Serious Violation of Women’s Rights in Sexual Assault Cases
Hossein Raisi, jurist and attorney: Proving sexual assault for any woman in Iran’s legal system is very difficult, especially if the accused is somehow connected to the structure of power and government.
The case of Zahra Navadbour, a 28-year-old woman from a village in Malekan county, East Azerbaijan, which in recent months through the publication of videos and audio files on social networks, claimed that Salman Khodadadi, the representative of that county in parliament, had assaulted her approximately four years ago and then proceeded to threaten her and her family, once again raised the issue of obstacles to addressing complaints related to harassment and sexual assault against women in Iran’s judicial system.
Ms. Navadbour had announced that the Malekan County Prosecutor’s Office had rejected her complaint based on lack of jurisdiction to review the complaint, and her follow-ups with the Supervision Committee over the Conduct of Parliament Members had also led nowhere. On December 9, 2018, the Malekan Prosecutor also announced that she had committed suicide.
Since no final court ruling was issued in this case and the authenticity of the released audio file and the cause and manner of Ms. Navadbour’s death were not determined by legal authorities, it is not possible to make legal commentary on it. However, raising such an issue once again drew public attention to the obstacles and deficiencies in the provisions of the Islamic Penal Code and the Code of Criminal Procedure. Provisions that have made proving the occurrence of sexual assault so difficult that practically, except in very rare cases, no one from Iran’s courts has been convicted of sexual assault.
An examination of laws related to sexual assault indicates that Iran’s legal system is in no way inclined toward the prosecution of sexual crimes and, in line with a traditional and jurisprudential approach to the matter, attempts to cover up cases of sexual crimes. However, this practice constitutes a clear violation of women’s fundamental rights and their right to be safe from violence and abuse. On the other hand, prescribing the death penalty for the perpetrator is contrary to the fundamental principles of human rights and adds to the violence of crimes committed. Reforming Iran’s laws regarding the prosecution and punishment of sexual assault is the only solution to this vicious and crime-producing cycle.
What in common usage and literature is known as sexual assault is defined in Iran’s Islamic Penal Code as “adultery by force” and according to Article 224 of this law, it carries a death sentence for the perpetrator. In addition to establishing a sexual relationship by force and coercion, “adultery through deception of a minor girl or through abduction, threatening or intimidating a woman, even if it results in her submission” would also be considered adultery by force or sexual assault.
Likewise, Clause 2 of Article 225 states that “if someone has sexual relations with a woman who is not consenting to it while she is unconscious, asleep, or intoxicated, his conduct is considered adultery by force.” However, according to legal experts, the severity of this punishment on one hand and the difficulty of proving the crime on the other have meant that no one has been convicted as a rapist in courts and perpetrators remain unpunished.
Proving the occurrence of sexual assault in Iranian courts is very difficult and in a sense impossible
Iran’s legal approach, derived from Shiite jurisprudence, is a strict approach in proving sexual crimes. Investigation and inquiry into the commission of an act contrary to chastity in the absence of a private complainant is fundamentally not permissible. Therefore, the judge is not fundamentally obligated to obtain knowledge and certainty of the commission of the act. Even if such knowledge emerges and without a private complainant, he cannot rely on it.
Hossein Raisi, attorney and women’s and children’s rights activist, in explaining the obstacles to proving claims of sexual assault to the Campaign for Human Rights in Iran, said: “Analysis of relevant legal provisions shows that the Iranian legislature has tried as much as possible to prevent the punishment of persons for sexual assault and other sexual crimes. This policy is exactly contrary to the practice in many countries, where attempts are made to address sexual crimes as much as possible and prevent them from going unpunished.”
He continued: “A woman who wants to have a rapist convicted in court must prove both the existence of a sexual relationship and the existence of force or coercion. The big problem is that if she succeeds in proving that a sexual relationship took place but cannot prove that it occurred by force and without her consent, she herself will be convicted of adultery, the punishment for which is 100 lashes for unmarried individuals and stoning for married individuals. Therefore, a woman who claims to have been sexually assaulted may ultimately, instead of witnessing the punishment of the perpetrator, herself be whipped or even stoned. Awareness of this fact has caused many women to refrain from complaining and pursuing legal action in cases of sexual assault.”
As a result, if a victim of sexual assault refrains from filing a complaint for any reason, or midway through, under social and family pressures or out of fear of failing to prove the crime and possibly being convicted of illicit sexual relations, refrains from pursuing her complaint, the case is immediately closed and the prosecutor has no obligation to pursue the matter as a public crime.
Another important obstacle in pursuing legal cases of sexual assault is the difficulty of proving the crime. According to the Islamic Penal Code, there are three ways to prove adultery: the perpetrator’s confession four times before a judge, testimony of four just men or three just men and two just women, and finally, the judge’s knowledge. It is natural that the rapist, knowing that if the crime is proven, execution awaits him, does not confess to this act. Even if there is a confession in such cases, it occurs in the initial stages of arrest, which the accused can easily deny later. Particularly since, according to Article 218 of the Islamic Penal Code, in crimes requiring the implementation of “hudud,” including adultery, if the accused claims that his confession was obtained under threat, intimidation, or torture, such claim is accepted without the need for witness or oath.
