Sexual Violation in Islamic Law : Substance, Evidence, and Procedure
SEXUAL VIOLATION IN ISLAMIC LAW – Book Sample
Sexual Violation in Islamic Law
This book provides a detailed analysis of Islamic juristic writings on the topic of rape.
The author argues that classical Islamic jurisprudence contained nuanced, substantially divergent doctrines of sexual violation as a punishable crime.
The work centers on legal discourses of the first six centuries of Islam, the period during which these dis- courses reached their classical forms. It chronicles the disagreement over whether or not to provide monetary compensation to victims, as reflected in debates between the Hanafı-and Ma-likı-schools of law.
Along with tracing the emergence and development of this conflict over time, the author explains the evidentiary and procedural ramifications of each of the two competing positions.
This study examines several critical themes in Islamic law, such as the relationship between sexual- ity and property, the tension between divine rights and personal rights in sex crimes, and justifications of victims’ rights as afforded by the two competing doctrines.
Hina Azam is an Assistant Professor of Islamic Studies at the University of Texas at Austin. She has published articles in the Journal of Law and Religion, the Journal of Middle East Women’s Studies, and Comparative Islamic Studies. She has contributed to the edited volumes Feminism, Law, and Religion and A Jihad for Justice: Honoring the Work and Life of Amina Wadud, as well as to The Oxford Encyclopedia of Islam
Sexual Violence in Contemporary Muslim Societies
Male sexual violence against women and girls is a major problem in contemporary Muslim societies. Human rights and women’s rights organizations, media sources, and government reports regularly detail the frequent occurrence of numerous forms of such violence, including molestation, rape and incest, underage or forced marriage, abduction and forced prostitution, marital sexual abuse, genital mutilation, and honor killings, among others.
The high incidence of male-female sexual violence in Muslim societies appears to be due in large part to sociocultural attitudes and practices that are patriarchal or even misogynistic in nature, and that may contravene the dictates of the law in those societies.
Factors such as poverty and economic stagnation, lack of education, absence of protective kinship structures, remoteness from urban centers or centers of judicial and governmental authority, and warfare or political unrest can exacerbate sexual violence against women and girls and can hinder the enforcement of women’s rights even where such rights exist in the law. However, the problem of sexual violence in Muslim societies cannot be analyzed only with reference to sociocultural, economic or political factors.
Male-female sexual violence in Muslim societies is just as much a problem of the law itself. Legal institutions in many majority-Muslim states function to promote violence against women in systematic ways, ranging from establishing and enforcing male authority and power over females, to phrasing laws in ways that appear neutral but in fact are structurally discriminatory toward women, to providing legal cover for males who perpetrate violence against females.
A review of well-known cases and problematic laws will highlight some of the challenges in the area of sexual violence toward women and girls in Muslim states.
One of the countries that has received the most attention for its handling of rape, and that demonstrates the potentially adverse impact the law can have in these cases, is Pakistan. From 1979 until 2006, the adju- dication of sex crimes was governed by the Hudood Ordinances, which sought to impose severe sharı–‘a-based punishments – known as h.udu–d (sing. h.add) – on those who engaged in extramarital sex, or zina-. The Hudood Ordinances had a devastating effect on female victims of sex- ual violence. Between 1980 and 1988, the number of women impris- oned on zina-charges jumped from 70 to 6,000.1 By 2000, more than half the imprisoned women awaiting trial had been apprehended on zina– charges.2
Individual Pakistani cases reveal the types of problems caused by the Hudood laws: In 1983, sixteen-year-old Jehan Mina claimed to have been raped and impregnated by two relatives. The police in turn arrested her for engaging in fornication (zina-). The court acquitted the two accused men on the grounds of insufficient evidence.
However, under the Hudood laws, pregnancy out of wedlock was seen as presumptive evidence of con- sent to zina-, unless countermanding evidence of coercion could be shown. Because she did not have such evidence of coercion, Mina was sentenced to receive the h.add punishment for zina-, which was one hundred lashes.3 That same year, a blind girl – Safia Bibi – claimed to have been assaulted and impregnated by her landlord and his son.
In court, she was unable to identify her assailants, and so the charges against them were dismissed. Her pregnancy, however, was treated as evidence of consent to fornication, so she was sentenced to imprisonment for three years, fifteen lashes, and a fine.4
The following year, Rafaqat Bibi filed a complaint of rape against Muhammad Suleman. But when it was found that she was pregnant, both woman and man were charged with (consensual) fornication. The court convicted Rafaqat Bibi for zina-and sentenced her to five lashes and five years in jail.
The man, however, was acquitted.5 Then, in 1992, a twenty-one-year- old mother of two named Shamim charged three men with abducting and violating her. In response, the police arrested Shamim herself on the charge of zina-.6 That same year, Veena Hyat, daughter of a prominent politician, was gang raped in her own home by five armed men, after which her father reported the attack.
A judicial inquiry con- cluded that there was insufficient evidence for conviction, and so the assailants went free.7 Assaults on high profile women such as Veena Hyat highlight the ways in which Pakistan’s rape laws worked against even women possessing more than most in the way of social, political, eco- nomic, and legal resources.
After the turn of the century, public opinion began to mount against the handling of sex crimes under the Hudood Ordinances. A turning point seems to have occurred in 2002, when a working class housewife named Zafran Bibi raised accusations against her brother-in-law.
The court concluded that her accusation constituted an admission to zina-, and, as she was married, sentenced her to the capital h.add punishment of stoning. This was the first widely publicized sentence of stoning to be pronounced under the sharı–‘a-based laws, and it provoked public outcry. After she had spent several months in prison, social pressure led then-president Pervez Musharraf to suspend the death sentence in her case.
All the while, as was the norm during this period, the accused was never brought to trial.8 By 2006, the activism of feminists and human rights groups began to show fruit, and Pakistan passed the Women’s Protection Bill, which amended the penal code to remove sexual violence from under the governance of the Hudood laws and place it under the ordinary civil code. Consequently, the most unjust aspects of the law have been repaired.
Nevertheless, Pakistan offers a particularly egre- gious example of the problems that have arisen when countries have tried to adjudicate male-female rape according to classical construc- tions of Islamic law.
Other sharia-based jurisdictions have enacted or experienced similarly prejudicial laws against female rape victims. Nigeria has witnessed sev- eral incidents in which women and girls have become entangled in laws regarding fornication and rape, particularly since the institution of such laws in 1999 in several Muslim-majority states.9 In 2000, the unmar- ried Bariya Magazu was found pregnant. When questioned, she claimed that three men had assaulted her. However, lacking witnesses to support her claim of coercion, she was sentenced to one hundred lashes for zina-; she was also sentenced to an additional eighty lashes for unsubstantiated accusations of zina-against the three men. The accused men were not prosecuted.10
A short while later, in 2001, a thirty-five-year-old divor- cée from Sokoto state named Safiya Husaini gave birth to a child who she claimed was the result of rape. Her claim was dismissed for lack of evidence of coercion, and she was sentenced to death by stoning for con- sensual adultery. International outcry, however, resulted in a suspension of her sentence.11
An Amnesty International 2006 report concurs that the construction of rape in Nigerian sharı–‘a codes fails to provide sufficient protection and redress for victims, and that those codes put an unfair burden on rape victims to prove their nonconsent.12
Other states with sharı–‘a-based laws have experienced similarly high rates of sexual violence, incrimination of females, and perpetrator impu- nity. In Mauritania, for example, conviction of men for rape is exceed- ingly low.13 As in Pakistan, Mauritanian women who accuse men of…
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