The following is a guest post by Barry Lerner, an editor in the Global Legal Research Directorate of the Law Library of Congress.
From time to time, there are news articles or reports of stoning being used as a punishment for certain crimes in Iran and Afghanistan. In this post, I examine the prevalence of this punishment for the crimes of homosexuality and adultery in those two countries, the legal basis for imposing the punishment, and the availability of privacy protections for victims of sex-related crimes.
1. How prevalent is stoning as a punishment for adultery and homosexuality in Iran?
Currently, the use of stoning as a punishment appears to be a rare occurrence in Iran, although it still does take place. Human rights groups have reported or documented by name that 150 people were stoned to death in Iran between 1980 and 2009.
According to a 2016 New Yorker article on Iranian women’s rights activist Asieh Amini, a moratorium on stoning was decreed in 2002 by then-Chief Justice Ayatollah Mahmoud Hashemi Shahroudi, and sources indicate that very few cases of stoning have occurred in Iran since 2009. Nevertheless, as Amini discovered in the course of her activist work, hard-line fundamentalist judges have defied Shahroudi’s decree and imposed stoning sentences, which have been carried out in secret. Amini thus concluded that “a profound battle was waging inside the judiciary,” and that even if she and her friends in the women’s-rights community succeeded in persuading the government to accept their demands for equality and the repeal of discriminatory laws, judges who considered themselves answerable not to the government in Tehran but to Shari‘a (Islamic law) “would make [their] own decisions, independent of treaties or legislation or the policies of Shahroudi.”
Hands Off Cain, a league of citizens and parliamentarians for the abolition of the death penalty worldwide, reports the following:
Iran had the world’s highest rate of execution by stoning, but no one knows with certainty how many people have been stoned in Iran. According to a list compiled by the Human Rights Commission of the National Council of the Iranian Resistance, at least 150 people have been stoned in Iran since 1980. The reported numbers are probably lower than the actual numbers, because most of the condemnations to stoning issued by the Iranian authorities are handed down secretly, as well as for the fact that so little information is actually available from many prisons in Iran. Shadi Sadr, who has represented five people sentenced to stoning, said Iran carried out stoning in secret in prisons, in the desert or very early in the morning in cemeteries.
From 2006 to 2009, stoning was carried out at least once a year for a total of at least seven executions; the last was carried out on 5 March 2009 on a man condemned of adultery.
Since 2015, at least two women convicted of adultery have been sentenced to stoning, according to the report of the Special Rapporteur on the situation of human rights in the Islamic Republic of Iran, Ahmed Shaheed, submitted to the UN General Assembly on 30 September 2016.
In July 2016, the Government asserted that the judiciary had converted these sentences to other punishments and that no stoning sentences had been carried out in the country in recent years. However, the Government noted that criminalization of adultery is consistent with its interpretation of Islamic law and that stoning is an effective deterrent. Three death sentences by stoning were recorded during 2017.
2. What is the legal basis for the punishment of stoning for adultery and homosexuality in Iran?
The legal basis for the punishment of stoning (رجم , rajm) lies in the Iranian Penal Code. (Penal Code of Iran, Apr. 21, 2013, Persian original, English translation of Books 1–2.) Book 2 (بخش دوم ) of the Code covers Islamic hudood (حدود), which are those crimes with fixed and severe punishments in Islamic sources, including adultery (زنا , zenaa) and sexual acts between men (لواط , levaat) and between women (مساحقه , mosaahaqa). A full description of the circumstances and punishments relating to adultery is found in Book 2, articles 221–232 (ماده ۲۲۱ ـ ۲۳۲) of the Code. The draft version of Iran’s new 2013 Penal Code had omitted stoning as a penalty for adultery, but in April 2013, Iran’s body of religious jurists, the Guardian Council, reinserted the provision while vetting the Code for conformity with Iran’s Constitution and Shari‘a.
Articles 233 to 241 of the new Penal Code address sodomy (levaat) and non-sodomy homosexual acts (تفخیذ , tafkheez). Articles 221 to 288 list a number of hudood acts, including lesbianism (mosaahaqa). Although the new Penal Code makes no specific reference to the death penalty for mosaahaqa, article 136 of the Code imposes the death penalty for hudood offenses that are committed four times.
Other useful sources on stoning for adultery and homosexuality in Iran are as follows:
- Iran Human Rights & Ensemble Contre la Peine de Mort, Annual Report on the Death Penalty in Iran 2019 (2020).
- UK Home Office, Country Policy and Information Note, Iran: Adulterers (Oct. 2019).
- Kameel Ahmady, LGB in Iran—The Homophobic Law and Social System, 6(1) Swift J. Soc. Sci. & Human. 1–13 (Jan. 2020).
- OutRight Action International, Human Rights Report: Being Lesbian in Iran (2016).
