Rape is a serious crime in almost every society and almost throughout the history … well, at least in modern history.
Religions like any other social system have not only tried to define Rape as a serious crime but Religion also tell us how to establish whether or not the Rape actually took place and once established then what kind of punishments should apply.
Islam takes pride on providing justice to the Rape Victims, lets see what is the process of securing justice for such women:
In a Sharia driven Islamic Republic, the process begins with one or women accusing one or more men for Rape Crime. Qazi (Islamic Judge) will then ask the woman to bring four witnesses, following are the requirements for these witnesses:
- They have to be Male (two women witnesses will be required for each man if male witnesses are not available)
- They will have good character (some but not scholars also put restriction that they have to be Muslims as well)
- They must be eye witnesses of the Rape crime and must have seen the Sexual Penetration themselves
Without going into too much details of Technical fine print of the interpretation of Sharia Law, we’ll try to explain what happens when the Woman is or isnt able to bring four witnesses as explained above:
If Four Witnesses are available:
The Accused person(s) will be punished as per the Laws defined under Islamic Hadd which is the law for most serious crimes such as:
- Apostasy from Islam
If Woman fails to provide Four Witnesses:
There are two things that can happen here. First is that the woman not only fails to provide four witnesses but also fails to provide other evidence as well such as medical related evidence. In that case the Woman will be convicted with charges of Adultery / Fornication or in simple words – Sex outside marriage. The normal punishment for this crime is 80 lashes in public.
The other possibility is that the woman fails to provide 4 witnesses but she is able to provide some other form of evidence such as DNA Testing. In this case, the woman will NOT by punished for Fornication and the Accused Person(s) will be punished by Qazi under the Tazir Law. Tazir crimes are less serious than the Had crimes found in the Quran. Some common law writers use the analogy of misdemeanors, which is the lesser of the two categories (felony and misdemeanor) of common law crimes:
Tazir crimes are acts which are punished because the offender disobeys God’s law and word. Tazir crimes can be punished if they harm the societal interest. Sharia Law places an emphasis on the societal or public interest.
The Difference between HADD and TAZIR Punishments:
The major differences between these two are:
- Hadd is applied for most serious crimes while Tazir is applied on relatively minor crimes
- The objective of Hadd is prevention of a crime by following the principle of retaliation and keeps everyone in the limits prescribed by Allah
- To object of Tazir is reformation and correction of the offender
- The procedure of trial in Hadd is complicated. The procedure of trail in Tazir is simple as according to same jurists judge can even render judgement on the basis of his own knowledge
- The penalty of Hadd cannot be commuted while the penalty of Tazir can be commuted
- Pardon cannot be granted in Hudud cases but the Qazi has right to Pardon the Rapist in Tazir cases
- In Hudud, the standard of evidence is very high as to the number and qualification of witnesses and the conditions under which hadd may be imposed and any doubt would be sufficient to prevent the imposition of hadd
- In Tazir, the standard of evidence is not so high
Problems with such complicated Law:
While the idea of 4 witnesses sounds quite nice its a kind of catch-22 situation. The witnesses have to have a good Character so that they can be trusted but the point to consider here is that what kind of Good Character was that perons(s) had that he was simply watching the Rape Crime instead of helping that poor woman ? Obviously he was quite close to the crime scene and thats how he was able to watch the Sexual Penetration.
Effects of 4 witnesses requirement:
Over the years, this law has had kind of negative impact on society as the Men have used this law for their benefit. They know that its virtually impossible for the woman to bring 4 male witnesses and that has kept the women quite when they are raped.