Some examples of the Iranian Islamic Penal Code
Islamic Republic of Iran and Penal Codes
Restructuring society on the basis of violence and sexual apartheid
What the clerics ruling Iran call an Islamic society and government denotes an underlying model that in two decades has brought about huge upheavals in the political, cultural, legal and ideological structures of Iranian society. This model can best be described by its two principal features: An administration based on naked repression and violence, and a society based on inequalities of gender, religion, politics and reinforced by a steadily widening class divide.
The penal system is one of the main instruments for installing and sustaining such a society and administration. In this article I will confine myself to four different aspects of the Islamic Penal Codes known as qesas, ta’zirat, hodoud, and diyat, which I will define as we come to them. The main ideas developed in the article consist of three points:
1. The theoretical foundation of the Islamic Penal Codes is a social model based on sexual apartheid. The chief elements of this model are first: a belief that women are deficient in their natural and “innate” potentials and abilities, including their psychological-makeup and intellectual capacity. Second, a belief in a social and family order where men must be guardians over women, and women must submit. Third, a belief in an unequal system of rights and consequently, wherever the question of the reproduction of such an order is concerned, of a system of punishment that is also unequal.
2. The Islamic Penal Codes are based on violence in its most primitive forms. These not only authorise organised state violence, but encourage male violence against women within the family and in society.
3. While the Islamic Penal Codes have born down a tremendous injustice on the women of our country, they have also been an area where women have stood up against the regime in every possible shape, with some victories to their credit. It is no exaggeration to claim that women have inflicted the greatest defeats on the regime in the realm of culture and “public morality and chastity” and its symbol: the Islamic dress code ( hejab). By their persistent and fierce resistance women have in fact made the complete execution of the law of Islamic ta’zirat impossible.
What are these codes which give legal shelter to sexual apartheid? Through these laws women are not just second class citizens, half a man, but at times their very existence is disregarded. Someone pointed out that our women have managed to achieve equality in one field only: equal right to imprisonment, exile, torture, being killed, and now being slaughtered [Referring to the stabbing to death and throat slitting of Parvaneh Eskandari, with her husband Dariush Foruhar. Vida Hajebi, Arash no 69, 1999.]. In fact in the Islamic Penal Codes, Iranian women have the unenviable distinction of having a greater share of punishment. Let us first examine the question of liability to punishment.
Article 49 exempts children from punishment. Addendum 1 to this article defines a child as someone before puberty. But in the civil law puberty for boys is 15 and for girls 9 lunar years (article 1210, addendum 1). So girls come of age for punishments six years before boys. This is particularly striking since in everything else such as inheritance, custody over children, marriage, divorce, ownership, travel, giving witness etc women are considered delicate creatures in need of protection by men. But when it comes to being punished, suddenly they are more mature and responsible for their actions. Less rights, more punishment. One can imagine a situation where a boy of 14 and a girl of 9 steal. According to the law she would lose four fingers of her right hand for first offence (article 201), her left foot for the second offence, prison for third and execution for the fourth! He would go free.
Book 2 of the Islamic Penal Codes is devoted to hodoud (pleural of hadd). Hadd is defined as “a punishment in which its form, extent and character is defined in Shariah’ laws” (article 13).
Article 134: “If two unrelated women appear naked under a cover without cause, they will be punished ( ta’azir) with less than 100 lashes. If they repeat this act [despite] a repeat ta’zir, on the third occasion each will receive 100 lashes.” There is no male equivalent of this law.
Qazf means to accuse someone of adultery or sodomy. While the normal punishment for “qazf” is a hadd of 80 lashes (Article 139), if a father or paternal grandfather accuses their child of “qazf” they will be given the lesser punishment of ta’zir (article 149). The mother, however, is excluded from this reduced punishment.
Sexual apartheid is also the underpinning principle in the penal coded dealing with the second category of crimes: qesas. Qesas is defined as “a punishment where the criminal’s sentence must be equivalent to their crime”. In the West this is commonly referred to as “an eye for an eye”.
Article 209 states that if a man deliberately murders a Muslim woman then before he is receives qesas punishment the family of the woman have to pay the murderer half her blood money (diyeh – see below). The succeeding article extends the same double standard to a non-Muslim man murdering a non-Muslim women, whether or not they share the same religion. Thus a woman’s life is valued as half that of the man, and the punishment of a man murdering a woman is not the same as a woman’s unless the family of the murdered woman pays the murderer half his blood-money. He gets a present for the crime he has committed!
Book four of the Islamic Penal Codes is devoted to diyeh (fines and blood money). This too is heavily tainted with the same sexual apartheid. The 2:1 male: female relationship permeates all calculations of blood money. Indeed, this inequality shows itself in all but one article of this section [According to the justice ministry the dyeh for a man is equivalent to $20,000 dollars on the current exchange rate (or 100 camels or 200 cows or 1000 sheep). That of women is half]. At times the worth of women is even less than half.
