Articles > English > Lies & Distortions By The Media About Hudood Ordinance
October 21st, 2006 by Abdul Rehman
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6. Case of rape converts to case of adultery
BBC reported regarding the Hudood Ordinance:[11]
If a rape victim fails to present four male witnesses to the crime, she herself could face punishment and be prosecuted for adultery. The government says that makes it almost impossible to prosecute a rape case.
The Telegraph published a similar report:[12]
These [hudood laws] place an almost impossible burden of proof on women by compelling them to produce four ‘pious’ male witnesses to prove rape or risk being convicted of adultery and face 100 lashes or death by stoning.
CBC news observed:[13]
According to General Zia’s law, if a woman is raped she needs four eyewitnesses to prove that she was raped. But if she files a complaint of rape and fails to produce four eye witnesses then she has confessed to adultery and must be punished for the crime of adultery.
WLUML noted:[14]
Under section 8 of the Ordinance, a rape victim is required to produce at least four adult male Muslim eyewitnesses, who have physically seen the act of rape against the victim, in order to prove her case ... But if a woman who claims she was raped fails to prove her claims she can be convicted of adultery, which is punishable by death in the most stringent circumstances.
A similar thing was found on the ONLINE International news network:[15]
They [hudood laws] require a female rape victim to produce four male witnesses to corroborate her account, or she risks facing a charge of adultery.
The Hindu magazine says:[16]
Under this law, if a woman is raped, and reports it, the onus is on her to prove that she was raped. She has to bring along four male eyewitnesses. Only then will the law consider her case. On the other hand, if she cannot prove that she was raped, then she could be charged with adultery, a non-bailable offence that can even invite the death penalty under certain circumstances.
ABC news also adhered to the same view:[17]
The widely criticized Hudood Ordinance law, based on Islamic tenets, requires a woman, who claims she’s been raped, to produce four witnesses ... A woman who claims she was raped, but fails to prove her case, can be convicted of adultery, punishable by death.
The Australian observes the same:[18]
Under the ordinances, unless the complainant in a rape case produces four male witnesses to support her claims, she will herself face punishment.
Zee News says:[19]
As per this ridiculous ordinance, a woman to prove that violence has indeed been committed on her must be armed with at least 4 witnesses ... According to this ordinance which claims to be inspired by Islam, if a woman is raped then the onus of proving the same rests with her and if she is unable to prove it then she is tried for adultery and imprisoned while her rapist is left scot-free.
The Times (London) published:[20]
Hundreds of women have been jailed under the laws which made a rape victim liable to prosecution for adultery if she failed to produce four male witnesses.
The Independent notes:[21]
The law also makes prosecution in rape cases virtually impossible as rape victims must produce four male witnesses to prove the charge.
Al-Jazeera aired the following, regarding the Ordinance:[22]
The law makes prosecution in rape cases virtually impossible as a rape victim must produce four pious, male Muslim witnesses in court to prove the charge. If the woman fails to provide proof, she faces the charge of adultery and imprisonment ...
The New York Times is a disciple of the same:[23]
... Pakistan’s hudood ordinance, which requires either a confession by the rapist or the eyewitness testimony of four Muslim adult males to the act of penetration. A woman who brings a charge of rape without either of these proofs herself risks punishment for adultery.
The NCSW’s Special Committee’s draft report observes on pages 9 to 10:[24]
The basic concern is that where the victim of zina bil jabr is unable to produce the required number of witnesses, she is often booked under the offence of Zina, and her complaint is erroneously and negatively viewed and determined as sexual intercourse that was consensual. Hence, despite being a victim of rape, she is charged with the offence of Zina.
Geo TV did not remain behind in spreading this misconception. In the Experts Commentary section of Zara Sochieye, Dr. Tufail Hashmi, said:[25]
If a woman has been raped, and she cannot produce four pious, male eye witnesses, then not only is she punished for accepting that she has been involved in the act of zina, she also become guilty of Qazf (false accusation) because she has wrongly accused someone. She, therefore, becomes charged with two crimes. On the one hand, she is a victim and has turned to a court to seek justice, while on the other she is charged with two crimes and is subjected to double punishment.
