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Honor: An Islamic Critique of the Rape Laws of Pakistan from a
Woman-Sensitive Perspective
Asifa Quraishi* Introduction I
remember as a child having to describe Pakistan as that small country next
to India. I haven’t used that description in a long time. By now,
Americans have heard of Pakistan, and the reference is no longer exotic.
Instead, the name conjures up confused images of women and non-Muslims in
a third world country struggling to battle Islamic fundamentalism. Recent
reports of the unjust application of Pakistan’s rape laws, enacted as
part of the "Islamization" of Pakistani law, further cement the
impression that Islam is bad for women. The reports, unfortunately, are
true. The impression is not. This
article critiques the rape laws of Pakistan from an Islamic point of view,
which is careful to include women’s perspectives in its analysis. Unlike
much of what is popularly presented as traditional Islamic law, this
woman-affirming Islamic approach will reveal the inherent
gender-egalitarian nature of Islam, which is too often ignored by its
academics, courts, and legislatures. This article will demonstrate how
cultural patriarchy has instead colored the application of certain Islamic
laws in places like Pakistan, resulting in the very injustice, which the
Qur’an so forcefully condemns. I.
Critique Of the Zina Ordinance A.
Power of Law: The Zina Ordinance and its Application in Pakistan In
1977, under President Zia-ul-Haq, Pakistan enacted a set of "Hudood"1
Ordinances, ostensibly to bring the laws of Pakistan into "conformity
with the injunctions of Islam" (P.L.D. 1979, 51; Bokhary 1979, 162;
Major Acts 1992, 10). These Ordinances, setting forth crimes such as
theft, adultery, slander, and alcohol consumption, became effective in
February 1979 (P.L.D. 1979, 51; Bokhary 1979, 164; Major Acts 1992, 10).
The "Offence of Zina (Enforcement of Hudood) Ordinance,
VII of 1979" (Zina Ordinance) criminalizes "zina,"
or extramarital sexual relations (also a crime under Islamic law).2
The Zina Ordinance states: A
man and a woman are said to commit ‘zina’ if they willfully
have
sexual intercourse without being validly married to each other. Zina
is liable to hadd [punishment] if-- (a)
it is committed by a man who is an adult and is not insane, with a woman to
whom he is not, and does not suspect himself to be married; or (b)
it is committed by a woman who is an adult and is not insane with a man to
whom she is not, and does not suspect herself to be married (P.L.D. 1979,
52; Bokhary 1979, 176; Major Acts 1992, 11). Under
its heading of zina, the Zina Ordinance includes the
category "zina-bil-jabr" (zina by force) which
lays out the definition and punishment for sexual intercourse against the
will or without the consent of one of the parties. The section
articulating the crime of rape, as zina-bil-jabr, states: A
person is said to commit zina-bil-jabr if he or she has sexual
intercourse with a woman or man, as the case may be, to whom he or she is
not validly married, in any of the following circumstances, namely:-- (a)
against the will of the victim, (b)
without the consent of the victim, (c)
with the consent of the victim, when the consent has been obtained by
putting the victim in fear of death or of hurt, or (d)
with the consent of the victim, when the offender knows that the offender
is not validly married to the victim and that the consent is given because
the victim believes that the offender is another person to whom the victim
is or believes herself or himself to be validly married. Explanation.--Penetration
is sufficient to constitute the sexual intercourse necessary to the
offence of zina-bil-jabr. Zina-bil-jabr
is liable to hadd if it is committed in the
circumstances specified [above] (P.L.D. 1979, 52; Bokhary 1979, 182; Major
Acts 1992, 11-12). Finally,
the Zina Ordinance then specifies the evidence required to prove
both zina and zina-bil-jabr: Proof
of zina or zina-bil-jabr liable to hadd shall be in
one of the following forms, namely:-- (a)
the accused makes before a Court of competent jurisdiction a confession of
the commission of the offence; or (b)
at least four Muslim adult male witnesses, about whom the Court is
satisfied, having regard to the requirements of tazkiyah al-shuhood
[credibility of witnesses], that they are truthful persons and abstain
from major sins (kaba’ir), give evidence as eye-witnesses of the
act of penetration necessary to the offence (P.L.D. 1979, 53; Bokhary
1979, 182; Major Acts 1992, 12).3 When
this law was enacted in 1977, proponents argued that it enacted the
Islamic law of illegal sexual relations. The accuracy of that claim is
addressed in detail later.4 First, it is important to note that the application of the Zina Ordinance in Pakistan has
placed a new twist and a renewed urgency on the question of its validity.
The twist is this: when a zina-bil-jabr case fails for lack of four
witnesses, the Pakistani legal system has more than once concluded that
the intercourse was therefore consensual, and consequently has charged
rape victims with zina. 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). Political
rivals have further exploited women by using rape as a weapon against each
other. In November, 1992, Khursheed Begum, the wife of an arrested member
of the Pakistan People’s Party was abducted on her way home from
attending her husband’s court hearing. She states that she was
blindfolded, driven to a police station, and repeatedly raped there by
police officers, who asserted political motives for the attack (Amnesty
International 1992, 207; Scroggins, 1992, A10; Rashid 1991, 14.). Later
the same month, forty-year-old Veena Hyat, of one of Pakistan’s elite
families and daughter of a prominent politician, stated that she was gang
raped for twelve hours in every room of her house by five armed men.
Despite her father taking the unusual social risk of publicly reporting
the attack, a judicial investigation concluded that there was insufficient
evidence to convict the alleged perpetrators (Zia 1994, 55-57; Economist
1991, 43; Rashid 1991, 14; Robinson 1992, 11). Cases
such as these resulting from the unfortunate application of the Zina
Ordinance are widely reported in the Western media.8 The issue
is now a primary topic in women’s and human rights discussions globally,9
and stirs up an expected share of frustration, anger, defensiveness, and
arrogance from all sides. The debate, however, begs the question: What is
the Islamic law of rape? Any real substantive analysis of the zina-bil-jabr
law and its application must first approach it from this
framework--the same framework upon which the law purports to base itself.
I will therefore ask the critical question: does Pakistan’s Zina
Ordinance accurately articulate the Islamic law of rape? B.
Law of God: the Qur’an on Zina The
Pakistani Zina Ordinance subsumes rape as zina-bil-jabr
under
the general zina law of unlawful sexual relations. To analyze the
appropriateness of this categorization, we must first analyze the Islamic
law of zina itself. The preamble of the Pakistani Zina
Ordinance states that it is enacted "to modify the existing law
relating to zina so as to bring it in conformity with the
Injunctions of the Holy Qur’an and Sunnah" (Major Acts 1992,
10)10 Indeed, the term zina itself appears in the
Qur’an. In warning generally against the dangers of adultery, the
Qur’an states: And
do not go near fornication [zina] as it is immoral and an evil way
(Qur’an 17:32).11 Later,
the Qur’an more specifically sets out actual legal prescriptions
criminalizing illegal sexual relations: The
adulteress and adulterer should be flogged a hundred lashes each, and no
pity for them should deter you from the law of God, if you believe in God
and the last day; and the punishment should be witnessed by a body of
believers (Qur’an 24:2). Following
this definition of the offense are extremely strict evidentiary rules for
the proof of such a crime: 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,
for they are profligates (Qur’an at 24:4).12 Thus,
after criminalizing extramarital sexual relations,13 the
Qur’an simultaneously attaches to the prosecution of this crime nearly
insurmountable evidentiary restrictions: four eye-witnesses are required
to prove a charge of sexual misconduct.14 Islamic
jurisprudence further interprets the Qur’anic zina evidentiary
rule of quadruple testimony to require the actual witnessing of
penetration during sexual intercourse, and nothing less.15 This
interpretation is based on the reported hadith (tradition) of
Muhammad in which, after a man persisted in confessing to adultery (the
Prophet having turned away to avoid hearing the information several times
prior), Muhammad asked several specific questions to confirm that the act
was indeed sexual penetration (Bukhari 1985, 8:528-35 (Bk. 82, Nos. 806,
810, 812-814); Abu Daud 1990, 3: Nos. 4413-14).16 Moreover,
Islamic evidence law requires the witnesses to be mature, sane, and of
upright character (Salama 1982, 109; El-Awa 1982, 126-27; Siddiqi 1985,
43-49). Furthermore, if any eyewitness testimony was obtained by violating
a defendant’s privacy, it is inadmissible.17 And lastly, the Hedaya,
a key reference of Hanafi jurisprudence18 prominent
codification of Muslim law in India,19 even sets a statute of
limitations for charging zina.20 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. 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. This
cultural phenomenon – that a family’s honor lies in the virtue of its
women–exists in many countries today; Pakistan is one of them. Studies
indicate that in Pakistan, when women are jailed for long periods of time
on charges of zina, their families and friends are reluctant to
help or even visit them, "as accusation of zina is a serious
dishonor" (Patel 1991, 27). Even more disturbing, suicide is
perceived as the honorable solution to the humiliation, especially sexual
violation is involved. For example, when Khursheed Begum was raped in
1992,28 her husband and son "wish[ed] she had committed
suicide," even after human rights activists explained to them that
the rape was not her fault (Scroggins 1992, A10). This attitude lends
itself easily to manipulation and the development of a tribal attitude
where women’s bodies become tools for revenge by men against men.
