Does A Woman Need Four Witnesses To Prove Rape?

VIOLENCE

Does A Woman Need Four Witnesses To Prove Rape?

It happens to be very unfortunate of us ‘the Muslims’ to have a very serious misconception of our own Sharia (Islamic laws & rulings). Not only the average Muslims but the Muslims who call themselves scholars of Islam are also party to spreading this misconception.

The question I am going to highlight today is: does a woman need 4 witnesses to prove rape?

The answer is very short and it is NO. Islam or Sharia does not require any woman to produce eye-witnesses in order to corroborate her statement that she was raped.

If a woman claims that she is a victim of rape and she does not have any witnesses to prove her claim, then, as per Islam and Sharia, her words solely will be taken as the truth and there will be no need of witnesses at all, moreover as she is a victim who was raped so she will be treated honorably, free of any charges or blames. As per Islam and Sharia there is no point or question of any punishment for her as she is the aggrieved party and victim.

Some noteworthy Islamic states, such as Saudi Arabia, still do have the same law applicable. It has been pointed out that the loose trial rules, as well as physical evidence, are not presented or declined due to the 4 witnesses rule of Sharia law. Women who cannot produce these many witnesses often end up in jail themselves for adultery – a crime against the state mostly punishable by stoning to death. Under such a caricature system, rape victims have less reason to accuse anyone as a rapist. So in states where this vague law of requiring 4 witnesses is still applicable, the issue pertaining to the production of four witnesses arises when a woman who is the victim of rape accuses some specific person or men raping her. In that case, there are only two ways an Islamic court of that relevant country can convict the rapist(s):

  1. The accused rapist confesses to his heinous crime; or
  2. She produces four witnesses to justify her claim that so and so person raped her.

If the accused(s) deny the accusation, then like any other suit the burden of proof shifts to the party that accuses or levies the charges. If she is unable to prove her claim then the court may press against her the charges of false accusation – that is called as kazaf in Islam.

From this we can get a general concept that under no circumstances a woman, who is the victim of rape and claiming of being so, can be accused, convicted or punished for fornication or adultery (zina). All she needs to do is just make a statement that ‘I have been raped’ and her words will be taken as the truth.

The issue of production of 4 witnesses – in case a rape victim has seen the rapists and she wants them to be punished – is of utmost importance.

Islamophobic propaganda has been around for so long and has spread so far that it has infected many minds. When our own scholars suggest that a victim must provide 4 witnesses to her rape or remain silent; when our governments establish and enact laws that further humiliate, victimize and torture rape survivors; when so-called experts on Islamic jurisprudence suggest that women are to blame when they suffer rape; where is the average Muslim woman supposed to go? How can she refute this evidence?

Can you imagine having faith in any religion that barbarically demands that a rape victim has to produce 4 male witnesses to her rape? In what circumstances would four men witness a rape and do nothing to stop it? And if indeed, such men exist, what kind of witnesses are they, and how can their word be taken as the truth? After all, they watched a woman being violated and tortured and did nothing to stop it. Could Islam possibly demand such a thing? Our hearts should tell us, no. Islam is not a system of oppression. It is not meant to be tormenting for the believer. Allah (SWT) is never unjust.

Now, let’s look at the verses of the Quran which mention the production of four witnesses:

“The adulterer and the adulteress — flog each one of them with a hundred stripes” - (An-Nur 24:3).

“…And those who calumniate chaste woman but brings not four witnesses — flog them eighty stripes and do not admit their evidence ever after” – (An-Nur 24:5).

In above-mentioned verses, it has been made very clear that the requirement of four witnesses arises to prove adultery and not rape, and not when the husband is being accused of unfaithfulness, but when the wife is being accused.

Now if the charge or accusation is right and true then they have to produce four witnesses to support their claim. If they fail then accusers shall be punished for falsely accusing a chaste woman. Moreover, their testimony shall not be accepted in any other case ever.

Even after the production of four witnesses, if a woman swears upon her own innocence then again her words shall be taken as true and she shall be considered innocent.

