets to know a man in neighborhood, he forces her to be with him. Her brother suspects she is having an affair with another man, he informs the husband and one day they go home unexpectedly and see Morad in the house. Shamameh’s husband and brother immediately kill the man and also stab Shamameh who was nearly killed too.  According to Shamameh, Morad gets attracted to her and keeps calling her home, one night when she answers his call, door bell rings and Morad who was on the phone pushes her and gets in to the house, turns off the lights, and rapes her. At the same time her brother and husband arrive and kill him by stabbing. Upon Shamameh’s confession the judge sentence her to stoning in the first trail in June 2006. In her re trial she was convicted of adultery and received punishment of 100 lashes and The men were convicted of deserved or ‘legitimate’ murder and received a sentence of six years’ imprisonment.[9]

Shamameh said to her lawyer“I want to be stoned to death, if you defend my case and I get out of prison, I will either be killed or kill myself“[10] In late July and early August 2008, the court ruled that Shamemeh Ghorbani should not be stoned to death, but a sentence of 100 lashes must be carried out. She was released from prison in Oroumiye, a city in the west of Iran. The murderers were found guilty of manslaughter but based on articles 219 and 226 of penal code, as the deceased deserved to be killed and they killed him rightly, they only receive prison punishments because they committed murdered without obtaining a permission from the head of judiciary.

Mohamad Mostafai, Shamameh’s lawyer got involved in her case through volunteer lawyers network. He believes Shamameh’s case raised serious doubts. It was mentioned in the judgment of supremecourt that stoning is a divine law of Hodud, the evidence must be proved beyond any reasonable doubt. The doubts were that Shamameh said in the court session that she was reluctant to have any relationship with the man.  She had been threatened by him several times before the incident. According to Mostafai[11], the lower criminal court upheld stoning for conviction of adultery based on Shamameh’s false confession. However, the court of appeal dismisses the judgment of lower court on the fact that Shamameh’s husband worked in a village far from his wife. Therefore, she has not been under circumstances of Ehsan (when husband and wife are always available for each other) Therefore, she is not liable to stoning punishment. Based on Iranian penal code, In any conditions when married couples are away or can’t sleep together under any circumstance,  if one of them have relationship with another person, by law he or she is not treated as married, thus their crime is not adultery(Zina Mohsene) punishable to stoning. The punishment will be 100 lashes for illicit sexual relation. In the case of Shamameh, her act of confession was not honest, because she believed if she confesses to adultery with the man, her brother and husband will be acquitted of manslaughter.

Mostafai declares, lack of education, unawareness of legal and judicial system, lack of cultural values made Shamameh confess to adultery in the first place. Furthermore, if she was able to appoint a lawyer during investigation, such faulty evidence would not lead the judgment  to false conviction. According to Iran’s criminal procedure code, lawyers are not allowed to engage in primary investigations carried out by the police.

As the data shows, Shamameh never complained from her husband’s behavior, and was happy with her marriage, Morad started abusing her when he found out her husband works in another village and doesn’t often come home. Despite the fact that Shamameh was attacked by the man and had no will to have any kind of relation with him, the judge of lower court held her guilty of adultery. This shows lack of legal knowledge and irresponsibility of judges making unfair judgment against the accused.

In judicial system of Iran, judges are at the top of system and have the full authority to make any judgments based on their reasoning. I observed in almost all adultery cases which are resulted to stoning punishments, the judge has always had personal issue with the accused woman or considers himself as the woman’s possessor to punish her brutally. This usually happens in small cities in which judges are intended to give verdict on stoning.  In my view, in almost all cases of adultery, judges believe they have authority to punish bad women who they trust have behaved against traditional Islamic principles. This shows how men judges use their power to suppress women’s sexuality, furthermore keep them inferior by ignoring their rights. Even if the adultery complain is not truly made, the complaint against the women, itself is sufficient enough for them to treat women inhumanely.

During my examination on adultery cases I did not come across any case of adultery (Zina Mohsene)sentenced to stoning in Tehran (capital city of Iran). Researches[12] show most of judges in Tehran’s criminal courts are reluctant to rule capital punishments such as stoning or hanging for cases of adultery (Zina Mohsene).The reasons must be the higher status of women in bigger cities in comparison with small cities, women in Tehran are more legally wise and more socially active than women who live in villages or small cities. In my research I have found that almost all adultery cases which go to courts are always accompanied with homicide of husband or a third person. This makes the circumstances of the case critical for judges. Therefore, judges intend to lead the trial to convict women of adultery even with weak reasoning. Moreover, women are regarded as easy targets of authorities to be controlled accused and punished. What is more important in adultery cases (Zina Mohsene) it is recorded that the husband always file a complaint against his wife having a sexual affair to discourage her from getting her Mahr or dowry. This has been used as a stick to force women forego of their rights. Most women fear the social stigma and family’s reaction to such allegation. As a result, women bestow their dowry in return of their husband withdraw the complaint.

