Reporting Rape.

[Muhammed_Ali_Hussein]

(salam) 

I have heard that a woman won't be able to report a rape incident if there wasn't 4 male witnesses. Is this true. Please provide sources.

[Guest]

salaam, 

please refer to the topic below

 

http://www.shiachat.com/forum/topic/234977663-proving-adultery-judges-knowledge/

[Ali Musaaa :)]

No, this is not true. Far be it from God to allow such injustice. 

 

In the case of adultery, there needs to be 4 witnesses. The issue in question is a completely different matter. 

[Chair Pundit]

No, this is not true. Far be it from God to allow such injustice.

In the case of adultery, there needs to be 4 witnesses. The issue in question is a completely different matter.

Practically speaking, a female victim of rape usually can't report it to authorities since it is not usual that a rape victim is even able to provide four witnesses. If she reports it, she will be at the edge of the plank.

[Jahangiram]

Only if you want the punishment for fornication inflicted on a rapist would you need four witnesses. If you want other forms of punishment four witnesses wont be needed. Circumstantial evidence like DNA etc. can be enough to punish a rapist with a discretionary punishment (tazir). There's also the punishment for banditry which can be inflicted on a rapist, if he threatens the victim with a weapon or abducts her from her home.

[Marbles]

No, this is not true. Far be it from God to allow such injustice. 

 

That's how it is practiced in countries where four-witness law is accepted.

Edited July 27, 2014 by Marbles

[Ali Musaaa :)]

Practically speaking, a female victim of rape usually can't report it to authorities since it is not usual that a rape victim is even able to provide four witnesses. If she reports it, she will be at the edge of the plank.

 

‘Practically speaking’, she isn’t required to produce 4 witnesses because producing 4 witnesses is required to prove adultery took place not that the poor girl was raped. 

 

Only if you want the punishment for fornication inflicted on a rapist would you need four witnesses. If you want other forms of punishment four witnesses wont be needed. Circumstantial evidence like DNA etc. can be enough to punish a rapist with a discretionary punishment (tazir). There's also the punishment for banditry which can be inflicted on a rapist, if he threatens the victim with a weapon or abducts her from her home.

 

Yes, exactly. The point was, you do not need 4 witnesses to prove it occured. 

 

 

That's how it is practiced in countries where four-witness law is accepted.

 

Four-witness law for fornication? Or needing four witnesses to prove someone was 'assaulted'? The former is an accepted law ordained by God in the Quran and ahadith of the Ahl al-Bayt, whereas the former has no basis in either of them. 

[Jahangiram]

Tazir is already implemented in muslim countries anyway; in Pakistan the tazir punishment of rape would be 25 years and 30 lashes. How a citizen of Pakistan can be unaware of these legal nuances is beyond me.

[Marbles]

Four-witness law for fornication? Or needing four witnesses to prove someone was 'assaulted'? The former is an accepted law ordained by God in the Quran and ahadith of the Ahl al-Bayt, whereas the former has no basis in either of them. 

 

Four witnesses to prove assault or rape. If a woman accuses xyz for raping her, and if she cannot produce four witnesses, she is then arrested on the charges of committing fornication/adultery. She is also guilty of 'tarnishing the reputation' of the person she accuses, which has separate punishment.

 

Countless women who have been raped and failed to come up with four witnesses have languished in Pakistani jails since the draconian Hudood Ordinance was incorporated into the law by the Zia regime. It's only during the tenure of previous government they probably amended the law to make it impossible to arrest the one who wants to register a case of rape.

 

And we know how things were in Afghanistan during the Taliban regime. Or how things are in Saudi Arabia; basically, any country which attempts to institute hudood or shariah laws ends up making a mockery of them. So much for nuance some people so love to talk about. Till last year the mullahs at the helm of the state organ responsible for formulating Islamic laws completely rejected DNA evidence, and only agreed to allow it as a 'secondary' evidence whereas given the scientific knowledge we posses DNA evidence should be primary evidence. But not even God can convince the medieval-looking dunces in charge of "Islamic courts."

