Analyses Islamic punishment(hodoud) in Iranian Islamic criminal code
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Under Article 13: HAAD is a punishment that its degree and type is not been specified in the SHAR’A.
HAAD divided into:
Rape [(sexual intercourse take by force) & incest (sexual intercourse with intimate woman) ZINA]
Sodomy [(anal intercourse) LAVAT]
Lesbianism [(female homosexuality) MOSAHEGHEH]
Pimping [manage a prostitution business (GHAVVADI)]
Sexual Malicious Accusations (GHAZF)
Intoxication [drunkenness (MASTI)]
Civil Unrest [warfare and corruption on earth (MOHAREBEH VA EFSADE FEL ARZ)]
Theft [robbery (SERGHAT E HAADDI)]
Rape & adultery & incest
Under Islamic criminal law we have three kinds of sexual relation: 1) rape: physically force another person to have sexual intercourse 2) incest: sexual intercourse with intimate woman like mother, sister… 3) adultery: sexual intercourse that adulterer & adulteress have wife or husband.
For make easier, in this article I don't tell between them; in Article 64:" Adultery shall be punishable (subject to HAAD) when the adulterer or the adulteress is of age, sane, in control of his or her action and cognizant of the illicit nature of his or her act." Legislator define ZINA; Ways to prove adultery in court are: 1) confession this way state in Article 68: "If a man or a woman repeats his or her confession of adultery four lashes before the judge, he or she shall receive the designated punishment, but if he or she repeats his or her confession fewer than four lashes, the punishment shall be at the judge’s discretion." 2) Testimony this way state in Article 74: "Adultery, whether punishable by flogging or stoning, may be proven by the testimony of four just men or that of three just men and two just women." And Article 75: "If adultery is punishable only by flogging it can be proven by the testimony of two just men and four just women." Also I must say according to Article 76: "The testimony of women alone or in conjunction with the testimony of only one just man shall not prove adultery but it shall constitute false accusation which is a punishable act." the testimony of women alone or in conjunction with the testimony of only one just man shall not prove adultery, because Islamic jurisconsult say women are sentiment and they can think well so can't accept their testimony with out men in important cases and in these cases their problem in think eliminate with increase their number for testimony, so two woman are equal with a man.
Types of Punishments for Adultery state in 8 articles so I statement and explain them. Article 82: The penalty for adultery in the following cases shall be death, regardless of the age or marital status of the culprit: (1) Adultery with one’s consanguineous relatives (close blood relatives forbidden to each other by religious law); (2) Adultery with one’s stepmother in which the adulterer’s punishment shall be death; (3) Adultery between a non-Muslim man and a Muslim woman, in which case the adulterer (non-Muslim man) shall receive the death penalty; (4) Forcible rape, in which case the rapist shall receive the death penalty.
Article 83: Adultery in the following cases shall be punishable by stoning: (1) Adultery by a married man who is wedded to a permanent wife with whom he has had intercourse and may have intercourse when he so desires; (2) Adultery of a married woman with an adult man provided the woman is permanently married and has had intercourse with her husband and is able to do so again. Note: adultery of married woman with a minor is punishable by flogging.
I must say adultery of married woman with an insane man is punishable by stoning;
But adultery of married man with an insane woman is punishable by flogging; here we see difference between men and women, Islamic jurisconsult say if woman adultery with insane man, because the man is adult may inseminate her so her punished her by stoning; but I think just way is one punishment for man and woman. Article 84: Old married adulterers and adulteresses shall be flogged before being stoned.
Article 87: if a married man commits adultery prior to consummation [sexual intercourse], he will be sentenced to penance by lashes, shaving his hair and banishment for one year. But marriage enough for woman, doesn't need to intercourse and they condemn to stoning.
Article 88: The punishment for an unmarried adulterer or adulteress shall be one hundred lashes.
Article 90: If a man or a woman has committed the act of adultery several lashes and has been punished after each act, he or she shall be put to death following his or her fourth act of adultery.
