Pakistan -- Age of Consent

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Updated May 21, 2002 (end of page)

 

Source:  http://www.actwin.com/eatonohio/gay/world.htm

PAKISTAN LAWS: 1. Homosexual activity is illegal, punishable with life in prison, and corporal punishment of 100 lashes, while Islamic law, which also can be enforced legally, calls for up to 100 lashes or death by stoning.
NOTE: 1. Pathan culture in the Northwest Frontier province allows men to have younger men as lovers.


Source: http://www.interpol.int/Public/Children/SexualAbuse/NationalLaws/

Pakistan - Pakistán              Islamabad

I. Ages for legal purposes
Age of simple majority    Under clause (a) of S.2 of the offence of Zina Enforcement of Hudood Ordinance 1979, Adult/major
means : " a male person who has attained the age of eighteen (18) years or a female person who has
attained the age of sixteen (16) years or has attained puberty. "

Age of consent for sexual activity
No age limit has been fixed for consenting to a sexual activity. However, for the punishment of
" Zina " (sexual intercourse without being validly married to each other) liable to " Hadd ", the
person committing the offence should be adult/major (Section 5 of the offence of Zina, Enforcement
of Hudood Ordinance 1979). Under said law, every sane person committing the offence of Zina,
whether with consent or without consent is liable for the offence. However, the punishment
provided for both cases is different.

Age of consent for marriage
Under Muslim Family Laws Ordinance 1961, the legal age for marriage is eighteen (18) and sixteen
(16) years for male and female persons respectively.

General provisions and definitions :
Section 1 of the " Offence of Zina (Enforcement of Hudood) Ordinance " defines the following
" (2) Definitions : In this Ordinance, unless there is anything repugnant in the subject or context, -

a) ‘Adult’ means a person who has attained, being a male, the age of eighteen (18)
years or , being a female, the age of sixteen (16) years, or has attained puberty.

b) ‘Hadd’ means punishment ordained by the Holy Qur’an or Sunnah.

c) ‘Marriage’ means marriage which is not void according to the personal law of
the parties, and ‘married’ shall be construed accordingly.

d) ‘Muhsan’ means-

(i) A Muslim adult man who is not insane and has had sexual
intercourse with a Muslim adult who, at the time he had sexual
intercourse with her, was married to him and was not insane ; or

(ii) a Muslim adult woman who is not insane and has had sexual
intercourse with a Muslim adult man, who at the time she had sexual
intercourse with him, was married to her and was not insane ; and

e) ‘Tazir’ means any punishment other than ‘Hadd’, and all other terms and
expressions not defined in this Ordinance shall have the same meaning as in the
Pakistan Penal Code or the Code of Criminal Procedure. "

‘Punishment for attempting to commit an offence’, Section 18 of the " Offence of Zina (Enforcement of Hudood)
Ordinance "

" Whoever attempts to commit an offence punishable under this Ordinance with imprisonment or
whipping, or to cause such an offence to be committed, and in such attempt does any act towards
the commission of the offence, shall be punished with imprisonment for a term which may extend to
one-half or the longest term provided for that offence, or with whipping not exceeding thirty
stripes, or with such fine as is provided for that offence, or with any two of, or all, the
punishments. "

II. Rape
Section 6 of the " Offence of Zina (Enforcement of Hudood) Ordinance "
" Zina-bil-jabr :
(1) A person is said to commit ‘Zina-bil-jabr’ if he or she has sexual intercourse with a woman or
man, as the case may be, to whom he or she is not validly married, in any of the following
circumstances, namely :
a) against the will of the victim ;
b) without the consent of the victim ;
c) with the consent of the victim, when the consent has been obtained by putting the victim in fear or death or of hurt ; or
d) with the consent of the victim, when the offender knows that the offender is not validly married to the victim and that the consent is given because the victim believes that the offender is another person to whom the victim is or believes herself or himself to be validly married.

Explanation :
Penetration is sufficient to constitute the sexual intercourse necessary to the offence of ‘Zina-bil-jabr’.
‘Zian-bil-jabr is liable to ‘Hadd’ if it its committed in circumstances specified in sub-section (1) of Section 5. "

III. Other forms of child sex abuse
There is no separate law or section dealing exclusively with sexual intercourse with a child.

Section 4 and 5 of the " Offence of Zina (Enforcement of Hudood) Ordinance "
" (4) Zina : A man and a woman are said to commit ‘Zina’ if they wilfully have sexual intercourse
without being validly married to each other.

Explanation :
Penetration is sufficient to constitute the sexual intercourse necessary to the offence of ‘Zina’.

(5) - 1) ‘Zina’ is liable to ‘Hadd’ if-
a) it is committed by a man who is an adult and is not insane with a woman to
whom he is not, and does not suspect himself to be married ; or

b) it is committed by a woman who is an adult and is not insane with a man to
whom she is not, and does not suspect herself to be married.

- 2) Whoever is guilty of ‘Zina’ liable to ‘Hadd’ shall, subject to the provisions of this Ordinance-

a) if he or she is a ‘Muhsan’, be stoned to death at a public place ; or

b) if he or she is not a ‘Muhsan’, be punished, at a public place, with whipping
numbering one hundred stripes.

- 3) No punishment under sub-section (2) shall be executed until it has been confirmed by the
Court to which an appeal from the order of conviction lies ; and if the punishment be of whipping,
until it is confirmed and executed, the convict shall be dealt with in the same manner as if
sentenced to simple imprisonment. "

‘Enticing or taking away or detaining with criminal intent a woman’, Section 16 of the " Offence of Zina
(Enforcement of Hudood) Ordinance "

" Whoever takes or entices away any woman with intent that she may have illicit intercourse with
any person, or conceals or detains with that intent any woman, shall be punished with imprisonment
of either description for a term which may extend to seven years and with whipping not exceeding
thirty stripes, and shall also be liable to a fine. "

However, voluntarily committing the offence of carnal intercourse against the order of nature (oral or anal) with
any man, woman (of any age) or animal is an offence relating to Section 377 of the " Pakistan Penal Code ",
‘Unnatural offences’

" Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or
animal, shall be punished with imprisonment for life, or with imprisonment of either description
for a term which shall not be less than two years nor more than ten years, and shall also be liable
to a fine. "

Explanation :

Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in
this section.

There is no separate law concerning sexual intercourse with a child committed by a person related to the child or
having authority over the child


IV. Child prostitution
‘Selling a person for purposes of prostitution, etc.’, Section 13 of the " Offence of Zina (Enforcement of Hudood)
Ordinance "

" Whoever sells, lets to hire, or otherwise disposes of any person with intent that such person shall
at any time be employed or used for the purpose of prostitution or illicit intercourse with any
person or for any unlawful and immoral purpose, or knowing it to be likely that such person will
at any time be employed or used for any such purpose, shall be punished with imprisonment for
life and with whipping not exceeding thirty stripes, and shall also be liable to a fine. "

Explanations :

a) When a female is sold, let for hire or otherwise disposed of to a prostitute or to any person who
keeps or manages a brothel, the person so disposing of such female shall, until the contrary is
proved, be presumed to have disposed of her with the intent that she shall be used for the purpose
of prostitution.

b) For the purposes of this section and Section 14, ‘illicit intercourse’ means sexual intercourse
between persons not united by marriage.

‘Buying a person for purposes of prostitution, etc.’, Section 14 of the " Offence of Zina (Enforcement of Hudood)
Ordinance "

" Whoever buys, hires or otherwise obtains possession of any person with intent that such person
shall at any time be employed or used for the purpose of prostitution or illicit intercourse with
any person or for any unlawful and immoral purpose, or knowing it to be likely that such person
will at any time be employed or used for any such purpose, shall be punished with imprisonment
for life and with whipping not exceeding thirty stripes and shall also be liable to a fine. "

Explanation :

Any prostitute or person keeping or managing a brothel, who buys, hires or otherwise obtains
possession of a female shall, until the contrary is proved, be presumed to have obtained possession
of such female with the intent that she shall be used for the purpose of prostitution.

‘Punishment for living on earnings of prostitution’, Section 6 of the " Pakistan Suppression of Prostitution
Ordinance, 1961 "

" (1) Whoever being above the age of eighteen (18) years-
a) knowingly lives, wholly or in part, on the earnings of another’s prostitution, or
b) exploits the prostitution of another person, whether with or without that person’s consent,
-shall be punished with imprisonment of either description for a term which may extend to two
years and with a fine which may extend to one thousand rupees, and, if the person convicted is a
male he may be punished with whipping in lieu or in addition to any other punishment proved in
this sub-section.

