The Objectives of Punishments in Sexual Crimes: An Islamic Perspective (Book)
| The Objectives of Punishments in Sexual Crimes: An Islamic Perspective | |
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| Book Information | |
| Author | Rahim Nowbahar |
| Subject | Sexual Crimes |
| Language | Persian |
| Pages | 408 |
| Publication Information | |
| Publisher | Islamic Sciences and Culture Academy |
Abstract
The Objectives of Punishments in Sexual Crimes: An Islamic Perspective (اهداف مجازاتها در جرایم جنسی؛ چشماندازی اسلامی), written by Rahim Nowbahar, re-examines the philosophy of punishments in sexual crimes in Islamic jurisprudence with an objective-oriented approach (extracting Sharia purposes) and a holistic view (a comprehensive look at the various dimensions of the subject). Moving beyond a purely devotional (ta'abbudi) perspective, this work argues that in Islam, punishments are tools for realizing transcendent goals such as executing justice, rehabilitating the offender, and deterrence.
By distinguishing between "individual lapses" and "crimes against public morality," this book shows that the Lawgiver's (Shari') approach toward these two categories is entirely different. In the first type, by making the methods of proof difficult, the emphasis is placed on covering up (pardeh-pushi) and repentance (tawbah), but in the second type, the main goal is the decisive defense of social values. Ultimately, by analyzing the "conflict" (tazahum) between executing prescribed punishments (hudud) and higher interests (such as avoiding the alienation from religion), the research concludes that the Islamic penal system is flexible and dynamic. In it, the Islamic sovereignty can and must, for the realization of the true objectives of punishments, apply necessary changes in the quality and even the very execution of punishments through expediency evaluation (maslahat-sanji).
Brief Overview
The book The Objectives of Punishments in Sexual Crimes: An Islamic Perspective, penned by Rahim Nowbahar, is among the books of judicial jurisprudence with a focus on sexual crimes. This book was first published by the Islamic Sciences and Culture Academy in 2010 (1389 SH) in 408 pages.
Structure of the Book
This research is organized into an introduction and five main chapters: The first chapter presents the theoretical foundations and methods for recognizing the objectives of Islamic punishments (pp. 56-126). The second chapter analyzes the objectives of punishments in sexual crimes warranting hadd (adultery/fornication [zina], sodomy [liwat], and lesbianism [musahaqah]), with an emphasis on the difficulty of proof and the principle of covering up (pp. 127-180). The third chapter is dedicated to discretionary (ta'ziri) sexual crimes that have the nature of an individual error (pp. 180-239). The fourth chapter examines crimes against public morality (such as procuring (''qawwadi'')) (pp. 241-288). The final chapter addresses the discussion of the conflict (tazahum) between executing hudud and higher interests, such as the maxim of "social hardship of Muslims" and the "prohibition of alienating from religion" (pp. 291-406).
Objectives of Islamic Punishments
First Section: Ways of Discovering the Objectives of Islamic Punishments
In the author's belief, several ways can be utilized to discover the objectives of punishments in Islam:
Recognizing the General Objectives of Islam: Principles such as justice, which is one of the goals of the prophets' mission, and purification (tazkiyah), mercy (rahmah), and dignity (karamah), which are employed for the reformation of the individual, are strategic principles for directing the goals of the penal system (pp. 56-59).
Deduction from the Text and the Apparent Meaning of Texts: By contemplating verses and narrations, as well as the rationale and wisdom mentioned for certain rulings, one can discover the objectives of the Lawgiver. On this path, one should not content oneself with definitive texts (nusus); rather, valid apparent meanings (zawahir) and even the understanding derived from the totality of the evidences (the spirit of the law) are also authoritative (hujjah) (pp. 59-69).
Studying the History of Punishments: Examining the historical background of punishments and the developments that occurred in their execution during the time of the Infallibles (a) is very illuminating. For example, the change in the punishment for drinking alcohol from forty lashes to eighty lashes during the time of the second Caliph. This change, which occurred with the suggestion of Imam Ali (a) and because the previous punishment was not a deterrent, shows that "deterrence" is one of the key objectives (pp. 69-70).
