INTRODUCTION

Muslims in the West view any criticism of Muslim culture, Islam and Islamic
law (shari’a) as an expression of western Islamophobia. They present an
idealized and sanitized view of Islam as a religion that guarantees equal
human rights to all, regardless of gender, race or religion. In the
meantime, the majority of Muslim women continue to suffer from second rate
status, illiteracy, unfair treatment in cases of divorce and maintenance,
and other legal handicaps in most Muslim countries, especially those that
implement shari’a as the main source of law. Shari’a courts display a clear
gender bias as the testimony of women carries less weight than that of men,
and women have fewer rights in divorce and child custody. Muslim cultures
are still predominantly patriarchal and misogynist, and family honour is
still a burden mainly women have to bear. In many Muslim states gender
segregation is commonplace and women need their husband’s permission to
work outside the home or travel abroad.
Many Muslim women also suffer from other widespread abuses such as
polygamy, child marriages, forced marriages, domestic violence, rape, and
honour killings. The high incidence of sexual assault is fostered by the
shari’a based traditional subordination of women to men and by patriarchal
cultural traditions deemed Islamic. In some cultures it is still the custom
to avenge oneself upon one’s enemies by raping their women (seen as
repositories of family honour). A contributing factor is the impunity from
legal action with which such crimes are often carried out, because public
opinion and state judicial and enforcement agencies tend to be biased
against women.

SHARI‘A, ZINA AND RAPE
One of the worst travesties of shari’a application is the widespread
practice of accusing rape victims of illicit sexual relations (zina), an
offence meriting punishments varying from imprisonment and flogging to the
death sentence by stoning. The victim is thus transformed into the culprit.
In cases of zina, women’s testimony is not accepted and shari’a demands the
testimony of four male Muslim witnesses who actually saw the act itself.[1]
Some Muslim scholars claim the intention behind these stringent demands is
to make it especially difficult for judges to pass severe hadd
punishments[2] on the accused. This might work well for the male
perpetrators, but the females involved who claim they were raped usually
find it nigh on impossible to procure four male witnesses, and are
subsequently, on the ground of their own confession of having had illicit
sexual relations, accused of adultery and many end up suffering long terms
of imprisonment, floggings and even capital punishment, in addition to the
terrible emotional suffering and the dishonour felt to have been brought
upon them and their families.
Apologists for shari’a claim that three of the four Islamic schools of law
state that hadd punishments are not to be carried out if there is any
element of doubt, and that pregnancy is not admissible as proof of zina.
However, while this may be theoretically true, in practice most shari’a
judges tend to deal harshly with the women and to exonerate the men.
According to shari’a, while the claim of coercion introduces an element of
doubt in favour of the woman, the act itself remains illegal and worthy of
punishment.[3]
Human Rights Watch, in a report on violence against women in Pakistan,
states that “Women in Pakistan face staggeringly high rates of rape, sexual
assault, and domestic violence while their attackers largely go unpunished
owing to rampant incompetence, corruption, and biases against women
throughout the criminal justice system”.[4] According to this report, women
who report rape encounter a series of obstacles: the police resist filing
their claims, the medico-legal doctors who examine them lack adequate
training, and finally the women open themselves up to the possibility of
being prosecuted for illicit sex if they fail to prove rape. The report
claims that the system is prejudiced against the women victims, and it
quotes a police station chief in Lahore who claimed that rape did not exist
in Pakistan – in all cases of alleged rape, women had consented to the act
of intercourse and then lied to incriminate their male partners.
The Pakistani Offence of Zina Ordinance (a subcategory of the 1979
Enforcement of Hudood Ordinance), while criminalizing adultery and
fornication also discourages victims from reporting rape by the implied
threat of prosecution for adultery. Similar conditions prevail in most
Muslim states where shari’a is the main or only source of legislation. As a
result of all these religious, cultural and legal impediments, the victims
of rape are transformed into criminals and severely punished.
So while in the West politically correct taboos help Muslims sweep the
problem under the carpet, many Muslim women around the world are still
paying a heavy price for the unwillingness of Muslim religious leaders to
face up to the problem and reform the relevant sections of shari’a, and for
the unwillingness of governments to enact sweeping legal and social changes
to improve the situation.

NOTES
[1] Mohamed S. El-Awa, Punishment in Islamic Law, Plainfield, IN: American
Trust Publications, 2000, p. 126
[2] Hadd offences are defined in shari‘a as crimes for which God himself
has fixed the punishment, so no discretion can be used by a judge in
applying them. They include adultery and fornication, false allegations of
adultery and fornication, theft, highway robbery, drinking alcohol, and
according to some scholars, apostasy.
[3] Ahmad Hasan, Principles of Islamic Jurisprudence, Islamabad: Islamic
Research Institute, International Islamic University, 1993, p. 379-382
[4] “Crime or Custom? Violence Against Women in Pakistan”, Human Rights
Watch, 1999, ISBN: 1-56432-241-6

REFERENCES
Shahla Haeri, “Obedience versus Autonomy: Women and Fundamentalism in Iran
and Pakistan”, in Marty & Appleby, eds., Fundamentalisms and Society,
Chicago: University of Chicago Press, 1993. pp. 181-213.
“Memorandum On Reform of the Islamic Family Laws and the Administration of
Justice in the Syariah System in Malaysia”, Sisters in Islam, 1997.
Joe Stork, “Human Rights Watch and the Muslim World”, ISIM Newsletter, 2
March 1999, http://www.isim.nl/news;letter/2/.
Miranda Eeles, “Iran women’s bill rejected”, BBC NEWS, 12 August 2003,
http://news.bbc.co.uk/go/pr/fr/-/1/hi/world/middle_east/3145969.stm.
Stefan Theil, “Underground Railroad”, Newsweek International, Aug.25-Sept.1
Issue, http://www.msnbc.com./news/950449.asp
Abeer Mishkhas, “What Lies Beneath”, arab news, 19 August 2003.
Seth Mydans, “In Pakistan, Rape Victims are the Criminals”, New York Times,
Robert Spencer, “Blaming the Victim”, Front Page Magazine, 23 January 2003,
http://www.frontpagemag.com/Articles/ReadArticleasp?ID=5676

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