Is the victim of rape punished, according to shari’ah, if 4 witnesses cannot be produced? Can the rapist roam free if 4 witnesses can’t be produce?
There are a few misconceptions regarding this topic, so the explanations will be split under the following headings:
Where is rape mentioned in the Quran?
What is Hadd, and what are the criteria for Hadd to be enforced for rape?
Why 4 witnesses? Wouldn’t those 4 try to stop the rapist?
Is the rapist free of charge if 4 witnesses cannot be produced?
Is the victim of rape punished, according to shari’ah, if 4 witnesses cannot be produced?
What if the alleged victim lied, and in fact consented to intercourse?
Where is rape mentioned in the Quran?
Mufti Muhammad Taqi Usmani writes the following in his “AMENDMENT IN HUDOOD LAWS, The Protection of Women’s Rights Bill” with regards to the mention of rape in the Quran:
“In Āyah 2 of Surah: 24, Al-Nūr, the Book of God says:
الزانیۃ والزانی فاجلدوا کل واحد منھما مائۃ جلدۃ
(Those who fornicate whether female or male flog each one of them with a hundred lashes).
The word Zina used in this Āyah is absolute in its meaning and includes both Zina bil-Jabr, or Rape, as well as Zina bil-Ridha, or Fornication by mutual consent. In fact, the common sense demands that if the Quranic punishment of Hadd is applicable in case of Fornication, it must also be awarded rather in a more severe manner, in case of Rape, which is a much more heinous crime.”
So zina mentioned here includes both rape and fornication.
What is Hadd, and what are the criteria for Hadd to be enforced for rape?
Hadd (plural: Hudood) literally means prevention/limit and is the punishment for a crime as prescribed by the Quran and sunnah. These laws are definite and unchangeable.
Rape is a very destructive crime, leaving the victim emotionally, psychologically and physically harmed. The victim is left dishonoured, feeling helpless, being afraid of such incidents from occuring again. Thus the Hadd punishment for rape is severe in order to successfully deter the incidence of this heinous crime, and to ensure that those guilty of it will not repeat the atrocity. The hadd punishment for a married person who commits rape is stoning to death; the hadd for an unmarried person who commits rape is a hundred lashes, and deportation. The punishment is lesser for an unmarried man – the wisdom in this being that he may have uncontrollable sexual urges without the possibility of fulfilling them, whereas the married man does have a means to relieve his sexual urges but chose to do this unlawfully at someone’s loss.
For Hadd to be enforced upon a rapist, there must be 4 witnesses, or the criminal must confess to the crime of rape.
Ibn ‘Abd al-Barr (may Allaah have mercy on him) said in Al-Istidhkaar, [7/146]:
The scholars are unanimously agreed that the rapist is to be subjected to the hadd punishment if there is clear evidence against him that he deserves the hadd punishment, or if he admits to that. Otherwise, he is to be punished (i.e., if there is no proof that the hadd punishment for zina may be carried out against him because he does not confess, and there are not four witnesses, then the judge may punish him and stipulate a punishment that will deter him and others like him). There is no punishment for the woman if it is true that he forced her and overpowered her, which may be proven by her screaming and shouting for help.
There is a difference of opinion amongst classical scholars whether a sadaaq is to be paid to the victim by the rapist, in addition to the Hadd. Sadaaq is a some of money to be paid to the woman, another word for which is mahr. There is, however, a subtle difference in the 2 terms as ‘sadaaq’ implies sincerity on the man’s behalf and is something that is to honour the woman – hence the use of this term in the current matter.
The Shafi’i scholars also enforce an additional payment to be made by the criminal to the victim if the victim was a virgin (and thus the hymen is no longer intact because of the criminal).
Why 4 witnesses? Wouldn’t those 4 try to stop the rapist?
The requirement of 4 witnesses lessens the chance of an erroneous conviction based on utruthful witness statements. The wisdom behind this being that if only one or two witnesses are produced, and they are lying/mistaken, the alleged criminal will be subjected to the Hadd punishment without being guilty – yet the woman may have given consent to intercourse, or may not have even been involved in intercourse with the alleged criminal.
Yes, it is hoped that if 4 witnesses were present during the crime that they would intervene. But they might have arrived too late to prevent the crime from being committed, or they may have tried to capture the criminal but not succeeded (as the criminal may have fled/fought back).
Is the rapist free of charge if 4 witnesses cannot be produced?
As explained by Mufti Muhammad Taqi Usmani:
“That was simply not possible under the Hudood Ordinance, because the condition of four witnesses, or the admission of the guilt by the accused himself, has been provided for those found guilty of Zina bil-Jabr liable for Hadd punishment. No such condition is, however, there for Zina bil-Jabr punishable by Ta’zeer under Section 10(3) of the same Ordinance. To prove the guilt even a single witness, plus medical examination and the report of the chemical examiner, would suffice under this Section to bring the male culprit to book and that is how most of those accused for Rape were always punished under Section 10(3). The victim (woman) was not punished at all.”
So the 4 witnesses are a requirement for the Hadd punishment to be enforced on the alleged criminal – not for any Ta’zeeri punishment (ie a penal law), which would be lesser than the hadd.
Is the victim of rape punished, according to shari’ah, if 4 witnesses cannot be produced?
The victim is not punished, unless it is clear that the victim has lied about being raped and was actually involved in illicit sex by choice.