Edited July 27, 2014 by Marbles

[Jahangiram]

The thing is Marbles you're beginning to sound like a pathological liar on Islamic law; everyone educated about Iran and Pakistan knows tazir (discretionary punishment) is implemented on a rapist if circumstantial evidence can be found. The Hudood Ordinances in Pakistan say the tazir would be imprisonment and lashing. These legal rules can be found during your detested medieval period, its not a modern phenomenon.

 

Are you deliberately ignoring these facts or something?

Edited July 27, 2014 by Jahangiram

[Marbles]

The thing is Marbles you're beginning to sound like a pathological liar on Islamic law; everyone educated about Iran and Pakistan knows tazir (discretionary punishment) is implemented on a rapist if circumstantial evidence can be found. The Hudood Ordinances in Pakistan say the tazir would be 25 years imprisonment and 30 lashes.

 

Are you deliberately ignoring these facts or something?

 

If you pay some attention to my post instead of calling me a liar (seems you are unable to write a post without insulting your interlocutor) you'll seen that I have said nothing about Islamic law per se but how it is practiced in a country like Pakistan.

 

What I'm doing is telling you how things actually happen here on the ground under the label of hudood laws instead of just repeating the statutes in law books. The rapist never gets tazeer. Show me an example from Pakistan if you have it. What happens that, instead of allowing police to gather circumstantial evidence and letting the case run in a normal court of law, the case is first sent to what is called a "shariat court" (yes, there are two types of court), where the drowsy mullahs ask first thing: "Got four witnesses?". And since there is not a single witness let alone four, the woman is then arrested and put in jail til the the joke of a 'shariat court' decides what to do next. Now, if the tazeer clause about rape is as good as you claim to be, why those women are gaoled for registering a police case for rape if they don't have the four witnesses? Because that's how the mullahs manning the shariat courts want this thing to work. Because till last year they refused point blank to admit DNA evidence and so there's no way of establishing the act of rape and punishing the perpetrators with tazeer. So there goes the case out the window...

 

Of course, all this happens to the most ordinary, common, poor folks - lay people who walk about the streets, poor women who have to leave home to work as cleaners and cooks in rich homes, who if they get assaulted end up in jail. If the raped woman is rich or influential or both, there's no way the police or mullah can treat her the same way. But that's a different story.

[Jahangiram]

I didn't mean to insult, just saying that's the impression im getting. Is it true indo pak mullahs are not so big on tazir? That would be strange given that its the 'mullahs' in the past who made these laws in the first place. What were the cases where four witnesses was seen as the only viable option? Have you studied them? Im asking because if the victim wants the hadd for zina implemented on a rapist the court can't accept anything other than four witnesses.  That's where the whole issue of having the victim punished comes in, since it would be an admission of consensual relations If four witnesses are absent. Same with a man who claims he was raped by a man/woman. Its an unfortunate and horrid predicament, but it begs the question as to why someone would go to the shariat court in the first place if he wants the hadd for zina implemented without four witnesses :wacko:

[Brained]

I didn't mean to insult, just saying that's the impression im getting. Is it true indo pak mullahs are not so big on tazir? That would be strange given that its the 'mullahs' in the past who made these laws in the first place. What were the cases where four witnesses was seen as the only viable option? Have you studied them? Im asking because if the victim wants the hadd for zina implemented on a rapist the court can't accept anything other than four witnesses.  That's where the whole issue of having the victim punished comes in, since it would be an admission of consensual relations If four witnesses are absent. Same with a man who claims he was raped by a man/woman. Its an unfortunate and horrid predicament, but it begs the question as to why someone would go to the shariat court in the first place if he wants the hadd for zina implemented without four witnesses :wacko:

 

No woman in a right mind would accuse her rapists of zina, that's obvious. The problem lies in the framing of Hudood ordinance itself. It is fraught with ambiguities, loopholes and whatnot.

