Does Islam Require Four Wit­ness­es For Rape ?

Does Islam real­ly require four wit­ness for rape vic­tims ? This is a com­mon argu­ment used by those who usu­al­ly attempt to make a false anal­o­gy with adul­tery by infer­ring from the fol­low­ing Qur’an­ic injunction :

“And those who accuse chaste women [of adul­tery] and then do not pro­duce four wit­ness­es — lash them with eighty lash­es and do not accept from them tes­ti­mo­ny ever after. And those are the defi­ant­ly dis­obe­di­ent. Except for those who repent there­after and reform, for indeed Allaah is For­giv­ing and Mer­ci­ful.“Quran 24 : 2 – 5

That this myth was repeat­ed by none oth­er than the for­mer Malaysian Prime Min­is­ter Tun Dr. Mahathir at an UMNO Gen­er­al Assem­bly meet­ing had great­ly con­tributed to the mis­con­cep­tion that Islam requires four wit­ness­es for rape :

If four wit­ness­es were to mere­ly watch a woman being raped and not attempt to help her, would they not be regard­ed as hav­ing sinned (for allow­ing a woman to be raped) and are not be fit to be wit­ness­es?” he said. Under Pas’ hudud also, rape vic­tims would in turn become the accused in the event that she could not make the four wit­ness­es available.

Unfor­tu­nate­ly for such peo­ple, this fal­la­cy of equiv­o­ca­tion has no basis in Islam­ic juris­dic­tions and the pun­ish­ment for rape (which is defined as forced sex­u­al inter­course) is cer­tain­ly not equiv­a­lent to the pun­ish­ment of adultery. 

Insha’al­lah, in what fol­lows we aim to deal with this issue once and for all by break­ing it down into sev­er­al points so as to enable easy understanding.

The claim that rape vic­tims require four wit­ness­es to seek jus­tice for their case is untrue and a false lie prop­a­gat­ed by those who either do not have any knowl­edge in Islam­ic law or want to ​“prove” a so-called weak­ness in the hadd laws. Cir­cum­stan­tial evi­dence is suf­fi­cient and the judge can invoke his judg­ment based upon takzir (his own discretion).

If a per­son makes an alle­ga­tion of adul­tery against anoth­er per­son (male or female), only then he or she must pro­duce four wit­ness­es to sup­port such an alle­ga­tion : ​“And those who accuse chaste women [of adul­tery] and then do not pro­duce four wit­ness­es.…“ibid.; oth­er­wise, he or she is guilty of slan­der­ing, which is a grave offense in Islam. 

To insist that the raped vic­tim must pro­vide wit­ness­es is akin to inflict­ing fur­ther pain on her. If any­one refutes her claim of inno­cence, the onus is on him to pro­vide evi­dence, and she may sim­ply deny the claim by mak­ing a solemn oath, thus clear­ing her­self in public.

This is based on what the Prophet Muham­mad^(P) had once said :

“The onus to pro­vide evi­dence falls on the one who makes a claim, and the one who denies (the same) can absolve him­self or her­self by mak­ing a solemn oath to the con­trary.“Record­ed in al-Bai­haqi no 20990, Parts of it is in al-Bukhari no. 4552 and Mus­lim no. 1711

Fur­ther, the Prophet^(P) was report­ed to have said that :

“Allah^(T) has par­doned my peo­ple for the acts they do by mis­take, due to for­get­ful­ness and what they are coerced into doing.“Relat­ed by Ibn Mâjah, approved by al-Nawawî, Ibn Hajr and al-Albânî.

An event con­cern­ing rape had in fact led towards the Prophet Muham­mad^(P) pun­ish­ing a rapist with­out demand­ing or even hint­ing for four witnesses :

“Nar­rat­ed Wa’il ibn Hujr : ​“When a woman went out in the time of the Prophet^(P) for prayer, a man attacked her and over­pow­ered [raped] her. She shout­ed and he went off, and when a man came by, she said : That [man] did such and such to me. And when a com­pa­ny of the Emi­grants came by, she said : That man did such and such to me. They went and seized the man whom they thought had had inter­course with her and brought him to her.

She said : Yes, this is he. Then they brought him to the Apos­tle of Allah.

When he [the Prophet] was about to pass sen­tence, the man who [actu­al­ly] had assault­ed her stood up and said : Apos­tle of Allah, I am the man who did it to her.

He [the Prophet] said to her : Go away, for Allah has for­giv­en you. But he told the man some good words [Abu Dawud said : ​“mean­ing the man who was seized”], and of the man who had had inter­course with her, he said : ​“Stone him to death.​“Sunan Abu Dawud, Book 38, #4366

It should also be not­ed that it was relat­ed by Ibn Abi Shay­bah through Târiq b. Sha­hab that a woman accused with adul­tery was tak­en to Caliph ​‘Umar. The woman plead­ed that she was asleep and woke up to find the man over her. ​‘Umar released the woman.The nar­ra­tion was approved by al-Albâni.

