Rape Laws in Pakistan: Will We Learn from our Mistakes?

Abstract

The objective of this research is to explore and establish the position of zina-bil-jabr in the Islamic legal system while comparing it with the previous and current laws regarding rape in Pakistan, and to see whether its punishment amounts to hadd or siyasah under the Islamic criminal law and how this classification can be incorporated in the Pakistani legal system.
The article begins by explaining what zina-bil-jabr is under Islamic law and how it was integrated in the Pakistani legal system under the name of Hudood Laws in 1979, continuing to explain how this law was abused in the past. The Protection of Women Act 2006 was meant to bring the Hudood Laws in agreement with the injunctions of Islam, but ended up creating more anomalies in the legal system. Finally, the concept of siyasah is discussed where, if such a crime was to be brought under this banner, it solves the problem of the nature of the crime, its evidentiary requirements and its punishments. If the offence of zina-bil-jabr was to be renamed and redefined, it will not only exclude this crime from the operation of the stringent rules of zina but also the law will be able to cover a large number of sexual offences with their own requirements of evidence and the penalties may differ according to the gravity of the assault on the victim. Also, such a law would be gender-neutral for it would cover sexual assaults on both women and men. These changes can only be made if the offence is governed under the doctrine of siyasah.