KUALA LUMPUR, May 3 ― In a country where the vast majority of rapes go unreported, women’s groups fear that implementing hudud law will push survivors further towards silence for fear of punishment under the Islamic penal code.
Sisters in Islam (SIS) and Women’s Aid Organisation (WAO) said rape survivors would a risk of being charged with adultery or fornication under the Islamic criminal law ― punishable with death by stoning or 100 lashes - should they come forward to report their sexual assault.
“They’re going to be afraid to come out and report,” WAO executive director Ivy Josiah told The Malay Mail Online yesterday.
Josiah said she knew of a Muslim woman who was jailed for adultery after she asked the police to look for her missing boyfriend because she was pregnant.
The women’s rights activist also said it was “completely discriminatory and despicable” to require four Muslim male witnesses to prove the crime of rape under hudud.
“Already rape is so underreported, and you're adding the burden that she has to go and get a male witness. Our Federal Constitution is very clear that there cannot be discrimination on the basis of gender,” said Josiah.
“We need to have an understanding of rape. For every one report, nine go unreported,” she added.
Josiah cited police statistics on rape in Malaysia, which have steadily declined from 3,626 cases in 2009 to 2,998 cases in 2012, the latest year for which data is available.
SIS programme manager Suri Kempe said that according to human rights groups, 80 per cent of women in Pakistan’s jails face adultery charges under the Islamic country’s hudud laws.
“Girls as young as 12 or 13 have been convicted of ‘zina’ (adultery) and publicly whipped, even though they have been raped. With no safe recourse, rape victims often flee to the protection of influential families, which take them in as servants,” she told The Malay Mail Online.
Kelantan Deputy Mentri Besar Datuk Mohd Amar Nik Abdullah said recently that under the state’s proposed hudud law, the maximum punishment for adultery death by stoning and 100 lashes for premarital sex.
But the PAS Kelantan leader also said that if a woman could prove that she was raped, she would not be charged with adultery.
Despite the view that four Muslim witnesses were needed to convict for rape, Amar added a lesser sentence could be meted out if the accuser secures testimony from a doctor or psychologist, or obtains witnesses fewer than the required number.
Suri, however, called the proposed system inconsistent.
“Does a doctor or psychologist now speak for four witnesses? Will the conviction of a person based on the testimony of one man (instead of four) result in a reduced ‘discount’ sentence? Will the rape survivor still get charged with adultery? What will be the standard for evidence giving?” questioned the Muslim women’s rights activist.
Suri said the Kelantan state government was contradicting the Quran by shifting the burden of proof to a rape victim.
“The source of Kelantan's hudud bill on rape is a gross misinterpretation of Surah An Nur 24:4 which aims to protect chaste women from slander. Anyone who accuses a woman of zina or adultery has to produce four witnesses to back this accusation,” she said.
Datuk Dr Shad Saleem Faruqi, emeritus professor of law at Universiti Teknologi MARA (UiTM), said the rule requiring four witnesses for the crime of illicit sex should be applied flexibly.
“I think Islamic laws of evidence needs to change and grow to accommodate the quest for female dignity, the quest for female equality and the very important principle that the wrongdoer must not get away,” he added.
According to UK newspaper The Independent, there are 15 countries in which stoning is practised or legal, including Pakistan, Iran and Somalia.
In a September report last year, the paper cited the case of a 13-year-old Somali girl called Aisha Ibrahim Duhulow, who was buried up to her neck and stoned by 50 men, in front of 1,000 people at a stadium in southern Somalia in 2008.
Her father had told Amnesty International that the child was raped by three men, but was accused of adultery when she attempted to report the sexual assault to the al-Shabaab militia controlling the city.
In 1993, the PAS state government passed the Kelantan Syariah Criminal Code Enactment II, allowing it to impose the strict Islamic penal code in the state. But the laws have not been implemented.
PAS is now looking for parliamentary approval to implement hudud. It plans to put forward two private members’ bills in Parliament. One seeks approval for unconventional punishments, some of which are for offences already covered in the Penal Code. The other seeks to empower Shariah courts to mete out the unconventional punishments.
According to the Shariah Courts (Criminal) Jurisdiction Act 1965, the Islamic court cannot sentence offenders to more than three years in jail or fine them more than RM5,000. It also cannot sentence offenders to be whipped more than 6 times.