In all these cases, these women claimed that they were raped, but they ended up convicted under the Shari'ah/Hudood law for adultery. Some of these cases are well known and received worldwide attention. Had these been isolated cases, it would have been different. However, the overall statistics is more than disturbing. In the case of Pakistan, "Of the 7,000 women in jail around the country awaiting trial, 88 percent are accused of crimes under Hudood, according to the Lawyers for Human Rights and Legal Aid. Ninety percent of these women have no lawyer, and 50 percent do not know they are entitled to contact one. Most women accused of Hudood violations are acquitted, but lose an average of five years to confinement, and lose their reputations as well." ⁵ Under the new Hudood law, the incentive for any woman to report any rape is gone. "Hudood has also unwittingly become a major factor in rape cases. Many rape victims refuse to file charges, because under Islamic law, four male Muslim witnesses are required to prove charges of rape. Women who cannot produce this many witnesses often end up in jail themselves for adultery, a crime against the state punishable by stoning to death." ⁵ Under such a caricature system, rape victims have less reason to accuse anyone as a rapist. 

This is a travesty of Islam, even though Islam is essentially "gender-egalitarian." [Quraishi, p. 288] In this paper, we examine the problems with these Hudood laws that put women in a serious double jeopardy. Before proceeding further, let me point out that the following is an important premise in my approach to dealing with any contemporary Islamic issues. The essential source of Islamic guidance is the Qur'an and the Sunnah. We are to be respectful of and we must take into consideration the opinions of our pious and capable ancestors and their valuable contributions. However, we are not to imitate or follow them verbatim, if in conscientiously understanding, interpreting or practicing Islam in contemporary times we need fresh thoughts and solutions. 

The problem

In 1979, under the military rule of late Gen. Ziaul Huq, the Pakistani government decided to implement Shari'ah, a very misunderstood, misinterpreted and misapplied concept. Hudood is plural of Hadd, a few boundary limits for the lawful and unlawful from God. The hadd punishments are specific, fixed penalties laid down by Allah for specified transgressions or crimes. As part of that, a comprehensive Hudood ordinance was enacted, which included The Offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979. Zina (adultery/fornication) is prohibited in the Qur'an and it is a punishable offence. This ordinance defined zina a lot more liberally, where zina means adultery, fornication, prostitution and rape. Thus, rape became a type of zina, zina al-Jabr.

Notably, the classical Islamic jurisprudence treated rape as a special case of assault, not of zina. "Using ... examples of Umar as sources, the Islamic legal schools began recommending payment of compensation in rape cases and dealing with rape as a violation of property, or ightisab (from the root ghasb, or usurpation), of what belonged to another." [Sonbol, p. 311] Unless it is treated as violation of the property of the victim, this approach has some faults as at some levels of jurisprudence, women are reduced to property and that must be avoided and rejected. Notwithstanding that shortcoming, there is at least potential to further develop this approach without the "property" angle. However, by including rape under zina, for all practical purpose, it undermines the special dimensions of this crime. One related, pivotal problem is the the witness requirement. 

Anyone accused of rape is considered to have been involved in zina (adultery/fornication). The accuser (victim) must then produce four credible male witnesses to give testimony against the accused that he has raped the accuser. If the accuser fails to meet the witness requirement, then the accuser, usually a female, is by default charged of zina and, if convicted, given the punishment prescribed under the Hudood law. If the female does not bring up the accusation of rape, then the woman is by default charged with zina. 

Un-consenting sexual intercourse is termed zina-bil-jabr, and carries a tazir penalty for the perpetrator of 25 years in prison and 30 lashes; there is also a more severe hadd punishment, but, as noted, this has never been carried out. However these penalties offer little protection to women since, in practice, a woman who has been raped and makes an accusation of zina-bil-jabr is laying herself open to accusations of adultery, and thus to conviction for zina. [Marcus, p. 9]

Many women who, once accused of zina, have claimed to have been rape victims, were charged and imprisoned under this Hudood law, as they failed to produce the supporting witnesses. Thousands of women have been languishing in prisons of Pakistan under this Hudood law. A society that presumably wants to implement such laws for protection of morality and decency seems to be oblivious to the fact that these raped victims are further sexually victimized in prisons by police. ⁶ 

