Rape: Fallacies of the four witness requirement

Islam is completely logical in punishing rape. There is no requirement for four witnesses.

Aaishah Abubakr December 23, 2011
If you search the internet regarding the Islamic perspective on the issue of rape, unfortunately you will come across thousands of hate sites that are bent on criticising Islam. There are only a few forums that present the correct understanding of this much-exploited trauma-turned-melodrama.

Adultery and rape are crimes that have existed since time immemorial. In Pakistan, the Hudood laws were implemented in 1979 by the then dictator Ziaul Haq and termed Islamic Shariah Laws. That is when the problem began. According to the Hudood Ordinance, rape victims have to produce four male eye-witnesses to the crime. If they can't do so, they can be prosecuted for adultery - a crime that potentially has the punishment of death by stoning. Although the death penalty was never implemented, the prosecuted women were jailed and fined heavily. Hence, we have seen the unfortunate cases like those of Zafran Bibi, Safia Bibi and Mukhtaran Mai.

In today's world, who in their right mind would believe the claim of some ‘Islamists’ who insist that a rape victim requires four witnesses to prove the crime? It is unfortunate that they are bent on this false assertion and are unwilling to even listen to logical questions - debating and changing their stance is a far cry.

As for rape, most Islamic scholars in this country have made it a subcategory of zina (adultery) and have finished the distinction between adultery and rape, forgetting that rape is a hate crime - a form of severe torture/fitnah - not just a sex crime as most of us do believe or are made to believe. Islam is very clear in its stance on torture. It considers every single life sacred irrespective of gender, age or religion. (Quran 6:151, 17.33 & 5.32 ) Furthermore, there are some 150 verses in the Quran that assert that life is not just physical but encompasses our mental, emotional and spiritual aspects as well, thereby implying that crimes such as rape should not be trivially taken as mere physical trauma.

Like it does for all major forms of cruelty, Islam severely punishes rape and there is no concept of four witnesses to prove that one has been raped. Those who believe and say that Islam requires four witnesses to prove rape are misguided, lacing in their understanding and comprehension/firasah of Islam and forget that this very law is a form of oppression. No religion of God can have such an oppressive law. They equivocate the Quranic injunction of bringing four witnesses for adultery with the conditions of rape. In doing so, they coldly forget that asking a rape victim to bring four witnesses is inflicting further pain on her. Moreover, who in his right mind would stand and watch an act of rape take place, not stop the accuser and then appear before the court as a witness?

For adultery, if someone refutes a woman’s claim of innocence, the onus falls on that person to provide four witnesses. The woman can also deny the claim by taking a solemn oath and clearing her name in public. She does not need even one witness to prove that she has been raped. Nowhere in the entire Quran or the ahadith has it been mentioned that a rape victim requires four witnesses.

Islamic legal scholars interpret rape as a crime in the category of hiraba (highway robbery, terrorism or promoting terror). Hiraba does not require four witnesses to prove the offence; circumstantial evidence, medical data and expert testimony form the evidence used to prosecute such crimes. During the time of the Prophet (pbuh), punishment was inflicted on the rapist on the solitary evidence of the woman who was raped by the perpetrator. Wa'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 Allah's messenger, who said to the woman, "Go away, for Allâh has forgiven you," but of the man who had raped her, he said, "stone him to death." (Tirmidhi and Abu Dawud)

The Islamic response to rape is not just confined to criminal prosecution. Islamic jurisprudence also provides an avenue for civil redress for a rape survivor in its ‘law of jirah’ (wounds) whereby the state has to provide compensation to the victim. Hence, Islam is completely logical, clear and rational in dealing with rape and there is no place for claims like the requirement of four witnesses to prove the crime. We should enlighten ourselves and others around us on this issue to avoid ambiguities and false interpretations of such sensitive issue like religion.
Aaishah Abubakr A literature graduate from the Kinnaird College for women. She is also a freelancer, poet and social activist.
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