Article 94: if there is no hope for the recovery of the sick persons and the judge deems it appropriate for penance to be executed, a bunch of twigs or scourges consisting of one hundred scourges or twigs will be struck only once to the body of the condemned, although not all of the twigs or scourges may strike the body.
I must say under Islamic criminal law it called ZEGHS.
Article 95: if a person who is condemned to penance becomes an apostate [a born Muslim who changes his/her religious] or insane, the penance will not be valid.
Quality of Punishment
Article 100: The flogging of an adulterer shall be carried out while he is standing upright and his body bare except for his genitals. The lashes shall strike all parts of his body–- except his face, head and genitals-- with full force. The adulteress shall be flogged while she is seated and her clothing tightly bound to her body.
Article 102: The stoning of an adulterer or adulteress shall be carried out while each is placed in a hole and covered with soil, he up to his waist and she up to a line above her breasts.
Jurisconsult says about reason of this article, that because woman breasts are salient she must placed in a hole and covered with soil up to her breasts; but I must say just way is both of them placed in a hole up to their breasts.
Article 103: if during stoning the stoned person flees from the pit and his/her adultery was proven by his/her confession, he/she will not be returned to the pit. But if his/her adultery was proven by the testifying of the witnesses, he/she will be returned to the pit for the stoning to be executed.
Note: if person who is sentenced to lashes flees, he/she will be returned for execution of the penance [whether the adultery was proven by his/her confession or testimony of witnesses].
Article 104: the stone shouldn't be big enough to kill the person by one or two strike, neither should it be so small that it can't called a stone.
Cause of legislation of this article is suffered of guilty.
Sodomy
Article 108: Sodomy is sexual intercourse with a male.
Article 109: In case of sodomy both the active and the passive persons will be condemned to its punishment.
Article 110: Punishment for sodomy is killing; the SHARI'A judge decides on how to carry out the killing.
Killing define in FIGH as kill with sword; throw of mountain, demolish wall on guilty and burn this one may attach to others.
Article 112: If a mature man of sound mind commits sexual intercourse with an immature person, the doer will be killed and the passive one will be subject to TA’ZIR of 74 lashes if not under duress.
Article 113: If an immature person commits sexual intercourse with another immature person, both of them will be subject to TA’ZIR of 74 lashes unless one of them was under duress. Articles 112 and 113 are most wondrous that child punished if they commit sodomy whereas article 49 state "minors, if committing an offence, are exempted from criminal responsibility. Their correction is the responsibility of their guardians or, if the court decides by a center for correction of minors."
Ways of proving sodomy in court
Confessing and testimony these ways state in two articles:
Article 114: By confessing four lashes to having committed sodomy, punishment is
Established against the one making the confession.
Article 117: Sodomy is proved by the testimony of four righteous men who might have observed it.
Article 119: Testimony of women alone or together with a man does not prove sodomy.
Crimes dependent to sodomy
Article 121: Punishment for TAFKHIZ (the rubbing of the thighs or buttocks) and the like committed by two men without entry, shall be hundred lashes for each of them.
Article 122: If TAFKHIZ the like are repeated three lashes without entry and punishment is enforced after each time, the punishment for the fourth time would be death.
Article 123: If two men not related by blood stand naked under one cover without any necessity, both of them will be subject to TA’ZIR of up to 99 lashes.
Article 124: If someone kisses another with lust, he will be subject to TA’ZIR of 60 lashes.
Lesbianism (MOSAHEGHEH)
Article 127: MOSAHEGHEH (lesbianism) is homosexuality of women by genitals.
Article 128: The ways of proving lesbianism in court are the same by which the homosexuality (of men) is proved.
Article 129: Punishment for lesbianism is hundred (100) lashes for each party.
Article 131: If the act of lesbianism is repeated three lashes and punishment is enforced each time, death sentence will be issued the fourth time.