Indeed, increasingly in Pakistan, "[i]n cases of revenge against the
male members of [a] family, instances have come to light where their women
are violated" (Patel 1991, 36).29 Even within a family,
physically harming (even killing) women for alleged infidelity or some
other embarrassment to the family—-often by some sort of burning–is an
unfortunate tradition in the Indo-Pakistani subcontinent.30
And, as world human rights organizations have documented, "honor
killings" of women suspected of sexual indiscretion, carried out by a
male family member, are unfortunately not limited to this part of the
world.31 The
Qur’an, however, has harsh words for the exploitation of women’s
dignity in this way. As if anticipating the misogynistic tendency of
society, the Qur’an first establishes that there is to be no speculation
about a woman’s sexual conduct. No one may cast any doubt upon the
character of a woman except by formal charges, with very specific, secure
evidence (i.e. four eyewitnesses to actual intercourse) that the woman is
disrupting public decency with her behavior.33 If such
direct proof does not materialize, then anyone engaging in such a charge
is subject to physical punishment for slander. (For even if the
information is true, any witness who is not accompanied by another three
will be punished for slander (Qur’an 24:11-17). As for the public at
large, they must leave her alone, regardless of the outcome. Where the
public refuses to perpetuate rumors, responding instead that: "it is
not for us to speak of" (Qur’an 24: 16-17) the patriarchal tendency
to invest the honor of society in women’s sexuality loses force. In the
face of any hint of a woman’s sexual impropriety, the Qur’anic
response is: walk away. Leave her alone. Leave her dignity intact. The
honor of a woman is not a tool, it is her fundamental right.
1.
Pregnancy as proof of zina?
The
rationale that "adultery is public with pregnancy" is clearly
problematic. Although the rationale does incorporate the concept that the
real criminality in zina is the public display of adultery, it
fails to contemplate the potential discrimination against and harming of
women. As a practical evidentiary matter, this perspective does not take
into account modern medical advances such as artificial insemination which
might be alternative explanations for the pregnancy, not to mention pure
force. More substantively, though, it unfairly shifts the burden of proof
against women. Forced to prove that the intercourse was nonconsensual in
order to avoid a zina prosecution, a woman is automatically put in
the position of defending her honor against accusations which do not meet
the Qur’anic four-witness requirement. This unfairness is not supported
by the spirit of the Qur’anic verses which discourage presumptions about
a woman’s sexual activity by insisting that no presumptions be made
about women’s sexual activity without four witnesses to the actual act.39
The shift in burden of proof is even more patently unfair when the
pregnant woman is a victim of rape. In that instance, an unmarried
pregnant woman must overcome the burden of a prima facie case
against her simply because the attack has resulted in pregnancy. Moreover, the Qur’anic insistence on four witnesses, as we saw earlier, establishes that the act of intercourse must be public, not its consequences.40 It is public sex which is deterred, not public pregnancy. A pregnant woman looks the same in public, whether the pregnancy occurred from rape, zina, or legal marital intercourse, and in modern societies of large populations, it is generally not obvious which of these three applies to a pregnant woman on the street. Nor, indeed, should the public (or courts) speculate about it without solid eyewitness proof of the actual act of penetration, according to Islamic law. Furthermore, pregnancy is something which only applies to women. If pregnancy alone constitutes sufficient evidence of zina, the result seems to forget that the very purpose of the zina verses is to protect women’s honor. Women, again, tend to be more susceptible to accusation, and the Qur’an addresses this susceptibility directly, by enjoining any charges against women without solid proof.41 If pregnancy is allowed as sufficient proof of zina, a pregnant adulteress will be convicted without any testimonial proof, while her adulterous partner escapes punishment with his reputation intact. The woman-affirming spirit of the zina verses is lost. C.
Drafting Problems in the Zina Ordinance 1.
The same brush: why rape as a form of zina?
As we have seen, the Qur’anic verses regarding zina do not
address the concept of nonconsensual sex. This omission is a
logical one. The zina verses establish a crime of public sexual
indecency. Rape, on the other hand, is a very different crime. Rape is a
reprehensible act which society has an interest in preventing, whether or
not it is committed in public. Therefore, rape does not logically belong
as a subset of the public indecency crime of zina. Unfortunately,
however, the Zina Ordinance is written exactly counter to this
Qur’anic omission and it includes zina-bil-jabr (zina by
force) as a subcategory of the crime of zina.42 Where
did the zina-bil-jabr section in the Ordinance come from then, if
it is not part of the Qur’anic law of zina? We will see later
that in Islamic jurisprudence addressing zina, there is significant
discussion of whether there is liability for zina under duress.43
But the language of the zina-bil-jabr section in the Pakistani
Ordinance does not appear to be drawn from these discussions. (That is, it
is not presented as an exception to zina in the case of duress.)
Rather, the zina-bil-jabr language is nearly identical to the old
common law of rape in Pakistan, the borrowed British criminal law in force
in Pakistan before the Hudood Ordinances. The old common law
Pakistani rape statute read: A
man is said to commit "rape" who, except in the cases
hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the following descriptions:– First.-–Against
her will. Secondly.-–Without
her consent. Thirdly.--With
her consent, when her consent has been obtained by putting her in fear of
death, or of hurt. Fourthly.-–With
her consent when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she
is or believes herself to be lawfully married. Fifthly.–-With
or without her consent, when she is under [fourteen] years of age. Explanation.-–Penetration
is sufficient to constitute the sexual intercourse necessary to the
offence of rape. Exception.–-Sexual
intercourse by a man with his own wife, the wife not being under
[thirteen] years of age is not rape (Pakistan Penal Code 1860, sec. 375).44 With
the exception of the statutory rape section (under "Fifthly"),
the language specifying what constitutes rape is almost identical to the zina-bil-jabr
language under the Hudood Ordinance. Even the explanation that
penetration is sufficient to constitute the necessary intercourse is the
same. Did the Pakistani legislators, in writing the zina-bil-jabr
law, simply relabel the old secular law of rape under the Muslim heading
of zina (as zina by force–-jabr), and re-enact it
as part of the Hudood Islamization of Pakistan’s laws–right
along with the four-witness evidentiary rule unique to zina? If so,
this cut-and-paste job, albeit, a well-intentioned effort to retain rape
as a crime in Pakistan’s new Hudood criminal code, reveals a
limited view of Islamic criminal law, which, as illustrated, ultimately
harms women. 2.
Sexuality and suspicion.
Rape law in the United States has long reflected cultural patriarchal
assumptions about female sexuality and consent. A frequent casualty in
rape trials is the rape victim’s reputation, as the court attempts to
sort out the issue of consent (Dripps 1992, 1782). This problem is
exacerbated in Pakistan because the convoluted placement of rape as part
of the Zina Ordinance encourages the use of a woman’s
unsuccessful claim of rape as some sort of default evidence of zina.
Thus, there is a strong tendency to suspect any charge of rape to be a
"loose woman’s" attempt to escape punishment for zina.
Female sexual stereotypes dangerously fuel these cases. For example, on
appeal of one rape conviction, the Pakistani Federal Shariat Court stated: [W]herever
resort to courts is unavoidable for any reason, a general possibility that
even though the girl was a willing party to the occurrence, it would
hardly be admitted or conceded. In fact it is not uncommon that a woman,
who was a willing party, acts as a ravished woman, if she is surprised
when in amorous courtship, love-making or in the embrace of a man she has
not repulsed.45 Such
biased and derogatory observations against women by the Islamic court in
Pakistan reveal a basic cultural male bias in the perception of women and
female sexuality. This
bias also manifests itself in conclusions that a given sexual encounter
must have been consensual if there is no physical evidence of resistance
by the woman (another issue familiar to rape law reformers in the West).
