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THE ROLE OF THE VICTIM (MAJNI ‘ALAYH) IN THE COMMISSION OF TAʿZIR
CRIMES
Mohmmad Younes Nadaie
Master’s Student of Criminal Law and Criminology, Faculty of
Law and Political Science, Jami University, Herat, Afghanistan.
Qadarddin Akbari
Master’s Student of Criminal Law and Criminology, Faculty of
Law and Political Science, Jami University, Herat, Afghanistan.
Senior Teaching Assistant:
Abdul Qadeer Nadei
Department of Criminal Law, Law and political Science Faculty, Herat University.
https://doi.org/10.5281/zenodo.17045646
Abstract. The present research, entitled “The Role of the Victim (Majni ‘Alayh) in the
Commission of Taʿzir Crimes”, examines the position of the victim in the process of criminal
occurrence. In classical legal systems, the victim was predominantly regarded as an innocent
party, deserving unconditional protection; however, modern victimology reveals that the victim
may also play an active role in the genesis of crime. The value of this research lies in its focus on
taʿzir crimes, demonstrating how the conduct, personal characteristics, and social conditions of
the victim can contribute to the commission of crime and, in certain cases, influence the
determination of the type and degree of penal response. The importance of this subject stems
from the fact that identifying the role of the victim not only assists criminal policymakers in
adopting preventive measures, but also serves as a decisive factor in judicial proceedings and
criminal justice. The objective of this research is to analyze legal and jurisprudential cases in
order to clarify the relationship between the victim’s actions and the commission of crime,
thereby uncovering dimensions of the issue that have received less scholarly attention. The
principal research question is centered on the extent to which the victim can play a role in the
commission of taʿzir crimes, and how this role impacts criminal policy and penal response. The
research method is library-based, relying on legal, jurisprudential, and criminological sources,
and the type of research is descriptive–analytical. The findings indicate that in crimes against
persons, property, and individual freedoms, the victim’s role may range from provocation to
facilitation of the crime; in some cases, the legislator has even adjusted or modified the penal
response based on the victim’s conduct. These findings underscore the necessity of incorporating
victimology into Afghanistan’s criminal policy and reconsidering the framework of victim
protection.
Keywords: Persons, Property, Taʿzir, Crime, Victim.
Introduction
The issue of the role of the victim (majni ʿalayh) in the commission of crimes,
particularly in relation to taʿzir offenses, is considered a relatively recent topic in criminal law
and criminology. In earlier times, the victim was consistently perceived as an innocent, passive
party in need of protection. However, scientific developments, particularly within the field of
victimology, have demonstrated that the behaviors, psychological traits, social conditions, and
even the specific circumstances of the victim may influence the commission of crimes and
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contribute to the formation of criminal motives. From this perspective, studying the role of the
victim in taʿzir crimes becomes significantly important, as this category of offenses encompasses
a wide range of crimes against persons, property, and individual freedoms. In certain instances,
the legislator has even considered the victim’s conduct in prescribing different penal responses.
A review of prior scholarship indicates that many scholars have addressed the issue of the
victim. For instance, Benjamin Mendelsohn, in the mid-twentieth century, classified victims and
demonstrated that certain victims, through their specific behaviors, contribute to the occurrence
of crime (Nadai, 2024: 34). Likewise, von Hentig’s research highlighted the reciprocal
relationship between the offender and the victim, presenting the victim not merely as a passive
entity but as an active factor in the process of criminality (Mirkhalili, 2006: 363). In more recent
works, Shahideh (2014) has emphasized the role of the victim in provoking or facilitating crimes
against persons, showing that such behavior may result in significantly different penal outcomes
in cases such as adultery-related killings or self-defense. Similarly, the Asia Foundation (2019),
in its commentary on the Afghan Penal Code, scientifically examined the position of the victim
in self-defense and other offenses. These works demonstrate that the present research lies within
the broader discourse of victimology, yet specifically focuses on taʿzir crimes in Afghan law
with a descriptive–analytical approach.
