In Islam a Rapist Can Never Be Punished: Ijtehad (Reinterpretation Of Islamic Injunctions Without Altering The Core Objectives)

13 January 2016

By Saeed Qureshi

The conditions laid down in Islamic jurisprudence to prove rape or sexual assaults are incredibly impossible to fulfill. As such in Islamic societies, not a single rapist has ever been sentenced for this heinous crime. The irony is that the burden of proof is laid upon the female victim who is coerced by one or more males to submit to their lust.

The evidence of rape against a woman is accepted only from four absolutely pious persons. The four virtuous individuals should keep watching the rape with actual penetration taking place. Yet there is no foolproof mechanism to determine if the witnesses were actually pious or have seen the rape being taking place.

There is no Islamic injunction that exhorts these righteous witnesses to stop or forcibly push away the perpetrator from tormenting the female victim who could be a 5 year teenage girl to a 70 year old woman. The devilish and heartless rapist can continue the abhorrent crime till all the four witnesses have minutely observed from a close distance that it was a real rape. While watching they cannot shut their eyes from seeing the naked body of the female and the organ of the fiendish sex maniac.

The vile act could last from a minute to an hour or longer. If the female victim wants justice against the rapist in a Shariah court, she has to go around and find four male witnesses to give evidence of the crime. In this situation there is no consideration that the victim woman was physically unfit to go or was unconscious and whether mentally and physically she was in a position to travel all the way to the court which could be several miles way. What about the child victim? How could she deal with these patently tough conditions?

It is a matter of pure conjecture if the eyewitnesses would wait for her to come to senses or otherwise be ready to go with her to the court and offer evidence. The logistics, the condition of the victimized female, the availability or the possibility of four witnesses readily agreeing to go to court have been completely overlooked.

From the picture that one can perceive in the mind as if the woman was able to travel to a nearby court immediately after the crime and that the witnesses were all the time available to accompany her. In the meantime no one knows where the rapist would be: flee away from the scene or caught by someone and confined somewhere.

It surmises that the rapist or a group of rapists were committing their heinous crime in full view of many people with absolute day time visibility. One would wonder if the rapist would be an idiot enough to commit this despicable crime in the public and allow the four very pious people to watch his act for a certain period of time. The woman may scream or resist yet there is no injunction that witnesses or the onlookers should release the woman from the rapist's clutches.

Can a rapist physically remain in a state of sexual intercourse or assault till all the witnesses have seen it? By the time the second witness gets closer, the rapist might have finished his satanic act. Also from where would those four chaste witnesses come all of a sudden?

If the act is being done in a secret place or with a kidnapped victim which mostly is so in such situations, then how the witnesses could be produced? Another question is that how a victimized young child could remain in full senses and search for four witnesses and then persuade them to go with her in a court and give testimony in her favor?

Doesn't this entire look like a spooky facade never to be accomplished? Even a moron would know that the criminals, the thieves and womanizers seldom commit their crime in broad day light as to be seen by others and be caught. A rapist committing an appalling crime of snatching a female's honor, virginity or chastity would be more secretive than a robber or burglar.

The social stigma attached to rape compels the victims as well their families to remain tight lipped. While Islamic law gives absolute leverage and escape route to the rapists, the poor and helpless victims do not have the corresponding protection and succor from the law to be bold enough to fight out the case.

In villages and cities, people know who molested an innocent girl. But besides muted gossips and limited protests, no one usually has the courage to challenge the savage perpetrators who stalk the streets with flattened chests and stiffened mustache.

But if a girl of an influential person or family elopes or falls in loves with a less privileged person, the honor killing becomes the paramount urgency with the family of the girl. These are paradoxically different yardsticks with which the society measures the rape or even infatuations. In Pakistan we learn and read about the honor killings of the wives or sisters. In many such cases, the female is totally innocent and would be brutalized by the callous and an overbearing husband.

In many instances, the husband wants to marry another woman and thus kills the previous wife in the name of honor (in Sindh it is called karo-kari). Additionally there are countless instances also when the sisters and daughters were killed because they were in innocent conversation with a young male counterpart or were having an actual love relationship with a boy.

The horrendous dimension of this repulsive phenomenon is that the child born out of the rape is used by the law as a certified criminal act against the victimized female. It means that she is treated as the one who willingly slept with a roughneck. The rapist who committed this crime is not touched till the four witnesses testify against him.

Tragically, the poor and infirm female is put in jail with no chances of release or reprieve. Isn't a gross travesty of justice? A strong and overpowering rapist subjects a female to a horrifying crime but is free to repeat the same loathsome act again and again, while the poor victim is lodged in jail for an indefinite period of time.

When the rape cases are referred to the civil courts, there are no witnesses against the culprits and they invariably are freed. If the case is referred to the Shariah court, there is no way these monsters can be sentenced 100 lashes because of the lack of evidence supposed to come from the four absolutely immaculate Muslim witnesses.

There are such innumerable miserable women languishing in jails for an act that was forced upon them. The pregnancy or the born child is taken as incontrovertible evidence against her for Zina or rape. The man who raped remains at large. The argument given by Islamic clerics is that the father of man cannot be traced but the child coming out of an unmarried woman's womb is a sure proof of an anti Islamic act. It is simply overlooked that she was coerced by the powerful males to submit to their lust.

Bu while we talk only about female raping we forget that young children too are hunted and molested by the insidious individuals. That crime is as serious as the rape of a female victim. The boys should be protected from the habitual pedophiles that are everywhere in our society.

They prey upon the boys of their localities and also carry away the runaway children found in parks or working in restaurants and workshops. Some of the boys carry the guilt feelings throughout their later life that they cannot share with others. But this certainly corrodes their personality from inside.

It would be desirable and rather indispensable to try the rape cases in the civil courts. The proof of a rape committed in hiding could be determined by the latest technique of DNA. Once the women folks or their kith are confident that the culprit would be punished and law would prevail, they would be emboldened to identify them and provide all necessary information needed for the justice to take its course.

In the United States the laws about sex offences are absolutely strict. The rapist cannot go around and hunt down the females. The incidents of forcible sex do take place but once caught there is no mercy or leniency in American law for the sex offenders. Fro even touching a teen age girl or boy there could be several years of jail term for the offenders.

Even for minor sex offences they are labeled forever or for specified period of time as sex offenders. The felons cannot reside near schools or in neighborhood and are treated as pariah by the law. Their pictures are published and circulated in local magazines and newspapers.

Now this kind of strict and severe punishment in heathen or un-Islamic society should serve as a shining example for Islamic societies whose religion puts enormous emphasis on piety and sanctity of body and soul and where even going out of a woman without veil is treated as violation of Islamic laws.

It would be in order if some of the controversial Shariah laws are amended through Ijtehad (reinterpretation of Islamic injunctions without altering the core objectives) with regard to the rape (Zina-Bil-Jabr) so as to ensure the imperatives of justice. Only by fusing the modern laws with the Islamic laws can the Islamic polities dispense justice to the rape victims and duly punish the perpetrators of this most abominable crime.

The writer is a senior journalist, former editor of Diplomatic Times and a former diplomat. This and other articles by the writer can also be read at his blog www.uprightopinion.com. 

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