One popular Hadith mentioning rape was narrated by Wa’il ibn Hujr:

“When a woman went out in the time of the Prophet (PBUH) for prayer, a man attacked her and overpowered [raped] her. She shouted and he went off, and when a man came by, she said: ‘that [man] did such and such to me.’ and when a company of the emigrants came by, she said: ‘that man did such and such to me.’ they went and seized the man whom they thought had had intercourse with her and brought him to her. She said: ‘yes, this is he.’ Then they brought him to the Apostle of Allah (swt). When he [the Prophet (PBUH)] was about to pass sentence, the man who [actually] had assaulted her stood up and said: ‘Apostle of Allah, I am the man who did it to her.’ He [the prophet (PBUH)] said to her: ‘go away, for Allah (swt) has forgiven you [for mistakenly identifying the wrong man].’ But he told the man some good words [Abu Dawud said: meaning the man who was accidentally seized], and of the man who had had intercourse with her, he said: ‘Stone him to death.’ He also said: ‘He has repented to such an extent that if the people of Medina had repented similarly, it would have been accepted from them.” – 4366, SUNAN ABU-DAWUD

In above mentioned Hadith Prophet Muhammad (PBUH) didn’t even ask the female victim to produce four witnesses or to provide any other evidence for corroboration. Muhammad (PBUH) took her words as true. We assume that the sentence would have been the same as that given to the actual rapist once he confessed.

As per Hadith and Quran there are two major sexual crimes: first, adultery, which involves the consent of both parties, making both parties equally responsible for the sin. Second, rape, which is an act of non-consensual violence hence dealt with different legal proceedings and entails different punishments. Rape falls under the category of hiraba (terrorism and the promotion of terror) and is defined as any form of non-consensual sex, where the victim was coerced into the situation against her will. Many scholars will suggest that there should be some proof that the woman fought to escape, screamed for help, or was incapacitated. However, this is arguably untrue, as many forms of coercion do not involve violence or struggle.

It’s About The Spirit of Law, Not The Law Itself

We are becoming stereotypes in the application and continuation of punishment from old times without giving due consideration to the spirit of laws, which means that it is ‘the spirit of laws’ that needs to be kept alive rather than old, vague punishments. Production of 4 witnesses refers to close scrutiny so that an innocent may not get punished. Living in a time of technology, where, on the accusation or identifying of the rapist by rape victims can be proved merely via medical tests, still urging the production of 4 victims is lame. Here replacing the 4 witnesses rule with medical tests and legal investigation would not harm the Islamic spirit of close scrutiny to avoid punishment of the innocent. So the production of 4 witnesses in rape cases is vague and not applicable in today’s age of technology. Had technology been the same 1400 years ago, this requirement of 4 witnesses surely wouldn’t have been in practice.

Criminal prosecution of rape, in today’s Islamic courts, would involve circumstantial evidence, medical reports and expert testimony. Islam is clear in its treatment of rape and rapists and takes the crime very seriously.

Unfortunately, there are Muslim scholars and governments that will continue to punish women who have suffered rape and continue to justify the punishment in the name of Islam. To change things, it is important to take the first step to educate yourself and those around you. Do not allow any Muslim to harbor false or harmful misconceptions.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which she might be associated.

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Zarmina Siraj Ul Haq

The writer is a professional researcher and an independent legal consultant, practising in the areas of business and corporate law since 2012. She has also served as a legal researcher and project manager in a UK based company. She has been writing through different platforms since 2009, including Management Paradise, Academia.edu and Google Blogger.



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9 Comments

  1. Adeel Hasan said:

    I thought this article would be relevant: http://en.islamtoday.net/artshow-387-3403.htm

    Rape Does Not Go Unpunished in the Absence of 4 Witnesses
    Research Committee of IslamToday under the supervision of Sheikh `Abd al-Wahhâb al-Turayrî
    Thu, 07/10/2008
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    “”
    There is a lot of misunderstanding about how the crime of rape is established within an Islamic judicial system. Many people are of the false opinion that four witnesses must see the act of rape in order for a conviction to hold in the courts. They are understandably appalled by the idea that a woman who cannot produce four witnesses to the crime will be unable to bring justice to bear on her attacker. Nothing could be further from the truth.

    It is true that the prescribed punishment (hadd) for fornication requires four witnesses in order for that specific punishment to be a sacred duty for the Muslim courts to carry out. However, what it means is that, in the absence of four witnesses, the judge will prescribe a punishment for the perpetrator according to his discretion or according to the country’s penal code. He will not be obliged to prescribe the specific prescribed punishment for fornication. In any case, rape is a far more serious matter than fornication and deserves a more severe punishment.

    It is important to clarify a common misconception that many people have about the judicial system in a state that operates within the parameters of Islamic Law. It is commonly assumed that every decision and every criminal sentencing in an Islamic country is derived directly from Islamic religious teachings and from sacred law. This is not the case at all.

    A court operating under Islamic Law will be obliged to carry out Islamic legal injunctions in the few instances where those injunctions are relevant. Otherwise, the judicial decisions of the court will be based upon the court’s application and interpretation of the country’s statutory law and on the discretion of the judge, as it is with purely secular legal systems.