Whether Punishments are Endorsed (Imda'i) or Established (Ta'sisi): Almost all corporal punishments in Islam (stoning [rajm], flogging, amputation of the hand) were prevalent before Islam as well. Now, did the Lawgiver consider these punishments a rational practice and endorse them with the condition of "being prevalent" (restrictive aspect or haythiyyat taqyidiyyah), or was the reason for the Lawgiver's endorsement solely their prevalence (causative aspect or haythiyyat ta'liliyyah)? If the condition of prevalence is part of the subject (mawdu'), then with the disappearance of the rational prevalence of a punishment, the subject of the ruling is also nullified. This discussion raises the possibility of changing punishments based on social and cultural developments (pp. 74-75).
The Type of Punishments and the Method of Their Execution: The type of punishments (such as execution or imprisonment) and the manner of their execution (publicly or privately) can indicate the legislator's objectives. Islam's emphasis on executing punishment in the presence of a group of believers indicates the aspect of public deterrence and universal supervision (pp. 84-85).
Cases of the Nullification (Suqut) of Punishments: Factors such as repentance (tawbah), the complainant's forgiveness, and the ruler's pardon, which cause the nullification of the punishment, show that the rehabilitation of the offender and compensation for the victim's loss are among the important objectives of Islam's penal system (pp. 86-87).
The Ruling of Punishments in the Assumption of Conflict (Tazahum): Sometimes a conflict arises between the expediency (maslahah) of executing a punishment and other expediencies or corruptions (mafasid); scrutinizing the legislator's rulings in cases of conflict regarding the execution of a punishment or overlooking it reveals the legislator's attitude toward punishment and its objectives (p. 87).
Second Section: Objectives of Islamic Punishments
The author explains the objectives of Islamic punishments as follows:
Execution of Justice: Justice is the ultimate goal of the prophets' mission and the spirit governing all Islamic rulings; the emphasis on "retribution in kind" (qisas bi al-mithl) and the prohibition of extravagance in killing are manifestations of this fundamental goal. Islamic justice pays attention to expediency evaluation and consequentialism, and is mingled with pardon and mercy (pp. 99-106).
Reformation and Rehabilitation of the Offender: Purification and upbringing are among the main goals of religion. The prominent role of repentance in the nullification of many punishments and the religious leaders' emphasis on the reformation of and clemency toward the offender clearly show that rehabilitation and returning the individual to society are among the important goals of Islamic punishments (pp. 107-109).
Defense of Society and Its Values: Alongside attention to the individual, Islam also cares for the foundation and values of society. Punishments such as imprisonment and exile for dangerous offenders have been legislated with the goal of protecting society (pp. 111-113).
Private and Public Deterrence: Creating fear and serving as an example for the offender themselves (private deterrence) and others (public deterrence) are among the clear objectives of punishments (p. 116). The intensification of punishment in the event of repeating the crime and the public execution of certain punishments are carried out with this very objective (p. 118).
Compensation for the Victim: In crimes where the rights of others are violated, the Lawgiver has paid attention to compensating for the loss and soothing the victim's suffering. Institutions such as blood money (diyah), the right to retribution (qisas), and the necessity of the complainant's consent in crimes involving the rights of people (haqq al-nas) show the importance of this objective (pp. 121-122).
Objectives of Punishments in Sexual Crimes Warranting Hadd
This chapter first presents the punishment for sexual crimes warranting hadd (adultery/fornication, sodomy, and lesbianism), then examines the objectives of their punishment (pp. 125-178).
First Section: Punishment for Sexual Crimes Warranting Hadd and Their Judicial Proof
Regarding the punishment for fornication (zina), the famous theory of jurists is that at the beginning of Islam, its punishment was life imprisonment in the house (Verse 15 of Surah al-Nisa'), but this ruling was abrogated by Verse 2 of Surah al-Nur, which determined the punishment as one hundred lashes. Thereafter, one hundred lashes were designated for the punishment of fornication by an unmarried person (ghayr muhsan), and stoning (rajm) for adultery by a married person (muhsan) (pp. 131-132).
