|Her Honor: An Islamic Critique of the Rape Laws of
Pakistan from a Woman-Sensitive Perspective
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
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
Critique Of the Zina Ordinance
Power of Law: The Zina Ordinance and its Application 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:
man and a woman are said to commit ‘zina’ if they willfully
have sexual intercourse without being validly married to each
liable to hadd [punishment] if--
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;
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).
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,
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
against the will of the victim,
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
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
is sufficient to constitute the sexual intercourse necessary to the
offence of 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
the Zina Ordinance then specifies the evidence required to
prove both zina and zina-bil-jabr:
of zina or zina-bil-jabr liable to hadd shall
be in one of the following forms, namely:--
the accused makes before a Court of competent jurisdiction a
confession of the commission of the offence; or
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,
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
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.
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
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
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).
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).
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?
Law of God: the Qur’an on Zina
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
do not go near fornication [zina] as it is immoral and an
evil way (Qur’an 17:32).11
the Qur’an more specifically sets out actual legal prescriptions
criminalizing illegal sexual relations:
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).
this definition of the offense are extremely strict evidentiary
rules for the proof of such a crime:
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
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
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
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
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:
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.
did the faithful men and women not think well of their people when
they heard this, and [say] "This is a clear lie?"
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.
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
you talked about it and said what you did not know, and took it
lightly– though in the sight of God it was serious–
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!"
counsels you not to do a thing like this, if you are believers
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
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
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.
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
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
Pregnancy as proof of zina?
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
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.
Drafting Problems in the Zina Ordinance
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
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:
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:–
her consent, when her consent has been obtained by putting her in
fear of death, or of hurt.
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.
or without her consent, when she is under [fourteen] years of
is sufficient to constitute the sexual intercourse necessary to the
offence of rape.
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.
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.
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
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
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.
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.
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
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).
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?
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:
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).
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:
the case of [zina] the testimony of four male witnesses is
required as a female is weak in character (Ajijola 1981, 134).
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).
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).
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).
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.
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
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
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:
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
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
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.
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:
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)).
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.
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.
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 acknowledges, 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-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,
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
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).
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
phenomenon should sound familiar:
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
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
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.
Rape in Islamic Jurisprudence
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
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?
Duress: Rape as a Negation of Intent for Zina
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,
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.
Hiraba: Rape as a Violent Taking
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:
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).
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).
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,
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
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
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.
Jirah: Rape as Bodily
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
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.
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.
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
A Modern Islamic Gender-Egalitarian Law of Rape?
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
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.
The word "hudood" is the plural of "hadd," a term denoting the
Islamic legal categorization of crimes for which the definition and
punishment is set by God (Doi 1984, 221).
This article will not address the rationale or propriety of
criminalizing consensual sexual relations, whether under Islamic law
or under the many other penal codes of the world which criminalize
such behavior. Rather, the focus of the present study is the law of
nonconsensual sexual relations laid out in the Zina Ordinance in
Pakistan and as addressed in Islamic jurisprudence.
have not included the punishments specified for each crime, as that
is not within the focus of this article. Here, I am primarily
concerned with the definition and categorization of each of these
offenses. Briefly, however, the hadd punishment prescribed in the
ordinance for a zina offense is either public stoning or whipping.
For a zina-bil-jabr conviction, it prescribes imprisonment and/or
fine and/or public whipping (P.L.D. 1979, 51 (Zina Ordinance § 6).
See infra note 25 for citations to discussions of punishments for
zina in Islamic law.
See infra Parts I.B., II.
5. She was sentenced to fifteen lashes, three years imprisonment, and a fine. Public outrage eventually led the appellate court to set aside the punishment (Patel 1991, 25-26); Jalal 1991, 102; Mehdi 1990, 24-26; Khan 1986, 27).
