Her Honor: 
An Islamic Critique of the Rape Laws of Pakistan 
from a Woman-Sensitive Perspective

Asifa Quraishi*
August 2003

* LL.M., Columbia University (1998); J.D., University of California, Davis (1992); B.A., University of California, Berkeley (1988); President, Karamah: Muslim Women Lawyers for Human Rights; Member, California Bar. 

Author's note:

This chapter first appeared as an article in the Michigan Journal of International Law (1997. Volume 18, 287). In this effort, I am indebted to many people for their assistance, guidance, and support. I humbly thank Dr. Laila Al-Marayati, Dr. Azizah Al-Hibri, Dr. Mohammad Fadel, Dr. Yaser Haddara, Dr. Hassan Hathout, Justice Javed Iqbal, Dr. Mohja Kahf, Dr. Fathi Osman, Mr. Akmal Salimi, Esq., my unique family, and my dear husband.

Courtesy: http://www.crescentlife.com/articles/social%20issues/rape_laws.htm 

 

Introduction

I 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 not.

This 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 condemns.

I. Critique Of the Zina Ordinance

A. Power of Law: The Zina Ordinance and its Application in Pakistan

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:

A man and a woman are said to commit ‘zina’ if they willfully have sexual intercourse without being validly married to each other.

Zina is liable to hadd [punishment] if--

(a) 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; or

(b) 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).

Under 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, states:

A 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 circumstances, namely:--

(a) against the will of the victim,

(b) 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

(d) 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 validly married.

Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of zina-bil-jabr.

Zina-bil-jabr is liable to hadd if it is committed in the circumstances specified [above] (P.L.D. 1979, 52; Bokhary 1979, 182; Major Acts 1992, 11-12).

Finally, the Zina Ordinance then specifies the evidence required to prove both zina and zina-bil-jabr:

Proof of zina or zina-bil-jabr liable to hadd shall be in one of the following forms, namely:--

(a) the accused makes before a Court of competent jurisdiction a confession of the commission of the offence; or

(b) 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, 12).3

When 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.

A 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

Short 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 Pakistan.6

Police 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).

Political 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).

Cases 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?


B. Law of God: the Qur’an on Zina

The 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 Qur’an states:

And do not go near fornication [zina] as it is immoral and an evil way (Qur’an 17:32).11

Later, the Qur’an more specifically sets out actual legal prescriptions criminalizing illegal sexual relations:

The 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).

Following this definition of the offense are extremely strict evidentiary rules for the proof of such a crime:

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, for they are profligates (Qur’an at 24:4).12

Thus, 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 misconduct.14

Islamic 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 zina.20

Why 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

This 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:

Those 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.

Why did the faithful men and women not think well of their people when they heard this, and [say] "This is a clear lie?"

Why 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.

Were 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 accusation.

When you talked about it and said what you did not know, and took it lightly– though in the sight of God it was serious–

Why 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!"

God counsels you not to do a thing like this, if you are believers (Qur’an 24:11-17).

The 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 obscenity.

Placing 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 here.

Why 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.

This 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

The 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.32 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 right.


1. Pregnancy as proof of zina?

Given the Qur’an’s strict standard of proof for a zina case, one might now wonder whether the conviction of women like Jehan Mina and Safia Bibi for zina on the evidence of their pregnancy alone33 could be justified by Islamic law. In traditional Islamic jurisprudence, the majority opinion34 is that pregnancy is not sufficient evidence alone to prove zina, since the Qur’an specifies nothing less than four eye-witnesses, and a fundamental principle of Islamic criminal procedure is that the benefit of the doubt lies with the accused.35 Other Muslim scholars, however, have held that pregnancy does amount to proof of illegal sexual relations, where the woman is unmarried and has not claimed rape. Imam Malik, and reportedly Ahmad ibn Hanbal, for example, considered unmarried pregnancy prima facie evidence of zina.36 This opinion is based in large part upon the reported positions of the three famous caliphs, Umar ibn al-Khattab, Uthman ibn ‘Affan, and ‘Ali ibn Abi Talib, that "[a]dultery is public when pregnancy appears or confession is made" (Salama 1982, 121).37 The difference of opinion is also due to differing interpretations of the role of circumstantial evidence in hudood cases.38

The 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 pregnancy.

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.


C. Drafting Problems in the Zina Ordinance

1. 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

Where 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:

A 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:–

First.-–Against her will.

Secondly.-–Without her consent.

Thirdly.--With her consent, when her consent has been obtained by putting her in fear of death, or of hurt.

Fourthly.-–With 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.

Fifthly.–-With or without her consent, when she is under [fourteen] years of age.

Explanation.-–Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception.–-Sexual 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. 375).44

With 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.

2. 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 stated:

[W]herever 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 repulsed.45

Such 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.

This 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.

Ironically, 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

3. 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).

However, 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?

Despite 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:

Evidence 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).

