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In the Name of God بسم الله

Four Witnesses For Rape

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  • Veteran Member

Here is a short excerpt from an interview of a Sunni mullah about four witnesses needed to prove an incident of rape. The background is that Pakistan government enacted a law which would make possible to convict rapists on the basis of forensic and circumstantial evidence. The mullahs went all gaga. This excerpt is telling.

In the light of this, I would like to know what Shia jurisprudence has to say about this issue:

Anchor: Why did you vehemently oppose the women protection act?

Munawar Hasan: Women protection act was not aimed at protecting women instead it is meant to promote vulgarity and obscenity in the society.

Anchor: What is the basis of your allegations?

Munawar Hasan: On the basis of which we opposed the act.

Anchor: The fundamental purpose of the women protection act was (is) to provide women with the right to file cases on the basis of circumstantial and forensic evidence, making convictions of rape easier. Where is the obscenity in that?

Munawar Hasan: This bill has been part of law for years, how has that affected the rights of women in Pakistan? What is the one issue that can be pointed out as a success of this law?

Anchor: One blaringly obvious problem with the Hudood law was the need to present four witnesses in order to convict a rapist, failure to do so resulted in the arrest of the woman on charges of confession to adultery, that was the main issue.

Munawar Hasan: What is the problem in that?

Anchor: The problem is this sir, that according to the 2003 national commission status of women report 80 per cent women were forced to languish in jails because of inability to produce witnesses of their rape.

Munawar Hasan: The objective of Islam is to discourage such acts, no one can be shameless enough to commit such an act in the presence of four people. Making it impossible to prove such acts, therefore the whole idea is to discourage bringing such acts into public light. Discouraging it to the extent that the act is never quoted. If such a crime occurs and since there are no witnesses than both men and women are suppose to keep it under wraps and not discuss it in public.

Anchor: Sir, are you suggesting that a woman should stay silent after she is raped? That she should not report the crime?

Munawar Hasan: I am saying she should keep quite if she has no witnesses. If she has witnesses than she should present them.

Anchor: What kind of an argument is that? A woman is raped and she has to look for witnesses to prove the crime?

Munawar Hasan: Argue with the Quran and not me.

Anchor: I am not questioning the Quran, I am questioning your argument.

http://www.dawn.com/2011/07/08/your-rape-culture-is-not-my-religion.html

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  • Advanced Member

I thought 4 witnesses were needed to prove adultery, not rape?!

In Pakistan, (and other states), 4 witnesses is required in order for the maximum penalty (stoning) to be exacted. In Pakistan the jails contain thousands of people convicted of adultery. I see no reason why a similar situation couldn't apply to rape cases, with 4 witnesses justifying a maximum and brutal sentence, but less...erm...traditional evidence still being sufficient to result in a conviction. As with fals accusation of Zina, false accusation of rape should perhaps carry a severe sentence although fear of that shouldn't deter women from reporting rape so that's difficult. The whole issue is very difficult, but I think Pakistan is on on the right lines with it's reformist approach toward Sharia law, especially given the advances in forensic technology.

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i hope his mother, wife and daughters are all raped. see if he is so aghast at the thought of protecting women then.

Snap. I can't help but agree though that he needs to at least find a better argument. Which would be anything really.

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  • Banned

:o

You should never wish such a thing on anyone! Its not their fault.

astagfirullah i just realised the horrible thing i said, i didnt mean that at all.

i hope HE gets raped.

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i hope his mother, wife and daughters are all raped. see if he is so aghast at the thought of protecting women then.

I tell you, it won't a change thing for him.

His and ilk problem is their ideology which includes the type of Islam they subscribe to. Their only cure is for the masses to reject them in full. People like him should be stigmatized in the society in the same way as prostitutes and drug addicts are.

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I tell you, it won't a change thing for him.

His and ilk problem is their ideology which includes the type of Islam they subscribe to. Their only cure is for the masses to reject them in full. People like him should be stigmatized in the society in the same way as prostitutes and drug addicts are.

It probably won't change a thing, your right. They could either stigmatize him or just ostracize him, although I can't say which would have a more profound effect.