Proving the crime through the testimony of four just men or three just men and two just women is almost impossible. Because a sexual relationship, especially one of assault, certainly takes place in private, not in the presence of four to six people. Furthermore, according to the Islamic Penal Code, if someone testifies to the occurrence of adultery or sodomy but his testimony does not lead to proof of the crime, he himself is considered guilty under the religious term “qadhf” and is sentenced to eighty lashes.
Therefore, the only practical way to prove sexual assault in Iranian courts is the judge’s knowledge. The most important method of proof is the lack of a definitive and clear opinion from forensic medicine. However, for forensic medicine to be able to prove the occurrence of sexual assault and the identity of the perpetrator, it is necessary that the victim refer to forensic medicine no later than 72 hours after the crime and, if possible, without washing her body and clothes. But as Shahid Arfainia, an attorney, stated in an interview with News Online, in most cases, victims, due to lack of awareness, refer to forensic medicine very late and after the traces of the crime have been eliminated. Prosecutor’s office and police personnel have not received adequate training regarding the urgency and importance of such cases, and therefore, in many cases, the golden time for proving sexual assault and the only way to administer justice is lost.
Another important point is that in Iranian courts, audio and video files are not considered conclusive evidence, and a person cannot prove sexual assault solely on the basis of an audio file and bring the judge to the stage of knowledge. Such evidence can only be effective at the level of judicial indicator and alongside other evidence, such as a forensic medicine report.
The death penalty is in no way appropriate for the crime of sexual assault
Many human rights activists, sociologists, and legal experts, criticizing the prescription of the death penalty for sexual assault, have considered it inappropriate punishment and even an obstacle to the administration of justice and addressing sexual violence against women. In fact, this type of punishment and definition of sexual assault has meant that in practice only perpetrators of organized gang rape are convicted of punishment.
Hossein Raisi, an experienced jurist who has spent years defending victims of violence in Iran, in an interview with the campaign, considers the severity of the punishment prescribed in the law as another reason for courts’ reluctance to convict persons of sexual assault: “Given that if sexual assault is proven, the perpetrator must be executed, many judges try as much as possible and except in special cases such as repeated crimes or habitual criminals, not to convict persons of sexual assault so they are not forced to issue a death sentence. Therefore, in many cases, ultimately they rule on the establishment of illicit sexual relations or acts contrary to chastity, which are punishable by up to 99 lashes, and do not determine the occurrence of sexual assault, that is, complete sexual intercourse.”
This jurist also points to another negative consequence of prescribing the death penalty for sexual assault: “Furthermore, in many cases, perpetrators of sexual assault, aware that if arrested and the crime is proven, the gallows await them, have killed the victim and attempted to dispose of the body. As a result, prescribing the death penalty for sexual assault is in no way positive because it increases the severity and violence of crimes and seriously endangers the victim’s life.”
For this important reason, the most important legal change that could lead to social and individual prevention of this crime is to reform the punishment for adultery by force and accept a system of proportionate punishment. In the new law, despite the opinions of experts and no jurisprudential prohibition, legal reform in this regard has not been given attention.
The absence of effective mechanisms to protect individuals against abuse of authority by officials
Considering that the law not only provides no protection for victims of sexual assault, but all its provisions are organized in a way that makes the conviction of perpetrators impossible, one can imagine how difficult it would be to complain against a person close to a power institution, such as a parliament member, for sexual assault. For these reasons, Zahra Navadbour, a 28-year-old woman from Malekan county, despite having several audio files and text messages showing threats against her and her family members, ultimately failed to bring Salman Khodadadi, a 56-year-old parliament member who had served four terms as a representative and had spent 19 years of his life as a parliament member, to trial.
Hossein Raisi, a jurist and women’s rights activist, in an interview with the campaign, referred to the law on parliament’s supervision of the conduct of representatives. According to this law, a seven-member committee of parliament members, whose members are elected by the votes of representatives at the beginning of each parliamentary term, is responsible for addressing “reports received regarding the abuse and financial or moral misconduct of a representative and his unconventional income and expenses.” The committee, while addressing the violations subject to this law, informs the competent judicial authority of its criminal aspects.
Also, according to Article 307 of the Code of Criminal Procedure, the crimes of state officials, including parliament members, can only be addressed in criminal courts in Tehran. For this reason, Ms. Navadbour’s complaint was rejected by the Malekan County Prosecutor’s Office, and she was never able to gain access to legal proceedings. Hossein Raisi, regarding this case, says: “Making a definitive statement requires careful and specialized legal review, but the evidence, including the audio files, clearly indicates that the relationship between these two individuals has gone beyond the framework of a parliament member’s relationship with one of the constituents in his electoral district. Certainly, Ms. Navadbour has been under pressure from various directions. In addition to the general culture prevailing in society and in judicial authorities, which is a patriarchal culture based on blaming the victim, the political system fully supports the parliament member. This case is a striking example of inequality of power and clearly demonstrates both the gap in our legal system in protecting women against harassment and assault and the gap in addressing the abuse of political power.”
Source: Human Rights Campaign in Iran
