Judicial Discretion in Constructing of criminal behavior: Case study of rape cases

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mirmajidi SEPIDEH

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Paper Information

Journal: PAZHUHESHNAME-YE ZANAN (WOMEN’S STUDIES) Year:2019 | Volume:10 | Issue:3 (29) Page(s): 123-150

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Title

Judicial Discretion in Constructing of criminal behavior: Case study of rape cases

Author(s)

mirmajidi SEPIDEH | Issue Writer Certificate

Keywords

Judicial discretionQ1

JudgeQ1

RapeQ2

ConstructionQ1

Abstract

The transfer of normative criteria is usually based on general rules formulated in the text of the law. Therefore, understanding the law as a semantic issue depends to a large extent on understanding the language and ensuring its accurate use in the legal context. But the inherent limitation of the nature of language, or in the words of philosophers of law, the "partial indeterminacy of law, " which itself arises from the open context of language, limits our understanding of the content of the law and provides the Judge with a margin of discretion. This, in turn, provides a good basis for constructing new criminal behaviors (secondary criminality) and even in some cases decriminalization of criminal behaviors by the Judge. In this article, which is qualitative in type and analytical-descriptive in method, the judicialdiscretion in constructing examples of Rape in the Iranian legal system based on 227 criminal cases of Rape is discussed. The result of the research indicates a highly controversial and great challenge to the ideal of the rule of law versus Judicial discretion; Because the ambiguity in the text of the law, by providing a suitable context for the rule of ideological aspects of organizational culture in the Iranian judicial discourse and sexual stereotypes of Judges, has led to a kind of "judicial regulation" in the context of this crime, which is in conflict with the Article 224, Note 2 of the Islamic Penal Code. This situationoften leads to the non-recognition of the victim's claim and his re-victimization.

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APA: Copy

mirmajidi, SEPIDEH. (2019). Judicial Discretion in Constructing of criminal behavior: Case study of rape cases. PAZHUHESHNAME-YE ZANAN (WOMEN’S STUDIES), 10(3 (29) ), 123-150. SID. https://sid.ir/paper/376117/en

Vancouver: Copy

mirmajidi SEPIDEH. Judicial Discretion in Constructing of criminal behavior: Case study of rape cases. PAZHUHESHNAME-YE ZANAN (WOMEN’S STUDIES)[Internet]. 2019;10(3 (29) ):123-150. Available from: https://sid.ir/paper/376117/en

IEEE: Copy

SEPIDEH mirmajidi, “Judicial Discretion in Constructing of criminal behavior: Case study of rape cases,” PAZHUHESHNAME-YE ZANAN (WOMEN’S STUDIES), vol. 10, no. 3 (29) , pp. 123–150, 2019, [Online]. Available: https://sid.ir/paper/376117/en

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