Many Pakistani judgments of rape have been converted into zina
cases because of the absence of evidence of such resistance (Jilani 1992,
72). This stereotypical concept of women supposes that if a woman does not
struggle against a sexual assault, then she must be a sexually loose
woman–justifying a conversion of the charge to zina. This
attitude unfairly generalizes human reaction to force and the threat of
violence. And, this generalization works to the detriment of women who
have been subjected to a rapist’s attack and survived only by submitting
without physical resistance. Ironically,
this is exactly the type of speculation regarding women’s sexual
activity which the Qur’an explicitly condemns in the very verses
establishing the crime of zina.46 Judicial and societal
speculation about women’s sexual looseness clearly does not correspond
with the Qur’anic admonition that "it is not for us to speak
of." The intertwining of rape with zina in the Pakistani
ordinance, however, encourages such speculation. Rather than constituting
a separate violent crime against women, rape--under the title zina-bil-jabr-–is
perceived more as a woman’s expected defense to a zina charge,
and thus subject to judicial speculation.47 3.
Bearing Witness: Exclusively Male Testimony.
We have reviewed the strict Qur’anic quadruple testimony standard of
proof for zina cases, and Islamic evidence law regarding the nature
of the testimony requiring upright, sane witnesses, and testimony obtained
without violation of privacy.48 The Zina Ordinance of
Pakistan, however, adds a limitation on the admissibility of evidence
which we have not yet addressed: the witnesses must all be men.49
That is, the standard of proof in the Zina Ordinance for zina
or zina-bil-jabr is either confession or testimony by "at
least four Muslim adult male witnesses" (P.L.D. 1979, 183; Bokhary
1979, 182; Major Acts 1992, 12). However,
the Qur’anic zina verse setting forth the original four-witness
requirement is not exclusive to men.50 This verse refers to
these four witnesses with the Arabic masculine plural, "shuhada"
("witnesses"), which grammatically includes both men and women,
unless otherwise indicated.51 The inclusion of the word
"male" in the Zina Ordinance thus prompts the question:
was this interpretation taken from Islamic law or is it a Pakistani
cultural gloss on the rule? Despite
the Qur’anic use of the plural noun inclusive to both men and women,
many Islamic jurists and scholars have traditionally limited the four
witnesses in a zina case to men.52 In fact, all major
schools of thought have adopted restrictive interpretations of women’s
ability to testify as witnesses in general, although some (significantly
including the famous jurists, al-Tabari, Ibn Taymiyya, and Ibn al-Qayyim)
have disagreed.53 The rationales accompanying this rule are
interesting, however. For example, the Hedaya, states: Evidence
is of several kinds, that of four men, as has been ordained in the
Qur’an; and the testimony of a woman in such case is not admitted;
because . . . ‘in the time of the Prophet and his two immediate
successors it was an invariable rule to exclude the evidence of women in
all cases inducing punishment or retaliation’; and also because the
testimony of women involves a degree of doubt, as it is merely a
substitute for evidence, being accepted only where the testimony of men
cannot be had; and therefore it is not admitted in any matter liable to
drop from the existence of doubt (Hedaya 1982, 353-54 Bk.XXI, Ch.1). Although
the principle that reasonable doubt should negate convictions of violent
crimes is a laudable one, the reasoning leading to it appears to stem from
a condescending patriarchal view of women.54 This attitude
continues even in more modern texts on Islamic law: In
the case of [zina] the testimony of four male witnesses is required
as a female is weak in character (Ajijola 1981, 134). [T]he
concern of Islamic law for complete truthfulness of evidence and certainty
of proof is abundantly clear from its rules of evidence. Avoiding
conviction only on a single witness testimony and reluctance to act upon
the evidence of women only are indications of the fool-proof system of
guilt-determination prescribed by the Qur’an and Sunna[h] (Menon
1981, 237). [I]t
is to be observed that the evidence of women against men is not admissible
in wine drinking [prosecutions] because the evidence of females is liable
to variation, and they may also be suspected of absence of mind, or
forgetfulness (Siddiqi 1985, 119). [Regarding
property cases, where two witnesses are required,55] [t]he Imam
al-Shafi’i has said that the evidence of one man and two women cannot be
admitted, excepting in cases such as hire, bail and so forth, because the
evidence of (a) woman is originally inadmissible on account of their
weakness of understanding, their want of memory and incapacity of
governing, whence it is that their evidence is not admitted in criminal
cases (Siddiqi 1985, 45). [In
property cases, where two witnesses are required and the evidence of two
women is admissible in place of two men,] [t]he evidence of four women
alone, however, is not accepted, contrary to what analogy would suggest,
because if it were, there would be frequent occasions for their appearance
in public, in order to give evidence; whereas their privacy is the most
laudable (Hedaya 1982, 354, Bk. XXI, Ch. 1).56 Assumptions
such as these of the lack of memory, incompetence, and general weak
character of all women obviously stem from a patriarchal perspective in a
male-dominated intellectual community. The Qur’an, however, does not
bear this attitude, as it establishes the equality of men and women before
God and the responsibility of both equally as vicegerents of God on earth.57
But where cultures are male-dominated, the absence of the active and
intelligent participation of women in the public sphere naturally might
breed such attitudes, and these have apparently made their way into the
analysis and application of Islamic law in such societies and places in
history. Educated
Muslims today, however, would quickly dismiss as simple ignorance any
claims that women are inferior in intellectual capacity, memory, or
character. As for the societal harmony arguments that women do not venture
out into public space, Muslim women today, do not necessarily fit into the
mold described in these quotes. Nor, indeed, did all women of Muslim
history.58 To reason that women should not be witnesses to a zina
or zina-bil-jabr case because this would encourage their going out
in public is pointless in a society where, for example, the medical
evidence in a zina prosecution might easily be submitted by a woman
doctor, the prosecuting or defense attorney could be a female litigator,
and the presiding judge a woman jurist. The caution against women entering
public space has long been dropped in most parts of Pakistan and other
countries of the modern world. The
limitation of testimony exclusively to men appears to be an incorporation
into Islamic law of an antiquated custom which has now changed, and in
Islamic law, "all rules in the shari`ah [Islamic law] that are
based upon customs change when custom changes" (Mahmassani 1987, 116)59
Modern Islamist writings, in fact, have been instrumental in establishing
that such exclusion of women from public space is an unfair cultural
practice that is not an inherent part of Islam: In
the 1970s, some Islamists began a serious reexamination of the dominant
conservative position. They concluded that the inclusion of women in all
facets of the political process was entirely consistent with Islam, that
Islam does not require strict segregation of the sexes, and that much of
the conservative position was based on custom rather than on the absolute
principles of Islam (Ghadbian 1995, 27). Among
the many respected leaders of the modern Islamist movement who follow this
attitude are Hasan al-Turabi of Sudan, Rachid al-Ghanouchi of Tunisia, and
Muhammad al-Ghazali and Yusuf al-Qaradawi of Egypt.60 The
exclusivity of male testimony as an application of cultural male bias to
the Islamic law of zina is unfair. But the exclusion of female
testimony becomes appalling when expanded to apply to zina-bil-jabr
as well. It is a clear travesty of justice to deny a victim of rape the
right to testify to this violent attack merely because she is a woman. In
applying the exclusively male evidence rule of traditional zina law
to the crime of zina-bil-jabr, Pakistan has transformed what was
merely an unfair antiquated male bias into a direct violation of the human
rights of women. The direct contradiction to the Qur’anic injunctions to
stand up firmly for justice is obvious. Moreover,
depriving women as an entire gender of the right to testify in a zina
or zina-bil-jabr case–where a woman’s honor is generally at
issue–has serious societal ramifications. First, it prevents women from
fulfilling the Islamic duty to bear witness to the truth, repeatedly
emphasized in the Qur’an.61 But even more significant is the
fact that the permanent rejection of testimony is itself a Qur’anic hadd
penalty. That is, in its verse prohibiting slander, the Qur’an
establishes that deprivation of the right to testify is a severe
punishment–one of the two consequences of falsely accusing a woman: 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, for they are profligates (Qur’an 24:4 (emphasis
added)). A
law which disallows women’s testimony in zina cases, then, is
tantamount to sentencing all women to one of the Qur’anic punishments
for slander. This is ironic given the fact that the slander verse is
specifically addressed to the preservation of women’s honor--something
that is stripped when one’s testimony is not accepted. As one
commentator puts it, "in a Muslim society the rejection of an
individual’s testimony is tantamount to outlawing him, [and thus] the
rejection of the testimony of one who has committed a hadd offence
is a deterrent measure" (El-Awa 1982, 34). Elimination of all female
testimony in zina cases thus subjects women to part of the same
punishment as if they had committed a hadd crime, the most serious
type of offense in Islamic law. Quite different from honoring women, as
the Qur’an dictates, this practice dishonors all women by insinuating
incompetence and weakness of character-–the same qualities attributed to
a slanderous witness. Finally,
there is a practical problem. If the rationale for rejecting a
slanderer’s testimony is deterrence, then why not also apply this
deterrence to stop women from slandering each other? That is, if women’s
testimony is automatically inadmissible, then a woman will naturally not
be deterred by the injunction that a slanderer’s testimony will no
longer be admitted. Hence, part of the Qur’anic hadd punishment
for the offense of slander (that the slanderer’s testimony is rejected
ever after) becomes meaningless to women. Certainly, the punishment of
flogging may yet be a deterrent, but why, then, is there the additional
punishment of rejecting future testimony? And why would it apply only to
men? The Qur’an gives no indication that it means to deter women any
less than men in its injunctions against slander.62 To simply
nullify part of the Qur’anic punishment for slander, then, seems quite a
radical result to be based merely on outdated cultural attitudes regarding
women’s competence and societal place. 4.