The value of this research lies in its effort to clarify the role of the victim in the process of
committing taʿzir crimes, which constitute a substantial portion of criminal cases. In reality, an
accurate understanding of the victim’s share is significant not only for crime prevention but also
for criminal policymaking, judicial proceedings, and the determination of punishment. The
importance of this research becomes even more pronounced considering that many taʿzir crimes
in Afghan society are rooted in cultural, social, and economic conditions, where victims may,
directly or indirectly, contribute to their occurrence. The main objective of the research is to
scientifically explain and analyze the role of the victim in the commission of taʿzir crimes and to
examine the reflection of this role within Afghan criminal legislation. Alongside this general
aim, subsidiary objectives include clarifying the role of the victim in crimes against persons
(such as adultery-related killings or abortion), in crimes against property (such as fraud or failure
to report theft), and in crimes against personal freedom and self-defense. Accordingly, the
central research question is: To what extent does the victim play a role in the commission of
taʿzir crimes, and how does this role affect penal responses and criminal policy? The research
hypothesis is that the behavior, characteristics, and circumstances of the victim can facilitate the
commission of taʿzir crimes, and in certain cases, the legislator, by considering this role, applies
different penal responses not only toward the offender but also, in some instances, toward the
victim.
The research method adopted is library-based, relying on legal, jurisprudential, and
criminological sources. The type of research is Descriptive–analytical; in other words, it first
describes the concepts, foundations, and examples of the victim’s role, and then analyzes its
effects and consequences in the Afghan legal system. The findings indicate that in many taʿzir
crimes, the victim, through his or her actions and conduct, becomes a contributing factor to
criminality. In adultery-related killings, the role of the wife’s Infidelity and her partner; in
criminal abortion, the consent or action of the mother; and in property-related crimes, the
negligence or collusion of the owner, serve as illustrative examples. Moreover, in the sphere of
self-defense, a victim who is himself the aggressor effectively contributes to the creation of a
dangerous situation and, as such, receives less protection.
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These results indicate that the perception of the victim must move beyond the traditional
notion of a “mere sufferer” and instead recognize the victim as an active element in the process
of criminality. In conclusion, the present research seeks to, through reliance on the principles of
victimology and analysis of Afghan law, clarify the role of the victim in the commission of taʿzir
crimes and highlight the necessity of reconsideration in criminal policy—a policy that, while
protecting genuine victims, also attributes responsibility to those victims who directly or
indirectly participate in the commission of crime.
1-
The Victim (Majni ‘Alayh) and Its Types
The term “victimology” and “victim (majni ‘alayh)” was first introduced in 1947 by
Benjamin Mendelsohn. Some criminologists define victimology as a method or a branch of
knowledge aimed at studying the personality, physical and psychological traits, and the social
and cultural characteristics of the victim, while examining his or her relationship with the
offender and identifying the role of the victim in the commission of crime (Jose, n.d.: 78). One of
the central pillars of victimology concerning the victim is the Examination of the causes and
factors that lead to victimization and the role played by victims of crimes in reality. Today, the
injured party of a crime is studied as one of the influential factors in the emergence of
criminality. It is evident that the conduct and actions of the victim, whether directly or indirectly,
can create criminal tendencies, stimulate motives, and facilitate the conditions for crime. Based
on the findings of victimology, the victim of a crime—who was previously regarded as an
innocent, blameless, and fully deserving of protection—can, through his or her social behavior
and manner of interaction with others, inspire criminal thoughts and even provoke the
commission of crime. Accordingly, scientific victimology may be defined as follows: “A branch
of victimology that focuses on the study of the role and contribution of the victim in the
commission of crime, examining the victim’s personality, psychological, social, and biological
attributes, his or her relationship with the offender, and ultimately the victim’s share in the
formation of the committed offense” (Shahideh, 2014: 25).
1-1-
Victim
The term “Victim” in English corresponds to Majni-‘Alieh in Persian, and in Arabic,
terms such as Majni-‘Alieh, Mutadar, Madhrur, and Dahiya are used. A victim is an individual
against whom a crime has been committed. The victim is the person who has been subjected to a
criminal act, suffering harm or injury to their life, property, reputation, dignity, or family, and
experiencing material, physical, moral, or psychological damages. In other words, a victim is
someone who suffers loss or injury as a result of a criminal event (Hussein & Hakimi, 2011:
108).
A victim is a person who directly or indirectly experiences material, moral, physical, or
psychological harm from the occurrence of a crime. The victim is someone who, as a
consequence of a criminal act, suffers moral, physical, material, or spiritual damage (Hussein &
Hakimi, 2011: 110).
