I found a link to a great article by Asifa Quraishi on Ali Eteraz’s blog last evening on zina and rape in Islamic law. The article is a critique of the rape laws in Pakistan. Quraishi makes a great point (and confirms a view I had) that the rigorous requirements put forth in the Qur’an to punish zina in effect makes zina something between God and the parties involved. It basically takes zina out of the public realm and into the private. Thus, it is as if Allah is saying that this is a private, spiritual matter.

Why so many evidentiary restrictions on a criminal offense prescribed by God? Islamic scholars posit that it is precisely to prevent carrying out punishment for this offense. By limiting conviction to only those cases where four individuals actually saw sexual penetration take place, the crime will realistically only be punishable if the two parties are committing the act in public, in the nude. The crime is therefore really one of public indecency rather than private sexual conduct.21 That is, even if four witnesses saw a couple having sex, but under a coverlet, for example, this testimony would not only fail to support a zina charge, but these witnesses would also be liable for slander.22 Thus, while the Qur’an condemns extramarital sex as an evil, it authorizes the Muslim legal system to prosecute someone for committing this crime only when it is performed so openly that four people see them without invading their privacy. As Cherif Bassiouni puts it, “[t]he requirement of proof and its exigencies lead to the conclusion that the policy of the harsh penalty is to deter public aspects of this form of sexual practice” (Bassiouni 1982, 6).23

She also looks at how women in patriarchal societies have long been seen as the gatekeepers of honors and morality and how current zina laws in Pakistan (and by extension honor killing in other countries as well as the recent Qatif ruling) are ways of keeping women in this position of honor maintainers. Quraishi argues, I think quite convincingly, that the Qur’an speaks out against this exploitation of women.

The Qur’an, however, has harsh words for the exploitation of women’s dignity in this way. As if anticipating the misogynistic tendency of society, the Qur’an first establishes that there is to be no speculation about a woman’s sexual conduct. No one may cast any doubt upon the character of a woman except by formal charges, with very specific, secure evidence (i.e. four eyewitnesses to actual intercourse) that the woman is disrupting public decency with her behavior.33 If such direct proof does not materialize, then anyone engaging in such a charge is subject to physical punishment for slander. (For even if the information is true, any witness who is not accompanied by another three will be punished for slander (Qur’an 24:11-17). As for the public at large, they must leave her alone, regardless of the outcome. Where the public refuses to perpetuate rumors, responding instead that: “it is not for us to speak of” (Qur’an 24: 16-17) the patriarchal tendency to invest the honor of society in women’s sexuality loses force. In the face of any hint of a woman’s sexual impropriety, the Qur’anic response is: walk away. Leave her alone. Leave her dignity intact. The honor of a woman is not a tool, it is her fundamental right.

I encourage you all to read the rest of the article.

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