DOSSIER 18

October 1997

The Offence of Rape in the Islamic Law of Pakistan

Rubya Mehdi

In 1979 the Islamic regime of Pakistan introduced changes in the law of rape, providing Islamic standards of proof and punishment for this crime. The law concerning rape was made part of the ordinance, called The Offense of Zina (Enforcement of Hudood) Ordinance, VII of 1979 (The term zina encompasses adultery, fornication, rape and prostitution). The ordinance also deals with the crimes of fornication and adultery which were not regarded as crimes in Pakistan before 1979. By contrast in most western countries, adultery is considered as immoral, but it is not punishable as a crime the way it is in Islamic law. Fornication, on the other hand, is not even regarded as immoral as adultery in most western countries, while it is also a major crime in the eyes of Islamic jurists. In almost every other country in the world rape is categorized as a crime different from fornication and adultery but the ordinance of 1979 makes fornication and adultery a crime similar to that of rape in Pakistan. This has complicated the already complex law of rape.

In 1977 General Zia took power after a military coup. When he failed to fulfil his promise of holding elections, he tried to justify his rule on the grounds that God had given him special responsibility to turn Pakistan into a truly Islamic state. He made vast changes in the criminal law as well as in the constitution of Pakistan. Apart from zina, he introduced Islamic punishments for theft and the drinking of alcohol etc. General Zia's rule of ten years became known as a period of Islamization. He died in an aeroplane accident in 1988 and was succeeded by Benazir Bhutto. Her election program included the undertaking to abolish all laws discriminatory to women. But until now she has not been successful in reverting any of the laws passed under the movement of Islamization.

There was little discussion about the law of rape in Pakistan before 1979. Maybe because feminists (feminism in the context of Pakistan is not yet defined; roughly it means women fighting for women's problems) in Pakistan found other problems more important than the issue of rape. The changes to the Islamic law of rape in 1979 made women in Pakistan react strongly, because it posed a direct challenge to them. The definition of rape as it was provided for in Islamic law of 1979 was similar to the definition provided in section 375 of the Pakistan Penal Code, prior to 1979, with the exception that the earlier law protected girls under the age of fourteen with whom sexual intercourse was prohibited with or without her consent. Zina ordinance does not provide any protection to girls of less than fourteen. Moreover, the law before 1979 declared that rape in marriage is not considered as rape if the wife is over thirteen years of age. The major difference between the two laws is that the Islamic law has changed the punishment of imprisonment and fine (ten years' imprisonment and fine) into the punishment of whipping and stoning to death. The major difference concerned the evidence about the offence of rape. In the 1979 ordinance very hard and fast rules have been prescribed for a witness, for example Tazka-al-shahood enjoins upon a Qazi (Muslim judge) to inquire into the character of a witness and his credibility. The court must be satisfied that the witnesses are truthful and abstain from major sins. Moreover, only Muslim male witnesses are accepted which was not the case before 1979.

My purpose in this article is to focus on the issue that fornication and adultery have been made crimes similar to the crime of rape in the zina ordinance and subsequently emphasis on the crime of rape has been reduced. In a male dominated society such as Pakistan, this has given more power to men over women's bodies in spite of the increase in severity of punishment. The Islamic Government of Pakistan maintained that the new law was in accordance with the Qur’an (the holy book of Muslims) and Sunnah (sayings and deeds of prophet Muhammad), while feminists said that this was a misinterpretation of the Qur’an. It may be that traditional Islamic law laid more stress on fornication and adultery than rape, because the phenomena of rape might not have been common in the early period of Muslim history. But whether or not this is the case, the traditional Islamic concept of rape is not applicable in Pakistan today, where women demand protection against rape.

The law of rape is unique in its nature, in the sense that its victims are female, and in practice the distinction between consensual sex and rape is very difficult to define in most cases, because non-consent is so difficult to establish legally. In western countries the main problem concerning this crime is the issue of how vulnerable the victim made herself to the rapist and thus it is easy to place the responsibility of the crime on the victim by focusing blame on her. The dilemma facing the western legal system is that on the one hand a rapist should not go free, on the other hand an innocent man should not be convicted on the basis of an allegation made by a woman who consented to sexual intercourse.

