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Physical Chastisement of Children and Impunity for Fathers under Iranian Law


Physical Chastisement of Children and Impunity for Fathers

Physical Chastisement of Children and Impunity for Fathers under Iranian Law 

 

  1. Physical Chastisement at Home or School

Corporal punishment and other cruel or degrading forms of punishment can take place in many settings, including at home in the hands of parents or at school by teachers. Under the IRI’s Penal Code (IPC), physical punishment and corporal chastisement is not ruled out as a method of correcting children. In fact, parents, and guardians, of children are deemed responsible for correcting children and “if necessary” they are allowed to use corporal punishment. This must however be applied “moderately” and “expediently”. Article 49 of the old Penal Code provided that “[i]f, in order to correct child offenders, corporal chastisement is deemed necessary, it must be moderate and expedient”. Moreover, in order to remove any doubt about the lawfulness of such acts and to give assurance to parents, article 59 of the same law provided that “[t]he following acts shall not be considered an offence: 1- The acts committed by parents and legal guardians of minors and insane people in order to chastise or protect them provided that chastisement and protection are exercised within the customary limit. …”.

It does not seem that the new IPC has made any significant change to this rule although it adds “religious” limits to acceptable chastisement. Article 158, stipulates that committing a conduct which is considered by law as an offense, shall not be punished in the following cases:

“… (d) The acts committed by parents and legal guardians of minors and insane people in order to chastise or protect them provided that such actions are exercised within the customary and religious limits for chastisement and protection.”

The problem is that “moderate” and “customary” limits are too vague. They may wary from case to case and do not comply with international standards. Religious limits are not more helpful either. Therefore, for instance, slapping a child in the face may be considered as customarily acceptable if a child is rude to his or parents, and as long as it does not make the child’s face red or blue or does not cause bleeding it is within religious limits. Hitting the child in less sensitive areas or acts such as shaking or throwing the child or other painful and degrading punishments that do not cause redness of skin or any bruise or injury, are even more likely to comply with religious limits. Therefore, it would be true to say that the law does not comply with international standards set by the CRC:

First, the law, while imposing all sorts of inhuman and degrading punishments such as flogging and amputation of limbs as a punishment for certain crimes, permits some forms of corporal punishment against children in the hands of their parents and legal guardians. In fact, not only does the law permit some forms of corporal punishment, does it describe it as “necessary” in some occasions.

Second, it fails to protect children against those forms of corporal and degrading punishments that do not cause a qualified injury under Shari’a law. By adding “religious limits” to the new Penal Code–which was implied in the old IPC anyway­–the law does not move forward towards more protection for children, but falls deeper into Shari’a law that does not conform with the current needs of the society and children.

Third, the current limits on physical punishment of children by parents and legal guardians are effectively whatever they can get away with. This is because the law fails to provide any clear criteria for unlawful acts and leaves it to parents, and guardians, to use their own discretion. The law should have taken this area out of the hands of custom, religion, and individual discretions and ban all forms of physical violence against children.

School is another setting where children are subject to power and control by adults and are at risk of being exposed to violence by teachers and school authorities that may misuse their power over children. However, it must be noted that, under the IRI’s law, as far as corporal punishment is concerned, teachers do not enjoy the same favourable provisions provided for parents and legal guardians. Therefore, basically they have no right to impose any corporal punishment against children. They must follow the disciplinary rules of the school and any sanction against children must be in accordance with the rules and regulation. Otherwise, the teacher or school authorities will face disciplinary and/or criminal consequences. Having said that, this does not reflect the current practice and culture in schools in Iran. Although it must be admitted that the application of corporal punishment has been decreased over the last several decades, it still exists while every now and then some extreme cases take the attention of the public and media.

For example in 2012 a series of separate incidents in the schools of a small town near Kerman were reported by newspapers where students where violently beaten and injured by their teachers. [1] Such incidents, however, are not limited to small towns and villages and similar incidents happen in big cities like Tehran.[2] The frequency and high number of these incidents across the country show the widespread and intense nature of the problem. It is also worth mentioning that not only some parents may turn a blind eye on some minor incidents, even in more serious cases they may not pursue legal proceedings against teachers and school authorities either, as they may fear that it will have negative consequences for their children. In fact, in some cases, the victims and their parents have been forced by school authorities to give their forgiveness and drop the criminal cases, and they often do so.[3] In sum, although disciplinary regulations and criminal rules are in place in order to punish the perpetrators, it is clearly not sufficient and more drastic measures are needed to overcome the problem.

 

  1. Impunity for Fathers

According to Shi’a jurisprudence as reflected in the IPC, a father, and any male paternal ascendant (e.g. father’s father), cannot be put to death for killing his child (or grandchild). This rule does not apply to the mother and the ascendant (e.g. mother’s mother). Article 220 of the old IPC stipulated that “[a] father or grandfather that murders his child shall not be sentenced to qisas [retribution], but only to ta’zir punishment and diya [blood money] for murder to the heir of the victim.” It was seen my some commentators as an impunity for fathers and paternal grandfathers to kill their children and grandchildren without facing any serious sanction.

The new IPC has kept the same rule but put it differently. According to article 301 of the new IPC:

“Qisas shall be delivered only if the perpetrator is not the father, or a paternal grandfather, of the victim …”.

