I don’t agree with Sharia rape law but I’d like to at least understand it. For those unfamiliar with it, Sharia (Islamic) law requires four male witnesses to a rape for it to prosecuted as a crime - otherwise the woman can be prosecuted by a charge of adultery. (This is the legal practice currently being overturned in Pakistan against the wishes of the religious court system.) This standard obviously makes it virtually impossible for a man to be convicted of rape.
First off, I’d like to know if this standard has real precedent in the Koran or if it’s something that later misogynists invented and twisted some scripture to justify.
Second, I’d like to hear how they justify it. I assume that Muslim judges must recognize the possibility that men commit sexual crimes against women, so why have they decided to make such an impossible standard for conviction?
Third, I realize most people are going to disagree with this practice. I do also. But I’d rather discuss the idea rather than just have this be a thread of denunciations.
In pre-forensic science days, without third party witnesses, all you have for proof in a rape is the accusation. Rape is a serious crime, so the burden of proof so be pretty strong for a conviction.
Yeah, I don’t find it wholly convincing either. And its unforgivable now that there’s other ways to gather evidence.
The penalties for rape in Sharia law can be rather severe … death by stoning and flogging (I don’t know how much flogging) I believe. So you want a high standard of evidence. Of course, sexist pigs of the Islamic variety can turn that around … in Pakistan at one time (might even still be extant, I don’t know) if a rape accusation failed, the woman was automatically accused of zina, unlawful intercourse, and most likely spend years in jail as a result, since zina is (or was) an unbailable offense. The punishment for zina? Death of course.
Anyway, my main point is, rape accusations are serious biz when there’s no evidence other than he said/she said. Of course, Sharia law no longer makes any sense in that regard.
If the penalty for men for rape is death, and the penalty for women for illicit consensual sex is death, then that’s the unbalance. Because if it’s illicit for her, then it’s equally illicit for him, and if she dies for it, he should die for it too.
Under Sharia law, both rape and adultery by a married person (male or female) can be punished by death.
Here’s the deal. Sharia recognizes two different main types of crimes, Hadd crimes and Tazir crimes. Hadd crimes are crimes that are specifically forbidden and their punishment laid out in the Quran or the Hadith, and are considered universal crimes. Tazir crimes are crimes that aren’t given specific punishments in the Quran, and in those cases, the punishment for the crime is left up to the judge, who’s supposed to take into account local and societal factors. Here are the hadd crimes:
Both apostasy and alcohol use are disputed…some people consider that they’re Hadd crimes and some people consider them Tazir crimes.
Hadd crimes are considered especially serious in Islam, especially because they have fixed punishments. So, there are safeguards for people accused of those crimes. Specifically, a person accused of a Hadd crime can only be convicted if he or she confesses or if two witnesses testify. (There are other restrictions…the person has to be free, not a slave, an adult, in his right mind, commit the act willingly, know that it’s a crime, etc)
Sexual crimes, like adultery and rape are taken so seriously, there needs to be a confession or four witnesses. Rape is punishable by death…adultery by a married person is punishable by death. Adultery by an unmarried person is punishable by corporal punishment.
OK, while that’s harsh, it seems fair. However, if a woman accuses a man of rape, and her accusation is not sustained by the right number of witnesses, then how does she get to have the right number of witnesses against her for adultery, and not the man? After all, she herself has not confessed to adultery: she has only said that she was raped, and presumably being raped is not a crime. So there must be 4 witnesses against her: why aren’t they equally witnesses against the man involved?
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However, if a woman accuses a man of rape, and her accusation is not sustained by the right number of witnesses, then how does she get to have the right number of witnesses against her for adultery, and not the man? After all, she herself has not confessed to adultery: she has only said that she was raped, and presumably being raped is not a crime.
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Being raped is not a crime. However, if the woman brings a charge of rape against a man, she’s saying, “This man had sexual activity with me against my will.”…she’s admitting to sexual activity. Now, if she actually was raped, then no problem…she can’t be held legally responsible for that. But if the rape charge can’t be proved, it’s assumed that she consented to sleep with him, and therefore, she’s confessed to committing either fornication or adultery by sleeping with a man who’s not her husband.
But the man being acquitted of the charge proves nothing, except that there was not enough evidence against him. And the woman has not confessed to adultery. The judges who accept this reasoning seem to be accepting a dichotomy, when there are really multiple possibilities. To my mind there are at least 4 possibilities:
(1) A raped B and there are enough witnesses to sustain a conviction.
(2) A raped B and there are not enough witnesses to sustain a conviction.
(3) A committed adultery with B and there are enough witnesses to sustain a conviction.
(4) A committed adultery with B and there are not enough witnesses to sustain a conviction.
If (1) is excluded, that still leaves three other possibilities. Under (2) and (4), there’s no conviction, because of inadequate evidence. Under (3), both A and B committed adultery, so both should be convicted.
But a person must be presumed innocent of a crime unless he confesses or is found guilty. So if the man is acquitted of the charge, we must legally assume that her charge was false, and that he didn’t rape her.
No – at least in the Anglo-Americon common law tradition, you assume that the charge was unproven.
