A Rapist-Friendly System

Urstruly #5

`` 1. People of the book and that includes Jews, Christians, Zorthostorians, and Hindus (the matter with Hindus is too controversial though). In this case these people are given autonomy to formulate their own laws based on their own values as they come from their books. ``

Most Arabs do not consider anyone other than Jews or Chrisitians to be people of the book.
If you treat Hindus as people of the book why not Buddhists, Shintoists and Confucianists.
Is it another of these silly Arab centric concepts ?

`` 2. Non-Muslims, who are not of category#1, such as pagans, animists etc.. They are governed by the law that the Islamic government deems fit for them and it must be commensurate with the societal norms of the Muslim society. ``

It looks like the only way Pagans or Animists can retain their culture is to wipe out Judeo-Christian religions from this planet.

`` Whether belonging to Category # 1 or #2 these people are exempt from any Islamic law such as law of Hudood or Islamic law of inheritence or non-interest based business etc. However, this exemption ends when they are dealing with a Muslim counterpart. In that case, the Islamic law supercedes any other. That is the reason when a non-Muslim man rapes a Muslim woman, the minimum punishment meted out to the rapist is the capital punishment. ``

Any legal system that classifies people into Muslim or non-Muslim (or for that matter in any arbitrary manner) will never serve justice in a equitable manner.

I enjoyed all this koranic jimnastics. It would have been simpler if urstruly were to say that in islamic society woman is an asset that the winner takes, not different from the gold of somanath temples. Well let us ask gaznavi about it. In fact the poligamy and honour killings stem from this notion.

hamidm

oh how you got me; i am devistated

urstruly,

......... thanks for your explanation, however i have a little difficulty in swallowing that married female prisoners would divorce their husbands to marry their tormentors willingly ........ you are making excuses for the inexcusable when you say : `` since consent is an integral part of any Nikah contract I assume that it had to be consentual``............ it is hard to believe that a POW woman`s (or man`s) consent means much .............. after all, nobody believes that the prisoners at abu gharaib gave their consent to pose in the nude !!!

.......... in any case, let`s not air all this dirty laundry in public - it is tough enough being a muslim as it is ............

hamidm

Under Islamic law, the only permissible avenue to have sex with another gender is after Nikah regardless of whether one party is a POW, or a slave or free. Those among women who are captured in war as POW or are enslaved(if you will) and are single can become wives of their captors after Nikah is performed in an open ceremony. There is difference of opinion about those women who are married while they are captured. According to Maliki school of thought, as they are captured their former marriage becomes annuled automatically if their captor wants to bring her in his Nikah, whereas Hanfi school argues that married women cannot be brought under Nikah. I plead ignorance in either case whether the consent of woman is sought or not. But since consent is an integral part of any Nikah contract I assume that it had to be consentual. These laws were in effect in midieval times and rendered ineffective/impractical since then. Becuase they served the pupose of those times and the societal norms of those times. With the onset of Ottoman Caliphate in post midieval times these practices were rendered ineffective and POWs were treated more on the basis of laws of reciprocity with contending nations. Even in Hindustan, where Muslim rule almost started at the same time as that of Ottomans, there is no evidence of such practice - though some caliphs had harems of hundereds of women at a time. Some Mughal kings and sultans married local Hindu women as their queens but not concubines. But not of course every ruler was a by the book islamist - we are only talking about law here.

Einstein

And let me add more insult to the injury.

More than half of the women that are rotting in Pakistani jails under hadud laws are those who has been accused by their husbands of adultery. The current loophole in the CrPC and lack of legislation allows police to interfere in such cases and arrest women unless they are willing to pay thru one way or the other.

Zia enacted the so called ``Islamic Laws`` for absolute reasons of expedience only. And that is because his foreign masters told him to do so. As everyone knows it should be viewed in the perspective of ``Afghan Jihad`` that good General was fighting for his masters. To his peoplehe had to prove that he was man of faith, and leader of Muslims, so that he could get more recruits for his masters. He took half-assed, half-hearted measures to Islamize the country based on the recommendations of his illiterate, badmash, and corrupt military legal advisors as they saw fit. None of these a/holes ever saw the face of a madrassa and none was educated in Islamic jurisprudence.

The actual Islamic Law, as it has been in practice for centuries, however, stipulates that when a spouse accuses other of adultery, the case is non-cognizable, which means that police cannot interfere in the matter. The matter directly goes to the civil court. The judge in the civil court first tries to reconcile the estranged couple by appointing arbiters from each family but when the matter cannot be resolved then he initiates the process of Lia`an. In Lia`an, the judge first asks accuser to decalre under oath that he is telling the truth about his or her spouse`s infidelity and if he is telling a lie then may Allah`s curse be upon him/her. The accuser has to take this oath verbally three times on Qura`n. Then judge repeats the same procedure with accused where he or she declares under oath that his accuser is telling a lie and if not then may Allah`s curse be upon him/her. After this oath, the judge declares the marriage annuled.