Regarding the punishment for sodomy (liwat), the famous theory of Shia jurists is execution, but in the method of its execution, the ruler has the choice among methods such as killing with a sword, burning, stoning, throwing from a height, or collapsing a wall upon him. Sunni jurists disagree on this matter; Abu Hanifa considers sodomy to warrant discretionary punishment (ta'zir), and Al-Shafi'i and Malik consider its hadd similar to the hadd for fornication/adultery (stoning or flogging depending on marital status [ihsan]) (p. 140).
Based on the famous fatwa of Shia jurists, lesbianism (musahaqah) is among the crimes warranting hadd, carrying a punishment of one hundred lashes. In the event of repeating the crime and the hadd being executed three times, the perpetrator is executed on the fourth occasion. The majority of Sunni jurists consider lesbianism to warrant ta'zir (pp. 142-143).
In the author's belief, despite the severe punishments foreseen for these crimes, the Holy Lawgiver has been extremely strict in their judicial proof. Proving these crimes requires the testimony of four just men who have seen the act clearly and without any ambiguity; a matter which is practically almost impossible. Furthermore, spying/snooping (tajassus) to discover the sin and even looking at the crime scene to bear witness is not permissible. If the number of witnesses does not reach the required quorum, they themselves are sentenced to the hadd for false accusation of unchastity (qadhf) (eighty lashes) (pp. 143-144). The other way of proof is the individual's own confession, which must also be four times and in separate sessions. The conduct (sirah) of the Prophet (s) and Imam Ali (a) was to dissuade individuals from confessing and to encourage them to repent and cover up (pp. 144-147).
This entire set of strictures shows that the Lawgiver's main objective is preserving reputation, preventing unjust accusations, and providing the opportunity for repentance and reformation for wrongdoers, not punishing and disgracing individuals. In reality, the sensitivity of Islam's penal system is aimed more at preventing corruption from becoming public and spreading in society than being focused on the hidden sin itself (pp. 150-151).
Second Section: Objectives of Punishments in Sexual Crimes Warranting Hadd
By analyzing the totality of the regulations, the author arrives at the objectives of punishment in sexual crimes warranting hadd. He believes that Islam's approach is not pure retributivism based on focusing on the crime and the moral responsibility of the criminal; rather, consequentialism exists within it as well; because factors such as repentance, doubt (shubhah), and the ruler's pardon can nullify the punishment (pp. 152-156).
The author explains the objectives of these punishments under the following headings:
Reformation and Rehabilitation of the Offender: This objective is the most central goal. The abundant emphasis on repentance and its acceptance for the nullification of the hadd, and the Infallibles' (a) encouragement to repent instead of confessing, bear witness to this claim. By leaving the path of repentance open, the Lawgiver seeks the true reformation of the individual (pp. 157-162).
Private and Public Deterrence: Punishments such as flogging and exile, in addition to physical pain, deter the individual from repeating the crime by creating a sense of degradation. Executing the punishment in the presence of a group of believers is also with the goal of society drawing a lesson and strengthening public deterrence. However, Islam, by emphasizing the presence of a small group (ta'ifah) and not all the people, as well as setting conditions for those present, has prevented the execution of punishment from turning into a public spectacle that could cause irreparable damage to the individual's personality (pp. 162-165).
Restorative Justice: Islam's penal system pays special attention to compensating for loss and soothing the victim's suffering in crimes that have a specific victim (such as rape). In these cases, the nullification of the punishment through repentance is conditional upon obtaining the victim's consent, which shows the official recognition of the victim's rights in the penal process (pp. 170-174).
Ultimately, the author concludes that hadd punishments in sexual crimes have been established to protect values such as "chastity" and "sexual health," but the Lawgiver, through extreme strictness in proof and emphasis on repentance and covering up, has shown that He has no inclination toward the widespread execution of these punishments and His main goal is reformation and prevention (pp. 174-178).
Objectives of Punishments in Discretionary (Ta'ziri) Sexual Crimes
This chapter examines the objectives of punishment in crimes whose nature is a moral error but do not reach the level of fornication and sodomy and have a "discretionary" (ta'ziri) punishment (at the discretion of the ruler).