- Iran Human Rights Documentation Center, Denied Identity: Human Rights Abuses against Iran’s LGBT Community (2013).
- Yasaman Yousefi, Constitutional Gender Violence: Stoning in Iran, SDWatch (July 15, 2020).
3. What is the legal basis for stoning in Afghanistan, and how frequently is stoning used there?
Neither the Afghanistan Penal Code of 1976 nor the new Penal Code adopted in 2017 contains a provision for the use of stoning, although those convicted of adultery are subject to long prison sentences. Stoning became an official punishment for certain crimes during the period of rule by the Taliban (who employ strict interpretations of Shari‘a) from 1996–2001, and “convicted adulterers were routinely shot or stoned in executions conducted in front of large crowds.” After the Taliban were overthrown, the punishment of stoning convicted adulterers was reportedly “banned under Afghan law,” but even today, in many areas controlled by the Taliban, warlords, or tribal leaders, both women and men found guilty of having a relationship outside of marriage or an extramarital affair are sentenced to death (including by stoning) or publicly flogged. Afghan officials often blame the Taliban for such punishments. According to legal scholar Yasaman Yousefi, however, unlike in Iran, cases of stoning in Afghanistan have not generally sparked campaigns by international bodies, and women’s organizations and activists in Afghanistan have not received much international support.
The following sources provide useful information on the Afghan legal system, the Penal Code, and the punishment of sexual crimes:
- Charles H. Norchi, The Path of the Law in Afghanistan: From Custom to Code, Maine L. (May 9, 2019).
- Afghanistan Penal Code, 2017, International Committee of the Red Cross: National Implementation of IHL.
- Siavash Rahbari, From Normative Pluralism to a Unified Legal System in Afghanistan?, 5(2) Asian J. L. & Soc’y 289, 296–98 (Oct. 2, 2018). See, especially, 2.1.3 “The Penal Code and Hudud: A Pragmatic Punt” for a discussion how the 1976 and 2017 Penal Codes differ in treating hudood.
- Murtaza Rahimi, Afghanistan’s New Penal Code: Whether or Not to Codify Hudud and Qisas, University of Texas at Austin School of Law, The Bernard and Audre Rapoport Center for Human Rights and Justice (June 26, 2019).
- Afghanistan Legal Education Project (ALEP), Stanford Law School, An Introduction to the Criminal Law of Afghanistan (2d ed. 2012).
- Torunn Wimpelmann, Adultery, Rape, and Escaping the House: The Protection and Policing of Female Sexuality in Afghanistan (Chr. Michelsen Inst., CMI Working Paper WP 2017:9, 2017).
- Aziz Hakimi & Torunn Wimpelmann, Missing from the Picture: Men Imprisoned for “Moral Crimes” in Afghanistan, CMI Insight, No. 2 (June 1978).
4. What case law exists concerning stoning in Iran and Afghanistan?
It is not possible to find case law in Iran. According to testimony provided to a UK Immigration Appeal Tribunal (RM and BB (Homosexuals) Iran CG  UKIAT 00117) by Anna Enayat, an Iranian scholar at St. Antony’s College Oxford and expert on Iranian human rights issues, “‘there is no general concept of precedent in the Iranian legal system and . . . judgments therefore do not constitute case law in the sense of which the common law would understand it.’ . . . Ms. Enayat added that to the best of her knowledge there are no published examples of the rulings of provincial Courts of Appeal.” The same situation appears to apply to Afghanistan. (See European Union, European Asylum Support Office Country of Origin Information (COI) Sector, Afghanistan: Criminal Law, Customary Justice and Informal Dispute Resolution (July 2020).)
5. What privacy laws related to sexual offenses exist in Iran and Afghanistan?
I was unable to locate resources on privacy laws in relation to sexual offenses in Afghanistan.
Hajar Azari and Nasrin Tabatabai Hesari in their recent, comprehensive treatment of privacy in Iran in relation to sexual crimes state that the Iranian legal system is based on Islamic law, and that
the notion of justice . . . inherent in Islamic law . . . can be considered as potential to support the right to privacy. The fact that different Quranic verses and the tradition[s] of the [P]rophet have emphasized privacy, dignity, justice and honor for humankind and specifically victims can be a factor for legalizing the right to privacy. In addition, considerable advice can be found in Quranic verses[ and in Hadiths (traditions of [the P]rophet)[,] as well as in the speeches of religious leaders that have strictly prevented people from violating the privacy of others. However, the term “privacy” has not been used explicitly in Islamic verses and Hadiths, mainly because Islamic values such as the right to privacy have been represented in a content-based approach; in other words, there is a type of support for the essence of privacy without mentioning its term in the source of law making in Islamic law. For instance, privacy has been supported in the form of referring to other rights and freedoms such as the right of property, the right of liberation of conducting searches, the Acquittal principle, the right of being secure[ ] and the rights related to personality. The sources of law making in Islamic law protect the right to privacy from different aspects such as privacy of homes, communications, private affairs, and personal ideas and beliefs. . . . [Thus,] the right to privacy has been supported under Islamic law and it is not permitted to violate it unless it comes against the right of other people or public order.
