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Virtually impossible
A rational look at stoning

By A. Shahmolki
August 1, 2001
The Iranian

Every so often we hear about another person -- quite often a woman it seems -- who has been stoned to death in Iran. Stoning is often the punishment for certain sexual crimes. Although the practice elicits horror and dismay from those outside Iran, ut is unclear how much support it has amongst Iranians inside the country. What can be inferred from occasional comments made by reformist politicians, is that stoning is thought of as unnecessary and damaging to Iran's international image.

I should state at the beginning that I believe it is impossible to implement any form of capital punishment justly. And I am aware that stoning cannot be divorced from the wider death penalty debate. However, for the sake of brevity, I will limit my argument to demonstrating how even within a strict Islamic judiciary, it would be virtually impossible to convict a person of a crime punishable by stoning. That is, as long as this strict Islamic judiciary cares about fairness in its procedures.

At minimum this type of discussion, divorced from (valid) emotional or political considerations, would diminish the ability of the executioners to dismiss anti-stoning arguments by accusing proponents of caring too much about world (read Western) opinion, or of being hostile to Islam, or even tender-heartedness.

On to the discussion itself.

First, we should look at the de facto abolition of stoning. This can be achieved if the judicial authorities conclude that conditions attached to the proof of the crime are so onerous that they would be nearly impossible to satisfy. Therefore, it would not be in the public interest to waste the judiciary's resources in pursuit of death by stoning as punishment.

A second line of argument, which is not necessarily exclusive of the first, would look at the conditions of the proof of the crime. In a sexual crime, the conditions are the testimony of four just men who witnessed the act, or the confessions of the parties to the act.

The trial becomes, in effect, a trial of the witnesses (accusers) in which they have to prove that they are just (or at least the state has to prove that they are just). Absence of prejudice on the part of the witnesses has to be established. Prejudice could be as a result of any type of involvement between any of the four and either of the accused.

The witnesses also have to prove that their presence at the scene of the alleged crime was not part of any illegal act (e.g. burglary, breaking and entering etc.), and that in fact they were present when the act was taking place and that they witnessed it and the accused were at that venue and engaged in that act.

Of course these witnesses should be subject to cross examination by the defense who if successfully challenges the testimony of any of the four, would fulfill the reasonable doubt necessary to obtain acquittal, in the form of undermining the credibility, and therefore the "justness", of that witness.

In case of an alleged confession, both parties to the act have to confess to the act in question (including time, place etc.). The defense for either party then may be able to challenge the confession of the other party in order to create reasonable doubt. Obviously it has to be made certain that the confessions were not obtained under duress and that the legal rights of the accused were respected.

Finally, if the law of the land establishes the right to silence, and that the accused cannot be compelled to testify against himself or herself -- both of which are necessary for presumption of innocence to have any meaning -- then any violations of these basic rights could lead to acquittal.

The above is not an exhaustive argument. Rather, it is meant to show the uncertain and highly tenuous position of stoning as a form of punishment, within a fair Islamic judicial system.

As a last word, it is worth mentioning that the concept of fairness is not absent from the Islamic Republic's criminal code and procedure. However, a combination of poor training of judges, lack of respect or understanding of the rule of law, and an absurdly primitive organizational structure within the judiciary, has led to "judicial" decisions that are woefully unfair, even when measured against the wording of IRI's own law.

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