Rape: Fallacies of the four witness requirement

Published: December 23, 2011

According to the Hudood Ordinance, rape victims should have four male eye witnesses to prove the crime. PHOTO: REUTERS

If you search the internet regarding the Islamic perspective on the issue of rape, unfortunately you will come across thousands of hate sites that are bent on criticising Islam. There are only a few forums that present the correct understanding of this much-exploited trauma-turned-melodrama.

Adultery and rape are crimes that have existed since time immemorial. In Pakistan, the Hudood laws were implemented in 1979 by the then dictator Ziaul Haq and termed Islamic Shariah Laws. That is when the problem began. According to the Hudood Ordinance, rape victims have to produce four male eye-witnesses to the crime. If they can’t do so, they can be prosecuted for adultery – a crime that potentially has the punishment of death by stoning. Although the death penalty was never implemented, the prosecuted women were jailed and fined heavily. Hence, we have seen the unfortunate cases like those of Zafran Bibi, Safia Bibi and Mukhtaran Mai.

In today’s world, who in their right mind would believe the claim of some ‘Islamists’ who insist that a rape victim requires four witnesses to prove the crime? It is unfortunate that they are bent on this false assertion and are unwilling to even listen to logical questions – debating and changing their stance is a far cry.

As for rape, most Islamic scholars in this country have made it a subcategory of zina (adultery) and have finished the distinction between adultery and rape, forgetting that rape is a hate crime – a form of severe torture/fitnah - not just a sex crime as most of us do believe or are made to believe. Islam is very clear in its stance on torture. It considers every single life sacred irrespective of gender, age or religion. (Quran 6:151, 17.33 & 5.32 ) Furthermore, there are some 150 verses in the Quran that assert that life is not just physical but encompasses our mental, emotional and spiritual aspects as well, thereby implying that crimes such as rape should not be trivially taken as mere physical trauma.

Like it does for all major forms of cruelty, Islam severely punishes rape and there is no concept of four witnesses to prove that one has been raped. Those who believe and say that Islam requires four witnesses to prove rape are misguided, lacing in their understanding and comprehension/firasah of Islam and forget that this very law is a form of oppression. No religion of God can have such an oppressive law. They equivocate the Quranic injunction of bringing four witnesses for adultery with the conditions of rape. In doing so, they coldly forget that asking a rape victim to bring four witnesses is inflicting further pain on her. Moreover, who in his right mind would stand and watch an act of rape take place, not stop the accuser and then appear before the court as a witness?

For adultery, if someone refutes a woman’s claim of innocence, the onus falls on that person to provide four witnesses. The woman can also deny the claim by taking a solemn oath and clearing her name in public. She does not need even one witness to prove that she has been raped. Nowhere in the entire Quran or the ahadith has it been mentioned that a rape victim requires four witnesses.

Islamic legal scholars interpret rape as a crime in the category of hiraba (highway robbery, terrorism or promoting terror). Hiraba does not require four witnesses to prove the offence; circumstantial evidence, medical data and expert testimony form the evidence used to prosecute such crimes. During the time of the Prophet (pbuh), punishment was inflicted on the rapist on the solitary evidence of the woman who was raped by the perpetrator. Wa’il ibn Hujr reports of an incident when a woman was raped. Later, when some people came by, she identified and accused the man of raping her. They seized him and brought him to Allah’s messenger, who said to the woman, “Go away, for Allâh has forgiven you,” but of the man who had raped her, he said, “stone him to death.” (Tirmidhi and Abu Dawud)

The Islamic response to rape is not just confined to criminal prosecution. Islamic jurisprudence also provides an avenue for civil redress for a rape survivor in its ‘law of jirah’ (wounds) whereby the state has to provide compensation to the victim. Hence, Islam is completely logical, clear and rational in dealing with rape and there is no place for claims like the requirement of four witnesses to prove the crime. We should enlighten ourselves and others around us on this issue to avoid ambiguities and false interpretations of such sensitive issue like religion.

Aaishah.abubakr

Aaishah AbuBakr

A literature graduate from the Kinnaird College for women. She is also a freelancer, poet and social activist.

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.

