نوع مقاله : علمی - پژوهشی
نویسندگان
1 گروه حقوق کیفری و جرم‌شناسی، دانشکدة حقوق، علوم سیاسی و تاریخ، دانشگاه یزد، یزد، ایران.
2 گروه حقوق جزا و جرم شناسی، دانشکده حقوق، دانشگاه شهید بهشتی، تهران، ایران.
چکیده
کلیدواژه‌ها
عنوان مقاله [English]
نویسندگان [English]
mmitting domestic homicide by women who have been exposed to intimate partner violence is usually occurred after a long-time experience this event that indicates the inability to divorce or leave violent marital relationship due to legal, social or complicated moral issues explained by BWS theory. Then, it raises the question of applying some criminal defenses like self-defense and provocation to these cases debated by studying samples from Fars province criminal courts during a decade that approved by supreme court. According to the research findings, in the first place, the traditional interpretation of self-defense should be made flexible according to the essence and nature of the defensive behavior of battered women in order to save their lives and that of their children, because the variety and continuity of violence is such that women considered it as if every moment will be occurred. Therefore, the interpretation of the immediacy element of the aggression is different according to the continuous nature of this type of violence. Even, some countries, in the light battered woman syndrome, have formed this interpretation according to the battered woman's perception of the occurrence of violence at any moment; As her belief about the threat to life or serious injury to limb is important, which may cause her to use excessive force to repel the attacker. On the other hand, the necessity of killing as the last resort could be obvious, considering the difficulty and sometimes the impossibility of divorce in Iranian law and even the woman's inability to leave a violent relationship on the base of learned disability concept from the battered woman syndrome theory. In this regard, exclusion 2 of Article 156 should be taken into consideration by the judges. Although the need to amend the law cannot be denied.
On the other hand, there are cases that are not covered by self- defense, following the series of abuses by her husband, the woman will be affected so emotionally that she falls under a strong wave of emotions, but according to the nature of the women's reaction, these emotions gradually burn her. Then, it causes her to perpetrate homicide. Accordingly, the traditional defense of provocation was reformed in some countries such as England, Wales, and Australia to amend its definition to include such murders. Although there are manifestations of this defense such as Article 630 of the Islamic Criminal Code in Iranian criminal law, the defense is not foreseen by the legislator. But, Judicial procedure has accepted to a certain extent the effect of emotion on inciting emotions and then, changing the definition of murder to manslaughter according to the exclusion 2 of Article 302. but it has not been used in such cases as studied here; Thus, both the judicial procedure and criminal code respectively need to be flexible and revised to include new forms of provocation like homicide committed by battered women in the context of intimate partner. All in all, findings suggest a hybrid approach towards this type of killing, considering the separate structure of each case and the legal and procedural capacity of Iranian criminal law, In such a way that both legal and procedural reforms regarding these two types of defense have the capacity to pay close attention.
کلیدواژه‌ها [English]
الف) فارسی
ب) انگلیسی
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