(2) Where any person is proved to be living with, or to be habitually in the company of, a
prostitute or is proved to have directed or exercised control or influence over the movements of a
prostitute in such a manner as to show that he is aiding, abetting, compelling or exploiting her
prostitution with any other person or generally, or to be keeping or managing or assisting in the
management of a brothel, it shall be presumed, until the contrary is proved, that he is knowingly
living on the earnings of prostitution. "

‘Punishment of causing, encouraging or abetting prostitution of a girl under sixteen (16)’, Section 7 of the
" Pakistan Suppression of Prostitution Ordinance, 1961 "

" If any person having custody, charge or care of any girl under the age of sixteen (16) years causes
or encourages or abets the seduction or prostitution of that girl, he shall be published with rigorous
imprisonment for a term which may extend to three years, and with a fine which may extend to one
thousand rupees and if the person convicted is a male, shall also be liable to whipping. "

‘Punishment for Procuration’, Section 8 of the " Pakistan Suppression of Prostitution Ordinance, 1961 "

" Whoever procures or entices or leads away or attempts to procure, entice or lead away any
woman or girl for the purposes of prostitution, whether with or without her consent, or who with
intent that she may for the purposes of prostitution become the intimate of or frequent a brothel,
persuades a woman or girl to leave her usual place of abode, shall be punished with imprisonment of
either description for a term which may extend to three years, or if the person convicted is a male, he
may be punished with whipping in lieu of or in addition to any other punishment provided in this
section. "

‘Punishment for importing any woman or girl for prostitution’, Section 9 of the " Pakistan Suppression of
Prostitution Ordinance, 1961 "

" Whoever brings or attempts to bring into the province any woman or girl with a view to her
becoming a prostitute, shall be punished with imprisonment of either description for a term which
may extend to three years, and with a fine which my extend to one thousand rupees, and if the
person convicted is a male, he may be punished with whipping in lieu of or in addition to any other
punishment provided in this section. "

‘Punishment for keeping an woman or girl for prostitution’, Section 10 of the " Pakistan Suppression of
Prostitution Ordinance, 1961 "

" (1) Whoever -

a) keeps any woman or girl, against her will, in any place with intent that she may
have sexual intercourse with any man other than her lawful husband, shall be
punished with rigorous imprisonment for a term which may extend to three years,
and with a fine which may extend to one thousand rupees, and if the person
convicted is a male, he shall also be liable to whipping.

(2) Presumption :

A person shall be presumed to detain a woman or girl in any place for the purpose referred to in
clause (b) of sub-section (1), if such person, with intent to compel or induce her to remain there :

a) withholds from her any jewellery, clothing or other property belonging to her ;
or

b) threatens her with legal proceedings if she takes away with her any jewellery or
clothing lent or supplied to her by or under the direction of such person.

(3) Bar of certain legal proceedings : No legal proceedings, whether civil or criminal, shall be
taken against any such woman or girl for taking away or being found in possession of any such
clothing as was necessary to enable her to leave such premises of brothel. "

V. Child pornography
‘Sale, etc., of obscene books, etc.’, Section 292 of the " Pakistan Penal Code 1860 "
" Whoever-
a) sells, lets to hire, distributes publicly, exhibits or in any manner puts into
circulation or for purposes of sale, hire, distribution, public exhibition or
circulation, makes, produces or has in his possession any obscene books,
pamphlet, paper, drawing, painting, representation or figure or any other obscene
object whatever ; or

b) imports, exports or conveys any obscene object for any of the purposes aforesaid
or knowing or having reason to believe that such object will be sold, let to hire,
distributed or publicly exhibited or in any manner put into circulation ; or

c) takes part in or receives profits from any business in the course of which he
knows or has reason to believe that any such obscene objects are, for any of the
purposes aforesaid, made, produced, purchased, kept, imported, exported,
conveyed, publicly exhibited or in any manner put into circulation ; or

d) advertises or makes known by any means whatsoever that any person is
engaged or is ready to engage in any act which is an offence under this section, or
that any such obscene object can be procured from or through any person ; or

e) offers or attempts to do any act which is an offence under this section,

-shall be punished with imprisonment of either description for a term which may extend to three
months, or with a fine, or with both.

Exception : this section does not extend to any book, pamphlet, writing, drawing or painting kept
or used bona fide for religious purposes or any representation sculptured, engraved, painted or
otherwise represent, on or in any sample, or on any car used for the conveyance of idols, or kept
or used for religious purposes. "

 

 

Subject:  Age of consent in Pakistan
Date:      Sat, 25 Sep 1999 05:03:25 EDT
From:     [removed]

Hello, Your page on ages of consent is superb. keep up the good work. However
I would like to tell you that In Pakistan, the position is not what your table depicts. Here the legal age for marriage for boys is 18 (which is depicted in your table), and the legal age for marriage for girls is 18. However if a boy and girl are unmarried, and they have sex, both go to jail, because it is a crime to have sex outside the marriage with the member of opposite or same sex. Remember,Pakistan is an Islamic country and Islamic religious laws are srticly enforced.




Her Honor: An Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective

Introduction

I remember as a child having to describe Pakistan as that small country next to India. I
haven’t used that description in a long time. By now, Americans have heard of
Pakistan, and the reference is no longer exotic. Instead, the name conjures up
confused images of women and non-Muslims in a third world country struggling to
battle Islamic fundamentalism. Recent reports of the unjust application of Pakistan’s
rape laws, enacted as part of the "Islamization" of Pakistani law, further cement the
impression that Islam is bad for women. The reports, unfortunately, are true. The
impression is not.

This article critiques the rape laws of Pakistan from an Islamic point of view which is
careful to include women’s perspectives in its analysis. Unlike much of what is
popularly presented as traditional Islamic law, this woman-affirming Islamic approach
will reveal the inherent gender-egalitarian nature of Islam, which is too often ignored by
its academics, courts, and legislatures. This article will demonstrate how cultural
patriarchy has instead colored the application of certain Islamic laws in places like
Pakistan, resulting in the very injustice which the Qur’an so forcefully condemns.

I. Critique Of the Zina Ordinance

A. Power of Law: The Zina Ordinance and its Application in Pakistan

In 1977, under President Zia-ul-Haq, Pakistan enacted a set of "Hudood"1
Ordinances, ostensibly to bring the laws of Pakistan into "conformity with the
injunctions of Islam" (P.L.D. 1979, 51; Bokhary 1979, 162; Major Acts 1992, 10).
These Ordinances, setting forth crimes such as theft, adultery, slander, and alcohol
consumption, became effective in February, 1979 (P.L.D. 1979, 51; Bokhary 1979,
164; Major Acts 1992, 10). The "Offence of Zina (Enforcement of Hudood)
Ordinance, VII of 1979" (Zina Ordinance) criminalizes "zina," or extramarital sexual
relations (also a crime under Islamic law).2 The Zina Ordinance states:

A man and a woman are said to commit ‘zina’ if they wilfully have sexual intercourse
without being validly married to each other.



Zina is liable to hadd [punishment] if--

(a) it is committed by a man who is an adult and is not insane with a woman to whom
he is not, and does not suspect himself to be married; or

(b) it is committed by a woman who is an adult and is not insane with a man to whom
she is not, and does not suspect herself to be married (P.L.D. 1979, 52; Bokhary
1979, 176; Major Acts 1992, 11).

Under its heading of zina, the Zina Ordinance includes the category "zina-bil-jabr" (zina
by force) which lays out the definition and punishment for sexual intercourse against
the will or without the consent of one of the parties. The section articulating the crime
of rape, as zina-bil-jabr, states:

A person is said to commit zina-bil-jabr if he or she has sexual intercourse with a
woman or man, as the case may be, to whom he or she is not validly married, in any of
the following circumstances, namely:--

(a) against the will of the victim,

(b) without the consent of the victim,

(c) with the consent of the victim, when the consent has been obtained by putting the
victim in fear of death or of hurt, or

(d) with the consent of the victim, when the offender knows that the offender is not
validly married to the victim and that the consent is given because the victim believes
that the offender is another person to whom the victim is or believes herself or himself
to be validly married.



Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to
the offence of zina-bil-jabr.

Zina-bil-jabr is zina-bil-jabr liable to hadd if it is committed in the circumstances
specified [above] (P.L.D. 1979, 52; Bokhary 1979, 182; Major Acts 1992, 11-12).

Finally, the Zina Ordinance then specifies the evidence required to prove both zina and
zina-bil-jabr:

Proof of zina or zina-bil-jabr liable to hadd shall be in one of the following forms,
namely:--

(a) the accused makes before a Court of competent jurisdiction a confession of the
commission of the offence; or

(b) at least four Muslim adult male witnesses, about whom the Court is satisfied,
having regard to the requirements of tazkiyah al-shuhood [credibility of witnesses], that
they are truthful persons and abstain from major sins (kaba’ir), give evidence as
eye-witnesses of the act of penetration necessary to the offence (P.L.D. 1979, 53;
Bokhary 1979, 182; Major Acts 1992, 12).3

When this law was enacted in 1977, proponents argued that it enacted the Islamic law
of illegal sexual relations. The accuracy of that claim is addressed in detail later.4 First,
it is important to first note that the application of the Zina Ordinance in Pakistan has
placed a new twist and a renewed urgency on the question of its validity. The twist is
this: when a zina-bil-jabr case fails for lack of four witnesses, the Pakistani legal system
has more than once concluded that the intercourse was therefore consensual, and
consequently has charged rape victims with zina.