Article 134: If two women not related by consanguinity stand naked under one cover without necessity, they will be punished to less than hundred (100) lashes (TA’ZIR). In case of its repetition as well as the repetition of punishment, hundred (100) lashes will be hit the third time.
These articles define lesbianism and its condition and ways of prove it in the court.
But there is one grotesque article about prove lesbianism legislator state in Article 128: The ways of proving lesbianism in court are the same by which the homosexuality (of men) is proved, when this crime only committed with female and their testimony can't prove it how prove it???!!!
Pimping (GHAVVADI)
Article 135: Pimping means that someone brings two individuals together or puts them in contact with each other for fornication or homosexuality.
Article 136: Pimping is proved by two confessions if the confessor is mature; of sound mind has free will and intention.
Article 137: Pimping is proved by the testimony of two righteous men.
Article 138: Punishment of a man for pimping is seventy (70) lashes and exile from the place of (his) domicile for a period of 3 months up to one year and punishment of pimping by a woman is seventy five (75) lashes only.
Difference between man & women in this article emanate than Islamic order about women that they must stay at home and doesn't visited in society so Islamic legislator try to contemplate it.
Sexual Malicious Accusations (GHAZF)
Article 139: GHAZF (malicious accusation) means that someone associates fornication or sodomy with a certain person.
Article 140: Punishment for GHAZF (malicious accusation) is 80 lashes for a man or woman.
Note: execution of penance for false accusation is subject to the request of the accused
Article 146: false accusation will result penance if the accuser [i.e. the person who accuses] is mature, sane at liberty and intensive and the accused is also mature, sane, Muslim and righteous. If the accuser and accused don't have one of these conditions, penance for false accusation will not be proven [should have been false accusation will not be proven]
Article 147: if a discerning minor falsely accuses another person, by the decision of the judge he/she will be subject to corrective measurement. If a mature and sane person falsely accuses a minor or a non-Muslim he/she will be sentenced to up to seventy four lashes.
Article 149: if a person falsely accuses his/her relatives, he/she will be penance.
Note: if a father or parental grandfather falsely accuses his son or grandson, he will receive punishment according to the TA'ZIR [up to seventy for lashes].
Articles 153: false accusation will be proven by two confessions or by the testimony of two just men.
Article 157: if a person falsely accuses other people on several occasions and he/she is penance after each occasion, on the fourth occasion he/she will be executed.
Article 164: the right or request for execution of penance will be transferred to all heirs except wife or husband. Every one of the heirs can request for the execution of penance, although the rest of the heirs have pardoned [the accused].
Intoxication (MASTI)
Intoxication means altering of one's mental or physical state usually as a result of ingesting some substance; of euphoria, exhilaration; poisoning; under Islamic criminal law intoxication punished by HAAD.
Ways of prove
Article 168: if a person confesses twice to consumption of intoxicants, he/she will be penance.
Article 170: consumption will only be prove by testimony of two just man.
Article 171: if one of the two just men testifies that a person has consumed an intoxicant and the other testifies that the person has vomited an intoxicant, the penance is proven.
Article 174: The punishment for intoxication is 80 lashes for both men and women.
Article 176: When flogging is carried out, the man being flogged shall be in a standing position and be bared except for his genitals, whereas the woman being flogged shall be seated and her clothing tightly bound to her body.
Note. The face and head and genitals of the condemned shall not be struck by the lashes during flogging.
Article 179: if a person consumes an intoxicant several times and has received the penance after each consumption, on the third occasion he/she will be executed.
Article 180: if the condemned becomes insane or apostate, the penance will not be void. [I.e. it will not be executed]
Civil Unrest [warfare and corruption on earth (MOHAREBEH VA EFSADE FEL ARZ)]
Islamic legislator define warfare and corruption on earth in article 183"any person resorting to arms to cause terror, fear or to breach public security and freedom will be considered as a MOHAREB and be corrupt on earth.
Note 1: a person who draw arms on people but due to inability doesn't cause fear isn't a MOHAREB.
