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Defenses

Defenses

By February 16, 2024April 4th, 2024No Comments

Defenses

Section 3.9      Intoxication

  1. Intoxication is defined as the diminishing mental or physical capacities of a person as a result of the introduction of an intoxicant substance into the body.
  2. Intoxication is either voluntary (self-induced) or involuntary.
  3. Voluntary, self-induced, intoxication occurs when an actor knowingly introduces an intoxicant into his body without lawful excuse such as- but not limited to- being subject to duress, being subject to compelling necessity or pursuant to medical advice without full awareness of the intoxicating effect of a medication.
  4. Involuntary intoxication occurs when another person introduces an intoxicant substance into the actor’s body without the actor’s knowledge or permission; it may also occur with the actor’s permission, if the actor has no knowledge of its intoxicating effect or if an actor introduces the intoxicant himself into his body without knowing its intoxicating effect.
  5. Voluntary intoxication is not a defense.
  6. Involuntary intoxication is a complete defense that exculpates the actor from criminal liability.
  7. Voluntary intoxication for the purpose of committing a crime is an aggravating circumstance that warrants a more severe punishment.
  8. Voluntary intoxication for Muslims is a crime.
  9. The sale, consumption, manufacture, transportation, presentation or derivation of benefit from the sale of intoxicants to a Muslim is a crime punishable by a fine not less than… and not exceeding … and/ or imprisonment for a term not less than ….and not exceeding … or whipping numbering …. stripes.
  10. No less than two credible Muslim witnesses’ testimonies or an uncoerced confession suffice for conviction for offenses listed in subsection (7).

Section 3.10    Duress/Compulsion

  1. Defense of duress excuses from liability the actor who had engaged in a criminal conduct when:
  2. The actor was subject to expressed or implied unlawful threat of serious physical harm or serious financial loss; and
  3. Threat of harm was sufficient to negate the actor’s meaningful consent to commit the prohibited act; and
  4. The criminal conduct committed under duress was proportionate to the threat; and
  5. The threat was from a human being to the actor or close relative; and
  6. The threat was an imminent threat; and
  7. The person who threatened the actor was capable of carrying out his threat; and
  8. The actor had a well-grounded fear that the threat would be carried out if he did not comply and commit the prohibited act; and
  9. There is no safe avenue of escape for the actor but to commit the prohibited act to avoid execution of the threat; and
  10. The actor has mitigated the harm caused by his conduct under duress by committing the lesser harm.
  11. Duress is not a defense to homicide and physical injury.

Explanatory Note

Islamic law has recognized duress as an excuse from liability according to the Hadith “Verily Allah has pardoned for me my ummah: their mistakes, their forgetfulness, and that which they have been forced to do under duress.” Hasan hadith reported by Ibn Majah and Al-Bayhaqi.  For defense of duress, generally see Muhammad Amin Ibn Abidin (Hashiet ibn Abidin) and see also Abdul Qadir Audah, 1 al-Tashri’ al-jinaa’i al-islami at 563-577.

Subsection 3.10.1 (A) adopts the Maliki, Shafei, and Hanbali scholars’ opinions that neither the threat of insult or defamation nor the threat of moderate financial loss suffices for the defense. Any threat of lawful physical harm or lawful financial harm is not a defense. For example, threat to arrest a person sentenced to imprisonment or to enforce a judgment against a person with serious financial implications does not qualify the actor to use defense of duress. The threat of harm can be implied in a variety of situations including a command from a State agent or public employee. The threat may provide a valid defense if it is known that violating the command may result in death or serious bodily harm. A husband’s command to his wife is a sufficient threat if the wife thought that she would be subject to death or serious bodily harm if she did not comply with the husband’s command.

Subsection 3.10.1 (b) asserts that the degree of the threat must be sufficient to deprive the actor from providing a meaningful consent to commit the prohibited act. This is a subjective matter and a question of fact that should be left to the judge to decide depending on the individual characteristics of the actor, such as the actor’s age, gender, level of sophistication and education.

Subsection 3.10.1 (c) emphasizes the importance of proportionality of the threat and the prohibited act performed. For example, the threat of moderate violence is insufficient for committing serious bodily harm but it can be a defense in the case of unlawful intoxication.

