In Islamic criminal law a rapist can be convicted on scientific evidence

Dear Editor,
Does Islam render proof of rape impossible or particularly difficult to establish? And so because it requires four witnesses to the act of penetration? The question is answered all over the internet and by different sources. The first citation that springs up quotes Sheikh Faraz Rabanni on the Qibla website who states definitively about the four witnesses claim “…a common myth about Islamic criminal law. As the classic and contemporary jurists (such as Mufti Taqi Amani) have made clear, a rapist can be convicted on lesser evidence (including scientific evidence such as DNA tests and medical reports). The four witness requirement applies to the hadd capital punishment in case of adultery.” In the case where the rapist is also married the relevant sentence is applied.

I write this in response to the latest despatch from Swami Aksharananda, possibly based on some cases in Pakistan, where Islamic jurisprudence was misapplied in rape cases. The objective of the requirement of four witnesses in an age where the rape kit and the DNA were not available was to assure the community against false and frivolous rape accusations. But even at that time, the eventual pregnancy of the victim, as proof of forced sexual interference, evidently had to take precedence in the evaluation of evidence. It is estimated here in France that two of three complaints brought to the police are false, delusional, unsustainable in a court, made in bad faith. Care is taken with rape complaints. The current Sexual Offences law in Guyana is so badly drafted that it apparently suffices that the “victim” rises in the morning, and claims to have felt threatened at the time the act was jointly committed for the perpetrator to face a heavy sentence.

A recent study done in the Caribbean and reported in your newspaper states that about half of the women claimed to have been raped at the initiation of their sex lives. A horrible statistic that portrays our societies as crawling with rapists and sunk in the degeneracy that the Swami rightly describes as “a creole calypso culture permeated with sexual innuendos and stereotypes demeaning to the female.” Women, he says, are thus “objectified.”

What the Swami does in his letter is to further objectify the female sex in stripping womankind of any collusion or consent in the creation of the “creole calypso” culture that we secrete and sell worldwide. They are stripped of “agency.” Reduced to simple and passive victim-objects in a world in which they celebrate and suffer, as they also internalise and perpetuate the nastiness in which we float or sink. They are on the TV backballing in a booty-rider, making a “sandwich” between two men, entering “dancehall queen” contests; but, if the Swami is to be believed, the stereotypes demeaning to the female sex are entirely the creation of men. In his male-dominated conception of the world, the women are there only taking orders.

The difficulty to avoid in this type of exchange is to simplify or misapprehend the position of the other discussants. What I am not saying is that dress is the sole, prime or motivating factor in all cases of rape. There is a need to distinguish between “causation and correlation.” Perhaps a distinction inadequately expressed in my previous letters, but ably and eloquently put in those terms by writer Aslam Hanief in the publication of January 5. Our position is that the female contribution to the degeneracy in creole culture goes from the laxity in terms of provocative dress, to the dispersal of ideas about her role in the family that is as disastrous for intra-generational stability and psychic/societal health as are the problems of the male.

Our communities, we note, produce several orders of victim – women, men, children, of a domestic violence that goes from the physical to what divorce law calls or used to call “mental abuse” or verbal abuse and all the expressions of cruelty of which the human being is capable. The society generates several categories of victim across sex and age lines, and therefore several categories of perpetrator across sex and age lines. And women, by the kind of consensus that is common and necessary to the smooth articulation of any society, often go with and contribute to the flow. One of the ways they notably do so is involvement in the porno industry, prostitution and the several types of profiteering from sex that includes gaining a satisfaction from dressing up bad and brainlessly stalking the streets.

Contrary to his claim about Al Ghazali and that scholar’s myth of the curse of the female temptress, Islam does not see women as the cause of the Fall.  Ghazali gave opinions and advice on a multitude of matters and no modern scholar considers him an unfailing authority on everything. The Quran gives examples of good women and of bad. Our quite realistic view on the question of female roles stretches the culpability of the men singing “wind, wind, wind” to the women waving flags and grinding in the band. They are mentally and judicially competent and responsible for their aacts. Which, as the Swami puts it, involves precisely their contribution to the “creole calypso culture” that generates the stereotypes and, in a way, facilitates the rapes.

He opens his last letter with a rhetorical flourish, to wit that before we would have finished reading it, thousands of women would have been raped in the world. But, look carefully, more are raped proportionally, in some places than in others. Reading the criminal statistics from Saudi Arabia or Muslim countries one gets a profile of societies which, despite their sometimes anachronistic laws and social backwardness, seem freer from many kinds of crime and safer for their citizens than the crime-ridden pits in which we live.

To re-state my position: the rape as evidence of a dysfunctional sexuality, of a distortion of its meaning and motive,  does come, as the Swami states, with a certain conception of sex that sees women in a certain way; loose behaviour and lax dress norms help create and sustain it.
Yours faithfully,
Abu Bakr

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