The most usual form of rape in Pakistan (as far as we know at present) is the situation in which the rapist does not know his victim beforehand and a woman is suddenly attacked. The situation in which a man knows his victim is typically a landlord and peasant-women relationship or boss and lower working-women relationship. Young girls are also exposed to rape offences. As a priority, women in Pakistan want protection from the forms of rape which are those in which there can be no question of consent on the part of the woman. Those forms of rape in which the question of consent arise are usually when the offender knows his victim beforehand. This situation is probably not very common in Pakistan because of the segregation of sexes, seclusion of women within their homes and the non-existence of free sexual morality.

I feel that criminologists and sociologists should not try to look at rape phenomena in Pakistan the way it is looked at in western societies. Of course there are universal facts about the situation of women, but the problem should be looked at within the perspective of each individual country. For example, in the West the problem of rape is surrounded by discussions about genuine consent and victim-precipitated rape etc. (Smart, 1976; Clark & Lewis, 1977; Snare, 1984; Carstensen et al, 1981). These are the issues which are found in almost all rape discussions in the West, whereas these issues are not relevant for Pakistan at all. What is important to focus on, when analysing rape in Pakistan, is the political situation, because changes in rape law, along with other aspects of criminal law, were definitely made with political intentions. The Government used Islam as a means of obtaining legitimacy, i.e. to justify unconstitutional and illegal usurpation of power by a military dictator. In the process the Government used Islam to deny women their rights. Women were made special victims of these laws.

The next issue which is relevant for Pakistani and for western women, is the gender role system and the need to understand patriarchal culture, and male/female sex-role socialization. Pakistan is a Muslim patriarchal society, where a feminist interpretation of Islam has not really developed. The process of the Islamization of laws has reinforced the already deeply rooted and staunch notions of male domination in Pakistani society. It has affected men's attitudes towards women to the extent that when the movement of Islamization started and orders were issued for the women in government service to wear the chader (a piece of cloth to cover their heads) incidents were reported, where men slapped women's faces in public places for not covering their heads. This shows how Islamization made men feel powerful enough to control women. Therefore to look at rape with reference to gender role and patriarchal social structure is as important in Pakistan as anywhere else. Feminists in Pakistan have not yet analysed the rape phenomena within these terms of reference. Mostly they are engaged in agitating against the injustice done to women in particular rape cases.

The law of rape becomes more complicated when consensual sexual intercourse without valid marriage (i.e. fornication/adultery) is also considered a crime similar to that of rape in Muslim countries. Let us see the offence of rape as given in the Zina (enforcement of Hudood) Ordinance VII of 1979 of Pakistan.

Rape is defined, in the ordinance, as different from consensual sexual intercourse. It is defined as:

... 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 harm;

or

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.

In the non-Muslim world it is established that victims of rape are always female. But the zina ordinance makes females legally punishable for committing rape, i.e. the victim of rape could be a male. What it
really means is not clear, since there has been no case where a woman would be accused of committing rape. Sabiha Sumar, a Pakistani writer on the subject argues that:
.
.. the concept of rape as defined in the zina ordinance defies a basic biological fact that a woman can not rape a man. Rape laws all over the world carry a certain bias against women and the accused is often freed on the grounds that the woman may have seduced him. But since seduction implies consent on the part of the man, as opposed to rape which is pure force, a woman can not be termed a rapist. Yet, ours is the only country where a woman can actually be punished for raping a man (1989).

Moreover the definition of rape excludes the possibility that a man may be guilty of rape, if he has sexual intercourse with his wife, knowing that she does not consent.

