Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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Vol.41 N° 76
Enero
Marzo
2023
ISSN 0798-1406 ~ Depósito legal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión ycon fron ta cióndelasideas y avan ces cien tí fi coscon com pro mi soso cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
Di rec to ra
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OIRALITH
M. C
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Vol. 41, Nº 76 (2023), 849-861
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 22/10/22 Aceptado el 15/12/22
Determining punishment in light of
victim characteristics and actions, with an
emphasis on gender: comparative view of
the laws of England
DOI: https://doi.org/10.46398/cuestpol.4176.50
Mahya Hatmi *
Behzad Razavifard **
Anahita Sei ***
Abstract
The legislative principles to which a judge must pay attention
in determining the Ta’ziri (discretionary) penalty are included
in the four clauses that have been proposed in Article 18 of the
Islamic Penal Code. These four clauses are: a) the perpetrator’s
motive and psychological state; b) the ways of committing the
crime; c) the perpetrator’s actions after committing the crime,
and; d) the personal background. In such a view, the victim has no place
and, therefore, no eect of his intervention is seen. The victim status,
by emphasis on gender, is the objective that the present work intends to
examine with a descriptive-analytical method. For this research purpose
in a comparative look, the laws of Iran and England have been studied.
It is concluded that, what can be extracted from the criminal laws of Iran
and England is that, in the eld of substantive laws, the legislators of
these countries, while accepting the vulnerability of women in crimes in
general, have tried to criminalize some behaviors and actions that cannot
be considered as assaults, in the general conditions of protecting them.
Keywords: Ta’ziri sentencing; victim; gender; women; purchased law.
* Department of Law, Ardabil Branch, Islamic Azad University, Ardabil, Iran. ORCID ID: https://orcid.
org/0009-0009-9719-039
** Associate Professor of International Criminal Rights, Department of Criminal Law and Criminology,
Faculty of law and political sciences Allameh Tabataba'i University, Teheran, Iran. ORCID ID: https://
orcid.org/0000-0002-3171-8440
*** Assistant Professor of international Rights, Department of women’s studies, Faculty of social Sciences,
Allameh Tabataba'i University, Teheran, Iran. ORCID ID: https://orcid.org/0000-0002-1180-8334
850
Mahya Hatmi, Behzad Razavifard y Anahita Sei
Determining punishment in light of victim characteristics and actions, with an emphasis on
gender: comparative view of the laws of England
Determinación del castigo a la luz de las características
y acciones de la víctima, con énfasis en el género: visión
comparada de las leyes de Inglaterra
Resumen
Los principios legislativos a los que un juez debe prestar atención para
determinar la pena Ta’ziri (discrecional) se incluyen en las cuatro cláusulas
que se han propuesto en el artículo 18 del Código Penal Islámico. Estas
cuatro cláusulas son: a) el móvil del autor y su estado psíquico; b) las formas
de comisión del delito; c) Las actuaciones del autor después de cometer el
delito, y; d) Los antecedentes personales. En tal visión, la víctima no tiene
lugar y, por lo tanto, no se ve ningún efecto de su intervención. El estado
de víctima, por énfasis en el género, es el objetivo que el presente trabajo
pretende examinar con un método descriptivo-analítico. Para este propósito
de investigación en una mirada comparada, se han estudiado las leyes de
Irán e Inglaterra. Se concluye que, lo que se puede extraer de las leyes
penales de Irán e Inglaterra es que, en el campo de las leyes sustantivas, los
legisladores de estos países, si bien aceptan la vulnerabilidad de las mujeres
en los delitos en general, han intentado tipicar como delito algunas
conductas y actuaciones que no pueden ser consideradas como agresiones,
en las condiciones generales de protección de las mismas.
Palabras clave: determinación de la pena Ta’ziri; víctima; género;
mujer; derecho comprado.
Introduction
Punishment in itself has harassment, suering and torment, and in
terms of severity, it is described as severe, but its harassment has dierent
degrees. When the punishment is less annoyance, it is considered mild.
In other words, less punishment will equal less annoyance. Proportion
between crime and punishment means that the punishment is reasonable
based on the criteria that justify the increase or decrease of the severity of
the punishment annoyance.