Article 457 fixes the blood-money for the loss of both eyes as equivalent to the loss of life. An addendum to this article adds there is no difference between a normal, a squinted eye or a night-blind eye. Thus the value of a woman whatever her knowledge, education, expertise, credit, family and social responsibility is the same as a half-blind or squinted eye of a man.
Article 430 goes further: “the severance of two testicles has a complete diyeh, the severance of the left testicle 2/3 and the right 1/3 diyeh”. It goes on to add that there is no difference in blood-money between old and young, child or adult, impotent or healthy and similar deficiencies… Thus the price of the left testes of an impotent old man on death’s door is more than the life of a young, energetic, educated, mother and bread winner of a number of children.
Further scrutiny reveals even more absurdities. Her life is even less than the anus of the above man. Article 439 says: “the breaking of the ischial bone that causes the victim to be incapable of holding their stool has a complete diyeh” – and so equivalent to two women.
Another example of inequality is in relation to the murder of a child. If a father or parental grandfather murders their child they will not be subject to qesas – but will be subject to paying blood money to the inheritors of the deceased and punishment (ta’zir). A similar crime by the mother will be treated like an ordinary murder, subject to qesas (article 202). The law therefore recognised the right of ownership over the life of a child and grandchild for the paternal side of the family, but not the maternal.
Sexual inequality even starts in the womb. Article 487, dealing with the diyeh, of abortion states that once a soul has appeared in the foetus, the diyeh payable is in full for a boy, half for a girl and three quarters if the sex is obscure. Since the spirit apparently enters the foetus at two months, the Islamic Penal Codes starts discriminating seven months before birth. And as there is no difference between a Muslim and a non-Muslim in this score, the discrimination here is based purely on gender.
Book 5 of the Islamic Penal Codes relates to ta’zir and preventative punishments. Article 16 defines ta’zir as a “punishment or chastisement whose form or quantity has not been determined by Shariah’ and left to the decision of the judge, such as prison, cash fines, lash. The amount of lashing should be less than in hodoud (see above). Preventative punishments are defined in Article 17 as those “determined by government to maintain order and to observe society’s expedience in relation to breaches of governmental rules and regulations. Such as prison, cash fines, closure of place of employment, removal of permits, deprivation of social rights or living in particular place or places or ban on living in particular place or places and such like”.
Chapter 17 of the laws of ta’zir is devoted to crimes against persons and children. “If a man finds his wife in adulterous position with a strange man and has knowledge that the woman is willing he can kill both of them in that situation. If the woman is reluctant he can only kill the man. The same rules apply to beating and injury as it does to killing” [article 630]. This law not only allows murder of an adulterous woman, it even encourages the act. Yet a similar right for the woman does not exist.
Article 638 relates to crimes against “modesty and public morality”. An addendum says “women who appear without the Shariah’ covering in public will be condemned to 10 days to 2 months prison or a cash fine of 50,000 to 500,000 rials”. It is significant that the penalty for inadequate attention to dress code until 1997 was 74 lashes. As we will see later, it was pressure from women which reduced this penalty.
The sexual inequality is not confined to the Islamic Penal Laws. The same discrimination can also be seen in the law of the Revolutionary Courts, the Law of Penal Procedures etc. Time does not allow me to deal with these [See Shirin Ebadi Women in law in Iran ( vazi’ate hoghughi zanan dar iran), Jameh Salem no 27, August 1996 pp42-50.].
Women in the judicial process
Women as witnesses face another discrimination. Adultery, whether it results in lashing or in stoning to death is “proven by the witness of four just men or three just men and two just women” (article 74). If the adultery only deserves lashes it “can be proven by the testimony of two just men and four just women (article 75). In this section a women is half a man.
Other crimes such as homosexuality, (lavat) to introduce two or more persons for adulterous or homosexual acts (qavvadi), to accuse someone of adulterous or homosexual acts (qazf), drinking alcohol, lesbianism, combat against the Islamic regime (moharebeh), corruptor on earth (mofsed fi-el-arz) [The last two carry a death sentence] are only provable on the testimony of men. The testimony of women, even if corroborated by men, is worthless. This difference between the testimony of men and women is new, and did not exist in pre-revolutionary laws.
The law even goes further and punishes women for bearing witness. Article 79 says “the testimony of women either alone or coupled to that of a just man does not prove adultery. Furthermore, the penalty ( ta’zir) for accusations (qazf) would be executed for the above mentioned witnesses”. Let us imagine a situation where some armed men attacked a group of women to rob and rape them. The women who have witnessed and experienced this crime not only have no right to bear witness, but if they pluck up enough courage to testify, they will be punished with 80 lashes – the punishment for accusation (qazf).
