The differential criminal policy in victim's mental disorder in comparison with offender's; necessity and challenges

The reaction to the crime, which in the past was repressive in all cases and was formed only by considering the actus reus, during the evolution of criminal law, was transformed into a combination of repressive-preventive responses and examining the mens rea as well. It has become one of the important foundations of criminal responsibility. As a result, now the removal of criminal responsibility from a person who does not have the power of perception and discrimination or does not act voluntarily is one of the principles of criminal law. However, the victim's mental disorder is the another side of the coin. A look at the researches show that people with mental disorders are the victims of these crimes, rather than being dangerous and the perpetrators of particularly violent crimes; Therefore, it is expected that this important issue in the relationship between insanity and crime will be considered by the criminal legislator.

Our assumption in this study is that if the legislator expands the concept and examples in the subject of offender's insanity and cover more people consequently will be under criminal protection as special victims because of their mental disorder. To this purpose, we will use a descriptive-analytical method to examine the question of whether the meaning that the legislator has adopted of insanity, where the victim of the crime is insane, can be used in the same way?

The establishment of insanity in two cases of offender's insanity and victim's insanity is the source of effect. However, what the Islamic Penal Code has provided regarding the definition of insanity and its examples, is a supportive approach that has been taken with the aim of removing criminal responsibility from a range of patients with mental disorders. This approach will not be applicable in all cases where the victim has a mental disorder. Because of some discriminatory provisions in domestic law that deal with the insane victim this semantic adjustment is contrary to the protectionist approach, and in practice a wide range of individuals will become legal victims.Ethical considerations: In order to organize this research, honesty and fidelity have been observed.

While the results of the researches indicate the vulnerability of victims with mental disorders, this issue in Iranian law faces legislative challenges and protective gaps. The legislator has ignored the mental state of the victim by focusing on the insanity of the offender. The study suggest incorporating the victim's mental disorder into the substantive criminal law, this should first be considered in terms of aggravation of punishment in Tazirat or positive discrimination that uses sometimes for some Vulnerable individuals is intended to spread to people with mental disorders. Second, in crimes where the normality of the victim is one of the necessary circumstances in the commission of the crime, the commission of that crime on the insane victim should be provided with special conditions. And third, in Hudud and Retaliation, wherever the proof of punishment depends on the victim being rational, he should refrain from generalizing the current definition of insanity and its criteria to the victim and seek to establish an independent establishment from the victim of insanity.