Burhan
Even these guys Isamic City who have similar views as yours admit that in many countries their sharia laws is based what I illustrated above that in cases of rape, 4 male witnesses are required or she will be charged with committing zina. But they differ from them and argue that Muslim women should be treated as "PROPERTY" and therefore, her folks compensated like UMAR did. Go ahead and spin it.
Rape and Hudood Ordinance
In February 2006 in a village in Bangladesh, a woman was sentenced 101 lashes for adultery. The primary evidence was that she became pregnant. The former husband of the woman, who supposedly was responsible for this woman's pregnancy, received a penalty of 10,000 Taka, as he was absconding. 1
In early 2005, a woman accused of adultery was stoned to death in Badakhshan, Afghanistan. 2 In 2002 Zafran Bibi in Pakistan was convicted of Zina (adultery) and sentenced to death by stoning, even though she claimed to have been a victim of repeated rape. 3 In 2001 Safiya Husaini, from the Northern Nigerian state Sokoto, claimed to be a victim of rape, was convicted for illicit sexual relationship and sentenced to death by stoning by a local Islamic court. 4
In all these cases, these women claimed that they were raped, but they ended up convicted under the Shari'ah/Hudood law for adultery. Some of these cases are well known and received worldwide attention. Had these been isolated cases, it would have been different. However, the overall statistics is more than disturbing.
In the case of Pakistan, "Of the 7,000 women in jail around the country awaiting trial, 88 percent are accused of crimes under Hudood, according to the Lawyers for Human Rights and Legal Aid. Ninety percent of these women have no lawyer, and 50 percent do not know they are entitled to contact one. Most women accused of Hudood violations are acquitted, but lose an average of five years to confinement, and lose their reputations as well." 5 Under the new Hudood law, the incentive for any woman to report any rape is gone. "Hudood has also unwittingly become a major factor in rape cases. Many rape victims refuse to file charges,
because under Islamic law, four male Muslim witnesses are required to prove charges of rape. Women who cannot produce this many witnesses often end up in jail themselves for adultery, a crime against the state punishable by stoning to death." 5 Under such a caricature system, rape victims have less reason to accuse anyone as a rapist.
This is a travesty of Islam, even though Islam is essentially "gender-egalitarian." [Quraishi, p. 288] In this paper, we examine the problems with these Hudood laws that put women in a serious double jeopardy. Before proceeding further, let me point out that the following is an important premise in my approach to dealing with any contemporary Islamic issues. The essential source of Islamic guidance is the Qur'an and the Sunnah. We are to be respectful of and we must take into consideration the opinions of our pious and capable ancestors and their valuable contributions. However, we are not to imitate or follow them verbatim, if in conscientiously understanding, interpreting or practicing Islam in contemporary times we need fresh thoughts and solutions.
The problem
In 1979, under the military rule of late Gen. Ziaul Huq, the Pakistani government decided to implement Shari'ah, a very misunderstood, misinterpreted and misapplied concept. Hudood is plural of Hadd, a few boundary limits for the lawful and unlawful from God. The hadd punishments are specific, fixed penalties laid down by Allah for specified transgressions or crimes. As part of that, a comprehensive Hudood ordinance was enacted, which included The Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979. Zina (adultery/fornication) is prohibited in the Qur'an and it is a punishable offence. This ordinance defined zina a lot more liberally, where zina means adultery, fornication, prostitution and rape. Thus, rape became a type of zina, zina al-Jabr.
Notably, the classical Islamic jurisprudence treated rape as a special case of assault, not of zina. "Using ... examples of Umar as sources, the Islamic legal schools began recommending payment of compensation in rape cases and dealing with rape as a violation of property, or ightisab (from the root ghasb, or usurpation), of what belonged to another." [Sonbol, p. 311] Unless it is treated as violation of the property of the victim, this approach has some faults as at some levels of jurisprudence, women are reduced to property and that must be avoided and rejected. Notwithstanding that shortcoming, there is at least potential to further develop this approach without the "property" angle. However, by including rape under zina, for all practical purpose, it undermines the special dimensions of this crime. One related, pivotal problem is the the witness requirement.
Anyone accused of rape is considered to have been involved in zina (adultery/fornication). The accuser (victim) must then produce four credible male witnesses to give testimony against the accused that he has raped the accuser. If the accuser fails to meet the witness requirement, then the accuser, usually a female, is by default charged of zina and, if convicted, given the punishment prescribed under the Hudood law. If the female does not bring up the accusation of rape, then the woman is by default charged with zina.
Un-consenting sexual intercourse is termed zina-bil-jabr, and carries a tazir penalty for the perpetrator of 25 years in prison and 30 lashes; there is also a more severe hadd punishment, but, as noted, this has never been carried out. However these penalties offer little protection to women since, in practice, a woman who has been raped and makes an accusation of zina-bil-jabr is laying herself open to accusations of adultery, and thus to conviction for zina. [Marcus, p. 9]
Many women who, once accused of zina, have claimed to have been rape victims, were charged and imprisoned under this Hudood law, as they failed to produce the supporting witnesses. Thousands of women have been languishing in prisons of Pakistan under this Hudood law. A society that presumably wants to implement such laws for protection of morality and decency seems to be oblivious to the fact that these raped victims are further sexually victimized in prisons by police. 6
Also, pregnancy without marriage (or a counter-charge of rape) is recognized as a basis for prosecution for zina. It is not difficult to contemplate that a woman can become pregnant due to rape, and even so, it may not be easy in a male-dominated society to bring the charge of rape against the rapist. There is no direct basis from the Qur'an or the Prophet to treat pregnancy of unmarried women as a prima facie evidence of zina. There are some prominent companions who have held it as prima facie evidence, but that's their opinions. Neither there is any unanimity on this among the Companions of the Prophet, nor any basis of it from the Qur'an or the Prophet is given. The subsequent generations of scholars and jurists have widely differed on this. [Quraishi, p.300] Any such provision without direct sanction from the Qur'an or the Prophet can't and shouldn't be given too high a status, where the social conditions may prevent a woman becoming pregnant due to rape from bringing up the rape charge.
