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The Execution of Women in Iranian Criminal Law: an Examination of the Impact of Gender on Laws Concerning Capital Punishment in the New Islamic Penal Code Maryam Hosseinkhah Women’s Rights Activist and Writer May 7, 2012 Iran Human Rights Documentation Center: 129 Church Street Suite 304 New Haven, CT 06511 USA 1 Table of Contents An Examination of the Impact of Gender on Laws Concerning Capital Punishment in the New Islamic Penal Code ………………………………………...3 The History of Capital Punishment in the Iranian Penal System…….……….…...3 The Establishment of the Islamic Republic and Issuance of Execution Verdicts According to Shari’a…………………………………………………………………..5 Adoption of the ‘New Islamic Penal Code:’ Reassessment of Penal Laws with No Fundamental Adjustments……………………………………………………………6 Gender Discrimination in the New Islamic Penal Code……….……………………7 Ages of Criminal Responsibility, the Most Prevalent Form of Gender Discrimination in the Code…………………………………………………………...7 Convictions Carrying the Death Penalty……….…………………………………..14 1. Sexual Relationships Outside of Marriage 1.1 Adultery……….…………………………………………………...15 1.2 Homosexuality……………………………………………………..20 2. Muharibih [Waging War Against God]…..………………………………23 2.1 Sexual Assault Against Female Political Prisoners……………..26 2.2 Execution of Pregnant Women Contrary to Law and Shari’a...26 3. Baghi [Armed Rebellion] and Ifsad-i Fil Arz [Sowing Corruption on Earth.………………………………………………………………………….27 3.1 Execution of Prostitutes under Ifsad-i Fil Arz ………………….27 4. First-degree Murder……………………………………………………….29 5. Sab-i Nabi [Insulting the Prophet] and Robbery………………………...31 6. Charges Concerning Drugs…………………………………………...…..31 2 An Examination of the Impact of Gender on Laws Concerning Capital Punishment in the New Islamic Penal Code In recent years, most campaigns against death sentences in Iran have pertained to death sentences against women. Though public opinion in Iran generally supports capital punishment, we have witnessed frequent efforts in the past decade by human rights activists, journalists, artists, and defense lawyers to save women sentenced to death. Notwithstanding the fact that the number of women executed in recent years has been fewer than men, death sentences against men have attracted less attention from the public and civil activists than those against women with similar convictions. This special attention is perhaps rooted in the circumstances of the women sentenced to death. Such circumstances include, on one hand, the social status of these women, and on the other, gender bias and discrimination embedded within the penal code and civil laws pertaining to capital punishment. As such, an analysis of the penal laws with particular attention and sensitivity to gender issues could be a step towards a better understanding of this phenomenon. Currently, the Islamic Penal Code (1991) is the basis for issuance of verdicts in criminal cases in Iran. However, with ratification of the revised Code, i.e., the Islamic Penal Legislation by the Islamic Consultative Assembly and subsequent approval of the said legislation by the Council of Guardians on 28 Dey 1390 (18 January 2012), and given that the Islamic Penal Code (1991) is only valid until the end of 1390 (March 2012), the newly approved legislation will soon, following due administrative processes, replace the current ‘Islamic Penal Code.’ While this commentary looks at the history of capital punishment and the enforcement of such verdicts in the Iranian judicial system, it will also review and examine various aspects of the execution of women under the new ‘Islamic Penal Legislation’ and compares it to the [outgoing] ‘Islamic Penal Code.’ The History of Capital Punishment in the Iranian Penal System A cursory review of the history of penal laws in Iran reveals that although after the victory of the Arabs over the Sassanid Empire, execution orders were issued based on Islamic laws and in Shari’a courts, it was customary during certain dynastic periods, including the Mongols and towards the end of the Qajar era, that civil judges would issue such orders based on the instructions of the rulers and/or custom.1 During the Qajar era, crimes such as murder and sexual assault—which both carried the death penalty—were reviewed by civil courts. However, during the ministry of Amir Kabir during the 1 Bertold Eshpoler, History of Moguls in Iran, translated by Mahmud Miraftab, Entesharat-e Elmi va Farhangi [Scientific and Literary Publications], 3 rd Ed., Tehran, 1386 [1989], p. 377 3 reign of Nasser-ed-din Shah Qajar and the reforms implemented thereon in both Shari’a and civil courts, the rate of executions declined. 2 The first judicial restructuring in Iran after the victory of the Constitutionalists was based on the law of ‘Principles of Judicial Systems,’ ratified 21 Rajab 1329 (Lunar calendar), 26 Tir 1290 (Solar calendar) [18 July 1911]. Based on this system, the task of adjudicating crimes, which according to Islamic laws carried punishments of execution or Qisas [retribution], was given to a ‘Special Criminal Court’—a Shari’a court. The verdicts issued by this court at the time were final and binding, and non-appealable. 