According to this definition, a person may be recognized as a victim or injured party
during the stages of detection, preliminary investigation, or judicial proceedings. Material harm
refers to the deprivation of a person from the use of their tangible assets due to the commission
of a crime. Moral harm is the damage to one’s honor and reputation in society. Physical harm is
the bodily injury or wounds inflicted on a person as a result of the crime. Spiritual harm indicates
that the human dignity and status of a person are impaired because of the crime, causing
suffering and distress to the injured individual.
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To be recognized as a victim, the damage must have resulted directly from the criminal
act. A victim is a person who has suffered physical, material, or moral harm as a consequence of
a crime (Nadai, 2024: 16).
From Ezzat Fath’s perspective, victims are those who, as a result of another person’s act
or omission, have been threatened, harmed, or lost. Harm may be inflicted by individuals or
other structures and institutions in which people are involved. A victim is a person whose
personal integrity has been violated and harmed by an external agent, identifiable both to the
individual and to society (Abbasi, n.d.: 51).
1-2-
Types of Victims
Criminologists, based on the degree of influence on the occurrence of a crime and the
level of vulnerability, have classified victims into different types. Von Henting and Benjamin
Mendelsohn categorized victims according to the extent of their involvement in the crime, which
can be divided as follows: completely innocent victims, such as children; fully culpable victims,
such as a person who attacks another and gets harmed in self-defense; or those who are harmed
due to provocation or failure to protect themselves (Mirkhalili, 2006: 362).
1-2-1- Mendelsohn’s Classification
Mendelsohn classified victims based on their responsibility, level of participation, and
behavior. The first category is the innocent victim, such as children, the mentally ill, or those
who have taken all protective measures but still suffer from the crime completely unexpectedly.
The second category includes victims who have played a role in the crime, for example, someone
who provokes an incident or crime, or who knowingly or unknowingly facilitates it, such as
going to dangerous places. The third category is the criminal victim, a person who becomes a
victim as a result of their own criminal act, such as a person committing suicide, who is both
offender and victim (Nadaie, 2024: 34).
1-2-2- Von Henting’s Classification
Von Henting, considering the relationship between the offender and the victim, divides
them into three categories (Mirkhalili, 2006: 363). The first category is a person who is
sequentially offender and victim: after committing the crime, the offender lives in a dangerous
situation, constantly evading the police, feeling isolated from societal protection, and in some
cases, even after serving punishment, remains at risk from accomplices or associates. The second
category is an individual who is both offender and victim simultaneously, such as in suicide,
where the person violates their own life, being both perpetrator and victim. The third category
includes individuals whose behaviors unintentionally lead to becoming either an offender or a
victim; this includes persons with psychological disorders.
Some criminologists further divide victims into the following categories:
1.
Actual victim: a person who played no role in the occurrence of the crime and did not
contribute to its commission; also called an innocent victim.
2.
Culpable victim: a person who is primarily responsible for the harm inflicted upon
themselves, such as a negligent driver who dies in an accident caused by their own carelessness.
3.
Accomplice victim: individuals who create conditions facilitating the commission of the
crime and, as a result of those circumstances, become victims themselves (Nadai, 2024: 34-35).
Victims, based on their role in the occurrence of the crime, can be divided into two major
groups: the first group is completely innocent, including children, mentally ill individuals, and
those who took all necessary precautions but still became victims by coincidence. The second
group includes influential victims, who in some way participate in the crime, ranging from
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negligence and provocation to acts in which they become victims through their own criminality
(Bani, 2014: 419).
2-
The Role of the Victim in the Commission of Ta‘zir Crimes
The term Ta‘zir originates from the root ʿazar, meaning to prevent, restrain, or admonish
(Mohaghegh Damad, 2011: 196). Ta‘zir is a discretionary punishment imposed on the
perpetrator of a prohibited act in cases where Hud, Qisas, Diyya, or Kafara have not been
prescribed, or if prescribed, are not enforceable for specific reasons. Its purpose is to discipline
the offender and prevent the recurrence of the crime. The type and severity of Ta‘zir are not
explicitly defined in Sharia and are therefore left to the discretion of the ruler or judge (Qazi,
1986: 279).
Accordingly, anyone who commits a sin for which a specific fixed punishment has not
been prescribed is subject to Ta‘zir. Examples include insulting someone or physically assaulting
another person. In the context of Ta‘zir punishments, no specific limitations are established, and
the law only provides a general description of prohibited acts. Consequently, assessing the
committed crime and determining the type and extent of the punishment depends on the
discretion and judgment of the authority (Mohaghegh Damad, 2011: 207).
