Last Updated on 4th February 2022
The answer to this question is “yes” and “no”.
It is a Quranic injunction that to establish the crime of adultery or fornication, four witnesses are required to testify the act. Rape, however, is a different crime altogether, in that the act of having sexual intercourse is performed through coercion or some kind of pressure on the victim.
However, we need to understand the position of the judge or the court. They cannot get to establish whether someone is actually a victim of rape and not only claiming to be so, until they have investigated the circumstances under which the alleged crime took place.
To establish that the alleged act falls under rape and was not consensual, the judge will require witnesses to be able to proceed under Islamic law. Since a perpetrator of rape will be dealt with under a hadd (statutory punishment prescribed by Allah the Almighty), the hadd can only be established if they give a confession or if four witnesses come forward to testify. This process of investigation is also prescribed by Allah the Almighty. No worldly court or judge has the discretion to alter the process of investigation or the punishment.
Once it is clear that four witnesses are not available, the matter will automatically move from hadd to tazir. This means that the judge would go through any evidence provided by the claimant, which can include evidence based on modern technology like CCTV footage and forensic tests etc.
Therefore, the question that whether a victim of rape is required to provide four witnesses is only valid once it has been established by the court that the claimant is a victim of rape and not involved in consensually illicit relationship with the accused. Thereafter, the victim will have to provide any available evidence for further investigation, which can include any number of witnesses as well.
An esteemed Muslim jurist, Allama Ibn Abd al-Barr (d 463 AH), states very clearly:
وقد أجمع العلماء على أن على المستكرِه المغتصِب الحدَّ إن شهدت البينة عليه بما يوجب الحد ، أو أقر بذلك فإن لم يكن فعليه العقوبة
“The scholars are in unanimous agreement that the rapist is to be subjected to the hadd punishment if there is bayyinah [four witnesses] against him, which would warrant the hadd punishment to be imposed. [The imposition of the hadd punishment would also apply] if the accused rapist admits to his crime himself. In a situation where the above two instances do not apply, then [according to the other evidence that may be brought against him] he would have to bear aqoobah [ta‘zir].” (Al Istizkar 146/7, Bidayah al-Mujtahid 221/4)
Similarly, another jurist of very high stature, Shams al-Aemma Allama Sarakhsi (d 483 AH), states:
“Where witnesses testify that a man had coerced a woman to have sex, he would be tried under the hadd and the victim would be acquitted.” (Al Mabsut, V 9, p 54)
To conclude, the requirement of four witnesses is only to establish elements of the crime and, once rape is established, the court will go on to consider other available evidence. (For details, please see “Rape in Islamic law: Establishing the crime and upholding the rights of the innocent”, in Al Hakam, 21 January 2022, Issue CCI, p. 10)
The above is a theoretical guidance based on Islamic jurisprudence. The Ahmadiyya stance on dealing with the crime of rape is that the claimant should approach the law enforcement bodies of the state that they are a citizen of. The claimant and the accused are considered innocent until proven guilty beyond doubt by the state judiciary.
(Prepared by the Ahmadiyya Archive and Research Centre)