Iran’s penal code reserves the harshest punishments for women.

By Shirin Ebadi

Source:
August 5, 2010

The harrowing case of Sakineh Mohammadi Ashtiani—a mother of two sentenced to stoning by an Iranian court for adultery—has rightfully drawn attention to Iran’s draconian penal code, which reserves its cruelest punishments for women. Even Tehran’s new political ally, President Luiz Inácio Lula da Silva of Brazil, has been roused into action, publicly offering Ms. Ashtiani asylum in his country.

Iran has yet to respond formally, and a foreign leader can have no direct bearing on a domestic legal proceeding. But the intervention—a direct appeal to Iranian President Mahmoud Ahmadinejad—demonstrates that the Islamic Republic’s human rights record can’t be divorced from its nuclear diplomacy.

Before the 1979 Islamic revolution, in the years when I worked as a judge in Iran, consensual sexual relations between adults did not figure in the country’s criminal code. But the revolution enacted a version of Islamic law extraordinarily harsh even by the standards of the Muslim world. Under the new regime, extramarital sex was a crime punishable by law. The punishment for a single man or woman guilty of sex outside marriage became 100 lashes; under Article 86, the punishment for a married person became death by stoning.

On the face of things, stoning is not a gender-specific punishment, for the law stipulates that adulterous men face the same brutal end. But Iranian law permits polygamy, so it offers men an escape route. Because Iranian law recognizes “marriages” of even a few hours between men and single women, men can claim that their adulterous relationships are in fact temporary marriages. By exploiting this escape clause, men are rarely sentenced to stoning. Married women accused of adultery have access to no such reprieve.

Iran’s legal codes are studded with inconsistencies and vagaries that make due process virtually impossible. For example, if a man or woman commits adultery while being denied sexual access to a spouse due to travel or other prolonged separation, 100 lashes suffice as punishment. But the law does not specify the duration of acceptable separation, so judges are left with discretion over whether to lash adulterers or stone them.

Stoning can also be reduced to lashes when a married woman has sex with a minor. (Iranian law considers the age of maturation for girls nine, and for boys 15.) Thus a married woman who commits adultery with a 40-year-old man must be sentenced to stoning, but one who commits the same act with a 15-year-old—taking sexual advantage of a minor—is accorded a legal break.

Iranian judges can hand down a stoning verdict without the testimony of a personal plaintiff; if it can be proven that a man or woman has committed adultery, the transgressor can be stoned even if the betrayed spouse offers his or her forgiveness.

Article 105 of the penal code, meanwhile, enables a judge to sentence an adulterer to stoning based only on his “knowledge.” As such, a judge can sentence a woman simply based on her husband’s complaint.

These glaring lapses are only the most obvious reasons why Iran must reconsider its practice of such an ancient punishment, which most Islamic countries long ago discarded in their quest to harmonize Islam with modern norms.

Stoning has long been criticized by Islamic jurists, most notably the Iranian Grand Ayatollah Yousef Saanei. These jurists believe that such punishment was meted out during Islam’s early history—in the 7th-century desert of Saudi Arabia—in accordance with the customs of the time. But the Koran makes no mention of stoning, jurists note, so lighter punishments such as imprisonment or fine can be considered.

The Islamic Republic of Iran has been indifferent to such arguments—and to the outcry of lawyers and activists. Perhaps chastisement from a powerful ally like Brazil will force Tehran to consider whether its adherence to such practices serves its national interests.

Iran tries to limit international knowledge of its brutality by not announcing stoning verdicts publicly. Only slowly and by word of mouth do stoning cases make their way to media in Iran and sometimes elsewhere. A year and a half ago, Iranian media reported that a man was executed by stoning in the city of Qazvin. We cannot know how many Iranians have been killed by such punishment in the past three decades.

Sakineh Ashtiani may become one more. Others are in her position, but how many, no one knows.

Ms. Ebadi, founder of the Center for the Defense of Human Rights in Iran, won the Nobel Peace Prize in 2003.