Sharia rape law

[Little_Nemo]

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.

[Menocchio]

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.

[Evil_Captor]

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.

[jjimm]

[QUOTE=Evil Captor]
might even still be extant, I don’t know
[/QUOTE]
Still in existence. Still obscene.

[Giles]

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.

[Captain_Amazing]

[QUOTE=Giles]
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.
[/QUOTE]

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:

Murder
Apostasy (maybe)
Theft
Adultery/rape
Defamation
Robbery
Drinking Alcohol (maybe)

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.

[Giles]

[QUOTE=Captain Amazing]
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.
[/QUOTE]

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?

[Captain_Amazing]

[QUOTE=Giles]
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.

[QUOTE]

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.

[Giles]

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.

[Captain_Amazing]

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.

[Giles]

[QUOTE=Captain Amazing]
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.
[/QUOTE]

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.

[Captain_Amazing]

[QUOTE=Giles]
No – at least in the Anglo-Americon common law tradition, you assume that the charge was unproven.
[/QUOTE]

Yes, but Sharia isn’t based on the Anglo-American common law tradition.

[WhyNot]

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.

A few cases will disturbingly illustrate the concern. In 1982, fifteen-year-old Jehan Mina became pregnant as a result of a reported rape. Lacking the testimony of four eye-witnesses that the intercourse was in fact rape, Jehan was convicted of zina on the evidence of her illegitimate pregnancy (Mina v. State, 1983 P.L.D. Fed. Shariat Ct 183). Her child was born in prison (Mehdi 1990, 25). Later, a similar case caused public outcry and drew public attention to the new law. In 1985, Safia Bibi, a sixteen-year-old nearly blind domestic servant reported that she was repeatedly raped by her landlord/employer and his son, and became pregnant as a result. When she charged the men with rape, the case was dismissed for lack of evidence, as she was the only witness against them. Safia, however, being unmarried and pregnant, was charged with zina and convicted on this evidence (Bibi v. State, 1985 P.L.D. Fed. Shariat Ct. 120).5

Short of conviction, women have also been held for extended lengths of time on charges of zina when they allege rape (Asia Watch 1992, 41-60). For example, in July, 1992, Shamim, a twenty-one-year-old mother of two charged that she was kidnaped and raped by three men in Karachi. When a rape complaint was lodged against the perpetrators, the police instead arrested Shamim, and charged her with zina when her family could not post the fee set for her release. The police held her in custody for six days, during which she reports that she was repeatedly raped by two police officers and a third unnamed person (Amnesty International 1993, 11-12). There have been numerous reports of such custodial rapes in Pakistan.6

Police action and inaction in rape cases in Pakistan have in fact been widely reported as an instrumental element to the injustice. There is evidence that police have deliberately failed to file charges against men accused of rape, often using the threat of converting the rape charge into a zina prosecution against the female complainant to discourage women from reporting.7 And when the perpetrator is a police officer himself, the chances of pursuing a case against him are nearly nonexistent. Shahida Parveen faced this very situation when she reported that in July, 1994, two police officers broke into her house and locked her children in a room while they raped her at gunpoint. A medical examination confirmed that she was raped by more than one person, but the police refused to register her complaint (Amnesty International 1995, 14).

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:

Why so many evidentiary restrictions on a criminal offense prescribed by God? Islamic scholars posit that it is precisely to prevent carrying out punishment for this offense. By limiting conviction to only those cases where four individuals actually saw sexual penetration take place, the crime will realistically only be punishable if the two parties are committing the act in public, in the nude. The crime is therefore really one of public indecency rather than private sexual conduct.21 That is, even if four witnesses saw a couple having sex, but under a coverlet, for example, this testimony would not only fail to support a zina charge, but these witnesses would also be liable for slander.22 Thus, while the Qur’an condemns extramarital sex as an evil, it authorizes the Muslim legal system to prosecute someone for committing this crime only when it is performed so openly that four people see them without invading their privacy. As Cherif Bassiouni puts it, “[t]he requirement of proof and its exigencies lead to the conclusion that the policy of the harsh penalty is to deter public aspects of this form of sexual practice” (Bassiouni 1982, 6).23

This analysis is consistent with the tone of the Qur’anic verses which immediately follow the above verses regarding zina. After the verses establishing the crime and the attendant standard of proof, the Qur’an states:

Those who spread lies were a clique among you. Do not think it was bad for you: In fact it has been good for you. Each of them will pay for the sin he has committed, and he who had greater share (of guilt) will suffer grievous punishment.