3 During this period, rulings were issued under both Shari’a and civil codes, with the Shari’a judges maintaining supremacy. During the reign of Reza Shah Pahlavi, fundamental changes in the Iranian judicial system ensued, including the separation of religion and state, inevitably affecting judicial matters, and leading to changes in certain laws. Notwithstanding the changes, based on Islamic laws, crimes such as murder, adultery, and sodomy still carried the death penalty. However, as a result of further amendments aimed at the secularization of the judicial system, some of these laws were changed. Ali Akbar Khan-i Davar (1885-1936), Minister of Judicial Affairs [in the government of] Reza Khan announced the establishment of the new Ministry of Justice on 23 Ordibehesht 1306 [14 May 1927], the Shari’a courts outside the aegis of the Ministry of Justice were completely shut down, and those under the auspices of the Ministry would solely review claims concerning marriage and divorce. Davar further announced that henceforth judges could not use their religious ideologies as the basis for their rulings, and that verdicts must be based on codified laws sanctioned by the Ministry of Justice. 4 For instance, based on Article 207 of the General Penal Code [1926]: “In the cases of sodomy, adultery with married women, incest, and sexual assault, should the crime be proven through Shari’a criteria” the penalty is execution. This law, however, was amended in Ordibehesht 1307 [1928]. Based on the amended law, adultery with married women, for instance, carried six months’ to three years’ imprisonment, and was only legally prosecutable pending private a complaint [with standing], i.e., complaint by a husband or a wife. In 1931, pursuant to Article 22 of the [Islamic] Shari’a courts, all laws and regulations pertaining to judgments based on Shari’a law—[in effect] from 1329 (Lunar calendar) [1911] until 14 2 The British Ambassador to Iran at the time wrote to Palmerston, that: “In all fairness, during the reign of Muhammad Shah and two governments of Amir Nezam Amir Kabir, death penalty rarely occurred; only murderers suffered such fate.” Letter by Mrs. Scheel to Palmerston, dated 15 January 1850—Fereydoun Adamiyat, Amirkabir and Iran, 7th Ed., Entesharat-e Kharazmi [Kharazmi Publications], Tehran, 1362 [1983], p. 316. Also, Mohammad Zarang, Tahavol-e Nezam-e Qaza’i Iran, az Mashroote ta Soghoote Reza Shah [Evolution of the Iranian Judicial System—from Constitution to the fall of Reza Shah], Islamic Revolutionary Documentation Centre, Tehran, Autumn 1381 [2002], 1 st Ed., Vol. I, p. 113 3 Zarang, Mohammad, Tahavol-e Nezam-e Qaza’i Iran, as Mashroote ta Soghoote Reza Shah, Islamic Revolutionary Documentation Centre, Tehran, Autumn 1381 [2002], 1 st Ed., p. 170 4 Agheli, Bagher, Davar va Adliyeh [Davar and the Judiciary], Entesharat-e Elmi [Scientific Publication] 4 Khordad 1308 [4 June 1929] (Solar calendar)—were abrogated and replaced by the Shari’a Courts’ Precedents and Codes (19 Azar 1310) [11 December 1931]. 5 Despite efforts during this period to secularize the penal code, executions remained a dominant form of punishment under the law. 6 Such verdicts were issued, predominantly in security offences 7, murders 8, and in some cases (at the discretion of the courts and based on circumstances) for armed robbery and conspiracy.9 Many other crime categories that previously carried the death penalty in Shari’a courts, however, underwent amendments, and children under 18 also became fully exempt from capital punishment. 10 Amendments to the General Penal Code (23 Dey 1304) [13 January 1926] and further modifications thereof—up until 1973—removed the death penalty for sexual offences. Under the provisions of the amended Code, punishments for offences such as ‘sexual assault on women through forcible means and threat’ and ‘sodomy’ carried sentences of three to 10 years of imprisonment 11 ; and married men or women who had sexual relations outside marriage would be sentenced to six months to 3 years of correctional imprisonment. 12 The Establishment of the Islamic Republic and Issuance of Execution Verdicts According to Shari’a Subsequent to the victory of the Islamic Revolution in 1979, Islamic precepts became the basis of judgments in criminal cases. Even though the first Islamic Penal Code, known as the ‘Law of Hudud and Qisas’ [limits and retribution], was ratified 3 Sharivar 1361 [25 August 1982], the courts issued verdicts based on Islamic fatwas [religious decrees] and Islamic principles even prior to adoption of the Islamic laws, particularly in cases leaning towards the death penalty. During this period, the courts were divided and in disagreement over the question of which laws governed. On one hand, laws prior to the revolution, such as the General Penal Code (1926) and its amendments (1973) were referenced, and on the other, and in light of Article 167 of the Constitution (1979) 13 , the courts were given discretion to base their rulings on Shari’a principles and Islamic precepts.

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