  • AMQ

    Love ur post! thank u for writing this blog…Recommend

  • Asad

    Great write up …especially quoting the hadith in the end. Indeed Islam does not require 4 witnessess for rape victims (its only for adultery cases), but the Pakistanis do not understand Islam correctly and the enemies of Islam take advantage of this and try to malign the only divine religion- Islam. Recommend

  • Anonymous

    Finally, its been a long time someone has written something intelligent on the captioned subject. The problem still lies that we interpret everything literally. Even if we take the example of the Holy book, there is a Zahir and a Batin to everything that has been said. It is only a matter of interpretation! Similarly, in this case, for anyone using even the least amount of common sense would be astounded at the requirement! Cuz if 4 people were there who witnessed this happening and didnt stop it…then it was probably a gang rape where these people actually participated in the activity!!! so wat ur saying is that u want the people who gang raped a woman to come and testify that they were the ones who gang raped her..WOW!!!!
    Recommend

  • Kamran rashid

    In Europe women had more rights, in rape and adultery onus is on men to prove not guilty.

    Could you research basis of similarities and implications to identify who got closer application of true spirit of justice.

    Based on your article it looks Europe is more close to Islamic justice – indeed Islam offers best solution and we as Muslim undoubtedly believe it.

    I know in UK there is a bribery act 2010 here both briber(Rashi) and briberee ( murtashiee) are punishable which is live example of Islamic rule. This evident the fact that 1400 year back dated laws and rules set out by Allah are enacted in 2010.

    It would be interesting and I can contribute in your research.Recommend

  • Duri

    ahhh.. couple of days before had similar discussion with my friend that let us to one question if 4 witness are present at the scene wont they able to stop the crime instead of telling to story to legal authorities. How foolish does the approach seems of the so-called mullahs!Recommend

  • M

    @ Hassan Bin Fahim: 1) By your definition we should put rape in the same category as adultry, and stick to the 4-vitnusses condition. Because right now THAT is the interpretation of the majority of people. Does that make sense to you?

    2) The vast majority of Pakistanis are Muslim? I beg to differ. One does not simply become a Muslim by adding the title of “musalman” to their name. You need to fulfill many other criteria that have to do with being a compassionate and honest human being and being better informed of Quranic teachings before you can be considered a practicing Muslim. And this, unfortunately, is something I don’t see in most PakistanisRecommend

  • Asad

    ppl lack knowledge on this matter. Witness requirement is not for the punishment of Rape or Adultry. It is Required to Decide about the TYPE OF PUNISHMENT. Punishment is mendatory as per law in both cases. However 4 Witnesses are only Required for HADD punishment (which in the case of a married person could be stoned to death and for the non-married, 100 lashes).

    If victim has fails to provide 4 witness acused can not be given HADD Punishment but rather the discretionary punishments which are left up to the legal system to determine.
    4 minutes ago · LikeRecommend

  • http://syedaabidabokhari.wordpress.com The Only Normal Person Here.

    Well written and good article. Though I dont agree with a few things but good.Recommend

  • Talha

    Why was my earlier comment removed?

    So much for freedom of expression in regards to religion.

    Many agreed with my comment too.Recommend

  • http://www.nerdcrunch.com Moderate

    Great writeupRecommend

  • Mj

    In conclusion – a rapist should be stoned to death? How humane!Recommend

  • http://Cosmos Dr. Who!

    “As for rape, most Islamic scholars in this country have made it a subcategory of zina (adultery) and have finished the distinction between adultery and rape, forgetting that rape is a hate crime – a form of severe torture/fitnah – not just a sex crime as most of us do believe or are made to believe.”

    Beautifully explained.

    Even in Zina category; “Rape is Zina bil Jabbar,” clearly distinct from consensual intercourse and a crime at par with murder, therefore does not need 4 male, adult, sane witnesses.
    The mandatory requirement of 4 witness was to eliminate any accusation of adultary.

