Constitutional Gender Violence: Stoning in Iran

Introduction
Stoning is a form of execution in which a group of people throw stones at a person until they die. It still happens in many Muslim countries, mostly for the punishment of adultery and cheating.

In most Muslim countries, the primary sources of law are the Quran (the holy book) and Hadith (the collection of traditions and sayings of the prophet Muhammad and other Imams). Stoning is not even mentioned in the Quran and it comes from Hadith. Some believe that the verses of the Quran about stoning were written on a piece of paper before a goat ate it, some believe it never existed in the Quran and it came from the Jewish community. Legend has it that two people who had committed adultery asked the prophet, Muhammad, to stone them to death because it was their tradition (WikiIslam, 2013).

In Afghanistan, even though the law was abolished after the overthrow of the Taliban, it is still being practiced in some areas that are controlled by them. The last public case was in July 2012 that a 21-year-old woman was stoned to death in front of a hundred and fifteen cheering men; she was accused of committing “moral crimes”. Before that and in November 2011, a mother and daughter were stoned to death (Women-living-under-Muslim-laws, 2013). And in 2005 a married woman who was accused of adultery was executed by stoning. This might not happen in public anymore but there is no guarantee that it does not happen in small communities. like Iran, Afghanistan is a country in which religion is politicized and anyone can easily be convicted for blasphemy. unlike Iran, the cases of stoning in Afghanistan did not cause international campaigns and great interferences of international bodies, and women’s organizations and activists in Afghanistan are left alone (Women-living-under-Muslim-laws, 2013).

In 2008, a 16-year-old girl was stoned to death in Iraq after eloping with a man she wished to marry, but her family disapproved of the union. In Iraq, stoning is not legally sanctioned, but people do it as forms of honor killings in tribes and the government does not intervene. Pakistan is another country where stoning is legal because of the harsh interpretation of Islamic law that was entered into the criminal code. In 2013 a woman was stoned to death by her relatives on the order of a tribal court, for having a mobile phone! Pakistan’s legal system does not prevent this from happening and allows in in the law. Qatar, Saudi Arabia, United Arab Emirates, and Yemen are the same as Pakistan in this matter and include stoning as a punishment in the law.

Stoning is also allowed in the 12 Northern states of Nigeria that adopted Sharia’s penal code. Sudan and Somalia also allow it. In Somalia, it happens more regularly under the control of Islamist groups. In the most notorious case in 2008, a 13 year-old-girl was buried and stoned to death by 50 men at a stadium with an audience of 1000 persons. Human rights agencies reported that she had been raped by three men and falsely accused of adultery while none of the men were arrested. Most of the countries mentioned perform stoning not only for Adultery but for homosexuality and honor killings too (Batha, 2013).

In the next sections of this Article, the brutal punishment of stoning in Iran will be explained in detail by going through the legal texts and the most recent stoning cases. These chapters will indicate how important is the interference of international bodies in women’s rights and human rights violations in countries where the national judicial bodies allow violence and perform inhumane executions like stoning.

Women in the constitution
In the preamble of the current Iranian Constitution, a section is devoted to women; stating that women should benefit from a particularly large augmentation of their rights because of the greater oppression that they suffered under the previous regime. Right after this paragraph, the Constitution mentions the important role of the family as the fundamental unit of society, giving great importance to the role of woman in society as a mother and a wife. The Constitution gives women importance and integrity as it talks about women not being regarded as an object or as an instrument in the service of promoting consumerism and exploitation, but it does not give them individuality, as it is only talking about the role of family and not the woman herself as a being in the society.

The third chapter of the Constitution and under the rights of people (Article 20) guarantees the enjoyment of all human, political, economic, social, and cultural rights of all citizens, both women and men in confirmation with Islamic criteria. Article 21 generously ensures the rights of women in all aspects, including the creation of a favorable environment for the growth of woman’s personality, protection of mothers, particularly during pregnancy, protecting and preserving the family through competent courts, and provision of special insurance for women without support, widows and aged women (Iran, 1979).

However, the reality of the society is different According to the Women, Peace and Security Index, Iran is ranked 118 out of 167 countries in terms of legal discrimination (GIWPS, 2019). Women suffer from injustice from the most basic rights such as the right to freedom of what they wish to wear, to more important rights in marriage law, political rights, income, and access to employment. The law does not protect women against violence and even in some parts, it promotes it.

