نوع مقاله : مقاله پژوهشی
نویسندگان
1 نویسنده مسئول، استادیار گروه فقه و حقوق اسلامی، دانشکده الهیات و علوم اسلامی دانشگاه تبریز، تبریز، ایران.
2 استادیار گروه فقه و حقوق اسلامی، دانشکده الهیات و علوم اسلامی دانشگاه تبریز، تبریز، ایران.
3 دانشجوی دکتری فقه و مبانی حقوق اسلامی، دانشکده الهیات و علوم اسلامی دانشگاه تبریز، تبریز، ایران.
چکیده
کلیدواژهها
موضوعات
عنوان مقاله [English]
نویسندگان [English]
Objective: Iran's criminal law has established specific provisions on limits and penalties to combat various forms of sexual crimes, but it has not dedicated a special regulation to prostitution. Action to improve the status of women globally is very necessary, and the International Convention on the Elimination of All Forms of Discrimination against Women was created to create full equality between women and men and eradicate discrimination against them. A comparative assessment of the approach of Iran's criminal law and the International Convention on the Elimination of All Forms of Discrimination against Women to the phenomenon of prostitution and an analysis of the reasons for Iran's non-membership in this convention.
Method: This research was conducted using a descriptive-analytical method and through the collection of library information.
Results: The aforementioned convention is a reflection of Western feminist ideals and, due to differences in cultural and religious structures, standards, and different interpretations of the status of women in different regions, has failed to create a real consensus, especially in Islamic countries.
- Iran's criminal law rejects prostitution as a sexual crime, but Iran's membership in the Convention has not been achieved due to religious obstacles and the need to repeal criminal provisions that contradict it.
- At the same time, there is the possibility of membership with limited reservations.
Conclusions: Although both legal systems (Iran and the Convention) treat prostitution as a criminal phenomenon, differences in cultural, religious, and legal foundations have caused Iran to not join this Convention, despite the possibility of conditional membership.
کلیدواژهها [English]
چکیده تفصیلی
Introduction
Islam does not provide equal rights, duties, and punishments for men and women, but rather, in some cases, it has adopted a similar legislative approach and in other cases, it has recognized differences in rulings, considering the capabilities and capacities of each. "Islam rejects a one-dimensional view of men or women and, considering the nature, ability, and talent of each of them, has provided privileges in accordance with their status and capacity for each". Today, following the modernization of societies, women have had a more prominent presence in social arenas. These developments have created changes in the economic and social status of societies and have affected the type, method, and extent of crimes committed by women. In most legal systems in the world, formal and substantive laws in the criminal field have been enacted with the aim of legally protecting women. The main issue is to what extent, in the field of sexual crimes, and especially prostitution, can a woman's right to control her own body be affected by criminal regulations. This research, with regard to the ratification of the Convention on the Elimination of All Forms of Discrimination against Women, examines how to create consensus among countries, especially Islamic countries, and the role of Islamic culture and identity in adherence or non-adherence to such treaties.
Method
This research was conducted using a descriptive-analytical method and through the collection of library information.
Results
Gender discrimination: The 1979 Convention on the Elimination of All Forms of Discrimination against Women, based on Article 1, defines gender discrimination as follows: "The establishment of any distinction, exclusion or restriction on the basis of sex in the political, social, economic, cultural, civil or any other field".
Prostitution: The nature of prostitution lies in the commission of the crime of adultery by a woman with her own intention and consent and with the motive of receiving money. This phenomenon has two basic elements: "The provision of any sexual services by a woman" and "the receipt of money or financial interest in return" (Karimi Majd, 2001). In jurisprudential texts, terms such as "al-mashhourah belzena" and in a narrative quoted from Imam Sadegh, the term "dawaei va baghaya" have been used. The term "dawaei" and "baghaya" in this narrative refers to women who attract men to themselves (for financial and non-financial reasons) or are known as "zena" (adultery) (Hor Ameli, 1414AH, 2/368).