It is just as simple as that but innocent human beings are suffering because our rulers have disenfranchised us. The main blame goes to the so-called religious parties who remain silent at these attrocities because it is politically more pragmatic. It is these fat bellied a/holes, and impotence of these satans in beards who have caused so much pain to us. It is their complacency, and hunger for power that should be blamed.

urstruly,

serious question: it is my understanding that under islamic law non-muslim women taken prisoner in a war can be taken as concubines ............ now what if the woman resists - is this considered rape ?.............. or, if the sex is consensual then is it not adultery (zina) ?

Einstien

``In other words if rape victim fails to prove because of ``benefit of doubt`` it is not assumed that although she may be right but not able to prove. There are two aspects: (1) being right and (2) being able to prove it. Why assume that not being able to prove necessarily means being not right. ``

Yes, unfortunately that case is true in existing Pakistani legal system. And that is the core of the problems that people are having with Hadud laws.

But let me explain a bit more. It is the very nature of the subject and fieled of law and jurisprudence that the notions of ``being right`` and ``being wrong`` are immaterial. What really counts in law is ``proven right`` or proven wrong`` according to the standards set up thru the jurisprudence. Hence, no matter how victimized one would be he has to ``prove`` his or her case.

The loophole that exists in the Pakistani law is exploited fully by police, political entities, and courts. There are thousands of women who filed a complaint for a rape and they are in jail because they failed to prove their case. This loophole is sometimes used to extort money, sexual favors, and revenge. And in every one of such cases that gets media attention judges reject the police case because precedent has been set by higher courts but since CrPC still allows that loophole the police and lower courts still persecute women and they are incarcerated until the appeal process takes them to higher courts where there is more visibility.

This injustice can be removed in just one session of the legislature but our rulers are scared of their foreign masters and their own weaknesses but they do not fear God. No one wants to risk being seen ``reforming`` Hadud laws, because in the eyes of their foreign masters and patrons they will be immediately labelled as ``fundamentalists`` and ``Islamists`` and hence ``terrorists``. They would rather let ordinary citizens of Pakistan suffer and rot. Neither these so called political leadreship have power to dare repeal Hadud laws because people of Pakistan will drown them in Arabian Sea. People do not want to stand up for sometheing that they do not have faith in. There is not a single state institution left in Paksitan that commands the respect and faith of people. We are an absolutely disenfranchized and dispossessed people from whom their whole country has been stolen.

[Now suppose that the victim fails to prove her case. The accused goes free; however, now police files a case against victim on two charges:

1. Slander

2. Victim`s own statement when she was filing the charges is used as a confession that element a (i.e. sexual congress) did take place. ]

In other words if rape victim fails to prove because of ``benefit of doubt`` it is not assumed that although she may be right but not able to prove. There are two aspects: (1) being right and (2) being able to prove it. Why assume that not being able to prove necessarily means being not right. You are making it sound that it is all Zia`s fault but use of above simplisistic (and incorrect) logic is not at fault at all. Even a high school graduate will tell you that following is bullshit:

not (2) implies not (1)

What does it say of supposedly intelligent Islamic (I am sure you would class the Pakistani police and judges in that category) do not know enough logic? The very skill they are supposed to be master of.

I read some reports about the uproar created in certain sections of the media and general public in Pakistan about actress Meera`s kissing scene in a Hindi movie. It really shocks me that something as heinous as Mukhtar Mai`s rape and the acquital of most people involved, has failed to evoke the same kind of outburst. An innocous kiss enacted on screen causes more indignation than the reality of the gangrape of a helpless woman. Some people are hopelessly out of touch with reality. Its high time the people of Pakistan became more vocal about the society they stay in.

Re: # 11

brrrrrrrrrrrrrrrrrrrr............. scary stuff !

Re: # 7 Ana

Rape does not fall into the category of Hadud crimes, period; regardless of who rapes who. Hadud (s. Hadd) crimes: is a set of eight crimes which along with their punishments are defined in the Qura`n and/or specified explicitly in the Hadith. The eight Hadud crimes and their punishments are: (i) Stoning to death (rajm) for adultery (zina); (ii) one hundred lashes for fornication; (iii) eighty lashes for slandering a chaste woman i.e., accusing her of adultery or fornication; (iv) death for apostatizing from Islam (irtida`d); (v) eighty lashes for drinking wine (shurb); (vi) cutting off the right hand for theft; (vii) cutting off of one foot and one hand for highway robbery; and (viii) death for robbery accompanied by murder.