A clear example of a violation of human rights and women’s rights is the acceptance of stoning in the Penal Code of the Islamic Republic of Iran, which will be explored below through two very important case laws.

Iran’s Penal Code on Adultery
According to reports from Amnesty International, a total of 150 people were executed by stoning in Iran from 1980 to 2009; the majority of whom were women (Amnesty-International, 2010).

Iran’s Penal Code prescribes stoning as a punishment for adultery. Adultery is a capital offense in Islamic law and is punishable by flogging, hanging and stoning. In the first chapter of the second book of the Islamic Penal Code (Hodoud or Sharia-based punishments), Article 63 of the Penal Code describes adultery as “the intercourse between a man and a woman whose intercourse is inherently forbidden or haram, even if it is from behind, other than those cases where the person has had a doubt (i.e., mistaken identity)”. Article 64 of the same code requires some conditions for the adulterer, such as maturity, sanity, acing by free will, and awareness of the offense and its punishment.

Articles 68 to 81 of the second chapter of Hodoud explain in detail that adultery can be proved in the court either through confession or testimony of witnesses. The testimony should be given by either four just men, or three just men and 2 just women when the punishment is stoning or flogging. In the cases that adultery is punishable by flogging, it could also be proved with the testimony of two just men and four just women (Vahdati, 2007). It is important to mention at this point that the law is so unequal that it does not accept the testimony of women alone, or women and a man, and considers all of the witnesses to be subject to the punishment for false accusation of adultery (Qazf) as specifies later in Article 139 of the Penal Code. This law is a result of male superiority that is seen all over the legal framework of the country, and consequently in the different spheres of the society.

The third chapter explains types of adultery punishment in different categories; Article 82 considers killing the punishment for:

a. Adultery with relatives by blood or marriage who are within the prohibited marriage zone such as one’s siblings or parent.

b. Adultery with stepmother which shall constitute the killing of the adulterer.

c. Adultery of a non-Muslim with a Muslim woman which will constitute the killing of the adulterer.

d. Adultery by force and duress that will constitute the killing of the forcing adulterer.

Article 83 considers the stoning punishment in the following adultery cases:

a. Adultery of a marriage-bound man that is defined as a man who has a permanent wife and has had intercourse with her while being sane and can have intercourse with her whenever he so wishes.

b. Adultery of a marriage-bound woman with an adult man, a marriage-bound woman is a woman who has a permanent husband and the husband has had intercourse with the woman when she was sane and has had the opportunity to have intercourse with the husband, too.

c. Adultery of a marriage-bound woman with a minor constitutes flogging.

Furthermore, Article 88 considers 100 lashes as a punishment for a man or a woman who is not marriage-bound and commits adultery.

Articles 92 and 93 delays the punishment for women under some circumstances:

Article 92 – When a pregnant or breastfeeding woman is to be punished by flogging and there is a concern for possible harm to the pregnancy or the breastfeeding infant, then the punishment will be delayed until the time that the punishment causes no such harm.

Article 93 – If a sick person or menstruating woman is sentenced to be murdered or stoned, the punishment shall be carried out but if sentenced to flogging then the punishment will be delayed until the sickness and menstruation is over.

Finally, chapter 4 explains how to execute the punishment; Article 99 explains that the first stone should be thrown by the judge if the adultery is proved by confession, and in the case that it is proved by testimony, the first stone shall be thrown by the witnesses and then the judge.

According to Article 102, the brutal punishment of stoning happens by burying a male adulterer in a ditch up to his waist and a female adulterer up to near her chest and then stone them to death. Article 104 requires that the size of stones should be neither too large to kill the convict by one or two throws, nor too small to be called a stone. Literally this Article implies that the stone has to hurt the person and make them suffer, but not kill them instantly. The stoning is meant to be slow, painful, and lead to deliberate death (Islamic-Republic-of-Iran, Islamic Penal Code, 1991).