All of these sources are spreading rumors, without knowing the actual ordinance or even a few real cases. I have already discussed that a rapist can be punished on the basis of medical evidence, circumstantial evidence, less than four witnesses, female testimony, etc. under the current Hudood Ordinance!!!
It may be pertinent to quote here an important ruling of the Federal Shariat Court, regarding this matter:-
Mst. Safia Bibi vs. The State (PLD 1985 FSC 120)
MR. JUSTICE SH. AFTAB HUSSAIN
Status of self-exculpatory statement in zina-bil-jabr:-
The Court held that: “In the present case, it is clear that except the self-exculpatory statement of the girl and the statement of her father, who also maintained that she had been subjected to zina-bil-jabr, there is no other evidence. In Shariah, if a girl makes a statement as made in the present case, she cannot be convicted of Zina.”
[Annual Report of the FSC, 2002, p.49]
(It could hardly be clearer!)
Under the Ordinance, if a case of zina-bil-jabr has been lodged and enough evidence is not available to prove this (e.g. due to loss of evidence), then the case simply ends without punishing the woman, as in the above case. The woman is NOT charged for zina. The woman can only be booked under the offence of Zina, if there is evidence available to prove this and the court is satisfied. If there is not enough evidence available to show whether it was Zina or Zina bil Jabr, the judge simply ends the case without punishing anyone.
It is noteworthy here that an American (non-Muslim) legal expert, Charles Kennedy, carried out a survey of hudood cases in Pakistan. His unbiased research, based on material facts, concludes the following:[26]
Women fearing conviction under Section 10(2) frequently bring charges of rape under 10(3) against their alleged partners. The FSC finding no circumstantial evidence to support the latter charge, convict the male accused under Section 10(2). The woman is exonerated of any wrong doing due to reasonable doubt.
Now, we quote such a case in which a complaint of rape was converted to adultery, not because the girl had no evidence, but, because of the fact that solid evidence was available to prove that she was a consenting party to the immorality:-
Muhammad Asghar vs. The State (2004 P.Cr.L.J. 201)
MR. JUSTICE ZAFAR PASHA CHAUDHARY
Statement of the victim regarding her having been subjected to sexual intercourse was supported by medical report. Vaginal swabs of the victim were found stained with semen. Victim girl did not appear before the Investigating Officer for more than six days and no marks of violence were found on any part of her body. No weapon was recovered from the accused. Cumulative effect of the said facts and circumstances could lead to the only inference that the victim was a consenting party to the commission of zina and she having attained puberty was adult within the meaning of S.2 (a) of the said Ordinance. During course of investigation, a number of Investigating Officers found the victim to be a consenting party. Conviction of accused under S.10 (3) of the said Ordinance was consequently altered to S.10 (2) and his sentence was reduced to the imprisonment already undergone by him in circumstances which was more than two years.
[Annual Report of the FSC, 2003, p.21]
When it is proved beyond doubt that zina, not zina-bil-jabr, had taken place, then it is against the canons of morality, justice & law to leave the woman scot-free. In fact, punishing her, in this case, will be mandatory to meet the ends of justice. The Qur’an enshrines:-
“Let not compassion withhold you in their (fornicators’) case...”[Surah an-Noor 24:2]
Furthermore, the provision of converting of rape cases to adultery—on the basis of solid evidence, is based on intellect & wisdom. On this issue, instead of saying something based on my own thoughts, I will turn to the experts in the respective field for help.
