Mu' meneen Brothers and Sisters,

As Salaam Aleikum wa Rahmatullahi wa Barakatuh.  (May Allah's Peace, Mercy and Blessings be upon all of you)

One of our brothers/sisters has asked this question:

Assalam o alaikum

My question is regarding the issue of rape. Countless generations all over the world, have tried to blurr the distinction between rape and adultery following some perverted logic.

Sadly, Islamic jurists have joined ranks with such people. While the punishment of adultery (death) and burden of proof (four righteous witnesses, witnessing the very act of copulation) has authentic proofs (daleel) to them, and are logically sound as well, the judement regarding rape is pronounced as such in various Islamic countries:

"If the woman claims she was raped by so and so, then she will have to produce four witnesses to

prove her claim that so and so raped her for the man to receive the prescribed punishment. If she is

unable to produce the witnesses and if the man does not confess to his sin himself; only on her accusation,

the man will not be punished; but rather the woman will be punished for ‘slander’ because she could not prove her accusation."

(I quoted your own statement from your answer to Question 1587)

Brother, I beg to ask you, if the burden of proof on the victim, is to provide four righteous witnesses, then doesnt the question arise what those four righteous witnesses were doing standing around, watching a woman being raped? If this is the burden of proof, then it gives a free hand to rapists, because most of our mothers, sisters, and daughters are generally in their homes, WITHOUT having four witnesses watching over them. Need I remind you, perhaps, that rapists choose their victims when they are ALONE, either in a public place, or in their very homes.

This kind of judgement by scholars makes people (muslims) fed up with the Sharia` and makes them demand military courts and British Law, which with their many failings, atleast gives justice in the instance of rape. Justice, which apparently is denied to victims according to this interpretations made by certain ulema.

My questions to you are: whether there is a difference of opinion in islamic scholars about this issue, or are all jurists united in asking for the impossible condition of four witnesses for a conviction of rape? Is Islamic Law, a rigid, never changing phenomenon, or can it be moulded to fit future generations better. For example can forensic evidence which can prove a certain man raped a certain woman beyond a doubt serve as a replacement for the 4 witness condition?

jazak-allah khair.

If, in my outrage, I have crossed the line to indecent behaviour, I ask for your forgiveness. However, I implore you to please answer my question in detail.

(There may be some grammatical and spelling errors in the above statement. The forum does not change anything from questions, comments and statements received from our readers for circulation in confidentiality.)

Answer:

Witnesses for Rape/Adultery?

In the name of Allah, We praise Him, seek His help and ask for His  forgiveness. Whoever Allah guides none can misguide, and whoever He allows to fall astray, none can guide them aright. We bear witness that there is no one (no idol, no person, no grave, no prophet, no imam, no dai, nobody!) worthy of worship but Allah Alone, and we bear witness that Muhammad(saws) is His slave-servant and the seal of His Messengers.

Your Statement: Brother, I beg to ask you, if the burden of proof on the victim, is to provide four righteous witnesses, then doesnt the question arise what those four righteous witnesses were doing standing around, watching a woman being raped?

There are two ways for a Shariah Court to determine rape:

1. Either through the account of four eye-witnesses, or
2. Through self-confession of the rapist.

Indeed, the conditions for proving rape in Shariah are difficult; but then one must understand that the punishment prescribed for rape in Shariah is also very severe! Allah Subhanah ordained the laws of Shariah, and it is the belief of every true believer, that Allah Subhanah is Exalted and High above ever making an error in anything He has Decreed!

Beloved brother, it is a standard law of justice even in this world, that the burden of the proof is always laid upon the accuser or prosecutor. Just imagine the chaos in society if courts were allowed to declare a guilty verdict on every man who is accused by a woman of raping her! The life and honor of every individual will be in disarray if such a proceeding was allowed in the courts, even of this world. Thus, even in the courts of this world, the burden of proof is always laid on the accuser or the prosecutor, and never on the accused; and witnesses, if any, are produced to prove/disprove the accusations.

Your Statement: If this is the burden of proof,then it gives a free hand to rapists, because most of our mothers, sisters, and daughters are generally in their homes, WITHOUT having four witnesses watching over them. Need I remind you, perhaps, that rapists choose their victims when they are ALONE, either in a public place, or in their very homes.

Allah says in the Holy Quran Chapter 33 Surah Al Ahzaab verse 59:O Prophet! Tell your wives and daughters, and the women of the believers, that they should cast their outer garments over their persons. It is expected that they will be recognized and that they will not be molested. And Allah is Oft Forgiving, Most Merciful.

That is precisely why Allah Subhanah has ordained that the believing men and women must lower their gaze, guard their modesty, never ever sit or talk casually with non-mehrams, and commanded the believing woman to cover herself adequately, and never ever be alone with a non-mehram man! But we tend to normally disregard these safety injunctions of Allah Subhanah, and choose to put our mothers, our sisters, our wives and our daughters in the path of trial. Islam strongly advocates the principle of ‘prevention is better than cure’; but these laws which protect us and our loved ones are looked upon as ‘backward’, and ‘harsh’, and ‘inhumane’ and held in utter disdain by those who are ignorant!

Your Statement: This kind of judgement by scholars makes people (muslims) fed up with the Sharia` and makes them demand military courts and British Law, which with their many failings, atleast gives justice in the instance of rape. Justice, which apparently is denied to victims according to this interpretations made by certain ulema.