The Case of Soraya Manuchehri
Soraya was a 35-year-old woman who was stoned to death in 1986 in public in a small village in Iran. She was allegedly convicted of adultery by her husband’s accusations, witnessed by 3 of his friends. Her husband, a prison guard with a petty criminal past, wanted to get rid of her without paying her dowry and marry a 14-year-old girl. Her story has been told in a novel, La Femme Lapidée, later turned into a heartbreaking and overwhelming movie, the stoning of Soraya. With the complicity of the local Mullah, the structural misogyny of the law, and Sorayya’s silence that is probably out of fear, she is buried into the ground and stoned to death by her family, neighbors, husband, and children (VOA-News, 2009).

The Case of Sakineh Mohammadi Ashtiani
The case of Sakineh, an Iranian Azeri woman who was convicted of conspiracy to commit the murder of her husband and adultery and was sentenced to death by stoning, turned into a huge internationally regarded case by different NGOs and international bodies such as Amnesty International and The Guardian. This case is a case of equity, human rights, and gender equality. The legal proceedings and the law framework directly violate Human Rights based on gender and even ethnicity and language (Mojtahedi, 2013).

Facts

In 2005, Sakineh and her lover, who were both married to other people, were arrested on charges of adultery and conspiracy to commit murder. Ibrahim Qadarzadeh, Sakineh’s husband was killed by electrocution and the police claimed that Sakineh had collaborated in this murder with Isa Taheri, who was the cousin of Ibrahim (the husband), and a second unknown man. The wife of one of Ibrahim’s coworkers accused Sakineh of committing adultery. On May 15, 2006, Sakineh was known guilty of having had an illicit relationship outside marriage with another man, punished by 99 lashes, whipped in front of her son.

Legal proceedings
Isa Taheri was found guilty of murder and sentenced to death by hanging under Islamic Law and under regulations of the third book of the Penal Code (Qisas), which is taken from the ideology of “eye for an eye”. Under the Penal Code regulation, murderers can be forgiven and pay restitution or blood money (Diya) to the victim’s family, or the family can seek execution from the court and have the murdered killed. Sajjad Qaderzadeh, the son of the deceived and Sakineh, forgave Taheri and accepted the blood money, which resulted in sentencing Taheri to 10 years in prison and drop of Qisas.

Sakineh’s murder case went to trial in September 2006, she was not found guilty of the actual murder since there was no evidence to tie her to physical involvement in the murder and the actual murderer was forgiven. But she was given the same sentence as Taheri (10 years imprisonment) for complicity in murder and disrupting the public order. After the court of appeal, this sentence was reduced to five years in prison.

In 2008, she was brought to trial again for adultery, an illegal trial that was kept hidden from her son and was held for the crime of adultery committed with Taheri (in the first trial it was for adultery with a second man). This time the court sentenced her to death by stoning (Rajm), with the vote of the majority of three judges out of five. The other two judges did not doubt her guilt but were against punishing her again because she has been punished for adultery before.

She was sentenced to capital punishment for committing murder, manslaughter, and adultery. However, according to the press release by Mission Free Iran, the decision was contrary to the documentation on her case. This punishment was not performed in the end because of the campaigns and protests all around the world for her rights. These international campaigns were triggered by her own children because they did not want to lose another parent (Kusha, 2014) (MissionFreeIran, 2010).

Gender
In 1993, the United Nations General Assembly defined violence against women as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women.” Gender violence is entrenched in gender equality, and this inequality is enforced by traditions, laws, institutions, and community norms. Despite almost three decades of global recognition of gender-based violence, the visible gender violence and discrimination in Iran is yet to make a list of issues examined overtly by United Nations agencies (United-Nations, 1993).

Gender discrimination and oppression of women is the most visible characteristics of the Islamic Republic of Iran. In contemporary Iran, in the 21st century and not the medieval age, the value of the woman is literally half the value of a man.