The ordinance, in accordance with traditional Islamic law makes rape liable to hadd punishment and to tazir punishment. The former are severe punishments in comparison to the latter. Hadd punishment for example includes stoning to death, amputation of limbs and whipping, while tazir punishment includes only whipping, imprisonment and fines etc. (for details explaining hadd and tazir see Lippman et al., 1988). Rape categorized as liable to hadd is really of an academic nature, as the standards of proof required for it are so difficult to meet that there is very little possibility that a rapist would ever be punished for rape liable to hadd. Proof of rape liable to hadd could be in two forms. First, if the rapist makes a confession before the court. The confession can be retracted any time before the execution of punishment, in which case it cannot be carried out. Second, if at least four Muslim adult male witnesses, about whom the court is satisfied having regard to the requirements of Tazikyah-al-shuhood that they are truthful persons and abstain form major sins, give evidence as eye-witness of the act of penetration necessary to the offence. Now as far as the first form of proof is concerned it is difficult to imagine that a rapist would come to court and confess his shameful act. Obviously there is a greater possibility that, if caught, he would try to refuse and plead not-guilty but the confession is deemed by Muslims to be possible, at least, in an ideal Muslim society. The second form of proof is also difficult to meet, because how could a rapist commit rape before four adult, pious and male witnesses? It should be noted that women and non-Muslim men are not accepted as witnesses for this purpose. This is highly discriminatory against women and non-Muslims. The test to examine the credibility of the Muslim male witnesses, called Tazkiyah-al-shuhood is also very severe and difficult to meet, bearing in mind the moral situation of Pakistani society. The rapist, knowing the law, would try to commit the offence when no men, at least Muslim men, were around. When even the evidence of the raped woman is not acceptable, this puts the offender in a very privileged position and it should be noted further that four pious male witnesses must have seen the actual penetration during the act of intercourse. It is not enough if three of them have seen the actual penetration and the fourth one has only seen the rapist running away from the place of the offence.

For the punishment liable to hadd, the status of the offender is a basic consideration. If the offender is a married person he would be stoned to death ("such the witnesses who deposed against the convict as may be available shall start stoning him and while stoning is being carried on, he may be shot dead, whereupon stoning and shooting shall be stopped").If the offender is not a married person he would be punished with one hundred lashes in a public place and with such other punishment including the sentence of death as the court may deem fit, having regard to the circumstances of the case.

As I have mentioned above, there is very little possibility that hadd punishments would be inflicted on a rapist due to the strict standards of proof. This is the reason why, since the implementation of the ordinance, no rapist has been awarded the hadd punishment.

According to the ordinance, if the required standard of proof for hadd is not available, the offender would be liable to tazir, on the basis of other evidence. Punishment for rape liable to tazir is twenty-five years' imprisonment and thirty lashes. This is the working law of rape as almost all the cases are tried under tazir. For the purpose of punishment under tazir no difference is made between a married and unmarried offender.

This is the law of rape, as it stands in the zina ordinance. The next aspect is to view the ordinance on fornication/adultery in relation to rape.

Generally a view has prevailed in the west that the ordinance fails to differentiate between rape and fornication/adultery. Lucy Carroll (1983), an American scholar, provided some defence for the ordinance that sufficiently differentiates the two offences. She was right to the extent that the punishment for rape is twenty-five years' imprisonment as opposed to ten years' imprisonment for adultery/fornication in tazir. If an unmarried rapist confesses in order to attract hadd punishment, punishment in that case is not confined to one hundred lashes (as in adultery/fornication), but he would also be subject to "such other punishment, including the sentence of death". In spite of these two distinctions, the ordinance in practice fails to make a distinction between the two offences. (See Table 1 for a comparison between rape and consensual sex, provided in the ordinance). As we can see, the standard of proof provided for in both offences is the same. Moreover, in practice the ordinance has confused both issues; one which is with the consent of the parties involved, and the other which is without the consent and entails violation of the victim's mental and physical integrity. By making fornication/adultery in itself a crime, the ordinance reduces the stress on rape as a heinous crime, since fornication/adultery are also similar crimes in the eyes of the ordinance (at least punishment in hadd for fornication/adultery is the same as for rape).

