Wednesday, December 29, 2010

Mauritania, Rape and Islam

An interesting article appeared on CNN, entitled Rape victims fear being jailed in Mauritania, by Mohamed Yahya Abdel Wedoud, dated December 22, 2010. We begin by reviewing excerpts:

Nouakchott, Mauritania (CNN) -- Mahjouba was raped in March on the nighttime streets of Mauritania's capital, but she will not bring charges against the man she says did it since she may be the one who ends up in prison. The 25-year-old says the legal advice she received was to not go to court, leaving her to suffer in silence.

There is no law in Mauritania that defines rape.

According to a local U.N.-funded group working with the victims, the law criminalizes the women instead of their rapists -- and society ostracizes the women.

Mahjouba, who asked not to use her real name, said: "I am sure that if I raise my voice I'm going to be criminalized by my society and I will pay the price harshly ... and as a result I may stay single for the rest of my life."

She added: "I consulted a lawyer secretly, and he advised me sincerely not to seek justice because that would throw me in jail. I know what happened to other girls who decided to go to court and face the community. Their lives were destroyed completely forever. So I already know what would happen to me if I had to follow that path.

"This Islamic republic has no place for rape victims like me."

Mauritanian laws are based on Sharia law and the penal code forbids relationships between both sexes outside marriage. That includes a consensual relationship between a boyfriend and girlfriend but can also criminalize a woman who is forced to have sex.

Sidi Athman Ould Sidi Salem, a law specialist and legal adviser to the government, said: "If raped women don't bring strong evidence, which is not easy, they would be accused of Zina -- an Arabic word meaning sex out of marriage -- and end up in jail. It's because the victims of rape are always accused of a Zina which make a lot of problems."

Sidi Athman added: "The rape issue has been one of the many taboos that haven't been investigated (by the government)."

Basically, the issue boils down to Islamic law - sharia.

From What does the Religion of Peace Teach About... How a Woman Must Prove Rape


Why are rape victims punished by Islamic courts as adulterers?

Summary Answer:

Under Islamic law, rape can only be proven if the rapist confesses or if there are four male witnesses. Women who allege rape, without the benefit of the act having been witnessed by four men who subsequently develop a conscience, are actually confessing to having sex. If they or the accused happens to be married, then it is considered to be adultery.

The Qur'an:

Qur'an (2:282) - Establishes that a woman's testimony is worth only half that of a man's in court (there is no "he said/she said" gridlock in Islam).

Qur'an (24:4) - "And those who accuse free women then do not bring four witnesses (to adultery), flog them..."

Qur'an (24:13) - "Why did they not bring four witnesses of it? But as they have not brought witnesses they are liars before Allah."

From the Hadith:

Bukhari (5:59:462)
- The background for the Qur'anic requirement of four witnesses to adultery. Muhammad's favorite wife, Aisha, was accused of cheating [on her polygamous husband]. Three witnesses corroborated the event, but Muhammad did not want to believe it, and so established the arbitrary rule that four witnesses are required.

Additional Notes:

Rape is virtually impossible to prove under Islamic law (Sharia) and even in more moderate countries. If the man claims that the act was consensual sex, there is very little that the woman can do to refute this. Islam places the burden of avoiding sexual encounters of any sort on the woman.

The key issue here is that a woman needs four male witnesses, or else she needs the rapist to confess; otherwise, the woman, by accusing a man of rape, is admitting she had sex with him, and since, absent four male witnesses or a confession by the perpetrator, the woman can be 1) punished for adultery, if she or the man is married, and be stoned, or 2) punished for fornication, if they are both single, and be given lashes.

Of course, in some circles, this answer is considered Islamophobic. A Muslim forum topic linked to an explanation at Defending Islam, which, in turn, cites another source. The source was complaining about 2006 changes in Pakistani law that President Musharraf pushed through:

Proof of Hadd from the Qur’an

The Holy Qur’an prescribes the punishment of adultery in Surah an-Noor as follows: "The female perpetrator of zina and the male, scourge ye each one of them (with) a hundred stripes." (An-Noor, 24:2)

In this injunction the word zina is absolute and includes zina bir ridha (adultery) as well as zina bil jabr (rape). It is obvious that rape is a more serious offense, and consequently deserves at least as severe a punishment as that for adultery.

One may point out that this verse mentions both the female and male perpetrators of zina, so this verse could not possibly apply to rape. However, in the same surah the punishment for rape is clarified: it only applies to the man. The Holy Qur’an says:

"And if one forces them (i.e. those women), then, (unto them) after their compulsion, Allah is Forgiving, Merciful." (Surah Noor, Verse 33)

Thus, it is clear that if any woman is forced to commit zina, then she cannot be punished for this, rather the one who transgressed will have to suffer the prescribed punishment (hadd) that has been mentioned in Surah Noor, Verse 2.