Article 2 of the Afghan Penal Code regarding the implementation of Hud states: “This
law regulates crimes and Ta‘zir punishments. Paragraph 2: The perpetrator of Hud, Qisas, and
Diyya crimes shall be punished in accordance with the Hanafi jurisprudence of Islamic Sharia”
(Afghan Penal Code, 2017: Article 2).
Certain legal provisions also refer to the role of the victim in the commission of Ta‘zir
crimes. From this perspective, the victim’s role will be examined scientifically from the
standpoint of victimology.
1-2- The Role of the Victim in Crimes Against Persons
In law, discretionary punishments (Ta‘zir) are sometimes prescribed for perpetrators of
crimes against the physical integrity of individuals. These punishments are applied in addition to
Diyya, which is a personal right, and are enforced as a public right against the offender.
Attention to the role of the victim in the commission of criminal acts can be observed in cases
such as provocation or incitement of a husband in qatl-e-farash (killing in flagrante), the belief in
the victim’s madhar al-dam status, the unawareness of a pregnant woman in cases of abortion,
and the actions or behavior of the victim provoking a reaction from the other party in self-
defense, which results in harm to the victim (Shaheeda, 2014: 115).
1-1-2 The Role of the Victim in Qatl-e-Farash
Farash refers to a bed, nest, or place where people sleep (Rahimi Nia, 2004: 526). In qatl-
e-farash, the killing involves an adulterous woman and an alien man caught in the act of adultery
by her husband (Imani, 2003: 363).
The notion of killing in flagrante and permitting the killing of a woman committing
adultery with a foreign man exists in ancient civilizations. According to the Assyrians, a husband
had the absolute right to kill his wife caught in adultery. Similarly, in the Japanese Empire, a
husband who observed his wife committing adultery could immediately kill both parties (Durant,
1988: 290, 292, 286, 323). In ancient Greece during the fifth century, direct retribution in
specific cases was permissible; thus, a man observing illicit relations involving his wife, mother,
lover, sister, or daughter could lawfully kill the offenders (Garo, 1984: 171).
The connection of qatl-e-farash with scientific victimology lies in the fact that if a
husband observes his wife and an alien man in flagrante, he may even kill both, making their
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victimization a result of their own role in committing the act. The legislator, considering their
reprehensible Conduct, excludes them from protection and does not subject the offender to
punitive consequences (Nadaie, 2024: 80).
2-1-2 The Role of Female Victims in Abortion
Abortion, or sacrifice of the fetus, has always been a matter of concern in societies, and
its prevention and control are important issues. Abortion is classified into several types:
1.
Natural or involuntary abortion;
2.
Medical abortion;
3.
Criminal abortion (Najabati, 2010: 147-149).
Criminal abortion is defined as the intentional termination of a pregnancy before the fetus is
viable, or deliberately interrupting the natural course of pregnancy so that the fetus cannot
survive (Goldouzian, 2004: 196). Since only criminal abortion is subject to legal protection, this
type will be the focus. Criminal abortion is established under the following circumstances:
1.
Expulsion of the fetal contents before the natural term by the mother through
manipulation, ingestion of drugs, or intentional trauma (self-harm).
2.
Manipulation of the uterus with abortifacient drugs by others.
3.
Use of specific instruments by a physician, midwife, or unauthorized person to induce
bleeding, terminate pregnancy, or disrupt gestation without legal authorization (Goudarzi &
Kiani, 2001: 307).
Victimology teachings, taking into account the role of the victim in completing the
victimization process, emphasize considering all root causes and factors affecting women’s
victimization and provide specific differentiated protection for vulnerable women. Some
criminal abortions occur among women and girls outside the legal and religious frameworks, due
to illicit relations, potentially leading to pregnancy and abortion (Nadaie, 2024: 81).
One category of victims, as identified by Mendelsohn, includes minimally culpable
victims. A woman who deliberately undertakes measures that lead to an incomplete pregnancy
and suffers the loss of her life as a result of ignorance or inexperience exemplifies this type of
victim (Z. Lopez, 2009: 52).
