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May 11, 2012

Punishing the Female Rape Victim in Islam

by Ijaz Ahmad

Bismillahir Rahmanir Raheem
بِسۡمِ ٱللهِ ٱلرَّحۡمَـٰنِ ٱلرَّحِيمِ ,

It is unfortunate that for people who profess objectivity and sincerity in their study, research and pursuit of knowledge that there continues to be a great perversion of the understanding of Islamic Shari’ah laws and its applications. Proponents of the modern secular system, or of varying theological political systems, seemingly cannot produce a consistent stance on judging the use or misuse of the Islamic Shari’ah, while wholly regarding it to be unfair, unjust and backwards. Demonstrably, it can be noted that their own justice systems produce often, curious if not peculiar judgements. In one case, a mother can be sentenced to jail for a period of 5 years, for stealing clothing from a store for her children at a value of  $102 dollars. While at the same time a Wall Street tycoon who has defrauded enough persons to make himself a billionaire, was sentence to a period of only, 11 years. What then, can we say is logical about this? Based on this one example of a judgement that is neither proportional to the crimes when compared and contrasted nor morally justifiable, can I then generalize the American justice system as being inhumane, profiteering and socially inept?

To further this discussion with more evidences relevant to the topic at hand, let’s examine sexual assault cases, in particular rape. This child rapist was sentenced to only 5 to 7 years in prison, the same amount of time as the woman who stole $102 dollars worth of goods. This rapist was sentenced to only 9 years in prison, while defrauding persons of hundreds of millions of dollars and sending families into distress, bankruptcy and insolvency will earn you the same amount of jail time. Continuing with this trend, we can deduce that according to the modern secular system, stealing and rape are upon the same field of justice. Considering these tragic acts, let’s examine the Islamic position on rape in the modern world. To rape in Islamic law is to have committed “ightisaab”, which means to forcefully transgress and take a woman’s honour from her (rape). The crime is punishable by death but doesn’t have to be punished by death, the punishment however has to be severe as to deter anyone else from attempting this crime. Therefore, there can be no equivalence between stealing and rape, a woman’s honour is not the same as stealing an apple, or clothing as it is seen in the secular justice system.

Islamic Shari’ah rule, is intended to govern a state by Islamic law, where the ulema (religious leaders) who are fuqaha (jurists), establish courts where a qadhi (judge) can make binding rulings (fatawa) on behalf of the state against a criminal and establish justice in the society. This understanding is based upon the Qur’anic statements:

“And so judge (you O Muhammad صلى الله عليه وسلم) among them by what Allaah has revealed” – [al-Maa’idah 5:49].

“And whosoever does not judge by what Allaah has revealed, such are the Kaafiroon (i.e. disbelievers — of a lesser degree as they do not act on Allaah’s Laws)” – [al-Maa’idah 5:44].

“And whosoever does not judge by that which Allaah has revealed, such are the Zaalimoon (polytheists and wrongdoers — of a lesser degree)” – [al-Maa’idah 5:45].

“And whosoever does not judge by what Allaah has revealed (then) such (people) are the Fâsiqûn [the rebellious i.e. disobedient (of a lesser degree)] to Allaah” – [al-Maa’idah 5:47].

“But no, by your Lord, they can have no Faith, until they make you (O Muhammad صلى الله عليه وسلم) judge in all disputes between them, and find in themselves no resistance against your decisions, and accept (them) with full submission” – [al-Nisa’ 4:65].

“Do they then seek the judgement of (the days of) Ignorance? And who is better in judgement than Allaah for a people who have firm Faith” – [al-Maa’idah 5:50].

To make this succinct and easy to grasp, the discussion will be broken up into several questions:

  • What do the Islamic scholars (Ulema) say on the punishment of rape?
  • Are four witnesses needed to prove rape?
  • Are women who do not wear hijab responsible for their rape?
  • Is the woman to be punished for rape?
  • Forced marriage to rapist?
  • Further reading.

What do the Islamic scholars (Ulema) say on the punishment of rape?

Yûsuf ibn `Abd Allâh ibn Muhammad Ibn `Abd al-Barr  Abû `Umar al-Namarî al-Andalusî al-Qurtubî al-Mâlikî (may Allaah be pleased with him), a prominent Islamic jurist, of whom Imam al Qurtubi cites/ references about 500 times in his tafsir has stated in Al-Istidhkâr li Madhhab `Ulamâ’ al-Amsâr fîmâ Tadammanahu al-Muwatta’ min Ma`ânî al-Ra’î wal-Athâr (“The Memorization of the Doctrine of the Scholars of the World Concerning the Juridical Opinions and the Narrations Found in Mâlik’s Muwatta'”),  7/146:

The scholars are unanimously agreed that the rapist is to be subjected to the hadd punishment if there is clear evidence against him that he deserves the hadd punishment, or if he admits to that. Otherwise, he is to be punished (i.e., if there is no proof that the hadd punishment for zina may be carried out against him because he does not confess, and there are not four witnesses, then the judge may punish him and stipulate a punishment that will deter him and others like him). There is no punishment for the woman if it is true that he forced her and overpowered her, which may be proven by her screaming and shouting for help.

Are four witnesses needed to prove rape?

Mufti Taqi Uthmani [db] in his discussion during an interview on Pakistan’s implementation of the Protection of Women Bill 2006, expounded upon his rulings and the rulings of other Islamic judges:

‎”I myself had been directly hearing cases registered under Hudood Ordinance, first as a Judge of Federal Shariah Court and then for seventeen years as a member of Shariah Appellate Bench of the Supreme Court. In this long tenure, not once did I come across a case in which a rape victim was awarded punishment simply because she was unable to present four witnesses.

