The harrowing case of Sakineh Mohammadi Ashtiani - a mother of two sentenced to stoning by an Iranian court for adultery - has rightfully drawn the world's attention to Iran's draconian penal code, which reserves its cruellest punishments for women. The practice of stoning in particular is so abhorrent that even political allies such as Brazil have been roused to action. President Luiz Inacio Lula da Silva has offered Ms. Ashtiani asylum, but a foreign leader can have no direct bearing on a domestic legal proceeding. The Brazilian intervention, however, sends a powerful message to the Islamic Republic: Its human-rights record can never be divorced from its nuclear diplomacy.
Before the 1979 Islamic revolution, back in the years when I worked as a judge in Iran, consensual sexual relations between adults did not figure in the country's criminal code. The revolution enacted a version of Islamic law extraordinarily harsh even by the standards of the Islamic world, making extramarital sex a crime. The punishment for a single man or woman guilty of sex outside marriage became 100 lashes; under Article 86, the punishment for a married person became death by stoning.
On the face of things, stoning is not a gendered punishment, for the law stipulates that adulterous men face the same brutal end. But because Iranian law permits polygamy, it effectively offers men an escape route: They are able to claim that their adulterous relationship was, in fact, a temporary marriage (Iranian law recognizes "marriages" of even a few hours duration between men and single women). Men typically exploit this escape clause, and are rarely sentenced to stoning. But married women accused of adultery have no access to such reprieve.
The barbarity of stoning aside, Iran's legal codes are studded with inconsistencies and vagaries that make due process virtually impossible. The penal code notes that, if a man or woman is denied sexual access to a spouse due to travel or other prolonged separation, 100 lashes suffice as punishment for adultery, but it does not specify the duration of acceptable separation. Stoning can also be reduced to lashes when a married woman has sex with a minor (Iranian law considers the age of maturation for girls 9, and for boys 15).
In real terms, this means that a married woman who commits adultery with a 40-year-old man must be sentenced to stoning; but if she commits the same act with a 15-year-old, she is accorded a legal break. Criminal prosecution for adultery does not even require a personal plaintiff; if it can be proved that a man or woman has committed adultery, even if the betrayed spouse offers his or her forgiveness, the transgressor must be stoned. Article 105 of the penal code enables a judge to sentence an adulterer to stoning based purely on his "knowledge"; as such, it is possible for a judge to sentence a woman simply based on her husband's complaint.
These glaring lapses are only the most obvious reason why Iran must reconsider its practice of such an ancient punishment, which most Islamic countries have long ago discarded in their quest to harmonize Islam with modern norms. Stoning has long been criticized by a number of Islamic jurists, most notably Grand Ayatollah Yousef Saanei. These jurists believe that such punishment was meted out in the early days of Islam's seventh-century advent in the desert of Saudi Arabia, in accordance with the customs of the time. They note that the Koran makes no mention of stoning, and believe that lighter punishments, such as imprisonment or fine, can be considered.
Unfortunately, Iran has been indifferent to those who have condemned the practice of stoning. Perhaps now, facing the chastisement of a powerful ally such as Brazil, Tehran will be forced to consider whether its adherence to such practices ultimately serves its national interests.
To avoid the international outcry that stoning cases typically elicit, the government refrains from announcing stoning verdicts publicly. It is only slowly and by word of mouth, through information relayed by families and lawyers, that cases make their way to the media. As such, we cannot even know precisely how many Iranians have been killed by such punishment in the past three decades. A year and a half ago, the Iranian media reported that a man was executed in the city of Qazvin by stoning. And now, Sakineh Ashtiani faces a similar fate. Although others may be in her position, no one knows.
Shirin Ebadi is an Iranian human-rights activist and Nobel laureate.