Article 569 of the Afghan Penal Code stipulates: “A person who intentionally destroys
the fetus of a pregnant woman or expels it before the natural term commits the crime of
abortion.” Paragraph 2 of this article states that if the Diyya conditions are not fulfilled or are
nullified, the offender shall be punished according to this chapter (Afghan Penal Code, 2017:
Articles 569(1) & 569(2)).
The question arises whether the mother can be punished as an accomplice for
encouragement, facilitation, consent, or inducement. Article 572 of the Afghan Penal Code
states: “If a pregnant woman, knowing the consequences, deliberately ingests drugs or uses other
means herself, or permits another to do so, resulting in abortion, she shall be sentenced to short-
term imprisonment or a fine of thirty to sixty thousand Afghanis” (Afghan Penal Code, 2017:
Article 572).
Article 571 further provides that: “A person who deliberately causes abortion by
providing drugs or using other means, even with the woman’s consent, shall be sentenced to
medium-term imprisonment” (Afghan Penal Code, 2017: Article 571).
Abortion may also occur to conceal a pregnancy from illicit relations or to preserve
family honor, with circumstances such as provocation and facilitation contributing to its
occurrence.
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These women, in addition to being censured for illicit relations, may also facilitate their
own victimization due to unhygienic medical practices, lack of facilities, or other medical
violations. Moreover, women pregnant from illicit relations may avoid reporting these crimes out
of fear of censure, dishonor, or social stigma and may resort to illegal abortion centers,
increasing their prevalence. Given that official sources do not provide accurate statistics on
illegal abortions, attention from authorities is necessary (Shaheeda, 2014: 133).
3-1-2 The Role of the Victim in Legitimate Defense
Humans generally do not submit passively to unlawful or illegitimate attacks and instead
act to defend themselves. This tendency has existed throughout history. In Roman law,
legitimate defense was not recognized as a crime, and Cicero considered it a principle of natural
law. In early French law, under the influence of Christian thought, legitimate defense was
accepted but with significant limitations. Similarly, in Islamic criminal law, legitimate defense is
recognized under specific conditions, which have also been reflected in the Afghan Penal Code
(Noorbaha, 2011: 258).
Legitimate defense is the right of every individual to protect their life, property, and
honor—or that of another—in many circumstances. Exercising this right is permissible when
society is unable to provide protection. Therefore, legitimate defense is considered an
exceptional situation, subject to conditions that create mutual obligations for the defender.
Equity and justice require that the defender be protected, and if in the process the attacker is
harmed or the defender commits an act that would normally be criminal, the community and
criminal justice system should not respond negatively. Consequently, the legislature has removed
the criminal characterization from such acts (Nadaie, 2024: 83).
Potential offenders who intend to commit crimes against the life, property, honor, or
liberty of individuals, and who, according to rational choice theory, select convenient and low-
cost targets, may contribute to their own victimization through the victim’s defensive actions.
Mendelsohn considers a person who attacks another, but is killed by the victim in
legitimate defense, as a victim with full criminal responsibility (Z. Lopez, 2009: 53). In criminal
law, if the defender’s actions comply with statutory conditions, they do not constitute a crime,
and the aggressor, who becomes the victim, receives less protection.
Accordingly, the Afghan Penal Code recognizes legitimate defense as a justification for
crime. Article 118 provides: “A criminal act committed in the presence of any justification
recognized as a ground for permissibility shall not constitute a criminal offense and shall not
result in criminal liability” (Afghan Penal Code, 2017: Article 118). Various perspectives have
been offered to justify the philosophy of legitimate defense, and specific conditions for its
application will be studied.
1-3-1-2 Theoretical Basis of Legitimate Defense (Moral Compulsion
)
Three main theories justify the legitimacy of defense: moral compulsion, exercise of a
right and performance of duty, and social utility.
1.
Moral Compulsion: According to this theory, the attacker’s aggression destroys
the defender’s free will. Therefore, if the defender commits an offense against the attacker in this
situation, causing their victimization, they are not punishable. Proponents argue that unlawful
aggression negates free will, and the resulting offense occurs under the influence of instinctual
survival impulses, compelling human action (Noorbaha, 2011: 259). However, this theory does
not align fully with reality, as in many cases individuals act deliberately and with full will in
self-defense.
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2.
