HOW SHARIA LAW PUNISHES RAPED WOMEN
Hasan Mahmud
Hasan.mahmud@hotmail.com
On October 30, 2008, the United Nations condemned the stoning to death of Aisha Duhulowa, a 13-year-old girl who had been gang-raped and then sentenced to death by a Sharia court for fornication (Zina). She was screaming and begging for mercy, but when some family members attempted to intervene, shots were fired by the Islamic militia and a baby was killed.
Local Sharia courts in Bangladesh regularly punish raped minor girls and women by flogging and beating them with shoes.[1] Similar cases of punishing raped women are Mina v. the State, Bibi v. the State and Bahadur v. the State.[2] Sharia courts in Pakistan have punished thousands of raped women by long term imprisonment.[3]
Local Sharia courts in Bangladesh regularly punish raped minor girls and women by flogging and beating them with shoes.[1] Similar cases of punishing raped women are Mina v. the State, Bibi v. the State and Bahadur v. the State.[2] Sharia courts in Pakistan have punished thousands of raped women by long term imprisonment.[3]
You might think that such horrific barbarity cannot be the real Sharia law or that it is a misapplication of the law by ignorant clergy. Sadly, neither is true.
There is a traceable dynamic in Sharia Law that was bound to lead to this barbarity, a barbarity from which we will never be able to emerge unless we abandon these laws. It was a blunder on the part of the Muslim jurists who codified these laws that they included rape in the Hudood section of the Sharia Laws that deal with murder, bodily harm, apostasy, drinking, defamation, theft, adultery and highway robbery. Hudood laws are crimes against Allah and are therefore subject to different rules of evidence and to harsher punishments than crimes against people. But anyone who has tried to change these laws has ended up banging their heads against the wall. Mawdudi, the founding father of modern Political Islam, claims that even if all the world’s Muslims together wanted to make the slightest change in these laws, they would not be allowed to do so.[4]
He was wrong; change is necessary and possible.
Another key element of all Hudood laws is that only eye-witnesses are acceptable and no circumstantial evidence can be accepted.[5] Rape is included in the Dyat (monetary compensation for bodily harm) section of Sharia Law because it is considered as "Bodily Harm” or “Robbing Property" (chastity). This classification led jurists to create the following laws:
* A rapist is obliged to pay the victim the amount typically received as marriage payment to similar brides.[6]
* If the rapist cannot be punished for any reason he will pay the victim the amount equal to bride-money.[7]
The punishment of rape can only be financial since no other punishment is mentioned. The laws do not explain how a rapist can be unavailable for punishment yet be available to pay compensation. Nor do they discuss the possibility of a rapist’s inability to pay.
There is a traceable dynamic in Sharia Law that was bound to lead to this barbarity, a barbarity from which we will never be able to emerge unless we abandon these laws. It was a blunder on the part of the Muslim jurists who codified these laws that they included rape in the Hudood section of the Sharia Laws that deal with murder, bodily harm, apostasy, drinking, defamation, theft, adultery and highway robbery. Hudood laws are crimes against Allah and are therefore subject to different rules of evidence and to harsher punishments than crimes against people. But anyone who has tried to change these laws has ended up banging their heads against the wall. Mawdudi, the founding father of modern Political Islam, claims that even if all the world’s Muslims together wanted to make the slightest change in these laws, they would not be allowed to do so.[4]
He was wrong; change is necessary and possible.
Another key element of all Hudood laws is that only eye-witnesses are acceptable and no circumstantial evidence can be accepted.[5] Rape is included in the Dyat (monetary compensation for bodily harm) section of Sharia Law because it is considered as "Bodily Harm” or “Robbing Property" (chastity). This classification led jurists to create the following laws:
* A rapist is obliged to pay the victim the amount typically received as marriage payment to similar brides.[6]
* If the rapist cannot be punished for any reason he will pay the victim the amount equal to bride-money.[7]
The punishment of rape can only be financial since no other punishment is mentioned. The laws do not explain how a rapist can be unavailable for punishment yet be available to pay compensation. Nor do they discuss the possibility of a rapist’s inability to pay.
The jurists missed the point that rape is a crime of its own kind. It has a devastating psychological and social impact on raped women. They are shamed to death, socially outcast, unsuitable for marriage, bring shame on the family and in some countries become the victims of honor killing. In Muslim countries many raped women commit suicide.
The Quranic word “Zina” means sexual relation between a man and woman not married to each other. It can be translated as “adultery” for married persons and “fornication” for the unmarried. The Quran severely prohibits Zina. Muslim jurists included rape under Zina because, even though forced on the victim, sexual relations “between a man and woman not married to each other,” have taken place. Rape is not mentioned in the Quran, and the death sentence for rapists originated from the Prophet’s example: “Narrated Wa'il ibn Hujr: 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. …..he said: Stone him to death”.[8]
The laws are so clear about defining rape and the requirement for proof of rape that a judge has no option but punish the rape victims.
