Volume 20, Issue 61 (4-2026)
MLJ 2026, 20(61): 546-555 |
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Baie Lashaki A, Habibi Tabar M, Ismaili M. Criminal Liability of Patients with Paraphilic Disorders: The Role of Necessity from the Perspectives of Islamic Jurisprudence and Positive Law. MLJ 2026; 20 (61) :546-555
URL: http://ijmedicallaw.ir/article-1-1931-en.html
URL: http://ijmedicallaw.ir/article-1-1931-en.html
1- Department of Law, Ayatollah Amoli Campus, Islamic Azad University, Amol, Iran.
2- Department of Criminal Law and Criminology, Central Tehran Campus, Islamic Azad University, Tehran, Iran.
2- Department of Criminal Law and Criminology, Central Tehran Campus, Islamic Azad University, Tehran, Iran.
Abstract:
Background and Aim: Paraphilic disorders, owing to their impulsive and potentially harmful nature, pose fundamental challenges to criminal justice systems. This study aims to elucidate the criminal responsibility of individuals with such disorders, with particular emphasis on the concept of “necessity” (iḍṭirār) as a potential ground for excluding criminal liability. This is particularly relevant because some criminal acts associated with paraphilic disorders may arise from internal, quasi-necessitous pressures aimed at relieving psychological impulses.
Method: This study employs a descriptive-analytical method and draws upon library-based sources, including Islamic jurisprudential texts and the Islamic Penal Code of Iran (2013). It examines the theoretical foundations of criminal responsibility and, from a comparative perspective, explores the applicability of the rule of necessity under Article 152 of the Islamic Penal Code to involuntary impulses arising from mental disorders.
Ethical Considerations: Throughout all stages of the research, the principles and standards of research methodology were fully observed.
Results: The findings indicate that, although Islamic jurisprudence generally proceeds from the principle of accountability of the legally responsible person (mukallaf), where the loss of volition or cognition resulting from severe paraphilic disorders is established, the individual’s conduct may be analyzed in terms of the absence of the requisite mental element (mens rea). Furthermore, the application of the doctrine of necessity as a ground for excluding criminal liability in offenses arising from paraphilia encounters the challenge of a lack of proportionality between the danger and the offense. Nevertheless, necessity may potentially serve as a basis for mitigation of punishment or for substituting therapeutic measures for penal sanctions.
Conclusion: The findings suggest that the Iranian criminal justice system requires a transition from a purely repressive approach toward individuals with paraphilic disorders to an approach grounded in forensic psychiatry and therapeutic justice. Given that internal necessity, understood as a psychological impulse, differs fundamentally from the external necessity contemplated by Article 152 of the Islamic Penal Code, it is recommended that, in future legislative reforms, neuroscience and mental health considerations be expressly incorporated into the Islamic Penal Code as relevant criteria for determining the absence of criminal intent and impairment of free will.
Please cite this article as:
Baie Lashaki A, Habibi Tabar M, Ismaili M. Criminal Liability of Patients with Paraphilic Disorders: The Role of Necessity from the Perspectives of Islamic Jurisprudence and Positive Law. Medical Law Journal. 2026; 20: e36.
Method: This study employs a descriptive-analytical method and draws upon library-based sources, including Islamic jurisprudential texts and the Islamic Penal Code of Iran (2013). It examines the theoretical foundations of criminal responsibility and, from a comparative perspective, explores the applicability of the rule of necessity under Article 152 of the Islamic Penal Code to involuntary impulses arising from mental disorders.
Ethical Considerations: Throughout all stages of the research, the principles and standards of research methodology were fully observed.
Results: The findings indicate that, although Islamic jurisprudence generally proceeds from the principle of accountability of the legally responsible person (mukallaf), where the loss of volition or cognition resulting from severe paraphilic disorders is established, the individual’s conduct may be analyzed in terms of the absence of the requisite mental element (mens rea). Furthermore, the application of the doctrine of necessity as a ground for excluding criminal liability in offenses arising from paraphilia encounters the challenge of a lack of proportionality between the danger and the offense. Nevertheless, necessity may potentially serve as a basis for mitigation of punishment or for substituting therapeutic measures for penal sanctions.
Conclusion: The findings suggest that the Iranian criminal justice system requires a transition from a purely repressive approach toward individuals with paraphilic disorders to an approach grounded in forensic psychiatry and therapeutic justice. Given that internal necessity, understood as a psychological impulse, differs fundamentally from the external necessity contemplated by Article 152 of the Islamic Penal Code, it is recommended that, in future legislative reforms, neuroscience and mental health considerations be expressly incorporated into the Islamic Penal Code as relevant criteria for determining the absence of criminal intent and impairment of free will.
Please cite this article as:
Baie Lashaki A, Habibi Tabar M, Ismaili M. Criminal Liability of Patients with Paraphilic Disorders: The Role of Necessity from the Perspectives of Islamic Jurisprudence and Positive Law. Medical Law Journal. 2026; 20: e36.
Keywords: Criminal Responsibility, Paraphilic Disorders, Necessity (Iḍṭirār), Free Will, Islamic Jurisprudence, Islamic Penal Code
Type of Study: Original Article |
Received: 2024/11/22 | Accepted: 2025/05/6
Received: 2024/11/22 | Accepted: 2025/05/6
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