The Iranian legal system protects the right to privacy under different categories of law including the constitution, Iranian criminal code, Iranian civil procedure code, [and] the rules related to postal, phone and Internet communications. However, it does not dedicate a specific chapter in particular to the right of privacy. (Hajar Azari & Nasrin Tabatabai Hesari, Protection of the Right to Privacy under International Law and the Iranian Legal System with a Focus on the Victims of Rape, 13(9) US-China L. Rev. 641, 653–54 (Sept. 2016).)
The authors then discuss the implicit and ambiguous nature of rights and privacy protections that might be afforded to victims of sexual crimes by the Iranian Constitution, Criminal Code, and Code of Criminal Procedure, as well as the deficiencies in these rights and protections (id. at 654–63), concluding as follows:
In the context of the Iranian legal system which is based on Islamic law, it can be said that the effect of violating privacy of the victims of sexual crimes is more important than in other crimes because these kinds of crimes are a taboo in Islamic society. Therefore, the effects of such disclosures are not only problematic for victims, but also for their partners, families and especially children. Considering the fundamental principles of Islam, the privacy of people should be protected at a domestic level [in] Islamic countries as well, and neither people nor state officials should violate it unless it is in contrast with public interest or the rights of other people.
In this context, it can be noticed that despite this right [being] inferred from Islamic principles, it is necessary that a clear definition of this right, its different aspects and the punishment of violating this right be submitted in the Iranian legal system. Although the Iranian legislative system, as mentioned in the text, took an approach to protect this right, proper measures are needed to protect and monitor the implementation of the privacy of victims of rape and other sexual crimes. Therefore, the improvement in the substantive law of the Iranian legal system should consist of training judicial and police staff in order to ensure that this right is implemented properly. (Id. at 664.)
The sources of Iranian law that the authors make reference to and quote from are as follows:
- Constitution of Iran (Persian original) (English translation).
- Penal Code of Iran (see links above under question 2).
- Penal Code of Iran, Bk. 5 (Persian original).
The Code of Criminal Procedure can be accessed as follows:
- Code of Criminal Procedure of 1392 (2014), adopted Mar. 3, 2014.
- Amending Law of 1394 (2015) for 1392 Code of Criminal Procedure, adopted June 14, 2015.
The English translation of Book 5 of the Penal Code contains the following introduction:
Book Five is the only part of the Penal Code that has been adopted permanently and unlike the rest of the Penal Code is not subject to experimental periods. Passed on May 22, 1996, Book Five deals with ta’zir crimes (offenses for which punishments are not fixed) and deterrent punishments, crimes against national security, crimes against property and crimes against people. Book Five also deals with theft, fraud, forgery, insult and a wide range of other offenses.
Although the Penal Code was amended in January 2012, and the new version subsequently adopted in 2013, Book 5 was not subject to the revision. Recently, however, the Iranian parliament passed a law amending articles 499 and 500 of Book 5 on February 15, 2021.
The Azar and Hesari article refers to and translates various articles in Book 5 of the Penal Code on pages 256–57. However, the numbering of the provisions does not align with the article numbers in the 2013 version of the Code. We have therefore provided below a table with the authors’ article numbers followed by the article numbers in the English translation of Book 5 of the 2013 Code cited above.
|Azar & Hezari Article||IHRDC Penal Code|
|Art. 802||Art. 570|
|Art. 812||Art. 580|
|Arts. 691, 692, 694||Arts. 691, 692, 694|
|Art. 814||Art. 582|
|Art. 918||Art. 694|
|Art. 836||Art. 604|
|Art. 448||Art. 648|
|Art. 868||Art. 641|
|Art. 893||Arts. 668–669|
In addition, section C of the Azar and Hesari article, which begins at page 657, makes reference to a previous version of the Code of Criminal Procedure and to the draft version of the new Code of Criminal Procedure that had not been approved at the time the article was written, but whose approved and amended versions have been cited above.
For an analysis of the 2014 Code of Criminal Procedure, see Amnesty International, Flawed Reforms: Iran’s New Code of Criminal Procedure (2016).
Other sources regarding sexual crimes and related privacy laws in Iran are as follows:
- Ansari Bagher, Protection of Privacy in Islam and in Iran’s Legal System (Comparative Study), Private Law Studies No. 66 (Winter 2005), (Persian original), (English abstract).
- Mohammad Habibi Mojandeh, Privacy in Islam and Iranian Law (Working Paper presented at British Institute of International and Comparative Law, Workshop on Privacy in the Law, Nov. 30, 2007).