Rape laws in Islam

Karamah has an excellent article on the zina, illegal intercourse, laws in Pakistan and how the the Islamic laws have been wrongly misinterpreted. The article brings out the difference between sexual contact with consent, zina, and rape which the law makers in Pakistan have failed to understand. I quote few paras to prove that point as to why 4 witnesses are required to prove zina.

It is pertinent to point out here that the evidentiary requirement for zina was initially intended to protect women from frivolous charges. This intention derives directly from Asbab al-Nuzul (reasons of revelation) relating to the Qur’anic verse that establishes the hadd of zina. We therefore believe that the requirement of four witnesses (with all its restrictions and specifications) is a merciful measure from God in order not only to avoid incriminating innocent people, but also to preserve the privacy of Muslims, which is one of the most valued principles in Islam (the concept of sitr). It is not accidental that the privacy principle is stated in the same chapter, a few verses later: “O ye who believe! Enter not houses other than your own, until ye have asked permission and saluted those in them: that is best for you, in order that ye may heed (what is seemly).� (24: 27)

We also believe that the requirement of male witnesses constitutes another protective measure that makes it more difficult to prove zina. After all, in Muslim societies women have more facility and liberty to enter houses and access each other’s private apartments than men usually have. From the rich jurisprudence related to the matter, one can easily conclude that Muslim jurists were very cautious not to convict an innocent person. They went so far as to state that it is better to let a guilty person get away with his/her crime than to punish an innocent person. For, even when a person escapes the worldly punishment, the right of God remains. He will ultimately decide whether to punish or forgive the sinful.

It then talks about why proving zina has been made tough under the laws.

Muslim scholars also derived some ethical principles from the Qur’an, hadith and sunnah related to zina. First of all, it is preferable for a person who witnesses an act of zina not to report it, and instead to cover the shortcoming (‘awrah) of others while at the same time advising them to change their behavior. This principle is in harmony with the hadith that states: “Whoever covers the shortcoming (‘awrah) of a Muslim, God will cover his shortcomings here and in the thereafter.� Scholars also concluded from the Prophet’s example that it is preferable for the imam or the judge to suggest to the person who confesses that he/she retract his/her confession, and to the witnesses not to testify.

What we learn from this attitude is that the zina punishment should not be understood as a revengeful measure. To the contrary, it has to be understood as a measure designed to protect the morality of Muslim society whenever this morality is threatened. It is also very important to keep in mind, as we said earlier, that such a crime is not punishable unless it crosses the boundaries that separate the private sphere from the public sphere. The four witnesses’ requirement is clear evidence that such an act cannot possibly be proven unless the offending parties flagrantly disrespect the Islamic society they live in by transgressing those boundaries.

It then goes on coerced sexual relationship, rape

The Case of an Unmarried Pregnant Woman Who Claims Rape:
Muslim scholars widely disagreed about the extent to which the claim of rape by an unmarried pregnant woman may be accepted without evidence. Here again the Pakistani legislation departs completely from the Hanafi view on the matter. Indeed, as we mentioned earlier, the jurist Abu Hanifah states that a woman who claims rape is not required to prove it, nor is she required to recognize or name her assailant. Imam Abu Hanifah argued that if there was no way to verify the woman’s claim or to prove zina,then it would be better to release her according to the hadith “dismiss the hudud if there is an element of doubt (shubuhat)�. His argument shows that Imam Abu Hanifah clearly appreciated the fact that a woman being raped could not be expected to memorize the identity of her aggressor or name him thereafter.

The Case of a Woman Who Reports That An Identified Individual Raped Her:
Muslim jurists unanimously agree that a woman who is raped is neither legally nor morally (religiously) at fault. They however disagreed on the legal implications of the case of a woman who names a specific individual and accuses him of raping her without being able to fully establish her claim. Several opinions were expressed on this matter

It finally concludes by..

If we adopt the Hanafi position, which is also the majority position on the matter, then:
- Extramarital pregnancy should not be considered as proof of zina since it could result from a the woman’s wrong belief that she is married to the other party, or rape, or artificial insemination, and so on;
- If a woman claims that she was raped, either to justify her extramarital pregnancy or just to report the assault, she should not be required to prove her accusation. Her word is sufficient evidence;

In all cases, we should keep in mind the fundamental Qur’anic principle of ‘adalah (justice, balance, and equity). The law should protect society, its morals and ideals, but without denying to individuals their rights, especially their basic right to life. As all scholars agreed, it is better to let a guilty person get away with his/her sin and face God’s justice later than to enforce the hadd on a single innocent person.

Anyway you should read the full report to get the essence of argument. And as I have always pointed out that Pakistan is not even remotely an Islamic republic. All her claims to close proximity to religion is farce. They in fact accuse Indian Muslims to be more pious because we have this fear of losing life in riots! Thats inane and arrogant of them. My relatives, in Gulf, tell me that Pakistanis are the most anti-social of all; they don’t mingle with people of other communities because of arrogance. Even I have few relatives in Pakistan who don’t even feel like keeping contact with us just because we are not economically at par with them. Pakistan society represents a great divide between the high class and and the so called pious orthodox and ‘backwards’.

I am not generalising this statement for all Pakistanis. I know many who are down to earth and amiable, its just that the people at the top who are the real cause of real trouble.