Proof from the Ahadith

The stated hadd of one hundred stripes is to be inflicted on an unmarried offender. From the Sunnah Mutawatar it is further established that a married person is to suffer rajm (lapidation). The Messenger of Allah, Sall-Allahu alayhi wa sallam, did not differentiate between zina bil jabr (rape) and zina bir-ridha (adultery with mutual consent).

In one hadith, Sayyidna Wail bin Hajr, Radi-Allahu anhu, narrates that during the time of the Prophet, Sall-Allahu alayhi wa sallam, a woman had gone out to offer the prayer. On the way a man overcame and raped her. The woman cried for help and the man ran away. Thereafter the man admitted that he had raped her. The Messenger of Allah, Sall-Allahu alayhi wa sallam, then inflicted the hadd on the man only, and not on the woman.

Notice that in the example, though, we have a confession by the perpetrator. This does nothing to disprove the original contention that, absent either four male witnesses or a confession by the perp, it is the victim who is guilty.

Skipping down:

Similarly, in Sahih Bukhari there is a hadith according to which a slave had raped a slave-girl. Sayyidina Umar, Radi-Allahu anhu, then imposed the hadd on the slave, but not on the slave-girl. (See Sahih Bukhari, Kitabul Ikrah, Bab 6)

It is hence firmly established from the Holy Qur'an, the Sunnah, and the decisions of the rightly guided caliphs, Radi-Allahu anhum, that the same punishment is to be awarded for both adultery and rape and that in the case of rape, only the man is punished. It is by no means correct to say that the hadd mentioned in the Holy Qur'an and in the Ahadith applies only to adultery.

This helps a little more to establish a case that the victim is not punished.


The Propaganda against the Hudood Ordinance

What is the rationale for removing the Shariah punishment for rape? The authors argue that the Hudood Ordinance treated a victim of rape who was unable to produce four witnesses as a criminal herself; she was jailed for allegedly having committed adultery. This claim is simply false.

I myself had been directly hearing cases registered under Hudood Ordinance, first as a Judge of Federal Shariah Court and then for seventeen years as a member of Shariah Appellate Bench of the Supreme Court. In this long tenure, not once did I come across a case in which a rape victim was awarded punishment simply because she was unable to present four witnesses.

In fact it was not possible to do so. First, according to the Hudood Ordinance, the condition of four witnesses only applied to enforcing the hadd for rape. Clause 10(3), which awarded the ta’zeer punishment, did not have this requirement; the crime could be proven through one witness, medical reports, and chemical analysis report. Consequently most rape criminals were awarded punishment as per this clause.

Further, a woman claiming rape could not be punished under Qazf (false accusation of zina) since Exemption 2 in Qazf Ordinance Clause 3 clearly stated that if someone approaches the legal authorities with a rape complaint, she could not be punished in case she was unable to present four witnesses.

The only possibility was that the woman could be awarded punishment for committing adultery with her own free will. Obviously, if the available evidence did prove her guilt, punishing her was the just course of action. However, such cases were rare, since usually there was insufficient evidence to prove that the woman was lying; in 99% of the cases the court was neither convinced that the man had compelled the woman, nor could it prove her guilt and so she was given the benefit of doubt and set free.

Based on this, Pakistan's law, at least as it was and when applied by educated legal scholars, was kind of similar to the laws on the books in many US jurisdictions decades ago: rape was a capital offense.

To be sure, though, at the forum topic mentioned above, there was some confusion:

This was clarified by another commentator:

Notice the last commentator's position on this:  the female victim must put up substantial resistance, even to the point of death; otherwise, she comes to be viewed as a criminal, and not as a victim.  Again, it is worth comparing this to US interpretations of rape decades ago, and contrasting that with US interpretations of sexual assault current today.

Consequently, even if the woman has a reasonably well-educated court and relatively reasonable legal standards applied, there is still a considerable burden of proof on her to not be labeled as a criminal instead of as a victim. Any factor, such as a partial or uneducated community, would logically weigh against the victim.

It is easy to see how the victim, despite the assurances of educated authorities on Islamic law in Pakistan, could find herself being stoned for adultery or given 100 lashes for fornication nearly anywhere subject to the jurisdiction of Islamic law where she makes an accusation of rape.

Thus, despite the assurances of some scholars on Islamic law, and despite the attitudes of some Muslims toward the crime of rape and their questions about Islamic law, we can see how rape victims in Mauritania may feel they have nowhere to turn.

Peace be upon you. :)

1 comment:

  1. It is a very sad news the rape issue in Mauriatnia. We are happy to live in a safe, non-threatening environment and friendly place. The Truth is in the heart and every body will agree, a rapist is an enemy of the community. God bless you people who promote peace, love, and hope for the victims. Happy New Year 2011!