This convention seeks to comprehensively combat gender discrimination. In criminal matters, Article 2, paragraph "m" obliges States Parties to abolish all national criminal provisions that discriminate against women. Article 6 also states: States Parties will take all appropriate measures, including the enactment of laws, to prevent the illicit traffic in and exploitation of prostitution of women. However, the convention does not provide a definition of prostitution and does not recommend specific criminal means to combat it. The spirit of the convention is the rejection of any discrimination and the emphasis on the full equality of women and men. This approach is in serious conflict with Iran's criminal regulations, which are based on Article 4 of the Constitution and its preamble, which originate from Islamic teachings and Shiite jurisprudence. The effect of membership in this convention for Iran and Islamic countries is the fading of the institution of family and religion as a result of changing some principles of the Constitution related to Islamic teachings about women and men, as well as changing and repealing criminal regulations derived from jurisprudential and religious teachings.
Substantive law: In Iran's criminal law, prostitution is not defined as an independent crime, but is dealt with in the form of Haddi and Taziri sexual crimes such as adultery, Mosahagheh, and illicit relation below the Hadd. The Islamic Penal Code approved in 2013 defines adultery in Article 221 as follows: "Adultery is intercourse between a man and a woman who are not married and it should not be one of those cases where they think that there is a marital relationship between them". For a prostitute who consents to commit adultery or illicit relations, punishments such as the death penalty (in certain cases), 100 Haddi lashes, or up to 99 Taziri lashes are provided. In some cases, such as adultery with one's stepmother, the death penalty is prescribed only for men, which is considered a form of positive discrimination against women.
Criminal Procedure Code: The Criminal Procedure Code approved in 2013 refers to differentiated proceedings in Article 42 and stipulates: "Interrogations and investigations of women and minors should be carried out by trained female officers, if possible, and in accordance with Sharia standards". However, the establishment of a special prosecutor's office or court to investigate crimes against women has been neglected. According to Articles 241 of the Islamic Penal Code and 102 of the Criminal Procedure Code, the principle of prohibiting prosecution and investigation of crimes against modesty, including prostitution, is prohibited except in cases specified by law. Jurisdiction to hear charges of prostitution lies with Criminal Court One or Two, depending on the type of crime committed and its punishment.
Conclusions
A study of the provisions of the Convention and Iran's criminal law shows that although both systems treat prostitution as a criminal phenomenon, the differences in cultural, religious, and legal foundations are fundamental. The Convention was formulated with an individualistic and extreme approach to gender equality, in a concise and general manner, and the observance of normative considerations of Islam or other religions is largely dependent on how the provisions of the Convention are adapted to the existing examples in each society. On the other hand, the Iranian legal system considers all its provisions to be inspired by the rulings of Sharia and Imamieh jurisprudence, and within this framework, the principle of equality and dignity of women has not been neglected. These differences have caused Iran to not join this Convention so far, despite the possibility of conditional membership. However, the need to amend laws and regulations related to gender discrimination cannot be completely ignored. In cases where changing the rulings does not contradict Islamic standards (based on the rule "the ruling must be based on the cause, whether it exists or not"), it is possible to amend the laws. The proposed solution for potential membership is to impose a limited and specific reservation on provisions that are contrary to domestic law, even if this reservation is contrary to international custom, the will of the parties, or the objectives of the Convention. (Ghamat and Qomi, 2012) This approach is based on the jurisprudential rule "the majority, whenever possible, is preferable to subtraction".
Author Contributions
All authors participated equally in the design of the study, writing the article, and editing the final versions.
Data Availability Statement
Data available on request from the authors.
Acknowledgements
The authors would like to thank the officials of the Faculty of Theology and Islamic Sciences, University of Tabriz, who provided spiritual and scientific support for this research.
Ethical Considerations
Cases such as falsification of data, distortion of results, plagiarism, and any other unethical behavior have been strictly avoided in this study.
Funding
This study was conducted without receiving any financial support from government, commercial, or non-profit organizations.
Conflict of Interest
The authors declare that there are no conflicts of interest in connection with this study. In other words, there were no financial or personal interests that could affect the results of the study.
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