Adultery and Witnesses?

Filan

I was reading that four witnesses are required in order to convict someone of adultery, how can this possibly happen?. How could an act of adultery be witnessed by four other people?. Read elsewhere that the word of a husband alone could be sufficient. Appears to make little sense in my view. Can anyone please explain this?.

Hope all are well

Salaam

A

hivizman

Filan wrote: »

I was reading that four witnesses are required in order to convict someone of adultery, how can this possibly happen?. How could an act of adultery be witnessed by four other people?. Read elsewhere that the word of a husband alone could be sufficient. Appears to make little sense in my view. Can anyone please explain this?.

The main authority for this is Surah An-Nur (24:4-9):

And as for those who accuse chaste women [of adultery], and then are unable to produce four witnesses [in support of their accusation], flog them with eighty stripes; and ever after refuse to accept from them any testimony - since it is they, they that are truly depraved! - excepting [from this interdict] only those who afterwards repent and made amends; for, behold, God is much-forgiving, a dispenser of grace. And as for those who accuse their own wives [of adultery], but have no witnesses except themselves, let each of these [accusers] call God four times to witness that he is indeed telling the truth, and the fifth time, that God's curse be upon him if he is telling a lie. But [as for the wife, all] chastisement shall be averted from her by her calling God four times to witness that he is indeed telling a lie, and the fifth [time], that God's curse be upon her if he is telling the truth.

Asad The Message of the Qur'an

There are various hadiths that expand on this, but I don't want to go into too much detail here.

The presumption is that women are chaste, and to overcome this presumption it is necessary to have strong evidence. The witnesses must clearly observe the actual adulterous sexual act, so the likelihood of four witnesses being able to see this is very small. I have come across several rationales for this requirement:
1. Islam values domestic privacy. If four people are able to witness an adulterous sexual act, then this implies a serious breach of privacy, which is an offence against the community (effectively, what is going on is adultery in public).
2. The penalty for adultery is very strict (although the Qur'an stipulates 100 lashes - Surah An-Nur 24:2 - the schools of Sharia law impose stoning as the penalty), so very stringent evidence of adultery must be provided in order for the penalty to be justly imposed.
3. In practice, the requirement for four witnesses will be virtually impossible to obtain. The Qur'an is expressing a clear detestation of adultery, but by making it very difficult to prove in a court organised by humans, the final judgement (and ultimate penalty) is left up to God.

The requirement for the husband and the wife to call upon God to curse them if they are either making a false allegation of adultery or falsely denying the allegation must be a very serious one for a devout person, as the liar is effectively condemning himself or herself to God's punishment. However, if both husband and wife make their oaths, then there can be no proof of adultery and hence no (earthly) punishment (though husband and wife would have to divorce).

anti-venom

Maybe I'm missing something here but my question is this; if only three witnesses claim under oath to having seen a woman commiting adultery, is a conviction possible? They may be telling the truth (as they see it), but since the law stipulates a minimum of four witnesses are required isn't it virtually impossible to secure a conviction if a fourth witness can't be found?

I also read somewhere that a womans testimony in court is only one third the value of her husbands or any mans. If this is indeed true then how is any unjustly accused woman possibly able to achieve justice? This renders her testimony to be practically useless and leaves her defensless against false accusations, does it not?

hivizman

anti-venom wrote: »

Maybe I'm missing something here but my question is this; if only three witnesses claim under oath to having seen a woman commiting adultery, is a conviction possible? They may be telling the truth (as they see it), but since the law stipulates a minimum of four witnesses are required isn't it virtually impossible to secure a conviction if a fourth witness can't be found?

The passage I quoted in my earlier post from the Qur'an (Surah An-Nur 24:4) makes it clear that four witnesses are required (this seems to be in addition to the person actually making the accusation of adultery), so three witnesses would not suffice by themselves to allow for a conviction. However, a conviction would be possible if the accused woman confesses to the adultery. Also, pregnancy can be evidence of adultery if the woman is unmarried. I'm not sure from the sources I've consulted whether, if three (but only three) witnesses actually swear to adultery, they would be liable to the flogging specified in the verse referred to above for those making unsupported accusations, but if so, this would certainly be a deterrent to testifying that adultery has taken place unless you were sure that there were going to be four witnesses.

anti-venom wrote: »

I also read somewhere that a womans testimony in court is only one third the value of her husbands or any mans. If this is indeed true then how is any unjustly accused woman possibly able to achieve justice? This renders her testimony to be practically useless and leaves her defensless against false accusations, does it not?