For example, in the OJ Simpson cases, he was found not guilty of the criminal charges against him, but that did not protect him from a civil suit arising out of the same alleged events. So the “not guilty” verdict meant that he had no criminal penalties, and double jeopardy rules mean that he can’t be charged again for the same crimes, but it does not prove legally that he did not commit the alleged crimes.
Zina, or **consentual **sex with someone not your spouse, is also required to have four adult, sane, male Muslims in good moral standing who physically witnessed penetration to stick. In theory. In reality, pregnancy resulting from rape has been used as sufficient evidence of *zina *when zina-bil-jabr (rape) could not be proved.
It’s sick and wrong and twisted. The Islamic “spin” is that the four witnesses are to protect people from being prosecuted for what they do privately in their own homes - that it’s really the crime of public fornication that the Qur’an is condemning, as well as the “Crime” of gossip and slander:
Got that? A fucking **blanket **is enough to protect a person from a charge of rape, even if it happens at high noon in the public square in front of 10,000 witnesses.
Of course, it’s supposed to be equally applied to men and women, but it’s not. Why? Because woman are more often the focus of gossip.
For more information, the rest of the article can be read here. It’s written by a female lawyer from Pakistan.
But it should be based on the same logic. Both require a high standard of evidence in prosecuting a criminal case, even if the rules about the high standard are different. So if you don’t reach that standard, it does not prove that accused person is innocent: it just means that the accused person should be treated as innocent.
To take another sort of case: suppose that A, B and C were alone together, and the prosecution can prove that either A or B murdered C. So they decide to prosecute A, and because they don’t have enough evidence against A, the court finds A not guilty. Can they then turn around and say that B must be guilty, because one of the two must be guilty, and A is innocent? I don’t think so.
Going back to the Sharia issue: clearly, the woman has said that she had sex, but she said that sex was forced on her, so it was not adultery. In order to convict her of adultery, Sharia law should require the right number of witnesses to testify that she had consensual illicit sex. And if they are testifying to that, then they are also testifying that the man had consensual illicit sex – unless they are saying that she raped him – and so he should be equally punished for adultery.
Right. Basically, what we have is cases where she is convicted of adultery (zina), but he isn’t. It doesn’t make sense. No one’s even really trying to make it make sense, that I can tell. It’s just fucked up.
Reminds me of the joke about the priest, minister and rabbi who were gambling:
So a rabbi, a priest, and a minister are attending an ecumenical conference in another town, and they stop at a bar at the end of the day. The priest pulls out a deck of cards and pretty soon they’ve got a little poker game going – only to be busted by an overzealous policeman enforcing the town’s strict anti-gambling laws. So they’re hauled before a judge the next morning, and everybody’s kind of embarrassed about it, including the judge.
“Look,” he says, “just tell me you weren’t gambling, and I’ll let you go.”
“Well,” says the priest, “gambling qua gambling seems to me to imply some sort of intent to win money or with the idea that it would exchange hands at the end of the evening, whereas considering a hypothetical situation such as the one we were engaged in where the money is taking on more of the role of a token merely for tracking the interplay of the game and the relative …” and so on.
“Fine,” says the judge, “You can go.”
The minister steps up. “It seems to me that given divine foreknowledge of all events, even if we mortals are not so gifted raises the question of whether gambling as a concept can really …” and so on also, and is similarly dismissed by the judge, just leaving the rabbi in the courtroom.
“Well?” asks the judge. “Rabbi, were you gambling?”
The rabbi looks around and shrugs his shoulders. “Gambling? With who?”
As WhyNot pointed out, though, adultery or other extramarital sex (zina) is also supposed to require four witnesses in Islamic jurisprudence (except in the minority Maliki school, AFAICT). Adultery is not supposed to be the default assumption in the absence of sufficient evidence for rape, although several modern Islamic theocracies do seem to treat it that way.
I just cannot believe that anyone used such an interpretation of the law when it was first revealed. It’s obvious from the context of the revelation of the Qur’an verse 4:24 that mandates 4 witnesses, it was not intended to put blame on women, it was intended to release a woman from blame-- in this case the Prophet’s wife ‘Â’ishah. She often argued with the Prophet and sassed off to him. Once she said to him, “You’re pretty good at getting Allah to reveal verses that are to your liking.” Once when she was an old woman she heard some mullas had ruled that the prayer was invalidated if a dog, a donkey, or a woman walks in front. She told them to get lost because no way would she let them equate women with dogs and donkeys. She led an army into battle against the caliph ‘Ali accusing him of obstruction of justice. So if it had been possible to interpret the verse that way during the formative period of Islamic law, if anything so unfavorable to women would have been said, she would have denounced it.
The influence that ‘Â’ishah had during her long outspoken life on the early development of Islamic law was profound. The only way misogynistic laws could get in was after the last generation strong uppity Muslim women like her had died and succeeding ones were subjugated under the influence of Persian and Byzantine culture. Leila Ahmed points out that the generation of Arab women who grew up during Pagan times never accepted subjugation.
So I think the current interpretation that punishes women unfairly is totally the product of a decadent phase of Islam issued by mullas with their heads up their butts. I could cite lots of cases where misogynistic mullas made up laws to impose restrictions and a subordinate status on women. For some examples, see Women and Gender in Islam: Historical Roots of a Modern Debate by Leila Ahmed.