۱۳۹۰ شهریور ۱۹, شنبه
Breaking up the Taboos
Breaking Taboos On the 31st of August, I took part in a conference on gay rights in Cardiff, Wales. The Conference was organized on the Gays Rights Resolution, which was passed by the UN Security Council in June 2011. The resolution, introduced by South Africa, is the first-ever UN resolution on the human rights of lesbian, gay, bisexual and transgendered persons. I, along with two other colleagues, participated in a panel on the legal and societal situation of homosexuals in Iran. Even though not being a homosexual myself, I felt a great need to take part in this conference for breaking taboo. In 2007, President Ahmadinejad of Iran, speaking at Colombia University, denied the existence of homosexuals in Iran. At that time, I was doing my Master's in Law at McGill University (Canada). One of the courses in which I had enrolled, was on “Law and Social Diversity”. For the final exam, we had to write about one minority in our society. I chose homosexuals, as I strongly believed they were the most invisible minority in Iran; A minority that are not only discriminated against by the government and in various laws, but also overlooked by human rights activists. Whereas we have many brave activists in the realm of ethnic and religious minorities and women and children’s rights, there are very few homosexual activists. Even outside Iran, where there is no official persecution of homosexuals, not many voices are heard on the rights of homosexuals. Below, is my presentation at the Cardiff Conference: Introduction After the 1979 revolution, the political and legal system of Iran changed drastically. The Islamization of laws became one of the main objectives of the new government. Following the new policy, Iranian constitution was ratified in 1979 (and was amended in 1989) . According to Article one of the constitution, the form of government of Iran is an Islamic Republic. The Official religion of the country is shia of the twelver jafari school. According to article four: “All civil, penal financial, economic, administrative, cultural, military, political, and other laws and regulations must be based on Islamic criteria.” The constitution assigns the twelve members of the Guardian Councils who are appointed directly or indirectly by the Supreme leader as judges in this matter. Consequently, previous laws were abolished and new laws, which were considered more compatible with alleged Islamic principles, were put in place. Among these laws were Family Code and Penal Code. Penal Code After the 1979 Revolution The Islamic Penal Code was ratified immediately after the establishment of the Islamic Republic of Iran. The Code initially was ratified temporarily, for a period of five years. Although it has been extended repeatedly, the legal status of the Islamic Penal Code is considered "temporary". Below, three main points of difference between the previous Iranian Penal code and the existing penal code would be elaborated. These points are: 1) Categorizing punishments into five main groups. 2) Changing in the age of criminal responsibility. 3) Criminalizing acts, which were not considered as crimes within the previous penal Code. 1) Categorizing Punishments into five Main Groups The Islamic Penal Code is based on the sharia. Consequently, punishments within the new Criminal Code were divided in to five main categories within the traditional sharia, which included: 1) had; 2) ghesas; 3) diyeh; 4) tazir, 5) deterrent punishments. 1) had ( a crime against the divine will ) is a punishment that its degree and type is been specified under the sharia. 2) Ghesas (retaliated punishment) is a punishment that should be equal to the crime. 3) Diyeh (blood money) is a financial punishment sentenced by a judge. 4) Tazir is a punishment that its degree and type is not been specified in the sharia and it is up to the decision of the judge. Tazir can be in the form of imprisonment, fines, or flogging (it should be less than had) . 5) Deterrent punishment is a punishment that is imposed by the government in order to maintain the public order. It can be in the form of imprisonment, fine or flogging (it should be less than had). The punishment on sodomy and lesbianism mainly belong to the first category of punishments (haad). 2) Changing in the Age of Criminal Responsibility Before elaborating on the age of criminal responsibility, the author finds it necessary to provide a general overview of the definition of the child within the Iranian Legal system. Definition of the Child Different age for childhood is envisaged within Iranian laws. For example the age for marriage is thirteen for girls and fifteen for boys , the age for voting is sixteen for both girls and boys and the age for assuming military service and assuming financial responsibility is eighteen . Ironically, the age for criminal responsibility is of the lowest. According to article 49 of the Criminal Code, the age of criminal responsibility is the age of maturity. According to Article 1210 of Civil Code the age of majority for boys is fifteen lunar years and for girls nine lunar years. Taking into consideration that the lunar year is ten days less than the solar year , fifteen years would count as fourteen years and seven months of a solar year. The same rule applies for the girls. This is not only discriminatory against girls, but is also low by international standards, meaning that a girl of nine years old and a boy of fifteen years old, if committing a crime will be treated as an adult offender. Hence, a fifteen-year-old boy could face execution if it is proved at the court that he was engaged in a wilful homosexual activity. 3) Criminalizing acts which were not considered as Crimes within the Previous Penal Code: Finally the most important change relevant to our discussion is that many acts, which were not considered as crimes within the previous penal code, were criminalized with severe punishments in the new code, including having sexual relationship between partners of same sex. This paper, examines the situation of homosexuality within Iranian Penal Code. Sexual orientation within Iranian laws is divided into three main categories: heterosexuality, homosexuality and transsexuality. Heterosexuality is the only accepted form of sexual orientation within the Penal and Civil Code. Within the Civil Code, marriage is only acknowledged as an institution between opposite sexes. Homosexuality is considered as a crime resulting to severe punishment of death or flogging and transsexuality is considered as a disorder. Homosexuality between males, if proved at the court results in the death penalty of both partners. Homosexuality between women, results in the one hundred lashing of each partner.. Criminalizing Act of Homosexuality within Iranian Penal Code: Homosexuality within the Penal Code is divided between homosexuality of men or sodomy (lavaat) and homosexuality of women or lesbianism (mosaahegheh). First, homosexuality of men would be examined. A. Homosexuality of Men or Sodomy (Lavaat) 1. Definition Sodomy is defined as sexual intercourse with a male. 2. Punishment The punishment for sodomy within Iranian Penal Code is death, if both partners are mature of sound mind and free will. The judge would decide on the way of killing (including beheading, stoning or dropping from a high cliff). Regarding the act of sodomy between a mature man of sound mind and immature person, the law assigns the death punishment for the doer and seventy-four lashes for the immature culprit. In a case where an immature person commits sexual intercourse with another immature person, both of them will be subject to seventy-four lashes unless it is proved that one of them was under duress. 