Not death but deterrence

We should begin to deter criminals and this can only take place by insisting on punishment and not death.

There are two cases in which tempers have run high recently: that of the Council of Islamic Ideology’s rejection of DNA tests as evidence for rape and that of General Musharraf being tried under Article 6 of the Constitution. Both crimes carry a maximum sentence of death and there the similarity ends. But this similarity provides us with arguments for providing for deterrence, which is the theme of this article.

Let us first take the crime of rape. This is probably the only crime, which carries perpetual punishment for the victim in our society. One has to read Manto’s short stories to understand the trauma of this violation of the female body. But the most shocking thing about this crime is that it often goes unreported because of the culture of shame and family honour in South Asia. So, women go for painful abortion to remove evidence and are rejected by their own families. So, this is not a crime which ends with the event; it goes on and on etched not only in memory but also in the social memories of unforgiving others. And if you do not believe me, ask a young woman how she feels about going to the thanedar to report rape. But the problem is that most of our ulema do not differentiate between rape, consensual fornication and adultery. There are horror stories of a blind woman, raped by her employer, getting pregnant and the court handing out the punishment of death by stoning because she could never prove whether the sex was rape or consensual. Then there is the story of the 13-year-old Aisha Duhulowa from Somalia, who was gang-raped but, not having four adult male witnesses to prove it, had to die. Some of the prominent ulema do not help much when they say that women who are raped display their beauty to tease men (the Australian Sheikh Feiz) or that the woman should be of “good conduct’ (Sheikh Yusuf al Qaradawi). This implies that men have no social responsibility or self-control at all and also that the police are so bad that it does not deter men from the crime of rape. The latter, unfortunately, is true. And that is exactly why we need strict laws and easy implementation of them to deter would-be rapists.

It seems to me, though I claim no specialist knowledge of Islamic law, that the law for rape is not the same as it is for consensual fornication. Some of the medieval jurists claim that rape is like dacoity so different laws are needed for it but I lack the knowledge to go into that here. There is a Quranic verse (24:4) saying “those who accuse free women then do not bring four witnesses” should be punished themselves. But let us remember the context at that time. The verse, in essence, says that women should not be accused of offences of this kind without proof. Admittedly, the proof is almost impossible to attain, i.e., having four adult Muslim male witnesses, who have actually witnessed the penetration. But to my mind, this is meant to save people from being punished for consensual fornication since such kind of evidence is not possible. There is another prophetic tradition of a woman having confessed to adultery herself but even then the Holy Prophet (pbuh) was reluctant to take notice so she had to repeat herself thrice. Jesus Christ, too, asked rhetorically as to who should cast the first stone on the adulteress. So, the idea seems to be not to look too closely into discreet consensual sexual matters and, indeed, to deter nosey parkers. As for rape, I am aware of one example and that is a hadith attributed to Wa’ il ibn Hajr, who testified that the Holy Prophet (pbuh) had ordered stoning to death for a man who had attacked a woman and raped her when she had gone to say her prayers. This was done only on the testimony of the victim herself with no demand for four male witnesses. However, since I am not a scholar on Islam, it is possible that my interpretation is wrong and the ulema, who throng the TV talk shows are right when they claim that nothing — no circumstantial evidence, no DNA test, no evidence of the victim or other women — is admissible in giving the death punishment to rapists. But the death punishment is called Hadd (extreme), which the ulema do not support. Even they support the tazeer (lower) punishments. For these, the DNA tests and circumstantial evidence is enough. And the punishment for this, according to Section 376 of the Pakistan Penal Code is “imprisonment for a term not less than 10 years or more than 25 years”. So, why not emphasise upon this and create the kind of culture which will deter would-be rapists.

And now for the forcible military takeover of the country for which Ayub Khan, Yahya Khan, Ziaul Haq remained unpunished. Article 6 does specify death but the courts could give a lower punishment — maybe imprisonment of some years and fine — to General Musharraf. Death punishments are problematic anyway and the world is doing away with them. In Musharraf’s case, I do not support death though I do support some lower punishment. If he is left unpunished, we will give the message that military adventurism will never be punished in Pakistan. In my view, it should be punished though it is not necessary to punish many people. This time, we should begin with Musharraf and, for pragmatic reasons, declare amnesty for others. And let us hope we do not have another time at all. We should begin to deter criminals whether they violate the body (rape) or the country (martial rule) and this can only take place by not asking for death but insisting on punishment — to deter not to kill!

Published in The Express Tribune, July 8^th, 2013.

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