EVIDENCE TO SAY NO WITNESSES IS REQUIRED!
Does Islam require four witnesses for rape?
Published on: Saturday 09 Dec, 2006
By: administrator
Mohd Elfie Nieshaem Juferi
Does Islam really require four witness for rape victims? This is a common argument used by those who usually attempt to make a false analogy with adultery by inferring from the following Qur’anic injunction:
“And those who accuse chaste women [of adultery] and then do not produce four witnesses — lash them with eighty lashes and do not accept from them testimony ever after. And those are the defiantly disobedient. Except for those who repent thereafter and reform, for indeed Allaah is Forgiving and Merciful.”1
That this myth was repeated by none other than the former Malaysian Prime Minister Tun Dr. Mahathir at an UMNO General Assembly meeting had greatly contributed to the misconception that Islam requires four witnesses for rape:
If four witnesses were to merely watch a woman being raped and not attempt to help her, would they not be regarded as having sinned (for allowing a woman to be raped) and are not be fit to be witnesses?” he said. Under Pas’ hudud also, rape victims would in turn become the accused in the event that she could not make the four witnesses available.
Unfortunately for such people, this fallacy of equivocation has no basis in Islamic jurisdictions and the punishment for rape (which is defined as forced sexual intercourse) is certainly not equivalent to the punishment of adultery. Insha’allah, in what follows we aim to deal with this issue once and for all by breaking it down into several points so as to enable easy understanding.
The claim that rape victims require four witnesses to seek justice for their case is untrue and a false lie propagated by those who either do not have any knowledge in Islamic law or want to “prove” a so-called weakness in the hadd laws. Circumstantial evidence is sufficient and the judge can invoke his judgment based upon takzir (his own discretion).
If a person makes an allegation of adultery against another person (male or female), only then he or she must produce four witnesses to support such an allegation: “And those who accuse chaste women [of adultery] and then do not produce four witnesses….”2; otherwise, he or she is guilty of slandering, which is a grave offense in Islam.
To insist that the raped victim must provide witnesses is akin to inflicting further pain on her. If anyone refutes her claim of innocence, the onus is on him to provide evidence, and she may simply deny the claim by making a solemn oath, thus clearing herself in public.
This is based on what the Prophet Muhammad (P) had once said:
“The onus to provide evidence falls on the one who makes a claim, and the one who denies (the same) can absolve himself or herself by making a solemn oath to the contrary.”
Further, the Prophet (P) was reported to have said that:
“Allah (T) has pardoned my people for the acts they do by mistake, due to forgetfulness and what they are coerced into doing.”3
An event concerning rape had in fact led towards the Prophet Muhammad (P) punishing a rapist without demanding or even hinting for four witnesses:
“Narrated Wa’il ibn Hujr: “When a woman went out in the time of the Prophet (P) for prayer, a man attacked her and overpowered [raped] her. She shouted and he went off, and when a man came by, she said: That [man] did such and such to me. And when a company of the Emigrants came by, she said: That man did such and such to me. They went and seized the man whom they thought had had intercourse with her and brought him to her.
She said: Yes, this is he. Then they brought him to the Apostle of Allah (P).
When he [the Prophet] was about to pass sentence, the man who [actually] had assaulted her stood up and said: Apostle of Allah, I am the man who did it to her.
He [the Prophet] said to her: Go away, for Allah has forgiven you. But he told the man some good words [Abu Dawud said: "meaning the man who was seized"], and of the man who had had intercourse with her, he said: “Stone him to death.“4
It should also be noted that it was related by Ibn Abi Shaybah through Târiq b. Shahab that a woman accused with adultery was taken to Caliph `Umar. The woman pleaded that she was asleep and woke up to find the man over her. `Umar released the woman.5
Based on the above sayings of the Prophet (P) and the events associated with it, the jurist Ibn Qudamah had stated as follows in his book al-Mughnî:
“If a woman becomes pregnant without having a husband or a master, she may not be punished and, in stead, she should be asked about it, if she claimed that she was coerced into it or that she committed adultery under dubious circumstances, or if she simply does not confess adultery then she will not be punished. This is the saying of Abu Hanîfah and al-Shâfi`î, because she may be pregnant as a result of a forceful intercourse or dubious circumstances. Punishment will be abandoned in case suspicion exists. It is well known that a woman could become pregnant without committing the real intercourse. The woman may become pregnant if sperm is manually inserted into her vagina. This would explain how a virgin becomes pregnant.”
We can now see that a testimony of the raped woman suffices in exonerating her from adultery and that Islam recognises the crime of rape and that a raped woman will not be punished for such a crime that was inflicted upon her.
So what really is the punishment for rape?
According to the majority opinion of Muslim scholars, rape is considered as hirabah (highway robbery or terrorism) and hence rapists are to be punished according to the hirabah laws, as highlighted in the Qur’an. This of course is as opposed to what the Bible teaches about the punishment for rape. For example, we read that:
“If a man is caught in the act of raping a young woman who is not engaged, he must pay fifty pieces of silver to her father. Then he must marry the young woman because he violated her, and he will never be allowed to divorce her.”6
What kind of lunatic would make a rape victim marry her attacker? Is there any justice in forcing the raped woman to marry her rapist and bound her to him for the rest of his life? Further we also read another example that the Bible teaches that the rape victim should be punished with death:
“If within the city a man comes upon a maiden who is betrothed, and has relations with her, you shall bring them both out of the gate of the city and there stone them to death: the girl because she did not cry out for help though she was in the city, and the man because he violated his neighbor’s wife.”7
This injunction of course leaves little to the imagination. We will leave the reader to form their own conclusions. We hope that the above explanation that was given had made it clear that in Islam, rape victims are not required to “bring four witnesses” as alleged and that Judeo-Christianity has a much harsher law for rape when compared to Islam. Further reading on the issue can be found in the article, Are Raped Women Asked to Bring Four Witnesses?
And only God knows best!
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1.Quran 24: 2-5 [back]
2.ibid. [back]
3.Related by Ibn Mâjah, approved by al-Nawawî, Ibn Hajr and al-Albânî. [back]
4.Sunan Abu Dawud, Book 38, #4366 [back]
5.The narration was approved by al-Albâni. [back]
6.Deuteronomy 22:28-29 [back]
7.Deuteronomy 22:23-24 [back][/HTML]
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