Problems with Zina as Ta’zir.
Islamic criminal law acknowledges two categories of crime and punishment.
The first, known as hudood, encompasses crimes specifically
articulated by God in the Qur’an and through the hadith.
Islamic
jurisprudence acknowledges, however, that society may legislate additional
crimes and punishments as needed. These societally legislated crimes and
punishments are called "ta’zir." Ta’zir crimes
can sometimes carry much lighter evidentiary or sentencing schemes than
Qur’anic hudood crimes.63 In Pakistan, when the strict
quadruple witness standard of proof is difficult to meet, it has become
increasingly common for zina cases to be prosecuted as ta’zir
crimes, as opposed to hudood crimes.64 The Zina
Ordinance includes a clause providing for ta’zir prosecutions of zina
where there is less evidence: Zina
or zina-bil-jabr liable to tazir.– .
. . [W]hoever commits zina or zina-bil-jabr which is not
liable to hadd, or for which proof in either of the forms mentioned
. . . [i.e. confession or four witnesses] is not available and the
punishment of qazf (slander) liable to hadd has not been
awarded to the complainant, or for which hadd may not be enforced
under this Ordinance, shall be liable to tazir (P.L.D. 1979, 53;
Major Acts 1992, 13).65 One
seemingly positive aspect of ta’zir rape prosecutions in Pakistan
is that the relaxed evidentiary rules allow women’s testimony, as well
as various forms of circumstantial evidence not allowed in a hadd
prosecution. However, the actual impact upon women in zina cases
has not been positive. One writer states: Even
though this level of punishment permits the testimony of women, observers
of Pakistan’s legal system have noted the bias against women victims and
defendants. Courts appear to extend the benefit of doubt to men accused of
rape. However, they set rigorous standards of proof to female rape victims
who allege that the intercourse was forced. This gender bias has resulted
in: (1) women who find it so difficult to prove zina-bil-jabr
[under the hudood requirement of four male witnesses] that they
find themselves open to the possibility of prosecution for zina
[under the relaxed ta’zir evidentiary rules]; (2) men accused of zina-bil-jabr
being subject to diminished charges [because the hudood evidence is
not proved]; and (3) women who are wrongfully prosecuted and who are
afforded restricted protection against such prosecution (Rahman 1994,
1000). Thus,
the relaxed evidentiary rules of ta’zir (corresponding to its
lesser punishment) open the zina law to further manipulation by
authorities, who may threaten a woman with prosecution for zina
under ta’zir evidence if there is not enough proof to convict
under hudood. If the woman is charging rape, this exacerbates the
potential injustice of the situation. A woman might watch her rapist be
acquitted for lack of four witnesses, but herself be subject to
prosecution for zina under the looser evidentiary rules of ta’zir. This
phenomenon should sound familiar: This
is the Qur’anic verse which started our zina discussion. It
contemplates the possibility of adultery charges being brought against
women upon less evidence than four witnesses, and condemns it as a
grievous slander. By allowing prosecution for zina as a ta’zir
punishment, and thereby loosening the evidentiary rules, the Pakistani Zina
Ordinance has succeeded in contravening the very Qur’anic verse upon
which it is based.66 In fact, zina is the only hadd
crime for which the Qur’an sets out a specific punishment for not
meeting its strict evidentiary rules.67 The Qur’an thus
indicates that, unlike other hadd crimes, there can be no ta’zir
punishment for zina. That is, for this one crime, if four
eyewitnesses are not produced, the state and society must walk away and
not speak of it again.68 But
the Zina Ordinance goes even further in ignoring the Qur’anic
injunction of all-or-nothing proof of zina. It includes a provision
for "attempt" of zina, setting forth punishment of
imprisonment, whipping, and a fine (P.L.D. 1979, 55; Major Acts 1992,
14-15). Again, this directly contradicts the spirit of the Islamic law of zina.
Both the Qur’anic verses quoted above and the hadith of Muhammad
establish that unless the act was actual penetration, it is not punishable
by the state.69 There
is a compelling Qur’anic spirit against either a ta’zir or an
attempt version of zina. Unfortunately, the Pakistani Zina
Ordinance has lost sight of the unique status of zina as a hadd
crime of public indecency and expanded it to areas which inevitably result
in injustice and discrimination against women–-the focus of the
Qur’anic verses on the subject in the first place. II.
Rape in Islamic Jurisprudence In
this critique of the Pakistani Zina Ordinance, I have demonstrated
that the crime of zina set forth in the Qur’an is primarily a
societal crime of public indecency, and for that reason strict evidentiary
standards of proof are attached to its prosecution. We have also seen that
some of the application of the Qur’anic evidentiary standard for zina
has been skewed by patriarchal culture to the detriment of women’s
rights. The inadmissibility of women’s testimony in zina cases,
including rape prosecutions, is one such example. The creation of a ta’zir
version of zina, and the subcategorization of rape under zina
in the first place are other examples of aspects of Pakistan’s zina
law which unfairly dishonors its women. So
far, we have seen that the rationale for the strict evidentiary
requirements for zina is an affirmance and protection of both
female and male honor: unlawful sexual intercourse will be prosecuted by
the state only when it is publicly indecent. Within the privacy of one’s
home, the immorality of the act is something left between the individual
and God. The same rationale would not, however, apply to the crime of
rape. In rape, public display is not the crucial element to the
criminality of the act. Rather, the attack itself is a crime of violence
whether committed in public or in private. Rape is not consensual sexual
intercourse, but a violent assault against a victim, man or woman, boy or
girl, where the perpetrator uses sex as a weapon. Consistent with our
analysis thus far, the Qur’an does not include any direct mention of
rape under the general crime of zina. How, then, has Islamic law
addressed the crime of rape? A.
Duress: Rape as a Negation of Intent for Zina In
their chapters on zina, Islamic legal scholars have acknowledged
that where one or more parties engaged in zina under duress, they
are not liable for zina.70 A hadith of the
Prophet Muhammad establishes this principle: upon a woman’s reporting to
the him that she was forced to commit adultery, he did not punish her, and
he did punish the perpetrator.71 Similar rulings by the Caliph
Umar ibn Al-Khattab72 and Imam Malik (Malik 1982, 392) further
cement this principle in Islamic law. Islamic jurisprudence, in fact,
devotes much attention to the concept of duress as a negation of intent,
thus eliminating liability for an offense.73 The application of
this field of law to zina results in a thorough analysis of
liability in possible permutations of forced zina. Thus, the Hedaya
devotes several paragraphs to resolving conflicting stories regarding a
sexual encounter where one party claims it was consensual, and the other
claims it was not (Hedaya 1982, 353-54). Matters become more complicated
where the witnesses to the encounter are of different genders (Hedaya
1982, 353-54). There is also discussion and difference of opinion as to
whether a man can be forced to commit zina and thus not be liable
for hadd punishment (Hedaya 1982, 187; al-Maqdisi 1994, 8:129). Thus, the discussions of forced sex in jurisprudential writings on zina exhaustively discuss nonconsensual sex as a negation of the requisite mental state for zina, but does Islamic law address rape as an independent crime? As it turns out, contrary to what the Pakistani legislation would suggest, Islamic jurisprudence has in fact not only categorized rape as a separate criminal offense (under hiraba), but has also allowed civil compensation to rape survivors (under jirah). These two remedies are addressed in turn. B.