Although 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:

In the case of [zina] the testimony of four male witnesses is required as a female is weak in character (Ajijola 1981, 134).

[T]he 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).

[I]t 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).

[Regarding 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).

[In 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. 1).56

Assumptions 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 in history.

Educated 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 world.

The 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:

In 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 1995, 27).

Among 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

The 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.

Moreover, 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:

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, for they are profligates (Qur’an 24:4 (emphasis added)).

A 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.

Finally, 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.

4. 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 or 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, 13).65

One 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 states:

Even 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).

Thus, 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 ta’zir.

This phenomenon should sound familiar:
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, for they are profligates (Qur’an 24:4).

This 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

But 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 state.69

There 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.

II. Rape in Islamic Jurisprudence

In 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 women.

So 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?

A. Duress: Rape as a Negation of Intent for Zina

In 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, 8:129).

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.


B. Hiraba: Rape as a Violent Taking

Hiraba is 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:

The 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).

Islamic 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).

It 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, 2:450)."

Thus, 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 autonomy.77

Moreover, 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 zina-bil-jabr case.78

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.


C. Jirah: Rape as Bodily Harm

Islamic 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

Since 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.

Interestingly, 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.

Recent 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 devastating harm.


Conclusion: A Modern Islamic Gender-Egalitarian Law of Rape?

And 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 sexual autonomy.

Modern 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.


Commentary Notes

1. 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).

2. 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.

3. I 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.

4. 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).

6. 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 [Indo-Pakistani] subcontinent").

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).

8. 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.

9. 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.

10. "Sunnah" is a term used to describe the traditions of Muhammad (Kamali 1991, 44).

11. Another verse generally urging against fornication states:

Devotees 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, 68).

Note 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).

12. 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:

Those 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 truth.

And (swear) a fifth time that if he tell a lie, the curse of God be on him.

The woman’s punishment can be averted if she swears four times by God as testimony that her husband is a liar.

Her fifth oath being that the curse of God be on her if her husband should be speaking the truth (Qur’an 24:6-9).

For 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.

13. 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.

14. 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.

15. 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.

16. 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).

18. See note 53, infra, for an explanation of the Islamic schools of law.

19. See Mahmassani 1987, 23, 49 for history and significance of the Hedaya.

20. 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, 120).

21. Salama 1982, 118 (note *) ("the nature of such rigorous proof makes it a crime of public indecency rather than adultery").

22. 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).

23. 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).

24. See text accompanying note 16, supra.

25. 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).

26. See, e.g., Spender 1980 (discussing the asymmetry of language, and insults that tend to be based on women’s sexuality).

27. 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).

28. See Part I.A., supra.

29. 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.").

30. 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 relations.’").

31. See, e.g., Amnesty International 1995b, 92 (discussing honor killings in Egypt and Iraq).

32. See Part I.B., supra.

33. See Part I.A., supra.

34. 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.

35. 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).

36. 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).

37. 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).

38. Salama 1982, 120-21 (summarizing role of qara’in (presumptions, or circumstantial evidence) in hadd jurisprudence).

39. See Part I.B., supra.

40. Ibid.

41. Ibid.

42. See Part I.A., supra.

43. See Part II.A., infra.

44. For comparison, the zina-bil-jabr section reads: A 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 circumstances, namely:
(a) against the will of the victim,
(b) 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
(d) 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 validly married.

Explanation.–Penetration is sufficient to constitute the sexual intercourse necessary to the offence of zina-bil-jabr.

Bokhary 1979, 182 (with comment and annotation); Major Acts 1992, 11-12.

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).

46. 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.").

48. See Part I.B., supra.

49. 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).

50. Qur’an 24:4 ("Those who defame chaste women and do not bring four witnesses [shuhada’] should be punished . . . .").

51. Wadud-Muhsin 1992, ch. 1 (discussing Qur’anic grammar and its emphasis on the duality of men and women).

52. Ajijola 1981, 134; El-Awa 1982, 17, 124-26 (defining zina witnesses as four adult men).

53. 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 men).

54. 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.

56. 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").

57. 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 alone)

58. 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).

60. 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).

61. 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.

63. 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

64. 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 level.").

65. 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.

66. 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 ground).

67. al-Shafi’i 1987, 247 ("[o]nly the witnesses in the case of adultery should be scourged").

68. See Part I.B., supra.

69. Ibid.

70. 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").

71. Bukhari 1985, 8:Ch. 7; Mishkat al-Masabih 1:762 (citing hadith in Tirmidhi and Abu Dawud).

72. 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 rape).

73. See generally Abou El Fadl 1991, 305.

74. 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).

75. 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")").

76. 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.

78. See Part I.C.2., supra.

79. al-Maqdisi 1994, 3 (introduction; describing law of jirah, classification of injuries, etc.).

80. 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 domestic abuse.

81. 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).

82. See, e.g., De La Mothe 1996, 23: 857.

83. 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 rape).

84. 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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