Exercise of a Right and Performance of Duty: Some scholars justify legitimate
defense based on natural law. Gaius and Wolf argue that the defense of life is a natural right, and
when social protection is insufficient or unavailable, individuals are free to use personal means
to safeguard their life. Defense in this context assumes the rights it seeks to protect. Therefore, if
the right is a natural right, defense is also a natural right. Critics argue that this theory limits
legitimate defense only to natural rights, while defense of non-natural rights, such as property, is
also permissible (Baheri, 2005: 231).
3.
Social Utility: Another justification is based on social benefit, asserting that
defense carries social utility and society gains nothing by punishing a person acting in legitimate
defense. Philosophically, legitimate defense is justified by preserving societal interests, allowing
individuals to protect themselves and their honor when recourse to law enforcement is
impossible. If the defender acts within statutory limits, they are exempt from punishment
(Sanaei, 2003: 246).
4-1-2 Conditions for Legitimate Defense
Legislators have outlined conditions for legitimate defense, stating that if these conditions
are met, the defender’s act is stripped of criminal liability. Article 127 of the Afghan Penal Code
provides: “The conditions of legitimate defense, as a justification and ground for permissibility
of crime, are disciplined and precise. Absence of these conditions excludes the act from being
considered legitimate defense” (Afghan Penal Code, 2017: Article 127). Paragraph 1 of Article
127 specifies these conditions.
Since legitimate defense inherently involves both attack and defense, the necessary
conditions can be examined under two main categories.
1-4-1-2 Conditions Related to the Attack
An attack or threat that justifies legitimate defense must meet three conditions, all of
which must be present:
1.
The attack and threat must be unlawful and unjust: According to paragraph 1,
subparagraph 1 of Article 127, for an act to qualify as legitimate defense, the attack must be
illegal and unjust. If the act is lawful, legitimate defense cannot apply. For instance, lawful
actions taken by law enforcement or security personnel do not justify legitimate defense. Article
131 of the Afghan Penal Code specifies that defense against actions of security personnel is not
permissible unless they exceed their authority, causing imminent death or severe bodily harm
based on reasonable evidence (Asia Foundation, 2019: Vol. 1, 351–373).
The attack must lack legal justification; if it is legally sanctioned, one cannot invoke
legitimate defense. A question arises: if the attack occurs in circumstances where the attacker is
exempt from punishment, is defending oneself by committing a criminal act considered a crime?
For example, if a husband finds his wife with a stranger in flagrante delicto and attacks to
exercise his legal right, killing both, and one of them kills the husband in defense, is such
defense legitimate? One legal scholar argues: although the attacker may be legally exempt from
punishment, the act is unlawful and unjust, so self-defense is justified (Baheri, 2005: 332–333).
However, it can be counter-argued that the attack in this case has legal protection, as the
law grants such rights to the husband; thus, it is not legitimate defense. Therefore, when an
attack is lawful, even if the victim’s actions scientifically provoke a defensive response, the
legislator ignores the aggressor’s influence to maintain public order and security, and does not
support the defender (Nadai, 2024: 85).
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2.
The threat or attack must be actual or imminent: Legitimate defense is permissible
only against an actual or imminent attack. Imminent attack means the attack has not yet occurred
but is about to happen and is inevitable. Imminence must be established based on external,
reasonable evidence. Accordingly, legitimate defense persists as long as the threat exists. Article
128 of the Afghan Penal Code states: “The right to legitimate defense continues as long as the
threat exists and ends with its cessation” (Afghan Penal Code, 2017: Article 128). An actual
attack begins when the assault is initiated, while imminent attack exists when the attack has not
yet occurred but all conditions indicate it will soon occur, such as when an aggressor assumes an
offensive posture with a weapon (Asia Foundation, 2019: 363–364).
3.
The defender must not have deliberately caused the threat: The defender must not
have intentionally created the danger. According to paragraph 6, subparagraph 1 of the same
article, legitimate defense is applicable only if the defender did not deliberately provoke the
threat. If the defender incited the aggressor or attacked first, they cannot invoke legitimate
defense, as self-induced danger nullifies the justification (Nadaie, 2024: 85).
Individuals who facilitate a pre-criminal situation through their actions, provoking the
aggressor, should not commit criminal acts under the guise of self-defense. For instance, women
who provoke potential offenders or individuals who insult another person, leading to an
aggressive response, and who then commit criminal acts such as homicide or assault in self-
defense, may question whether they can rely on legitimate defense. Since one condition for
legitimate defense is proportionality, it is generally permissible, but other conditions, such as
necessity, must also be met; otherwise, the defender’s act retains criminal liability (Shahida,
2014: 149).