Hiraba: Rape as a Violent Taking Hiraba
is another hadd crime defined in the Qur’an. It is variously
translated as "forcible taking," "highway robbery,"
"terrorism," or "waging war against the state." The
crime of hiraba is based on the following Qur’anic verse: The
punishment for those who wage war [yuharibuna] against God and His
Prophet, and perpetrate disorders in the land is: kill or hang them, or
have a hand on one side and a foot on the other cut off or banish them
from the land (Qur’an 5:33). Islamic
legal scholars have interpreted this crime to be any type of forcible
assault upon the people involving some sort of taking of property.74
It differs from ordinary theft in that the Qur’anic crime of theft (sariqa)
is a taking by stealth whereas hiraba is a taking by force (Doi
1984, 250, 254; El-Awa 1982, 7). (Thus, the popular translation as
"armed robbery.") Although it is generally assumed to be violent
public harassment, many scholars have held that it is not limited to acts
committed in public places (Sabiq 1993, 2:447). It
is in the discussions of the crime of hiraba where the crime of
rape appears. A brief review of the traditional descriptions of hiraba
reveals that rape is specifically included among its various forms. For
example, in Fiqh-us-Sunnah, a modern summary of the primary
traditional schools of thought on Islamic law, hiraba is described
as: a single person or group of people causing public disruption, killing,
forcibly taking property or money, attacking or raping women ("hatk
al ‘arad"), killing cattle, or disrupting agriculture (Sabiq
1993, 450). Reports of individual scholars on the subject further confirm
the hiraba classification of rape.75 Al-Dasuqi, for
example, a Maliki jurist, held that if a person forced a woman to have
sex, their actions would be deemed as committing hiraba (Doi 1984,
253). In addition, the Maliki judge Ibn ‘Arabi, relates a story in which
a group was attacked and a woman in their party raped. Responding to the
argument that the crime did not constitute hiraba because no money
was taken and no weapons used, Ibn ‘Arabi replied indignantly that
"hiraba with the private parts" is much worse than a hiraba
involving the taking of money, and that anyone would rather be subjected
to the latter than the former (Sabiq 1993, 2:450). The famous Spanish
Muslim jurist, Ibn Hazm, a follower of the Zahiri school, reportedly had
the widest definition of hiraba, defining a hiraba offender
as: [O]ne
who puts people in fear on the road, whether or not with a weapon, at
night or day, in urban areas or in open spaces, in the palace of a caliph
or a mosque, with or without accomplices, in the desert or in the village,
in a large or small city, with one or more people . . . making people fear
that they’ll be killed, or have money taken, or be raped ("hatk
al ‘arad") . . . whether the attackers are one or many (Sabiq
1993, 2:450)." Thus,
even this cursory review of traditional Islamic jurisprudence shows that
the crime of rape is classified not as a subcategory of zina, but
rather as a separate crime of violence under hiraba. This
classification is logical, as the "taking" is of the victim’s
property (the rape victim’s sexual autonomy) by force. In Islam, sexual
autonomy and pleasure is a fundamental right for both women and men;76
taking by force someone’s right to control the sexual activity of
one’s body is thus logically classified as a form of hiraba.
Note that this principle could also be applied to expand the Islamic
law of rape to include the rape of men as another instance of the violent
taking of an individual’s sexual autonomy.77 Moreover,
classification of rape under hiraba promotes the principle of
honoring women’s sexual dignity established in the Qur’anic verses on zina.
Rape as hiraba is a separate violent crime which uses sexual
intercourse as a weapon. The focus in a hiraba prosecution would be
the accused rapist and his intent and physical actions, rather than
second-guessing the consent of the rape victim, as we have seen is likely
to happen in a zina-bil-jabr case.78 Finally, hiraba does not require four witnesses to prove the offense, unlike zina. Circumstantial evidence and expert testimony, then, presumably form the evidence used to prosecute such crimes. In addition to eyewitness testimony, medical data and expert testimony, a modern hiraba prosecution of rape would likely take advantage of modern technological advances such as forensic and DNA testing. C.
Jirah: Rape as Bodily Harm Islamic
legal responses to rape are not limited to a criminal prosecution for hiraba.
Islamic jurisprudence also creates an avenue for civil redress for a rape
survivor in its law of "jirah" (wounds). Islamic law
designates ownership rights to each part of one’s body, and a right to
corresponding compensation for any harm done unlawfully to any of those
parts.79 Islamic law calls this the law of jirah
(wounds). Harm to a sexual organ, therefore, entitles the person harmed to
appropriate financial compensation under classical Islamic jirah
jurisprudence (al-Maqdisi 1994, 36).80 Thus, each school of
Islamic law has held that where a woman is harmed through sexual
intercourse (some include marital intercourse), she is entitled to
financial compensation for the harm. Further, where this intercourse was without
the consent of the woman, the perpetrator must pay the woman both the
basic compensation for the harm, as well as an additional amount based on
the diyya (financial compensation for murder, akin to a wrongful
death payment).81 Since
rape could occur even without a clear threat of physical force
(i.e. thus perhaps not constituting hiraba, but nonetheless
constituting sex without consent), the categorization of rape under the
Islamic law of jirah also makes logical sense. This categorization
would provide financial compensation to every victim of rape for any harm
done to their body as a result of the attack. Taking the analysis further,
because the right to control one’s own sexual activity is a fundamental
Islamic and human right, it could be argued that foreign invasion of
one’s sexual organs against one’s will constitutes harm, even where
there is no physical bruising or tearing. Modern Islamic jurisprudence and
legislation could therefore choose to provide that either instead of, or
in addition to hiraba punishment against the rapist, a woman might
also claim compensation for her ordeal under the principle of jirah.
Again, this analysis would also provide for male rape victims. Interestingly,
Western legal discourse has just recently begun to reevaluate the crime of
rape, and is still struggling to overcome its male-oriented articulation
of the crime. If Islamic jurisprudence were to continue its development in
the direction outlined above, jirah principles provide an
interesting alternative remedy. Islamic law has the unique resource of a jirah
system of established bodily compensation law to apply as one response to
the crime of nonconsensual intercourse, if it were recognized in modern
Islamic legislation. In Western history, ancient Roman law also recognized
compensation as a means of resolving a rape dispute, but it took a more
patriarchal approach: it found that the father (or other male
authority) of the rape victim was owed damages because rape implied his
inability to protect the woman (Dripps 1992, 1780-81). Islamic law, with
its radical introduction of a woman’s right to own property as a
fundamental right, already employs a gender-egalitarian attitude in this
area of jurisprudence. In fact, there is a hadith specifically
directed to transforming the early Muslim population out of this
patriarchal attitude of male financial compensation for female sexual
activity. During the time of Prophet Muhammad, a young man committed zina
with his employer’s wife. The father of the young man gave one hundred
goats and a maid as compensation to the employer, who accepted it. When
the case was reported to the Prophet, he ordered the return of the goats
and the maid to the young man’s father and prosecuted the adulterer for zina
(Abu Daud 1990, 3: Bk. 33, No. 4430; Bukhari 1985, 8:Bk. 81, Nos. 815,
821, 826). Early Islam thus established that there should be no tolerance
of the attitude that a woman’s sexual activity is something to be
bartered, pawned, gossiped about, or owned by the men in her life.
Personal responsibility of every human being for her own actions is a
fundamental principle in Islamic thought. Recent
discussions of marital rape among Western scholars,82 can also
be compared to the debate among Islamic legal scholars regarding whether a
husband is obligated to pay his wife when she is physically harmed from
sexual intercourse brings up an interesting question: Is there a
recognition of marital rape in Islam.83 In the context of jirah,
it would appear so: where there is any physical harm caused to a spouse,
there may be a claim for jirah compensation.84 Even in
these discussions of appropriate jirah compensation, the question
of the injured party’s consent plays a central role. Some Islamic
jurists considered consent to be presumed by virtue of the marital
relationship, while others maintain that where harm occurs, it is an
assault, regardless of the consent, and therefore compensation is due (al-Maqdisi
1994, 8:36).85 In our modern era, one might take these
precedents and their premium focus on consent and apply the Islamic
principle of sexual autonomy to conclude that any sex without consent is
harmful, as a dishonoring of the unwilling party’s sexual autonomy.