See Asia Watch 1992, 41-60; Patel 1991, 36; Mehdi, 1990, 27 (citing
report by attorney Asma Jahangir of fifteen incidents of police rape
of women in detention in 1988/1989); Seminar 1982, 286-87 (convenor
Tahir Mahmoud noting "cases of rape . . . in private (including
those committed by policemen) are alarmingly on an increase in the
7. Amnesty International 1995, 35(reporting January 17, 1994, gang rape of five women, stating that police pressured women to report only robbery, and conceal rape); Amnesty International 1993, 11-12(citing Shamim case, and similar Imamat Khatoon case). In 1992, more than 2,000 women were in jail awaiting trial for zina (Asia Watch 1992, 69). Many women are eventually acquitted after enduring long trials (Patel 1991, 28).
See Branion 1992, 276; Curtius 1994, 2; Fineman 1988, pt.1, 5; Heise
1991, C1; Khan 1985, 791; Khan 1986, 27; O.J. Simpson, Business Wire
1995; Rashid 1991, 14; Robinson 1992, 11; Scroggins 1992, A10;
Whitehorn 1994, 23.
See, e.g., United States Department of State 1993, 1370, 1382;
Amnesty International 1994, 232-33; Amnesty International 1995a;
Asia Watch 1992, 53-60; Amnesty International 1992, 207-08; Patel
1991, 15, 19, 26-28 (citing activities of All Pakistan Women’s
Association, Pakistan Women Lawyers’ Association, Pakistan Women’s
Rights Committee); Amnesty Inernational 1995, 14, 35; Amnesty
International 1993, 10-13; Jalal 1991, 103-09 (describing activities
of Women’s Action Forum in Karachi); Hodson 1994, 16 (quoting Prime
Minister Bhutto’s urging a change of the zina laws); Iqbal 1995;
Jabbar 1991, 7-8; Sarwar 1995.
"Sunnah" is a term used to describe the traditions of Muhammad
(Kamali 1991, 44).
Another verse generally urging against fornication states:
of Ar-Rahman [The Merciful] are those . . . who do not invoke any
god apart from God; who do not take a life which God has forbidden
except for a cause that is just, and do not fornicate [zina]–and any
one who does so will be punished for the crime (Quran 25:63,
that all English renditions of the Quranic verses cited in this
article come from the Ahmed Ali translation, published as Al-Qur’an
(Ahmed Ali trans., 1984).
The verse goes on to specify a relaxed evidentiary standard between
spouses, understandable given the personal nature such an accusation
would have on the marital relationship:
who accuse their wives and do not have any witnesses except
themselves, should swear four times in the name of God, the
testimony of each such person being that he is speaking the
(swear) a fifth time that if he tell a lie, the curse of God be on
woman’s punishment can be averted if she swears four times by God as
testimony that her husband is a liar.
fifth oath being that the curse of God be on her if her husband
should be speaking the truth (Qur’an 24:6-9).
further discussion of this spousal zina situation, see Doi 1989,
126-28; Kamali 1991, 156; al-Shafi’i 1987, 146-47. Note that here,
there is no discrepancy in weight of testimony based on the gender
of the party, because in a charge of adultery between spouses, a
woman’s word is equal to that of a man.
As noted earlier, this article does not address the punishments
prescribed for the crime of zina. See Part I.A. Interestingly, the
answer is not as concrete as these verses might imply. Traditions of
the Prophet Muhammad involving the stoning of adulterers have
created much debate among Islamic jurists regarding the role of the
death penalty and corporal punishment in zina sentencing. See, e.g.,
Amin 1985, 27-28 (citing 1981 Pakistan Shariah (Islamic law) Court
ruling that stoning for adultery is not correct Islamic practice);
Bokhary, 1979, 181 (citing legal debate in Pakistan over propriety
of stoning as punishment for adultery). The focus of this study,
however, is limited to the definition of the crime itself, and the
categorization of rape as zina. The topic of what punishment the
state should inflict upon those convicted of such a crime must wait
for another day.
See Doi 1984, 236-40 (summarizing crime of zina); Doi 1989, 117-28
(summarizing crime of zina); El-Awa 1982, 13-15 (general discussion
of zina law as laid down in Quranic verses). The "proof of zina"
section of the Zina Ordinance, which also requires four witnesses,
comes to mind. Thus, in setting zina as a crime in Pakistani law,
and requiring four witnesses as necessary proof of such a crime, the
Ordinance does in fact appear to be based, at least in structure, on
Islamic law. However, as discussed in the following sections, the
details of the Zina Ordinance, and especially its subcategorization
of rape as a type of zina is not Islamic law.