A few cases will disturbingly illustrate the concern. In 1982, fifteen-year-old Jehan
Mina became pregnant as a result of a reported rape. Lacking the testimony of four
eye-witnesses that the intercourse was in fact rape, Jehan was convicted of zina on the
evidence of her illegitimate pregnancy (Mina v. State, 1983 P.L.D. Fed. Shariat Ct
183). Her child was born in prison (Mehdi 1990, 25). Later, a similar case caused
public outcry and drew public attention to the new law. In 1985, Safia Bibi, a
sixteen-year-old nearly blind domestic servant reported that she was repeatedly raped
by her landlord/employer and his son, and became pregnant as a result. When she
charged the men with rape, the case was dismissed for lack of evidence, as she was
the only witness against them. Safia, however, being unmarried and pregnant, was
charged with zina and convicted on this evidence (Bibi v. State, 1985 P.L.D. Fed.
Shariat Ct. 120).5

Short of conviction, women have also been held for extended lengths of time on
charges of zina when they allege rape (Asia Watch 1992, 41-60). For example, in
July, 1992, Shamim, a twenty-one-year-old mother of two charged that she was
kidnaped and raped by three men in Karachi. When a rape complaint was lodged
against the perpetrators, the police instead arrested Shamim, and charged her with zina
when her family could not post the fee set for her release. The police held her in
custody for six days, during which she reports that she was repeatedly raped by two
police officers and a third unnamed person (Amnesty International 1993, 11-12).
There have been numerous reports of such custodial rapes in Pakistan.6

Police action and inaction in rape cases in Pakistan have in fact been widely reported
as an instrumental element to the injustice. There is evidence that police have
deliberately failed to file charges against men accused of rape, often using the threat of
converting the rape charge into a zina prosecution against the female complainant to
discourage women from reporting.7 And when the perpetrator is a police officer
himself, the chances of pursuing a case against him are nearly nonexistent. Shahida
Parveen faced this very situation when she reported that in July, 1994, two police
officers broke into her house and locked her children in a room while they raped her at
gunpoint. A medical examination confirmed that she was raped by more than one
person, but the police refused to register her complaint (Amnesty International 1995,
14).

Political rivals have further exploited women by using rape as a weapon against each
other. In November, 1992, Khursheed Begum, the wife of an arrested member of the
Pakistan People’s Party was abducted on her way home from attending her husband’s
court hearing. She states that she was blindfolded, driven to a police station, and
repeatedly raped there by police officers, who asserted political motives for the attack
(Amnesty International 1992, 207; Scroggins, 1992, A10; Rashid 1991, 14.). Later
the same month, forty-year-old Veena Hyat, of one of Pakistan’s elite families and
daughter of a prominent politician, stated that she was gang raped for twelve hours in
every room of her house by five armed men. Despite her father taking the unusual
social risk of publicly reporting the attack, a judicial investigation concluded that there
was insufficient evidence to convict the alleged perpetrators (Zia 1994, 55-57;
Economist 1991, 43; Rashid 1991, 14; Robinson 1992, 11).

Cases such as these resulting from the unfortunate application of the Zina Ordinance
are widely reported in the Western media.8 The issue is now a primary topic in
women’s and human rights discussions globally,9 and stirs up an expected share of
frustration, anger, defensiveness, and arrogance from all sides. The debate, however,
begs the question: What is the Islamic law of rape? Any real substantive analysis of the
zina-bil-jabr law and its application must first approach it from this framework--the
same framework upon which the law purports to base itself. I will therefore ask the
critical question: does Pakistan’s Zina Ordinance accurately articulate the Islamic law
of rape?



B. Law of God: the Qur’an on Zina

The Pakistani Zina Ordinance subsumes rape--as zina-bil-jabr--under the general zina
law of unlawful sexual relations. To analyze the appropriateness of this categorization,
we must first analyze the Islamic law of zina itself. The preamble of the Pakistani Zina
Ordinance states that it is enacted "to modify the existing law relating to zina so as to
bring it in conformity with the Injunctions of the Holy Qur’an and Sunnah" (Major Acts
1992, 10)10 Indeed, the term zina itself appears in the Qur’an. In warning generally
against the dangers of adultery, the Qur’an states:

And do not go near fornication [zina] as it is immoral and an evil way (Qur’an
17:32).11

Later, the Qur’an more specifically sets out actual legal prescriptions criminalizing
illegal sexual relations:

The adulteress and adulterer should be flogged a hundred lashes each, and no pity for
them should deter you from the law of God, if you believe in God and the last day; and
the punishment should be witnessed by a body of believers (Qur’an 24:2).

Following this definition of the offense are extremely strict evidentiary rules for the
proof of such a crime:

Those who defame chaste women and do not bring four witnesses should be punished
with eighty lashes, and their testimony should not be accepted afterwards, for they are
profligates (Qur’an at 24:4).12

Thus, after criminalizing extramarital sexual relations,13 the Qur’an simultaneously
attaches to the prosecution of this crime nearly insurmountable evidentiary restrictions:
four eye-witnesses are required to prove a charge of sexual misconduct.14

Islamic jurisprudence further interprets the Qur’anic zina evidentiary rule of quadruple
testimony to require the actual witnessing of penetration during sexual intercourse, and
nothing less.15 This interpretation is based on the reported hadith (tradition) of
Muhammad in which, after a man persisted in confessing to adultery (the Prophet
having turned away to avoid hearing the information several times prior), Muhammad
asked several specific questions to confirm that the act was indeed sexual penetration
(Bukhari 1985, 8:528-35 (Bk. 82, Nos. 806, 810, 812-814); Abu Daud 1990, 3:
Nos. 4413-14).16 Moreover, Islamic evidence law requires the witnesses to be
mature, sane, and of upright character (Salama 1982, 109; El-Awa 1982, 126-27;
Siddiqi 1985, 43-49). Furthermore, if any eyewitness testimony was obtained by
violating a defendant’s privacy, it is inadmissible.17 And lastly, the Hedaya, a key
reference of Hanafi jurisprudence18 prominent codification of Muslim law in India,19
even sets a statute of limitations for charging zina.20

Why so many evidentiary restrictions on a criminal offense prescribed by God? Islamic
scholars posit that it is precisely to prevent carrying out punishment for this offense. By
limiting conviction to only those cases where four individuals actually saw sexual
penetration take place, the crime will realistically only be punishable if the two parties
are committing the act in public, in the nude. The crime is therefore really one of public
indecency rather than private sexual conduct.21 That is, even if four witnesses saw a
couple having sex, but under a coverlet, for example, this testimony would not only fail
to support a zina charge, but these witnesses would also be liable for slander.22 Thus,
while the Qur’an condemns extramarital sex as an evil, it authorizes the Muslim legal
system to prosecute someone for committing this crime only when it is performed so
openly that four people see them without invading their privacy. As Cherif Bassiouni
puts it, "[t]he requirement of proof and its exigencies lead to the conclusion that the
policy of the harsh penalty is to deter public aspects of this form of sexual practice"
(Bassiouni 1982, 6).23

This analysis is consistent with the tone of the Qur’anic verses which immediately
follow the above verses regarding zina. After the verses establishing the crime and the
attendant standard of proof, the Qur’an states:

Those who spread lies were a clique among you. Do not think it was bad for you: In
fact it has been good for you. Each of them will pay for the sin he has committed, and
he who had greater share (of guilt) will suffer grievous punishment.

Why did the faithful men and women not think well of their people when they heard
this, and [say] "This is a clear lie?"

Why did they not bring four witnesses (in support of their charge)? And since they did
not bring the four witnesses, they are themselves liars in the sight of God.

Were it not for the grace of God and His mercy upon you in this world and the next,
you would have suffered a great affliction for the false accusation.

When you talked about it and said what you did not know, and took it lightly– though
in the sight of God it was serious–

Why did you not say when you heard it: "It is not for us to speak of it? God preserve
us, it is a great calumny!"

God counsels you not to do a thing like this, if you are believers (Qur’an 24:11-17).

The Qur’an’s call to respond to charges of sexual misconduct with "it is not for us to
speak of it" echoes the hadith in which Muhammad was reluctant to take even a man’s
confession of adultery.24 The Qur’an contemplates a society in which one does not
engage in publicizing others’ sexual indiscretions. Qur’anic principles honor privacy
and dignity over the violation of law, except when a violation becomes a matter of
public obscenity.

Placing these Qur’anic verses into context will further emphasize the importance of this
concept in Islamic law, and in particular, its close connection to the dignity of women.
The verses setting forth the crime of zina and the accompanying verses denouncing
public discussion of the matter were revealed just after the famous "Affair of the
Necklace," in which Muhammad’s wife, Aisha, was mistakenly left behind by a
caravan in the desert when she went looking for a lost necklace (al-Tabari 1910,
18:86-101; al-‘Umari 1991, 2:82-84).25 She returned home with a young single man
who had happened upon her and given her a ride home. Rumors of Aisha’s time alone
with this man spread quickly throughout the small town of Medina, until the above
verses finally ended the gossip. Thus, the very revelation of these verses was
prompted by an incident involving attacks on a woman’s dignity–Aisha’s honor.
Indeed, the verse setting forth severe punishment for slander is directed specifically
against charges impugning a woman’s chastity: "Those who defame chaste women, and
do not bring four witnesses, should be punished with eighty lashes, and their testimony
should not be accepted afterwards . . . ." (Qur’an 24:4; emphasis added). Men do not
seem to be of particular concern here.