 

Under the Ordinance, sexual intercourse is adultery whether it is with or without the consent of a woman who is not married with a man. The result has been that whenever a woman has complained of rape, particularly if coming from a village, she has been roped into the offence. Her statement that she has been engaged in sexual intercourse has been treated as a confession allowing her to be charged with the offence of zina. At the same time, it is virtually impossible for her to prove that she was raped, and did not engage in the sexual act voluntarily, because section 8 of the Ordinance requires evidence of at least four adult male Muslim eye witnesses who have physically seen the act of penetration.

 

 

http://www.humanrights.asia/resources/journals-magazines/article2/0303/women-and-religious-minorities-under-the-hudood-laws-in-pakistan

[Jahangiram]

There can be ambiguities and problems do occur; circumstantial evidence can be very hard to obtain, and this is a recurrent problem in rape cases in the West as well. However im surprised human rights wrote the above, when this is the reality:

 

The Tazir punishment for rape is up to 25 years in prison and 30 lashes. For the purposes of Tazir, no distinction is made between a married and unmarried offender. It is important to note that insufficient evidence to impose a Hadd punishment does not eliminate criminal liability. The accused may still be convicted for Tazir.

 

Most Tazir convictions result in a sentence of public whipping. While no Hadd punishments have been carried out, Tazir punishments of whipping, which constitute cruel and inhuman punishment under international law, do occur.

- Encyclopaedia of Women in South Asia: Pakistan, pg. 138

[Marbles]

 

There can be ambiguities and problems do occur; circumstantial evidence can be very hard to obtain, and this is a recurrent problem in rape cases in the West as well. However im surprised human rights wrote the above, when this is the reality:

 

 

- Encyclopaedia of Women in South Asia: Pakistan, pg. 138

 

Reality? Stating the law and a statement about some possible tazeer convictions a reality?  At least accept that you don't know about Pakistani Hudood Ordinance and the problems associated with it. Instead of listening to those who know, or reading studies on the topic, you frantically search the Google to bring up an agreeable statement and call it a reality?

 

In any case, I hope you read the preceding and succeeding pages of the same book you quoted from, which puts things in context as to how easy or difficult it is for women to bring acceptable evidence, and that who gets punished more. Now, that would be reality. And that's much more than just 'ambiguities or problems or loopholes' with the law.

 

The successful tazeer convictions rest on two things. One, the accused makes a guarded confession and therefore it is impossible to acquit him. He might not confess to penetrative rape but to assault with the intention to rape, which gets him some punishment. Two, there are multiple charges other than rape, such as robbery and attempted murder etc, which together with rape charges require a punishment. My problem is that I can't bring you hyperlinks from the web because that's not where I do my studies from. I don't hold opinions first and then look for a strawman on the web to support my biases. I reach my conclusions after I have read and evaluated the substance. There is a book which dissects the Zina ordinance to its bone with multiple examples of real life cases, their process, evidence and convictions and acquittals. This would be a good starting point for anyone interested to learn what goes on beyond the statutes in the books (Zina by Shahnaz Khan).

 

When a thing as vital as DNA is not admitted for 'circumstantial' evidence, you are like a headless chicken looking for evidence, such as if someone saw the accused jump off the window of the victim's house or like that.

 

A law under which women end up in jail for demanding the rapists be punished should be thrown away and replaced with sane laws which admit realistic evidence. But it's good that at least from last year DNA will be admitted as evidence.

Edited July 28, 2014 by Marbles

[Jahangiram]

I didn't say I knew everything about the Hudood Ordinances, which is why I humbly asked you a few questions in my last post. What was their reason for not accepting DNA whilst being ok with signs of beating etc. as 'circumstantial' evidence ?

 

And yes I read the other pages, a bit difficult to go through; but it still got me curious as to why they never mention that a man can be convicted of consensual relations if he accused a man/woman of rape without four witnesses (or circumstantial evidence).

 

Then again gays are a minority and women are the weaker sex, so the (rightful) focus on women is proof positive the two genders aren't equal :D

[Ruq]

Are the parameters for punishment of male rape the same as for female?

[Chair Pundit]

Are the parameters for punishment of male rape the same as for female?

I doubt there is anything in the Islamic texts about this, since it is invariably assumed that only a female can be subjected to rape. Being the "weaker" sex and all.