نوع مقاله : پژوهشی
1 قاضی دادگستری، دانشجوی دکتری حقوق جزا و جرمشناسی، دانشکدۀ علوم انسانی، دانشگاه آزاد اسلامی (واحد گرگان)، گرگان، ایران
2 استاد گروه حقوق، دانشکدۀ حقوق و علوم سیاسی دانشگاه مازندران، بابلسر، ایران
عنوان مقاله [English]
Compensations for rape is considered to be the fundamental rights of the victims in the criminal justice process and has various legal aspects, like Sprinkle virginity (arsh al-bakāra) and stipulated dower (mahr al-mithl) as two most important examples. Studies on judicial procedure show that rape victims' claim (particularly in women case), due to the strict process in proving the claim, results in acquittal of defendant. Thus, using descriptive-analytical method, in this study we examine the possibility of victim's appeal for compensation after acquittal in Islamic criminal law and judicial procedure in cases that the defendant is acquitted. Also, various assumptions that courts have had in the case of compensation of rape have been examined and analyzed by presenting various courts' verdicts on this issue. By analyzing criminal law and procedure we found that in Iran's criminal justice procedure, the victim's deserve to receive compensation is not necessarily based on the conviction of the defendant, because in many cases in spite of the exculpation of defendants, courts have found the woman deserving the compensation e.g. Sprinkle virginity (arsh al-bakāra) and stipulated dower (mahr al-mithl). The courts have discriminated between the victim's consent on the case of a murder had punishment desired by the legislator and the victim's consent that they recognize the victim deserving the compensation. This paper describes the concept of real consent and pretending to consent and their characteristics from the jurisprudential and legal point of view, and proves the duality of these concepts, that makes it clear that not only acquittal of the rape charge does not mean that the victim deserves no compensation, but also in the cases that unreal consent is confirmed, the woman is entitled to damage.