Note 2: if a person draws arms on one or several specific persons because of personal enmities, [he/she] will not be regarded as a MOHAREB.
Note 3: there is no difference between fire arms and cold weapons."
Ways of prove
Article 189: propagation of MOHAREBEH and corruption on earth will be proven by one of following methods:
A) By confessing once provided the confessor is mature, sane and his confession is made intentionally and at free will.
B) Testimony of two just man.
Note 1: testimony of people who have been attacked by the MOHAREBSAND such testimonies which are in support of each other aren't acceptable.
Note 2: if out of some people who have been attacked by the MOHAREBS, some testify that no harm was done to them, their testimonies will be accepted [as opposed to testimonies] of other.
Penance for MOHAREBEH and corruption on earth
Penance for MOHAREBEH state in article 190, this article state: "penance for MOHAREBEH and corruption on earth is one of the following four things:
1) execution
2) he/she shouldn't remain crucified for more than three days, but if he/she dies within three days, he/she can be taken down [from the cross]
3) if he/she remains alive after three days [he/she] should not be killed
4) banishment"
Under Islamic law judge has the discretion of choosing one of the above four penance whether that has killed or injured someone or has taken someone's property or has committed none of these.
Article 195: crucifixion of a MOHAREB will be executed as follows: [I.e. if crucifixion is the sentence, executing it will be as follows].
A) method of tying doesn't kill him/her
B) He/she should not remain crucified for more than three days, but if he/she dies within three days, he/she can be taken down [from the cross].
C) If he/she remains alive after three days shouldn't be killed.
D) Amputation of right hand and left leg will be by the same method as it is for "penance of theft".
Theft (SERGHAT E HADDI)
Theft and conditions for come off it and ways of prove state with legislator in seven articles.
Define of theft state in article 197:"theft is stealing someone else's property secretly. "
Condition of theft state in article 198: 1) the owner has placed the property in enclosure [secure place]; I must say owner himself/herself not his/her proxy, 2) the theft either individually or in association with some-one else has broken the enclosure [secure place]; this bond means if (a) broken the enclosure and (b) steal property this isn't theft with hard punishment(SERGHAT'E'HADDI) but it can be another type of theft (SERGHAT'E'TA'EZIRI); [there are two type of theft under Islamic criminal law theft, has these conditions called (SERGHAT 'E' HADDI) and other type is theft that hasn't these conditions called (SERGHAT 'E' TA'ZIRI).
Enclosure is a place where the property in placed in order to be secure from theft.
3) The theft is not the father of the owner. This bond issue from story of Islamic messenger (MOHAMMAD) and he said "you and your property belong to your father." According this story if father or parentally grandfather steals their children property they don't condemn to punishment of "SERGHAT 'E' HADDI".
Ways of prove
The theft which will result in penance will be proven by one of the following ways:
A) Testimony of two just men
B) Two confession pf thefts to the judge provided the confessor is mature, sane, free and purposeful.
C) Knowledge of judge.
Note: if the confession to the judge is made once by the thief, the thief should return the property to its owner but he will not be penance.
The punishment for theft is as follows: [under article 201]
A) On the first occasion amputation of the full length of four fingers of the right hand of the thief in such a manner that the thumb and palm of the hand remain.
B) On the second occasion amputation of the left foot in such a manner that half of the sole and part of the place of anointing [during ablution] remain.
C) On the third occasion [the punishment] is life imprisonment.
D) On the fourth occasion [the punishment] is execution even though [the fourth] theft was committed in prison.
Note 1: prior to the execution of the punishment, multiple thefts will be considered as one theft [I.e. if the previous thefts have not been punished they will be disregarded and only the current theft will be punished.
Article 202) if the fingers of the theft's hand are amputated and after the execution of the punishment, it is proven that he had previously committed a theft, his/her left foot will be amputated.
This sentence issue from KORAN, jurisconsults says because most of thefts occur with hand and the best way for prevent theft if amputate hand and because most of people do most their works with right hand so Islam said amputate it.
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