And no details of the compromises are given and it hasn’t been passed by the upper house and the President hasn’t approved it and no details are given as to what enforcement mechanisms will be put in place to stop villiage elders carrying on as before. i’d hold off on the apologies and rejoicing for a while.
I don’t think it should necessarily be based on the same logic, because this logic is quite peculiar. I heard about it for the first time after the O.J. Simpson trial and it seemed very weird to me that one could be held at the same time innocent (not sentenced for the crime) and guilty (liable to pay damages for said crime).
I get the reasonning, but it still doesn’t seem right to me. It’s certainly not universal. Over here, you can’t be liable for damages if you aren’t found guilty. There’s simply no civil trial in such a case (if found guilty, the civil trial immediatly follow the criminal trial, on the same day, by the same court). If you’re not guilty you’re innocent, and should be treated as such, not merely shouldn’t be treated as guilty (and anyway, having to pay damages isn’t being treated as innocent, except if it’s for a different crime : for instance you actually killed someone while driving your car, and are found innocent of first degree murder but have to pay damages because it still was a reckless homicide or somesuch).
Not that I find the sharia law to be sound, but this “logic” you seemingly think is or should be universal really isn’t.
By the way, regarding the issue at hand. Let’s assume I witnessed a rape and am called to testify (I’m hypothetically a male muslim in good standing) . I do so, but the three other witnesses required are lacking. Does someone know if I could myself be then considered as a false accuser, a slanderer, or somesuch? IOW, would it be unwise to accept to testify in a rape case under sharia law, because I would risk to receive a harsh punishment?
I don’t know about that but under the gentle auspices of ‘The Religion of Peace’ the woman would be in for a bit of a stoning, being an adultress and all.
The logic is that there’s a different standard of evidence for wrongful killing as a tort and wrongful killing as a crime. I don’t know much about French law, but it does make sense for the same court to assess damages in tort immediately after a person has been convicted of a crime. It wouldn’t happen al that often, because criminal defendants typically don’t have much in the way of assets to pay the damages.
However, suppose the district attorney, after looking at the evidence in the OJ Simpson case, had said, “He might have committed the crimes, but we don’t have enough evidence to convict,” and then the family, using the same evidence, had sued OJ Simpson in tort? Obviously the terms and procedures are different in French law, but couldn’t a person be sued in tort for what might be a crime, but can’t be proven to be a crime?
I don’t have access to my friend who’s an Islamicist at the moment to check with her, but it’s my understanding that Pakistan has shari’a pretty much exactly backwards on this subject.
From a recent discussion with a Muslim of my vague acquaintance:
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sexual infidelity is punishable by death; it requires four witnesses to the infidelity to prove. A false accusation of same is punishable with 80 lashes of the whip.
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pregnancy may be sufficient to negate the need for witnesses, as it is proof of sex; some scholars, however, do not consider it sufficient.
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rape in proper shari’a falls under hiraba, not zina; the victim is blameless and does not need to produce four witnesses to the act. Her word plus investigation is sufficient. There are hadith of Muhammad condemning men to death for rape on the woman’s word.
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the word for the requirements of witnesses is ‘shuhada’, which encompasses both male and female people (it’s a masculine word, but it’s more like ‘mankind’ than ‘men’); it may well be patriarchal bias that has led to the interpretation that the witnesses must be male.
Addendum from the Catholic theologian I know who studied pregnancy in various religions as part of her master’s thesis:
Many shari’a jurisdictions have a concept of what’s called “sleeping pregnancy”, in which a fetus ‘goes to sleep’ for a month to theoretically forever, generally limited in law to five years, which is effectively a way of fudging things to women’s benefit (as ‘sleeping pregnancy’ is diagnosed by midwives). The three main uses of the sleeping pregnancy are to discourage men from divorcing their wives (after a miscarriage, generally, which may indicate fertility issues), a child born after a husband’s death may be able to inherit as his child; to defang adultery prosecutions.
Comment on this from the Muslim guy: The Imam Shafi’ie, who was important to the school of Islamic thought predominant in SE Asia, was said to have been in the womb for two years.
(Discussion paraphrased from a message board that discussed this subject, I’m not kidding, three days ago or so.)
I know. It has been explained to me here the first time I enquired.
Nope. It’s an either/or situation. The defendant is either guilty or innocent. There’s no “possibly guilty” or “unproven” option. If he has been acquited, he’s considered innocent for all ends and purposes, and another court would have no other choice than to reject the case out of hand. Also, a court can’t contradict the ruling of another court of the same “level” (except of course if the ruling has been voided for some reason or another) anyway. Actually, if I’m not mistaken, and in theory at least, the accused could sue the family for slander if they kept on stating publically he was guilty.
As I mentionned, the only exception would be a situation where despite being considered innocent of the crime he can be sued for another reason, like in my car accident/crime example: he didn’t deliberatly hit the victim but still killed her and could be sued for that.
Upon rereading, I suspect I misunderstood your question : you’re asking what would happen if the attorney choose not to proecute, hence if there were no trial at all (actually, in France, the prosecutor doesn’t have a say in the matter, but that’s another issue).
