An Analytical–Comparative Examination of Judicial Practice and Iran’s Legislative Criminal Policy toward Crimes Against Public Morality

Abstract

Crimes against public morality are of particular significance due to their infringement upon both the material and immaterial aspects of human life. Accordingly, Iran’s criminal policy, following Islamic criminal policy at the levels of theory and legislation, has addressed such crimes with the utmost severity and has prescribed heavy punishments for them. However, at the level of implementation, the approach of both criminal policies in dealing with these crimes—during prosecution, investigation, proof, and enforcement of punishment—stands in contrast to the strictness of the policy at the evidentiary and substantiation stage. In the adjudication process, a policy of concealment of the offense (crime-covering) is recommended and favored. Consequently, a category of offenses has been criminalized under the title of crimes against public morality. In Iranian law, crimes against public morality are divided into two categories: hudūd crimes against public morality, for which specific punishments are prescribed under Islamic law, and taʿzīr crimes against public morality. Taʿzīr crimes against public morality are, in fact, criminal behaviors occurring in the context of unlawful sexual relations that do not fall within the scope of hudūd punishments. This study was conducted using a descriptive–analytical method, and the findings indicate that, with respect to crimes against public morality, an examination of the relevant legal provisions in Iranian legislation and judicial practice reveals that the legislature’s general policy—following Islamic teachings—emphasizes concealment of the offense and the use of institutions such as enjoining good and forbidding wrong, as well as crime prevention. At the same time, in its legislative criminal policy, it has adopted a punitive and repressive approach, which is not fully aligned with the judicial criminal policy that tends toward leniency and forbearance through the application of sentence mitigation. As a result, Iran’s criminal policy in combating crimes against public morality requires review and reform from various perspectives. Judicial practice in punishing crimes against public morality generally follows and is subordinate to the legislative criminal policy and the Islamic Penal Code enacted in 2013, except in certain cases where interpretations and opinions issued by judges and the General Department of the Judiciary do not conform to the prevailing criminal policy. Nevertheless, in determining which of these two approaches or policies should prevail in the issuance of judgments, the circumstances surrounding the commission of the crime are decisive, and the determination rests with the judge. Accordingly, the legislator has, in various provisions of the Penal Code, clarified the punishments for crimes against public morality and enumerated all conditions for their realization so that judges do not encounter difficulties in legal inference and so that the full rights of victims in this regard are duly safeguarded.