    Can a historian or religious scholar tell me how many people were accused of and received punishment for adultary during Prophet PBUH and the 4 khulfas tenure?Recommend

  • JZ

    . They seized him and brought him to Allah’s messenger, who said to the woman, “Go away, for Allâh has forgiven you,”
    Forgiven you?!!!! what was the women’s crime to be forgiven here? She was Raped, it was not adultry to be forgiven!Recommend

  • Ali Tanoli

    Very informative & well writen article sis may god bless u. i have to say here my exprience
    i laughed when ever i here and see news in american chanels on T.V that islam is misunder
    stood and less informed reliegen in west why they lies even though they know we regonized them and we respect there prophets there books and we allowed to eat kosher food with them and we allowed to meery jews and christians girls and like old saying is eat with jew
    and sleep with christian and why they love to get profit from muslims love petrol from muslim
    land but hat our prophet and our laws. i dont get it.Recommend

  • samia rehman

    “They seized him and brought him to Allah’s messenger, who said to the woman, ‘Go away, for Allâh has forgiven you,’ but of the man who had raped her, he said, ‘stone him to death.’”

    So why did Allah’s messenger say that “Allah has forgiven you”? Does that not imply that the rape victim was in some way at fault? Had she committed some crime for which she needed to be forgiven? Is that not the kind of attitude that leads imbeciles to conflate adultery with rape even though rape, by definition, indicates the absence of consent?Recommend

  • Dr.Who!

    @samia rehman:

    I don’t know how authentic the Hadith is but regardless look at the context.

    The forgiveness meant that she did not have to feel guilty or blame herself.

    Also the public forgiveness meant that no body could taunt or humiliate her because of the incidence.

    It is not uncommon for victims to feel responsible for the assault and feel guilty leading to suicide.
    Remeber this is happening in a society where less than a generation before, female infants were burried alive with impunity.Recommend

  • NaiveCitizen

    Excuse me,where in Quran does it say, that stoning to death is an OK punishment?
    ???
    What is the source of the hadith, that says the prophet ordered a rapist being stoned????
    Most importantly, why would the Holy Prophet allow a punishment that Allah has not allowed?Recommend

  • adam

    Islam punishes those who do crimes against humand and humaniyt, that is enough, the rest of procedures can be defiend through only Ijtahad, not through a article like this. Since Ijtahad was stoped, Islamic laws were not updated with the due course of time in the light of Holy Quran and interpretation of his Holy Prophet and Explainations by the decendents of Holy porphetRecommend

  • http://NewYork Falcon

    @JZ and @Samia Rehman…

    Let’s try to understand the context…first of all…the writer has not mentioned the original Arabic words…so don’t know what was originally communicated…

    Secondly…even if it was said…”You are Forgiven”…doesn’t apply necessarily to that context…it applies to the fundamental spiritual law spanning most of the religions that when human beings suffer from a circumstance outside of their control, all / most of the sins (read mistakes) of their lifetime are forgiven out of Mercy by God. For example, when people fall sick, their sins are forgiven for the pain they are going through. This is most likely what was meant. Let’s understand before judging first.Recommend

  • Anum

    Rape requires 4 witnesses when the punishment is stoning to death. It is a harsh punishment. Rape can be proved in a court of law through DNA or other means. But for the islamic punishment to go through (stoning to death) 4 witnesses must exist.

    Yes it is almost absurd since there can never be 4 pious men who will witness such an act. Islamic laws were formulated for the entire time the world exists. For example adultery. It may not have been possible for a man and woman to have consensual sex in the middle of the market back then, but it sure is possible now. Right? And Islamicly that is supposed to happen one day, it is a sign of Day of Judgement.Recommend

  • saad

    She is removing comments on this blog. Recommend

  • alicia

    @ Anum

    For example adultery. It may not have
    been possible for a man and woman to
    have consensual sex in the middle of
    the market back then, but it sure is
    possible now.

    Are you serious? How many people have u seen having sex in the middle of a market today?Recommend

  • alicia

    Another thing with the four witness requirement is that a womens testimony is considered half of a mans. So if there are seven women witnesses they would be counted as 3.5 and the rapist will go free.Recommend

  • RAW is WAR

    sharia for you.and you guys want to impliment it all over the world.Recommend

  • Kanwal Azfar

    this was awesome. I always felt that the government’s version of islam was severely flawed. Thank you for proving it. :)Recommend

  • nusrat osama

    It is a very well written article and explains the stance of our religion in a disputed aspect. Well done!Recommend

  • Anum

    @ Alicia, maybe not Pakistan. Plenty of examples in America and elsewhere. Porn counts as one. Several witnesses arent there?Recommend

  • M

    @Anum, . America is quiet conservative. It’s not the same as the America you see in Hollywood movies, the same way the high-society Pakistani dramas you see are not an ideal representation of the conservative lower-middle class majority of our country.

