The Effect of Ihsan on the Punishment of the Active Partner of Sodomy

According to the Shiite Jurists’ famous opinion, the punishment of the active partner of sodomy (livat) is death penalty and the conditions for ihsan have no effect on it. Some of jurists such as Ayatollah Khoei have differentiated between an active partner of sodomy who meets the conditions for ihsan and others. They believe that the punishment for sodomy shall be the death penalty for the active partner in cases where he meets the conditions for ihsan and he shall be sentenced to one hundred lashes if he dose not meet the conditions for ihsan and he has not committed livat by using force or coercion. The article 234 of the Islamic penal code approved in 2013 has accepted this opinion too. In this research, we have criticized action of legislator in two ways: first, narratives documented by Ayatollah Khoei are weak because jurists have avoided acting according to it. Second, we have demonstrated that legislator has neglected this principle in the other articles of the Islamic penal code and has done base on the famous principle