The Islamic definition of zina, with the consensus of all schools of thought, is the process of sexual penetration in an unlawful relationship. The manifestation of a pregnancy does not serve as evidence that a woman or a man has committed zina. In this regard, the application of hudood laws represents an extreme misapplication of Islamic law.
Hudood laws are ordinances taken from Islamic law, or sharia, to define punishments for an array of offenses, including extramarital or premarital sex (zina). In Pakistan, these ordinances were introduced under the military regime of Zia-ul-Haq in 1977, and have received criticism from women’s groups and human rights organizations due to their unjust and unchecked application.
Safia Bibi was a 13-year-old blind girl who was raped by her employer and his son. She didn’t report the crime. Because she showed clear signs of pregnancy and was unmarried, it was assumed she had premarital sex. Her failure to prove that she was raped prompted the judge to sentence her (under the Hudood ordinance) to three years of imprisonment and 15 lashes. The ruling cast her as the perpetrator instead of the victim. Her rapists were never prosecuted and did not spend any time in jail.
In cases such as these, if a married victim is unable to provide four male witnesses to the rape, her pregnancy serves as absolute proof against her and the harshest punishment of zina may be levied. If she is single, she can be charged with “fornication.” Because of widespread outcry, Pakistan’s Federal Court set aside the judgment. The court also concluded that there was insufficient evidence to incriminate the offenders.
Pakistan’s judicial system is shaped by two legal sources, English common law and classical sharia laws interpreted by the Hanafi School of fiqh (jurisprudence). Since Pakistan’s inception in 1947, the sharia courts have mainly dealt with civil cases with a focus on family issues. The 1977 Zina Ordinance established a patchwork of legal codes seeking to conform Pakistan’s laws with Islamic injunctions. It is important to note that these laws have generally been misused and levied to enforce tribal and political affiliations.
The Islamic definition of zina, with the consensus of all schools of thought, is the process of sexual penetration in an unlawful relationship. The manifestation of a pregnancy does not serve as evidence that a woman or a man has committed zina. The application of hudood laws represents an extreme misapplication of Islamic law. According to the Qur’an, four eye witnesses to the actual act of penetration must testify in cases of adultery. It’s meant to protect against anyone being falsely accused or punished unjustly. The Qur’an is also very specific about what is seen. If two people were seen naked together, it would be insufficient testimony. The Qur’an also places the burden of proof onto the accuser, not the accused.
Pakistani courts seem to consider pregnancy as circumstantial evidence against the woman. The Qur’an and Prophetic teachings mandate that zina punishments be carried out for both men and women , but a man can often escape punishment through simple denial.
In a culture that places high value on a woman’s purported virtue or purity, any allegations of loose conduct or immoral behavior can sentence a woman and ruin her reputation before she is even heard in court. Shame, guilt or fear of punishment prevent many women from reporting rape, allowing critical time to pass in which collecting DNA evidence is no longer an option. She is only discovered when she shows signs of pregnancy. Many Islamic courts rule that an allegation of rape is an admission of sexual intercourse, therefore, the dismissal of the prosecution’s case amounts to an implied confession of adultery. If she cannot prove rape, the victim’s allegations often serve as admission to consensual sexual intercourse.
In the Qur’an’s discussion of zina, rape is never mentioned, indicating that it falls under an entirely different set of rules and considerations. In a court of law, a rape victim must be protected, not entrapped and imprisoned. Pakistani courts seem to have no provisions for rape cases, and the fact that these are tried on the same basis as cases of zina is a severe failure in the protection of human rights. Additionally, if a strict interpretation of corporal punishment is applied but yields unjust results, this is also a betrayal of the fundamental objectives of Islamic law.
The superseding Qur’anic principle of adl, or justice, requires that the rights of individuals be protected, even if it contrasts with an individual’s views, our own purposes or those of an entire society. Corporal punishment cannot be applied without taking into account the context of each case, and in cases of hudood, they should not be applied when there is such a severe lack of evidence or betrayal of justice.
This is an edited version of a paper put out by the Muslim Public Affairs Council titled Abusing Women, Abusing Islam.