A license to rape

Published June 5, 2013

enter image description here A series of events in the past few weeks have again highlighted the injustices being committed against women in the name of Islam in Pakistan. Recently, the three accused of raping an 18-year old woman at Jinnah’s Mausoleum were set free by a court in Karachi. The court refused to entertain the DNA evidence, which reportedly proved the guilt of the accused, and gave the accused the benefit of the doubt because the victim could not produce four eyewitnesses to the rape. Weeks later, the Council of Islamic Ideology (CII) decreed that the DNA evidence in the absence of four righteous men as witnesses to rape is not sufficient for conviction under Islamic law.

While women are being discriminated in Pakistan and elsewhere in the name of Islam, there is nothing Islamic or divine about the man-made laws in Pakistan. Take the case of the Hudood laws in Pakistan, which were enacted by the then military dictator General Zia to Islamicize Pakistan’s legal system. A close scrutiny of the laws reveals that the Hudood laws, which also cover offenses related to rape, are in fact a legacy of the British Colonial law. As these laws stand today, they discriminate against women rather than protecting their rights. Furthermore, the refusal to embrace modern-day forensic evidence is a divergence from the Islamic tradition where similar techniques have been used by the Muslim jurists to resolve disputes in the past.

In a well-researched paper published in 1997, Professor Asifa Quraishi explains that the rape laws in Pakistan are anything but Islamic. Drawing exclusively from Islamic sources and Quranic injunctions, Professor Quraishi makes the following points. First, the Quranic injunctions are restricted to zina (consensual sexual act by adults outside of marriage). There is no mention of rape in Quran. Secondly the intent of the Quranic injunctions was to prevent lewd behavior in public and to limit instances of false accusations. The requirement to produce four witnesses who had explicitly witnessed the sexual act is possible only if the act is being committed in public and in nude. This suggests that “unlawful sexual intercourse will be prosecuted by the state only when it is publically indecent.”

The noble Quran forbade Zina (fornication) in Surat Al-'Isrā' (17:32) and prescribed the punishment in Surat An-Nūr (24:2). The noble Quran then reads:

Those who defame chaste women and do not bring four witnesses (shuhada) should be punished with eighty lashes, and their testimony should not be accepted afterwards, for they are profligates. (24:4)

The Quranic speech is clear and without confusion. The requirement to produce four witnesses, and not just male witnesses, is required by the Quran to prevent false accusations of fornication against women. The Quran does not ask for four male witnesses, but General Zia’s Hudood ordinance did when it required “at least four Muslim adult witnesses, about whom the Court is satisfied, having regard to the requirements of tazkiyah al-shuhood …”

The Quranic intent had been to protect the rights of women against false accusations. General Zia’s Hudood Ordinance accomplished exactly the opposite. Firstly, it unnecessarily confused rape, a violent crime, with fornication. Secondly, the Hudood ordinance has made it impossible for a rape victim to get justice in Pakistan. Under the Hudood Ordinance, the Courts require four “adult male” eyewitnesses to rape. When a female victim fails to produce four male eyewitnesses, she is then charged under Tazeer for fornication. If the woman becomes pregnant as a result of rape, the rapist/s gets a walk, while the woman is charged with fornication using pregnancy as a proof.

Man-made law

How is it possible that the very Quranic injunctions that were supposed to safeguard women’s rights were reversed by General Zia to discriminate against them? Professor Qurashi offers the answer to this riddle by exposing the plagiarist jurists commissioned by the military dictator to draft the Hudood Ordinances. She reproduces the texts of the Hudood Ordinances enacted by General Zia, and the earlier British Common Law of rape. I have reproduced below verbatim the two texts to demonstrate that what was presented to Pakistanis as the divine law was in fact a cut-and-paste from the British Common Law. Even the explanation to what constitutes as rape is identical in the two texts.

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What the mullahs defend in Pakistan today is not the divine law, it is the British Common Law. The Quran does not explicitly refer to rape. But the laws to prosecute rape have been enacted in the name of Islam. In their eagerness to promote their cultural patriarchal biases, the jurists have imposed their ignorant and misogynist views over Islamic jurisprudence. Where the noble Quran suggested four witnesses, they turned into four male witnesses; whereas the Quran intended to prevent false accusations against women, the mullahs created laws that had no parallel with Islam.

Professor Qurashi points out that requiring four male witnesses, as is stated in the Hudood Ordinance, creates this situation where women could no longer be accused of slander. If a woman’s testimony is not admissible in the Court, as per the Hadood Ordinance, a woman can make false accusations against others without fearing punishment.

