Homosexuality in Iranian Criminal Law

People of same-sex orientation in Iran face the death penalty under Iranian law.

Homosexuality is against the law in the Islamic Republic of Iran. Sharia, the Islamic legal system, condemns homosexuality as a crime worthy of death. The Iranian criminal threatens gay individuals with lashes and the death penalty. Men always face the death penalty if they were the "passive" partner in a homosexual act. According to the underlying logic, such men behave like women, making them all the more unnatural.  The "active" partner faces the death penalty under certain conditions, and otherwise receive 100 lashes. Women receive a sentence of 100 lashes in all cases.

In the Iranian judiciary, people of same-sex orientation are referred to as ‘Luti’. This is an extremely pejorative term derived from Lot in Genesis and the Koran, and correspondingly the ‘people of Lot’, which are strongly condemned in the Koran.  In Persian and Arabic, the term has a significantly more negative, derogatory meaning than the English reference to "Sodom and Gomorrah", for example.  A "confession" can be punished by thirty one to seventy four lashes without other evidence.  A "confession" repeated four times is considered to be sufficient evidence of guilt for the full penalty of either 100 lashes or the death penalty. The Iranian judiciary can often extract "confessions" under torture as evidence.

In the revision of the Iranian Penal Code in 2012-2013, the laws in reference to homosexuality were altered.  The earlier version mandated that an ‘active participant’ (male) would receive the death penalty in all cases, when he was of age.  However, the limitation of ‘only’ up to 74 lashes for minors in the earlier version was removed in the new version.

 

Further Explanation

Parts of the Iranian penal code are disconcerting to Europeans to read, and can only be understood in the context of Islamic law, and the other Iranian laws derived from it. For example:

  • Art. 234 mentions a "permanent" wife. In Shia Islam, and therefore in Iran, ‘temporary marriage’ also exists; by the time of the wedding, it is already established that the marriage is set only for a certain period of time, or a certain number of sexual intercourses. In temporary marriages, the wives have even fewer rights than in a regular marriage, which can be terminated by the man at any time through renunciation.
  • The same article also speaks of a "pubescent" wife. According to Islamic law, marriage to a girl who is not sexually mature (pre-pubescent) is permitted, as long as their guardian and a religious judge agrees (qadi or Kadi).  The girl’s consent is not required.  The consent of the Shiite cleric is usually easy to obtain.  Theoretically, girls may be married in infancy in Iran.  However, vaginal intercourse with them is permitted from the age of nine; before that, it is not punishable, but the girl may not be disowned later.

‘Reform’ of the Iranian Criminal Code

After a long period of preparation, a revised criminal code has been put into effect since May 14, 2013 (24.2.1392 on the Iranian-Islamic solar calendar) in Iran.  In some areas, it contains gradual improvements.  However, the vast majority of the content which violates human rights is still a part of the new criminal code; in some areas, it has become even more severe.  The new Iranian criminal code continues to violate the Universal Declaration for Human Rights, international law, the UN Standard Minimum Rules, and binding human rights agreements that Iran has ratified in many ways.  Please see the article below for more information about male and female same-sex activity in Iran.

 

Penal Laws of the Islamic Republic of Iran

Part II
The Hadd punishment
Chapter One: Adultery

Article 232 - Where a man or woman confesses to zina (adultery) less than four times, s/he shall be sentenced to thirty-one to seventy-four lashes of ta’zir punishment of the sixth grade. The same punishment mentioned in this article shall be applicable in the cases of livat, tafkhiz, and musaheqeh.

[Note from the IGFM: In Iran, there are different criminal categories which are divided into eight levels of severity of punishment. For example: Stage six is 6 months to 20 years in prison, 31-99 lashes, 20-80 million riyals punishment]

Chapter Two:
Livat, Tafkhiz and Musaheqeh [Hadd punishments for homosexuality]
Article 233 - Livat is defined as penetration of a man’s sex organ (penis), up to the point of circumcision, into another male person’s anus.

Article 234 - The hadd punishment for livat shall be the death penalty for the insertive/active party if he has committed livat by using force, coercion, or in cases where he meets the conditions for ihsan; otherwise, he shall be sentenced to one hundred lashes. The hadd punishment for the receptive/passive party, in any case (whether or not he meets the conditions for ihsan) shall be the death penalty.

Note 1 - If the insertive/active party is a non-Muslim and the receptive/passive party is a Muslim, the hadd punishment for the insertive/active party shall be the death penalty.

Note 2 - Ihsan is defined as a status that a man is married to a permanent and pubescent wife and whilst he has been sane and pubescent has had a vaginal intercourse with the same wife while she was pubescent, and he can have an intercourse with her in the same way [vaginal] whenever he so wishes.

Article 235
- Tafkhiz is defined as putting a man’s sex organ (penis) between the thighs or buttocks of another male person.

Note - A penetration [of a penis into another male person’s anus] that does not reach the point of circumcision shall be regarded as tafkhiz.

Article 236 - In the case of tafkhiz, the hadd punishment for the active and passive party shall be one hundred lashes and it shall make no difference whether or not the offender meets the conditions of ihsan [mentioned in note 2 of article 234], or whether or not [the offender] has resorted to coercion.

Note - If the active party is a non-Muslim and the passive party is a Muslim, the hadd punishment for the active party shall be the death penalty.

Article 237 - Homosexual acts of a male person in cases other than livat and tafkhiz, such as kissing or touching as a result of lust, shall be punishable by thirty-one to seventy-four lashes of ta’zir punishment of the sixth grade.

Note 1 - This article shall be equally applicable in the case of a female person.

Note 2 - This article shall not be applicable in the cases punishable by a hadd punishment under Shari’a rules.

Article 238 - Musaheqeh is defined as where a female person puts her sex organ on the sex organ of another person of the same sex.

Article 239 - The hadd punishment for musaheqeh shall be one hundred lashes.

Article 240 - Regarding the hadd punishment for musaheqeh, there is no difference between the active or passive parties or between Muslims and non-Muslims, or between a person that meets the conditions for ihsan and a person who does not, and also whether or not [the offender] has resorted to coercion.

Article 241 - In the cases of indecent offenses, in the absence of admissible legal evidence and with denial of the accused, any type of investigation and interrogation in order to discover hidden affairs and things concealed from the public eye shall be prohibited. In cases with the possibility of commission of an offense with force, coercion, assault, abduction, or deception, or cases which are considered as commission [of an offense] with resorting to force, this rule shall not be applicable.

Explanation from the IGFM: According to Islamic law, Hadd punishments are considered penalties which concern the ‘legal rights of God’.  Your sentence is set, and the court has no room for discretion.  In ta'zir penalties, the judge has a margin for such discretion.