There are only two situations when rape becomes a hadud crime and thus the punishment imparted is as prescribed by the hadud:

1. The rapist voluntarily confesses to have committed the rape; in this case he is punished with the hadd as prescribed in (i) & (ii) depending on the fact whether the perp is married or single.

2. The second situation is when four adult male witnesses of sound character and mind have seen the act of penetration with their own eyes, somehow. In this case (i) and (ii) punishements are applied depending on the fact whether the perp was married or single.

Rape is one of the most horrenduous and inhuman crimes but at the same time it is one that is most difficult to prove as well. The recent case of Kobe Bryant, makes an interesting study. There are hundereds of cases of rape in US where accused have been rotting in jail for 20+ years and only DNA testing exhenorated them. So the question is what went wrong with their conviction in the first place? This is the reason a Hadd is not imposed in cases of rape. Islamic jurisprudence accepts the forensic evidence but even in that case Hadd cannot be applied. Pregnancy may be used to prove a rape but even in this case hadd cannot be applied.

The misuse of Hadud laws (in sex realated crimes) in Paksitan is because of the following reasons. Let us just take the case of rape. The act of rape has essentially two components to it:

a. sexual intercourse
b. absence of consent of one of the parties.

In Pakistan, when a woman files a case of rape, the police is the first state apparatus that is approcahed by the plaintiff. Police views, investigates and registers the case keeping in mind the elements a and b as related above. The evidence for element `a` is usually forensic i.e. thru medical examination and also the circumstantial. Witnesses are prepared to support evidence. In the next step, in courts, the plaintiff and her attorney tries to prove the element `b`, (even if element a has been proven without a shadow of doubt) thru the testimony of rape victim and examination of evidence and witnesses; whereas the defence (accused) tries to disprove that. A judge gives its verdict on the basis of these argument.

Now suppose that the victim fails to prove her case. The accused goes free; however, now police files a case against victim on two charges:

1. Slander

2. Victim`s own statement when she was filing the charges is used as a confession that element a (i.e. sexual congress) did take place.

In either case women is then subjected to (i), (ii), & (iii) haduds as described above.

The reason for this inhuman and draconian practice is that, Zia sahib imposed the hadud laws through an ordinance. In Pakistan, whenever, a criminal law is enacted by a state authority ( by a dictator or by the parliament) it is referred to the Ministry of Law, who writes that or makes the necessary ammendments in the CrPC - Criminal Procedure Code. CrPC then becomes a part of Police Manual and aslo judge`s instructions as to how a certain crime should be investigated and prosecuted-what cases are exempt or not etc.. In Pakistan, with hadud laws, this process abruptly ended as Zia was killed in the Mango City. The subsequesnt Benazir and NS governments neither had the political will to restart the CrPC process nor the authority and mandate to repeal the hadud laws. The current dictator is no different. It is a political hot potato he wouldn`t even dare touch. He knows that his system will collapse with in half an hour of his departure from the power so why touch such politically sensitive issues.

In Islamic law, as the CrPC should be written, a woman who cannot prove her case successfully cannot be charged with slander or confession of a sexual congress. Her testimony cannot be used to implicate her. But human beings, especially, women are suffering because of the dictators and impotent leaders who wouldn`t even give a rats patoot to the suffering of the people. Together we have created a society that thrives on injustice and oppression of the weak. There is no one else but us to blame for we have chosen the compliance and submission over daring to stand up for truth and justice.

I will wait until first post explains that it is democracy because average pakistani supports it. Let me see how soon one such post appears...

I have been for a long time wanting to increase my word power of english words. I decided to make a short list of words I should learn about:

equality
equity
sophistry

The tragedy of pakistan is not in what is existing, but the denial of the educated in the reality of pakistan, their firm belief that it ia all a matter of projecting the right image, a beleif that the reality can be white washed.

If any one cares to read earlier posts by mantolive, YLH, an educated you will see that he has repeated asserted that there are roads named after abdus salam, there are educational institutions named after him. If you look at tahmeds posts you will find that he has asserted that honour killings are done in tribal areas as part of tribal customs. murder of samia sarwar was explained away as police corruption. They never accept that it is the dissat and quiyat ordinance that has supported honour killings, never repealed by benazir, nawaz or mushy because the average pakistani supports it, it is in tune with their value system.

By denying this reality, and by refusing to accept that it is per the book, the educated have stalled any chance of improvements. It is spineless nature of pakistani educated that is leading pak society to the bayss. It is not the illiterate, it is the tahmed, mantolives and temporal that are the harbingers of pak decay.

. . . and when a non-muslim woman gets raped by a muslim man? he is not subject to the hudood.

equity. . .