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HOW SHARIA LAW PUNISHES RAPED WOMEN Hasan Mahmud

  by: : Hasan Mahmud

On October 30, 2008, the United Nations condemned the stoning to death of Aisha Duhulow, 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]

You might think that such horrific barbarity cannot be the real Sharia law; that it is a misapplication of the law by ignorant clergy. Sadly, neither is true. 

There is a traceable dynamic in Sharia Law that is bound to lead to this barbarity. And unless we abandon these laws we will never be able to emerge from this barbarity. It was a blunder that Muslim jurists included rape in the Hudood section of Sharia Law that deals with murder, bodily harm, apostasy, drinking, defamation, theft, adultery and highway robbery. But anyone who tried to change these laws 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.

Another key element of these 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 these 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] 

As no other punishment is mentioned, the punishment of rape can be only financial compensation. These Laws do not explain how a rapist cannot be available for punishment but be available to pay the compensation. It also does not say what if the rapist is too poor to pay. 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. Many raped women commit suicide in Muslim countries. 

The Quranic word "Zina" means sexual relation between a man and woman not married to each other. It is called adultery for married persons and fornication for unmarried ones. The Quran severely prohibits Zina. Muslim jurists also included rape in the category of Zina because in rape cases such sexual relations "between a man and woman not married to each other," even though forced on the victim, have taken place. As rape is not mentioned in the Quran, 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.

When rape is caught or reported, "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. Then the Sharia laws are 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, a rape cannot be proved as rape in a Sharia court. Instead, "sex outside marriage" is proved for the woman by her complaint or physical scars or torn cloths or pregnancy etc. Then the law of "Punishment for Sex Outside Marriage" i.e. stoning to death for married adulterers and flogging and exile for unmarried adulterers are applied to the rape-victims. [15] On the other hand, a rapist has simply to deny the crime and go scott 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 Koran, 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 these laws are still alive and active 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 the UN's Children Fund, have 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 the violent soldiers of God. The solution can only been found by raising the awareness and opposition of the entire world, irrespective of religion. 

Muslims must reject this barbarity or risk Islam being seen as the criminal. 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=9900E0D9 153DF935A1575AC0 A9659C8B63
[17] http://www.bbc. co.uk/radio4/ womanshour/ 03_06_02/ thursday/ info1.shtml
[18] http://www.dawn. com/2005/ 05/21/top4. htm.