Crime of adultery and stoning punishment in Iran’s new criminal code
Crime of adultery and stoning punishment in Iran’s new criminal code; skills of defense in Hodudcrimes
BY: Mohammad Mostafaei, director of Universal Tolerance Organization
Universal Tolerance – After long tension between Islamic parliament of Iran and council of guardian the criminal law bill was finally sanctioned by the parliament and council of guardian subsequently ratified it before it was published in Iran’s gazette for the enforcement. However, during the course sanctioning, many legal comments and critiques have been raised towards the newly sanctioned criminal law. The last but not least critic was about public publication of the law in the gazette where rather than publishing the law, the advertisement for selling the law book was announced which legally impedes the enforcement of the law, because according to civil code of Iran, new legal provisions must be fully published in Iran’s gazette and enter to force 15 days after being published, whereas the provisions of new criminal code have not been published officially as for today. Thus, it is not legally acceptable not to have the law published in gazette, but in some other place for other reasons which has not surely been the purpose of the legislator either. In addition to this issue which has made the enforcement of law more difficult, another important issue to be addressed here is the crime of adultery and punishment of stoning. Since stoning punishment has again been stipulated in the law by the legislator, we need to advance lawyers’ skill on how to defend clients who are punished to both stoning and death penalty. Distribution of information in this regard can also be a huge help to save lives of many who are convicted of adultery.
What is adultery?
Based on article 221 of Islamic criminal code of Iran, adultery is the act of intercourse between a man and woman who are not married to each other which does not include the case of doubtful intercourse when a man wrongfully thinks a woman whom he is having sex is his wife or visa versa. In other words, adultery in Iran’s legal context is a sexual act between a man and a woman whom are not married to each other and their sexual relationship is not based on doubt. In this article’s first note it is mentioned that intercourse occurs when man’s penis is fully penetrated to woman’s vagina which means adultery does not happen unless man’s penis is penetrated in to woman’s vagina until it touches her uterus. In this crime immature person does not receive punishment, but disciplinary measurements. Having sex with corpse is recognized as adultery unless a man makes sex to his dead wife, in that case he will be punished to 30 to 74 lashes.
What is the punishment for adultery or Had for Zina (adultery)?
In Iran’s criminal code three types of punishment are set out for adultery. Death penalty, stoning, and lashes or Ta’zir punishment which will be discussed here before moving to discuss how to defend cases of adultery through legal aids.
According to article 224 of Islamic criminal code of Iran the punishment for adultery is death in occasions if:
1-Adultery takes place as a form of incest which includes sex with mother, grandmother, daughter, grand children, sister, niece, nephew, aunt, father, grandfather, son, uncle.
2- Sex with father’s wife (step mother) for which adulterer will be punished to death penalty.
3- Sex between a wife of non-Muslim man and Muslim man which results in death penalty of adulterer.
4- Adulterer violently have sex with adulterous when she is reluctant that will punish him to death penalty even if a man have sex with a woman when she is asleep, unconscious or drunk, his act will be considered as adultery with violence. If adultery occurs through seduction of immature girl in the case of abduction, and threat, the adulterer will be punished to death.
Punishment of adultery
According to article 225 of Islamic criminal code of Iran, punishment of married adulterer and adulterous is stoning to death. It should be noted that the legislator had not sanctioned this provision last year; accordingly the council of guardian had ratified the law without this article which means the article has illegally been added to the law during later unofficial reforms. However, following the article it has mentioned that in case of impossibility to execution of stoning punishment, if the court decides after verification of the head of judiciary when the crime of adultery is proved by witnesses the adulterer and adulterous may be punished to death penalty instead of stoning otherwise they will be sentenced to 100 lashes.
This article can allow judges to decide whether the convict receives lashes, death penalty or stoning punishment. Analyzing the last part of this article it should be said that a judge can proceed with two decisions. First the primary court can suggest the head of judiciary to change the stoning sentence to death penalty and if the head of judiciary doesn’t agree, stoning punishment will take place. Second, the judge can primarily change the stoning punishment to 100 lashes. This means, the judge has been given authority to punish the convict of adultery to lashes instead of stoning which is a way to save the lives of convicts from stoning.
It seems the legislator has been reluctant to legalize stoning punishment, but the pressure from the council of guardian has led to such gravely inhuman punishment which doesn’t justify the legislation because the judges’ attitudes towards accused and criminals are variously different. It is possible to have an aggressive judge who exercises hatred and despise in his judgments that might result in stoning sentences. It might also be likely to have a judge who is satisfied with order of lashes. However, it is also highly likely to encounter a judge who orders stoning punishments, but executes the convict secretly behind closed doors. By and large, stoning punishment in law is very dangerous and even more dangerous when it turns to death penalty which has made it even easier for the judiciary to take people’s lives.