Zina vs. Zina bil Jabr: Treating rape as a subcategory of adultery
Zina relates to adultery or fornication - any extramarital sex - and is prohibited in Islam. However, an essential aspect of zina is that it is consensual. Rape, thus, can't be classified under zina. The term zina bil Jabr is oxymoronic, because literally translated, it means "consensual extramarital sex by force". Had it been only a matter of oxymoronic expression or semantic, it wouldn't have been of great significance. However, because it has serious legal implications and has impacted the lives of many women, this matter can't be taken lightly.
A major problem with the orthodox Islamic law, as exemplified in the Hudood Ordinance of Pakistan, is approaching rape as zina bil Jabr. Because zina is legally prohibited and regarded as morally one of the most reprehensible acts, the very charge of zina bil Jabr casts a negative spotlight on the accused. A rape victim, already a victim, is further traumatized and stigmatized by such label that is regarded by the society as reprehensible. This label is an obstacle to seeing and treating a raped victim, as a victim, and victim only. Instead, the very charge is under a presumption that the victim along with the rapist have been involved in a morally reprehensible act.
Thousands of women, who have claimed to be rape-victims, are now languishing in jail or have their lives ruined even after being acquitted, due to trying them under zina bil Jabr of Hudood Laws. [Jahangir and Jilani, chapters III-IV] "No distinction has been made between Zina and Zina Bil Jabr (rape), resulting in it becoming an instrument of exploitation and oppression." [Niaz, 2001]
While Islam places very high value on morality and decency, and thus there is harsh punishment for promiscuity, the entire issue is also subject to Islam's essential commitment to justice, with a special focus on protecting the weak and the vulnerable. When this commitment is undermined, Islam itself is undermined, contrary to the examples from the Prophet Muhammad.
While punishment for sex outside of marriage may still seem harsh to some in the context of contemporary Western society, the important point to note for the sake of this study is that the Prophet did in fact differentiate between consensual and nonconsensual actions and punished individuals accordingly. This fact underscores the Prophet's commitment to justice and to women's dignity and honor. [Norman, p.2]
Well, it is to be acknowledged that Rape is one of those crimes that is most difficult to prove in any society and thus extra considerations must be there to protect the accused who might be innocent and to get justice for the accuser who may have been a rape victim. [Jahangir and Jilani, p. 13; Asma Jahangir's The Hudood Ordinances: A Divine Sanction is probably the first and only systematic study of Hudood Ordinances and a must reading.] Yet, how is it possible that Shari'ah or Hudood laws that are purportedly based on Islam's explicit pursuit of justice and protection of the weak and wronged end up either against the wronged or exacerbating the problem? A major part of the problem is that people often don't know about the problem in depth and the scholars (especially religious scholars) rarely undertake any systematic, research-oriented study before or after they pronounce fatwas or enact laws.
Interestingly, all these groups are looking at the Hudood Ordinances more in the light of what they think they are, than what they actually are. Most participants in the debate have not made an attempt at a serious and systematic study of these laws. They have largely gone by impressions and their own biases. [Jahangir and Jilani, p. 21]
First, the Qur'anic commandment regarding zina and its punishment makes two things abundantly clear. (a) Islam treats very sternly adultery/fornication or any sexual relationship outside what is permissible. However, this is not based on the vigilance of an watchful and intrusive role of the government. (b) The threshold of witness requirement makes any conviction virtually impossible. Anyone, including the public authority, accusing someone (male or female) of adultery has to produce four, credible and pious eyewitnesses, who have seen at least the penetration. Such high and strict evidentiary requirement for conviction for adultery/fornication can hardly ever be expected to be fulfilled in a Muslim society. That's why the cases of punishment for adultery during the time of the Prophet was generally based on voluntary confession by someone, who, due to fear of God, wanted to have the punishment of his or her sins in this world, in lieu of any punishment in the life hereafter.
Yes, the punishment for adultery/fornication in Islam is harsh, but the threshold for conviction is so high that it is expected to be virtually non-existent. That, in contemporary times, there are easy accusation and conviction, especially of so many women under the Hudood Ordinance in Pakistan and where raped victims frequently end up in jail, is simply inconsistent with the purpose of the Qur'anic commandment in this regard.
Secondly, women's witnesses are not recognized and admitted. "At least four Muslim adult male witnesses, about whom the Court is satisfied, having regard to the requirements of tazkiyah al-shuhood [credibility of witnesses], that they are truthful persons and abstain from major sins (kaba'ir), give evidence as eye-witnesses of the act of penetration necessary to the offence." [Quraishi, p. 290]
Inadmissibility of women's witnesses is a pathetic subversion of laws and codes in the name of Islam. Except the arguable exception of women's witness in case of business-related matters, women's witness needs to be recognized at par with men. Even the exception is moot in modern context, where women are successfully and competitively assuming positions of responsibility at all levels of society, there is no reason why in all respects witness of men and women should not be put on equal footing. Notably, even if one wants to argue about the exception, where the orthodox Islamic law allows qualified women to assume positions of judge, it is ludicrous and utterly unacceptable that women's witness should be rendered inadmissible even where they themselves are victims, or where their lives are affected.
Read the rest on;
http://www.islamicity.org/3012/perversions-of-justice-in-the-name-of-islam/
And my profile pic has Qulhuwallahu Axad. Am Spreading some Towhid love while I game PS4.
