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 Does Proving Rape in Islam Require 4 Witnesses?

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PostSubject: Does Proving Rape in Islam Require 4 Witnesses?   Sat Mar 23, 2013 6:41 pm


This appalling issue of punishing raped women who fail to produce 4 witnesses to prove rape is common as far as I heard in countries like Pakistan.

Nothing in the Shariah says that proving rape needs 4 witnesses. This is appalling and nonsensical. It is in fact against a hadith in which a woman was raped by someone and went to the Prophet, pbuh, and he did NOT ask for witnesses. He ordered that the man whom she identified as the perpetrator to be brought to be punished immediately. Not only this, it turned out she identified a mistaken one and the Prophet, pbuh, rather than punishing her for false reporting forgave her and applied the hadd to the man who admitted doing the crime instead.

Narrated Wa'il ibn Hujr: When a woman went out in the time of the Prophet (peace_be_upon_him) 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 (peace_be_upon_him). When he (the Prophet) 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) said to her: Go away, for Allah has forgiven you. But he told the man some good words (AbuDawud said: meaning the man who was 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. [No. 4366, 'Prescribed Punishments (Kitab Al-Hudud)' of Sunan Abu-Dawud.]


Rape Does Not Go Unpunished in the Absence of 4 Witnesses

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.

http://en.islamtoday.net/artshow-387-3403.htm
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Question

Everywhere in the internet it is stated that under Shariah law a verdict of guilty of rape can only be given if four upright male adult Muslim witnesses testify to having witnessed penetration.

In this manner, it seems well nigh impossible for a rapist to be convicted as rape crimes are hardly witnessed by anyone. No rapist will commit his crime in the presence of others!!

It is also mentioned in some reports that in a country like Pakistan about 5000 women were even jailed for failing to provide witnesses, so they -- the victims -- are punished instead of the rapists. This is unfair.

Is it true that to prove a rape in Islam four witnesses are needed or else the case is dismissed and the woman punished instead?

If this is wrong, how is it that this account is so widespread to the scandal of Islam? Why is it that refutations by our scholars at Al Azhar are not published to prove that this is not the case? Please clarify in details.

Jazakkum Allah khair.


Answer : Fatwa Council

This is a misunderstanding. A woman who has been raped may immediately report the rape to the authorities and she does not have to produce four witnesses. The authorities, in turn, must investigate the crime and search for the criminal. If the authorities fail to find the criminals, the woman is not charged with filing a false report.

What you mentioned in your question cannot be endorsed by any sane person, Muslim or otherwise. The report is considered false only if it determined through forensics that the accuser fabricated the allegation of rape.

It is not a condition to produce four witnesses. To establish rape, it is not a condition to produce four witnesses; the judge may arrive at a guilty verdict by depending on definitive evidences convicting a specific person even in the absence of witnesses.

Difference between charging someone with fornication and rape
To preserve man's honor and protect it against false accusations, the Shari'ah does not allow anyone to accuse another of fornication except with the testimony of four witnesses for fear of facilitating the administration of the legal penalties upon people without valid proof. If the claimant produces less than four witnesses or fails to produce any, his allegation is rejected and he is liable to receive the punishment for Qadhf [accusing another without proof] which consists of lashings administered to the his back. The reason behind such a punishment is due to the seriousness of the implication which may ruin families and dishonor people.

The Shari'ah aims to protect the community from the spread of immorality in the community and by doing so seeks to avoid administering the prescribed legal penalty upon anyone as long as the perpetrator does not disclose his sin. If four witnesses relate all the details of the incident and give an identical account, then in this case, fornication is considered to have been committed in public.

The issue of rape is different. To ensure security in society, the Shari'ah takes strict measures against any person who commits rape and affords the judge the right to establish the crime based on criminal evidence.

On the other hand, if rape involves kidnapping, then the punishment is the same as that of Hiraba [forcible assault], the punishment of which entails the death penalty. A judge, in this case, can convict the perpetrator without relying on witnesses and base his decision on the body of evidences, medical investigation, interrogations and the other various means of substantiating crimes.

And Allah knows best.

The Egyptian Fatwa House


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