In this law there are legal loops to be adopted in order not to exercise either stoning punishment or death penalty which can change them to lashes. Considering the crimes which substantially have flogging punishment in the law such as the act of adultery by unmarried person, they can be used to change the punishment from stoning to lashes.
1- In the case of incest and married adulterer and adulterous, if adulterous is mature and adulterer is not, the punishment for adulterous is 100 lashes.
2- If a man is married to a woman permanently, before intercourse he commits adultery he will be punished to 100 lashes. Shaving head and exile for one year will also be considered in the punishment. This means if a man marries and doesn’t have sex with his own wife until he has sex with another woman he will be lashed 100 times. Therefore, this can be used for newly married men who are convicted of adultery to claim they didn’t have sex with their wives in order not to be punished to stoning.
3- Punishment of adultery for no married persons is 100 lashes.
4- If a man or woman confesses to adultery less than four times, he or she will be punished to lashes from 30 to 74 times as a form of sixth degree Ta’zir punishment. The same provision was recognized in the previous law, but previously the judge was not allowed to take confession of accused four times in one session, whereas new law permits the judge to get the confession of convict for four time in one session which is completely against Sharia. This may result in confession under torture while convict has the right to confess in the court session and denies the confession any time.
Defense skills for cases of adultery
Many people who become convicted of adultery and receive stoning punishments come from less educated poor families who do not know about law and legal system. In these cases judges should respect the rights of accused persons to have lawyers. Convicts are allowed to obtain legal aids from lawyers in order to save their lives from capital punishments like death penalty and stoning. Some important points are highlighted in saving lives of convicts.
1-Denail after confession
Although the legislator has appointed that denial after confession will not void the punishment, exceptions have been made in the case of stoning and death penalty for crime of adultery. Convict can plead not guilty in any stage of legal proceeding whether it is in the stage of court hearing or execution of punishment. In this case, stoning will be changed to 100 lashes punishment. If accused or convict claims the confession was conducted under threat and torture, that claim will be accepted without requiring any further proof. Thus, the lawyer can embrace this strategy for saving his/her client’s life who is sentenced to death.
2- Claim to be ignorant about Sharia based unlawful act
It is provided in article 217 of Islamic criminal code of Iran that in crimes with Had punishments, the perpetrator is responsible when he or she is not aware of unlawfulness of the act in Sharia, besides having intention and knowledge about criminal responsibility. Therefore, accused can claim when having sexual act he or she didn’t know it is illegitimate according to Sharia.
3- Lack of knowledge and intention are impediments to criminal responsibility
Article 218 of Islamic criminal code provides in the crimes with Had punishment if accused claims he or she had no knowledge or intention at the time of crime, that will remove criminal responsibility from the perpetrator if the claim is proved authentic.
4-Confession in the court at presence of the judge
Confession should take place in court in front of the judge. Those confessions which are taken during primary investigations by the police, detective or prosecutor are not legally credited. Confession should be taken according to article 218 in court and at presence of the judge.
5-claim to be married and mistaken sexual act
Article 223 of Islamic criminal code of Iran says when a person accused of adultery claims existence of marriage bonding and mistaken sexual act, the claim will be accepted by court without any further proof unless otherwise is proved though Sharia rules. Therefore, if accused claims the sexual act is occurred mistakenly or if a man claims he married the woman through Sharia form of temporary marriage, he is not required to prove his claim which cancels death penalty.
Another way to save the life of convict from death is to claim that he or she had left marital relationship, in other words he or she has been in situation wanting to have sexual relationship which can be happen under certain circumstance including long journey, detention, menstruation, venereal diseases such as Aids and Syphilis that could have been dangerous for another party in marriage. These conditions prevent the accused to be punished to death.
In conclusion, the legislator has recognized stoning punishment for the crime of adultery and it is possible any Iranian be convicted of such crime and be at risk of death penalty or stoning. Therefore, it could be understood that firstly, stoning punishment and death penalty will be exercised according to the law. Secondly, there are ways to save the lives of convicts from such punishments that should be taken in to consideration by lawyers. If lawyers be courageous enough to find a legal way to save their clients’ lives, educate them about their rights and legal system, it would be right to say that no one will be accused with such crimes.
Finally, hopes should be kept to see the legislators and council of guardian in Iran to raise their level of tolerance and abolish death penalty and stoning punishment from the law in consideration of people’s right to life.
Cartoon by: Shahrokh Heydari
Director of Unicersal Tolerance Organization
Veröffentlicht am 1. Juni 2013 in Dokumente, Gesetze, Iran Election 2013, Medien, Meinungen, Politik und mit Adultery, Ahmadinejad, Capital punishment, Chamenei, Crime, Gefängnis, Human Rights, Iran, Islam, Medien, Menschenrechte, Mohammad Mostafaei, Politik, Punishment, Stoning, Women in Iran getaggt. Setze ein Lesezeichen auf den Permalink. Kommentare deaktiviert für Crime of adultery and stoning punishment in Iran’s new criminal code.