Murtaza Haider in an important article, â€œA License to Rapeâ€ published in Dawn newspaper, discusses the British (not Islamic) origins of the Hudood laws of Pakistan, which prosecute women and even minor girls for being raped, while excusing the rapists.
Prof. Asifa Quraishiâ€™s Michigan Journal of International Law article entitled â€œHer Honor: An Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective,â€ details how the rape provisions of Pakistanâ€™s Hudood Ordinance directly contradict Islamic law regarding sex crimes.
The Quran states: â€œThose who defame chaste women and do not bring four witnesses (shuhada) should be punished with eighty lashes, and their testimony should not be accepted afterwards, for they are profligatesâ€ (24:4).
â€œThe Quranic speech is clear and without confusion. The requirement to produce four witnesses, and not just male witnesses, is required by the Quran to prevent false accusations of fornication against women,â€ Haider writes.
However, in Pakistan and in some other Muslim countries that have experienced the legacy of British rule, a woman is considered guilty UNLESS she can provide four male witnesses to prove that she is innocent!
This has given a lot of ammunition to Western and feminist critics of Islam and Muslims, because of the obvious injustice – especially regarding high rates of incest involving children within extended families. In the Journal of the College of Physicians and Surgeons in Pakistan in 2010, Dr. Iram Manzoor wrote that most rape victims were aged between 10 and 19 years old.
â€œA series of events in the past few weeks have again highlighted the injustices being committed against women in the name of Islam in Pakistan,â€ writes Haider. â€œRecently, the three accused of raping an 18-year old woman at Jinnahâ€™s Mausoleum were set free by a court in Karachi. The court refused to entertain the DNA evidence, which reportedly proved the guilt of the accused, and gave the accused the benefit of the doubt because the victim could not produce four eyewitnesses to the rape. Weeks later, the Council of Islamic Ideology (CII) decreed that the DNA evidence in the absence of four righteous men as witnesses to rape is not sufficient for conviction under Islamic law.â€
â€œBy turning our collective backs on science, logic, and ijtihad, we have brought ourselves to a state where discrimination against women and the disenfranchised is being committed in the name of Islam.â€ The CII ruling â€œcontradicts the Islamic tradition of using scientific procedure to determine the truth or falsehood of rape accusations,â€ concludes Haider.
Anwar Mahmud Dabur in al-Qaraâ€™in wa Dawruha fi al-fiqh al-Jinaâ€™i al-Islami narrates the story of a woman who falsely accused another man of rape. She spread egg white on herself and her clothes and brought it as evidence to Caliph Umar ibn Khattab. The Caliph consulted another woman who confirmed the womanâ€™s clothing bore semen stains. The Caliph consulted Ali (subsequently the fourth Caliph), who immersed the stained cloth in boiling water that turned the stains into white solid, which smelled and looked like egg.
In another case, â€œThe Prophet himself (saw) is reported to have consulted an expert on face recognition to settle a paternity dispute (Sunan al-Dar Qutni).
Modern feminist theory considers rape to be a violent crime to be understood within the context of the power relationship between the rapist and the victim. A woman who is pressured into sex by an employer, or a prisoner who consents to sex with a prison guard, is considered blameless. The Quran similarly warns against raping slave women, and absolves the raped woman of sin.
â€œ… And do not, in order to gain some of the fleeting pleasures of this worldly life, coerce your slave women into whoredom if they are desirous of marriage, and if anyone should coerce them, then, verily, after they have been compelled (to submit in their helplessness), God will be much forgiving, a dispenser of grace (to them)â€ (24:33).
During the time of the Prophet (saw), punishment was inflicted on the rapist on the solitary testimony of the victim. Waâ€™il ibn Hujr reports of an incident when a woman was raped. Later, when some people came by, she identified and accused the man of raping her. They seized him and brought him to Allahâ€™s messenger, who said to the woman, â€œGo away, for Allah has forgiven you,â€ but of the man who had raped her, he said, â€œStone him to death.â€ (Tirmidhi and Abu Dawud).
During the time when Umar (raa) was the Khalifah, a woman accused his son Abu Shahmah of raping her; she brought the infant borne of this incident with her to the mosque and publicly spoke about what had happened. Umar (raa) asked his son who acknowledged committing the crime and was duly punished right there and then. There was no punishment given to the woman. (Rauf)
Uzma Mazhar writes in â€œRape & Incest: Islamic Perspective,â€ that traditional Islamic legal scholars interpret rape as a crime in the category of hiraba (violent crime). Rape and incest are not considered a subcategory of zina (fornication). Al-Dasuqi held that if a person forced a woman to have sex, his actions would be deemed as committing hiraba. Ibn â€˜Arabi held that â€œhiraba with the private partsâ€ is much worse than hiraba involving the taking of money, since anyone would rather be subjected to the latter than the former.
â€œEach 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 â€˜diyyaâ€™ (financial compensation for murder, akin to a wrongful death payment),â€ concludes Mazhar.
Holding rapists accountable for their crimes is a good start, but in the long run we must also look at the social conditions that lead to rape. In the west, free mixing of men and women is often viewed by Muslims as leading to fornication (consensual sex). However, the extreme cultural segregation of men and women in some Muslim countries can also be viewed as possibly leading to rape and incest, in the same way that priestly celibacy leads to pedophelia and homosexual perversions within the Catholic church.
Respectful and appropriate interaction rather than total avoidance of females should probably be encouraged before secret perversions develop, so that boys and men will more likely respect girls and women as equally valuable human beings.