Undoubtedly, determining the punishment for the perpetrator in
the light of the contribution of the crime’s victim in the formation of the
criminal phenomenon as well as his special characteristics, is one of the
issues that has always been and is always the concern of the legislators and
can be considered an important factor for determining the appropriate
punishments and reducing them, and to ignore it means to relinquish the
existing facts.
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The type of relationship between the crime victim and the criminal, guilt,
physical and psychological, religious and religious beliefs, gender, race
characteristics, the amount of crime victim’s property and other factors
are among the factors that are considered in the criminal laws of Iran
and other countries in mitigation, conversion of sentence and exemption
from perpetrator punishment is considered a fundamental factor, And in
some cases, they play a unique role in making to proportionate and fair
the crime and punishment.
In the initial part of the paper, the factor of the victim’s gender in the
determination of discretionary punishment will be discussed with an
emphasis on mitigation, conversion and exemption from punishment.
Of course, all members of the society are not equally exposed to the risk
of crime. The occurrence of a crime comes from the intersection of three
interconnected elements, a motivated criminal, a suitable victim, and the
absence of an obstacle to its occurrence (Farrell and Philip, 1995).
The characteristics of the victim, which from the point of view of a
criminal has the least cost of crime, will be a fundamental and important
factor to encourage and prefer him to commit criminal acts and even
repeat them. Features and attractions such as easy access, lack of risk or
low risk, controllability, impossibility of prosecution or inability of victim
to announce the prosecution of the criminal and similar factors play a
fundamental role in the choice of the crime victim to commit a crime.
The crime victim, due to the fact that he endures the crime occurrence
and loses situations and resources in most cases, undoubtedly needs
support. But some of its species deserve special protections, due to their
more vulnerable characteristics, especially in criminal and non-criminal
aspects (Mohammadi et al., 1394).
Vulnerability of this type of victims means that the crime occurrence
and its eects and consequences are far more than others. In other words,
the crime and its consequences will cause more damage to them.
Since in all this paper, it is emphasized that the victim plays an essential
role in determining the punishment, if we want to consider the severity of
crime as the basic basis of punishment and consider the severity of crime
including the degree of blameworthiness and harm caused to a victim, then
we will assume that the amount of punishment will depend on these two
elements. In other words, if the severity of crime is greater, punishment will
be greater and vice versa.
If vulnerable people become victims of crime, the level of blameworthiness
of a criminal and damage caused to them will be higher than non-vulnerable
ones. It is natural that if the countries have prepared and adjusted their
criminal policy in terms of substance and form in determining punishment
based on the severity of crime, the punishment of criminals of this type of
852
Mahya Hatmi, Behzad Razavifard y Anahita Sei
Determining punishment in light of victim characteristics and actions, with an emphasis on
gender: comparative view of the laws of England
victims will be designed more than others. In the second part of the research,
the factor of victim’s gender in determination of discretionary punishment
will be discussed with an emphasis on intensifying punishment.
1. The gender of victim and the causes of mitigation,
conversion and exemption from punishment
Regardless of the dierence in the creation of men and women and their
physical organs, which there is no dierence of opinion, but what is always
disputed throughout history is the dierence in personality, the dierence
with the equality of their individual and social rights. From ancient times
until now, extreme attitudes towards women can be found among dierent
groups of people in the society (Hosseini, 1388).
Examining the history of the evolution of women’s status in society
shows that women’s rights, like other legal rules and regulations, have
always been in line with the general expectations of society (Hekmatnia,
1400). And if he is considered a source of evil and ruin and inferior in
nature, his rights and privileges will be far less than men.
In ancient times, women were owned and traded as commodities in
the hands of men (Ahmedvand and Zivari Mirzai, 1400). By looking at
the oldest legal writing, known as Hammurabi’s law, which is fairer than
other regulations of its time, shows that that a husband could use women
and children as a pledge of debt, and in determining the punishment, they
have never had equal rights with men. In ancient Rome, the legal status
of women was not better than in other places, and women were under the
authority of the head of family (Sanei, 1382).
Her legal relationship was only determined with the male children, and
women had no legal status. Social developments, the economic and public
expectations that have arisen over the centuries have caused the dierence
in rights between men and women to decrease gradually. Today, in Western
countries, including England, there are rarely regulations that the woman
gender determines their individual and social eective rights than the
opposite sex.
