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On Statute of Limitations?

Yassine
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8/14/2015 5:34:45 PM
Posted: 1 year ago
- The topic is on statute of limitations concerning criminal cases. Do you think they are necessary? Just to the offended? Just to the offender? Should they include murder & heinous crimes?

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- From my own perspective, in Islamic Law, limitation periods for criminal offences are generally short, aside from Retributions (murder & such) which have none. In cases of Transgressions against the Self (or against God), such as drinking alcohol or fornication/adultery, the limitation period is very short. For drinking alcohol it ends when the smell of alcohol wears off. For fornication/adultery, it's one month. In cases of Transgressions against Others, such as theft, the limitation period is one month, though could be extended to more depending on the case. The system of authority concerned with extending these periods is called Madhalim (Equity System), the ordinary Q'adaa (Judicial System) does not possess such authority.

- This statute of limitations does not include Restitutions, Compensations & Merits. For instance, if the limitation period on theft is over, the thief may not be punished for the crime, but he still has to return or compensate what he stole. It also does not, generally, feature in Arbitration Law or in Dispute Law, in which both the plaintiff & the defendant are pursuing the case.

.

- Please share your thoughts.
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FaustianJustice
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8/15/2015 3:18:31 PM
Posted: 1 year ago
At 8/15/2015 3:27:01 AM, Yassine wrote:
- Anybody?

I tend to agree, "social" crimes (drug use and what not) should have a much smaller statute as the victim is usually the perpetrator. The more permanence a crime has (murder, destruction of property) the longer it should be something that can be prosecuted.

On the flip side, if some one in an act of aggression busts out a random individual's car windows, and sets about to make the property owner whole without authority stepping in to force it, it shouldn't be viewed as a "crime" any more.
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Yassine
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8/15/2015 3:52:00 PM
Posted: 1 year ago
At 8/15/2015 3:18:31 PM, FaustianJustice wrote:
At 8/15/2015 3:27:01 AM, Yassine wrote:
- Anybody?

I tend to agree, "social" crimes (drug use and what not) should have a much smaller statute as the victim is usually the perpetrator.

- I think what you refer to as "social" crimes should not be actively punished. Meaning, there should exist a wide range of options to either drop or minimise the punishments against the transgressor, so that as long as one is willing to repent, he should be allowed to without repercussions. In that case, only those who repeatedly break the law or advocate their crime should be really punished.

The more permanence a crime has (murder, destruction of property) the longer it should be something that can be prosecuted.

- So, you think the statute of limitations is not unjust to either party, perpetrator or victim? If you yourself or a loved one was a victim, God forbid, how would you feel about such a standard? How about murder?

- Here is a scenario. Imagine a rapist who did his misdeed, got away with it for a while, but then changed his ways & repented. Should he be prosecuted after so long, even if he's become a changed man? Or should his punishment only involve some form of compensation? Or should his crime be fully persecuted to serve as warning for those who think they can get away with it?

On the flip side, if some one in an act of aggression busts out a random individual's car windows, and sets about to make the property owner whole without authority stepping in to force it, it shouldn't be viewed as a "crime" any more.

- I totally agree. In Islamic Law, witnesses to a crime are, generally, given the choice to refrain from testifying against the perpetrator giving him/her a chance to make things right on his/her own. There are many systems of authority, which I mentioned before, that are increasingly demanding for a transgressor depending on his willingness to conform to the law. In order:
1. Iftaa = Advisory: the body of scholars of law & theology. In which, the transgressor can ask the scholar for his opinion as to what he should do to fix his mistake without involving any sort of judge.
2. Tahkim = Arbitration: the body of judges chosen by the public or local authorities, which are not necessarily scholars of law. In which the transgressor can resolve his dispute or issue by mutual agreement or settlement without legal repercussions.
3. Q'adaa = Judiciary: the body of scholars of law appointed as judges by the government. In which there are legal repercussions & punishments involved, but with limitation periods less than a month. Here, the judge can not force witnesses to testify, or the parties involved to be present...
4. Madhalim = Equity: the highest authority of court, with power over the government. In which the judge has the highest authority of the law, he can force witnesses to testify, invoke the transgressor with force, extend the limitation periods...
=> I think there is a similar progressive system in Common or Civil Law. Transgressors should be given the chance to solve their own mess on their own. Only when they insist on ignoring their crimes or on breaking the law should they be actively pursued.
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FaustianJustice
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8/15/2015 4:16:57 PM
Posted: 1 year ago
At 8/15/2015 3:52:00 PM, Yassine wrote:
At 8/15/2015 3:18:31 PM, FaustianJustice wrote:
At 8/15/2015 3:27:01 AM, Yassine wrote:
- Anybody?