Also, pregnancy without marriage (or a counter-charge of rape) is recognized as a basis for prosecution for zina. It is not difficult to contemplate that a woman can become pregnant due to rape, and even so, it may not be easy in a male-dominated society to bring the charge of rape against the rapist. There is no direct basis from the Qur'an or the Prophet to treat pregnancy of unmarried women as a prima facie evidence of zina. There are some prominent companions who have held it as prima facie evidence, but that's their opinions. Neither there is any unanimity on this among the Companions of the Prophet, nor any basis of it from the Qur'an or the Prophet is given. The subsequent generations of scholars and jurists have widely differed on this. [Quraishi, p.300] Any such provision without direct sanction from the Qur'an or the Prophet can't and shouldn't be given too high a status, where the social conditions may prevent a woman becoming pregnant due to rape from bringing up the rape charge.

Zina vs. Zina bil Jabr: Treating rape as a subcategory of adultery

Zina relates to adultery or fornication - any extramarital sex - and is prohibited in Islam. However, an essential aspect of zina is that it is consensual. Rape, thus, can't be classified under zina. The term zina bil Jabr is oxymoronic, because literally translated, it means "consensual extramarital sex by force". Had it been only a matter of oxymoronic expression or semantic, it wouldn't have been of great significance. However, because it has serious legal implications and has impacted the lives of many women, this matter can't be taken lightly.

A major problem with the orthodox Islamic law, as exemplified in the Hudood Ordinance of Pakistan, is approaching rape as zina bil Jabr. Because zina is legally prohibited and regarded as morally one of the most reprehensible acts, the very charge of zina bil Jabr casts a negative spotlight on the accused. A rape victim, already a victim, is further traumatized and stigmatized by such label that is regarded by the society as reprehensible. This label is an obstacle to seeing and treating a raped victim, as a victim, and victim only. Instead, the very charge is under a presumption that the victim along with the rapist have been involved in a morally reprehensible act. 

Thousands of women, who have claimed to be rape-victims, are now languishing in jail or have their lives ruined even after being acquitted, due to trying them under zina bil Jabr of Hudood Laws. [Jahangir and Jilani, chapters III-IV] "No distinction has been made between Zina and Zina Bil Jabr (rape), resulting in it becoming an instrument of exploitation and oppression." [Niaz, 2001]

While Islam places very high value on morality and decency, and thus there is harsh punishment for promiscuity, the entire issue is also subject to Islam's essential commitment to justice, with a special focus on protecting the weak and the vulnerable. When this commitment is undermined, Islam itself is undermined, contrary to the examples from the Prophet Muhammad.

While punishment for sex outside of marriage may still seem harsh to some in the context of contemporary Western society, the important point to note for the sake of this study is that the Prophet did in fact differentiate between consensual and nonconsensual actions and punished individuals accordingly. This fact underscores the Prophet's commitment to justice and to women's dignity and honor. [Norman, p.2]

Well, it is to be acknowledged that Rape is one of those crimes that is most difficult to prove in any society and thus extra considerations must be there to protect the accused who might be innocent and to get justice for the accuser who may have been a rape victim. [Jahangir and Jilani, p. 13; Asma Jahangir's The Hudood Ordinances: A Divine Sanction is probably the first and only systematic study of Hudood Ordinances and a must reading.] Yet, how is it possible that Shari'ah or Hudood laws that are purportedly based on Islam's explicit pursuit of justice and protection of the weak and wronged end up either against the wronged or exacerbating the problem? A major part of the problem is that people often don't know about the problem in depth and the scholars (especially religious scholars) rarely undertake any systematic, research-oriented study before or after they pronounce fatwas or enact laws.

Interestingly, all these groups are looking at the Hudood Ordinances more in the light of what they think they are, than what they actually are. Most participants in the debate have not made an attempt at a serious and systematic study of these laws. They have largely gone by impressions and their own biases. [Jahangir and Jilani, p. 21] 

First, the Qur'anic commandment regarding zina and its punishment makes two things abundantly clear. (a) Islam treats very sternly adultery/fornication or any sexual relationship outside what is permissible. However, this is not based on the vigilance of an watchful and intrusive role of the government. (b) The threshold of witness requirement makes any conviction virtually impossible. Anyone, including the public authority, accusing someone (male or female) of adultery has to produce four, credible and pious eyewitnesses, who have seen at least the penetration. Such high and strict evidentiary requirement for conviction for adultery/fornication can hardly ever be expected to be fulfilled in a Muslim society. That's why the cases of punishment for adultery during the time of the Prophet was generally based on voluntary confession by someone, who, due to fear of God, wanted to have the punishment of his or her sins in this world, in lieu of any punishment in the life hereafter. 

