پژوهش تطبیقی حقوق اسلام و غرب (Sep 2022)

The Islamic and Western Criminal Law Approaches to Rape (A comparative Study)

  • mohammadali elahi,
  • mohammad ali heidari,
  • Mohsen shekarchizade

DOI
https://doi.org/10.22091/csiw.2022.7612.2191
Journal volume & issue
Vol. 9, no. 3
pp. 29 – 64

Abstract

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In all human societies, according to the prevailing legal system, criminal or non-criminal measures are proposed as ways to deal with sexual crimes. In Islamic criminal law, unlike the legal systems in Western countries, sexual assault in the context of marital relations between couples, even if it is done without consent, is not considered an example of sexual assault, and the Islamic legislator has not considered such acts as a crime in a marriage. This is the case that in the West, intimacy with the spouse without consent and other examples of sexual violence with a milder degree are predicted and criminalized, and if the sexual act is performed despite the spouse's lack of consent, it is considered sexual assault in marital relations. Employing a descriptive-analytical method, the present study seeks to answer the problem of how the criminal policy of Islam and the West deal with the phenomenon of sexual assault, which is due to the lack of independent research in the study of this issue in a comparative manner. The results indicate that in both the Islamic and Western systems, significant measures have been adopted in relation to criminal prevention, howerver, in the criminal policy of Islam, in the field of non-criminal prevention, both in terms of social prevention measures and the situation regarding the establishment of rules such as the prohibitions on the secluded intimacy of non-mahram men and women and adornment, along with the encouragement to marriage and the prohibition of celibacy and strictness in marriage, maintaining the necessary distance between men and women in public, facilitating the areas of community participation in criminal response in the field of dealing with sexual assault, such as banning perverts or murdering a stranger in bed, or the mandatory sentence in defense of one's honor, in addition to the special rules regarding criminal prevention, such as the difficulty of proof, the prohibition of the spread of prostitution, and the public execution of the punishment for the purpose of setting an example, are among the measures that shows the superiority of the criminal system of Islam over the West.

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