I tend to agree, "social" crimes (drug use and what not) should have a much smaller statute as the victim is usually the perpetrator.

- I think what you refer to as "social" crimes should not be actively punished. Meaning, there should exist a wide range of options to either drop or minimise the punishments against the transgressor, so that as long as one is willing to repent, he should be allowed to without repercussions. In that case, only those who repeatedly break the law or advocate their crime should be really punished.

The more permanence a crime has (murder, destruction of property) the longer it should be something that can be prosecuted.

- So, you think the statute of limitations is not unjust to either party, perpetrator or victim? If you yourself or a loved one was a victim, God forbid, how would you feel about such a standard? How about murder?

Murder is pretty permanent. That would mean it doesn't have a statute of limitations. Arson can be pretty long lasting, which makes it trickier.

- Here is a scenario. Imagine a rapist who did his misdeed, got away with it for a while, but then changed his ways & repented. Should he be prosecuted after so long, even if he's become a changed man? Or should his punishment only involve some form of compensation? Or should his crime be fully persecuted to serve as warning for those who think they can get away with it?

This is really dependent on the victim. If the victim has been traumatized (or continues to be so), then yes, the perpetrator should be jailed, or pay some variety of recompense. Though I am not sure how that could be done with appreciation to how the victim might be traumatized.

On the flip side, if some one in an act of aggression busts out a random individual's car windows, and sets about to make the property owner whole without authority stepping in to force it, it shouldn't be viewed as a "crime" any more.

- I totally agree. In Islamic Law, witnesses to a crime are, generally, given the choice to refrain from testifying against the perpetrator giving him/her a chance to make things right on his/her own. There are many systems of authority, which I mentioned before, that are increasingly demanding for a transgressor depending on his willingness to conform to the law. In order:
1. Iftaa = Advisory: the body of scholars of law & theology. In which, the transgressor can ask the scholar for his opinion as to what he should do to fix his mistake without involving any sort of judge.
2. Tahkim = Arbitration: the body of judges chosen by the public or local authorities, which are not necessarily scholars of law. In which the transgressor can resolve his dispute or issue by mutual agreement or settlement without legal repercussions.
3. Q'adaa = Judiciary: the body of scholars of law appointed as judges by the government. In which there are legal repercussions & punishments involved, but with limitation periods less than a month. Here, the judge can not force witnesses to testify, or the parties involved to be present...
4. Madhalim = Equity: the highest authority of court, with power over the government. In which the judge has the highest authority of the law, he can force witnesses to testify, invoke the transgressor with force, extend the limitation periods...
=> I think there is a similar progressive system in Common or Civil Law. Transgressors should be given the chance to solve their own mess on their own. Only when they insist on ignoring their crimes or on breaking the law should they be actively pursued.

Good way of looking at it.
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Yassine
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8/15/2015 4:30:54 PM
Posted: 1 year ago
At 8/15/2015 4:16:57 PM, FaustianJustice wrote:

Murder is pretty permanent. That would mean it doesn't have a statute of limitations. Arson can be pretty long lasting, which makes it trickier.

- Alright, I assumed you thought murder should have a statute of limitations. I guess we are in agreement.

- In Islamic Law, Qi'sas (Retributions) don't have a statute of limitation. Retributions include: murder, imputation, mutilation, scarring, gashing, gouging out the eyes...

This is really dependent on the victim. If the victim has been traumatized (or continues to be so), then yes, the perpetrator should be jailed, or pay some variety of recompense. Though I am not sure how that could be done with appreciation to how the victim might be traumatized.

- In case the perpetrator has repented, what purpose would jailing him serve?

Good way of looking at it.

- I guess we agree on that as well. Who knew! :)
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FaustianJustice
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8/15/2015 4:52:54 PM
Posted: 1 year ago
At 8/15/2015 4:30:54 PM, Yassine wrote:
At 8/15/2015 4:16:57 PM, FaustianJustice wrote:

Murder is pretty permanent. That would mean it doesn't have a statute of limitations. Arson can be pretty long lasting, which makes it trickier.