Thus, modern Islamic jurists and legislators, taking a gender-egalitarian
perspective, might conclude that Islamic law does recognize marital rape,
and assign the appropriate injunctions and compensation for this
personally devastating harm.
Conclusion:
A Modern Islamic Gender-Egalitarian Law of Rape? And
so we return to the initial question: do Pakistan’s criminal laws
articulate the Islamic law of rape? We have seen that they do not.
But
they could have. We have seen that Islamic jurisprudence includes a law of
rape with two very appropriate avenues to justly respond to the crime, its
seriousness, and its effect on women in particular. Unfortunately, the
drafters of Pakistan’s Hudood Ordinance and the Shari`ah court
which implemented it took no notice of this precedent in creating
Pakistan’s zina law. The result has been injustice to the women
of Pakistan, and a disservice to Islamic law. This brief investigation
into some of the traditional Islamic jurisprudence on rape shows that it
is more than feasible for modern Muslim legislators to take the tools
offered in Islamic jurisprudence on hiraba and jirah to form
a comprehensive gender-egalitarian law of rape which does not counteract
the positive honoring of women which is inherent in the Qur’anic verses
on zina. Rape should be specified as a form of hiraba in the
hiraba section of modern hudood statutes, thus identifying
it as a violent crime for which the perpetrator is subject to serious
punishment. In fact, Pakistan already has a hiraba chapter in its Hudood
Ordinance (Major Acts 1992, 7). Modern Islamic legislation might also
designate rape as a harm under jirah, thus creating grounds for
rape victims to receive some compensation for the harm caused to their
bodies and sexual autonomy. Modern
Islamic jurists, legislatures, members of the judiciary and the bar must
work out the logical details of these laws, and what combination of hiraba
and jirah should apply in a given situation and society. A greater
challenge, perhaps, is changing the cultural attitudes towards women which
helped to create the existing laws in the first place. That ongoing effort
must be undertaken simultaneously with any official legislative changes,
in order to give real effect to such legislation, and to give life to the
Qur’anic verses honoring women. Commentary Notes 1.
The word "hudood" is the plural of "hadd," a term
denoting the Islamic legal categorization of crimes for which the
definition and punishment is set by God (Doi 1984, 221). 2.
This article will not address the rationale or propriety of criminalizing
consensual sexual relations, whether under Islamic law or under the many
other penal codes of the world which criminalize such behavior. Rather,
the focus of the present study is the law of nonconsensual sexual
relations laid out in the Zina Ordinance in Pakistan and as addressed in
Islamic jurisprudence. 3.
I have not included the punishments specified for each crime, as that is
not within the focus of this article. Here, I am primarily concerned with
the definition and categorization of each of these offenses. Briefly,
however, the hadd punishment prescribed in the ordinance for a zina
offense is either public stoning or whipping. For a zina-bil-jabr
conviction, it prescribes imprisonment and/or fine and/or public whipping
(P.L.D. 1979, 51 (Zina Ordinance § 6). See infra note 25 for citations to
discussions of punishments for zina in Islamic law. 4.
See infra Parts I.B., II. 5.
She was sentenced to fifteen lashes, three years imprisonment, and a fine.
Public outrage eventually led the appellate court to set aside the
punishment (Patel 1991, 25-26); Jalal 1991, 102; Mehdi 1990, 24-26; Khan
1986, 27). 6.
See Asia Watch 1992, 41-60; Patel 1991, 36; Mehdi, 1990, 27 (citing report
by attorney Asma Jahangir of fifteen incidents of police rape of women in
detention in 1988/1989); Seminar 1982, 286-87 (convenor Tahir Mahmoud
noting "cases of rape . . . in private (including those committed by
policemen) are alarmingly on an increase in the [Indo-Pakistani]
subcontinent"). 7.
Amnesty International 1995, 35(reporting January 17, 1994, gang rape of
five women, stating that police pressured women to report only robbery,
and conceal rape); Amnesty International 1993, 11-12(citing Shamim case,
and similar Imamat Khatoon case). In 1992, more than 2,000 women were in
jail awaiting trial for zina (Asia Watch 1992, 69). Many women are
eventually acquitted after enduring long trials (Patel 1991, 28). 8.
See Branion 1992, 276; Curtius 1994, 2; Fineman 1988, pt.1, 5; Heise 1991,
C1; Khan 1985, 791; Khan 1986, 27; O.J. Simpson, Business Wire 1995;
Rashid 1991, 14; Robinson 1992, 11; Scroggins 1992, A10; Whitehorn 1994,
23. 9.
See, e.g., United States Department of State 1993, 1370, 1382; Amnesty
International 1994, 232-33; Amnesty International 1995a; Asia Watch 1992,
53-60; Amnesty International 1992, 207-08; Patel 1991, 15, 19, 26-28
(citing activities of All Pakistan Women’s Association, Pakistan Women
Lawyers’ Association, Pakistan Women’s Rights Committee); Amnesty
Inernational 1995, 14, 35; Amnesty International 1993, 10-13; Jalal 1991,
103-09 (describing activities of Women’s Action Forum in Karachi);
Hodson 1994, 16 (quoting Prime Minister Bhutto’s urging a change of the
zina laws); Iqbal 1995; Jabbar 1991, 7-8; Sarwar 1995. 10.
"Sunnah" is a term used to describe the traditions of Muhammad (Kamali
1991, 44). 11.
Another verse generally urging against fornication states: Devotees
of Ar-Rahman [The Merciful] are those . . . who do not invoke any god
apart from God; who do not take a life which God has forbidden except for
a cause that is just, and do not fornicate [zina]–and any one who does
so will be punished for the crime (Quran 25:63, 68). Note
that all English renditions of the Quranic verses cited in this article
come from the Ahmed Ali translation, published as Al-Qur’an (Ahmed Ali
trans., 1984). 12.
The verse goes on to specify a relaxed evidentiary standard between
spouses, understandable given the personal nature such an accusation would
have on the marital relationship: Those
who accuse their wives and do not have any witnesses except themselves,
should swear four times in the name of God, the testimony of each such
person being that he is speaking the truth. And
(swear) a fifth time that if he tell a lie, the curse of God be on him. The
woman’s punishment can be averted if she swears four times by God as
testimony that her husband is a liar. Her
fifth oath being that the curse of God be on her if her husband should be
speaking the truth (Qur’an 24:6-9). For
further discussion of this spousal zina situation, see Doi 1989, 126-28;
Kamali 1991, 156; al-Shafi’i 1987, 146-47. Note that here, there is no
discrepancy in weight of testimony based on the gender of the party,
because in a charge of adultery between spouses, a woman’s word is equal
to that of a man. 13.
As noted earlier, this article does not address the punishments prescribed
for the crime of zina. See Part I.A. Interestingly, the answer is not as
concrete as these verses might imply. Traditions of the Prophet Muhammad
involving the stoning of adulterers have created much debate among Islamic
jurists regarding the role of the death penalty and corporal punishment in
zina sentencing. See, e.g., Amin 1985, 27-28 (citing 1981 Pakistan Shariah
(Islamic law) Court ruling that stoning for adultery is not correct
Islamic practice); Bokhary, 1979, 181 (citing legal debate in Pakistan
over propriety of stoning as punishment for adultery). The focus of this
study, however, is limited to the definition of the crime itself, and the
categorization of rape as zina. The topic of what punishment the state
should inflict upon those convicted of such a crime must wait for another
day. 14.
See Doi 1984, 236-40 (summarizing crime of zina); Doi 1989, 117-28
(summarizing crime of zina); El-Awa 1982, 13-15 (general discussion of
zina law as laid down in Quranic verses). The "proof of zina"
section of the Zina Ordinance, which also requires four witnesses, comes
to mind. Thus, in setting zina as a crime in Pakistani law, and requiring
four witnesses as necessary proof of such a crime, the Ordinance does in
fact appear to be based, at least in structure, on Islamic law. However,
as discussed in the following sections, the details of the Zina Ordinance,
and especially its subcategorization of rape as a type of zina is not
Islamic law. 15.
Coulson 1994, 127; Doi 1989, 122.; Siddiqi 1985, 69; Bassiouni 1982, 5
(citing the rule of thumb that hypothetical thread must not have been able
to pass through the two bodies); Seminar 1982, 271. 16.