Why did the faithful men and women not think well of their people when they heard this, and [say] “This is a clear lie?”

Why did they not bring four witnesses (in support of their charge)? And since they did not bring the four witnesses, they are themselves liars in the sight of God.

Were it not for the grace of God and His mercy upon you in this world and the next, you would have suffered a great affliction for the false accusation.

When you talked about it and said what you did not know, and took it lightly– though in the sight of God it was serious–

Why did you not say when you heard it: “It is not for us to speak of it? God preserve us, it is a great calumny!”

God counsels you not to do a thing like this, if you are believers (Qur’an 24:11-17).

The Qur’an’s call to respond to charges of sexual misconduct with “it is not for us to speak of it” echoes the hadith in which Muhammad was reluctant to take even a man’s confession of adultery.24 The Qur’an contemplates a society in which one does not engage in publicizing others’ sexual indiscretions. Qur’anic principles honor privacy and dignity over the violation of law, except when a violation becomes a matter of public obscenity.

Placing these Qur’anic verses into context will further emphasize the importance of this concept in Islamic law, and in particular, its close connection to the dignity of women. The verses setting forth the crime of zina and the accompanying verses denouncing public discussion of the matter were revealed just after the famous “Affair of the Necklace,” in which Muhammad’s wife, Aisha, was mistakenly left behind by a caravan in the desert when she went looking for a lost necklace (al-Tabari 1910, 18:86-101; al-‘Umari 1991, 2:82-84).25 She returned home with a young single man who had happened upon her and given her a ride home. Rumors of Aisha’s time alone with this man spread quickly throughout the small town of Medina, until the above verses finally ended the gossip. Thus, the very revelation of these verses was prompted by an incident involving attacks on a woman’s dignity – Aisha’s honor. Indeed, the verse setting forth severe punishment for slander is directed specifically against charges impugning a woman’s chastity: “Those who defame chaste women, and do not bring four witnesses, should be punished with eighty lashes, and their testimony should not be accepted afterwards . . . .” (Qur’an 24:4; emphasis added). Men do not seem to be of particular concern here.

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.

Why the focus on women? Looking at the issue from a cultural perspective, this focus is not surprising. In nearly every culture of the world, women’s sexual morality appears to be a particularly favorite subject for slander, gossip, and insult.26 The tendency of patriarchal societies, in fact, is to view a woman’s chastity as central to the honor of her family, especially of the men in her family. For example, under the British common law (the law in Pakistan before the Hudood Ordinance), rape was a crime punishable against men, to be lodged by the husband of the woman raped against the man who violated her (Hale 1778, 637-39).27 The woman’s place was apparently on the sidelines of a prosecution by her husband against her rapist.

For more information, the rest of the article can be read here. It’s written by a female lawyer from Pakistan.

[Giles]

[QUOTE=Captain Amazing]
Yes, but Sharia isn’t based on the Anglo-American common law tradition.
[/QUOTE]

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.

[WhyNot]

[QUOTE=Giles]

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.
[/QUOTE]

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?”

[blowhard]

[QUOTE=jjimm]
Still in existence. Still obscene.
[/QUOTE]
Someone has clearly not read thier Pakistani newspaper today…

Pakistan Rape law

[Kimstu]

@Little Nemo

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.

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.

[Johanna]

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.

[treis]

[QUOTE=Giles]
But it should be based on the same logic.
[/QUOTE]

Why?

[jjimm]

[QUOTE=blowhard]
Someone has clearly not read thier Pakistani newspaper today…

Pakistan Rape law
[/QUOTE]
Oops. In my defense, the Beeb hadn’t updated their search engine to reflect the new story. My apologies regardless.