- Alright, I assumed you thought murder should have a statute of limitations. I guess we are in agreement.

- In Islamic Law, Qi'sas (Retributions) don't have a statute of limitation. Retributions include: murder, imputation, mutilation, scarring, gashing, gouging out the eyes...

This is really dependent on the victim. If the victim has been traumatized (or continues to be so), then yes, the perpetrator should be jailed, or pay some variety of recompense. Though I am not sure how that could be done with appreciation to how the victim might be traumatized.

- In case the perpetrator has repented, what purpose would jailing him serve?

As poor as it is to say this, and odd sense of restitution. There really is nothing a person can do to "unrape" their victim, and the results of the crime might linger, or not. With a crime like an assault, or destruction of property, there are hard and fast "transgressions" that can be found. Broken limbs, black eyes, things of that nature. Granted, a rape could hold that as well, but if the victim was docile enough out of fear so that it was solely sexual assault, there was still an assault.

With regards to the various guidelines you put forth, how does a statute of limitations apply to assaulting some one? Can being truly repentant of gouging out some one's eye exonerate you from retribution? If not, why can't rape hold the same sway?

Good way of looking at it.

- I guess we agree on that as well. Who knew! :)

Internet forums tend to trend toward disagreement rather than agreement. After all, we enjoy the controversy that such disagreement can bring.
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Yassine
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8/15/2015 7:04:23 PM
Posted: 1 year ago
At 8/15/2015 4:52:54 PM, FaustianJustice wrote:

As poor as it is to say this, and odd sense of restitution. There really is nothing a person can do to "unrape" their victim, and the results of the crime might linger, or not.

- Then you mean retribution? Since, the state of the woman can not go back to what it was before.

With a crime like an assault, or destruction of property, there are hard and fast "transgressions" that can be found. Broken limbs, black eyes, things of that nature. Granted, a rape could hold that as well, but if the victim was docile enough out of fear so that it was solely sexual assault, there was still an assault.

- I am not sure what point are you trying to make here!

With regards to the various guidelines you put forth, how does a statute of limitations apply to assaulting someone?

- I am gonna get a little bit technical since you seem to be interested in the subject. The statute of limitations in Shari'a are mainly associated to the staleness of the case, not particularly to how permanent it is. Islamic Law views criminal prosecution a little bit differently than Western Laws, in that it's very objectives/consequences oriented:
> First, it incorporates virtually all aspects of life, inward & outward. So, really, the sections of Islamic Law concerned with criminal cases that make it to court is relatively tiny. The rest is made up of an ethical framework making sure these crimes don't happen, or don't happen in public, or don't make it into court.
> Second, the objective of courts is not really to punish crimes, as is the case of Common Law for example, but rather to prevent individuals from committing them. That's why, sole crimes done in secret have generally light or no active punishments, while repetitive crimes or crimes done in public generally have increasingly harsher punishments. Because, if the person did his misdeed alone & is seemingly ready to not repeat it, then a light punishment should be enough to stop him ; if the person doesn't recognise his crime & boast about it or is willing to repeat it, a harsher punishment is needed ; & if the person makes his crime public, then the punishment should be severe to serve as a warning, for he made the public aware of his crime, the public should know about his punishment & thus be afraid to commit the same crime. Also, if there is no point to a punishment, there shall be none.
> Third, the process of conviction is also different. The highest cases of conviction (specifically Hudud) have extreme requirements very rarely met, lesser cases (of Ta'zir) have increasingly less requirements & thus less punishment. For instance, there are different kinds of Testimony: Shahada, Ishhad, Riwaya & Ikhbar. In Western Laws only the latter two exist (which don't differentiate between man or woman). In most cases, the Shahada would be inexistent or insufficient. The difference between Shahada & Ikhbar for example is that Shahada is considered conclusive direct evidence (Bayyinah) of the crime (granted it's fulfilled) & is prone to lead to criminal prosecution, whereas Ikhbar is considered non-conclusive evidence (Q'arina ; in Western Laws, Ikhbar can designate both circumstantial & direct testimony) & also can not lead to criminal prosecution, unless with other supporting evidence. Hudud are only carried out in cases of Conclusive Evidence, while Ta'zir is carried out in cases of Compelling Evidence (Rujuh). Point being, while Common Law ordinarily relies on compelling evidence & a jury to punish crime, Islamic Law relies on conclusive evidence to punish crime. In this case, compelling evidence serves as a support the judge may rely on to either punish, punish lightly, or not punish the crime (depending on other factors).