    Porn is different from rape.

    Please educate yourself on Islamic dictum. The rule about women’s testimony being less then that of men’s, or women requiring more witnesses ONLY applies to financial mattersRecommend

  • sami

    Great article… Keep it up.Recommend

  • http://Cosmos Dr. Who!

    @M:
    The Biblical and legal Secular Western term for “Witness” is “Testimony.”
    Women could not “Testify” as they lacked “Testamentary Capacity” because of obvious anatomical disadvantage.
    Only anatomically intact men could swear or bear witness or “Testify” by placing hand on their “Manhood.”
    Allowing women to be witness, albeit half of man’s, was a true revolution.
    Remember this happened 1,400 years ago, in a tribal Arab society.
    If mullah knew real Islam, he would renounce it in a heartbeat.Recommend

  • Cautious

    You have to be a good human being before you can be a good Muslim, Christian or whatever — that seems to elude most religious scholars. It’s pathetic that someone has to write an article explaining that it’s inappropriate that a law requires someone to provide 4 witnesses to prove that they have been raped — says something about your country – says something about your interpretation of your religion. It”s the 21 century perhaps it’s time you joined it.Recommend

  • http://bigsaf.newsvine.com bigsaf

    To the author, I believe you or your editor unfortunately abridged and misquoted the purported hadith as narrated by ibn Hujr at the end quite poorly, causing confusion with at least 3 readers, JZ, Saima and Falcon.

    Here is the correct, in context detail.

    http://www.bismikaallahuma.org/archives/2006/does-islam-require-four-witnesses-for-rape/

    “Narrated Wa’il ibn Hujr: “When a woman went out in the time of the Prophet (P) for prayer, a man attacked her and overpowered [raped] her. She shouted and he went off, and when a man came by, she said: That [man] did such and such to me. And when a company of the Emigrants came by, she said: That man did such and such to me. They went and seized the man whom they thought had had intercourse with her and brought him to her.

    She said: Yes, this is he. Then they brought him to the Apostle of Allah (P).

    When he [the Prophet] was about to pass sentence, the man who [actually] had assaulted her stood up and said: Apostle of Allah, I am the man who did it to her.

    He [the Prophet] said to her: Go away, for Allah has forgiven you. But he told the man some good words [Abu Dawud said: "meaning the man who was seized"], and of the man who had had intercourse with her, he said: “Stone him to death.“4

    The readers who were confused on why the rape victim was ‘forgiven’ by Rasool (SAW) in the said incident…according to this account she had initially and wrongfully, out of confusion and mistake, accused the wrong man who due to his proximity was at the wrong place at the wrong time, but was innocent and not guilty of the crime committed against her, which was only found out when the real rapist came forward.

    How authentic is the account, I don’t know. We can only speculate on the reason why the supposed real rapist admitted the crime and what if scenario of a different outcome of an innocent man being punished or perhaps this was the only divine outcome to be expected.

    But it is a referred account and widely believed to show how serious crime against women, such as rape, was taken in Islam, as well as how a woman’s accusation was simply enough and credible, unlike today where the twisted misogynist un-Islamic Pak laws make a mockery of it all to once again oppress women, but unfortunately this hadith wasn’t presented correctly in the well intentioned article. Recommend

  • http://bigsaf.newsvine.com bigsaf

    To add to your article.

    4 eye witnesses were meant for only adultery and adulterers. It is also virtually impossible, as those eye witnesses would also have to be of impeccable character and questioned on what they were doing themselves at the premises. Hence, virtually impossible to convict and punish anyone of adultery.

    Indeed, this Islamic law actually came down and saved our Rasool’s (SAW) wife from smears and false accusations against her, and actually prescribed punishment of lashes against malicious false accusers and liars.

