Sexual Assault in Zanjan Province: What the Law Says

On Sunday, May 1, a local newspaper in Zanjan Province announced that a 9-year-old girl had been sexually assaulted over the course of several months by her teacher. According to the paper, Mardom-e No, the girl told her family that she had been sexually assaulted at her school in the village of Ghareh-Mohammad. Her family reported the teacher to the police. But a court, arguing that a forensic report did not prove that sexual penetration had taken place, changed the rape charge to “illicit sexual relations” and released the teacher on bail. The man’s release and the reduced charge caused widespread protests.

Leila Alikarami, a lawyer and human rights activist based in London, says the court’s decision to reduce the charge from “forced zena,” or rape, to “illicit sexual relationship” results from the lack of distinction the law makes between “zena” [sexual intercourse between a man and a woman who are not married to each other] and rape under Iran’s Penal Code. “The problem,” she says, “is that when intercourse does not occur or is not proved, the act is no longer categorized under “zena.” Rather, it would be categorized under Article 637 of the Penal Code, which states, “Any man and woman who are not married and who commit a crime against public morality, excluding adultery, should be sentenced to a flogging of 99 lashes.”

Referring to the forensic report in the case of the teacher, Alikarami says, “In this case, since the forensic report did not confirm that penetration had occurred, the case was prosecuted under the charge of “illicit sexual relations.” Under the Penal Code, the charge of “forced zena,” or rape, can only be pressed if penetration occurred. If penetration is proved, the offender would be executed, but if penetration cannot be proved, the case can only be considered under the charge of “illicit sexual relations.” In this case, if coercion is proved, the victim would not face any punishments, but if coercion is not proved, the victim will also be charged with illicit sexual relations.”

Alikarami mentions another case, in which a 17-year-old girl named Leila Mafi was sentenced to death in May 2004 under the charge of “zena with blood relatives who are prohibited to marry,” or incest. Her brothers had repeatedly raped her since she was ten. During her trial, the Mafi frequently used the term “rape” to refer to what her brothers did to her, but her brothers denied penetration. They were sentenced to 74 lashes under the charge of “acts against chastity,” but, since the victim did confess to penetration -- when she confessed to being raped and could not prove coercion -- she was sentenced to death.”

“In these cases,” Alikarami says, “the court places great importance on the prior relationship between the accused and the victim.”  Victims, she says, are questioned minutely about how many times they visited the accused’s home and why, how and why the relationship began, how many conversations the victim had with the accused, why the victim, if taken by force, didn’t scream for help or run away.

“In some cases,” Alikarami says, “the mere fact that the accused and the victim were friends prior to the rape, or that the victim was not witnessed shouting for help during the rape, are constructed as the victim's consent to sex.The accused is then acquitted of the charge of rape, and the victim and the accused are both charged with illicit sexual relations.” Alikarami says research shows that the majority of rape charges result in acquittal. In such situations, the case is often later referred to a Court of Common Pleas for a trial based on charges of “acts against chastity.”

Iranian lawyer Musa Barzin Khalifeloo, who is based in Turkey, says the law is deficient. “To prove ‘zena,’ The Penal Code requires the testimony of four ‘just men,’ or in some cases the testimony of three men and two women, or two men and four women, or  four repeated confessions from the accused. This, he says, makes convictions for rape almost impossible, as in the case of the 9-year-old girl in Zanjan Province.

“It is unlikely that the teacher would confess against himself,” Khalifeloo says, “and the forensic report is not valid on its own. Hence, it is very likely that the teacher would be charged for an “illicit sexual relationship” since the girl is under 18, and the court has to act based on the Law on Protection of Children and the Youth as well as the Islamic Penal Code.”

The Law on the Protection of Children and the Youth was enacted on December 16, 2002, following a campaign by human rights lawyer and later Nobel Peace Laureate Shirin Ebadi and the Center for Supporting the Rights of the Child, which she headed. It places all children under the age of 18 under its protection. According to Article 5 of the law, all crimes committed against children under 18 are considered “public” crimes and the prosecutor is obliged to make a complaint about such a crime. Prior to the enactment of this law, many crimes against children under 18 were never prosecuted. In these cases, the expected plaintiff – who would usually be the child’s father – would often not report a crime if the accused was a family member. Now, even if the father does not make a complaint, the prosecutor is obliged to press charges on the child’s behalf.

Many legal experts also criticize Iran for not taking the victim’s age adequately into account. London-based lawyer Mehri Jafari is one of them. Comparing the laws of England and Wales with Iranian law, she says, “Here, any kind of sexual relationship between an adult and a child under the age of 18 is forbidden since it is axiomatic that a child under the age of 16 cannot give a genuine consent. Sexual relations between an adult and a person who is between 16 and 18 years of age is accepted under the law, but if there is any doubt, it must be proved that the younger person has given their consent.” In England and Wales, she says, a person who holds a position of trust, such as a teacher or a social worker, is under no circumstances allowed to have sexual relations with anyone below the age of 18. But in Iran, there are no such requirements for a person who holds a position of trust.

Hossein Raisi, an Iranian lawyer and human rights activist based in Canada, also criticizes Iran’s Penal Code. He says the code only criminalizes explicit coercion and does not take a victim’s reluctance into consideration. “The Islamic Penal Code only penalizes rape by physical force and does not take into consideration instances where the abuser has dominance over his victim. In those circumstances, the victim can be implicitly forced into abiding by the abuser’s demands.” In Iran, he says, many of his clients had sex with an abuser who threatened to publish their private pictures online or show them to their fathers. In other cases, the abuser had promised to marry them. “The Penal Code does not take deception into account unless the victim is under the age of criminal responsibility, he says.

In Iran, the age of criminal responsibility for girls is 9.