3. Ways of Proving Sodomy in the Court According to the Penal Code, sodomy can get proved either through the four-time confessions of the doer or through the testimony of four righteous male witnesses who have seen the acts themselves. Regarding the witnesses, two notes should be taken into consideration: 1. If less than four righteous men testify, not only sodomy would not be proved, but also the witnesses could be condemned to punishment for qazf (malicious accusation). 2.Testimony of women alone or together with a man does not prove sodomy. According to the above-mentioned article, proving sodomy is very hard and it requires four male witnesses who had actually witnessed the act themselves. It has been argued that the strict rule of procedure within the sharia was made in order to prevent the applying of the punishment in practice. However, the Iranian Penal Code adds another article in which it allows the sharia judge to act according to his own knowledge. Article 120 states: “The sharia judge may act according to his own knowledge which is derived through customary methods.” Hence, even if four male witnesses are not provided, the judges still have the discretion to make a death verdict. 4.Acts of Homosexual Nature Other than Sodomy Acts other than sodomy have also been criminalized under the name of tafkhiz. Tafkhiz is defined as: “ the rubbing of the thighs or buttocks and the like committed without penetration” and its punishment is one hundred lashes for each party. However, if tafkhiz and the like acts are repeated and punishment is enforced after each time, the punishment for the fourth time would be death. The mere presence of two naked men (who are not related by blood) under one cover without any necessity is also punishable to up to ninety-nine lashes. Kissing with lust is also subject to sixty lashes. B. Lesbianism (mosaaheqeh) 1. Definition Lesbianism (mosaaheqeh) is defined as sexual relationship of women by genitals . 2. Punishment Punishment for lesbianism is hundred lashes for each party, if they are mature, of sound mind and free will and intention. However, if the act of lesbianism is repeated three times and punishment is enforced each time, death sentence would be issued at the fourth time. If two women who not related by consanguinity stand/ lay naked under one cover without necessity, they will be punished to less than hundred lashes. 3.Ways of Proving: The ways of proving lesbianism in the court are the same ways by which the homosexuality (of men) is proved . Hence, the four time confessions of the doer or the testimony of four male witnesses is required. It should be noted that even in lesbianism, where both parties are female, the testimony of women is not accepted . C. Transsexuality The situation of Transsexuals, is quite different from homosexuals. Transsexuals are considered as disordered and hence are suggested to go under sex-change operation. The government also helps with the payment of these operations. Trans-sexual still face societal problems. Trasnssexuality was not addressed officially, until the 1979 revolution. After the 1979 revolution, faced with the question of sex-change operation, Khomeini issued a fatwa ( religious legal opinion) which permitted the sex-change operation in Iran and offered this as a solution for trasnsexuals. At the present, Iran has one of the highest rates of the sex-change operation in the world. The government helps with some of these operations. Conclusion In this paper, the issue of sexual orientation within Iranian laws was examined. The only accepted form of sexual orientation is heterosexuality both within Civil and Penal Codes. Many laws were changed after the 1979 revolution and following the Islamization of law, including the penal Code. Homosexuality has been criminalized within the current Penal Code resulting to the severe punishment of death or flogging. It has been argued that the incrimination of homosexuality has been made under the name of Islam. However, when speaking about Islamic law, one needs to take into consideration two distinctions, which are mainly the distinction between the sacred part of religion (sharia) and the non-sacred and changeable part of it (fiqh) and the distinction between the contractual rulings and the devotional rulings. 1. The distinction between sharia and fiqh: Sharia literally means “way and path” and is God’s law in its abstraction. Fiqh, on the other hand, literally means “understanding” and is the human’s concrete understanding and extracting of legal rulings from Islam’s main and secondary sources. Islam’s main sources consist of the Quran, sunna (the practice of the prophet Mohammad), ijma (consensus) and aghl (reasoning). In other words, while sharia refers to the sources, fiqh refers to the method and is only an attempt to understand the sharia. Since fiqh is the result of human endeavor like any other system of jurisprudence is temporary and local, whereas sharia is universal and sacred. This distinction is very crucial as fiqh is often mistakenly equated with sharia. Unfortunately sometimes this equation is made intentionally by the authoritarian regimes in order to silence the opponents of discriminatory laws against women, children, religious and sexual minorities and others. 2.The second distinction is the distinction made between two sets of rulings (contractual rulings versus devotional rulings): a. Contractual Rulings are the rulings, which govern affairs between the people, and since affairs between people change with the time and place, these rulings also change with time and place. b. Devotional Rulings: This set of rulings governs matters between the individual and his Believer. Since the relation between the believer and his Creator is not dependent on the time and place these rulings do not change with the time and place either (the example of this group can be rulings on praying and fasting). Criminal law is also among the first set of rulings since it regulates affairs between the people or between the people and the state and hence inevitably changes according to the necessities of time and place. For this reason and based on the distinction made by the distinguished Islamic scholars, the author concludes that punishing homosexuals merely because of their sexual orientation cannot be justified under the name of Islam anymore. As I discussed earlier, transsexuality is considered as a disorder. However, Transsexuals are recommended to go under sex-change operation without considering the societal and psychological problems. The mere offering of sex-operation has proved not to be helpful. Hence, other factors should be taken in to consideration, which would be the scope of another paper.