In the criminal regulations of England, the gender factor does not play
a role in determining the type and reducing the punishment of criminal, as
it exists in the criminal laws of Iran. Nevertheless, some researches in this
country show that women have less punishment than men because they
have less criminal history and more informal mechanisms govern them and
they receive less prison sentences.
Women are less likely to be prosecuted (46.5% vs. 90% for men) and
women have a higher chance of being released on pledge than men (50%
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vs. zero), their psychological defenses and then use of their reduced
responsibility, is more than men (Wilzynski, 2007).
In ancient Iran, public views and expectations from women were such
that they were given an honorable position. Although in urban communities,
their rights and privileges were less than men and they were practically
under the inuence and domination of men (Sanei, 1382).
The position of women in Arabs before Islam was more serious than in
other parts of the world. They were deprived of individual and social rights
and were in the ranks of animals. In the shadow of this thought is that
Mothers have the rule of vessels that are created only for sperm (Sobhani
Tabrizi, 2019).
The history of women and girls among the Arabs is a strange story that
the Quran mentions it as one of the ugliest human behaviors, and thinks it
is far from humanity. Whenever they were told about the birth of a girl, they
blamed God and became black with sadness and anger and hide themselves
from the bad news and pressure of public opinion. They used to think that
they should bear the humiliation of keeping it or bury it alive in the soil
(Shiri Vernamkhashti, 2017).
The religion of Islam appeared in such a land and with its popularity as
an idea and brought about a profound change in the aairs of the individual
and social life of the society. Islam declared that all members of the Islamic
society, both male and female, from any race and country, have equal rights
and only their degree of superiority is divine piety.
It is for this reason that the Quran (book of Muslims), in various
commands, states general rulings for Muslims regardless of their gender,
and does not distinguish between men and women in determining
punishments, and considers everyone to have a single ruling.
The expansion of the religion of Islam to other lands, including Iran,
has had a profound eect on the regulations governing their personal and
social conditions. Among these laws are provisions on how to determine
punishment, especially in the case of a woman who is a criminal or a victim
of a crime. Despite lack of specifying the existence of this dierence in the
most important source of Islamic rulings, i.e., the Qur’an, on the one hand,
and emphasizing equality in determining the punishment of individuals,
in the other hand, Islamic scholars have expressed a dierence of opinion
regarding the dierence in the punishment of men and women.
Iran’s legislator has made a distinction in some punishments in cases
where the victim and the criminal are not of the same gender. In other
words, the gender of the victim and the criminal becomes relevant in
determining the punishment and plays a fundamental role in determining
the punishment.
854
Mahya Hatmi, Behzad Razavifard y Anahita Sei
Determining punishment in light of victim characteristics and actions, with an emphasis on
gender: comparative view of the laws of England
According to legal regulations, if a man intentionally kills a woman, the
murderer will not be avenged, unless the parents of the victim pay half of
the murderer’s ransom, or in the case of unintentional murder and fault,
the woman’s blood money will be half of the man’s blood money.
Or if a man (against a woman) is sentenced to retaliation, until the blood
money of the incomplete member does not reach a third or more than a
third of the full blood money, they will be equal to each other, and the
woman can only to retaliate when half of the blood money of that member
is equal, must to pay it to man.
In addition to the mentioned cases, it is possible to mention cases where
punishments are reduced and delayed due to the woman’s gender, in Article
182 of the Islamic Penal Law Bill, while the punishment of lashing and exile
is specied for a pimp man, and so for women, only the lash punishment
is mentioned. The punishment for homosexuality between women
(Masahaqa) in the mentioned law is the only punishment of lashing, while
the punishment for the same act (lawat) between men is death by execution.
In the formal laws, there is the attention to the special biological-
physiological considerations of women, which indicates a friendly
policy towards them. That corporal punishment should not be applied
during pregnancy and childbirth (Article 91 of the Civil Code) and the
implementation of the cover limit for a pregnant or lactating woman is
delayed in case of fear of harm to the pregnancy or the infant (Article 92
of the same law), as well as the provisions related to the implementation
of the punishment of retaliation for the woman (Article 262 of the same
law) and Article 3 of the letter on how to implement the punishments of
death, stoning, crucixion, amputation or organs disability of the judiciary
approved in 1370, all indicate the amicable view of the legislator in
determining and implementing punishment in Iran towards women.