Inequality is seen everywhere within the civil law; Article 1105 states “In relations between husband and wife; the position of the head of the family is the exclusive right of the husband.” Article 1117 gives the husband the right to prevent his wife from occupations or technical work which is incompatible with the family interests or the dignity of himself or his wife. Furthermore, Article 18 of the passport law allows a husband to refuse permission to his wife to travel. Even in inheritance, if a parent dies and has several children of both sexes, according to article 907, “each son takes twice as much as each daughter” (Islamic-Republic-of-Iran, Civil Code, 1928).”‎

The role that gender plays in-laws regarding stoning is a tricky one; as mentioned earlier, the penal code has considered the punishment of stoning both for adulterer and adulteress. But at the same time, the other Articles in the same book give a free pass to men for adultery; polygamy or taking several women as wives is allowed in the law. Men can have four permeant and as many non-permanent wives as they wish. In the Quran this right is limited with the condition of equity between wives, which is naturally almost impossible, also it privileges only the wealthy (Shahrabi, 2019).

Generally, men have ways to avoid punishment for adultery. Alternatively, they can easily make a non-permanent contract to marry another woman for a limited period of time. This does not require any special procedure or permission and it is easily done in any marriage center. A law that allows men to have relations outside marriage but under no circumstances gives the same right to women, is intrinsically unequal. The Islamic law of Iran recognizes the consent of the first wife as a conditionality for the next marriages, however, with the social and financial pressure that exists for most women, they have no other way than consent.

Women cannot have more than one partner and the punishment of cheating for them is the highest because of the ideology that if a woman gets a second husband and a baby is born, there will be confusion in who is the father. This idea can be rejected due to technological advances and DNA recognition. However, Islamic scholars now argue that there are the basic foundations of family and society at risk if women are allowed to have more than one spouse; ironically some of these scholars state that lack of permission to women for polygamy is for their own sake because women are emotional and their approach to marriage and sexual relationship is different because of the fundamental differences of the two genders.

Furthermore, men have always been given a wider margin of appreciation in courts that are ruled by male judges only, since Iranian women cannot be judges due to their emotional and irrational decision making and judgment, same as their testimony is worth half of the value of a man’s testimony (Mohadjer, 2006).

Future developments

In 2010, Sakineh became the subject of an international campaign, triggered by her two children, that protested for her fate. By July 2010, the Iranian government banned reporters in Iran from reporting on any details of the case.

Her lawyer, Mohammad Mostafaei had to flee the country to Turkey and then Norway where he sought asylum in the same year after being accused of financial fraud. He claimed that the officials were harassing him for his vigorous defense of Sakineh Mohammadi Ashtiani, and his activities regarding the defense of juvenile offenders in death row. This claim appears true since, in recent years, a number of lawyers defending sensitive cases have been under a lot of pressure from Iranian judicial authorities (Esfandiari, 2010). It is worthy of mentioning that this act of the Iranian government continues even now and ten years after that case, with sentencing and imprisoning human rights lawyers such as Nasrin Sotoudeh, AmirSalar Davoudi, and many others, only for seeking justice as a part of their jobs (IranPrimer, 2019).

In July 2010 the Iranian Embassy in London stated that according to information from the relevant authorities, she will not be executed by stoning punishment (NBCNews, 2010).

In August 2010 her new lawyer was informed that she now faced death by hanging, Tehran’s High Court rejected reopening a trial and her case was transferred to the deputy prosecutor general. Her son was told that the files on his father’s murder have been lost; he stated that they are lying, and these accusations are false, and she is the victim here.

She was later brought to national Television which showed her confessing in her own Azeri language, to adultery and involvement with the murder of her husband, prior to which according to her lawyer, she had been tortured for days. Around the same time, a picture of an unveiled woman identifies as he was mistakenly published by the Times, and it was believed that she had been given 99 more lashes for that picture that wasn’t even her (Kamali-Dehghan, Sakineh Mohammadi Ashtiani denies torture claims on Iranian TV, 2010).

In late August, she was given a 24-hour notice that she was going to be hung at dawn the next day, a sentence that was not performed. Meanwhile, she was denied the right to be visited by her lawyer and her family (Kamali-Dehghan, 2010).

Sakineh did not speak Persian, her mother tongue, Azeri, was not used in the court and this could also have effects of her understanding of the court proceedings and the decision making. According to informal interviews with her lawyers and activists, she returned to the jail and said with excitement to her inmate that she did not get any time, and instead she got the Rajm. Her inmate started crying, Sakineh was surprised and said why are you upset? I got the Rajm, and her inmate explained to her for the first time that Rajm means stoning to death (Mojtahedi, 2013).
Iran has an ethnic and linguistic diversity with people with backgrounds of Azeri-Turk, Arabs, Lurs, Kurds, and others next to Persian. The Persian ethnic group constitutes 40% of Iran’s population but the only officially known language is Persian since 1925, therefore this language is used in all public spheres; making it hard for someone like Sakineh to understand her sentence in front of the court (Asgharzadeh, 2007).