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today, we have advanced so much and acquired enough technology in order to distinguish between what is truth and falsehood then I find it absolutely bizarre why witnesses would be needed for issues such as rape. With all due respect, these mufti's have their head stuck in the sand and can't get out of their biased and illogical box they've enclosed themselves in. Pretty sad.

I just wanna ask, considering Iran is a Shia Islamic country, I really do hope they don't use the witness method for proving rape but instead use technology, right?

For those who say Quran talks about witnesses only so technology cannot be used, this is a baseless argument. You know why? Because the Quran talks about riding mules etc and today we use cars. Enough rational proof.

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  • Advanced Member

I have a few questions:

1) If a woman is raped, is she obligated (by Islam) to disclose this to the authorities?

2) If a woman is raped and the culprit is caught and the Islamic judge declares a punishment (e.g stoning), then if the woman decides to forgive the rapist, would the rapist be forgiven (on the request of the woman)?

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For those who say Quran talks about witnesses only so technology cannot be used, this is a baseless argument. You know why? Because the Quran talks about riding mules etc and today we use cars. Enough rational proof.

What kind of argument is this? Does the Quran say certain things can only be done by riding mules, and instead we use cars? No.

I also wonder if those who are so keen on using technology for proving rape would also be keen on using it to prove adultery, for example.

Anyway, it will be interesting to see the ahadith and fatawa on the subject, but in the meantime, here is something that was posted on another thread:

Kitab-al-Hadood Wa Tadheerat

by Ayatollah Syed Muhammad al-Hussaini al-Shirazi

Volume 1,

Chapter of Rape,

Topic No: 2-6., Pg. 70-79, 144

Most marjas agree that in order for rape to proven, there have to be 4 witnesses (and there is a whole chapter on who exactly is a witness). If no witnesses are there, the man has to confess 4 times. But if a woman accuses a man of raping her and the man denies this completely, and there are no witnesses either, then the Islamic jurist cannot accept the woman's claim. Infact, if she brings 3 witnesses but not the fourth one, then the testimony of the 3 witnesses would not only be rejected, instead they would be punished (e.g., lashed) for falsely blaming a man for rape without having adequate proof. You can write to your own marjas and inquire about the criteria that have to be met before a rapist can be punsihed. I'm sure none of them will say that any man can be put to death simply because some woman accused him of raping her.

By the way, there are several incidents from the life of our Imams (as) where people came to them and confessed to zina. The Imams did not punish them straight away. Instead, they tried their best to avoid punishing the sinner and told them to return to their home. But when they confessed their sin 4 times, the Imams said that now there was no choice left except to punish the culprits.

----- Original Message -----

From: Hajar

To: istiftaa@wilayah.org

Sent: Sunday, May 18, 2003 8:47 AM

Subject: Question

Salaam Alaikum,

I have a question regarding rape. If a man rapes a women, is it necessary to have 4 witnesses in order to prosecute the man?

WaSalaam, Hajar

Salamun `alaykum wa Rahmatullahi wa Barakatuhu.

The answer is as follows:

Bismihi Ta`ala

To establish the had (the punishment) on the man, there should be his confess or the testimony of four men (the details of which are mentioned in Ar-risaal al-`amaliyyah).

With prayers for your success,

wassalam.

-----ÇáÑÓÇáÉ ÇáÃÕáíÉ-----

ãä: Hajar [mailto:hajar@shaw.ca]

ÊÇÑíÎ ÇáÅÑÓÇá: 18 May 2003 06:17

Åáì: Imam Ali (a.s.) Foundation

ÇáãæÖæÚ: Question

Salaam Alaikum,

I have a question regarding rape. If a man rapes a women, is it necessary to have 4 witnesses in order to prosecute the man?

ÈÓãå ÊÚÇáì

Asslamu Alaykum

If he admits that he did rape her then there is no need for the (4) witnesses otherwise it is necessary to have 4 witnesses.

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  • Advanced Member

I just don't understand where these sorts of people get their understanding. I never see evidence of any systematic, ordered thinking.

I never see any evidence to support this notion of needing witnesses to prove rape, let alone the further notion of punishing the alleged victim if this standard is not met. It's mixing up things with the requirements for the qualitatively completely different case of proving mutually consensual illicit sex - adultery / fornication.

The notion of encouraging the keeping of things under the radar makes sense in the context of consensual offenses, but not in the case of a forced crime of one person against another.