ACTIVISM FOR CHANGE:

It was not believed amongst public and elites that stoning is practically carried out by the judicial system until the stoning execution of Mahboobeh and Abbas occured in May 2006 in Mashhad, an eastern city of Iran. This was a shocking event for human rights activists which stimulated immediate and strong action call for stopping such a violent treatment against humans. Only a few months later, women’s rights activists, lawyers, journalists, and scholars together decided on launching a campaign to „stop stoning forever“ in Iran. This campaign started to identify adultery cases in which judgments pass stoning punishments. Number of cases was found in different cities of Iran by activists and referred to Volunteer lawyers Network. Dedicated lawyers among them Mohammad Mostafai, a prominent human rights lawyer found and defended the cases of stoning all over the country to stop execution of stoning and pressure the officials to change the law and refrain from execution of stoning.

Couple of reformist newspaper carefully published interviews, and articles against stoning punishment. Zanan magazine at that time acted vigorously to condemn government for carrying out such disgracing punishment against people. It was important for human rights activists to obtain religious leaders‘ views on implementation of Hodud punishments specifically stoning. Asiye Amini, a journalist and human rights activist explains the reason of organizing such a campaign was the newswhich was spread out in a short time about the stoning sentence and execution of stoning in different parts of the country; stoning of a man and woman in Mashhad, sentencing a woman to stoning in Ahvaz, and Jolfa. Asiye feels severity and violence of stoning is more than any murdering punishment and even if the person escapes from dying, the harms of such punishment are not easily curable, she continues that most of the victims are from poor and uneducated families. Moreover, women are more discriminated than of men accused of adultery (Amnesty International, „Iran end execution by stoning“,2008.p.16)

 

 

Mohmmad Mostafai, who is one of the initiators of the campaign, saved 11 persons from stoning punishment. He sacrificed his life and work in Iran to save Sakineh Mohammadi Ashtiyani’s from stoning punishment which triggered the launch of international campaign to stop stoning. He not only tried to defend and save women from stoning or death punishment, but also felt responsible to raise public awareness about misconduct of judicial system. He believes activism in Iran should be supported to continue advocating for human rights of people rather than outside of Iran. Social, cultural and legal reforms are not fulfilled without awareness and support of public. Public should be engaged and informed about laws and its shortcomings in order to have legal reforms as well as social changes.

Grand Ayatollah Hosseinali Montazeri, was the opposition religious leader who was under house arrest since 1986 and died in Dec.2009, provided his opinion on the issue of stoning that in Islamic law it is set only for married adulterer proved under conditions: 1-testimony of four descent men who sees when parties commit adultery  2- confession of accused four times not in prison nor under pressure. He reiterated that the stoning in Takistan has been against the regulations of Sharia. Deny after confession is accepted in Islamic law and the convict has the right to escape, it is not permitted to prosecute him/her. He finally clarified that if execution of Islamic regulations is fearful for the society, it should be avoided. (www.radiofarda.com), 22/4/1386.

Shadi Sadr, Iranian human rights lawyer, told the Guardian. „In all of adultery cases, there has been violence against them, or they have been forced into marriages, or their divorce applications have been refused. In some cases, they couldn’t apply for a divorce due to family pressures.“(Guardian Monday July 21, 2008)

Asieh Amini, states about the similarity of all women victims of stoning punishment. „They mostly fall in love; they are not possibly able to get divorce. Love occurs in every social class, and aging group, falling in love has nothing to do with being adulterous and stoning punishment“ [13]Although she believes campaign could not seriously engage more forces of ordinary people, because the number of stoning punishment for accused of adultery was not much for showing numerous facts. Moreover, It was deemed by people that  stoning is a punishment for women only and some thought fighting against the  law which is not implemented is not efficient. At the same time some people were certainly sure the law is not as important as the traditional social customs and lack of gender awareness (Amnesty International, „Iran end execution by stoning“,2008.p.16)

 

 

Ayatollah Mosavi Bojnordi in his interview with one of internal reformist newspaper stated that punishment for adultery is 100 lashes in Quran and during early 60s Imam Khomeini ordered the judges not to sentence anybody with stoning for crime of Zina. Supreme council of judiciary decreed a circular for the whole country not to execute stoning sentence(7 mordad 1386, Etemad meli newspaper-No.423,P.7).

Emadodin Baghi, a reformist scholar and  human rights activist  believes Stoning sentences have been executed against human rights standards in recent years; they are not even executed according to Sharia principles. Followings are some of the shortcomings in the criminal justice system on the issue of adultery and stoning punishment: 1-people have confessed in prison under pressure and torture,2- their confession has been accepted by judges without question,3- people’s denial has not been accepted after confession,4- despite reasonable evidences and documents for the appeal of stoning sentence, judges avoid appeal of the judgements,5- To execute the judgment of stoning it is necessary  the most descent and fair person be present during the action, but this has not practiced in reality,6- most of the time government official executed stoning sentences,7- the stones have been far too big to kill the person quickly,8-some people have escaped but forced to return to the scene for stoning. (Etemad meli newspaper,7 Mordad 1386/June.2007).