The Hudood Ordinance, as it stands today, prevents women in Pakistan from following the noble Quran that states in Surat An-Nisā:

O you who have believed, be persistently standing firm in justice, witnesses for Allah, even if it be against yourselves or parents and relatives. Whether one is rich or poor, Allah is more worthy of both. So follow not [personal] inclination, lest you not be just. And if you distort [your testimony] or refuse [to give it], then indeed Allah is ever acquainted with what you do. [4:135]

This infringement of Quranic law continues unabated in Pakistan.

Is Islam against circumstantial or forensic evidence?

The precedence for circumstantial evidence is set in Surat Yusuf (12:23 – 12:29) in the Quran where it narrates the story of Prophet Yusuf (Joseph) being accused by a woman of attempting to rape her.

The Quran narrates the story in the following verses (12:23 – 12:29):

And she, in whose house he was, sought to seduce him. She closed the doors and said, "Come, you." He said, "[I seek] the refuge of Allah. Indeed, he is my master, who has made good my residence. Indeed, wrongdoers will not succeed." And she certainly determined [to seduce] him, and he would have inclined to her had he not seen the proof of his Lord. And thus [it was] that we should avert from him evil and immorality. Indeed, he was of Our chosen servants. And they both raced to the door, and she tore his shirt from the back, and they found her husband at the door. She said, "What is the recompense of one who intended evil for your wife but that he be imprisoned or a painful punishment?" [Joseph] said, "It was she who sought to seduce me." And a witness from her family testified. "If his shirt is torn from the front, then she has told the truth, and he is of the liars. But if his shirt is torn from the back, then she has lied, and he is of the truthful." So when her husband saw his shirt torn from the back, he said, "Indeed, it is of the women's plan. Indeed, your plan is great. Joseph, ignore this. And, [my wife], ask forgiveness for your sin. Indeed, you were of the sinful."

Circumstantial and forensic evidence are not merely an invention of the modern times. The story about the Prophet in Egypt suggests that centuries old legal traditions relied on logic and commonsense. In fact, there is even evidence of the use of forensic evidence in the early days of Islam. Anwar Mahmud Dabur in al-Qara’in wa Dawruha fi al-fiqh al-Jina’i al-Islami (p. 215) narrates the story of a woman who falsely accused another man of rape. She spread the egg yolk on herself and her clothes and brought it as evidence to Caliph Umar ibn Khattab. The Caliph consulted another woman who confirmed the woman’s clothing bore semen stains. The Caliph consulted Ali (subsequently the fourth Caliph), who immersed the stained cloth in boiling water that turned the stains into white solid, which smelled and looked like egg yolk.

The Islamic tradition provides for the use of the scientific evidence in legal matters. Forensic evidence can be used under the tradition of Qarinah (circumstantial evidence) and al-ra’y al-khabir (expert opinion). The Prophet himself is reported to have consulted an expert on face recognition to settle a paternity dispute (Sunan al-Dar Qutni, p. 240). By turning our collective backs on science, logic, and ijtihad, we have brought ourselves to a state where discrimination against women and the disenfranchised is being committed in the name of Islam.

A study of 74 cases of rape or attempted rape registered at the Shadman female police station in Lahore during 1995 and 2008 reveal the ugly consequences of inadequate legal frameworks in Pakistan. Writing in the Journal of the College of Physicians and Surgeons in Pakistan in 2010, Dr. Iram Manzoor and others discovered that most rape victims were aged between 10 and 19 years old. Approximately 74 per cent victims were unmarried, 83 per cent had grade eight or lower education, and 82 per cent were unemployed. In the 13-year period, only five per cent accused were convicted of the crime.

The five per cent conviction rate for rape has been reported in other studies in Pakistan. As a comparison, the conviction rate for rape in neighbouring India is around 26 per cent. In a written statement to the Parliament, the Minister of State for Home Affairs revealed that 24,206 rape cases were registered in 2011 and 5,724 were convicted.

The superior courts in Pakistan must act without delay to address the shortcomings in the Hudood Ordinances. For decades women in Pakistan have been discriminated against in the name of Islam. Quran does not explicitly address rape. In fact, the Islamic jurisprudence deals with rape under Hiraba and Jirah; even allowing for compensation for the rape victims.

If it is indeed true that the rape laws are anything but Islamic, they should then have no place in Pakistan’s judicial system. This matter, however, cannot be left to the mullahs to decide. We already know what they believe in. It is the time for the rest of us to speak up.


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