Why the focus on women? Looking at the issue from a cultural perspective, this focus
is not surprising. In nearly every culture of the world, women’s sexual morality appears
to be a particularly favorite subject for slander, gossip, and insult.26 The tendency of
patriarchal societies, in fact, is to view a woman’s chastity as central to the honor of
her family, especially of the men in her family. For example, under the British common
law (the law in Pakistan before the Hudood Ordinance), rape was a crime punishable
against men, to be lodged by the husband of the woman raped against the man who
violated her (Hale 1778, 637-39).27 The woman’s place was apparently on the
sidelines of a prosecution by her husband against her rapist.

This cultural phenomenon–that a family’s honor lies in the virtue of its women–exists in
many countries today; Pakistan is one of them. Studies indicate that in Pakistan, when
women are jailed for long periods of time on charges of zina, their families and friends
are reluctant to help or even visit them, "as accusation of zina is a serious dishonor"
(Patel 1991, 27). Even more disturbing, suicide is perceived as the honorable solution
to the humiliation, especially sexual violation is involved. For example, when
Khursheed Begum was raped in 1992,28 her husband and son "wish[ed] she had
committed suicide," even after human rights activists explained to them that the rape
was not her fault (Scroggins 1992, A10). This attitude lends itself easily to
manipulation and the development of a tribal attitude where women’s bodies become
tools for revenge by men against men. Indeed, increasingly in Pakistan, "[i]n cases of
revenge against the male members of [a] family, instances have come to light where
their women are violated" (Patel 1991, 36).29 Even within a family, physically harming
(even killing) women for alleged infidelity or some other embarrassment to the
family—-often by some sort of burning–is an unfortunate tradition in the
Indo-Pakistani subcontinent.30 And, as world human rights organizations have
documented, "honor killings" of women suspected of sexual indiscretion, carried out
by a male family member, are unfortunately not limited to this part of the world.31

The Qur’an, however, has harsh words for the exploitation of women’s dignity in this
way. As if anticipating the misogynistic tendency of society, the Qur’an first establishes
that there is to be no speculation about a woman’s sexual conduct. No one may cast
any doubt upon the character of a woman except by formal charges, with very
specific, secure evidence (i.e. four eyewitnesses to actual intercourse) that the woman
is disrupting public decency with her behavior.33 If such direct proof does not
materialize, then anyone engaging in such a charge is subject to physical punishment for
slander. (For even if the information is true, any witness who is not accompanied by
another three will be punished for slander (Qur’an 24:11-17). As for the public at
large, they must leave her alone, regardless of the outcome. Where the public refuses
to perpetuate rumors, responding instead that: "it is not for us to speak of" (Qur’an 24:
16-17) the patriarchal tendency to invest the honor of society in women’s sexuality
loses force. In the face of any hint of a woman’s sexual impropriety, the Qur’anic
response is: walk away. Leave her alone. Leave her dignity intact. The honor of a
woman is not a tool, it is her fundamental right.



1. Pregnancy as proof of zina? Given the Qur’an’s strict standard of proof for a zina
case, one might now wonder whether the conviction of women like Jehan Mina and
Safia Bibi for zina on the evidence of their pregnancy alone33 could be justified by
Islamic law. In traditional Islamic jurisprudence, the majority opinion34 is that
pregnancy is not sufficient evidence alone to prove zina, since the Qur’an specifies
nothing less than four eye-witnesses, and a fundamental principle of Islamic criminal
procedure is that the benefit of the doubt lies with the accused.35 Other Muslim
scholars, however, have held that pregnancy does amount to proof of illegal sexual
relations, where the woman is unmarried and has not claimed rape. Imam Malik, and
reportedly Ahmad ibn Hanbal, for example, considered unmarried pregnancy prima
facie evidence of zina.36 This opinion is based in large part upon the reported positions
of the three famous caliphs, Umar ibn al-Khattab, Uthman ibn ‘Affan, and ‘Ali ibn Abi
Talib, that "[a]dultery is public when pregnancy appears or confession is made"
(Salama 1982, 121).37 The difference of opinion is also due to differing interpretations
of the role of circumstantial evidence in hudood cases.38

The rationale that "adultery is public with pregnancy" is clearly problematic. Although
the rationale does incorporate the concept that the real criminality in zina is the public
display of adultery, it fails to contemplate the potential discrimination against and
harming of women. As a practical evidentiary matter, this perspective does not take
into account modern medical advances such as artificial insemination which might be
alternative explanations for the pregnancy, not to mention pure force. More
substantively, though, it unfairly shifts the burden of proof against women. Forced to
prove that the intercourse was nonconsensual in order to avoid a zina prosecution, a
woman is automatically put in the position of defending her honor against accusations
which do not meet the Qur’anic four-witness requirement. This unfairness is not
supported by the spirit of the Qur’anic verses which discourage presumptions about a
woman’s sexual activity by insisting that no presumptions be made about women’s
sexual activity without four witnesses to the actual act.39 The shift in burden of proof is
even more patently unfair when the pregnant woman is a victim of rape. In that
instance, an unmarried pregnant woman must overcome the burden of a prima facie
case against her simply because the attack has resulted in pregnancy.

Moreover, the Qur’anic insistence on four witnesses, as we saw earlier, establishes
that the act of intercourse must be public, not its consequences.40 It is public sex
which is deterred, not public pregnancy. A pregnant woman looks the same in public,
whether the pregnancy occurred from rape, zina, or legal marital intercourse, and in
modern societies of large populations, it is generally not obvious which of these three
applies to a pregnant woman on the street. Nor, indeed, should the public (or courts)
speculate about it without solid eyewitness proof of the actual act of penetration,
according to Islamic law. Furthermore, pregnancy is something which only applies to
women. If pregnancy alone constitutes sufficient evidence of zina, the result seems to
forget that the very purpose of the zina verses is to protect women’s honor. Women,
again, tend to be more susceptible to accusation, and the Qur’an addresses this
susceptibility directly, by enjoining any charges against women without solid proof.41 If
pregnancy is allowed as sufficient proof of zina, a pregnant adulteress will be convicted
without any testimonial proof, while her adulterous partner escapes punishment with
his reputation intact. The woman-affirming spirit of the zina verses is lost.

C. Drafting Problems in the Zina Ordinance



1. The same brush: why rape as a form of zina? As we have seen, the Qur’anic verses
regarding zina do not address the concept of nonconsensual sex. This omission is a
logical one. The zina verses establish a crime of public sexual indecency. Rape, on the
other hand, is a very different crime. Rape is a reprehensible act which society has an
interest in preventing, whether or not it is committed in public. Therefore, rape does
not logically belong as a subset of the public indecency crime of zina. Unfortunately,
however, the Zina Ordinance is written exactly counter to this Qur’anic omission and it
includes zina-bil-jabr (zina by force) as a subcategory of the crime of zina.42

Where did the zina-bil-jabr section in the Ordinance come from then, if it is not part of
the Qur’anic law of zina? We will see later that in Islamic jurisprudence addressing
zina, there is significant discussion of whether there is liability for zina under duress.43
But the language of the zina-bil-jabr section in the Pakistani Ordinance does not appear
to be drawn from these discussions. (That is, it is not presented as an exception to zina
in the case of duress.) Rather, the zina-bil-jabr language is nearly identical to the old
common law of rape in Pakistan, the borrowed British criminal law in force in Pakistan
before the Hudood Ordinances. The old common law Pakistani rape statute read:

A man is said to commit "rape" who, except in the cases hereinafter excepted, has
sexual intercourse with a woman under circumstances falling under any of the following
descriptions:–



First.-–Against her will.



Secondly.-–Without her consent.



Thirdly.--With her consent, when her consent has been obtained by putting her in fear
of death, or of hurt.



Fourthly.-–With her consent when the man knows that he is not her husband, and that
her consent is given because she believes that he is another man to whom she is or
believes herself to be lawfully married.



Fifthly.–-With or without her consent, when she is under [fourteen] years of age.



Explanation.-–Penetration is sufficient to constitute the sexual intercourse necessary to
the offence of rape.



Exception.–-Sexual intercourse by a man with his own wife, the wife not being under
[thirteen] years of age is not rape (Pakistan Penal Code 1860, sec. 375).44

With the exception of the statutory rape section (under "Fifthly"), the language
specifying what constitutes rape is almost identical to the zina-bil-jabr language under
the Hudood Ordinance. Even the explanation that penetration is sufficient to constitute
the necessary intercourse is the same. Did the Pakistani legislators, in writing the
zina-bil-jabr law, simply relabel the old secular law of rape under the Muslim heading
of zina (as zina by force–-jabr), and re-enact it as part of the Hudood Islamization of
Pakistan’s laws–right along with the four-witness evidentiary rule unique to zina? If so,
this cut-and-paste job, albeit, a well-intentioned effort to retain rape as a crime in
Pakistan’s new Hudood criminal code, reveals a limited view of Islamic criminal law,
which, as illustrated, ultimately harms women.