Coulson 1994, 127; Doi 1989, 122.; Siddiqi 1985, 69; Bassiouni 1982,
5 (citing the rule of thumb that hypothetical thread must not have
been able to pass through the two bodies); Seminar 1982, 271.
It is interesting to note that although the man was punished based
on his confession, the woman was apparently never prosecuted or even
investigated. The significance of this point will be apparent later,
in the discussion of the context of the Qur’anic verses on zina, and
their impact on women’s privacy (Part I.B.).
17. al-Saleh 1982, 69-70 (citing incident where Caliph Omar ibn al Khattab and a companion passed a party in which, behind locked doors, individuals were drinking alcohol; because of Islamic injunctions against spying, the two disregarded the private party and returned home); Siddiqi 1985, 19-19-20 (citing requirement to knock before entering a residence, even of family). But see Hedaya 1982, 194 (Bk. VII, Ch. III; allowing evidence unlawfully obtained).
See note 53, infra, for an explanation of the Islamic schools of
See Mahmassani 1987, 23, 49 for history and significance of the
This statute of limitations, significantly, does not apply to a
charge of slander (Hedaya 1982, 188 (Bk. VII)). In addition to the
above restrictions, where a zina conviction is a result of
confession rather than testimony, the confession may be retracted at
any time (including during execution of the sentence) (Salama 1982,
Salama 1982, 118 (note *) ("the nature of such rigorous proof makes
it a crime of public indecency rather than adultery").
Qur’an 24:4 (stating that those who charge women with zina and do
not have four witnesses should be given eighty lashes and their
testimony should not be accepted thereafter). See also Al-Tabari
1989, 13:110-14 (describing incident where Caliph Umar punished
witnesses supporting zina charge against al-Mughirah b. Shu’bah,
Governor of Basra, because of conflicting details in their testimony
of eyewitnessed act).
See also El-Awa 1982, 17 ("The desire to protect public morality and
to safeguard it against corruption by publicizing the offense, is
the reason for limiting the methods of proof."), 29 ("This
punishment is prescribed in fact for those who committed the crime
openly . . . with no consideration for the law or for the feeling of
the community," quoting Shalabi 1960, 201).
See text accompanying note 16, supra.
Note that this is a primarily Sunni account of the context of these
verses. Many Shii scholars do not attribute these verses to the
"Affair of the Necklace" incident. Spellberg 1994, 81-82. (citing
Shii author al-Qummi, but also noting Shii author al-Tabarsi, who
took the Sunni position).
See, e.g., Spender 1980 (discussing the asymmetry of language, and
insults that tend to be based on women’s sexuality).
See also Mehdi 1994, 116(sec. 3.3.1, stating that before the Hudood
Ordinances, the penal law of Pakistan included adultery as an
offense, but defined it as intercourse by a man with the wife of
another without his permission; women were not punished even as
abettors); Zia 1994, 25-26 (stating that under the pre-Hudood
criminal legal system inherited from British, a complaint of
adultery could only be lodged by the husband); Dripps 1992, 1782
("Until the twentieth century, . . . female sexual autonomy had
little to do with the law of rape. The law instead struck a balance
between the interests of males-in-possession and their predatory
counterparts."). The Pakistani Penal Code prior to 1979 borrowed
from this English common law of rape (Pakistan Penal Code 1860, §
375) (legislating and elaborating on rape defined as "the ravishment
of a woman without her consent, by force, fear, or fraud," citing
English common law precedent).
See Part I.A., supra.
See also Zia 1994, 30 ("The motivation of feudal enmity, revenge for
honour via the sexuality of the woman, collusion of male authorities
in attributing all blame on the woman, and State sanctioning of
control over women even in the extreme form of murder, are all
feeding impulses in most sex crimes [in Pakistan]."); Haeri 1995,
161 (arguing that "political rape" is modern version of "‘feudal’
‘honor rape’"); Sarwar 1995 ("Women are also considered property,
and the repositories of male honor. If a man wants revenge from
someone, the surest way is to strike at him through his ‘honor’–his
wife or daughter.").