In rape cases, “sex between a man and woman not married to each other” can be proven by testimony, physical evidences of bodily scars/bruises, torn clothing or pregnancy of the victim. The Sharia laws are then enforced.
Sharia Law: The rapist will be punished to death if force on the victim is proven.[9]
Clear enough. But exactly how can “force on the victim” be proven? The answer must surely rank as one of the most insane and sexist laws in human history.
(A) "Proof of Zina (adultery) or Zina Bil-Jabr (rape) liable to Hadd shall be one of the following:
(a) The accused makes confession or
(b) There are at least four Muslim adult male witnesses”[10]
(B) "Proof of adultery or rape liable to Hadd shall be one of the following:
(a) The accused makes confession, or
(b) There are at least four Muslim adult male witnesses.”[11]
(C) “Punishment will take place when Zina or rape have been proved by witness.”[12]
(D) Sharia Law rejects the witness of women in Hudood cases.[13]
(E) “The evidence of women is originally inadmissible on account of their weakness of understanding, want of memory and incapacity of governing.”[14]
Because such “proofs” are almost impossible to obtain and because circumstantial evidence is not accepted, it is virtually impossible to prove in a Sharia court that the victim has been raped. What can be proved is “sex outside marriage” either by the woman complaining, by physical scars, torn clothes or by her pregnancy. Then the “Punishment for Sex Outside Marriage” is applied: stoning to death for married victims or flogging and exile for the unmarried. [15] On the other hand, a rapist has simply to deny the crime and get away Scot free. As the New York Times reports: “Ms. Lawal, a divorced woman, identified a man as the father of her child. The man denied the charge, swore on the Qur’an, and was deemed innocent by the trial court. No one suggested DNA tests.”[16]
But DNA tests have no place in Hudood Laws either. The BBC reported that Zafran Bibi of Pakistan “went to the police to register a case of rape, but she herself was instead sentenced to death for having an adulterous affair.”[17] About conducting a DNA test to identify the rapist, the Dawn reports: “Justice Ali Nawaz Chauhan of the Lahore High Court has observed that the DNA test is not acceptable as evidence to establish the offence of Zina under the Hudood laws which require a direct testimony in such cases….”[18]
This is how Sharia Law punishes raped women. The sources of these laws span the period from the 7th century to recent times. Some Muslim countries have withdrawn from the application of these laws, but they are still very much alive – and enforced – in many Muslim societies. Many Muslims talk about it, but there has never been a concerted effort to end this barbarity. It is true that many, including UNICEF expressed alarm over the plight of Aisha Duhulowa, but history tells us that merely condemning these acts or calling on the humanity of the perpetrators has never stopped those they were applying God’s law. The solution can only been found by raising the awareness and opposition of the entire world, irrespective of religion. Sharia law and its punishments have been reinterpreted in the past, and can be so again.
The Quranic word “Zina” means sexual relation between a man and woman not married to each other. It can be translated as “adultery” for married persons and “fornication” for the unmarried. The Quran severely prohibits Zina. Muslim jurists included rape under Zina because, even though forced on the victim, sexual relations “between a man and woman not married to each other,” have taken place. Rape is not mentioned in the Quran, and the death sentence for rapists originated from the Prophet’s example: “Narrated Wa'il ibn Hujr: 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. …..he said: Stone him to death”.[8]
The laws are so clear about defining rape and the requirement for proof of rape that a judge has no option but punish the rape victims.
In rape cases, “sex between a man and woman not married to each other” can be proven by testimony, physical evidences of bodily scars/bruises, torn clothing or pregnancy of the victim. The Sharia laws are then enforced.
Sharia Law: The rapist will be punished to death if force on the victim is proven.[9]
Clear enough. But exactly how can “force on the victim” be proven? The answer must surely rank as one of the most insane and sexist laws in human history.
