چکیده:
One of the important legal challenges is the impact of gender and its role in punishments, and many questions are raised in this regard. For instance, if intersex individuals commit a crime, can their punishment be reduced by citing their special status? To answer this question, it is necessary to divide crimes into two categories: A) Crimes in which gender plays no role in their occurrence. B) Crimes in which gender plays a role in their occurrence. In crimes where the gender of the defendant plays no role in their commission, reduction cannot theoretically be granted; however, in crimes where gender plays a role, if neutral individuals commit these crimes, in some cases, a reduction in punishment for such individuals can be considered. Therefore, this article addresses topics such as the definition of neutral, criminal rulings, Hudud, Diya, Qisas regarding neutral individuals, as well as some jurisprudential rulings, the opinions of some jurists, and certain clauses of the Constitution regarding these individuals.
خلاصه ماشینی:
Now, let us assume a case where an intersex person (complex khuntha) has become an apostate; in this matter, two possibilities have been raised in jurisprudence: the first possibility is that the khuntha has the same ruling as a woman, because there is doubt regarding their maleness, which is the cause for executing them, and consequently, doubt in the cause leads to doubt in the effect, and therefore killing them is not permissible; the second possibility is that they have the same ruling as a man, because the words of the Prophet (PBUH) who said "Whoever changes his religion, kill him" possess generality, and only women are excluded from the generality of this narration, while all other cases, including the khuntha, remain subject to the generality of this narration, even though regarding the khuntha, no such tradition has been received has not been received.
The rule in using this clause for Ta'zir crimes is "individual diversity," meaning the judge must decide separately in each case, considering the status of the accused, whether mitigation of punishment can be granted for a specific accused person based on this clause or not?
Aside from the discussion of mitigating the punishment of such individuals, there are numerous instances in the Islamic Penal Code of 1991 where a specific act is considered a crime for women but not for men; for example, women entering public passages and spaces without Sharia-compliant hijab is recognized as a crime according to the note to Article 638, and its punishment is imprisonment from 10 days to two months or a fine of fifty thousand to five hundred thousand Rials.
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