2. Sexuality and suspicion. Rape law in the United States has long reflected cultural
patriarchal assumptions about female sexuality and consent. A frequent casualty in
rape trials is the rape victim’s reputation, as the court attempts to sort out the issue of
consent (Dripps 1992, 1782). This problem is exacerbated in Pakistan because the
convoluted placement of rape as part of the Zina Ordinance encourages the use of a
woman’s unsuccessful claim of rape as some sort of default evidence of zina. Thus,
there is a strong tendency to suspect any charge of rape to be a "loose woman’s"
attempt to escape punishment for zina. Female sexual stereotypes dangerously fuel
these cases. For example, on appeal of one rape conviction, the Pakistani Federal
Shariat Court stated:

[W]herever resort to courts is unavoidable for any reason, a general possibility that
even though the girl was a willing party to the occurrence, it would hardly be admitted
or conceded. In fact it is not uncommon that a woman, who was a willing party, acts
as a ravished woman, if she is surprised when in amorous courtship, love-making or in
the embrace of a man she has not repulsed.45

Such biased and derogatory observations against women by the Islamic court in
Pakistan reveal a basic cultural male bias in the perception of women and female
sexuality.

This bias also manifests itself in conclusions that a given sexual encounter must have
been consensual if there is no physical evidence of resistance by the woman (another
issue familiar to rape law reformers in the West). Many Pakistani judgments of rape
have been converted into zina cases because of the absence of evidence of such
resistance (Jilani 1992, 72). This stereotypical concept of women supposes that if a
woman does not struggle against a sexual assault, then she must be a sexually loose
woman–justifying a conversion of the charge to zina. This attitude unfairly generalizes
human reaction to force and the threat of violence. And, this generalization works to
the detriment of women who have been subjected to a rapist’s attack and survived
only by submitting without physical resistance.

Ironically, this is exactly the type of speculation regarding women’s sexual activity
which the Qur’an explicitly condemns in the very verses establishing the crime of
zina.46 Judicial and societal speculation about women’s sexual looseness clearly does
not correspond with the Qur’anic admonition that "it is not for us to speak of." The
intertwining of rape with zina in the Pakistani ordinance, however, encourages such
speculation. Rather than constituting a separate violent crime against women,
rape--under the title zina-bil-jabr-–is perceived more as a woman’s expected defense
to a zina charge, and thus subject to judicial speculation.47

3. Bearing Witness: Exclusively Male Testimony. We have reviewed the strict Qur’anic
quadruple testimony standard of proof for zina cases, and Islamic evidence law
regarding the nature of the testimony requiring upright, sane witnesses, and testimony
obtained without violation of privacy.48 The Zina Ordinance of Pakistan, however,
adds a limitation on the admissibility of evidence which we have not yet addressed: the
witnesses must all be men.49 That is, the standard of proof in the Zina Ordinance for
zina or zina-bil-jabr is either confession or testimony by "at least four Muslim adult male
witnesses"
(P.L.D. 1979, 183; Bokhary 1979, 182; Major Acts 1992, 12).

However, the Qur’anic zina verse setting forth the original four-witness requirement is
not exclusive to men.50 This verse refers to these four witnesses with the Arabic
masculine plural, "shuhada" ("witnesses"), which grammatically includes both men and
women, unless otherwise indicated.51 The inclusion of the word "male" in the Zina
Ordinance thus prompts the question: was this interpretation taken from Islamic law or
is it a Pakistani cultural gloss on the rule?

Despite the Qur’anic use of the plural noun inclusive to both men and women, many
Islamic jurists and scholars have traditionally limited the four witnesses in a zina case to
men.52 In fact, all major schools of thought have adopted restrictive interpretations of
women’s ability to testify as witnesses in general, although some (significantly including
the famous jurists, al-Tabari, Ibn Taymiyya, and Ibn al-Qayyim) have disagreed.53
The rationales accompanying this rule are interesting, however. For example, the
Hedaya, states:

Evidence is of several kinds, that of four men, as has been ordained in the Qur’an; and
the testimony of a woman in such case is not admitted; because . . . ‘in the time of the
Prophet and his two immediate successors it was an invariable rule to exclude the
evidence of women in all cases inducing punishment or retaliation’; and also because
the testimony of women involves a degree of doubt, as it is merely a substitute for
evidence, being accepted only where the testimony of men cannot be had; and
therefore it is not admitted in any matter liable to drop from the existence of doubt
(Hedaya 1982, 353-54 Bk.XXI, Ch.1).

Although the principle that reasonable doubt should negate convictions of violent
crimes is a laudable one, the reasoning leading to it appears to stem from a
condescending patriarchal view of women.54 This attitude continues even in more
modern texts on Islamic law:

In the case of [zina] the testimony of four male witnesses is required as a female is
weak in character (Ajijola 1981, 134).

[T]he concern of Islamic law for complete truthfulness of evidence and certainty of
proof is abundantly clear from its rules of evidence. Avoiding conviction only on a
single witness testimony and reluctance to act upon the evidence of women only are
indications of the fool-proof system of guilt-determination prescribed by the Qur’an
and Sunna[h] (Menon 1981, 237).

[I]t is to be observed that the evidence of women against men is not admissible in wine
drinking [prosecutions] because the evidence of females is liable to variation, and they
may also be suspected of absence of mind, or forgetfulness (Siddiqi 1985, 119).

[Regarding property cases, where two witnesses are required,55] [t]he Imam al-Shafi’i
has said that the evidence of one man and two women cannot be admitted, excepting
in cases such as hire, bail and so forth, because the evidence of (a) woman is originally
inadmissible on account of their weakness of understanding, their want of memory and
incapacity of governing, whence it is that their evidence is not admitted in criminal
cases (Siddiqi 1985, 45).

[In property cases, where two witnesses are required and the evidence of two women
is admissible in place of two men,] [t]he evidence of four women alone, however, is
not accepted, contrary to what analogy would suggest, because if it were, there would
be frequent occasions for their appearance in public, in order to give evidence;
whereas their privacy is the most laudable (Hedaya 1982, 354, Bk. XXI, Ch. 1).56

Assumptions such as these of the lack of memory, incompetence, and general weak
character of all women obviously stem from a patriarchal perspective in a
male-dominated intellectual community. The Qur’an, however, does not bear this
attitude, as it establishes the equality of men and women before God and the
responsibility of both equally as vicegerents of God on earth.57 But where cultures are
male-dominated, the absence of the active and intelligent participation of women in the
public sphere naturally might breed such attitudes, and these have apparently made
their way into the analysis and application of Islamic law in such societies and places in
history.

Educated Muslims today, however, would quickly dismiss as simple ignorance any
claims that women are inferior in intellectual capacity, memory, or character. As for
the societal harmony arguments that women do not venture out into public space,
Muslim women today, do not necessarily fit into the mold described in these quotes.
Nor, indeed, did all women of Muslim history.58 To reason that women should not be
witnesses to a zina or zina-bil-jabr case because this would encourage their going out in
public is pointless in a society where, for example, the medical evidence in a zina
prosecution might easily be submitted by a woman doctor, the prosecuting or defense
attorney could be a female litigator, and the presiding judge a woman jurist. The
caution against women entering public space has long been dropped in most parts of
Pakistan and other countries of the modern world.

The limitation of testimony exclusively to men appears to be an incorporation into
Islamic law of an antiquated custom which has now changed, and in Islamic law, "all
rules in the shari`ah [Islamic law] that are based upon customs change when custom
changes" (Mahmassani 1987, 116)59 Modern Islamist writings, in fact, have been
instrumental in establishing that such exclusion of women from public space is an unfair
cultural practice that is not an inherent part of Islam:

In the 1970s, some Islamists began a serious reexamination of the dominant
conservative position. They concluded that the inclusion of women in all facets of the
political process was entirely consistent with Islam, that Islam does not require strict
segregation of the sexes, and that much of the conservative position was based on
custom rather than on the absolute principles of Islam (Ghadbian 1995, 27).

Among the many respected leaders of the modern Islamist movement who follow this
attitude are Hasan al-Turabi of Sudan, Rachid al-Ghanouchi of Tunisia, and
Muhammad al-Ghazali and Yusuf al-Qaradawi of Egypt.60

The exclusivity of male testimony as an application of cultural male bias to the Islamic
law of zina is unfair. But the exclusion of female testimony becomes appalling when
expanded to apply to zina-bil-jabr as well. It is a clear travesty of justice to deny a
victim of rape the right to testify to this violent attack merely because she is a woman.
In applying the exclusively male evidence rule of traditional zina law to the crime of
zina-bil-jabr, Pakistan has transformed what was merely an unfair antiquated male bias
into a direct violation of the human rights of women. The direct contradiction to the
Qur’anic injunctions to stand up firmly for justice is obvious.

Moreover, depriving women as an entire gender of the right to testify in a zina or
zina-bil-jabr case–where a woman’s honor is generally at issue–has serious societal
ramifications. First, it prevents women from fulfilling the Islamic duty to bear witness to
the truth, repeatedly emphasized in the Qur’an.61 But even more significant is the fact
that the permanent rejection of testimony is itself a Qur’anic hadd penalty. That is, in its
verse prohibiting slander, the Qur’an establishes that deprivation of the right to testify
is a severe punishment–one of the two consequences of falsely accusing a woman:

Those who defame chaste women, and do not bring four witnesses, should be
punished with eighty lashes, and their testimony should not be accepted afterwards, for
they are profligates (Qur’an 24:4 (emphasis added)).