Mohamad Taghi Fazel Meybudi, a clergy scholar, states during ignorant era of Arabs, adulterous woman would be sentenced in to life prison, and man adulterer would be banished from society, but when they regret and repent, forgive them, because God is merciful( Sura Alnisa:15).  This was applied during that time until another decree from God repealed the previous regulation. Islamic laws is very strict to prove adultery, the reason is the importance of public decency is highly important. He asks if in the custom of current society the execution of stoning is threatening and frightening, does it require insistence of executing stoning! It is important to note that legislator had a preventive purpose to legislate such laws not to implement Hodud laws, rather use them as a tool. Punishments such as stoning, amputation, hanging and imprisonment are means and ways to reach the goal. They are substantially variable, It is not possible to keep them intact and monotonous. On the contrary, the goals and purposes are always invariable. Therefore, execution of Islamic Hodud laws according to previous tradition nor represents Islamic state, neither purposes of Sharia. In Islamic law it is principally provided that crimes which relate to public decency should remain unknown.[14]

The work of activists and campaign was incident with enactment of new Iran’s penal code. As I described in the first section, the penal code of Iran was passed for a provisional period several times. In 1996 the period was extended for another 10 years. Although the provisional period was expired in 2006, the parliament decided to extend the period for more 2 years due to incompletion of new draft. When the first bill of penal code was publicly announced by the parliament, the wave of critiques from wide range of scholars specially feminists refrained the parliament from passing the law. The main objection was the inhuman and degrading punishment of stoning which was still in the newly proposed bill. Sexual rights of women, hanging punishment for children under 18, conditions of self defense, equal Diyeh or blood money of women and equal rights of men and women were other important issues which raised a lot of criticism in the bill.

Finally in drafting the new penal bill in 2009, majority of the members of Judicial commission of the parliament voted for removing stoning punishment from the penal code. The commission decided to remove stoning from the new criminal bill. Ayatollah Shahrokhi, the head of the commission said in his interview with IRNA that for the expediency of Islamic system, we decided to remove some Islamic Hodud from the law, However he mentioned the serious conditions and strong evidence for proof of adultery amounted to  take away provisions on stoning in the new law.

It is worth noting that since the start of stop stoning forever campaign in Iran and the global campaign to stop killing and stoning (SKSW), 8 women and 1 man were rescued from stoning punishment.

CONCLUSION:

Establishment of Islamic regime amounted to controlling women’s sexuality and sexual rights directly. At its first years of existence, regulations were made to restrain unveiled women from working in governmental offices. Additionally deprived them from presenting in public sphere until 1982 when the state stabilized legal violence against women by criminalizing unveiled appearance in public punishable to fine or prison. Prostitutes were killed harshly and brothels were put on fire in order of Imam Khomeini. As the documents show state’s policy was aimed to reinforce Islamic morality (in men’s favor) thought out the society.In short, I can conclude that the state and men in the families have power on issues related to women’s sexuality; obtaining divorce, extra marital relationships,  sexual behavior, and dress code.On the other hand, men’s sexuality is not being considered as an important issue to be restrained, yet as a liberate power to be used for controlling women’s sexuality in order to safeguard the social security. Sharia as a political ground became a legitimate device to regressive social and legal rules such as gender discrimination in civil and penal codes, gender segregation, and moral police introduced under social security project initiated by Ahmadinejad’s government.

Women accused of adultery who are punished to stoning mostly are uneducated who come from poor families, low social status and less developed areas of the country. Such disempowering circumstances continue to keep them in a more inferior state in the criminal justice system.

Legal, social and cultural restrains pave the way for women being accused of such a serious crime and grave punishment. As I mentioned earlier, judges treat women accused as if they are their possessors. Islamic republic of Iran has empowered men providing and promoting the notion of patriarchy. It is traditionally believed that women substantially are capricious and indulgence in their desire. Therefore are to be blamed for any act of indecency.

Zara Saeidzadeh

 

 

 

 

 

 

 


[1] Ayatollah Bojnordi stated inhis interview with Etemadmeli newspaper,June 2007.No.423,p.7

[4]Shadi Sadr,“denial policy of the state“,Zanan magazine, No.138,Dec.2006

[5] Temporary marriage is legally described as a marriage for a specific time when the couples make the contract based on a limited certain period(article 1075 of civil code). In this type of marriage woman has no right t o maintenance(article:1113 of civil code)

[7]In the penal code of Iran, it is provided; the family of deceased can agree to receive the bloody money of the deceased instead of having the murderer killed. Article:208

[8]My interview with Bahare Davaloo,15April2010

[9]UA 257/06, MDE 13/113/2006, 28 September 2006

[11]My interview with attorney Mohamad Mostafai, 8.April.2010

[12]Unpublished research on Zina Maharem by Mohsen Maljoo, human rights activist –My interviews with lawyers and women prisoner in Tehran in 2008.

[13]http://www.Iran-emrooz.net  interview with Asieh Amini, 5.9.2006

[14].Mohamad Taghi Fazel Meybudi, 27.Feb.2010. Etemad newspaper of Iran.

Source: Universal Tolerance Organization

 

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