In fact it was not possible to do so. First, according to the Hudood Ordinance, the condition of four witnesses only applied to enforcing the hadd for rape. Clause 10(3), which awarded the ta’zeer punishment, did not have this requirement; the crime could be proven through one witness, medical reports, and chemical analysis report. Consequently most rape criminals were awarded punishment as per this clause.

Further, a woman claiming rape could not be punished under Qazf (false accusation of zina) since Exemption 2 in Qazf Ordinance Clause 3 clearly stated that if someone approaches the legal authorities with a rape complaint, she could not be punished in case she was unable to present four witnesses.”

To compound this statement, Shaykh Faraz Rabbani (may Allaah be pleased with him) has stated:

“This is a common myth about Islamic criminal law. Rather, the four witness requirement applies only to the prescribed hadd punishment (which in the case of a married person could be death and for the non-married, 100 lashes). [Marghinani, Hidaya] This punishment is only applied in very rare cases, as is clear, and is meant to be a social deterrent, above all.

As the classical and contemporary jurists (such as Mufti Taqi Usmani) have made clear, a rapist can be convicted on lesser evidence (including scientific evidence, such as DNA tests and medical reports) for discretionary punishments. These discretionary punishments are left up to the legal system to determine.

However, it is a myth to say that Islam would in any way condone rape, or allow a rapist to go free for this terrible crime against an innocent human being and against society.”

This therefore rests the case, of the issue with 4 witnesses being needed to prove rape, indeed rape can be proven using modern scientific methods and other evidences, as seen above, as being agreed upon by Islamic fuqaha (jurists).

Are women who do not wear hijab responsible for their rape?

Mufti Muhammad Kadwa and Mufti Ebrahim Desai (may Allaah be pleased with them both) have stated:

These are two separate issues; rape and the lack of Hijaab. The rapist will be punished for his heinous crime whilst the woman will be sinful not for rape, but for failure to observe the rules of Hijaab. Failure to wear Hijaab in no way justifies the heinous crime of rape.

Is the woman to be punished for rape?

Imam Maalik (may Allaah have mercy on him) has said in Al-Muwatta’, 2/734:

In our view the man who rapes a woman, whether she is a virgin or not, if she is a free woman he must pay a “dowry” like that of her peers, …. The punishment is to be carried out on the rapist and there is no punishment for the woman who has been raped, whatever the case.

Prophet Muhammad (may Allaah’s peace and blessings be upon him) has also decreed punishments for persons who have committed rape, while freeing the woman of any punishment:

“Narrated Wa’il ibn Hujr (may Allaah be pleased with him):
When a woman went out in the time of the Prophet (peace be upon him) for prayer, a man attacked her and overpowered (raped) her. She shouted and he went off, and when a man came by, she said: That (man) did such and such to me.

And when a company of the Emigrants came by, she said: That man did such and such to me. They went and seized the man whom they thought had had intercourse with her and brought him to her. She said: Yes, this is he. Then they brought him to the Apostle of Allah (peace be upon him).

When he (the Prophet) was about to pass sentence, the man who (actually) had assaulted her stood up and said: Apostle of Allah, I am the man who did it to her.

He (the Prophet) said to her: Go away, for Allah has forgiven you. But he told the man some good words (AbuDawud said: meaning the man who was seized), and of the man who had had intercourse with her, he said: Stone him to death.”  – (Sunan Abu Dawud, Hadith #4366, Kitab al Hudud [38]).

Forced Marriage to Rapist?

While Islam punishes the rapist, we do hear of some really peculiar instances where the woman is married to the man. This has no basis in Islamic law, nor does it comply with Islamic reasoning, according to this fatwa by Mufti Ebrahim Desai [db]:

“Knowing the importance and sacredness of a marriage commitment, the boy and girl having consulted with their seniors and making Istikhaara, should make their own independent choice.

They should not be compelled to marry against their wishes as the consequences (non-compatibility, divorce, disputes, custody of children, etc.) are too ghastly to bear. Parents should not compel their children to marry against their wishes due to economic status reasons.”

As well as this fatwa by the same Mufti (Islamic Jurist):

“As an adult, you have an independent right to choose your marriage partner. You should not be forced into marrying someone against your choice. Those forcing you are guilty of depriving you of your Shar’ee right and committing a major sin,

You should simply say no if you are not confident of marrying against your choice. The consequences of forced marriages are too ghastly. There are great possibilities of a marital breakdown. That will lead to disunity among many families. The matter will be clouded even more if there is a child born through the marriage. Considering the many negative consequences of a forced marriage, you should never give in to being forced to marry against your wish. It will be you and no one else who will have to bear the burdens in future. You may forward this email to those forcing you to marry against your wishes.”

However, to contrast the Islamic position, let’s look at this excerpt from the Jewish and Christian religious text, Old Testament (Torah), Deuteronomy (Devarim), Chapter 22, Verses 28 – 29:

“If a man happens to meet a virgin who is not pledged to be married and rapes her and they are discovered, he shall pay her father fifty shekels of silver. He must marry the young woman, for he has violated her. He can never divorce her as long as he lives.”

Further Reading:
http://www.loonwatch.com/2009/12/testimony-of-rape-victim/
http://www.bismikaallahuma.org/archives/2006/does-islam-require-four-witnesses-for-rape/
http://thedebateinitiative.com/2012/03/12/is-the-shariah-inhumane-you-decide/ 

wa Allaahu Alam.
[and God knows best.]

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