Regardless of the justications that have been stated for such regulations,
it seems that rstly, there is no explicit text in the provisions of the Qur’an
regarding the discrimination of punishment between men and women,
and it cannot be inferred from the verses of the Qur’an that women are
inferior in terms of the amount and type of punishment (Mehrpour, 1384).
Secondly, the provisions related to retaliation and blood money is one of
the signing rules of Islam and it was issued according to the economic,
social and cultural conditions of the society of that day. Therefore, it cannot
be said that the non-change of this type of rulings is the same as the rulings
and punishments mentioned in the Qur’an.
Thirdly, the rulings related to the dierence between men and women’s
blood money have been stated based on traditions and hadiths that have
conicting traditions and hadiths against them, which have more strength
and conrmation in terms of foundations and documentation (Shiri, 2017).
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Fourthly, the lack of consensus of the Islamic sects in this regard and
even the Imamiyah religion, on the approval of the dierence in punishment
between men and women, and nally, considering the social and cultural life
conditions of the society and despite the existence of some of these types of
provisions, the legislator has not considered them as immutable provisions.
It is necessary for the legislator to revise this part of the regulations and to
solve this dierence according to the realities of the current society and the
evolution in the social, economic and cultural life of women.
2. The gender of the victim and the aggravating
factors of punishment
A woman (due to her gender), as well as her age, is one of the
other problems that, under the inuence of biological-physiological
considerations, can be a suitable target for criminals to commit a crime.
The vulnerability of this type of victim is intensied when oldness of age
accompanies them and it is thought that they have wealth or valuable
property (Kazhempour and Farjiha, 2018).
Violence against women is a fact that is more prominent than other
types of violence in criminology and victimology discussions (Rayejian asli,
2018). Cultural considerations and the social situation of every society and
the physical condition of women, has caused countries to adopt stricter
measures regarding crimes that are victims based on gender (being a
woman). These three axes are: the lack of inuence of gender in supporting
them, taking a dierent approach in supporting them and depriving them
of the same support than men (Mehra, 2004).
Looking at the criminal laws of Iran shows that although in most of the
crimes committed against women, there is no dierence between them and
men and they adopt the rst approach and, in some cases, they take the
second approach, but in other cases, they are also in the criminalization
stage. And in determining the punishment, criminal protection of this type
of vulnerable victims has arisen in a more severe way (compared to men)
(Azimzadeh, 2014).
Intensication of punishment for insulting and harassing women in
public places compared to men, protection of pregnant women against
physical violence, punishment for desertion, obligation to register marriages
and divorces in order to prevent men from abusing women (for example,
not paying alimony to them) and punishing people who cheat in marriage
with them, destroying a girl’s virginity, criminal protection against stealing
and prohibiting the marriage of women before puberty and punishing those
who are responsible for it and committing adultery with reluctance and
violence and determining the death penalty for the reluctance (the subject
856
Mahya Hatmi, Behzad Razavifard y Anahita Sei
Determining punishment in light of victim characteristics and actions, with an emphasis on
gender: comparative view of the laws of England
of Article 82 AH). M. A. 1370) is the main eort that the Iranian legislature
has taken for criminal protection and adopting a more severe dierential
approach in determining the punishment compared to similar cases for
female victims.
Another title of crimes against persons that women are its subject, is the
crime of human tracking. One of the most important and widespread types
of human tracking is the women and children tracking. Prostitution and
buying and selling of women are not a new social phenomenon of slavery,
but it has existed in human societies for a long time.
Business women in Europe are engaged in this work under the title the
White Slavery, a so wide networks and gangs such as “Triad, Yakuza and
Maa” are active in this case, use women in what is called the so-called
business or sex industry in Europe or in the Far East countries including
Philippines, South Korea and Thailand employ them as slaves.
In this industry, women are priced like commodities and are abused as
means of pleasure (Attazadeh, 2013). Many of them leave their country with
the promise of work or marriage and then become captives of corruption
centers.
According to the report of the International Center Immigration in
Eastern and Central European countries, about 250,000 to 300,000 women
and girls were victims of prostitution gangs every year. This is despite the
fact that in many of these countries, there was no punishment for trackers
and the probability of their arrest and punishment was very low.
According to the report of experts group of the Council of Europe
estimated the annual income from this trade to 13 billion dollars. Women
in these gangs are sometimes bought and sold up to 18 times. According to
this report, women in Moldova were bought for 150 dollars and then after
entering Italy, they are sold to dealers at a rate of 5 thousand dollars.