First Section: Textually Specified (Mansus) Discretionary Sexual Crimes
By examining the crimes for which ta'zir has been determined in narrations, the author analyzes the Lawgiver's approach. Instances such as two non-mahram individuals sleeping under one cover, kissing out of lust, deflowering, bestiality, and masturbation have been condemned in narrations and ta'ziri punishments (such as flogging less than the hadd amount) have been mentioned for them (pp. 181-184). The author discusses deflowering, sexual intercourse with animals, masturbation, sexual intercourse with minors, and sexual violence (pp. 185-201).
Second Section: Principles Governing Discretionary Sexual Crimes
By analyzing the previous discussions, the author extracts several principles for the ta'zir system in sexual crimes:
Difficulty of Judicial Proof: The strict approach and the inclination toward covering up that govern hudud flow a fortiori in ta'ziri crimes as well. Spying to discover hidden sins is forbidden, and the principle is non-penal intervention (pp. 203-207).
The Effect of Repentance: Repentance, just as it nullifies hudud, also nullifies ta'ziri punishments, which possess the nature of a sin. In this case, even if doubt exists, the Maxim of Dar' (warding off punishments) prevents the execution of punishment upon the repentant (pp. 211-219).
Diversity in Penal Sanctions: Unlike hudud, in ta'zirat there is no obligation to use the punishment of flogging. The author rejects the idea that flogging is an ideal Islamic punishment and believes this punishment was a product of the culture and conditions of its time, and the Lawgiver, by delegating ta'zir to the ruler's opinion, has left the path open for the use of efficient, humane punishments suitable for every era (pp. 219-220).
The Necessity of Avoiding Punitive Extremism: The principle that Ta'zir is less than Hadd (al-ta'zir bima duna al-hadd) indicates the Lawgiver's tolerant approach in this domain. The ruler must content himself with the minimum punishment that secures the educational and deterrent objectives and avoid severity (pp. 220-224).
Third Section: Strategies for Determining the Objectives of Punishments
Considering the aforementioned principles, the author proposes the following strategies for determining the objectives of punishment in ta'ziri sexual crimes:
The Principle of Preventing Widespread Criminalization: Every forbidden (haram) act must not necessarily be considered a crime. Criminalization must be carried out based on public interest and with caution to prevent penal inflation (pp. 225-227).
The Principle of Preferring Covering Up: Regarding sexual errors that have a private aspect, the principle is encouraging repentance and concealment (istitar), and non-penal intervention (pp. 227-228).
The Principle of Minimal Use of Punishment to Defend Morality: The protection of moral values is not necessarily achieved through punishment; therefore, cultural and educational tools must be utilized, and punishment should be considered the last resort (pp. 228-230).
The Principle of Caring for the Reformation of the Offender: The main goal in these crimes must be the rehabilitation and reformation of the individual, not merely retribution (pp. 203-231).
The Principle of Proportionate Defense and Compensation: Where a crime damages the rights of others, one must react with proportionality and justice, and completely secure the rights of the victim (pp. 231-233).
The Principle of the Diversity and Humaneness of Punishments: A wide spectrum of penal reactions appropriate to the criminal's personality and the conditions of society, including alternative punishments, must be used, and the human dignity of the offender must be emphasized at all stages (pp. 234-238).
Objectives of Punishments in Crimes Harmful to Public Morality
In this chapter, the author examines crimes that, unlike personal errors, directly target the public morality of society. By citing some Western thinkers, he shows that preserving public morality has always been a concern for legislators. In the contemporary era as well, with the expansion of technology, phenomena such as pornography and human trafficking have become serious challenges, and international human rights documents have also emphasized the necessity of protecting morality and public decency (pp. 241-244).
First Section: Penal Titles Appropriate to the Violation of Public Morality
In this section, among the crimes related to the violation of public morality, the author examines three penal titles: "procuring (''qawwadi'')", "enmity against God (muharabah) and corruption on earth (ifsad fi al-ard)", and the "buying and selling of humans".
