Evidentiary Standards for Sexual Offenses in Islam

Fida Mohammad & Richard Lee

Abstract
This paper analyzes criminal procedure and evidentiary standards for sexual
offenses in Islam, detailing the sources of Islamic laws in general andthe laws of
privacy in particular— including slander, and adultery. The particular focus is an
examination of the evidentiary process in Islamic law, called Shari’a, including
burdens of proof and punishments for sexual offenses. By compiling summaries by
Shari’a juridical experts, this article encapsulates current consensus, even as it
recognizes that the Islamic legal system is a moralizing force because Islam
encompasses all aspects of individual existence. The article focuses on the Sunni
school of thought because it has the largest following, though even Sunni adherents
are not monolithic in their beliefs. The article reviews the extant literature that
establishes the basis for the Islamic legal structure, locates sexual offenses within
the general field of Islamic laws on privacy and slander, details the burdens of proof
for various sexual offenses and lists punishments for each.
This paper explains Islamic evidentiary standards for sexual offenses. The
Islamic community is a religio-political community called Ummah: there is no
bifurcation between the secular and religious domains as is the norm in Western
cultures. Islam encompasses all aspects of life, refusing individual
compartmentalization. The function of law is to protect individual rights within the
framework of the cherished ideals of Islam; thus, the Islamic legal system is a
moralizing force. Before discussing sexual offenses, it will be appropriate to shed
some light on the sources of laws in Islam, acknowledging that there are different
schools of thought within Islam as a whole. The focus throughout will be on the
Sunni school of thought, which has the largest following, although not even the
Sunni sect is monolithic in all its beliefs; for example, there are four Sunni sub-sects:
Hanafi, Schafei, Maliki, and Hanabali. This paper presents information specific to
the high-consensus area of beliefs of these four sub-sects, or what is generally
regarded as the Sunni school of Islamic thought. In order to fully comprehend
sexual offenses in Islam, it will be appropriate to view them within the context of
Islamic laws on privacy and slander. The Islamic legal system is specific and
hierarchical, stemming from the Qur’an itself, and well summarized by Sanad
(1991: 38-39):

Keywords: Sexual Offense, Islam, Evidence