Another way of proving a crime is to take an oath. Here too the women lose out. Article 248 says that deliberate murder is proven by “50 oaths [on the Qur’an]. Those taking an oath must be related to the murdered person and for them being male is a condition”. If no male relative is found then the testimony of a woman who swears on the Qur’an 50 times might be admitted.
Even the knowledge and experience of professional women is half-price to that of men. Article 495: “in case of dispute between the assailant and the victim … blood money will be proven …[with] evidence from two just male specialist or one just male and two just female specialist as to whether the loss of vision is permanent”. If a male ophthalmologist cannot be found, no number of female eye specialists would do! Here it is not just a question of unequal rights, but that knowledge learnt by the two sexes is also valued differently. We have also had women removed from the courts as legal specialists. Their absence in legal procedures and criminal courts means that misogynist and biased views of the law are put into practice with greater severity and force, and occasionally even added to, by male attorneys and judges most of whom are also priests.
The Islamic punishments have encouraged a culture of violence against women, especially within the family and have spilled into violence against children. This has been commented upon by many within the country [See for example Violence against women ( badraftari ba zanan) Dr Fatameh Ghaem Zadeh, Jameh Salem no 28, September 1996 pp56-9.]. The fact that men receive a lighter punishment if they commit violence against women undoubtedly encourages such violence. We saw how women could be killed with impunity during alleged adultery. Stoning to death for adultery, although technically admissible for both sexes, has also been carried out mainly against women.
Newspapers are full of accounts of wives, sisters, daughters, and children murdered and its inevitable corollary: the killing of the husband. The family has become an institution of violence. The psychological effects of these laws, reflecting as they do in the legal world the constant degradation women have to face in government offices, courts, streets etc, that is wherever they come face to face with officialdom, is profound though unmeaSurahble. Perhaps the increasing suicide rate of women is a window to the despair. A number of psychiatrists working in Iran have commented on this [Dr Karim Ezzati Zadeh, Jameh Salem no 28 September 1996 pp52-3].
It is however significant that public opinion has not simply accepted these laws. Even the courts have not implemented them to the full. After 20 years in power, when a limb is being severed or a stoning to death carried out, the regime increasingly tries to keep them out of the limelight. They fear public anger. There have been reports of demonstrations (in for example in Sanandaj) against stoning.
In this resistance women have been at the forefront. The independent press has been critical of the misogynist laws. A majority of religious women, even some who have a stake in government, find themselves alongside secular women in this opposition. For 20 years women have tried to break the rules relating to the dress code ( hejab). It is on public record that a single year of 1993, over 100,000 women were arrested and punished for breaking the hejab laws. Women bravely faced punishments, which till 1997 were more often than not 74 lashes, but refused to submit to a backward, obscurantist and anti-women culture.
Women’s massive presence in the elections to the presidency in May 1997 and again in the municipal council elections this spring in opposition to the reactionary and exclusivist faction of the regime has not been lost on anyone. In their resistance they are joined not only by many secular men, but some religious ones and even a handful of clerics.
Alas there are women, including some Majles (parliament) deputies, who support anti-women issues in law. Last years two such new laws were passed by the Majles. One bans the use of women in newspapers as “instruments” and for sharpening the conflicts between the sexes. This law was aimed at stopping the issues of women and women’s rights appearing in the press. The other was the total segregation of health care for the sexes, which in a country where many specialities have few female doctors and other health care professionals primarily damage women’s health.
Retreats, doubts and tricks
The Islamic Penal Laws are contrary to the International Declaration to Remove Discrimination Against Women and the International Declaration of Human Rights. Significantly they have also drawn protests from many Islamic legal experts – both Shi’ite and Sunni. Some consider the deyat as being subject to the dictates of time.
For this reason the Islamic Penal Laws were never debated by the whole Majles. They were originally ratified by the parliament’s Legal Commission in 1982, and passed by the Council of Guardians for an experimental period of 5 years. They were revised by the same committee in 1991 and again 1997, each time with the blessing of the Council of Guardians for experimental release. On the last occasion this was for 10 years.
These are laws which in their entirety are more in keeping with a society still in the age of barbarism. At a time when most countries are banning the death penalty to have punishments such as cutting of hands, and feet, stoning to death, cutting off of tongues and gouging out eyes on the statutes is totally unacceptable.
Author: Ms Arshadi was a practising lawyer in Iran prior to her forced exile to Europe. She is currently an advocate in France and is active in human rights and especially of the rights of women. She has been especially active in defence of the rights of women in Iran.