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so men can rape all they want and they cant get charged according to Islamic law? Out of 100 cases of rape , how many do you honestly think will have 4 witnesses seeing the actual act?

Edited by Fink
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  • Veteran Member

so men can rape all they want and they cant get charged according to Islamic law? Out of 100 cases of rape , how many do you honestly think will have 4 witnesses seeing the actual act?

Less than one.

Maybe rape is not very punishable in our mortal life. Women need to keep safe and travel with mahram(s). Maybe 4 maharams just in case!

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Haidar Husayn,

Just saw your post, as it came in while I was writing my last one.

A few comments.

The question about whether we would want to use technology to prove adultery rests on a bad analogy of comparing a consensual offense against God to a non-consensual act against another person. There's overall a different philosophy in the treatment of such things in the Islamic law. There's a philosophy with consensual acts that it's reprehensible, but that if the acts happen society should go out of its way to look the other way and not bring it to light unless the culprits are brazen. Culprits have an expectation of privacy if they're discreet about it.

Whereas a crime of one person against another - there's not this expectation. It's a violation of one person by another. How can the perp expect privacy when the other party didn't agree to the act?

As for the Shirazi comment, it is a valid point in general that rape, as a serious crime with devastating consequences for the one convicted, and even for one accused, that it should not be too easy to convict for. This is a sensible point, and even Western legal thinkers would agree on a general level. Certainly I would agree that a woman's word alone should not be enough to convict, especially if the punishment is death, since women can lie out of malicious intent, or make false statements due to mental illness or delusion. There's also the potential for false IDs. Indeed, the bar should not be too low.

But Islamic law also needs to show some common sense in acknolwedging the advances in forensic technology, allowing new types of "witness" that were not previously possible.

I also notice the Shirazi quote doesn't touch on the second, and probably most disturbing part of this Pakistani practice, the actual punishment of the alleged victims if they don't meet this irrationally high standard of evidence. It would be nice to see a Shia source that clearly repudiates such barbarism.

To Fink: To be completely fair, from what I recall, our own figures here in the Americas for conviction percentage for charges of rape is less than 10 out of 100.

Edited by kadhim
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  • Banned

I agree with Kadhim.

If the police found a victim who was left naked, unconscious, with bodily injury and with all the signs of the rape, they should walk away from the crime scene?

dont be ignorant sister. they should lash her for fornication or stone her to death if she is married :dry: adalat at its finest

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If there are 4 witnesses to the rape, then the punishment that is given is Hudd.

If 4 witnesses are not present, it doesn't mean that the rapist can go free. If there is a lot of other genuine (e.g., scientific) evidence to prove that the accused is the rapist, then he can still be punished, but the punishment that would be given would not be Hudd, instead it would be Tazeer.

There is a difference between the two types of punishments. The Hudd is a specified punishment in Islam which is set by Allah himself and is taught to us by the Prophet (s). For example, stoning to death, cutting the hand etc.

The Tazeer is a non-specified punishment and it is upto the Islamic jurist to decide what sort of punishment to give to a culprit who does not meet the criteria for Hudd, but meets other criteria to prove that he committed the crime. Tazeer can be mild or severe, based on the severity of the crime, the circumstances etc.

Hope this clarifies the issue.

Of course, if there are neither 4 witnesses nor any evidence to prove that the accused is a rapist, then the Islamic court would not punish the man (just because a woman says he raped her).

Edited by Liggel
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I agree with Kadhim.

If the police found a victim who was left naked, unconscious, with bodily injury and with all the signs of the rape, they should walk away from the crime scene?

Let me complete this: If a victim found with all signs of rape & the evidence of sperm (or DNA test) can pinpoint the rapist, it'll be a very strong proof to punish the rapist.

So, in the light of these very strong proofs, he just can walk away because "there is no 4 witnesses"?

If there are 4 witnesses to the rape, then the punishment that is given is Hudd.

If 4 witnesses are not present, it doesn't mean that the rapist can go free. If there is a lot of other genuine (e.g., scientific) evidence to prove that the accused is the rapist, then he can still be punished, but the punishment that would be given would not be Hudd, instead it would be Tazeer.

There is a difference between the two types of punishments. The Hudd is a specified punishment in Islam which is set by Allah himself and is taught to us by the Prophet (s). For example, stoning to death, cutting the hand etc.

