Thursday, April 1, 2010

"Consent" Is The Difference...

Today in class there were some discussions about Hudud Law. Some say that in order for the country to be free from crime, it must implement Hudud Law as a deterrent preventive measure. Apart from just implementing Hudud Law as part of a country’s criminal law, some of my classmates also thought that education regarding Hudud Law should be introduced even from primary level.

Yes. I would agree to these ideas.

However, there were some quarters who opposed to the implementation of Hudud Law. One of the many reasons is focused on rape cases. Apparently, what they understand about rape cases under Hudud Law is that when a rape victim alleges that she was raped, she (the rape victim) will need to bring four witnesses to prove that she was raped (as in adultery / Zina cases). Due to the lack of four witnesses witnessing the act of rape, the rape victim would not be able to prove she was raped as required under Hudud Law and the rapist would be able to get away unpunished.

The above paragraph seems to be a rational way to attack Hudud Law. If it carries any truth in it, I would certainly agree that Hudud Law should not be implemented as it would bring injustice to rape victims.

Fortunately, the above reasoning against Hudud Law is perversely wrong. The reason is this. In Islam, “Adultery” and “Rape” are two different sexual offences. Its most significant difference is the concept of “consent” in both offences. In “Adultery”, both parties must consent to the sexual act between them. However, there can never be consent in “Rape”. As there is no “consent” in “Rape”, therefore we cannot use the requirements in proving “Adultery” for “Rape” cases.

As far as I am concern, the closest Hudud Law that could be related to “Rape” is probably in “Hirabah” / “Robbery”. Well, to me, raping a girl from her modesty and purity is an act of robbery against her. You do not need four witnesses to prove robbery as two witnesses would suffice. Alternatively, if you cannot get two witnesses, circumstantial evidence (like DNA samples etc) could be used to prove the act of rape and would be sufficient to sustain a “Robbery” charge under Hudud Law. Worst case scenario, if the “Robbery” threshold is not met under Hudud Law, the offence would automatically fall under “Ta’zir” (which could also be defined as “Judicial Discretion”) and is similar to our current Penal Code threshold for “Rape”.

The crucial part if the Prosecution manages to prove the rapist’s guilt under “Robbery” within the Hudud Law threshold, is that the maximum punishment for “Robbery” under Hudud Law is death.

Wouldn’t that be a deterrent punishment for rape?

It would certainly make the rapist think twice before he accommodates his lust and attack his victim.

Blog adjourned.


2 obiter dictum:

Caffeine Addict said...

Adam, correct me if I'm wrong, I think people have this idea that 'rape' is 'adultery' and both fall under 'zina' is because of Pakistan legislation provide so, and Pakistan claim that their law is shariah law, and you know how bad male chauvinism is in Pakistan (and maybe in some other 'so called' islamic coutnry too).

But true, education is important, and I think before one start advocating the idea of implementing the hudud, one should start by educating people about it. People scared because they have the wrong idea and impression of what hudud really is.

Well, this blog entry of yours is a good start =)
You have this talent of explaining legal stuff in a simple layman language - lepak style ;p

Keep up your good work, ma friend!

two_one said...

Hi Ayu. I pun tak sure about Pakistan's situation. But I do know that even some Malaysian Ministers are confused with Zina and Rape. *Tsk*tsk*tsk*.
You are right. people are scared about Hudud. Either because they don't know how it works or they are committing the Hudud offences themselves. ;)
you are doing a good job yourself. I read your blog too you know... hehehe :)
Take care!