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HOW SHARIA LAW PUNISHES RAPED WOMEN

HOW SHARIA LAW PUNISHES RAPED WOMEN

 

Hasan Mahmud

Hasan.mahmud@hotmail.com

 

On October 30, 2008, the United Nations condemned the stoning to death of Aisha Duhulowa, a 13-year-old girl who had been gang-raped and then sentenced to death by a Sharia court for fornication (Zina). She was screaming and begging for mercy, but when some family members attempted to intervene, shots were fired by the Islamic militia and a baby was killed. This happens in Sharia courts of other countries also. The village Sharia courts in Bangladesh, although illegal, regularly punish raped minor girls and women by flogging and beating them with shoes.[i] In Pakistan similar cases of punishing raped women are Mina v. the State, Bibi v. the State and Bahadur v. the State.[i] In Pakistan similar cases of punishing raped women are Mina v. the State, Bibi v. the State and Bahadur v. the State.[ii] Sharia courts in Pakistan have punished many thousands of raped women by long term imprisonment.[iii] It became so chronic that raped women stopped reporting to police. 


There is a traceable dynamic in Sharia law about this barbarity. As we will shortly see, the laws are constructed in such a way that punishing raped women was almost inevitable. Problem is, rape was included in Hudud cases and any change in Hudud, let alone abandoning them is not allowed. Mawdudi, the founding father of modern Radical 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.[iv]  Another key element of all Hudood laws is that only eye-witnesses are acceptable and no circumstantial evidence can be accepted.[v]  Also, there are laws that virtually protect rapists just by monetary punishment, such as:-


* A rapist is obliged to pay the victim the amount typically received as marriage payment to similar brides.[vi]

* If the rapist cannot be punished for any reason he will pay the victim the amount equal to bride-money.[vii]

These laws do not warrant any other punishment, do not explain how and why a rapist “cannot be punished” and be available to pay compensation. Nor do they discuss the possibility of a rapist’s financial inability to pay.

 

The Quran does not mention rape. It severely prohibits Zina that means sexual relation between a man and woman not married to each other. It can be translated as “adultery” for married persons and “fornication” for the unmarried. Muslim jurists included rape under Zina because, even though forced on the victim, sexual relations “between a man and woman not married to each other” have taken place.

 

Death sentence of rapists came from 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”.[viii]  This Hadis is the base of the Sharia law: - The rapist will be punished to death if force on the victim is proven.[ix]

So far so good – but problem starts from here, about proof of rape. There are specific requirements of Sharia law about it.


(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”[x]

(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.”[xi]

(C)    “Punishment will take place when Zina or rape has been proved by witness.”[xii]

(D)    Sharia Law rejects the witness of women in Hudood cases.[xiii]

(E)    “The evidence of women is originally inadmissible on account of their weakness of understanding, want of memory and incapacity of governing.”[xiv]

So we see that it is virtually impossible to prove in a Sharia court that the victim has been raped because such “proofs” are almost impossible to obtain and because circumstantial evidence is not accepted. On the other hand, “sex outside marriage” is proven by the woman reporting rape or by physical scars, torn clothes or pregnancy. Then the laws of “Punishment for Sex Outside Marriage” are applied. Those are stoning to death for married victims and/or flogging and/or exile for the unmarried.[xv]

 

On the other hand, a rapist has simply to deny the crime and get away Scot free. As the New York Times reports: “Ms. Lawal, a divorced woman, identified a man as the father of her child. The man denied the charge, swore on the Koran, and was deemed innocent by the trial court. No one suggested DNA tests.”[xvi]

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.”[xvii] 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….”[xviii]

This is how Sharia Law punishes raped women. The sources of these laws span the period from the 7th century to recent times. The jurists missed the point that rape is a crime of its own kind. It has a devastating psychological and social impact on raped women. They are shamed to death, socially outcast, unsuitable for marriage, bring shame on the family and in some countries become the victims of honor killing. In Muslim countries many raped women commit suicide. There has never been a concerted and effective effort to end this barbarity. World Muslims must reject this barbarity or Islam itself will continue to be judged as barbaric.

 

The screams of little Aisha Duhulowa will echo around the world until this is done. 



[i] The Daily Star on 04 April 2006

[ii] “Rape Law in Islamic Societies” by Julie Norman, CSID 6th Annual Conference

[iii] Annual report of the US Commission on International Religious Freedom, May 2004 – Ref - National Commission on the Status of Women in Pakistan.

[iv] Islamic Law and Constitution - page 140.

[v] Codified Islamic Law Vol 2 page 600

[vi] Shafi'i Law Reliance of the Traveler -# m.8.10

[vii] Codified Islamic Law Vol 1 page 301  

[viii] Abu Dawood Book 38, Hadis# Number 4366

[ix] Codified Islami Law Volume 1 Law#134, Shafi’i law Reliance of the Traveler – o.7.3

[x] Pakistan Hudood Ordinance VII of 1979 amended by Ordinance XX of 1980

[xi] Codified Islami Law Volume 1 Law#133

[xii] Ibid Law #135

[xiii] 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

[xiv] The Penal Law of Islam – Kazi Publications Lahore- page 44 – 45

[xv] Hanafi Law Hedaya 178, Codified Islamic Law#129 Vol 1, Sunan Abu Dawood Book 38,4451& 4423


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