Yes, the punishment for adultery/fornication in Islam is harsh, but the threshold for conviction is so high that it is expected to be virtually non-existent. That, in contemporary times, there are easy accusation and conviction, especially of so many women under the Hudood Ordinance in Pakistan and where raped victims frequently end up in jail, is simply inconsistent with the purpose of the Qur'anic commandment in this regard.

Secondly, women's witnesses are not recognized and admitted. "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." [Quraishi, p. 290]

Now, let's assess the problem taking the issue of witness requirements into consideration. As soon as either (a) a woman files a complaint of rape or (b) a woman accused of zina in turn brings up the charge of rape, the burden of proof shifts to the accuser. If the charge is initiated as a rape charge, the accuser must come up with four male, adult, pious, credible Muslims to prove her case. Anything less would mean that the accuser can be punished of zina and (and often also false accusation). So, there is a double jeopardy. If the woman was accused of zina and in turn brings up the charge of rape (zina bil jabr - an oxymoron), once again, now the burden is on her to meet the same witness requirement. She can't bring female, non-Muslim or minor witnesses. She also can't bring either witnesses who are not pious (to the extent that they are free of major sins) or witnesses who have not been eye-witnesses of the "penetration." In such cases, she would by default be charged of zina. 

It is this predicament that has entrapped women under Hudood laws. The problem is further compounded by two additional factors. Since the punishment for rape (zina bil jabr) is greater than just zina (adultery), the accused rapist has all the incentive to claim that it was an adulterous relationship. This is also typical in most rape related charges in western countries as well. Thus, when the rape charge is brought, the burden of proof falls on the accusing women. However, since women's witness is not accepted and rapes rarely occur in public view to have four reliable, pious Muslim witness who have sighted the penetration, generally the rape charge can't be made to stick. 

It must also be assumed that witnesses are not manipulated by the power of status or wealth by the rapist. "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" [Quraishi, p. 291] Furthermore, "the Pakistani police proved to be disappointingly criminal in practice, by refusing to register cases under Zina bil-Jabr i.e. rape and recording it instead as a case of Zina i.e. adultery." [Aslam, 2003]

Actually, the law enforcement agencies of Pakistan go much further in subverting justice through their gender-bias. 

Police officials often fail to file reports, lose reports, or even persuade women not to file a report through harassment or even abuse. In the unlikely event that a report is even filed, the police often conduct improper investigations or fail to even investigate the crime at all. As a result of these inadequate or non-existent investigations, men who have been reported to have committed these violent acts are often not arrested or charged with the crime.

A prevailing view among police officials is that women who have been raped are either scorned lovers or fear family reprisals, thus they fabricate a story to frame the men. Police officials often view domestic violence, including honor killings, as a private matter to be resolved within the family or tribe, not the criminal justice system. [Bettencourt, p. 12]

As is all too well known, most Muslim societies, including Pakistan, are strictly hierarchical society, where an authoritarian structure prevails at almost all levels, and domestic violence is also widespread. 

"Male dominance and commodification subjects women to violence on a daily basis in Pakistan. Approximately seventy-percent to ninety-percent of Pakistani women are subjected to domestic violence.4 Typical violent acts include, but are not limited to, murder in the name of 'honor,' rape, spousal abuse including marital rape, acid attacks, and being burned by family members (often labeled an accident by family members). A rape occurs in Pakistan every two hours with one in every 12,500 women being victims of rape. Five women per day are killed and two women per day in the region of Punjab alone are kidnapped.5 Incidents of women being burned by men throwing acid, an act that severely disfigures its victims, has increased as well." [Bettencourt 2000, quoting Human Rights Commission of Pakistan]

The typical rapist is not a stranger in a community, and usually more powerful in various ways than the victims. Thus, witness manipulation by the rapist is a very common problem. 