The legislator of Iran has dealt favorably with various angles of
misbehavior and abuse of women. The existence of the trust of these victims
and the lack of information about their fate, living in a place where they
are known as immigrants, cultural conict and living in a context that they
are alien to it, and the fact that most of these victims lack the identity and
residency documents and lack of access to ocial and unocial authorities.
For legal protection, there are many cases that increase the vulnerability of
this type of victims (Azimian, 2018).
The law combating against human tracking approved in 2013 imposes
heavy punishments, including death, on the perpetrators of criminal acts
that cause the exploitation and abuse of women, and by expanding the titles
of criminals such as intention of abusing them or starting to carry out this
type of criminal acts, both in the level of criminalization and in the amount
of their punishment, has dealt with more extent and severity.
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Another issue that is important and fundamental to mention in crimes
against women is actions and behaviors that occur against women in
the family environment. In the family, due to various cultural, religious,
linguistic, nancial dierences or any other reasons, some victims of
family violence are more vulnerable than others and are abused in some
cases. Iran’s legislator has paid attention to this issue in some cases and
by criminalizing those who use a child for seduction (mostly their parents
or relatives) in 1375; they have been punished with up to two years of
imprisonment.
Adultery with incest is also It is one of these actions for which the death
penalty is imposed (the subject of clauses A and B of article 82 of 1370 I.P.
Code of the Islamic Republic of Iran). However, regarding crimes that occur
in the family, the gender of the woman has no dierence in determining the
punishment of the perpetrator and it is the same as other victims and no
special criminal protection has been provided for them.
Among other actions and behaviors that cause deviation and corruption
and damage the dignity and position of a person is pornography. Such
actions, whose victims are mostly women and children, include things
such as photos or erotic writings, which can actually be a kind of artistic
representation of men’s violence against women in this context. Pornography
is not limited to obscene images, but obscene writings are included too.
In the Islamic Penal Code of 1375, in dealing with these types of crimes,
which mainly women are the victims, various criminal regulations have
been prescribed and for the perpetrators, various punishments including
imprisonment, lashing and nes have been stated, which indicates the
sensitivity of the legislator in this regard.
Considering the criminal laws of England, it indicates that it rejects the
third approach (no less protection for them than men) among the three
methods presented for women who are victims of crime, but with the criteria
presented to determine the severity of the crime and that vulnerability of the
victim is considered as one of the cases of aggravating punishment, gender
as an example of vulnerability is considered as one of the aggravating factors
of the crime, violence in the family and the dangers that exist for women are
among the things that cause concerns for the politicians of this country. In
2001, it was announced that the cases of domestic violence against women
reached to 150,218 cases.
The police announced that one person asked for help in family crimes
every week. Meanwhile, this gure for men was about ve percent. In the
eld of crimes that led to murder, one third of the victims were women who
were killed by their partners.
The increase in family violence and the duty of the government to
respond to the calls of this type of victims and to be aware of their needs
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Mahya Hatmi, Behzad Razavifard y Anahita Sei
Determining punishment in light of victim characteristics and actions, with an emphasis on
gender: comparative view of the laws of England
and the costs of notication, have caused the government of this country at
rst communicate this message to the decision-making centers, including
the police, the prosecutor’s oce, and the court, through a circular, that
family crimes are like crimes committed by strangers and should not be
considered less severe in determining the punishment for the perpetrators.
In these circulars, the presumption of the perpetrator’s arrest has been
created and in view of this, in 2003, special “family violence” courts have
been created to deal specically with these crimes. Creating eciency for
the criminal justice system and facilities, providing information, advocacy,
obtaining consent and building trust for this type of victims are the
foundations of the establishment of these courts. This caused these courts
to reach 25 courts across the country in 2005. According to the forecasts,
the number of these courts across the country will reach 300 by 2025 year.
Among the measures taken for criminal protection of these victims
there was seen the Law of Family Violence, Crime and Victims of 2004,
which provides special protection for this type of victims. It is stated in the
provisions of Article 5 of this law, in cases where a child is under the age of 16
or a vulnerable adult (according to the guidelines of the sentencing council,
women are considered vulnerable cases), as a result of an intentional illegal
act, due to violence or Abuse, or in the event that, as a result of tolerance,
she suered severe physical injury or caused her death, will be sentenced to
the punishment corresponding to any of the crimes committed.