A law which disallows women’s testimony in zina cases, then, is tantamount to
sentencing all women to one of the Qur’anic punishments for slander. This is ironic
given the fact that the slander verse is specifically addressed to the preservation of
women’s honor--something that is stripped when one’s testimony is not accepted. As
one commentator puts it, "in a Muslim society the rejection of an individual’s testimony
is tantamount to outlawing him, [and thus] the rejection of the testimony of one who
has committed a hadd offence is a deterrent measure" (El-Awa 1982, 34). Elimination
of all female testimony in zina cases thus subjects women to part of the same
punishment as if they had committed a hadd crime, the most serious type of offense in
Islamic law. Quite different from honoring women, as the Qur’an dictates, this practice
dishonors all women by insinuating incompetence and weakness of character-–the
same qualities attributed to a slanderous witness.

Finally, there is a practical problem. If the rationale for rejecting a slanderer’s
testimony is deterrence, then why not also apply this deterrence to stop women from
slandering each other? That is, if women’s testimony is automatically inadmissible, then
a woman will naturally not be deterred by the injunction that a slanderer’s testimony
will no longer be admitted. Hence, part of the Qur’anic hadd punishment for the
offense of slander (that the slanderer’s testimony is rejected ever after) becomes
meaningless to women. Certainly, the punishment of flogging may yet be a deterrent,
but why, then, is there the additional punishment of rejecting future testimony? And
why would it apply only to men? The Qur’an gives no indication that it means to deter
women any less than men in its injunctions against slander.62 To simply nullify part of
the Qur’anic punishment for slander, then, seems quite a radical result to be based
merely on outdated cultural attitudes regarding women’s competence and societal
place.



4. Problems with Zina as Ta’zir. Islamic criminal law acknowledges two categories of
crime and punishment. The first, known as hudood, encompasses crimes specifically
articulated by God in the Qur’an and through the hadith. Islamic jurisprudence
acknowleges, however, that society may legislate additional crimes and punishments as
needed. These societally legislated crimes and punishments are called "ta’zir." Ta’zir
crimes can sometimes carry much lighter evidentiary or sentencing schemes than
Qur’anic hudood crimes.63 In Pakistan, when the strict quadruple witness standard of
proof is difficult to meet, it has become increasingly common for zina cases to be
prosecuted as ta’zir crimes, as opposed to hudood crimes.64 The Zina Ordinance
includes a clause providing for ta’zir prosecutions of zina where there is less evidence:



Zina or zina-bil-jabr liable to tazir.–

. . . [W]hoever commits zina or zina-bil-jabr which is not liable to hadd, or for which
proof in either of the forms mentioned . . . [i.e. confession or four witnesses] is not
available and the punishment of qazf (slander) liable to hadd has not been awarded to
the complainant, or for which hadd may not be enforced under this Ordinance, shall be
liable to tazir (P.L.D. 1979, 53; Major Acts 1992, 13).65

One seemingly positive aspect of ta’zir rape prosecutions in Pakistan is that the
relaxed evidentiary rules allow women’s testimony, as well as various forms of
circumstantial evidence not allowed in a hadd prosecution. However, the actual impact
upon women in zina cases has not been positive. One writer states:

Even though this level of punishment permits the testimony of women, observers of
Pakistan’s legal system have noted the bias against women victims and defendants.
Courts appear to extend the benefit of doubt to men accused of rape. However, they
set rigorous standards of proof to female rape victims who allege that the intercourse
was forced. This gender bias has resulted in: (1) women who find it so difficult to
prove zina-bil-jabr [under the hudood requirement of four male witnesses] that they find
themselves open to the possibility of prosecution for zina [under the relaxed ta’zir
evidentiary rules]; (2) men accused of zina-bil-jabr being subject to diminished charges
[because the hudood evidence is not proved]; and (3) women who are wrongfully
prosecuted and who are afforded restricted protection against such prosecution
(Rahman 1994, 1000).

Thus, the relaxed evidentiary rules of ta’zir (corresponding to its lesser punishment)
open the zina law to further manipulation by authorities, who may threaten a woman
with prosecution for zina under ta’zir evidence if there is not enough proof to convict
under hudood. If the woman is charging rape, this exacerbates the potential injustice of
the situation. A woman might watch her rapist be acquitted for lack of four witnesses,
but herself be subject to prosecution for zina under the looser evidentiary rules of
ta’zir.

This phenomenon should sound familiar:

Those who defame chaste women, and do not bring four witnesses, should be
punished with eighty lashes, and their testimony should not be accepted afterwards, for
they are profligates (Qur’an 24:4).

This is the Qur’anic verse which started our zina discussion. It contemplates the
possibility of adultery charges being brought against women upon less evidence than
four witnesses, and condemns it as a grievous slander. By allowing prosecution for
zina as a ta’zir punishment, and thereby loosening the evidentiary rules, the Pakistani
Zina Ordinance has succeeded in contravening the very Qur’anic verse upon which it
is based.66 In fact, zina is the only hadd crime for which the Qur’an sets out a specific
punishment for not meeting its strict evidentiary rules.67 The Qur’an thus indicates that,
unlike other hadd crimes, there can be no ta’zir punishment for zina. That is, for this
one crime, if four eyewitnesses are not produced, the state and society must walk
away and not speak of it again.68

But the Zina Ordinance goes even further in ignoring the Qur’anic injunction of
all-or-nothing proof of zina. It includes a provision for "attempt" of zina, setting forth
punishment of imprisonment, whipping, and a fine (P.L.D. 1979, 55; Major Acts
1992, 14-15). Again, this directly contradicts the spirit of the Islamic law of zina. Both
the Qur’anic verses quoted above and the hadith of Muhammad establish that unless
the act was actual penetration, it is not punishable by the state.69

There is a compelling Qur’anic spirit against either a ta’zir or an attempt version of
zina. Unfortunately, the Pakistani Zina Ordinance has lost sight of the unique status of
zina as a hadd crime of public indecency and expanded it to areas which inevitably
result in injustice and discrimination against women–-the focus of the Qur’anic verses
on the subject in the first place.

II. Rape in Islamic Jurisprudence

In this critique of the Pakistani Zina Ordinance, I have demonstrated that the crime of
zina set forth in the Qur’an is primarily a societal crime of public indecency, and for
that reason strict evidentiary standards of proof are attached to its prosecution. We
have also seen that some of the application of the Qur’anic evidentiary standard for
zina has been skewed by patriarchal culture to the detriment of women’s rights. The
inadmissibility of women’s testimony in zina cases, including rape prosecutions, is one
such example. The creation of a ta’zir version of zina, and the subcategorization of
rape under zina in the first place are other examples of aspects of Pakistan’s zina law
which unfairly dishonors its women.

So far, we have seen that the rationale for the strict evidentiary requirements for zina is
an affirmance and protection of both female and male honor: unlawful sexual
intercourse will be prosecuted by the state only when it is publicly indecent. Within the
privacy of one’s home, the immorality of the act is something left between the
individual and God. The same rationale would not, however, apply to the crime of
rape. In rape, public display is not the crucial element to the criminality of the act.
Rather, the attack itself is a crime of violence whether committed in public or in
private. Rape is not consensual sexual intercourse, but a violent assault against a
victim, man or woman, boy or girl, where the perpetrator uses sex as a weapon.
Consistent with our analysis thus far, the Qur’an does not include any direct mention of
rape under the general crime of zina. How, then, has Islamic law addressed the crime
of rape?

A. Duress: Rape as a Negation of Intent for Zina

In their chapters on zina, Islamic legal scholars have acknowledged that where one or
more parties engaged in zina under duress, they are not liable for zina.70 A hadith of
the Prophet Muhammad establishes this principle: upon a woman’s reporting to the
him that she was forced to commit adultery, he did not punish her, and he did punish
the perpetrator.71 Similar rulings by the Caliph Umar ibn Al-Khattab72 and Imam
Malik (Malik 1982, 392) further cement this principle in Islamic law. Islamic
jurisprudence, in fact, devotes much attention to the concept of duress as a negation of
intent, thus eliminating liability for an offense.73 The application of this field of law to
zina results in a thorough analysis of liability in possible permutations of forced zina.
Thus, the Hedaya devotes several paragraphs to resolving conflicting stories regarding
a sexual encounter where one party claims it was consensual, and the other claims it
was not (Hedaya 1982, 353-54). Matters become more complicated where the
witnesses to the encounter are of different genders (Hedaya 1982, 353-54). There is
also discussion and difference of opinion as to whether a man can be forced to commit
zina and thus not be liable for hadd punishment (Hedaya 1982, 187; al-Maqdisi 1994,
8:129).

Thus, the discussions of forced sex in jurisprudential writings on zina exhaustively
discuss nonconsensual sex as a negation of the requisite mental state for zina, but does
Islamic law address rape as an independent crime? As it turns out, contrary to what
the Pakistani legislation would suggest, Islamic jurisprudence has in fact not only
categorized rape as a separate criminal offense (under hiraba), but has also allowed
civil compensation to rape survivors (under jirah). These two remedies are addressed
in turn.

B. Hiraba: Rape as a Violent Taking



Hiraba is another hadd crime defined in the Qur’an. It is variously translated as
"forcible taking," "highway robbery," "terrorism," or "waging war against the state."
The crime of hiraba is based on the following Qur’anic verse:

The punishment for those who wage war [yuharibuna] against God and His Prophet,
and perpetrate disorders in the land is: kill or hang them, or have a hand on one side
and a foot on the other cut off or banish them from the land (Qur’an 5:33).