The commonly held view is that a woman's testimony counts for only half of a man's. However, the commonly quoted authority for this (Surah Al-Baqarah 2:282) can be argued to relate only to the witnessing of commercial transactions. The verse is, I believe, the longest verse in the Qur'an, so I won't quote it in full, but here's an extract:

Whenever you give or take credit for a stated term, set it down in writing. And let a scribe write it down equitably between you; and no scribe shall refuse to write as God has taught him: thus he shall write. And let him who contracts the debt dictate; and let him be conscious of God, his Sustainer, and not weaken anything of his undertaking. . . . And call upon two of your men to act as witnesses; and if two men are not available, then a man and two women from among such as are acceptable to you as witnesses, so that if one of them should make a mistake, the other could remind her.

Asad The Meaning of the Qur'an

Having witnesses for certain types of business transaction was a standard practice in many cultures, not just 7th century Arabia (remember that the Prophet Muhammad had been a successful merchant and thus aware of business practice). Indeed, until around the time of the Renaissance in Europe, the oral evidence of witnesses was considered to have greater probative value than the physical evidence of written documentation. In classical Greece and Rome, written memoranda of business transactions, giving the names of witnesses, were often written on wax writing tablets, which would be sealed until the transaction was complete, following which the written record would be destroyed.

The requirement of the Qur'an for two male witnesses or one male and two female witnesses relates to the initiation of the transaction, but the verse does not say that the value of the woman's evidence would be only half of that of the man if things were disputed. If having a requirement for two male witnesses provides an element of "back-up", then a similar thing may be going on in the requirement for two women in place of one of the men.

There are other verses of the Qur'an in which the desirability of witnesses is discussed. For example, Surah Al-Maa'idah 5:106:

Let there be witnesses to what you do when death approaches you and you are about to make bequests: two persons of probity from among your own people, or - if the pangs of death come upon you while you are travelling far from home - two other persons from [among people] other than your own.

This passage does not specify the gender of the witnesses, or state specifically that two women are needed in place of one man.

Unfortunately, some attempts to introduce Shari'ah-based codes of law have applied the provisions relating to the witnessing of financial transactions more generally (and indeed in extreme cases have not allowed women to act as witnesses at all in courts). And in highly patriarchal societies (which include many if not most Muslim countries), women will be at a disadvantage in any situation. So in practice, unless a woman accused of adultery had male defenders (for example, men from her own family to speak for her), she would certainly be vulnerable to false accusations. But that would be the case even if her testimony were given full weight.

ChocolateSauce

In reality it is far easier to get a woman convicted of adultery than this.

Also, a woman who is raped must produce 4 male witnesses to prove she is innocent. Otherwise, she is convicted of adultery.

hivizman

ChocolateSauce wrote: »

In reality it is far easier to get a woman convicted of adultery than this.

Also, a woman who is raped must produce 4 male witnesses to prove she is innocent. Otherwise, she is convicted of adultery.

There is unfortunately a conflict between what I understand to be the positions on rape of the various schools of Islamic jurisprudence and the laws of certain countries that claim to be Islamic republics. In Pakistan, for example, it seems to be the case that (at least until recently) the legal system made it virtually impossible for a woman to assert that she had been raped as a defence against accusations of zina (adultery or fornication), and required the support of four witnesses if she accused a named individual of raping her. There were moves to change these laws a couple of years ago, but I don't know whether they succeeded - certainly there was opposition to repeal from some Islamist directions.

However, there are strong arguments that these legal provisions are completely at variance with the Shari'ah. A thoughtful and thorough review of the issue can be found here. This document concludes that "All schools of Islamic law agree that rape is a crime; they only disagreed on how to prove it." The Hanafi school, which tends to be most influential in Pakistan, holds that extramarital pregnancy cannot by itself be used as evidence of zina, because it could have come about through some non-consensual means such as rape. If a woman alleges that she has been raped, then this claim by itself should be accepted to rebut an accusation of zina. If she names her alleged rapist, but there is insufficient proof (and proof in this context would not be limited to evidence from witnesses of the rape, but would include forensic evidence), then the alleged rapist would be asked to make an oath that he did not rape the woman.

If my understanding of the Shari'ah position on rape is wrong, then I hope that someone with authentic knowledge in this area will correct me. I consider the judicial practice relating to rape in some parts of the Muslim world to be inconsistent with Shari'ah, but if there is sound scholarly support based on the Qur'an and Sunnah for these practices, then please tell us.

ChocolateSauce

hivizman wrote: »

I consider the judicial practice relating to rape in some parts of the Muslim world to be inconsistent with Shari'ah

I find it hard to explain away the fact the more religious, the more conservative and the more of Shari'ah law a country is/has, the more extremely it punishes adulterers.

I agree with your statement: Some Muslim countries do not commit human rights abuses against women.