"Procuring" (qawwadi) in jurisprudence means bringing a man and a woman together for fornication or sodomy, and according to the famous opinion of Imami jurists, it warrants hadd (75 lashes and exile). Through a detailed critique of the evidences for this fatwa, the author concludes that qawwadi is a crime warranting ta'zir, not hadd. This conclusion opens the path for determining more appropriate and efficient punishments for the new and complex forms of qawwadi in today's world (pp. 247-265).
In the author's belief, some laws after the revolution have considered crimes such as operating centers of corruption or the production and distribution of obscene materials as instances of corruption on earth and warranting the hadd for muharabah. By analyzing Verse 33 of Surah al-Ma'idah, the author believes that corruption on earth cannot be considered an independent crime warranting hadd. Also, generalizing this title to crimes against public morality lacks clear evidence and is contrary to the principle of precaution (ihtiyat) in blood and hudud (pp. 265-275).
In the author's belief, the buying and selling of humans, which is a clear instance of violating human dignity, is forbidden and void in Islam. Narrations that have determined the punishment of amputating the hand for the seller of a free human cannot be the basis for a ruling of hadd due to weakness in their chains of transmission; therefore, this crime also warrants ta'zir (pp. 275-281).
Second Section: Objectives of Penal Reaction to Crimes Against Public Morality
Considering previous examinations, the author explains three objectives in penal reactions to crimes against public morality:
Defense of Society and Public Morality: The main goal is the decisive defense of society and its values. The penal reaction must be efficient and deterrent enough that criminals, especially organized gangs, do not dare to transgress upon the sanctuary of public morality. In this domain, one cannot adhere to the strictures of proof that exist in hudud; rather, the crime must be proven and combated using customary methods (pp. 283-286).
Compensation for the Victim of the Crime: In many of these crimes, there are specific victims (such as women and children) who require serious protection. The penal system must be such that the material and spiritual rights of these individuals are completely compensated (pp. 286-287).
Reformation and Rehabilitation of the Offender: Even in severe crimes, the objective of reformation and rehabilitation should not be neglected; rather, especially concerning situational offenders and those who themselves have been victims of circumstances, an educational approach must be taken, and the path for their return to society must be left open (p. 287).
Execution of Hudud in the Event of Conflict (Tazahum)
The author poses this question: "If the execution of fixed hudud conflicts with more important expediencies and the intended objectives of them are not realized, what is the duty?" (p. 290). He then raises three headings:
Non-Realization of Expected Objectives: If the execution of a hadd (like flogging) in specific conditions has no deterrence, insisting on its execution is futile. Since punishments are a means and not a goal, with the non-realization of the goal, the means also loses its thematic relevance (mawdu'iyyah) (pp. 291-297).
Realization of Contradictory Effects: If the execution of a hadd brings about a reverse result (for instance, the public execution of a hadd upon a woman exposes her to greater harm, or executing a hadd in enemy territory causes the individual to join the disbelievers), by the judgment of intellect and citing the conduct of the Infallibles (a), one must refrain from executing it (pp. 298-301).
Conflict with Collateral Corruptions (Mafasid): Sometimes the execution of a hadd possesses an expediency, but entails a greater corruption; like unconventional harm to the convict, severe hardship for the Islamic society, or the alienation and aversion of the people from religion. Through a detailed analysis of the Maxim of the prohibition of alienating from religion, the author shows that this maxim is a rational and Sharia principle that governs many primary rulings, including the execution of hudud. If executing a hadd like stoning causes the degradation (wahn) of Islam and people's aversion to religion, the Islamic ruler is obliged to halt its execution. These expediency evaluations, which have a precedent in the conduct of the Prophet (s) and the Imams (a), do not mean the suspension (ta'til) of hudud, but mean their wise execution and making them efficient (pp. 302-345).
The book concludes by presenting several approaches and suggestions. It is emphasized that since Islam's penal system is not a one-dimensional and retributivist system, but rather consequentialist and purposeful, it possesses the capacity, through dynamic and contemporary ijtihad, to constantly maintain its efficiency and harmonize with the needs of every era (pp. 346-362).