It is interesting to note that although the man was punished based on his
confession, the woman was apparently never prosecuted or even
investigated. The significance of this point will be apparent later, in
the discussion of the context of the Qur’anic verses on zina, and their
impact on women’s privacy (Part I.B.). 17.
al-Saleh 1982, 69-70 (citing incident where Caliph Omar ibn al Khattab and
a companion passed a party in which, behind locked doors, individuals were
drinking alcohol; because of Islamic injunctions against spying, the two
disregarded the private party and returned home); Siddiqi 1985, 19-19-20
(citing requirement to knock before entering a residence, even of family).
But see Hedaya 1982, 194 (Bk. VII, Ch. III; allowing evidence unlawfully
obtained). 18.
See note 53, infra, for an explanation of the Islamic schools of law. 19.
See Mahmassani 1987, 23, 49 for history and significance of the Hedaya. 20.
This statute of limitations, significantly, does not apply to a charge of
slander (Hedaya 1982, 188 (Bk. VII)). In addition to the above
restrictions, where a zina conviction is a result of confession rather
than testimony, the confession may be retracted at any time (including
during execution of the sentence) (Salama 1982, 120). 21.
Salama 1982, 118 (note *) ("the nature of such rigorous proof makes
it a crime of public indecency rather than adultery"). 22.
Qur’an 24:4 (stating that those who charge women with zina and do not
have four witnesses should be given eighty lashes and their testimony
should not be accepted thereafter). See also Al-Tabari 1989, 13:110-14
(describing incident where Caliph Umar punished witnesses supporting zina
charge against al-Mughirah b. Shu’bah, Governor of Basra, because of
conflicting details in their testimony of eyewitnessed act). 23.
See also El-Awa 1982, 17 ("The desire to protect public morality and
to safeguard it against corruption by publicizing the offense, is the
reason for limiting the methods of proof."), 29 ("This
punishment is prescribed in fact for those who committed the crime openly
. . . with no consideration for the law or for the feeling of the
community," quoting Shalabi 1960, 201). 24.
See text accompanying note 16, supra. 25.
Note that this is a primarily Sunni account of the context of these
verses. Many Shii scholars do not attribute these verses to the
"Affair of the Necklace" incident. Spellberg 1994, 81-82.
(citing Shii author al-Qummi, but also noting Shii author al-Tabarsi, who
took the Sunni position). 26.
See, e.g., Spender 1980 (discussing the asymmetry of language, and insults
that tend to be based on women’s sexuality). 27.
See also Mehdi 1994, 116(sec. 3.3.1, stating that before the Hudood
Ordinances, the penal law of Pakistan included adultery as an offense, but
defined it as intercourse by a man with the wife of another without his
permission; women were not punished even as abettors); Zia 1994, 25-26
(stating that under the pre-Hudood criminal legal system inherited from
British, a complaint of adultery could only be lodged by the husband);
Dripps 1992, 1782 ("Until the twentieth century, . . . female sexual
autonomy had little to do with the law of rape. The law instead struck a
balance between the interests of males-in-possession and their predatory
counterparts."). The Pakistani Penal Code prior to 1979 borrowed from
this English common law of rape (Pakistan Penal Code 1860, § 375)
(legislating and elaborating on rape defined as "the ravishment of a
woman without her consent, by force, fear, or fraud," citing English
common law precedent). 28.
See Part I.A., supra. 29.
See also Zia 1994, 30 ("The motivation of feudal enmity, revenge for
honour via the sexuality of the woman, collusion of male authorities in
attributing all blame on the woman, and State sanctioning of control over
women even in the extreme form of murder, are all feeding impulses in most
sex crimes [in Pakistan]."); Haeri 1995, 161 (arguing that
"political rape" is modern version of "‘feudal’
‘honor rape’"); Sarwar 1995 ("Women are also considered
property, and the repositories of male honor. If a man wants revenge from
someone, the surest way is to strike at him through his ‘honor’–his
wife or daughter."). 30.
Amnesty International 1995a, 3 (reporting burnings); Sarwar, 1995
("In addition, Pakistani society tacitly condones ‘honor
killings’–-the murder of a female relative on suspicion of ‘illicit
relations.’"). 31.
See, e.g., Amnesty International 1995b, 92 (discussing honor killings in
Egypt and Iraq). 32.
See Part I.B., supra. 33.
See Part I.A., supra. 34.
Islamic jurisprudence was developed by jurists whose approaches to and
interpretations of the Qur’an and Sunnah became varying schools of
Islamic law (Mahmassani 1987, 15-17). Today, five schools are commonly
discussed: the four Sunni schools (Hanafi, Maliki, Shafii, and Hanbali)
and the Shii school (Ja’fari). For more information and background, see
Mahmassani 1987, 15-39. 35.
See Al-Maqdisi 1994, 8:129, 145 (stating Hanafi and Shafii schools of
thought hold that pregnancy alone does not constitute sufficient evidence
for punishment of zina, but noting that the Maliki school of thought
presumes punishment unless there are signs of coercion); Siddiqi 1985, 71
(but citing Umar’s reported position that pregnancy furnishes sufficient
proof of zina against unmarried woman); Seminar 1982, 271 (stating that
majority of jurists hold that pregnancy is not prima facie evidence of
zina). 36.
See Malik 1982, 392 sec. 41.4 (stating that an unmarried pregnant woman
who claims that she was forced to have sex is liable for punishment unless
she can prove her claim); Salama 1982, 121. See also Coulson 1994, 174-75
(stating Malikis held pregnancy is prima facie evidence of zina); El-Awa
1982, 130-31 ("[T]he offence of zina may be proved against an
unmarried woman if she is pregnant," citing Maliki jurists who
considered circumstantial evidence important and admissible as proof). 37.
See also Abu Daud 1990, 3:No. 4404 (quoting Umar ibn Khattab’s statement
that fornication exists "when proof is established or if there is
pregnancy, or a confession"); Bukhari 1985, 8:536-37 (Bk.82, NO.
816). 38.
Salama 1982, 120-21 (summarizing role of qara’in (presumptions, or
circumstantial evidence) in hadd jurisprudence). 39.
See Part I.B., supra. 40.
Ibid. 41.
Ibid. 42.
See Part I.A., supra. 43.
See Part II.A., infra. 44.
For comparison, the zina-bil-jabr section reads: Explanation.–Penetration
is sufficient to constitute the sexual intercourse necessary to the
offence of zina-bil-jabr. Bokhary
1979, 182 (with comment and annotation); Major Acts 1992, 11-12. 45.
Zia 1994, 29 (quoting Federal Shariat Court); Ahmad 1995, 8 (citing case
of alleged rape of fifteen-year-old girl where defendant was acquitted and
court described victim as girl of "loose character" who
"has a habitual case of enjoying sexual intercourse," reported
at P.L.D. 1982, Fed. Shariat Ct. 241). 46.
See Part I.B., supra. 47.
Jilani 1992, 71 ("The offense of rape (zina-bil-jabr)is also dealt
with by the same law [of zina]. The effect of this is that rape has become
more of a defense against prosecution for adultery or fornication, rather
than being considered as an independent crime."). 48.
See Part I.B., supra. 49.
Apparently, the exclusion of female evidence was challenged through a
petition in the Federal Shariat Court, but the male only witness
requirement still exists in the Ordinance (Mehdi 1994, 118). 50.
Qur’an 24:4 ("Those who defame chaste women and do not bring four
witnesses [shuhada’] should be punished . . . ."). 51.
Wadud-Muhsin 1992, ch. 1 (discussing Qur’anic grammar and its emphasis
on the duality of men and women). 52.
Ajijola 1981, 134; El-Awa 1982, 17, 124-26 (defining zina witnesses as
four adult men). 53.
Fadel 1997, ___ (discussing Islamic jurisprudence on women as witnesses,
addressing sociological influences on the restrictions on women’s
testimony; noting alternative interpretations among jurists); Salama 1982,
118 ("All jurists reject the testimony of women.," but citing
some scholars who accept testimony of women in zina cases if there are two
women for each man); Coulson 1994, 127; El-Awa 1982, 17, 1124-26 (defining
zina witnesses as four adult men). 54.
Traditional Muslim jurists have used similar biased reasoning to justify
the requirement of two women witnesses for one man in general non-zina
evidence law. These include: aiding male pride, since the losing party’s
resentment will be greater if losing to a woman, and protection of
society, as the practice of women leaving the home will lead to social
disorder and corruption (Fadel 1997, ____). 55.
