Her Honor: An Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective

Abstract

In 1979, Pakistani President Zia ul-Haq purported to "Islamize" the laws of Pakistan with a new criminal code, the Hudood Ordinance, which included, among other things, the crime of zina (extramarital sex). Four eyewitnesses were required for prosecution of the hadd crime of zina, following Quranic text and established Islamic legal doctrine. However, the zina provisions of the Ordinance added the crime of rape, termed "zina-bil-jabr" (zina by force) as a subset of zina, and consequently required four eyewitnesses to prosecute this crime as well. This legislation had the tragic result of rape victims being suspected of zina for lack of four eyewitnesses to prove the non-consensual nature of the sexual intercourse.

This article explains how the rape provisions of Pakistan's Hudood Ordinance directly contradict established Islamic law on zina and rape. I begin with a review of the crime of zina in classical Islamic law, exploring the jurisprudential rationale for the four witness requirement, and detailing why rape is not treated as a subset of zina, but as a fundamentally a different type of crime (i.e. a forcible taking, rather than a mutually-consented act). I then comment upon the textual and historical contexts of the Qur'anic verses on zina, suggesting a woman-sensitive understanding of the topic. The ultimate goal of the article is, first, to debunk the idea that Islamic law demands zina prosecutions as they have been legislated and carried out in Pakistan recently, as well as to reorient the discourse on zina in the direction of seeing Islamic law as a tool for women's empowerment rather than oppression.

Keywords: Hudood Ordinance, Islamize, Pakistan, Zia ul-Haq, Quran, zina, hadd, eyewitness, crime, prosecute, rape, rape laws