Based on the above say­ings of the Prophet^(P) and the events asso­ci­at­ed with it, the jurist Ibn Qudamah had stat­ed as fol­lows in his book al-Mugh­nî :

“If a woman becomes preg­nant with­out hav­ing a hus­band or a mas­ter, she may not be pun­ished and, in stead, she should be asked about it, if she claimed that she was coerced into it or that she com­mit­ted adul­tery under dubi­ous cir­cum­stances, or if she sim­ply does not con­fess adul­tery then she will not be pun­ished. This is the say­ing of Abu Hanî­fah and al-Shâfi‘î, because she may be preg­nant as a result of a force­ful inter­course or dubi­ous cir­cum­stances. Pun­ish­ment will be aban­doned in case sus­pi­cion exists. It is well known that a woman could become preg­nant with­out com­mit­ting the real inter­course. The woman may become preg­nant if sperm is man­u­al­ly insert­ed into her vagi­na. This would explain how a vir­gin becomes pregnant.” 

We can now see that a tes­ti­mo­ny of the raped woman suf­fices in exon­er­at­ing her from adul­tery and that Islam recog­nis­es the crime of rape and that a raped woman will not be pun­ished for such a crime that was inflict­ed upon her.

So What Real­ly Is The Pun­ish­ment For Rape ?

Accord­ing to the major­i­ty opin­ion of Mus­lim schol­ars, rape is con­sid­ered as hirabah (high­way rob­bery or ter­ror­ism) and hence rapists are to be pun­ished accord­ing to the hirabah laws, as high­light­ed in the Qur’an :

The pun­ish­ments of those who wage war against Allah and His Prophet and strive to spread dis­or­der in the land are to exe­cute them in an exem­plary way or to cru­ci­fy them or to ampu­tate their hands and feet from oppo­site sides or to ban­ish them from the land. Such is their dis­grace in this world, and in the Here­after theirs will be an awful doom save those who repent before you over­pow­er them ; you should know that Allah is Oft-For­giv­ing, Ever Mer­ci­ful. (Quran 5:33)

This pun­ish­ment is jus­ti­fied as rape is con­sid­ered to be ​“hirabah with the pri­vate parts” which is much worse than any oth­er types of hirabah :

Al-Dasuqi, for exam­ple, a Mali­ki jurist, held that if a per­son forced a woman to have sex, his actions would be deemed com­mit­ting hira­ba. In addi­tion, the Mali­ki judge Ibn ​‘Ara­bi, relates a sto­ry in which a group was attacked and a woman in their par­ty raped. Respond­ing to the argu­ment that the crime did not con­sti­tute hira­ba because no mon­ey was tak­en and no weapons used, Ibn ​‘Ara­bi replied indig­nant­ly that ​“hirabah with the pri­vate parts” is much worse than hira­ba involv­ing the tak­ing of mon­ey, and that any­one would rather be sub­ject­ed to the lat­ter than the for­mer.Gisel­la Webb, Win­dows of Faith : Mus­lim Wom­en’s Schol­ar­ship Activism in the Unit­ed States, p. 130

This of course is as opposed to what the Bible teach­es about the pun­ish­ment for rape. For exam­ple, we read that :

“If a man is caught in the act of rap­ing a young woman who is not engaged, he must pay fifty pieces of sil­ver to her father. Then he must mar­ry the young woman because he vio­lat­ed her, and he will nev­er be allowed to divorce her.“Deuteron­o­my 22:28 – 29

What kind of lunatic would make a rape vic­tim mar­ry her attack­er ? Is there any jus­tice in forc­ing the raped woman to mar­ry her rapist and bound her to him for the rest of his life ? Fur­ther we also read anoth­er exam­ple that the Bible teach­es that the rape vic­tim should be pun­ished with death :

“If with­in the city a man comes upon a maid­en who is betrothed, and has rela­tions with her, you shall bring them both out of the gate of the city and there stone them to death : the girl because she did not cry out for help though she was in the city, and the man because he vio­lat­ed his neigh­bor’s wife.“Deuteron­o­my 22:23 – 24

This injunc­tion of course leaves lit­tle to the imag­i­na­tion. We will leave the read­er to form their own con­clu­sions. We hope that the above expla­na­tion that was giv­en had made it clear that in Islam, rape vic­tims are not required to ​“bring four wit­ness­es” as alleged and that Judeo-Chris­tian­i­ty has a much harsh­er law for rape when com­pared to Islam. Fur­ther read­ing on the issue can be found in the arti­cle, Are Raped Women Asked to Bring Four Witnesses ?

And only God knows best !