    In Islam, there are a handful of crimes that are addresses by the sacred texts and are given prescribed punishments (hudûd in Arabic). The same texts determine the evidentiary burden that is required to establish guilt. When this evidence is established, it becomes the religious duty of the courts to carry out the sentence. There are only a few crimes of this nature. Even with these crimes, if the burden of evidence is not met for the prescribed punishment to be carried out, then it will not be obligatory upon the courts to carry out that specific prescribed punishment.

    Instead, the matter reverts to the discretion of the court. It becomes, like any other crime, a matter for the court to decide on its own authority or for the country’s legal system to determine through statutory legislation. The discretionary punishment (ta`zîr in Arabic) might be a protracted prison sentence, or even the death penalty.

    We can see an example of this in the law that the Muslim scholars in Saudi Arabia have approved of, where the death penalty is decreed by statute for drug smugglers who bring large quantities of drugs into the country. No punishment for drug smuggling is mentioned in the Qur’ân and Sunnah. This is a discretionary punishment set by statute.

    The courts and the civil law codes can also determine the evidentiary burden needed for a conviction. This may include circumstantial evidence, any number of male or female witnesses, DNA evidence, and so forth.

    The vast majority of civil and criminal cases heard by the courts in an Islamic country will not be decided on the basis of scriptural teachings. In the vast majority of criminal cases, the definition of crimes will be determined by the country’s statutory laws, which are developed through the country’s legislative process. Likewise, sentencing will either be dictated by statute or passed according the judge’s discretion. This is very similar to the situation in the judicial systems of secular countries.

    In the secular courts of the West and other parts of the world, they do not have any such thing as divinely prescribed punishments. All punishments are determined by the discretion of the courts or by the country’s statutory penal law. Still, rapists are punished for their crimes. The same can be said for the courts in an Islamic legal system. The matter reverts to the discretion of the courts in the absence of the specific evidence required for carrying out the prescribed punishment.

    And Allah knows best.

  2. Asad Sami Butt said:

    Dear Zarmina,

    You have addressed one of the essential debates recurred specifically in legal history of Pakistan. I congratulate you on this well-written piece of writing for bringing awareness of the concept among people.
    Hope you to see more from you on related topics.
    Good Luck!

    Regards,
    Asad Sami Butt

    • Zarmina said:

      Thank You Asad,I appreciate and i hope this endeavour may help us to encounter the khawarijs and western propaganda on this specific issue.Islam is Alhamdolillah a complete code,Sadly we the Muslims aren’t.

  3. Bilal Farooq Alvi said:

    Dear Zarmina
    I have read your article, i feel that you have mixed up certain terminologies like
    a) Fornication: Sexual course between unmarried people with free consent, (In fornication four witnesses are required for the enforcement of Hadd i.e. 100 stripes to each)
    b) Adultery: Sexual sin of married people with someone other than spouse( Stoning to death)
    c) Rape: Sexual intercourse without consent, which is known as Zina- Bil- Jabar in Islam. For rape there is no requirement of four witnesses. This is a subject of Tazir and Siyasah. State is free to legislate whatever they desires.Even on the basis of circumstantial evidence state can award death penalty to rapist.

    • Zarmina said:

      Dear Bilal,
      Thanks for reading,The article is aimed to encounter the western propaganda regarding 4 witness requirement in rape cases.Moreover, this misconception still exists among many Muslims around the globe.Unfortunately,there are few Islamic states where such laws are applicable in the name of Shariah,which is causing the western world to propagate the issue hence causing confusion among Muslim laymen at large.This is just an endeavour to end the misconception.In Old times, people established some rules and punishments by themselves & rape victims are ending up in jails in Islamic states like KSA.So a true image of Islam needs to be projected before all those who are habitual in relying on word of mouth instead of researching and reading through.This is an answer to West propaganda & an effort to educate those who are with misconception.

  4. Mirza Imran said:

    I have been performing my duties in sessions court of the country and I found nothing extra to appreciate the effort of writer about the subject. Facts mentioned in the article are already known to our courts community and further that this article is not addressed to Pakistan

    • Zarmina said:

      Right You are Imran,this article is not addressing Pakistan, but is to educate Muslim Layman and to end misconception that so-called Mulla’s has propagated by confusing ‘4 witness requirement by Islam in adultery’ with Rape.We the legal professional are aware of the subject but general masses are not.

  5. Sheraz Muzaffar said:

    Dear Zarmeena, There are a few in every nation who is like a light,The light through the people change their lives to the right path and to the right directions n I appericiate your gouargous effort’s please keep it up . Regards sheraz Muzaffar,Procurement Officer Merf (Medical Emergency Resilience Foundation)

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