In the case of fornication/adultery, men and women are medically examined, the man for sexual potency and the woman for the condition of the hymen and the existence of tears, and vaginal swabs are taken to see if they are stained with semen. The medical examination of the victims of rape is also done in the same way.

In the cases of fornication/adultery, the woman might plead non-consent on her part (that she was raped) in order to avoid punishment. A man, on the other hand, would be in a better situation if convicted for fornication/adultery instead of rape, as he would prefer a punishment of ten years to that of twenty-five years. He cannot avoid thirty lashes in either situation. In fornication/adultery he would also be liable to a fine, which is not imposed on a rapist.

By making fornication/adultery a crime, the ordinance has created hardship for women. The law confuses the issue of rape with fornication/adultery. The demarcation line between the two offences is so thin in practice that when a woman comes into the court with a case of rape, there is a possibility that she might herself be convicted of fornication/adultery, because of lack of evidence to prove the case of rape. The onus of providing proof in a rape case to court is considered equivalent to a confession of sexual intercourse without lawful marriage. And if the woman is also pregnant, as the result of rape, this is a further proof that sexual intercourse without lawful marriage has taken place. Now if she fails to establish a case of rape, she is in danger of being punished for a maximum prison sentence of ten years, thirty lashes and a fine for fornication/adultery. This happened in the case of Safia Bibi v. The State, where the bare confessional statement of the girl was the only evidence against the male accused, and it was held that in the absence of any other evidence the male accused could not be convicted on her confession. The victim in this case was a blind girl. This case received considerable publicity in the national and international press. Her conviction was, however, set aside because of public pressure. In a similar case a thirteen year old girl became pregnant as the result of rape. Unable to convince the court that rape had occurred and since her pregnancy was taken as proof that sexual intercourse outside marriage had taken place, she was awarded the tazir punishment of thirty lashes and three years' imprisonment. She gave birth to the child in prison. Her sentence was later reduced by the appellant court. Because of this situation women are more afraid than before to bring a case or rape to court, and in turn this could, of course, encourage rapists.

Combining the offence of rape with fornication and adultery is also reflected in the official data about these crimes provided by the Bureau of Police Research and Development, Ministry of Interior, Government of Pakistan, which published a number of cases in the year of 1983 and 1984 on fornication, adultery and rape under the one heading of zina, thus categorizing rape with fornication and adultery.

The law of rape in a society shows its attitude towards women. In the Pakistani male dominated society where great stress is laid on women's modesty and chastity, a woman is more likely to be blamed for making herself vulnerable to the rapist or introducing an element of stimulation for him. (The act of going out alone at night and not covering her body properly could easily be attributed by the courts as provocation on the part of the woman.) This attitude is reflected in most of the cases decided under the ordinance. In the case of rape, it is considered important that she should show strong resistance, as the result of which marks of violence should be visible on her body. In the case Bahadur Shah v. The State  the conviction of rape was converted into fornication/adultery because the female doctor while examining the victim ... "did not observe an injury on the thighs, legs, elbows, arms, knees, face, back and buttocks of the victim", and it was held that "she was bound to sustain injuries like bruises, contusions, scratches or abrasions on different parts of her body as she was supposed to put up resistance." Torn clothes and other injuries to the victim are also an important element in a case of rape, because the universal contention is that it is important that a woman is not falsely accusing an innocent man of rape due to her own sexual and emotional problems. Therefore actual physical violence is considered by legal practitioners to constitute proof that consent did not take place. As anywhere else in the world, courts in Pakistan are more likely to put the blame on a woman in cases where strong resistance is not visible. 

There is no doubt that in Pakistan men are fully guarded against any false accusations of rape, while women are more vulnerable to being made a victim of rape and then accused of sexual crime. In Pakistan, cases where the rapist has been convicted, are mostly those involving young girls, where the act has been carried out in a very brutal way and in which considerable physical injuries were inflicted on the victim. Whenever there is a delay in reporting the case, or in the medical examination, the accused gets the benefit of the doubt.

