alcohol
Adnan balboa19@idt.net
Wed, 17 Feb 1999 13:37:58 -0600 (00919301878, 4.1.19990217132552.01419f10@softhome.net)
At 06:46 AM 2/17/99 +0000, Joseph Crea wrote:
>Hello Adnan!
ADNAN
This would be my last post on this off topic issue. I am not an expert on
Islamic law, so I posted your posting to a Muslim list and received one
response. The best place to continue this discussion would be on
(moderated) soc.religion.islam; this person also writes to that group.
**************************************
>>Pakistan have some strange laws
>>that even other Islamic countries don't have. For example, in Islamic law if
>>someone accuses a woman for adultery, he must provide four witnesses.
>
>CREA
> Not exactly. The Quranic verses which stipulate 4 witnesses (Sura
>XXIV:4) can be overridden by the sole testimony of the affronted husband if
>he is willing to swear four times, by Allah, that he is speaking the truth
>and swears a fifth time invoking Allah's wrath on himself if he lies (Sura
>XXIV:6-7). The wife, in this situation may do much the same, swearing four
>times that her husband is lying and swearing a fifth time invoking Allah's
>wrath on herself if he is actually speaking the truth (Sura XXIV:8-9).
Yes. If four witnesses are not produced by an accuser, the accuser is
flogged with eighty stripes, and is considered an unreliable witness. An
exception is made for a spouse, who may accuse but is not punished for
failing to provide the witnesses. I think that such an accusation is
considered a declaration of divorce, if made by the man.
Note that witness is not the same as accusation. A witness may testify as
to what appeared to him or her without drawing a conclusion; even if the
witness testifies to seeing what would conclusively prove the act of
intercourse (not merely seeing a couple naked and making sexual movements),
it is not an accusation unless made without necessity in a context where
accusation is implied. This last comment is my own; I don't know, and
somewhat expect, that the Pakistanis are not particularly sophisticated
about this matter.
The wife may avoid punishment essentially by swearing to the falsehood of
the accusation as above described.
>>Most
>>Muslim would interpret the law of four witnesses as a protection for women
>>against false witness. If that's true, a woman should be able to charge rape
>>without producing any additional witnesses, because the law is supposed to be
>>for the protection of women, not men rapers. But in Pakistan, I have heard,
>>even the woman must provide four witnesses if she is raped.
Yes, I have heard that. It is, in my view, a perversion of the law. A
victim *always* has the right to complain. Generally, the punishment for
false witness applies to accusations of adultery or fornication (or sodomy)
against men or women, but, since the specific verses are worded the way
they are worded, it is, more strictly, a protection for women, and the
right of a woman to complain about rape overrides the harm of insufficient
witness. If the rape is not proven, the man would not be punished, but the
woman should not be punished unless it is proven that her testimony was
false or reckless. And an insane person is also not punished for false
accusation, and a woman who has been raped and who makes even false
accusations may well be excused on those grounds.
Again, I don't know that the Pakistanis draw these distinctions. From what
I have heard, they do not.
> I would assume that one or another of the schools (Hanbalite, Malikite,
>Hanafite & Shafi'ite) had decided that parity was necessary and simply
>applied the requirements for adultery cases to those of rape. Of course if
>there are no witnesses, the woman should be able to swear fourfold, but then
>this would lead to allowing the man to do the same. But then, my
>familiarity with the ins and outs of the Shari'a is quite limited and I
>could be wrong.
He is probably right about some aspects of this, but I have never seen a
sober scholarly opinion that a woman is to be punished for complaining
about sexual assault without providing witnesses. The matter has not been
considered in the books I have read; what is there are general statements
that do not consider this possible exception. This is one reason why, in my
view -- and it is certainly not new with me -- Islamic law is *not*
statutory law; rather it is a set of guidelines and instructions to be
followed by a judge capable of discretion and independent ijtihad.
It ought to be a clue that the very idea is thoroughly reprehensible. If
this were Islaam, I am afraid that I would run fast in the opposite direction.
marjan@vom.com
Abdulrahman Lomax
P.O. Box 690
El Verano, CA 95433