    Unfortunately now we are tainted by jahil Talibanization and tribal backward honour murders against women while vile, lying and abusive men can spew anything they like with no repercussions or consequences.

    4 eye witnesses had nothing to do with rape, but unfortunately due to Zia’s misogynist Wahhabization of Pak’s laws it got disgustingly twisted to be so, when a woman’s word was suppose to be more than enough. Recommend

  • -ive man

    4 pious men or 8 pious females or 2 pious men and 4 pious women or 1 pious man and 6 pious females………………………

    4 factorial n where n =2 answer is maybe 12

    jury fixing is the new Islamic issue.. but first you have to find a mathematical mulla who knows how to derive 786Recommend

  • mastishhk

    @Dr.Who! @ Falcon….Very Lame explanation in response to JZ and Samia Rehman’s very valid response. A victim is given justice not forgiven. Recommend

  • mastishhk

    @ Author..U say that If you search the internet regarding the Islamic perspective on the issue of rape, unfortunately you will come across thousands of hate sites that are bent on criticising Islam.
    Most Muslim countries have passed laws which state that a rape victim has to produce 4 witnesses to support her claim. Now, can u really blame people for putting up hate sights condemning this very ridiculous provision of producing 4 witnesses to prove rape.
    People will judge such things according to the way they are implemented in islamic societies citing Sharia !Recommend

  • Cynical

    Interesting, very interesting, this battle of interpretation.
    Keep going.Recommend

  • http://www.teamants.com Shahrukh Chaudhary

    Very well written article and after reading some comments I feel like they have an inherent desire to criticize and to make things complicated. And may I remind you that we have been warned in the quran as well about this, read paragraph 13 http://archives.nuradeen.com/Reflections/SuratAlBaqarahSummary.htmRecommend

  • Mr. Infidel

    “…hate sites that are bent on criticising Islam.” Should there not be criticism of Islam? Indeed, this very article, by purporting to represent the “true” Islam, is itself critical of other versions of the same religion.

    Regardless, rape is not wrong because a holy book says so (or doesn’t). It’s wrong for consequential reasons – the effect it has on the victim, mainly, needless physical and psychological suffering that can ruin a person’s self-esteem, sense of trust, and sense of security for a lifetime. Recommend

  • Duri

    With every comment updating on the blog i notice a war to prove it as a religious prohibited and insulted act. None are concerned about the society and the harm this act is causing to the women surviving in it. Please before all think of women living in our society, the fear they undergo while they are out or inside the house from the desperation a man have for their body. In the other context the freedom man thinks he have to misuse the women he desire for instead of a prostitute. It is really sick to see the man moving freely who forcefully used a women and ultimately has been a cause of her suicidal death. You feel as if he may do the same to you, your sister, daughter, mother or anyone who you may not know but is a beautiful creation of Almighty Allah. Setting free on either a lumpsum paid off or not having 4 witnesses to prove the crime is JUST NOT JURIDICAL TO BOTH WOMAN AND MAN as woman is not given just and man takes benefit of not proven wrong.Recommend

  • from India

    Although I consider the requirement of 4 witnesses to be utter crap, I still wonder why the original Islamic law gives a relaxation to the woman to prove her claim. No medical or circumstantial evidence can be scary because, if you want to deliver justice from the point of equity and fairness, then production of evidence is must.

    When Prophet Mohammed PBUH ordered the accused (I will not call him rapist until proved) to be stoned to death, did he verify whether the woman is speaking the truth ?

    I am sorry to say, but Islamic law on rape is still not logical because, the process of coming to the conclusion that rape is being committed is ambiguous. Recommend

  • Awais Khan

    The wrong interpretation of Islamic teachings is the reason, why our society has stooped to this sorry state.Recommend

  • Mumbaikar

    @DrWho
    “Remeber this is happening in a society where less than a generation before, female infants were burried alive with impunity.”