The Tazeer is a non-specified punishment and it is upto the Islamic jurist to decide what sort of punishment to give to a culprit who does not meet the criteria for Hudd, but meets other criteria to prove that he committed the crime. Tazeer can be mild or severe, based on the severity of the crime, the circumstances etc.

Hope this clarifies the issue.

Of course, if there are neither 4 witnesses nor any evidence to prove that the accused is a rapist, then the Islamic court would not punish the man (just because a woman says he raped her).

Just seeing this after I posted my reply. Is Pakistani law used this rule?

Is it mentioned in ahadith?

Edited by rotten_coconut
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  • Advanced Member

This is shia law. I am not sure if Pakistani penal code applies this law.

Yes, the concept of Hudd and Tazeer is mentioned in ahadith of our imams (as). They sometimes gave punishments as Hudd and at other times gave punishments as Tazeer (when there was insufficient evidence to implement Hudd).

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  • Advanced Member

If there are 4 witnesses to the rape, then the punishment that is given is Hudd.

If 4 witnesses are not present, it doesn't mean that the rapist can go free. If there is a lot of other genuine (e.g., scientific) evidence to prove that the accused is the rapist, then he can still be punished, but the punishment that would be given would not be Hudd, instead it would be Tazeer.

There is a difference between the two types of punishments. The Hudd is a specified punishment in Islam which is set by Allah himself and is taught to us by the Prophet (s). For example, stoning to death, cutting the hand etc.

The Tazeer is a non-specified punishment and it is upto the Islamic jurist to decide what sort of punishment to give to a culprit who does not meet the criteria for Hudd, but meets other criteria to prove that he committed the crime. Tazeer can be mild or severe, based on the severity of the crime, the circumstances etc.

Hope this clarifies the issue.

Of course, if there are neither 4 witnesses nor any evidence to prove that the accused is a rapist, then the Islamic court would not punish the man (just because a woman says he raped her).

This is something sensible.

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Let me complete this: If a victim found with all signs of rape & the evidence of sperm (or DNA test) can pinpoint the rapist, it'll be a very strong proof to punish the rapist.

So, in the light of these very strong proofs, he just can walk away because "there is no 4 witnesses"?

He can or he can't?

And the 4-witness requirement can only be fulfilled if the woman/man were raped/gang raped in the public. That is not generally the case with a crime like rape. In fact, even adulterous relationships are not usually conducted in public.

So the rapist walks away freely from his crime because there was no distinction made (for prosecution) between consensual sexual intercourse with non-consensual sexual intercourse?

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  • Advanced Member
So the rapist walks away freely from his crime...

If you read my posts above, you might get an answer to your query.

By the way, it is better that a culprit walks away freely from a crime (due to absolute lack of evidence), than an innocent person be punished unjustly (due to a false accusation). Even if the culprit walks away freely in this world, he would still be punished in the next.

Also, there are incidents from the imams lives where the culprits walked away freely because of lack of evidence (even though the Imam knew from divine knowledge that they indeed had committed the crime). So you cannot argue that if there is no evidence against a man, he should still be punished because some woman is accusing him of raping her.

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He can or he can't?

And the 4-witness requirement can only be fulfilled if the woman/man were raped/gang raped in the public. That is not generally the case with a crime like rape. In fact, even adulterous relationships are not usually conducted in public.

So the rapist walks away freely from his crime because there was no distinction made (for prosecution) between consensual sexual intercourse with non-consensual sexual intercourse?

I don't agree with the 4 witness requirement for proving rape.

Maybe I wrote the sentence wrong. What I would like to say is it's very illogical & immoral in that kind of penal system when in the light of strong proofs like sperm, fingerprints, DNA test results, etc, a rapist just can walk away just because there is no 4 witness when he raped his victim.

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  • Advanced Member

The question about whether we would want to use technology to prove adultery rests on a bad analogy of comparing a consensual offense against God to a non-consensual act against another person.

