Jurisprudential Reconsideration of Procurement Punishment in light of Criticism and Proposal to Amend Article 243 of the Islamic Penal Code

It has been recognized that bringing men to men for sodomy and men to women for adultery constitutes a crime of procurement according to criminal law and, accordingly, is a fixed (ḥadd) offense in the Islamic Penal Code approved in 2012. The Islamic legislator has determined the punishment for this offense. From a jurisprudential perspective, the legislator has imposed the punishment of seventy-five lashings for the procurement for the first time. Those who act as panders a second time will be exiled in addition to being whipped. Procurement crimes can be viewed as the beginning of sexual crimes such as adultery and sodomy within a society. Through the introduction of the perpetrators to each other, the pimp helps to remove the obstacles to the crime and paves the way for sexual crime in society. Although the exclusiveness of the punishment of lashing in the first instance of procurement comes from a jurisprudential perspective, it seems that the punishment does not adequately deter the crime of procurement and does not provide enough deterrent to prevent it from occurring again. The careful study of the jurisprudential sources shows that many Imami jurists, citing narrative reasons, regarded the punishment of exile as necessary for the first-time occurrence of procuring. Based on the descriptive-analytical method, this study examines conflicting jurisprudential opinions and considers the principle of proportionality to criticize the Article 243 of the Criminal Code, while keeping procurement under the category of a criminal offense. As a result, the punishment of exile is proposed to be transferred to the first-time occurrence of procurement in order to amend the Article 243.