Iran: Shirin Ebadi: Iran's legal codes are studded with inconsistencies & vagaries

 The harrowing case of Sakineh Mohammadi Ashtiani – a mother of two sentenced to stoning by an Iranian court for adultery – has rightly drawn the world's attention to Iran's draconian penal code, which reserves its cruellest punishments for women. The practice of stoning, in particular, is so abhorrent that even political allies like Brazil have been roused into action. President Luiz Inacio Lula da Silva offered Ashtiani asylum over the weekend in a direct appeal to President Mahmoud Ahmadinejad. Iran has yet to respond formally, and a foreign leader can have no direct bearing on a domestic legal proceeding. But the Brazilian intervention sends a powerful message to the Islamic Republic: its human rights record can never be divorced from its nuclear diplomacy.

Before the 1979 Islamic revolution, back in the years when I worked as a judge in Iran, consensual sexual relations between adults did not figure in the country's criminal code. The revolution enacted a version of Islamic law which is extraordinarily harsh even by the standards of the Islamic world, making extra-marital sex a crime punishable by law. Under its penal code, the punishment for a single man or woman guilty of sex outside marriage became 100 lashes; under Article 86, the punishment for a married person became death by stoning.

On the face of things, stoning is not a gendered punishment, for the law stipulates that adulterous men face the same brutal end. But because Iranian law permits polygamy, it effectively offers men an escape route: they are able to claim that their adulterous relationship was in fact a temporary marriage (Iranian law recognises "marriages" of even a few hours duration between men and single women). Men typically exploit this escape clause, and are rarely sentenced to stoning. But married woman accused of adultery have access to no such reprieve.

The barbarity of stoning aside, Iran's legal codes are studded with inconsistencies and vagaries that make due process virtually impossible. The penal code notes that if a man or woman is denied sexual access to a spouse due to travel or other prolonged separation, 100 lashes suffice as punishment for adultery, but it does not specify the duration of acceptable separation. Stoning can also be reduced to lashes when a married woman has sex with a minor (Iranian law considers the age of maturation for girls nine, and for boys 15). In real terms, this means that a married woman who commits adultery with a 40-year-old man must be sentenced to stoning, but if she commits the same act with a 15-year-old – effectively taking sexual advantage of a minor – she is accorded a legal break.

Criminal prosecution for adultery, and the handing down of a stoning verdict, does not even require a personal plaintiff; if it can be proven that a man or woman has committed adultery, even if the betrayed spouse offers his or her forgiveness, the transgressor must be stoned. Article 105 of the penal code enables a judge to sentence an adulterer to stoning based purely on his "knowledge"; as such, it is possible for a judge to sentence a woman simply based on her husband's complaint.

These glaring lapses are only the most obvious reason why Iran must reconsider the practice, which most Islamic countries long ago discarded in their efforts to harmonise Islam with modern norms. Stoning has long been criticised by a number of Islamic jurists, most notably the Ayatollah Yousef Saanei. These jurists believe that such punishment was meted out in the early days of Islam's seventh century advent in the desert of Saudi Arabia, in accordance with the customs of the time. They note that the Koran makes no mention of stoning, and believe that lighter punishments, such as imprisonment or fine, can be considered.

Lawyers, human rights defenders, and jurists have condemned the practice of stoning ever since it entered Iran's criminal justice system. Unfortunately, Iran has been indifferent. Perhaps now, facing the chastisement of a powerful ally like Brazil, Tehran will be forced to consider whether its adherence to such practices ultimately serves its national interests.

To avoid international outcry, the government refrains from announcing stoning verdicts publicly. It is only slowly and by word of mouth, through information relayed by families and lawyers, that cases make their way to the media. As such, we cannot even know precisely how many Iranians have been killed by such punishment in the past three decades. A year and a half ago, the Iranian media reported that a man was executed in the city of Qazvin by stoning. Now Ashtiani faces a similar fate – and perhaps others, too.

• • Shirin Ebadi
  • guardian.co.uk, Saturday 7 August 2010