2-4-1-2 Conditions Required for Legitimate Defense
1.
Defense must be the only means to avert the danger: Defense is legitimate only if
it is the sole means of averting the threat. According to paragraph 5, subparagraph 2 of Article
127, if recourse to public officials is possible to repel the attack, defense is not justified. Article
130 of the Afghan Penal Code states: “If recourse to security personnel is possible to avert the
danger, the right to legitimate defense does not exist.” Defense is recognized only when the
threat cannot be otherwise averted, i.e., the attack is unavoidable. Assistance from authorities
must be impossible; otherwise, legitimate defense is not applicable. The psychological or
physical characteristics of the aggressor do not affect the defender’s right; even if the aggressor
is a child or mentally ill, legitimate defense is permissible (Asia Foundation, 2019: 371).
2.
Proportionality of defense to the threat: Defense must not exceed the threat.
Paragraph 4, subparagraph 2 of Article 127 requires proportionality: the response must be equal
to or less than the attack. While exact proportionality may be difficult to achieve, the principle is
based on customary standards. For example, if an aggressor attacks without a weapon and the
defender uses only non-lethal means, the defense is proportional. Excessive defense can incur
criminal and civil liability. Article 132 notes that exceeding the limits of legitimate defense with
good faith reduces punishment but remains unlawful. Punishment for exceeding legitimate
defense is described in Article 130: “A person who, in good faith, exceeds the limits of
legitimate defense, if the act constitutes a felony, it is reduced to a misdemeanor; if a
misdemeanor, the penalty is mitigated accordingly” (Afghan Penal Code, 2017: Article 130).
Victims cannot react more harshly than the danger imposed by potential offenders. For
example, a woman abused by her husband cannot kill him in self-defense (Nadaie, 2024: 88).
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3.
Defense must be concurrent with the attack: The right to defend ends with the
cessation of the attack. The defender must act while under threat.
2-2 -
The Role of the Victim in Crimes Against Property
Property and ownership are fundamental pillars of society and are thus protected by law
to ensure that any infringement against them is met with an appropriate response. Since property
can serve as a suitable target for potential offenders, who often act rationally and strategically,
they are motivated to commit such crimes (Nadaie, 2024: 89).
The legislator, in addressing crimes against property, has implicitly or explicitly
acknowledged aspects related to victimology. At times, the law considers the role of the victim
as influential in crimes against property, a perspective that has persisted from early penal codes
to the present. In some instances, the conduct of the property owner or possessor—through
negligence, facilitation, collusion, or failure to observe legal safeguards—can not only reduce the
punishment of the offender due to the absence of support for the victim, but also expose the
victim to criminal liability. Examples include failing to report the transfer of property, or not
notifying authorities about theft or loss of a motor vehicle or its license plate (Shahida, 2017:
149).
1-2-2 Failure to Report the Transfer of Property by the Victim
Unlike other property crimes, where property is typically taken without the owner’s
consent or knowledge, in fraud-related offenses the owner or possessor may voluntarily transfer
their property to the offender, often motivated by the hope of significant benefits. These crimes,
which require high intelligence, social standing, and persuasive ability, are often classified as
“white-collar crimes” (Mir Muhammad Sadeqi, 2011: 25).
A person who, through the use of false names, titles, positions, misinformation about an
event, or other deceitful means, induces another to transfer possession of money, property, or
provide services or benefits to themselves or a third party, is punishable by medium-term
imprisonment (Afghan Penal Code, 2017: Article 725, Paragraph 1).
In addition to fraud, the legislator has criminalized certain specific forms of fraudulent
behavior, such as unauthorized transfer of another’s property. In such crimes, the victim may,
under specific conditions outlined by law, play a significant role in the commission of the
offense. Early Afghan penal codes already reflected a subtle acknowledgment of victimology,
considering the victim’s role in facilitating the crime (Nadaie, 2024: 83).
Article 726 of the Afghan Penal Code states: “A person who, by deceit and with
knowledge that they do not own or have the right to possess movable or immovable property, or
acts despite prior possession or contractual rights, causing harm to another, shall be sentenced to
medium-term imprisonment” (Afghan Penal Code, 2017: Article 726). The same article also
addresses exploitation of the victim’s incapacity: “A person who takes advantage of another’s
need, incompetence, or weakness, including minors over 18, by coercing signature on ownership
documents, debt acknowledgments, commercial papers, or other positive documents, causing
harm, shall be sentenced to medium-term imprisonment” (Afghan Penal Code, 2017: Article
726).
