“Re-victimization” of Women
D. “Re-victimization” of Women
Unequal gender relations in the society often put women in an unpleasant position. Biological differences between men and women have been used to marginalize, belittle, give negative labelling, provide double burdens, or commit violence against women. Unfortunately, forms of gender inequality are most often supported by rulers. For example, the Governor of Jakarta, Fauzi Bowo, on September 16, 2011, stated regarding the cases of rape that occurred in the city transport:
Just imagine when people ride the minibus, some sit before a woman wearing a mini skirt, it makes them rather stifling. When a woman rides motorcycle wearing tight shorts, just imagine, others behind her would ride agitated. 194
His statement accrues public protests that eventually forces the governor to apologize and says that he never intends to harass women. The same thing happened to a prospective candidate to attorney general (DS). When asked by a member of House of Representatives on the granting of the maximum punishment for the perpetrators of rape in a fit and proper test session of nominees in the House of Representatives Commission III on Monday, January 14, 2013, he replied that the maximum sentence is not necessary because both victim and rapist equally enjoy the deed. Ironically this statement is responded positively by members of the commission participating the session, adding the information that 50 % of women in Jakarta are not virgin anymore. This statement has also drawn strong criticism that DS doesn’t qualify the nominee. He then apologized and said sorry. 195
Such statements also appeared in the name of religion. In 2011, the regent of Aceh Barat (RM) said that in Aceh Barat women who did not dress according to Islamic Syari`ah deserved to be raped. This statement was criticized as rough, uneducated, and threatening people, especially women. This statement contained dangerous logic because it could be used as a legitimation for thugs to rape women who did not wear dress unsuitable with Syari`ah, it could even inspire police men to abuse this for their interests. 196 Chairman of the Indonesian Islamic Scholars Council (Majelis Ulama Indonesia[MUI]) also criticized the regent’s thinking and said that
194 “ Foke: Di Angkot Pake Rok Mini, Bikin Gerah”, http://metro.news.viva.co.id/news/ read/247635-pemprov-harus-evaluasi-kepemilikan-angkot, accessed 29 December 2014.
195 „Calon Hakim Agung Daming Sunusi Minta Maaf atas Pernyataannya“, from http:// www.voaindonesia.com/content/calon-hakim-agung-daming-sunusi-minta-maaf-atas- pernyataannya/1584544.html, accessed 29 December 2014.
196 “Di Aceh Barat Perempuan tak Berpakaian Sesuai Syariah Layak Diperkosa?” News accessed on Desember 29, 2014 from http://www.memobee.com/index.php?do=c.every_ body_is_ journalist&idej=709.
a woman wore a tight dress might trigger certain negative thinking among young men, but that did not mean that she requested to be raped. 197
The view of a public official avove was unsympathetic to female victims of rape and indicated the ruler’s perspective of imposing public morality only to women, not to men, or men and women altogether. The way a woman dresses or the morality of a woman is seen as a cause of rape. On the other hand, the failure of a man to refrain from rape and man’s morality are not seen as the causes of rape. Moreover, in Muslim communities in general there is still a strong point of view that public space belong to men, while a woman’s place is at home; so that in cases of sexual harassment, including rape in a public space, it is considered as the fault of woman.
The ways of looking at unequal gender relations have a major influence on the implementation of hudūd, especially regarding sexual relations. Sexual intercourse of men and women provides completely different impacts on both; a woman can experience pregnancy, miscarriage, childbirth, postpartum, and breastfeeding, in which men are excluded to do so. In other words, sexual intercourse in women leaves a long trail of physical evidence, whereas in men it doesn’t. Meanwhile, sexual intercourse is not solely related to physical contact but also to the willingness of the perpetrators, so that there is sexual intercourse desired by both sides, but there is also sexual relationship desired only by one party, while the other suffers coercion or become rape victim. Rape is not related to biological differences, but to the inequality of relationship where the position of the rapists is stronger than the victims, generally women. Neglecting this unequl gender relations can lead female victims of violence being punished.
A woman’s biological condition causes her to be in a more vulnerable position to be punished for adultery than men. Men and women who have sex outside marriage have been affected by the law in the eyes of people
197 “Outrage, Ridicule Leveled at West Aceh Politician After Rape Comment”, news accessed on Desember 29, 2014 from http://thejakartaglobe.beritasatu.com/archive/outrage- ridicule-leveled-at-west-aceh-politician-after-rape-comment/391768/ 197 “Outrage, Ridicule Leveled at West Aceh Politician After Rape Comment”, news accessed on Desember 29, 2014 from http://thejakartaglobe.beritasatu.com/archive/outrage- ridicule-leveled-at-west-aceh-politician-after-rape-comment/391768/
This discourse amasses protests from various parties, including the Ministry of Education and Culture which questions the purpose of virginity tests and assesses the proposal as not wise in the education system. Education Minister even threatened to impose sanctions on schools that perform virginity tests because they are deemed harmful to others and diminishing the rights of citizens to education. Kunthi Tridewayanti from Komnas Perempuan considers these rules as representing a stigma that moral decadence in children and adolescents is perpetrated by women, while men are always considered innocent. 199 The purity of a girl not only symbolize her own purity but also the purity of the family and the society, so that the punishment doesn’t just come from her family that might isolate her, but also from her society and the state. If the virginity tests are run in a society or a country applying had zina, the loss of women’s hymen could be reason for the application of the flogging on them, while men cannot be tested for virginity so that they may escape from flogging though they commit
198 “MUI: Tes Keperawanan Perlu Masuk Undang-undang”, accessed on Desember 29, 2014 from http://regional.kompas.com/read/2013/08/20/1259325/MUI.Tes.Keperawanan. Per- lu.Masuk.Undang-undang.