Subsection 3.10.2 adopts Maliki, Shafei, and Hanbali scholars’ opinions only. Hanafy scholars allowed the defense of duress for all offenses including homicide. See Muhammad Abu Zahra, al-‛Uqūbah (the punishment) at 361.

Section 3.11    Superior Orders

It is a full defense that a government employee – including, but not limited to, military and law enforcement individuals – was following superior orders when he performed a conduct that constitutes an offense, providing that the actor does no more than execute an order of his superior and that he does not know that the conduct that constitutes the offense is unlawful under Islamic law.

Explanatory Note

Section 3.11 establishes the defense of superior orders. The actor must do no more than execute an order of his superior in government. In addition, he must not know that the order is unlawful under Islamic law. Any government employee, whether in the military, law enforcement or any other governmental sector, who follows his superiors’ orders and commits an offense shall be liable for his actions if he knew that the superior’s orders constituted a violation of Islamic law.   The Prophet said, “A Muslim has to listen to and obey (the order of his ruler) whether he likes it or not, as long as his orders involve not one in disobedience (to Allah), but if an act of disobedience (to Allah) is imposed one should not listen to it or obey it.  Sahih al-Bukhari.

Section 3.13    Entrapment (Tahreed sore’) 

  • Entrapment is a complete defense excusing the defendant when:
  • A law enforcement official or a person acting in cooperation with the official encourages or induces another person to engage in conduct that constitutes an offence and;
  • the inducement or encouragement was not a good faith inquiry to prevent future crime, seize evidence or apprehend criminals and;
  • the law enforcement official or a person acting in cooperation with such an official has no intention to complete the offense.
  • A law enforcement official or a person acting in cooperation with the official who induces or encourages the commission of an offense is liable for an offense punishable by the same punishment of the offense induced if committed if:
  • He was acting in bad faith and;
  • He induced the commission of the offense without aiming to prevent future crime, seize evidence or apprehend criminals.

Explanatory Note

Entrapment, Tahreed sore’, was not addressed by Islamic law scholars in particular but it falls generally under the general rules of parties to offenses, Shereek Motasbab, as well as the general rules of fairness of Islamic law. The defense of entrapment exonerates defendants who would not have committed the crime but for law enforcement inducement.

Subsections 3.13. 1 (a) establishes the first condition for successful defense of entrapment – that law enforcement or its agents actually induced the commission of the offense; without such inducement, the offense would not have been committed.

Subsections 3.13. 1 (b) establishes an important rule that law enforcement inquiries conducted in good faith are permissible and shall not constitute entrapment. For example, law enforcement purchasing narcotics from a known drug dealer is not an entrapment because the dealer would sell it to any person indiscriminately. This should be distinguished from the case of law enforcement inducing an ordinary citizen to purchase narcotics from a dealer in order to apprehend that citizen red-handed. In the former case, the drug dealer would have engaged in his criminal activities regardless of law enforcement’s attempt to purchase the narcotic. In the latter case, the ordinary citizen would not have committed the crime but for the incitement of law enforcement officials.

Subsections 3.13. 1 (c) establishes that if a law enforcement official actually intended to complete an offense, he is no longer acting in his official capacity and is a liable to a crime. Accordingly, when a law enforcement official and a citizen agree to commit an offense, both the citizen and the law enforcement official are parties to the crime and the defense of entrapment is not available.

Subsections 3.13. 2 establishes an important doctrine that law enforcement officials’ role is to apprehend criminals, seize evidence and prevent future crimes. They should not manufacture evidence nor induce ordinary citizens to commit crimes in order to receive a reward or recognition. If they do so, they are liable to the same punishment for the crime they induced to be committed.  See Qur’an (16:126) (If you retaliate, then let it be equivalent to what you have suffered. But if you patiently endure, it is certainly best for those who are patient.)

Section 3.14    Self-Defense and Defense of Others  

An actor may use reasonable force necessary to repel the assailant’s harm to himself, to another or to protect a property he is entitled to protect, providing all the following are true:

  1. The actor was subject to illegitimate aggression.
  2. The aggression was immediate or imminent.
  3. There was no other alternative means to repeal the aggression but the use of force.
  4. The force used was proportionate to the aggression.
  5. The actor’s justifiable use of force was limited to repelling the aggressive force. Cessation of aggressive force necessitates termination of the actor’s use of force.
  6. The actor used force with the sole intent to repel the aggression.
  7. The force used to repel the aggression is justified against the aggressor only, not other innocent individuals.