=> Long story short, limitation periods mainly have to do with:
1. Is there conclusive evidence for the crime? The only two type of evidence considered conclusive are: direct & reliable or abundant testimony (from 2 to 50 witnesses), & confession free from coercion, contradiction & retraction. All other evidence is considered non-conclusive. So, unless there is conclusive evidence for the crime, the limitation period will not be extended (unless for some really extreme cases). So, an old testimony of 10 or 20 years can not be deemed reliable anymore.
2. The manner in which the crime is done, solely, repeatedly or publicly? If it's done publicly, the statute of limitation may be extended, if not, it's unlikely to happen.
3. The repentance of the perpetrator.

- As I said, these limitation periods do not include Restitutions, Merits & Compensations. When the jurists refer to Repentance, they don't mean 'remorse' or 'apologies'! They mean what I cited above (Restitution...). For example, if the thief repented before getting caught, then he bears no punishment, really means, if the thief returned or compensated the amount he stole...

Can being truly repentant of gouging out some one's eye exonerate you from retribution? If not, why can't rape hold the same sway?

- That's a good question. & I can see how comparable the two situations are. In case of Retributions, either the assault is done intentionally & aggressively, which means it's all up to the assaulted party: if the victim decides to forgive the assaulter, he gets to pay a sum of indemnity, otherwise, the retribution is carried out. Or, if the assault is done unintentionally or not aggressively, then the assaulted only gets to pay the sum without retribution. (aggressively here means unjustly, in the sense that if it's done in self defence it doesn't count as aggressive).

- In Islamic Law, rape is categorised into four categories of offences, which makes it a little more complicated to handle:
1. Ikrah (Coercion): which means the coerced is free from punishment, while the aggressor's is augmented in form of additional prison time or additional compensations.
2. Zina (Adultery/Fornication): since rape involves sexual intercourse its punishment is primarily that of adultery, the base punishment for a non-married rapist in this case would be 100 lashes plus 1 year of exile or confinement, while a non-married rapist's would be death by stoning.
3. Ghasb (Extortion): rape is also considered a form of extortion, because both virginity & genitalia are considered forms of possessions. So, if the victim was virgin, the rapist would have to compensate that too (which is 50 dinars, about 8,000$). Otherwise, he'd have to compensate the sexual act alone, which would involve a form of settlement.
4. Haraba (Banditry): all the above is done with the assumption that the rape was done solo & without armed threat. If the rape is done in gangs or under armed threat (with knife & such), then the act is considered Banditry, & is punishable by either amputation of one arm & one leg or death for the unmarried perpetrators, & death by stoning for the married ones.

- Now, from the outside, the punishment for rape seems very severe. However, all this works in case of Conclusive Evidence, i.e. there was 4 righteous witnesses who simultaneously saw the act of penetration, which is very unlikely to happen. So, unless the rapist choses to confess (4 times, without retraction) to his crime, due to guilt or questioning, these punishments will not be carried out. Instead, there will be less severe punishments either involving relatively short prison sentences, short periods of exile, limited corporal pain (20 lashes or so), or compensations, or nothing.
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Yassine
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8/15/2015 7:23:26 PM
Posted: 1 year ago
At 8/15/2015 4:52:54 PM, FaustianJustice wrote:

With regards to the various guidelines you put forth, how does a statute of limitations apply to assaulting some one? Can being truly repentant of gouging out some one's eye exonerate you from retribution? If not, why can't rape hold the same sway?

- With all the above been said, extending the statute of limitations to fully punish a rapist is a little tricky. Most likely the only way this might happen is if the rapist himself came & confessed (4 times without retraction) long after the fact. The problem with this is that the punishment for his act would be so severe, it outclasses his initial crime, even his victim wouldn't wish it for him. So, the judge would then have to weigh the situation & decides to either extend the limitation period & punish the person, depending on the manner in which the crime was conducted (publicly or repeatedly, or both), & depending on the readiness of the perpetrator to redeem himself & do what's necessary to satisfy his past victim. If the guy didn't look remorseful or if he is hesitant to settle the case, then maybe the judge would strike with the full force of the law. Otherwise, the judge may preferably chose to settle the case instead.
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