Islamic legal scholars have interpreted this crime to be any type of forcible assault
upon the people involving some sort of taking of property.74 It differs from ordinary
theft in that the Qur’anic crime of theft (sariqa) is a taking by stealth whereas hiraba is
a taking by force (Doi 1984, 250, 254; El-Awa 1982, 7). (Thus, the popular
translation as "armed robbery.") Although it is generally assumed to be violent public
harassment, many scholars have held that it is not limited to acts committed in public
places (Sabiq 1993, 2:447).

It is in the discussions of the crime of hiraba where the crime of rape appears. A brief
review of the traditional descriptions of hiraba reveals that rape is specifically included
among its various forms. For example, in Fiqh-us-Sunnah, a modern summary of the
primary traditional schools of thought on Islamic law, hiraba is described as: a single
person or group of people causing public disruption, killing, forcibly taking property or
money, attacking or raping women ("hatk al ‘arad"), killing cattle, or disrupting
agriculture (Sabiq 1993, 450). Reports of individual scholars on the subject further
confirm the hiraba classification of rape.75 Al-Dasuqi, for example, a Maliki jurist, held
that if a person forced a woman to have sex, their actions would be deemed as
committing hiraba (Doi 1984, 253). In addition, the Maliki judge Ibn ‘Arabi, relates a
story in which a group was attacked and a woman in their party raped. Responding to
the argument that the crime did not constitute hiraba because no money was taken and
no weapons used, Ibn ‘Arabi replied indignantly that "hiraba with the private parts" is
much worse than a hiraba involving the taking of money, and that anyone would rather
be subjected to the latter than the former (Sabiq 1993, 2:450). The famous Spanish
Muslim jurist, Ibn Hazm, a follower of the Zahiri school, reportedly had the widest
definition of hiraba, defining a hiraba offender as:

[O]ne who puts people in fear on the road, whether or not with a weapon, at night or
day, in urban areas or in open spaces, in the palace of a caliph or a mosque, with or
without accomplices, in the desert or in the village, in a large or small city, with one or
more people . . . making people fear that they’ll be killed, or have money taken, or be
raped ("hatk al ‘arad") . . . whether the attackers are one or many (Sabiq 1993,
2:450)."

Thus, even this cursory review of traditional Islamic jurisprudence shows that the crime
of rape is classified not as a subcategory of zina, but rather as a separate crime of
violence under hiraba. This classification is logical, as the "taking" is of the victim’s
property (the rape victim’s sexual autonomy) by force. In Islam, sexual autonomy and
pleasure is a fundamental right for both women and men;76 taking by force someone’s
right to control the sexual activity of one’s body is thus logically classified as a form of
hiraba. Note that this principle could also be applied to expand the Islamic law of rape
to include the rape of men as another instance of the violent taking of an individual’s
sexual autonomy.77

Moreover, classification of rape under hiraba promotes the principle of honoring
women’s sexual dignity established in the Qur’anic verses on zina. Rape as hiraba is a
separate violent crime which uses sexual intercourse as a weapon. The focus in a
hiraba prosecution would be the accused rapist and his intent and physical actions,
rather than second-guessing the consent of the rape victim, as we have seen is likely to
happen in a zina-bil-jabr case.78

Finally, hiraba does not require four witnesses to prove the offense, unlike zina.
Circumstantial evidence and expert testimony, then, presumably form the evidence
used to prosecute such crimes. In addition to eyewitness testimony, medical data and
expert testimony, a modern hiraba prosecution of rape would likely take advantage of
modern technological advances such as forensic and DNA testing.

C. Jirah: Rape as Bodily Harm

Islamic legal responses to rape are not limited to a criminal prosecution for hiraba.
Islamic jurisprudence also creates an avenue for civil redress for a rape survivor in its
law of "jirah" (wounds). Islamic law designates ownership rights to each part of one’s
body, and a right to corresponding compensation for any harm done unlawfully to any
of those parts.79 Islamic law calls this the law of jirah (wounds). Harm to a sexual
organ, therefore, entitles the person harmed to appropriate financial compensation
under classical Islamic jirah jurisprudence (al-Maqdisi 1994, 36).80 Thus, each school
of Islamic law has held that where a woman is harmed through sexual intercourse
(some include marital intercourse), she is entitled to financial compensation for the
harm. Further, where this intercourse was without the consent of the woman, the
perpetrator must pay the woman both the basic compensation for the harm, as well as
an additional amount based on the diyya (financial compensation for murder, akin to a
wrongful death payment).81

Since rape could occur even without a clear threat of physical force (i.e. thus perhaps
not constituting hiraba, but nonetheless constituting sex without consent), the
categorization of rape under the Islamic law of jirah also makes logical sense. This
categorization would provide financial compensation to every victim of rape for any
harm done to their body as a result of the attack. Taking the analysis further, because
the right to control one’s own sexual activity is a fundamental Islamic and human right,
it could be argued that foreign invasion of one’s sexual organs against one’s will
constitutes harm, even where there is no physical bruising or tearing. Modern Islamic
jurisprudence and legislation could therefore choose to provide that either instead of,
or in addition to hiraba punishment against the rapist, a woman might also claim
compensation for her ordeal under the principle of jirah. Again, this analysis would also
provide for male rape victims.

Interestingly, Western legal discourse has just recently begun to reevaluate the crime of
rape, and is still struggling to overcome its male-oriented articulation of the crime. If
Islamic jurisprudence were to continue its development in the direction outlined above,
jirah principles provide an interesting alternative remedy. Islamic law has the unique
resource of a jirah system of established bodily compensation law to apply as one
response to the crime of nonconsensual intercourse, if it were recognized in modern
Islamic legislation. In Western history, ancient Roman law also recognized
compensation as a means of resolving a rape dispute, but it took a more patriarchal
approach: it found that the father (or other male authority) of the rape victim was
owed damages because rape implied his inability to protect the woman (Dripps 1992,
1780-81). Islamic law, with its radical introduction of a woman’s right to own
property as a fundamental right, already employs a gender-egalitarian attitude in this
area of jurisprudence. In fact, there is a hadith specifically directed to transforming the
early Muslim population out of this patriarchal attitude of male financial compensation
for female sexual activity. During the time of Prophet Muhammad, a young man
committed zina with his employer’s wife. The father of the young man gave one
hundred goats and a maid as compensation to the employer, who accepted it. When
the case was reported to the Prophet, he ordered the return of the goats and the maid
to the young man’s father and prosecuted the adulterer for zina (Abu Daud 1990, 3:
Bk. 33, No. 4430; Bukhari 1985, 8:Bk. 81, Nos. 815, 821, 826). Early Islam thus
established that there should be no tolerance of the attitude that a woman’s sexual
activity is something to be bartered, pawned, gossiped about, or owned by the men in
her life. Personal responsibility of every human being for her own actions is a
fundamental principle in Islamic thought.

Recent discussions of marital rape among Western scholars,82 can also be compared
to the debate among Islamic legal scholars regarding whether a husband is obligated to
pay his wife when she is physically harmed from sexual intercourse brings up an
interesting question: Is there a recognition of marital rape in Islam.83 In the context of
jirah, it would appear so: where there is any physical harm caused to a spouse, there
may be a claim for jirah compensation.84 Even in these discussions of appropriate jirah
compensation, the question of the injured party’s consent plays a central role. Some
Islamic jurists considered consent to be presumed by virtue of the marital relationship,
while others maintain that where harm occurs, it is an assault, regardless of the
consent, and therefore compensation is due (al-Maqdisi 1994, 8:36).85 In our modern
era, one might take these precedents and their premium focus on consent and apply
the Islamic principle of sexual autonomy to conclude that any sex without consent is
harmful, as a dishonoring of the unwilling party’s sexual autonomy. Thus, modern
Islamic jurists and legislators, taking a gender-egalitarian perspective, might conclude
that Islamic law does recognize marital rape, and assign the appropriate injunctions
and compensation for this personally devastating harm.

Conclusion: A Modern Islamic Gender-Egalitarian Law of Rape?

And so we return to the initial question: do Pakistan’s criminal laws articulate the
Islamic law of rape? We have seen that they do not. But they could have. We have
seen that Islamic jurisprudence includes a law of rape with two very appropriate
avenues to justly respond to the crime, its seriousness, and its effect on women in
particular. Unfortunately, the drafters of Pakistan’s Hudood Ordinance and the
Shari`ah court which implemented it took no notice of this precedent in creating
Pakistan’s zina law. The result has been injustice to the women of Pakistan, and a
disservice to Islamic law. This brief investigation into some of the traditional Islamic
jurisprudence on rape shows that it is more than feasible for modern Muslim legislators
to take the tools offered in Islamic jurisprudence on hiraba and jirah to form a
comprehensive gender-egalitarian law of rape which does not counteract the positive
honoring of women which is inherent in the Qur’anic verses on zina. Rape should be
specified as a form of hiraba in the hiraba section of modern hudood statutes, thus
identifying it as a violent crime for which the perpetrator is subject to serious
punishment. In fact, Pakistan already has a hiraba chapter in its Hudood Ordinance
(Major Acts 1992, 7). Modern Islamic legislation might also designate rape as a harm
under jirah, thus creating grounds for rape victims to receive some compensation for
the harm caused to their bodies and sexual autonomy.