Cases in which fathers kill their own children are usually cases of honour killing or marital disputes between parents. For example, in May 2014, a father killed his 17 year old daughter in Kangavar. He told the police that he had been fed up with his daughter’s behaviour for some time. According to him, his daughter had been out of town with some friends including some boys when in return they were arrested by the police and handed over to their families. [4] In another case, it was reported a father had murdered his 3 and 6 year old children following a dispute with his wife. [5]

In such cases, the qisas punishment (the death penalty) cannot be delivered against the father and he may only be sentenced to between three to ten years of imprisonment for disturbing the public order, at the discretion of the judge. It must be explained that the critics of this provision do not seek the death penalty for the father, but they stress that the only alternative punishment available, which is based on disturbing the public order and left at the discretion of the judge, is insufficient and sends a wrong signal to fathers that they may get away with killing their children.

 

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Footnotes:

 

[1] Source: Daily Etemad, 25 October 2012, No 2528, p. 13.

[2] For example in December 2014, a 15 year old boy was hit violently, including in his genitals, by his teacher which resulted in his hospitalization. Source: ILNA News Agency, News No. 229070, 1st December 2014.

[3] In December 2014, a sixth grade student was hit by his teacher in the head that fractured his nose. He went under surgery and requires a further surgery when he reaches 16. His father claimed that he was threatened by the Principal of the school that should he pursue his criminal complaint his son would be dismissed from the school. Source: Khordad News Agency, News No. 111087, 27 December 2014, available at <http://khordadnews.ir/news/111087>.

[4] Daily Etemad, 29 May 2014, available at <http://www.magiran.com/npview.asp?ID=2959517>.

[5] Source: Fars News Agency, 2 January 2015, <http://www.farsnews.com/newstext.php?nn=13931012000750>.

Inequality in Diya (Blood Money) for Girls under Iranian Law


Inequality in Blood Money for Girls 1
by
Mohammad Nayyeri
3:25 PM GMT
April 9th, 2015
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Inequality in Diya (Blood Money) for Girls under Iranian Law

Amongst the different laws of Islamic countries, the Iranian Penal Code is perhaps the only one that still specifies that a woman’s diya (blood money) is not equal to the blood money of a man. In fact, the blood money for a Muslim man is the standard against which the values of all other categories of persons are measured, both for life and for injuries. According to traditional Shari’a, the standard blood money for life is 100 camels or 200 cows or 1,000 sheep, which was given a monetary value of 1,500,000,000 IRI Rials [currently around $50,000 US Dollars] for the Iranian year 1393 (2014-15).

It must be explained at this point that the age of the victim does not make any difference with regard to the blood money. So, the same rules apply to individuals, including children, who suffer from bodily injuries regardless of their age. Unlike age, however, sex is a legal ground for inequality. Article 550 of the new Penal Code (similar to Article 300 of the old Code) provides that: “[t]he diya (blood money) for murdering a woman is half that of a man”.

Interestingly, although the new Penal Code insists on this unequal treatment, it has prescribed a new solution to alleviate the inequality of diya between men and women. The note to Article 545 provides that:

“In all cases of homicide where the victim is not a man, the difference between the diya and the diya of a man shall be paid from the Fund for Compensation of Bodily Harms.”

The Fund for Compensation of Bodily Harms was established to exclusively compensate bodily harms caused in hit and run car accidents or when the vehicle was not insured and the driver was not capable to pay the compensation. In fact, the IRI, while still insisting on this inequality, has found an unusual solution to the problem. However, this should not be viewed as a significant step towards equality for women: in the case of bodily injury that does not cause death, the diya for men and women is still only equal until it reaches to one-third of the full diya. That is, the one-third mark acts as a kind of trigger: once the diya of the injuries of a woman is higher than one-third of the full diya, it will be decreased to half that of a man’s diya for the same injuries. Article 560 of the new IPC states:

“The diya of [harm to] limbs and bodily abilities, up to one third of the full diya, is the same for man and woman; however if it reaches, or exceeds, one third of the full diya, the diya of woman shall be decreased to half.”

 

Therefore, if someone causes a 6 year old boy to go blind in both eyes, he would be given full diya equal to an adult man, while a 6 year old girl, if incurring the same injury, would only be given half of the full diya, and this is not payable from the Fund for Compensation of Bodily Harms. So, any assertion by the IRI authorities on the equality of blood money for both sexes under the new Islamic Penal Code must be dismissed.

 

Inequality in Blood Money for Girls Under Iranian Law 2

This was made crystal clear once more when, on 5 December 2012, an elementary school in the village of Shin-Abad near Piranshahr caught in fire due to a faulty heater and 28 of the student girls were severely burnt, while two of them lost their lives. [1] According to the law, the blood money for those who had injuries that required more than one third of the full blood money were offered half of the amount payable if they were boys. This included those who had died, where their parents were offered half of the full blood money. 18 of the students and their families agreed the deal and received the halved compensation. The rest, however, resisted and it was only after an intensive campaign of their lawyer and the families that the State-run insurance company agreed to pay the difference. [2]

However, this must not be confused and seen as equal blood money for girls, as it was an exceptional case, which was concluded by the discretion of the government outside of the court. Was it not because of a specific order issued by the Cabinet of Ministers, which in itself was motivated by the scale of the tragedy and the public outrage, the insurance company would have never paid the difference as it had no such obligation under the Penal Code. Therefore, it must be firmly stressed that the Penal Code discriminates against girls and the blood money for life and bodily injuries for girls are half that of boys. The same blood money rules discriminate against non-Muslim children who belong to religious minorities that are not recognised in the IRI Constitution, such as Baha’is. This requires an independent study.

 

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Footnotes:

 

[1] See: ISNA News Agency, <http://isna.ir/fa/news/92063119495/ناگفته-هایی-از-حادثه-شین-آباد-پس-از-10-ماه>.

 

[2] Khabar Online, 6 December 2014, <http://www.khabaronline.ir/detail/388651/society/education>.