Amnesty International 1995a, 3 (reporting burnings); Sarwar, 1995
("In addition, Pakistani society tacitly condones ‘honor
killings’–-the murder of a female relative on suspicion of ‘illicit
See, e.g., Amnesty International 1995b, 92 (discussing honor
killings in Egypt and Iraq).
See Part I.B., supra.
See Part I.A., supra.
Islamic jurisprudence was developed by jurists whose approaches to
and interpretations of the Qur’an and Sunnah became varying schools
of Islamic law (Mahmassani 1987, 15-17). Today, five schools are
commonly discussed: the four Sunni schools (Hanafi, Maliki, Shafii,
and Hanbali) and the Shii school (Ja’fari). For more information and
background, see Mahmassani 1987, 15-39.
See Al-Maqdisi 1994, 8:129, 145 (stating Hanafi and Shafii schools
of thought hold that pregnancy alone does not constitute sufficient
evidence for punishment of zina, but noting that the Maliki school
of thought presumes punishment unless there are signs of coercion);
Siddiqi 1985, 71 (but citing Umar’s reported position that pregnancy
furnishes sufficient proof of zina against unmarried woman); Seminar
1982, 271 (stating that majority of jurists hold that pregnancy is
not prima facie evidence of zina).
See Malik 1982, 392 sec. 41.4 (stating that an unmarried pregnant
woman who claims that she was forced to have sex is liable for
punishment unless she can prove her claim); Salama 1982, 121. See
also Coulson 1994, 174-75 (stating Malikis held pregnancy is prima
facie evidence of zina); El-Awa 1982, 130-31 ("[T]he offence of zina
may be proved against an unmarried woman if she is pregnant," citing
Maliki jurists who considered circumstantial evidence important and
admissible as proof).
See also Abu Daud 1990, 3:No. 4404 (quoting Umar ibn Khattab’s
statement that fornication exists "when proof is established or if
there is pregnancy, or a confession"); Bukhari 1985, 8:536-37
(Bk.82, NO. 816).
Salama 1982, 120-21 (summarizing role of qara’in (presumptions, or
circumstantial evidence) in hadd jurisprudence).
See Part I.B., supra.
See Part I.A., supra.
See Part II.A., infra.
For comparison, the zina-bil-jabr section reads:
is sufficient to constitute the sexual intercourse necessary to the
offence of zina-bil-jabr.
1979, 182 (with comment and annotation); Major Acts 1992,
45. Zia 1994, 29 (quoting Federal Shariat Court); Ahmad 1995, 8 (citing case of alleged rape of fifteen-year-old girl where defendant was acquitted and court described victim as girl of "loose character" who "has a habitual case of enjoying sexual intercourse," reported at P.L.D. 1982, Fed. Shariat Ct. 241).
See Part I.B., supra.
47. Jilani 1992, 71 ("The offense of rape (zina-bil-jabr)is also dealt with by the same law [of zina]. The effect of this is that rape has become more of a defense against prosecution for adultery or fornication, rather than being considered as an independent crime.").
See Part I.B., supra.
Apparently, the exclusion of female evidence was challenged through
a petition in the Federal Shariat Court, but the male only witness
requirement still exists in the Ordinance (Mehdi 1994, 118).
Qur’an 24:4 ("Those who defame chaste women and do not bring four
witnesses [shuhada’] should be punished . . . .").
Wadud-Muhsin 1992, ch. 1 (discussing Qur’anic grammar and its
emphasis on the duality of men and women).
Ajijola 1981, 134; El-Awa 1982, 17, 124-26 (defining zina witnesses
as four adult men).
Fadel 1997, ___ (discussing Islamic jurisprudence on women as
witnesses, addressing sociological influences on the restrictions on
women’s testimony; noting alternative interpretations among
jurists); Salama 1982, 118 ("All jurists reject the testimony of
women.," but citing some scholars who accept testimony of women in
zina cases if there are two women for each man); Coulson 1994, 127;
El-Awa 1982, 17, 1124-26 (defining zina witnesses as four adult
Traditional Muslim jurists have used similar biased reasoning to
justify the requirement of two women witnesses for one man in
general non-zina evidence law. These include: aiding male pride,
since the losing party’s resentment will be greater if losing to a
woman, and protection of society, as the practice of women leaving
the home will lead to social disorder and corruption (Fadel 1997,
55. See Wadud-Muhsin 1992, 87 for alternative analysis of Qur’anic requirement of two women witnesses for one man, in two-witness-minimum cases.