I was just reading some statistics of rape in the developed nations, and if anything, one should wonder that in countries like the USA and England, whose man-made laws are held by some in such high regard, a woman is raped every six seconds! I repeat, every six seconds a woman is raped in the United States of America according to their own statistics! They are of the opinion that in excess of 30,000,000 woman are raped each year, and according to their own reports, they think the real number of rapes that go unreported are far in excess of the numbers reported! And according to their own reports, 92.45% of women are raped by a man known to them or their families!

And when their courts do convict a rapist, because they have an acute shortage of ‘jail space’ or because of what they call ‘good behavior’, the convicted rapist often walks free in 3-5 years! If you remember, some years ago a high profile rape convict, the famous ex-heavyweight boxing champion of the world, Mike Tyson, walked free only three years after being convicted for rape in a court of law in the USA! If one should be fed up of some laws, then it has to be such man-made laws made by the most developed and ‘free’ nations of the world, where rapists and other criminals walk free after a few years for ‘good behavior’ during their period in jail!

Shariah Laws, which are ordained by the Creator Himself, prescribe that a convicted rapist be given capital punishment in public, so that if one who is even thinking about committing such a heinous crime should take a lesson and abstain from it because of the severity of its punishment!

And my beloved brother in Islam, these Shariah laws are not only for rapists, but they apply also for the ones who commit the heinous sin of adultery; a crime which is not even regarded as a crime in the courts of law in developed countries like the USA and England, where they deem it ‘ok’ for consenting adults to have sex with each other, whether they are married or not!

Bill Clinton, the then United States President was convicted for the ‘crime’ of lying under oath during his fidelity trials; but was not even brought to trial for his various crimes of ‘adultery’!

Thus, if anyone should be fed up of Shariah Laws, it has to be the criminals; not the righteous and law abiding citizens of a society!

Your Question: My questions to you are: whether there is a difference of opinion in islamic scholars about this issue, or are all jurists united in asking for the impossible condition of four witnesses for a conviction of rape?

There is absolutely no difference of opinion amongst the Islamic Scholars on the issue of providing evidence of four eye-witnesses for rape or ‘zina’ cases.

Your Question: Is Islamic Law, a rigid, never changing phenomenon, or can it be moulded to fit future generations better.

Allah Subhanah created man, and it is He Who created their nature, and it is He Who ordained and decreed the laws to govern man! Who amongst mankind can claim to know more about a being and his nature, than the One Who created? And Who amongst mankind can bring about a better law to govern this man, other than the One Who created?

Because of man’s limited knowledge, he invents laws that are prone to trial and error; but the Knowledge of the Perfect Creator is Absolutely Perfect, and is based on His Perfect and Absolute Wisdom. No one, absolutely no one, has a right to change or mould the Laws and Decrees of Allah Subhanah in any way whatsoever; and whoever does so, or refuses to believe, or refuses to judge by the Laws sent down by Allah Subhanah, will be brought forth as a disbeliever in the Court of Allah Subhanah on an Inevitable Day.

Allah Says in the Holy Quran Chapter 5 Surah Maidah verse 44:If any do fail to Judge by what Allah has Revealed, they are the ‘kaafiroon’ (unbelievers)!

Allah Says in the Holy Quran Chapter 5 Surah Maidah verse 45:And if any fail to Judge by what Allah has Revealed, they are the ‘dhaalimoon’ (wrong-doers)!

Allah Says in the Holy Quran Chapter 5 Surah Maidah verse 47:If any do fail to Judge by what Allah has Revealed, they are the ‘faasiqoon’ (transgressors)!

Your Question: For example can forensic evidence which can prove a certain man raped a certain woman beyond a doubt serve as a replacement for the 4 witness condition?

There is absolutely no harm if the prosecutor or accuser presents forensic evidence to prove his/her case, which will definitely help in obtaining a confession from the criminal. And if a confession is made, the condition of presenting the four witnesses for a rape or ‘zina’ case would be inapplicable.

Your Statement: If, in my outrage, I have crossed the line to indecent behaviour, I ask for your forgiveness.

My beloved brother in Islam, we can understand your outrage, as should be the outrage of every righteous believer against this heinous and grave crime of rape and ‘zina’ in a society. The Rage, Anger, and Wrath of Allah Subhanah regarding a crime can be determined by the severity of the punishment He has Decreed for it; and the punishment for rape and adultery in Islam is to stone the criminals to death in public!

But as believers, we must sincerely believe and trust the Perfect Knowledge and Wisdom of Allah Subhanah; and if we are unable to grasp the wisdom behind any of Allah’s Commandments, we must understand and realize that the deficiency is in our knowledge and understanding, not in the Divine Commandments of the Perfect Creator. If in our limited and imperfect knowledge and understanding, we transgress the boundaries and challenge Allah’s Wisdom and Knowledge, we run the risk of straying into manifest error!

Allah says in the Holy Quran Chapter 33 Surah Ahzaab verse 36:It does not behove a believing man and a believing woman that when Allah and His Messenger have given their decision in a matter, they should exercise an option in that matter of theirs. For whoever disobeys Allah and His Messenger, has indeed strayed into manifest error.

May Allah Subhanah increase yours and our knowledge in the deen, help us, guide us, have mercy upon us, and grant us the humility and the wisdom to submit to Him in all aspects of our life. Ameen.

Whatever written of Truth and benefit is only due to Allah’s Assistance and Guidance, and whatever of error is of me. Allah Alone Knows Best and He is the Only Source of Strength.

Your Brother in Islam,

Burhan