A Legal Deliberation on Article 63 of Islamic Penal Law and the Clause 1 to Article 1-221 of the Suggested Bill

Article 63 of Islamic penal law defines adultery as: “copulation of a man with a woman who is essentially unlawful (ḥarām) to him, although in dubur (back), in cases other than misapprehended consummation.” Clause 1 of article 1-221 of the new suggested bill, confirming the content of the above article, has also mentioned: “copulation is effected by the insertion of a male’s sex organ into a female’s ghubul (front) or dubur, as deep as the circumcised head.” As it is implied from the above two articles, fulfillment of adultery is subject to the vaginal or anal intercourse with a woman. It is worth mentioning that the contents of these two articles are confirmed by unanimity of the widely known Imāmīs; since the Imāmī jurists have construed adultery as insertion in farj (vagina) and the noted among them have viewed farj as being absolute, including both ghubul and dubur. In contrast, however, there is a view ascribed to a rare group of jurists who believe that insertion in other than qubul is not referent to insertion in farj; hence, to their opinion, insertion in other than farj does not involve adultery. Nevertheless, in view of the latter, insertion in the dubur, even though of a female, in itself denotes another offence called lawāṭ (sodomy). With these explanations, it is clarified that the controversy exists as to the insertion in the female’s dubur, which according to the well-known Imāmī viewpoint is a proof of an adultery offence and, according to a rare verdict, ascertains sodomy. With a reappraisal of both aforementioned views and assessment of the jurists’ evidences, we have taken a third view on this issue. We believe that insertion in the female’s dubur neither ascertains adultery nor actualizes the sodomy offence; rather, it can be an independent offence, whose determination of the limits as well as the degree and type of punishment require a separate search into the proofs.