Similar patriarchal attitudes towards women manifest themselves even
outside discussions of competent witnesses. One modern commentator
rationalizes the disparity between husband and wife in ease of
obtaining a divorce by saying that, because of emotional instability
due to the menstrual cycle, "[i]f women were given the power of
unilateral divorce, it is probable that millions of them would
divorce their husbands and it is probable that millions of divorces
would have ensued and there would be chaos in society" (Doi 1989,
95). See also Wadud-Muhsin, 1992, 35 (citing Zamakhshari’s statement
that men are preferred by God over women in terms of "intelligence,
physical constitution, determination and physical strength").
Wadud-Muhsin 1992, 34-38, 64-66 (describing equality of women and
men laid out in the Qur’an; distinctions between humans are only on
the basis of character, women not defined by biology
See al Asqalani 1907, 341-42 (discussing Laila al-Shifa bint
Abdullah, who was appointed by Caliph Umar to oversee the Medina
marketplace); Kahhala 1991, 2:300-01 (also discussing al-Shifa bint
Abdullah), 5:67-70 (summarizing biographies of prominent Muslim
women, including story of Baghdadi ruler Umm al-Muqtadir billah, who
set up a female courtier as judge to hear disputes in the public
square, citing Tabari, Ibn Athir, Ibn al-Jawzi, Ibn Miskawih); Qadri
1982, 57 (describing cases involving women litigants before a male
judge); Walther 1995 (describing prominent women throughout Muslim
history, including Umm al-Muqtadir billah).
59. See also Kamali 1991, 285 (summarizing changeability of rules where ‘urf (custom) has changed, citing al-Shafi’i’s different rules in Iraq versus Egypt).
Ghadbian 1995, 27 (citing Hasan al-Turabi’s paper, "Women in Islam
and Muslim Society," which "laid down the theoretical basis of the
reformist approach to gender relations, endorsed unequivocally a
fully participatory role for women in politics and in every other
sphere of society and declared that traditional restrictions on
women’s freedoms had nothing to do with Islam"; quoting
al-Ghanouchi’s statement: "We began to ask ourselves sheepishly, to
what extent does our movement express Islam’s approach to women, and
to what extent have we freed ourselves from the residue of the era
of decline and from our reactions against the Bourgibian
degeneracy?"; citing al-Ghazali’s book, al Sunnah al Nabawiyah bayn
Ahl al Fiqh wa Ahl al Hadith, which focuses on verses and hadith
which conservatives interpret as excluding women from positions of
authority, and asserting that "some authentic juristic
interpretations of Islamic law allow women to serve in any public
capacity–as judges, ambassadors, cabinet members, and rulers";
citing 1990 fatwa (ruling) of al Qaradawi that women can seek
parliamentary and judicial positions, and issue fatwas with the same
authority as men).
See, e.g., Quran 4:135 ("O you who believe, be custodians of justice
(and) witnesses for God, even though against yourselves, or your
parents or your relatives . . . and if you prevaricate or avoid
(giving evidence), God is cognizant of all that you do.").
62. See Part I.B., supra.
For further explanation and distinction between hadd and ta’zir
crimes in Islamic law, see Coulson 1994, 124; El-Awa 1982, 1-2;
Siddiqi 1985, 158; El-Awa 1976, 41
See United States Department of State 1994, 1372 ("[i]n contrast to
past years, women are now frequently granted bail for Hadood
offenses, and convictions have been markedly reduced"); Asia Watch
1992, 50-52; Mehdi 1990, 23 (stating that under working law of rape,
almost all cases are tried under ta’zir); Rahman 1994, 999-1000
("Because of the difficulty of obtaining four male Muslim witnesses,
men accused of zina-bil-jabr have in reality, become exempted from
the maximum punishment. Although maximum Hadd punishments have been
imposed, none have ever been carried out. The majority of zina or
zina-bil-jabr cases are thus heard at the lesser Tazir punishment
The section goes on to prescribe the punishment for zina of
imprisonment for ten years, thirty lashes, and a fine, and for
zina-bil-jabr twenty-five years imprisonment and thirty lashes.
