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The ordeal of proving rape

S Iftikhar Murshed

The Jamaat-e-Islami chief, Munawar Hasan, insisted during a recent television talk show that under Islamic law four witnesses were required to prove rape. When the host observed that this stringent evidentiary requirement made it impossible to convict a rapist, he stunned viewers by asserting that victims should not report the crime as it was important in Islam not to contaminate society by publicising such evils. Shorn of sophistry the implication is that rapists need not fear punishment. JI leader’s pronouncements must have sounded like music to their ears.

When questioned closely, Munawar Hasan retorted by accusing the talk show host of contradicting sacrosanct Islamic tenets and sternly advised him to re-enter the religion by reciting the kalima. Thus the befuddled anchor had been all but excommunicated for daring to oppose a questionable interpretation of Islamic law. The mischief is derived from the offence of Zina Ordinance incorporated in Ziaul Haq’s 1979 Hudood laws which places adultery, fornication, rape and abduction in the same category. Thus a rape victim is required to produce four witnesses, failing which her accusation becomes a confession of adultery thereby making her liable for punishment.

This is at complete variance with Islamic law under which it is the perpetrator of rape and not the victim that is punished. In a well-authenticated Tradition, a woman reported to the Prophet (PBUH) that she had been forced to commit adultery; he punished the perpetrator but not the woman. Similarly Caliph Umar ibn al-Khattab punished the rapist of a slave girl but did not prosecute her. These and other Traditions as well as the writings of Islamic legal scholars absolve rape victims of any transgression.

In Islamic jurisprudence rape is not categorised as a criminal offence under zina (adultery) but under the crime of hiraba which involves forcible taking, highway robbery, terrorism and waging war against the state. Scholars have demonstrated that it is in discussions of hiraba that the crime of rape appears. For example the Fiqh-us-Sunnah which summarises the main traditional schools of Islamic law, hiraba is defined 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.”

The classification of rape under hiraba is also confirmed by some of the most eminent scholars of Islamic law. According to the Maliki School, a person who “obstructs the road, even without the intention to take money, intending to harm someone, or intending to rape a woman” is liable for punishment under hiraba. This was elaborated by Ibn ‘Arabi (1165-1240) in his comments on an incident in which a group was attacked and a woman among them was raped. The question arose whether the crime was an offence under hiraba as weapons were not used and neither was any money taken. Ibn ‘Arabi’s terse response was “hiraba with the private parts” had occurred and this was infinitely worse than the mere taking of money.

Ibn Hazm (994-1064), the renowned Cordova-born theologian of Arab-Persian decent, who, as a follower of the Zahiri School of Law, believed that only the “explicit” and not the hidden meanings of the Qur’an were admissible. Despite this literalist predilection, he defined a hiraba offender as “One who puts 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 whether the attackers are one or many.”

These views of some of the most outstanding thinkers and scholars leave little doubt that in Islamic jurisprudence rape, which is a crime of violence, is an offence under hiraba and cannot be included as a sub-category of the Zina Ordinance. In a hiraba prosecution, the rapist and not the victim is the focus. The almost impossible condition of four witnesses is dispensed with and circumstantial evidence including those of forensic experts is admissible. The classification of rape as a zina offence with its stringent evidentiary requirements has resulted in the persecution instead of the protection of women. Thus criminals went free while the victims were punished.

In 1983 alone, 1,684 cases of zina were reported to the police, the following year the number increased to 1,842. The Pakistan National Commission on the Status of Women, which was established in 1999 as an advisory body for the eradication of laws discriminatory to women, reported that 80 percent of the female prisoners in 2003 had been convicted for alleged adultery after they had failed to prove allegations of rape. A human rights survey conducted in mid-2006 revealed that a staggering 200,000 Hudood-related cases were pending in the courts and this had resulted in the unjust detention of those awaiting sentence, mostly women. By early 2007 there were 6,500 imprisoned females in Pakistan.

These figures, like all statistics, are cold-blooded and do not depict what these victims of the law, particularly women, have undergone since the promulgation of the Hudood Ordinances. Rape victims have been violated while in police custody, they have been ostracised by their peers and in, a patriarchal society with its skewed code of honour, many have been killed by their own families.

In June 2006, the Council of Islamic Ideology, which is an advisory body with no power of enforcement, proposed that women detained under Hudood charges be released on bail. In a unanimous decision in April 2007 the Council ruled that a woman forced to have sexual intercourse should not be considered guilty of adultery but should, instead, be viewed as a victim of rape. The press note issued on the occasion stated: “In this case (rape), the woman will be a complainant and the state will be bound to investigate, arrest the rapist and punish him if the crime is proved.”

According to the late Justice Dorab Patel of the Supreme Court, rape, even in a civilised jurisprudence, is difficult to prove because it is usually un-witnessed. The burden of proof rests with the prosecution and, under the rule of prudence, courts cannot convict a person accused of rape on the exclusive testimony of the victim. Common sense is however abandoned under the Hudood laws because rape victims are prosecuted for adultery on the basis of two questionable assumptions. First, the allegation of rape was false because the accused was acquitted and second, the allegation is an admission of sexual intercourse and implies a confession of adultery. In other words the implied confession is an admission of guilt while an allegation of rape is a repudiation of guilt.

Justice Dorab Patel recalled: “The law declared on this question by the Supreme Court in Rehmani’s case (PLD 1978 SC 200) is clear beyond any doubt. We held in this case that only a statement which is a clear admission of guilt, or of the facts constituting the guilt, is a confession. We also pointed out that a statement cannot be treated as a confession by relying on the inculpatory part and excluding the exculpatory part.” The assumption that an unproven allegation of rape amounts to confession is, therefore, contrary to the law declared by the Supreme Court.

The application of laws that do not protect but persecute ordinary citizens can never generate justice. When such laws are wrongly presented as being divinely ordained they are immoral. These reasons warrant the repeal of the Hudood Ordinances only then will the shadow of fear in which Pakistani women live, dissipate.

The writer is the publisher of Criterion quarterly. Email: iftimurshed @gmail.com

Source: The News

Date:7/18/2011

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