In general, any action to prevent the victim from reporting the criminal
act, expelling the victim from home and the place of residence, committing
the crime in front of children and preventing the victim from helping
the victim in family crimes, based on the guidelines of the Council for
Determining the Punishment is from the aggravated cases of punishment
and the courts in determining punishment of perpetrator should take them
into assessing severity of crime and then determining the punishment.
Another law that can be mentioned in order to protect women in England
is the 2003 Sexual Oenses Act, which has developed the general nature of
crimes regarding rape. According to articles 1 to 4 of the mentioned law,
while determining the punishment of life imprisonment for sexual assault
(in the special sense of sexual penetration) against the consent of a woman,
sexual contact with the body of victim (woman) and engaging her in a sexual
act without her consent is considered a crime, and predicted a punishment
of up to 10 years of imprisonment for the perpetrator (Nane, 2017).
Meanwhile, according to Article 637 of the Islamic Penal Code in Iran,
this criminal act is only punishable by up to 99 lashes. Human tracking
and Sexual abuse and exploitation in England are the crimes that have been
given special attention in the Sexual Crimes Act of 2003.
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According to articles 57 to 60 of the aforementioned law, those who
intentionally and knowingly engage in human tracking and entering and
exiting of persons and facilitate and arrange this action, the punishment for
perpetrator (based on the indictment in the criminal court) will be up to 14
years of imprisonment (Keren-Paz, 2013), the punishment will be applied
for another person who exploits and sexually abuses the tracked person
too.
Among the other regulations that can be mentioned in this regard, Article
(1) of the Law of Intentional Murder (Law on the Abolition of the Death
Penalty) approved in 1965 states that in case of committing an intentional
murder, the perpetrator shall be imprisoned for life imprisonment. But this
does not mean that he will spend his entire life in prison, but he can be
released from prison after serving at least time and based on the judgment
of the court for the rest of his imprisonment.
According to Articles 269 to 277 and Table No. 21 of the Criminal Justice
Law of 2003, spending the minimum term of imprisonment and using the
mentioned freedom is dierent for persons 18 years old and above and
persons under 18 years old. The law has specied this period as 15 years
for the rst age group and 12 years for the second age group, but it is
stated in the mentioned provisions, if the intentional homicide occurred
during sexual or sadistic behavior (harassment) and the victim was killed
intentionally.
In the case, the mentioned minimum is increased to 30 years of
imprisonment (Randall, 2010) The law of powers of the criminal courts of
2000 also adopted such an approach. In article 109 of this law, it is stated
that if a criminal commits for the second time, commits the crime of rape or
initiates it, the court is obliged to issue mandatory life imprisonment to the
oender and cannot issue a lesser punishment to him.
Conclusion
The legislative principles that the judge should pay attention to it in
determining the punishment; There are 4 clauses that are mentioned in
Article 18 of the Islamic Penal Code: In this article, the legislator has stated
that court in issuing Ta’ziri (discretionary) judgements, by complying with
the legal provisions, takes the following into consideration:
a. the motive of the perpetrator and his mental and psychological state
during the crime commission;
b. the ways of committing the crime, scope of the breach of duty and
its harmful results;
860
Mahya Hatmi, Behzad Razavifard y Anahita Sei
Determining punishment in light of victim characteristics and actions, with an emphasis on
gender: comparative view of the laws of England
c. The actions of the perpetrator after crime committing and;
d. personal, family and social background and status of perpetrator
and to impact punishment on him, which is not considered in this
article and has been discussed in this research, it is the condition of
victim and its eect on the determination of punishment.
In this paper, the eect of the victim’s gender in determining the
punishment in two debates, mitigating and aggravating the punishment,
has been studied. In many cases, the gender of a woman can cause a friendly
look due to the attention given to the biological-physiological considerations
of women, which the legislator of Iran has shown in many cases.
What can be extracted from the codes of criminal laws in Iran and
England is that legislators of these countries have tried to criminalize
some behaviors and actions that may not be considered crimes in general
conditions in the eld of substantive laws, including criminalization to
protect them, and in the eld of formal laws by allocating special courts
like what is done today in England, express their criminal support for them.
However, it can be said that the support of the English legislator is more
extensive in compared to what exists in Iran’s criminal laws.
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Esta revista fue editada en formato digital y publicada
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