Adultery is a non-consensual offence against another person - the cuckolded spouse(s). The primary victims of adultery are always male because females cannot be cuckolded - such is biology. If a husband catches his wife with another man his word is sufficient evidence for conviction In most Islamic countries AFAIK due to the severity of the offence, which seems a bit of a double standard given women's word is not taken as being adequate proof in rape cases - I see no reason why forensic technology needn't be applicable in proving such crimes where there is dispute, in both cases, and in false accusation of both cases. Also:

In Syria, Article 548 states that "He who catches his wife or one of his ascendants, descendants or sister committing adultery (flagrante delicto) or illegitimate sexual acts with another and he killed or injured one or both of them benefits from an exemption of penalty."
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The case where the victim gets punished is bazaar but then I remember we are talking about Pakistan. This four witness thing is puzzling. If there are four witnesses how can the rape continue certainly they should intervene to stop it, if one person sees a woman attacked the should effect the event in some manner either physical intervention, which is easy for me to say I am 6'2" and weigh 233 pounds, but there are other ways such as screaming one's head off or getting help. I wish we had a good Samaritan law here but we don't but no one stands and does nothing.

I think the conviction rate is higher than 10 in 100 but as elsewhere because of unwarranted shame they are not reported. I think Pakistan is not far from hopeless but I pray for change.

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  • Advanced Member

He can or he can't?

And the 4-witness requirement can only be fulfilled if the woman/man were raped/gang raped in the public. That is not generally the case with a crime like rape. In fact, even adulterous relationships are not usually conducted in public.

So the rapist walks away freely from his crime because there was no distinction made (for prosecution) between consensual sexual intercourse with non-consensual sexual intercourse?

The distinction between hudud and tazeer (so called discretionary) punishments that Liggel mentioned earlier seems to get at this.

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  • Veteran Member

Considering this is the Islamic Laws and Jurisprudence section, this thread is a bit light on sources and heavy in opinion.

Anyway, I would like to clarify that what I quoted above doesn't seem to be a direct quote from Ayatollah Shirazi, rather that is used a reference to back up the opinions of the poster. The way I posted it didn't make that very clear.

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  • Advanced Member

By the way, it is better that a culprit walks away freely from a crime (due to absolute lack of evidence), than an innocent person be punished unjustly (due to a false accusation). Even if the culprit walks away freely in this world, he would still be punished in the next.

What do you mean lack of evidence? If the woman can identify the man who raped her and we find all medical and DNA evidences, how can you say there is lack of evidences?

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Just a couple of points to clear up some misconceptions here:

1 - the punishment of rape is not stoning. It is that the rapist is striken with a sword, come of it what might, though other ahadith specify that he is killed. (http://www.*******.org/hadiths/hudud/rape)

and 2 - a woman cannot be punished for zina if she claims she is raped, even if she does not fulfill the required evidences. The man however can only be punished if the evidence is fulfilled.

While I don't know the ins and outs of the evidence that would be deemed sufficient for this, people need to consider the severe consequences if the evidence required was too light. Say a woman made a charge against someone of rape, but it was a lie, but due to there being a low standard of evidence he was found guilty. Then consider the punishment mentioned in #1 to realize how serious the consequences of that would be. Even today with all our advanced sciences, rape is very hard to prove (keep in mind it's not only proving sexual intercourse occurred but also proving it was actually non consensual) and while I don't have figures, I'd suspect most cases of it go unpunished by the law of the land.

What do you mean lack of evidence? If the woman can identify the man who raped her and we find all medical and DNA evidences, how can you say there is lack of evidences?

Imagine a man and a woman have intercourse (whether say they had fornicated, or it was legal like in a private mut`a). The DNA evidence is there to prove it. But the woman then lies to the authorities and says she was forced. Should the man (based on her testimony + DNA evidence showing intercourse occurred) now be convicted of rape and be put to death?

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  • Advanced Member

Imagine a man and a woman have intercourse (whether say they had fornicated, or it was legal like in a private mut`a). The DNA evidence is there to prove it. But the woman then lies to the authorities and says she was forced. Should the man (based on her testimony + DNA evidence showing intercourse occurred) now be convicted of rape and be put to death?

If it was a private muta, and the couple was dating and the woman testimony was suspicious, then there are some doubts here.

But if the woman was sleeping alone in her bedroom at night and a rapist (an unknown man or a neighbor) jump through the window and raped her and her parents found her unconscious, harmed/injured, naked and took her to the hospital, then you don't have an excuse do you?

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