Through these provisions, the legislator acknowledges the victim’s role and considers
their being deceived as a form of facilitation in committing the crime, which may arise from
collusion or prior relationships between the victim and the offender.
2-2-2 Failure to Report Theft of a Vehicle or License Plate by the Victim
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If the victim fails to take necessary precautions, such as using alarms or securing
potential targets to increase the psychological, physical, and legal costs of crime for offenders,
and does not report the theft or loss of their vehicle or its license plate, they fail in their legal
duty, facilitating the occurrence of the crime (Nadaie, 2024: 91).
According to Article 706 of the Afghan Penal Code: “A person who steals a vehicle
license plate shall be sentenced to short-term imprisonment” (Afghan Penal Code, 2017: Article
706).
This highlights that the victim’s proactive measures, or lack thereof, can directly
influence both the likelihood of the crime and the degree of legal responsibility assigned.
Conclusion
The present study, focusing on the "Role of the Victim in the Commission of Punishable
Offenses," demonstrates that a scientific analysis of crime cannot solely concentrate on the
offender as the active element and principal actor; the position and role of the victim must also
be considered. The findings indicate that in many offenses, the behavior, individual and social
characteristics, and even specific circumstances of the victim can directly or indirectly influence
the commission of the crime. For instance, in crimes against persons, such as adultery-related
killings, the conduct of the spouse and the accomplice plays a decisive role in the occurrence of
the offense, and the legislator has accordingly exempted the husband from criminal liability.
Similarly, in offenses related to abortion, the consent or direct action of the mother may remove
her from the status of a mere victim and transform her into an active participant in the offense. In
crimes against property, victims may, through negligence, collusion, or facilitation, reveal their
role in the perpetration of the offense. This indicates that a victim is not merely a defenseless
party but may, in many instances, contribute to their victimization. This conclusion not only
elucidates a scientific reality but also underscores the importance of victimology in shaping
Afghanistan's criminal policy.
From a legal and jurisprudential perspective, it is also evident that the Afghan legislator,
in certain cases, explicitly acknowledges the victim’s role in the commission of the offense. In
the provisions governing legitimate defense, an aggressor who has deliberately created a
dangerous situation and is subsequently killed or injured is considered a victim; however, due to
their active role in creating the situation, they are not entitled to full legal protection. This
demonstrates that the legislator, in pursuit of criminal justice, does not grant complete protection
to victims whose behavior has directly or indirectly contributed to the commission of the crime.
In financial crimes such as fraud or deception, the victim’s collusion or negligence may both
facilitate the offense and mitigate the severity of the legislator’s punitive response against the
offender. Accordingly, the findings reveal that Afghanistan’s criminal system, influenced by
Islamic jurisprudential principles and victimological doctrines, establishes a balance between
protecting genuine victims and holding accountable those victims who have themselves played a
role in the offense. Such an approach not only ensures fairer administration of justice but may
also enhance deterrence, as potential victims recognize that carelessness, provocation, or
facilitation of criminal conditions may not only compromise their protective status but also
impose civil or criminal liability upon them.
Ultimately, the results of this study clearly demonstrate that the role of the victim in the
commission of punishable offenses is an undeniable reality, which cannot be overlooked in
criminal policy or legislation. In many instances, the victim is not only the target of the crime but
may also act as an unwitting or even conscious participant in the criminal process.
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These findings highlight the need for a review of Afghanistan’s criminal policies and a
focused attention on scientific victimology. Absolute and unconditional protection of all victims
is not only inconsistent with the principles of criminal justice but may also create opportunities
for abuse and perpetuation of criminal behavior. Therefore, a distinction must be made between
genuine victims and those who have, in some manner, contributed to the commission of the
offense. Furthermore, the study indicates that addressing social, cultural, and legal education to
raise public awareness and reduce victimization is of critical importance. The ultimate
conclusion of this research is that studying the role of the victim in punishable offenses can assist
policymakers in maintaining a balance between the rights of offenders and victims while
developing effective strategies for crime prevention and the promotion of social justice.
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