Asma Jahangir (1989), a woman lawyer in Pakistan, has noted the increase in police involvement in rape cases. She reported 15 incidents during 1988/1989 where women in police detention were raped by police officers. Moreover, she has mentioned a study of women prisoners in Multan, according to which 43% of women convicts complained of sexual exploitation by the police. In the case Abdul Kalam v. The State  bail was granted to a police officer for an alleged rape since the victim was found to be "habitual". No explanation was provided for the word "habitual". This increase in police crimes against women might be because of the general attitude of the law to protect rapists.

In conclusion I would say that the situation in rape cases in Pakistan is very alarming. First, it is impossible to inflict the severe hadd punishment on the rapist because of its high standard of proof. Hadd punishment, in fact, could only be inflicted if rape were committed in public. (Because of the extreme vulnerability of women in rape cases, (one section of) women in Pakistan has demanded severe punishments for rapists while others regard these Islamic punishments as inhumane and demand a different kind of law altogether.) Secondly, the testimony of rape victims has less weight than the testimony of Muslim males. For hadd punishment, a woman's evidence has no value. Thirdly, for punishment of rape under tazir a woman runs the risk of being implicated as an accused in fornication/adultery if she fails to convince the court that rape has taken place. Fourthly, the offence of fornication/adultery lies so close to the offence of rape that the severity of the rape offence as a heinous crime is reduced. This reflects the social attitude of legislation towards women, which was also reflected in the policies of the former Islamic regime of Pakistan.

Two trends are already visible in the Pakistani feminist movement in reaction to the shariat laws. The first trend is the movement which is an  opposition force to the implementation of Islamic laws. According to feminists, these "classical" Islamic laws are outdated and they should be replaced by another kind of law altogether. The second trend is the movement which holds the idea that traditional Islamic law needs reinterpretation and that religion should not be confused with a patriarchal social structure.

It is doubtful if the first trend could be popular in Pakistan, keeping in mind the social and cultural reality of Islam in the country. Therefore feminists in Pakistan argue that an Islamic framework for the women's movement is necessary. This trend has already given rise to feminist interpretation of Islam, and would pave the way for women theologians in future (Khawar & Shaheed, 1987).

I am grateful to Carol Smart for her advice and to Annalise Kongstad for her helpful comments on some of the aspects in this paper.

References

Caroll, Lucy (1983) "Rejoinder" to the proceedings of the seminar on 'Adultery and Fornication in Islamic jurisprudence: Dimensions and Perspectives.' Islamic and Comparative Law Quarterly 111: No 1 March.

Cartensen, Gitte. Annalise Kongstad, Sidsel Larsen & Nell Rasmussen (1981) Voldtagt—på vej mod en heldesforståelse. Denmark.

Clark, Lorenne & Debra Lewis (1977) Rape: The price of coercive sexuality. Toronto, Canada.

Jahangir, Asma (1989) "Crime Against Women by Law Enforcing Agencies." Paper read in the conference "Violence against Women", 4 September. Islamabad, Pakistan.

Lippman, Matthew, Sean McConville & Mordechai Yerushalmi (1988) Islamic Criminal Law and Procedure: An Introduction. Praeger: New York.

Mumtaz, Khawar & Shaheed Farida (1987) Women of Pakistan; Zed Books Ltd: London.

Smart, Carol (1976) Women, Crime and Criminology, Routledge & Kegal Paul: London.

Snare, Annika (1984) "Sexual Violence Against Women: A Scandinavian Perspective". Victimology an International Journal 9. U.S.A.

Sumar, Sabiha (1989) "Women and Hudood laws", The Daily Jang 28-29 January 1989, London.

Acknowledgement: The above paper has been reproduced here with the permission of the author.

Source: International Journal of Sociology of Law, 1990, pp. 18-29