Honestly I’m not 100% certain, but still quite sure that in a criminal case, lacking a conviction, you couldn’t sue the alleged criminal. You’re still acusing him of having commited the crime, and only a criminal court can rule on such an accusation. Note that in France (I think it’s quite different in the USA) a criminal case is handled in a very different way than another trial : for instance there’s no jury in a civil case (actually, not even for a minor crime, like, say, theft or assault), the procedure is entirely different (the enquiry is led by a specialized judge acting on behalf of both the prosecution and the defence instead of a prosecutor), etc…
More or less, the “different standart of evidence” existing in the USA doesn’t exist in France, and is replaced by a completely different procedure to assess guilt for serious crimes. Still, a ruling by a criminal court or a decision by a “juge d’instruction” or an “accusation court” like not enough evidences for a trial or an “acquited” (not “not guilty”) verdict has to be accepted as an established fact by all other courts, and (once again, AFAIK) no regular court can rule on such a matter. If, for whatever reason, a “cour d’assises” didn’t convict the accused, then he is to be considered innocent, period.
A question about the zina thing. A woman is caught and convicted of adultery. What happens to the guy? Does he also get the same penalty, since he, too, is the adulterer?
I’m reminded of that story in the Bible where the adultering woman is brought before Jesus to be stoned. Where was the adultering guy?
The prosecution wouldn’t call you as a witness unless they had three more witnesses lined up to go with you, n’est-ce pas?
An old Zombie thread, but one which is so riddled with factual inaccuracies that I have to comment.
This is about Pakistan, and I have no knowledge of and make no comments on other countries.
Re; 4 witnesses, that was never a requirement, not in 1860 (when the Penal Code was passed) or in 1979 (when the controversial ordinances were passed) or when the reforms were passed in 2006. Secondly, it was and is legally impossible to convert a rape allegation into a case of adultery, indeed the Perjury Act Section 3(2) specifically exempts a complainants from be charged with any offence arising out of a complaint, this has proved to be troublesome via-a-via false allegations and malevolent false allegations.
According to one news item from 2006 cited above, before the Pakistani reforms of 2006,
Are you saying that’s untrue?
Quoth clairobscur
I believe the difference is based on U.S. law’s presumption of innocence. It is the duty of the state to prove guilt under the law. If the state is unable to do this, the accused is “not guilty”, which is not the same as declaring him or her innocent.
I have heard, but do not know, that under French law the opposite is true. Guilt is assumed, and the accused has to prove his or her innocence.
SS
Yup. False. Absolutely and completely false.
Firstly there are no “sharia” courts. There is a Federal Shariat Court, but it operates as a Federal Level Intermediate Appellate Court and has limited jurisdiction anyway.
Rape cases are heard by the Court of Session.
Just out of curiosity, what would happen if the rape was caught on camera [with sound] and it was very plainly rape [either one guy, or gang, doesn’t matter which]
Could that be used as proof of rape without the 4 witnesses?
Depends. What does the Koran say about cameras or video recording?
Seriously, not reading my posts are you?
I appreciate your effort to setting the record straight, but a bit less hostility would be welcome.
aruvqan’s question is more likely related to Sharia than to Pakistan, so reading your posts would do nothing to answer the question.
The requirements to prove rape under the various schools of Islamic laws (Fiqh) are left to the concerned authorities.
Adultery is what requires 4 witness to have actually witnesses penetration. Not rape.
Indeed, in the anglo-american tradition. This assumption doesn’t exist in the french criminal system, for instance, where you’re either guilty or innocent. If you weren’t found guilty, the assumption is that you didn’t commit the crime (not merely that it couldn’t be proven. I’m assumed to be innocent of any crime commited in France, so there’s no reason to make a different assumption because I was merely prosecuted. Innocent until proven guilty and all that.). As a result, you can’t be sued for damages like in the OJ Simpson case you mention (except of course if the damages aren’t a direct consequence of the crime you’ve been found not guilty of. For instance being found not guilty of having deliberatly ran over someone to kill him doesn’t mean you can’t be sued/prosecuted for reckless driving). Similarly, stating that someone acquited is in fact guilty can get you sued.
Being accustomed to this system, I’ve had personnally a hard time swallowing this anglo-american concept that not being found guilty isn’t the same thing as being considered innocent for all ends and purposes (Indeed, when I heard about the OJ Simpson case).
However, I’ve still a problem with the sharia system as presented (I mean a problem with the logic followed, the necessary proofs and the sentences are another issue).
The woman/prosecution was unable to prove that the man raped her. So, this man is innocent of rape, and the woman possibly considered to have brought a false accusation. How, however would it prove that she had sex with someone (except in the case where she is unmarried and pregnant, as it happenned in a widely-publicized case in Nigeria some years ago)?
Hmmm… Obviously, I’m in a cemetary (didn’t read the whole thread before posting and then noticed I already had posted in it long ago.
Zombie adulterous women!:eek:
(At least, I notice that I’m consistent in my posts since I posted the same statements with the same example 4 years ago)