Imam Maalik (may Allaah have mercy on him) said in his Muwatta, [2/734]:
“In our view the man who rapes a woman, whether she is a virgin or not, if she is a free woman he must pay a “dowry” like that of her peers, and if she is a slave he must pay whatever has been detracted from her value. The punishment is to be carried out on the rapist and there is no punishment for the woman who has been raped, whatever the case.”
Mufti Muhammad Taqi Usmani further says:
” The above Āyah also mentions the female who fornicates, but later on in the same Surah those women, who have forcibly been molested/raped have been exempted from the enforcement of Hadd. The Holy Qurān says:
ولا تکر ھوا فتیا تکم علی البغاء ان اردن تحصنا لتبتغو ا عرض الحیوۃ الدنیا و
من یکرھھن فان اللہ من بعد اکرٰھھن غفور رحیم۔
(And do not force your maids to prostitution for the sake of the benefits of worldly life when they desire chastity. And if anyone compels them to prostitution Allah is the Most Pardoning, the Most Merciful (Surah 24: Al-Nur, 33).
The above Āyah makes it absolutely clear that a woman who is a victim of forcible sexual act, or Rape, would not be punished, but the male, guilty of the crime, would face Hadd, or the punishment of one hundred lashes, as mentioned in Āyah 2 of Surah Al-Nūr above.
…
It has been narrated by Wāil bin Hujr that during the life time of Sayyidna Rasūl Allah a woman set out of her home to perform regular Prayer. A person forcibly got hold of her in the way and committed adultery. As she raised hue and cry, the man fled away. Later on, however, he admitted of his crime. On this the Holy Prophet (PBUH) enforced Hadd of Rajm on him, while the woman was awarded no punishment.
(Jāmie Imām Tirmizi, Kitāb Al-Hudood, Chapter 22, Hadith # 1453 & 1454).
…
A slave committed Rape with a slave woman. The Second Caliph Hadhrat Umar punished him with Hadd but spared the woman who was wronged without her consent.
(Sahīh Al-Bukharī, Kitāb Al-Ikrāh, Chapter 6).
…
Now, the question arises why so much pain has been taken to do away with the Hadd for Rape? The basic reason for this is the highly misleading propaganda against the Hudood Ordinance which a particular section of our society has indulged in since the promulgation of the Ordinance. According to this propaganda, a woman against whom the crime of Rape has been committed is allegedly required under the Hudood Ordinance to produce four witnesses in the Court to prove her charge against the perpetrator of the crime and in case of her failure she is herself to be held guilty and would be put behind the bar. An absolutely false and mischievous propaganda like that has been made tirelessly and with all impurity against the Ordinance…
…The factual position is that in my capacity first as the Judge of the Federal Shariah Court and then as a Member of the Supreme Court’s Shariah Appellate Bench, a position held for long seventeen years, I have been dealing with the cases and appeals lodged under the Hudood Ordinance. For such a long period of time I came across not a single case in which a woman victim of Zina bil-Jabr might have been convicted because of her failure to produce four witnesses in support of her complaint. That was simply not possible under the Hudood Ordinance, because the condition of four witnesses, or the admission of the guilt by the accused himself, has been provided for those found guilty of Zina bil-Jabr liable for Hadd punishment. No such condition is, however, there for Zina bil-Jabr punishable by Ta’zeer under Section 10(3) of the same Ordinance. To prove the guilt even a single witness, plus medical examination and the report of the chemical examiner, would suffice under this Section to bring the male culprit to book and that is how most of those accused for Rape were always punished under Section 10(3). The victim (woman) was not punished at all.
One wonders about the audacity of those spreading the lie that the female victims of Rape were punished under the Hudood Ordinance because of their failure to produce four witnesses! Would they please let us know under which Section of the Ordinance those victims were punished?
They couldn’t have even been punished under the ‘Qazf Law’, because its Section 3 (2) clearly states that a person approaching the law authorities with the complaint of Zina bil Jabr can not be punished under the ‘Qazf Law’ simply because he or she has failed to produce four witnesses in support of his/her petition. No court of law can be expected to be so irrational as to convict a petitioner on that account.
What if the alleged victim lied, and in fact consented to intercourse?
It is also stated by Mufti Muhammad Taqi Usmani that:
“Alternately, she can be convicted for the offence of Zina bil-Ridha, not due to her failure to produce four witnesses, but only because the court is convinced after examining the case and the available witnesses that she is guilty of falsely accusing someone of dishonouring her forcibly, while the crime has actually been committed by her consent.’ It is absolutely in keeping with the norms of justice and fairplay to punish a woman found guilty of falsely implicating a man for forcibly dishonouring her when it is established by the careful examination of the case that she was involved in Zina with her full consent. It has, however, been very rare even in such cases to punish the woman. In almost 99% of such cases, the court, though not fully convinced about the veracity of her claim about the use of force, has set her free giving her the benefit of doubt because of the lack of sufficient evidence justifying her conviction.”
Conclusion
Rape is an atrocious crime that is punished severely by Shari’ah (Islamic law). The Hadd punishment is enforced if there are 4 witnesses to the crime, or if the criminal confesses rape. If 4 witnesses cannot be produced, but the evidence clearly shows that the alleged criminal is guilty, a punishment (other than hadd) is prescribed nevertheless. The victim of rape is not punished under any circumstances, unless it is proved that the victim is lying to defame the alleged criminal and/or commited fornication with consent.
Acknowledgements (listed alphabetically)
Ankabout, ash92:), Ibn Fulaan, ThatMuslimGuy
Posted 11th September 2013 by IslamFAQ TSR