(A) "Proof of Zina (adultery) or Zina Bil-Jabr (rape) liable to Hadd shall be one of the following:
(a) The accused makes confession or
(b) There are at least four Muslim adult male witnesses”[10]
(B) "Proof of adultery or rape liable to Hadd shall be one of the following:
(a) The accused makes confession, or
(b) There are at least four Muslim adult male witnesses.”[11]
(C) “Punishment will take place when Zina or rape have been proved by witness.”[12]
(D) Sharia Law rejects the witness of women in Hudood cases.[13]
(E) “The evidence of women is originally inadmissible on account of their weakness of understanding, want of memory and incapacity of governing.”[14]
Because such “proofs” are almost impossible to obtain and because circumstantial evidence is not accepted, it is virtually impossible to prove in a Sharia court that the victim has been raped. What can be proved is “sex outside marriage” either by the woman complaining, by physical scars, torn clothes or by her pregnancy. Then the “Punishment for Sex Outside Marriage” is applied: stoning to death for married victims or flogging and exile for the unmarried. [15] On the other hand, a rapist has simply to deny the crime and get away Scot free. As the New York Times reports: “Ms. Lawal, a divorced woman, identified a man as the father of her child. The man denied the charge, swore on the Qur’an, and was deemed innocent by the trial court. No one suggested DNA tests.”[16]
But DNA tests have no place in Hudood Laws either. The BBC reported that Zafran Bibi of Pakistan “went to the police to register a case of rape, but she herself was instead sentenced to death for having an adulterous affair.”[17] About conducting a DNA test to identify the rapist, the Dawn reports: “Justice Ali Nawaz Chauhan of the Lahore High Court has observed that the DNA test is not acceptable as evidence to establish the offence of Zina under the Hudood laws which require a direct testimony in such cases….”[18]
This is how Sharia Law punishes raped women. The sources of these laws span the period from the 7th century to recent times. Some Muslim countries have withdrawn from the application of these laws, but they are still very much alive – and enforced – in many Muslim societies. Many Muslims talk about it, but there has never been a concerted effort to end this barbarity. It is true that many, including UNICEF expressed alarm over the plight of Aisha Duhulowa, but history tells us that merely condemning these acts or calling on the humanity of the perpetrators has never stopped those they were applying God’s law. The solution can only been found by raising the awareness and opposition of the entire world, irrespective of religion. Sharia law and its punishments have been reinterpreted in the past, and can be so again.
Muslims must reject this barbarity or Islam itself will continue to be judged as barbaric. The screams of little Aisha Duhulowa will echo around the world until this is done.
NOTES:
[1] The Daily Star on 04 April 2006
[2] “Rape Law in Islamic Societies” by Julie Norman, CSID 6th Annual Conference
[3] Annual report of the US Commission on International Religious Freedom, May 2004 – Ref - National Commission on the Status of Women in Pakistan.
[4] Islamic Law and Constitution - page 140.
[5] Codified Islamic Law Vol 2 page 600
[6] Shafi'i Law Reliance of the Traveler -# m.8.10
[7] Codified Islamic Law Vol 1 page 301
[8] Abu Dawood Book 38, Hadis# Number 4366
[9] Codified Islami Law Volume 1 Law#134, Shafi’i law Reliance of the Traveler – o.7.3
[10] Pakistan Hudood Ordinance VII of 1979 amended by Ordinance XX of 1980
[11] Codified Islami Law Volume 1 Law#133
[12] Ibid Law #135
[13] Hanafi Law-Page 176, 353, Shafi’i Law- page 638 Law#o.24.9, Criminal Law in Islam and the Muslim World –page 251, The Penal Law of Islam – Kazi Publications Lahore- page 44, 45, Tafsir of Translation of the Qura’an by Muhiuddin Khan pages 239 and 928
[14] The Penal Law of Islam – Kazi Publications Lahore- page 44 – 45
[15] Hanafi Law Hedaya 178, Codified Islamic Law#129 Vol 1, Sunan Abu Dawood Book 38,4451& 4423
[16] http://query.nytimes.com/gst/fullpage.htmlres=9900E0D9153DF935A1575AC0A9659C8B63
[17] http://www.bbc.co.uk/radio4/womanshour/03_06_02/thursday/info1.shtml
[18] http://www.dawn.com/2005/05/21/top4.htm
NOTES:
[1] The Daily Star on 04 April 2006
[2] “Rape Law in Islamic Societies” by Julie Norman, CSID 6th Annual Conference
[3] Annual report of the US Commission on International Religious Freedom, May 2004 – Ref - National Commission on the Status of Women in Pakistan.
[4] Islamic Law and Constitution - page 140.
[5] Codified Islamic Law Vol 2 page 600
[6] Shafi'i Law Reliance of the Traveler -# m.8.10
[7] Codified Islamic Law Vol 1 page 301
[8] Abu Dawood Book 38, Hadis# Number 4366
[9] Codified Islami Law Volume 1 Law#134, Shafi’i law Reliance of the Traveler – o.7.3
[10] Pakistan Hudood Ordinance VII of 1979 amended by Ordinance XX of 1980
[11] Codified Islami Law Volume 1 Law#133
[12] Ibid Law #135
[13] Hanafi Law-Page 176, 353, Shafi’i Law- page 638 Law#o.24.9, Criminal Law in Islam and the Muslim World –page 251, The Penal Law of Islam – Kazi Publications Lahore- page 44, 45, Tafsir of Translation of the Qura’an by Muhiuddin Khan pages 239 and 928
[14] The Penal Law of Islam – Kazi Publications Lahore- page 44 – 45
[15] Hanafi Law Hedaya 178, Codified Islamic Law#129 Vol 1, Sunan Abu Dawood Book 38,4451& 4423
[16] http://query.nytimes.com/gst/fullpage.htmlres=9900E0D9153DF935A1575AC0A9659C8B63
[17] http://www.bbc.co.uk/radio4/womanshour/03_06_02/thursday/info1.shtml
[18] http://www.dawn.com/2005/05/21/top4.htm