I am in debate with a non-Muslim lady, who is a well read person. I need to clarify certain issues regarding Islamic punishments, in particular the punishment for fornication. The questions on which I require your answers are:
i. Does the Shari'ah differentiate between an unmarried, married and a married person who commits adultery while awarding punishment.
ii. In case of a rape victim needing to provide four witnesses to prove her allegations against the rapist, is there any Ijtihad, which makes use of modern medical science (DNA test to confirm identification of the criminal) in absence of failure to produce witnesses?
iii. If no, (that is if the victim fails to prove that she was raped due to absence of such witnesses) would the victim of the rape be punished for qadhf (falsely accusing someone of fornication?
The issue of Islamic punishments is a very critical one. There are many questions which arise on the interpretation of traditional scholars in this regard. A contemporary scholar, Mr. Javed Ahmad Ghamidi, after thorough research in the matter, opines that the traditional view is not acceptable owing to various reasons. His research has been published in detail in the Sep2002 issue of the journal. I will answer your question in the light of his findings.
The punishment of a fornicator, as prescribed in the Qur'an is a hundred lashes in public and a prohibition of marriage with a chaste person. This is mentioned in Surah Nur 24:2. However, when a fornicator does not simply commit fornication rather forms a gang of rapists and sets the whole society in danger or when a woman not only commits fornication but opens a brothel and promotes and spreads lewdness in the society, the crime remains the same but its intensity is raised such that it isn't against an individual but the whole society is targeted. Such crimes are classed by the Qur'an as Muharabah and Fasad Fi'l-ard (waging war against Allah and spreading anarchy in the land) for which the Holy Qur'an has prescribed specific punishments. The Holy Qur'an has ordered that these criminals should be executed in an exemplary manner, or crucified, or an opposite hand and feet should be amputated, or they should be exiled. These punishments are mentioned in Surah Ma'idah of the Holy Qur'an (5:33).
Now in the light of foregoing explanation the answers to your questions are as follows:
i. No such distinction is observed in the Islamic Shari'ah. Some Muslim jurists believe that it does but the words of the Holy Qur'an don't accept this interpretation. These jurists observed that the Prophet (sws) sometimes flogged the convict and sometimes him (or her) were stoned to death. They tried to reconcile the matter and came to the conclusion that when the convict was married the Prophet (sws) stoned him or her to death. This was because it was reported that in such cases the marital status of the criminal would be ascertained by the Prophet (sws). As pointed out above the basis of distinction in punishment was the intensity of the crime. Being married may make the crime grave in some instances. However, there may be several other reasons, some of which have been alluded above.
ii. The Shari'ah has not devised any punishment for the victim. She deserves all sympathies and will be dealt as justice demands. The Holy Qur'an requires four witnesses in two specific cases only: When someone alleges that a pious person is guilty of fornication or to establish that some lady is a prostitute. As Ghamidi has pointed out in his referred to research, apart from the two cases described above, Islam does not prescribe the need of four witnesses to prove a crime. A crime can be proven through all the means that are available to us including the ones which today science has made possible for us. So when a raped woman approaches the court for justice she will be dealt with as a victim. She will be provided with protection and moral and legal support. Obviously, the basic purpose is to punish the guilty not the innocent victim herself.
iii. You have rightly observed that according to some jurists if a rape victim cannot prove her allegation, then she will be punished for qadhf. As stated in (ii), Islamic religious sources have not prescribed any punishment for the victim. It is only the understanding of some of the jurists.
You are requested please to go through the article I referred to in order to know what we think the Islamic guidance is this particular case.