This problem is further exacerbated by the reality that most of the victims of rape are from socio-economically disadvantaged strata of the society. Many of them are illiterate and rarely any of them have literacy about the laws and ordinances. "According to the 1999 report by the Human Rights Commission of Pakistan, only two percent of Pakistani women participate in the formal sector of employment. Ninety-three percent of rural women and seventy-two percent of urban women are illiterate." [Bettencourt, 2000, p.3] While women of diverse background can get accused, ultimately, it is those "women who cannot afford lawyers are those most likely to be charged and jailed" [Khan, p.2].

Studies have shown that many of those women who have been subjected to the existing laws and/or are languishing in prison under Hudood laws don't know or understand as to what happened to them. Many of them didn't know or understand the especial jeopardy of accusing another party of rape, even when they were raped. 

As the Ordinance of 1979 stated, the Hudood laws were meant "to bring in conformity with the injunctions of Islam the law relating to the Offence of Zina." However, it is now all too clear that rape has been usually made subject to ta'zir (a discretionary punishment based on judge's on interpretation, specific to the school of jurisprudence prevailing in the country), not Hadd (irreducibly applicable punishment specified by the Qur'an and Sunnah). Classifying rape under zina has exposed women to double jeopardy and emboldened the men who seek to impose themselves upon vulnerable women.

Although the Hudood Ordinance was promulgated in 1979, it seems that now, 8 years later, men have become more confident of the manner in which they can get away with the sexual exploitation of women-rape. [Sumar and Nadvi, 1987]

Based on the predicament of these women, many of them are double victims (first raped, and then sexually assaulted by the police or prison guards). Where Islam is categorically for justice, especially to protect the weak and vulnerable, the current Hudood laws not only have failed to deliver justice, but in reality has become a legal nightmare for the less powerful and the disadvantaged segments of the society.

All those women who are languishing in jail due to the unacceptably faulty Hudood laws must be freed and Muslim men and women must come forward for a campaign to free them. The religious scholars have a special responsibility before the people (and before Allah) to educate themselves about the consequences of the laws they promulgate and uphold on these hapless women.

To better ensure the moral values of the society and uphold Islam's commitment to justice, several steps must be taken to address the pertinent problems. 

1. Rape needs to be legally separated from Zina.

Zina bil jabr is not just an oxymoron, but also a proven legal black hole for women, where they are getting entrapped and their lives ruined. It is an unintended, but serious and unacceptable consequence of the current Hudood laws. Rape needs to be tried under assault laws. Further exploration of this matter is needed to better deal with rape from the viewpoint of Islamic laws.

2. Woman's witness must be legally recognized

There is absolutely no reason why female witness wouldn't be recognized in the name of Islam. The orthodox position that women's witness is not equal to men's needs to be confronted and changed based on the very principles of Islam that is meant to be just and balanced. In the short run, there should be necessary changes to recognize female witness in such pertinent cases. In the long run, both Islamic fiqh and the established laws need to put male and female witness at par. 

3. Women's participation in the Islamic legal discourse and legal system needs to be ensured

One of the fundamental problems in Islamic legal discourse is absence of participation of women after the glorious earliest period after the Prophet. Gradually, the Islamic discourse in general and legal discourse in particular became an exclusive domain for men. The lack of women's presence in this field was not merely a loss of balance from the gender perspective, but also the male-exclusive legal discourse produced laws and codes that were most restrictive and insensitive in regard to women's concerns or viewpoints. [Ramadan, pp. 139-143]

Muslims need to reject any legal discourse and legal system that either fails to accommodate or work toward ensuring the necessary participation of women. Women's participation needs to be facilitated in the formulation of Islamic laws. Their participation is also a must at the judicial level. Without it, it is neither fair nor Islamic.

4. Islamic law must come through an Islamic political system characterized by representation, participation and accountability. 

Hudood Ordinances of Pakistan were introduced and enacted under the military junta, who took over the power through military coup, which put aside the constitution as well as all elected bodies. General Ziaul Huq formed a Majlis-e-Shoora (a consultative body), which was unelected and it is that body that enacted the Hudood laws. [Jahangir and Jilani, p. 31]

Islam is incompatible with authoritarian, autocratic, hereditary or hegemonic system. After the Prophet Muhammad, rightly-guided leaders were based on a constitutional/representative, participatory and accountable system. This system got subverted through a counter-revolution, leading to an un-Islamic system, where it became hereditary and/or autocratic. [Farooq 1, 2002]

Whenever the political system doesn't have Islamic validity, as was the case of the military junta late General Ziaul Haque, Islamic laws introduced under such system would be naturally vulnerable to abuses and failures at the core. Muslims need to reject any effort to introduce so called Shari'ah laws under unrepresentative, Islamically-illegitimate regimes.