Explanatory Notes

Subsections 3.14.1 establishes that an actor is not entitled to the defense if he used force against a legitimate force, for example, an actor should not use force against law enforcement who did not exceed their authority. An actor should not use force against a person who has a legitimate case of self-defense. An actor may use force to protect a person from harming himself or destroying that person property.

Subsections 3.14.2 establishes the principle that the actor’s use of legitimate force is limited to immediate or imminent aggressive force. This necessarily excludes the actor’s use of force to repel future or speculative aggressive force.

Subsections 3.14.3 establishes that if there are other means to escape from the aggression such as calling for help, notifying the authorities or simply retreating safely, an actor is not justified in using force to repel aggression.

Subsections 3.14.4 establishes that the actor’s use of disproportionate force is not justified and is considered a new aggression that justifies using force to repel it.

Subsections 3.14.5 establishes that the actor’s use of legitimate force can continue so long as the aggression continues. Once an aggressor halts his attack and withdraws, the initial defender has no justification for continued use of force or for following the former aggressor to attack him. If a person attacks the former aggressor after cessation of the aggression, the former aggressor may use force to defend himself.  However, if the former aggressor had committed theft, the actor or a person authorized to protect the stolen property is justified to follow the aggressor to retrieve the property.

Subsections 3.14.6 establishes that the actor who uses force to repel aggression must possess intent to use only necessary force to repel the aggression. If an actor exploits the case of self-defense and intends to harm the aggressor for another purpose other than repelling the aggression, he is not entitled to the defense.

Subsections 3.14.7 establishes the doctrine that the actor who utilizes defensive force is liable for his actions against innocent others if he misuses the force because of recklessness or negligence.

Section 3.15          Mental Illness and Diminished Capacity

  • A person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental illness or diminished capacity, he lacks complete awareness of the criminality of his conduct or lacks the free will to conform his conduct to law.
  • A person is unfit to stand trial, if at that time, he suffers from mental illness or diminished capacity, that deprives him from complete awareness of the proceedings, nature of the charges, outcome of trial or ability to present his defense. When a person is found to be unfit to stand trial, he shall be released immediately.
  • Diminished capacity is a mental state akin to the mental state of a child under the age of discretion.
  • Evidence of mental illness or diminished capacity that reduces awareness or free will but does not deprive a person of complete awareness or free will raises a doubt sufficient to prevent the application of Hudud and Qisas A substituted Ta’zir punishment may be instituted if the circumstances warrant.

Explanatory Notes

Free will and complete awareness are indispensable requirements to establish criminal liability in Islamic law. When mental illness negates either requirement, criminal liability ceases to exist.

Awareness is a matter of degree.  Section 3.15 employs the term awareness in the sense of the final stage of comprehension of the nature of a person’s conduct, its quality, its consequences and the surrounding circumstances.

Section 3.15.2 adopts the Malaki and Hanafi perspective that mental illness or diminished capacity prevents trial or infliction of the punishment.

Section 3.15.4 is a direct application of the Islamic law principle that any doubt precludes the punishment of Hudud or Qisas.

Section 3.16          Young Age\ Infancy 

(1) a child less than seven years of age is not criminally responsible for any conduct.

(2) A youth older than seven years and under eighteen years of age, upon conviction of an offense, is not subject to ordinary punishments of Hudud, Qisas or Ta’zir; rather reasonable rehabilitation is instituted.

(3) A person 18 years old or older is criminally responsible for his conduct.

Explanatory Notes

Section 3.16.1 manifests a doctrine agreed upon by the four Sunni schools of thought that a child under the age of seven is not criminally responsible for any conduct.

Islamic law scholars have disagreed on the age of discretion upon which a person is criminally responsible for his actions. Section 3.16.2 adopts the Hanafi and Malaki schools of thought that a child under the age of 18 is subject to rehabilitation only if convicted of an offense. A legislature may adopt the alternative perspective that a child under age of 15 -instead of 18- is subject to rehabilitation only if convicted of an offense.  See, Imam Shafi’i, 7 Kitab Al-Oum at 12.

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