    This is incorrect and a myth. There is no evidence of such barbaric acts in pre-islamic arabia. Can you please cite any references? This is just propaganda to malign pre-islamic arabian society.Recommend

  • Duaa K

    Your post aside – which I must say was nicely written; the picture/image used by the blog editors? is pathetic. rape is not some skanky woman shadow with four men watching on. ET you need to work on this!Recommend

  • Anonymous

    Four witnesses, I believe, are for FALSE accusations of rape/adultery. This is happening these days. Women get men engaged in such acts and later on blackmail them. Nonetheless, the act of adultery/rape can now conveniently be proved in a court of law using the DNA test, yet the Character and Repute of the person accused of, gets at stake, if he did not commit the crime.Recommend

  • ALi

    Very well written
    but if all that is true, why they keep stoning rape victims in many Islamic countries?Recommend

  • Vikram

    Usually rape does not occur in public. Who decides if accuser is telling the truth or not. How do you expect 4 pious men to just stand there and watch a woman being penetrated and do nothing, Writer gave an example from a hadith where a woman complained and man was stoned to death. Is she implying that is the way rape case should be handled, a man should be stoned to death if a woman complains she was raped by him.Why do you need 4 eyewitnesses if DNA matching is allowed in rape cases? In a consensual sex situation, if some one happens to accidently find the couple in compromising position, woman may cry rapeRecommend

  • Vikram

    @Anum:
    Are you saying DNA evidence is not good enough to prove a rape, that is why 4 pious men witness is required for Islamic punishment? What is the non-Islamic punishment for rape?Recommend

  • Vikram

    @Anum: Says”
    Islamic laws were formulated for the entire time the world exists.” Consensual sex in the middle of the market is possible now?. Where did you see it? Recommend

  • Vikram

    @alicia:

    If I am not wrong, witness to penetration is required. If 7 women just at the nick of time pull the guy of the women, just before he enters…….. . Will there be a punishment for some sort? Is that considered rape?Recommend

  • Vikram

    @JZ:
    Recently there was a news from Afghanistan where a woman was jailed for 10 years for getting raped. Luckily foreign media got involved and she has been set free ( or soon will be free), but she may have to marry the rapists. So women do get punsihed for zina in Pakistan if they report a rape.Recommend

  • vigilant

    Good ,mature Article……..Supported with references…….there is no doubt trying a victim for adultery is completely foolishness & insane….. Recommend

  • vigilant

    @alicia
    Porn is middle of market…..isn’t it???Recommend

  • Vikram

    @vigilant:
    Victim of adultery? I thought in adultry it is consentual sex. As Islam allows 4 wives, a man could always claim “private marriage arrangement”. Recommend

  • Vikram

    @Kamran rashid:

    It is strange, according to Kamran, European and British who don’t follow Islam or read koran or study sharia are following which he thinks are Allah’s laws. In my observation most Muslim countries don’t follow Sharia laws and even if they follow few sharia laws every one has different interpretations and punishments.Recommend

  • Ammarah

    @ET
    You seriously need to reconsider the pictures/images you put up with the articles. This one is quite vulgar, unnecessary and inappropriate!Recommend

  • Popo

    A great article aaishah! Kudos!Recommend

  • Aaishah Abu Bakr

    JUST TO CLARIFY:I made a reference in my article about a hadith regarding the case of wa’il ibn hujr. It created some confusion for the readers so I have the responsibility to clarify. Firstly, the raped woman first mistakenly put the blame on an innocent man for she was not sure who the rapist was. Later when the actual rapist made the confession of the crime, on that occasion the Prophet s.a.w.w addressed the woman and said that God has forgiven you. The forgiveness was not for rape but for wrongly accusing an innocent person. I hope the misunderstanding is clear now. Salam :)Recommend

  • vigilant

    @Vikram:
    I think topic is about Rape not Adultery……&….“Private marriage arrangement”???Recommend

  • Z A

    @JZ:

    This is the problem of interpreting into another language. The original hadith is in Arabic. Words in one language can not necessarily be accurately translated in another language. The same arabic word can mean forgiveness as well as mercy in English. So if this sentence is translated in English as “Go away, God has taken mercy on you”, then the whole context changes. This would mean that God has taken mercy on the violated woman by bringing her rapist to the justice.Recommend

  • Ammarah

    @ ZA
    rightly said. And please take into account that the author has provided clarification for the hadith.Recommend

  • Po

    @Author
    marvellous job done. we hope you will keep writing for ET!Recommend

  • Rahul

    Superb article to justify Islam. Recommend