5. Islamic law requires independence of judiciary and rule of law, where protection of the weak and vulnerable must be a priority 

In any society, characterized by widespread illiteracy and poverty on one hand and serious maldistribution of power and wealth, there has to be additional protection for the weak and the vulnerable. For this, independence of judiciary is a must and women's participation in this area is also vitally important. 

6. Requirement on the framers of Islamic law to have ongoing empirical work

Of course, there was hardly empirical work to study the social phenomenon as a consequence of such laws and codes. How do the laws pertaining to divorce impact the society in general and women in particular is never studied as part of empirical social research. The entire approach is deductive and the discourse remains in the realm of books. Indeed, the Islamic laws are exclusively text- or book-oriented, without the benefit of life-orientation. [Farooq_3]

What would be or was the consequence of the Hudood laws is usually not studied by those Islamic scholars or experts who formulate the laws and codes. Islamic scholars and educational institutions with which they are affiliated need to undertake empirical social research before AND after formulating and implementing laws.

7. Parallel to others, Ulama need to monitor any abuse and failure of the system, including any vigilante abuse 

Any society based on rule of law or Shari'ah must not allow individuals or groups to take law into their own hands. There have been several widely reported cases in various parts of the Muslim world, where a village tribunal without any legal or Islamic authority has given fatwa and attempted to enforce it, the target of which is usually women. 

Our Islamic scholars and experts need to extend their role beyond scholarly and legalistic works. They also need to have organized efforts to keep a tab on the legal system's abuse and failure and actively work with the victims for protecting their rights. There is a serious human rights issue that often get ignored by the religious scholars, and they fail to look at the problems from practical social as well as human view points.

8. Ta'zir does not have any divine sanction and thus its human fallibility must be acknowledged and taken into consideration

There is a gross misunderstanding as well as misrepresentation that entire gamut of Islamic laws is divine and thus sacrosanct. Quite the contrary, even in case of Hadd (Qur'an-specified punishment for certain major offences), the interpretation at the level of details and its implementation is all too human. The issue of Ta'zir (discretionary punishment estimated by a judge that is not specifically prescribed in the Qur'an or the Sunnah) is particularly relevant here. 

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. 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. The Qur'an thus indicates that, unlike other hadd crimes, there can be no ta'zir punishment for zina. [Quraishi, p. 312]

9. Raped victims must not be further victimized by forcing the rapists to marry them

One particularly troubling problem is when a local, informal tribunal forces a rapist to marry the raped victims. It is considered to be a punishment for the rapist, without any consideration for the victim's consent to such marriage or the life time consequence for the victim. In reality, it becomes a double whammy for the raped victim, in both cases (rape and subsequent marriage) deprived of her freedom and dignity. There are some precedents reported from Hadrat Umar. However, Hadrat Umar offered this as an option to the victim [Norman, p. 3], which is generally not the case in many rural communities of our time. Furthermore, even if Hadrat Umar offered this as an option, this was his juristic position, not necessarily with any support from the Qur'an or the Prophet.

Postscript

It took almost 25 hours for the Ulama to come to recognize that there is problem. In mid-2006, in a publicly broadcast event, a number of Ulama conceded that the Hudood Ordinance needs serious amendment. On December 1, 2006, President Musharraf signed into law Women's Protection Bill 2006, which purportedly replaces the earlier Hudood Ordinance. However, Dr. Farooq Hassan, an internationally reputed attorney explains in Women's Protection Bill: Perception and Realities:

"The label 'Women's Protection Bill' is patently misleading. All it does is change the forum and modalities of making accusations only in rape cases; it is nevertheless a state action that has been noticed internationally in respect of Pakistan. It does not directly or indirectly protect or advance the case of women at all. This contention is amply proved and established: From the very next day, November 16, the government introduced another draft bill which aims to obtain for women other forms of 'relief' from the seemly oppressive nature of the prevalent laws as well as from the machinations of a corrupt police establishment that apparently flourishes in this country."