See Wadud-Muhsin 1992, 87 for alternative analysis of Qur’anic
requirement of two women witnesses for one man, in two-witness-minimum
cases. 56.
Similar patriarchal attitudes towards women manifest themselves even
outside discussions of competent witnesses. One modern commentator
rationalizes the disparity between husband and wife in ease of obtaining a
divorce by saying that, because of emotional instability due to the
menstrual cycle, "[i]f women were given the power of unilateral
divorce, it is probable that millions of them would divorce their husbands
and it is probable that millions of divorces would have ensued and there
would be chaos in society" (Doi 1989, 95). See also Wadud-Muhsin,
1992, 35 (citing Zamakhshari’s statement that men are preferred by God
over women in terms of "intelligence, physical constitution,
determination and physical strength"). 57.
Wadud-Muhsin 1992, 34-38, 64-66 (describing equality of women and men laid
out in the Qur’an; distinctions between humans are only on the basis of
character, women not defined by biology alone) 58.
See al Asqalani 1907, 341-42 (discussing Laila al-Shifa bint Abdullah, who
was appointed by Caliph Umar to oversee the Medina marketplace); Kahhala
1991, 2:300-01 (also discussing al-Shifa bint Abdullah), 5:67-70
(summarizing biographies of prominent Muslim women, including story of
Baghdadi ruler Umm al-Muqtadir billah, who set up a female courtier as
judge to hear disputes in the public square, citing Tabari, Ibn Athir, Ibn
al-Jawzi, Ibn Miskawih); Qadri 1982, 57 (describing cases involving women
litigants before a male judge); Walther 1995 (describing prominent women
throughout Muslim history, including Umm al-Muqtadir billah). 59.
See also Kamali 1991, 285 (summarizing changeability of rules where ‘urf
(custom) has changed, citing al-Shafi’i’s different rules in Iraq
versus Egypt). 60.
Ghadbian 1995, 27 (citing Hasan al-Turabi’s paper, "Women in Islam
and Muslim Society," which "laid down the theoretical basis of
the reformist approach to gender relations, endorsed unequivocally a fully
participatory role for women in politics and in every other sphere of
society and declared that traditional restrictions on women’s freedoms
had nothing to do with Islam"; quoting al-Ghanouchi’s statement:
"We began to ask ourselves sheepishly, to what extent does our
movement express Islam’s approach to women, and to what extent have we
freed ourselves from the residue of the era of decline and from our
reactions against the Bourgibian degeneracy?"; citing al-Ghazali’s
book, al Sunnah al Nabawiyah bayn Ahl al Fiqh wa Ahl al Hadith, which
focuses on verses and hadith which conservatives interpret as excluding
women from positions of authority, and asserting that "some authentic
juristic interpretations of Islamic law allow women to serve in any public
capacity–as judges, ambassadors, cabinet members, and rulers";
citing 1990 fatwa (ruling) of al Qaradawi that women can seek
parliamentary and judicial positions, and issue fatwas with the same
authority as men). 61.
See, e.g., Quran 4:135 ("O you who believe, be custodians of justice
(and) witnesses for God, even though against yourselves, or your parents
or your relatives . . . and if you prevaricate or avoid (giving evidence),
God is cognizant of all that you do."). 62.
See Part I.B., supra. 63.
For further explanation and distinction between hadd and ta’zir crimes
in Islamic law, see Coulson 1994, 124; El-Awa 1982, 1-2; Siddiqi 1985,
158; El-Awa 1976, 41 64.
See United States Department of State 1994, 1372 ("[i]n contrast to
past years, women are now frequently granted bail for Hadood offenses, and
convictions have been markedly reduced"); Asia Watch 1992, 50-52;
Mehdi 1990, 23 (stating that under working law of rape, almost all cases
are tried under ta’zir); Rahman 1994, 999-1000 ("Because of the
difficulty of obtaining four male Muslim witnesses, men accused of
zina-bil-jabr have in reality, become exempted from the maximum
punishment. Although maximum Hadd punishments have been imposed, none have
ever been carried out. The majority of zina or zina-bil-jabr cases are
thus heard at the lesser Tazir punishment level."). 65.
The section goes on to prescribe the punishment for zina of imprisonment
for ten years, thirty lashes, and a fine, and for zina-bil-jabr
twenty-five years imprisonment and thirty lashes. 66.
See also Patel 1991, 30-31 (making same argument that there can be no
ta’zir punishment for zina). This argument, in fact, was the basis of a
challenge to the ta’zir punishment implemented in zina cases in
Pakistan. Patel 1991, 30-31 (citing 1983 petition challenging §§9(a) and
10 of the Zina Ordinance on this ground). 67.
al-Shafi’i 1987, 247 ("[o]nly the witnesses in the case of adultery
should be scourged"). 68.
See Part I.B., supra. 69.
Ibid. 70.
See Hedaya 1982, 187 (defining compulsion generally); al-Maqdisi 1994,
8:129, 145 (including discussion of exemption from zina liability for male
forced to commit zina); Seminar 1982, 269 ("[it] is an agreed
position that females subjected to rape against their consent and without
their will would be exonerated from any liability under Islamic
law"). 71.
Bukhari 1985, 8:Ch. 7; Mishkat al-Masabih 1:762 (citing hadith in Tirmidhi
and Abu Dawud). 72.
See Malik 1982, 392 (citing case where Caliph Umar prosecuted rapist of
slave girl and did not prosecute her); al-Maqdisi 1994, 8:129 (citing case
where caliph Umar released woman who asserted rape). 73.
See generally Abou El Fadl 1991, 305. 74.
El-Awa 1982, 7-10; al-Jaziri 1986, 5:409-11; Sabiq 1993, 2:446 (chapter on
hudood, describing hiraba); Siddiqi 1985, 139-44. See also Doi 1984, 250
(explaining context of verse revelation: some people came to Muhammad
under the auspices of new converts, complained that the weather in Medina
was disagreeable to them, and Muhammad sent them to live outside the city
with cattle belonging to the state; they subsequently killed the cattle
keeper and stole the cattle and this verse revealed shortly thereafter). 75.
al-Jaziri 1986, 410-11 (summarizing Maliki school definition of hiraba
offender as someone who "obstructs the road, even without intending
to take money, intending to harm someone, or intending to rape a woman
("hatk-il-harim")"). 76.
See al-Bukhari 1985, 7:Nos. 135-36; Al-Ghazzali 1984, 2:106-07 (book on
etiquette of marriage, citing hadith re: rights of wife for sexual
pleasure); Mussallam 1983, 28-38 (including hadith and discussion of
contraception if it interferes with wife’s sexual satisfaction)); al-Hibri
1982, 213 (citing hadith about foreplay); Symposium _______, 92 (citing
schools of thought on role of woman’s sexual pleasure in legality of
marriage contract). 77.
It is interesting to note that the concept of a woman’s sexuality as her
property is in fact not a new one to the crime of rape. The western crime
of rape evolved from the early Roman law of "raptus" which was
defined as "a form of violent theft that could apply to both property
and person" (Alexander 1995, 7:211). See also Dripps 1992, 1781. 78.
See Part I.C.2., supra. 79.
al-Maqdisi 1994, 3 (introduction; describing law of jirah, classification
of injuries, etc.). 80.
Note that the law of jirah (in addition to other principles of Islamic
law) providing for compensation for physical harm even between spouses
would support modern Islamic legislation against domestic abuse. 81.
al-Maqdisi 1994, 36 (discussing varying applications of jirah under four
Sunni schools of thought); Bokhary 1979, 219 (stating where someone is
forced to commit zina, she is not punished for zina, but rather entitled
to compensation). 82.
See, e.g., De La Mothe 1996, 23: 857. 83.
Notably, the Pakistani Zina Ordinance categorically eliminates this
possibility, by defining zina-bil-jabr as unconsensual intercourse with
someone "to whom he or she is not validly married" (Part I.A.,
supra) , a description also popular in old common law definitions of
rape). 84.
See Part II.C., supra. 85.
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*
Asifa Quraishi LL.M., Columbia University (1998); J.D., University
of California, Davis (1992); B.A., University of California, Berkeley
(1988); President, Karamah: Muslim Women Lawyers for Human Rights; Member,
California Bar. This
article was taken from the following site. We have been unable to
contact the author and Karamah for permission to use this on our
site. However, this article is an eye-opener and a must-read.
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