Abstract:

According to the Islamic penal law the application of a criminal sanction to a perpetrator requires the presence of some certain features in the perpetrator himself/herself. Sanity and understanding are the most important ones of these features which have been elaborated under the title of "ahliyyah" in classical fiqh literature. There is no dispute between Muslim jurists about mitigating or quashing a fixed sanction due to an illness blocking sanity and understanding. Some well-known illnesses affecting criminal accountability are mentioned in the classical fiqh literature, but their number is very limited so to enlighten contemporary questions. Kleptomania is a modern disorder, specified by urging a person to steal by blocking his/her self control, and it is currently recognized as a way of defense in secular law. Here the question is: How would be "pathological stealing" evaluated by the Islamic law which punishes stealing with a major sentence like "hadd" or with "ta'zir" in case of doubt or ambiguity? First of all, in order to answer this question it is inevitable to know the nature of kleptomania and define it. Cleptomania is a repeated failure to resist the impulse to steal an object with no intention of personal use or monetary gain. The action of stealing is not made with a financial motivation as in an ordinary theft but with a motivation of disposing a tension before the action. It was neither planned nor assisted by any other. But the sanity of a kleptomaniac is not under doubt and they are able to refrain from action in the presence of security guard, police officer or camera. Indicating that kleptomaniacs are able to understand the result of their actions and they can somehow resist stealing. They feel guilt and shame after the action and get rid of the items they steal in different ways. Most individuals with kleptomania try unsuccessfully to stop themselves from that crime but the inability to stop leads to feelings of shame and attempts to commit suicide. Muslim jurists classify crimes of theft as sarikah and ikhtilas in compliance with some determined conditions. Sarikah is the basic crime of theft punished with the major sentence hadd, and other offences that do not fulfill the conditions of sarikah become ikhtilās punished with ta'zir. Sarikah is "the taking of someone else certain amount (nisāb) of durable goods which are under protection (hirz) with the intention of possession", secretly and without his/her information. The action must avoid any suspicion whether it is Sarikah or not, so had can be imposed. The term secretly means taking the property without the information and will of its owner. The stolen thing must be something accepted as property in Islamic law. Food and ordinary, consumed goods are not included in the definition. Permission for enterance to a place given by the owner (e.g. a market or house) is a reason for a shortcoming in Sarikah. Another condition is that the property must belong "completely" to someone else. Given that information abowe a prior possible analogy -disregarding the pathological part of kleptomania- could be reached as kleptomania and sarikah are the same in terms of the crime's secret; but since kleptomaniacs usually steal things with low monetary value, the crime would mostly turn into ikhtilās punished with ta'zir. Also the intention of stealing without a monetary motivation arouses a suspicion of a mental illness which mitigates the punishment hadd and changes it to ta'zir, due to the principle "reducing the hudūd withn suspicions". Although an assessment of kleptomania within the frame of the Islamic criminal code seems able to be made by neglecting the pathological side of it, a precise assessment requires its consideration. Since kleptomania is a modern disorder it is neither mentioned in classical fiqh literature nor in contemporary authoritative sources, just few current studies discussing mental disorders' results in Islamic penal law like Muhammad Naīm Yāsin's article "Eseru'l-Amrādhi'n-Nafsiyyati va'l-Aqliyyeti alā'l-Mes'ūliyyeti'l-Cinā'îeti" and Hulûd binti Abdurrahman Mühayyaza's doctoral dissertion "Ahqāmü'l-Merīdi'n-Nefsî fi'l-Fıqhi'l-Islâmî" give place to the issue ,nevertheless very limited. In Islamic penal law the issue of "criminal responsibility" is discussed under the general title of "awāridh al-ahliyyah. Contemporary Muslim scholars like 'Ūdeh, Behnesi and Abū Zahra address the subject privately with the title 'criminal responsibility'. Like their predecessors they stipulate the presence of understanding (capability to distinguish right and wrong) and election for responsibility "taklīf". They also accept the absence of criminal responsibility in case of mental disorders but emphasize the difference of impulse control disorders due to the presence of sanity and election. As to a kleptomaniac’s criminal responsibility and the results of his/her action, regarding its pathological side and comparing it with the conditions of theft (sarikah) a conclusion could be reached as such: In kleptomania comprehension and election are available thus the person is criminally responsible according to Islamic criminal law. The assertion of irresistance of stealing becomes unsound with the information that they refrain from action in the presence of a guard or police. It shows both the presence of understanding and ability of resistance in a kleptomaniac, and further it proves the deterrant function of punishment. But the incapacity of self-control because of an alleged disorder brings suspicion to the case and the appointed severest sanction becomes ta'zir, not hadd. Ta'zir can be applied in different forms each targeting the offenders rehabilitation or aiming the compensation of the victim's loss. Prisonment, physical punishments, banning from shopping, dismissions could be some examples of it, surely with the psychological/psychiatric treatment accompanying each of them. An open door may be left for a total criminal irresponsibility if the diagnosis is made by a Muslim specialist and only with a conditioned treatment in a center under the control of the court. As to the victim's compensation, the kleptomaniac gives the goods back if it is still present and no level damage is present to it. In case of impossibility whether he/she has to buy an identical one for his/her victim or must pay the stolen item’s price back; each situation is determined according to the goods’ kind as mislī or qıyamī.

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