Modern Islamic jurists, legislatures, members of the judiciary and the bar must work
out the logical details of these laws, and what combination of hiraba and jirah should
apply in a given situation and society. A greater challenge, perhaps, is changing the
cultural attitudes towards women which helped to create the existing laws in the first
place. That ongoing effort must be undertaken simultaneously with any official
legislative changes, in order to give real effect to such legislation, and to give life to the
Qur’anic verses honoring women.

Source:  (http://www.karamah.org/karamah/publications/rape_main.htm)

 

Women are explicitly discriminated against - the Zina Ordinance allows women to be imprisoned solely on
the grounds of their gender and allows rape victims to be accused of unlawful sexual intercourse if they
cannot prove that they were raped. Fifteen-year-old Jehan Mina became pregnant after being raped by
her uncle and her cousin. Her family filed a complaint of rape but since there were no witnesses, the
alleged rapists were acquitted. Yet her pregnancy was taken as proof that zina (extra-marital sexual
intercourse) had taken place and she was sentenced to 100 lashes in public. The punishment was later
converted to three year's imprisonment and 10 lashes.
FROM:  (http://www.amnesty.org.uk/journal_july97/pakistan.html)

A major factor contributing to this state of affairs is the Zina Ordinance of 1979 promulgated by martial law
dictator Zia ul-Haq in an effort to Islamatize the penal code. The Zina Ordinance criminalizes adultery, fornication,
rape, and sexual relations outside marriage. It also imposes harsh punishments for violating Islamic law (or Shari'a)
including death by stoning for unlawful sexual relations, public flogging, and amputation for crimes such as theft. In
practice, the burden of proof for imposing these punishments is extremely high and, to date, they have never been
carried out in Pakistan. Nonetheless, this law applies to Muslims and non-Muslims alike and weighs heavily on
women. For example, one procedural aspect of zina imposes a reverse burden of proof for victims of rape. This
burden requires that a woman who has been raped must prove that the act was nonconsensual. If she fails to meet
this burden, she may be charged with committing zina for which harsh penalties may be imposed. It is estimated
that fifteen percent of rape trials result in the victim being char-ged with zina and imprisoned. Moreover, because
women are not permitted to testify in certain criminal trials, a rape victim may be convicted of zina without having
been permitted to testify.

The incidence of rape has reached a crisis level in Pakistan. There are numerous documented cases of employers
raping domestic servants, women being sexually assaulted by male relatives, and police officers raping women in
their custody. Many women who have become pregnant as a result of rape have been convicted under the Zina
Ordinance. Their babies were used against them as evidence of having violated the Zina Ordinance. They were
subsequently flogged, fined, and imprisoned. Successive governments have failed to prosecute and punish these
abusers, which is the single largest obstacle to ending this cycle of violence against women.
FROM:  (http://www.icclhr.mcmail.com/pakiwom.htm)

Feuds run on for generations. Sex outside marriage, consenting or otherwise, is punished by the death of both parties. Last
week the people of the area stood by the sentence on Lal Jamilla.
FROM:  (http://www.guardianunlimited.co.uk/Archive/Article/0,4273,3855659,00.html)

 

In Pakistan, Rape Victims Are the 'Criminals'
By SETH MYDANS   May 17, 2002      http://www.nytimes.com/2002/05/17/international/asia/17RAPE.html

CHORLAKI, Pakistan ? The evidence of guilt was there for all to see: a newborn baby in the arms of its mother, a village woman named Zafran Bibi.

Her crime: she had been raped. Her sentence: death by stoning.

Now Ms. Zafran, who is about 26, is in solitary confinement in a death-row cell in Kohat, a nearby town. The only visitor she is allowed is her baby daughter, now a year old and being cared for by a prison nurse.

In photographs, Ms. Zafran is a tall woman with striking green eyes ? a peasant woman of the hot and barren hills of Pakistan's northwest frontier country. Unschooled and illiterate, like most other women here, she may have little understanding of what has happened to her. But her story is not uncommon under Pakistan's strict Islamic laws.

Thumping a fat red statute book, the white-bearded judge who convicted her, Anwar Ali Khan, said he had simply followed the letter of the Koran-based law, known as hudood, that mandates punishments.

"The illegitimate child is not disowned by her and therefore is proof of zina," he said, referring to laws that forbid any sexual contact outside marriage. Furthermore, he said, in accusing her brother-in-law of raping her, Ms. Zafran had confessed to her crime.

"The lady stated before this court that, yes, she had committed sexual intercourse, but with the brother of her husband," Judge Khan said. "This left no option to the court but to impose the highest penalty."

Although legal fine points do exist, little distinction is made in court between forced and consensual sex.

When hudood was enacted 23 years ago, the laws were formally described as measures to ban "all forms of adultery, whether the offense is committed with or without the consent of the parties." But it is almost always the women who are punished, whatever the facts.

The case of Ms. Zafran fits a familiar pattern. But it raised an outcry, even in Pakistan, because of the sentence of death by stoning, a punishment called for by hudood but never carried out here. The facts of her case have become the subject of editorials and news stories in Pakistan, bringing her some notoriety, and in early May, a higher court called for a review of Ms. Zafran's sentence.

But even if the case returns to a more typical course, she is likely to spend 10 to 15 years in prison as the result of her rape, said Rukhshanda Naz, who heads the local branch of a women's rights group called Aurat. As many as 80 percent of all women in Pakistani jails have been convicted under laws that ban extramarital sex, according to Aurat.

Ms. Zafran, whether she was angry or just na?ve, chose to point her finger at the man she said raped her. The assaults, she said, came sometimes on the hillside behind her house when she went to cut hay, sometimes at home when nobody was there to see.

Sardar Ali Khan, her lawyer, said that Ms. Zadran had told him she cried when she was raped and that she had cried again as she spoke to him about what happened.

Her husband, Niamat Khan, was serving a prison sentence for murder and in his absence, she had become the plaything of at least one of his brothers.

"She complained to her mother-in-law and her father-in-law," her lawyer said, "but they just turned away." It was her pregnancy that forced her accusations into the open and led to her conviction for zina.

Human rights groups say abuse of women is endemic in Pakistan. Often, they are locked inside their homes where they are subjected to beatings, acid attacks, burning and rape. Every year there are hundreds of "honor killings," in which a woman is murdered for perceived breaches of modesty.

For the most part, abuses like these are carried out with impunity, and often with the support of traditional communities.

Rape itself is a crime under hudood, but it is so difficult to prove that men are rarely convicted. On the other hand, human rights workers say, as many as half the women who report a rape are charged under zina laws with adultery.

"With the men, they apply the principle that you are innocent until proven guilty," said Asma Jahangir, an official of the independent Human Rights Commission of Pakistan and the author of a book on hudood. "With the women, they apply the principle that you are guilty until proven innocent."

The man Ms. Zafran accused, Jamal Khan, was set free without charges. A case against him would have been a waste of the court's time. Under the laws of zina, four male witnesses, all Muslims and all citizens of upright character, must testify to having seen a rape take place. The testimony of women or non-Muslims is not admissible. The victim's accusation also carries little weight; the only significant testimony she can give is an admission of guilt.

"The proof is totally impossible," said Ms. Naz. "If a woman brings a charge of rape, she puts herself in grave danger." If, on the other hand, the woman does not report the rape and becomes pregnant out of wedlock, her silence can be taken as proof of guilt.

It is not only women but also young girls who are at risk, Aurat says. If girls report a rape, they face the same prospects of punishment as women.

A man can deflect an accusation of rape by claiming that his victim, of any age, consented. If the victim has reached puberty, she is considered to be an adult and is then subject to prosecution for zina. As a result, the Aurat report says, girls as young as 12 or 13 have been convicted of having forbidden sexual relations and have been punished with imprisonment and a public whipping.

With no safe recourse, rights workers say, rape victims often flee to the protection of influential families, which may take them in as servants.

The harsh life of women like Ms. Zafran seems to blend with the harshness of the land on which they live. The dry, rocky hills along the frontier with Afghanistan, where only thorn bushes thrive, offer no hint to the people here that a gentler life is possible. Flat mud houses scattered like tiny forts across the landscape suggest that there is little companionship among the people who toil here.

When Ms. Zafran was given in marriage to Niamat Khan, his family took possession of her and she disappeared into their mud-walled compound a mile away. Her parents rarely saw her again; they are too poor even to have a photograph to remind them of her.

In this barren world, where people grow hard to survive, their tenderness for their daughter seems all the more painful. They sat silently one recent day on the string beds that are the only furnishings of their bare one-room home.

Ms. Zafran's father, Zaidan, an unsmiling, weatherbeaten man, spread his hands as if he had no words to offer.

"When we heard the sentence, we couldn't breathe," he said at last. "We couldn't think. For days we couldn't eat. There was nothing we could do for our daughter." He said he had sold his family's only possessions, two thin goats, to help pay for a lawyer.

His wife, Shiraka, whose beauty seems only to have been deepened by her difficult life, looked away. "I have been sucked dry by grief," she said.

 

 

 

 

 

 




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