See also Patel 1991, 30-31 (making same argument that there can be
no ta’zir punishment for zina). This argument, in fact, was the
basis of a challenge to the ta’zir punishment implemented in zina
cases in Pakistan. Patel 1991, 30-31 (citing 1983 petition
challenging §§9(a) and 10 of the Zina Ordinance on this
al-Shafi’i 1987, 247 ("[o]nly the witnesses in the case of adultery
should be scourged").
68. See Part I.B., supra.
See Hedaya 1982, 187 (defining compulsion generally); al-Maqdisi
1994, 8:129, 145 (including discussion of exemption from zina
liability for male forced to commit zina); Seminar 1982, 269 ("[it]
is an agreed position that females subjected to rape against their
consent and without their will would be exonerated from any
liability under Islamic law").
Bukhari 1985, 8:Ch. 7; Mishkat al-Masabih 1:762 (citing hadith in
Tirmidhi and Abu Dawud).
See Malik 1982, 392 (citing case where Caliph Umar prosecuted rapist
of slave girl and did not prosecute her); al-Maqdisi 1994, 8:129
(citing case where caliph Umar released woman who asserted
See generally Abou El Fadl 1991, 305.
El-Awa 1982, 7-10; al-Jaziri 1986, 5:409-11; Sabiq 1993, 2:446
(chapter on hudood, describing hiraba); Siddiqi 1985, 139-44. See
also Doi 1984, 250 (explaining context of verse revelation: some
people came to Muhammad under the auspices of new converts,
complained that the weather in Medina was disagreeable to them, and
Muhammad sent them to live outside the city with cattle belonging to
the state; they subsequently killed the cattle keeper and stole the
cattle and this verse revealed shortly thereafter).
al-Jaziri 1986, 410-11 (summarizing Maliki school definition of
hiraba offender as someone who "obstructs the road, even without
intending to take money, intending to harm someone, or intending to
rape a woman ("hatk-il-harim")").
See al-Bukhari 1985, 7:Nos. 135-36; Al-Ghazzali 1984, 2:106-07 (book
on etiquette of marriage, citing hadith re: rights of wife for
sexual pleasure); Mussallam 1983, 28-38 (including hadith and
discussion of contraception if it interferes with wife’s sexual
satisfaction)); al-Hibri 1982, 213 (citing hadith about foreplay);
Symposium _______, 92 (citing schools of thought on role of woman’s
sexual pleasure in legality of marriage contract).
77. It is interesting to note that the concept of a woman’s sexuality as her property is in fact not a new one to the crime of rape. The western crime of rape evolved from the early Roman law of "raptus" which was defined as "a form of violent theft that could apply to both property and person" (Alexander 1995, 7:211). See also Dripps 1992, 1781.
See Part I.C.2., supra.
79. al-Maqdisi 1994, 3 (introduction; describing law of jirah, classification of injuries, etc.).
Note that the law of jirah (in addition to other principles of
Islamic law) providing for compensation for physical harm even
between spouses would support modern Islamic legislation against
al-Maqdisi 1994, 36 (discussing varying applications of jirah under
four Sunni schools of thought); Bokhary 1979, 219 (stating where
someone is forced to commit zina, she is not punished for zina, but
rather entitled to compensation).
See, e.g., De La Mothe 1996, 23: 857.
Notably, the Pakistani Zina Ordinance categorically eliminates this
possibility, by defining zina-bil-jabr as unconsensual intercourse
with someone "to whom he or she is not validly married" (Part I.A.,
supra) , a description also popular in old common law definitions of
See Part II.C., supra.
85. See also Jilani 1992 (citing case where medical evidence revealed marks of violence on woman’s body, but found no rape due to existence of marriage certificate: "[a]t best, it can be said to be misuse of the wife," said the court).
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Asifa Quraishi LL.M., Columbia University (1998); J.D.,
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