Eventually, after nine years on imprisonment, Sakineh is believed to be released for good behavior. Her death sentence was reduced to ten years of jail after the campaigns and international requests to release her. The Iranian government had to save face at the time of her release since her case was being internationally regarded and activists and international human rights bodies had requested her immediate release. It is believed that her release announcement was at the same time with the tentative rapprochement with the West that had been initiated at that time by the Iranian president, after years of the stand-off over Iran’s disputed nuclear program (Tomlinson, 2014).

Violations of the Universal Declaration of Human Rights
Despite the intensification and systematization of human rights violations in Iran after the Islamic Revolution, Iran is still admitted into the UN. Although no state has ever been expelled from the UN since its inception, a few states have been suspended or expelled from participating in the UN’s activities. Iran has willingly committed itself to the provisions and the principles contained in the ratified treaties and the international human rights law. Unfortunately, no effective measure has been seen so far by the UN agencies to minimize the legal gender-based and human rights violations (Moinipour, 2018).

The human rights discourse for Sakineh’s case is a violation of the UDHR. The Universal Declaration of Human Rights sets out the fundamental Human Rights that should be universally protected.

Article 2 of this universal declaration recognizes sexism as a violation of human rights.
“Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinions, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.”

Article 3 declares “Everyone has the right to life, liberty, and security of person.” The whole concept of stoning punishment violates this article.
In addition to promoting cruelty and violence in the law, the book of Hodoud in the Penal Code is against Human Rights. The Penal Code of the Islamic Republic of Iran violates almost all of the Articles mentioned in the UCHR, including most importantly Article 5 that explicitly says that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Assembly, 1948).

Conclusion
Gender-based violence occurs due to structural support of inequality between men and women. Stoning of women can be demonstrated as a type of gender violence that is being legitimated by human-made law and the state, making it an institutionalized form of legal violence against women. The stoning of women is caused by a controversial interpretation of Islam a traditional patriarchal system of self-anointed ruling male elites. In other words, it is state femicide and not a form of Islamic procedural justice. The arbitrary interpretation of hadith is contingent upon culture, not Islamic law, in Iran traditions play a key role in the process of lawmaking (Kusha, 2014).

The media blockage and lack of existence of police records or non-censored court proceedings in Iran, has made this research hard in terms of resources; as a consequence, most data has been gathered by reference to secondary sources including news and free media outside of Iran.
There are so many instances of legally sanctioned violence against women that are not adequately reported. The cases of Sakineh and Sorayya were only two examples of cruelty and gender injustice in Iran. Sorayya was stoned to death like many other women whose stories were not told. We know about her only because someone decided to write her story and later someone decided to make a movie about it. A great improvement was shown in the case of Sakineh because of the international campaigns and the pressure from international bodies on the Iranian government to abolish or reduce her sentence.

If it was not for the pressure from outside, Sakineh could have been stoned like Sorayya and many others. However, unfortunately, many other women all around the world have been killed by stoning for decades. Furthermore, the fear of being stoned still exists in many countries who have introduced this punishment as a preventive measure in their legal frameworks. This investigation is important because it opens a window for future research on this topic with a focus on the fact that governments refuse to remove the death penalty and especially stoning from their legislations because of the harsh impacts of religion on politics. Hence there is an importance of understanding and changing the underlying law. With the impact of international bodies and media, there is hope that this form of public punishment does not repeat in Iran, but we can never rest assured that it does not happen in private spheres, and if it does, it will be supported by the law. Therefore, international pressure should be focusing more on removing injustice and cruelty from the national laws of countries to ensure human rights and gender justice. Considering the poor state of international relations between Iran and other countries at the moment, fundamentalist and extreme elements are given a greater degree of power than ever; this makes the foreign press reporting on Iranian internal affair very limited; hence giving the power of abuse of law and human rights violation to the government.