Bernard Knight, a renowned Professor of Forensic Pathology at the University of Wales, College of Medicine, writes:[27]
| The genuineness of allegations of sexual assault |
| This is an extremely difficult topic, with strong emotive, social and feminist overtones. The fact is that a significant proportion of allegations of rape and indecent assault reported to the police are found to be untrue. This is often hotly denied by women’s groups, but is an indisputable fact, proven by many subsequent admissions by girls that no such attack took place. (Emphasis ours) |
| The examining doctor must be aware of false allegations and not necessarily believe in everything that he is told. This is not to say that he or she should begin with a suspicious attitude, but must be impartial and arrive at a decision on objective aspects of the history and examination. |
| False stories may be due to delusions or even drugs—the author has met two such instances in female medical staff where mental abnormality led to unjustified accusations against innocent males. Another more common reason is where a girl gives consent to intercourse then later denies that she agreed and accuses the man of rape or other sexual misbehaviour. This may be due to fear of pregnancy, venereal infection, but more often to a break-down in the relationship (such as being ‘jilted’), where motives of revenge or mischief are present. |
This is absolutely correct and in fact, Dr. K.C. Parikh, an eminent professor of India and Editor of the famous Journal of Medical Profession in India (Bombay), wrote in explicit terms:[28]
| False Accusations: The possibility of false accusation must be kept in mind. In reality, if it were not for the fact that rape can take place from fear, the problem might be fairly easy to solve for “a fully conscious woman of normal physique will resist having her legs separated by one man against her will.” (Emphasis ours) |
| One girl who had connection
several times with her fiancée became alarmed at some blood on her
garments. She therefore alleged that after he had left her, she
was attacked and had amnesia till she regained consciousness to
find her underclothes blood stained. As her fiancé had left her
in the passage outside her house where they had been talking from
1.00 a.m. till 2.00 a.m.; it seemed unrealistic to incriminate a
third party. Suspicion was strengthened by her repeated statements
that her fiancé would never do such a thing and she could trust
him anywhere. She finally admitted her involvement with him, and
then asked what she was to tell her mother! A girl alleged victim of rape, was asked if she struggled to her utmost to which she said she did. She was asked if she shouted to which she said she did not. When asked, why not, she stated that she was afraid of waking up her mother who slept in the next room! |
| Vulval and vaginal injuries may be maliciously produced in children by instruments or fingers and a false charge of rape brought against an individual with a view to take revenge or extort money from him. Artificial bruises may be produced by using marking nut juice. The vagina may be irritated by using chillis. Sometimes, frog’s or fowl’s blood may be used for staining the clothes and private parts. Solutions of starch or egg albumin may be used to stain the clothes and such stains simulate seminal stains. |
| Sometimes, the girl is a consenting party, and it is only after the act that she becomes frightened and brings a charge to save her reputation. |
| When a woman’s husband is away and she becomes pregnant, she may claim rape to help cover up her activities during his absence. |
| Often, the victim’s story gives a strong indication of the falsity of the charge. The girl who tells of a cloth smelling of chloroform bring placed over her mouth after which she immediately became unconscious and on recovering her senses found her clothes in disorder, and complains that she has been raped, is likely to be an hysterical one, rather than a victim of rape. The statement of a woman who presents no signs of struggle and who appears to have offered no resistance to her assailant that she was under the influence of a drug must be accepted with great caution. Probably, she is making an attempt to clear herself at the expense of her partner. In such a case, a close inquiry must be made in to the history of the case, the manner in which the drug was given, whether in food or in drink, the amount taken, the special taste if any noted, the time elapsing before symptoms arose, and the nature of the symptoms. The complainant must be pressed for details and the story may be so clear that drugging may be ruled out! Blood and urine should be preserved for chemical examination if deemed necessary. |
By all these extracts, we don’t want to () accuse anyone of committing any crime or the like. All these excerpts have been given to prove that sometimes, a case maybe a de jure case of rape, but, a de facto case of adultery. Of course, this—in no way—justifies the corroboration that “a woman is charged with adultery if rape is not proved.” Nothing can be more changed from the truth!