199 Keperawanan Dipersoalkan, Bagaimana Keperjakaan? accesed on Desember 29, 2014 from http://nasional.kompas.com/read/2013/08/22/1701340/Keperawanan. Dipersoalkan. Bagaimana.Keperjakaan.
adultery many times. Subsequent differences in impacts for men and women who have sexual intercourse are that women would experience their pregnancy which is getting bigger and bigger, while men wouldn’t have it. Men could easily deny the fact that they have had adultery, especially when they learn that their confession may lead them being flogged 100 times, or even being stoned to death. In contrast, woman’s pregnancy may serve as proof that she has committed adultery so that she can be flogged 100 times or stoned to death. Men also benefit from the difficulty of proving adultery with a requirement of four witnesses who see the penetration process.
Thus, men who have sex outside marriage could easily free from flogging and stoning through denial, and also the difficulty of presenting witnesses, while women are not able to deny the fact that the tearing of the hymen and their pregnancy both have the potential to be used as evidence that they have committed adultery. Men can swing freely while women must experience nine-month pregnancy, giving birth, and breastfeeding while waiting to be whipped or stoned.
Differences in impact between men and women who have sex outside marriage may become longer if it is committed by force or rape. Rape, as adultery, is quite difficult to prove because it relies on the recognition ( iqrar) of the rapist which is almost impossible when the perpetrator is aware of the consequences of being whipped or even stoned to death. The testimony of four people who witness the penetration process is equally hard; visum et repertum made by physicians in general only to describe the objective conditions of the vagina but not to assert the rape, especially if there is a threat of punishment of qadzaf; while DNA tests were not yet recognized by all Qanun Jinayah as a means of substantiation.
Women victims of rape have another problem if the procedure of proof is equated with adultery and qadzaf. Proof on rape case should be on the rapist, not the victim. In addition, difficulties can also arise because of the value of the testimony: women’s testimony is not recognized or acknowledged only half than that of men while it requires that they can present four witnesses who see the penetration process when the rape took place. In addition, rape victims must suffer psychological shocks that require tranquility so that the Women victims of rape have another problem if the procedure of proof is equated with adultery and qadzaf. Proof on rape case should be on the rapist, not the victim. In addition, difficulties can also arise because of the value of the testimony: women’s testimony is not recognized or acknowledged only half than that of men while it requires that they can present four witnesses who see the penetration process when the rape took place. In addition, rape victims must suffer psychological shocks that require tranquility so that the
Women victims of rape are often treated as having committed adultery because of the difficult procedures of proving rape. Some Muslim countries even do not recognize the term rape in jinayat law which they apply. Women victims of rape are in the end entangled with the punishment for adulterers, whipped 100 times and stoned to death. Here are some cases that occur in various countries: 200
In an area under control by the Taliban, there are cases of rape which the female rape victims who demand justice was charged with having sex and thus killed because of their less convincing evidence of rape. On August 9, 2010, the Taliban court found a woman guilty of pregnant as a result of “illicit relations”. After being imprisoned for three days in a remote area in the province of Badghis, she was whipped 200 times and then shot in the head three times.
In 2001 in the state of Sokoto Nigeria, Safiya Hussaini Tungar Tudu was sentenced to death by stoning because of having a child outside marriage. She testified as having been repeatedly raped by a married neighbor, but she remained accused of adultery. After a long legal assistance, a year later the case was stopped.
In October 2008, Aisha Ibrahim Duhulow, 13 years old, was sentenced to death in Kismayu, Somalia, for being accused of committing adultery. She was executed by 50 people in the stadium and watched by about 1,000 spectators. Amnesty International reported that Aisha had been raped by three men, but was accused of committing adultery when she tried to report the rape to the al-Shabab militia who controls the city’s port. None of the perpetrators were arrested or punished.
200 “Mapping Stoning in Muslim Context”, dikutip pada tanggal 23 Desember 2014 dari http:// www.wluml.org/resource/mapping-stoning-muslim-contexts .
In addition to had zina, had qadzaf has often entrapped women as the victims of rape Who seek for justice. This is because some views of fiqh do not distinguish rape from adultery, or the verification procedures to prove rape are equated with adultery which lead to a situation that female victims of rape have difficulty to prove the case. The result is the confession that a woman make that she has been raped may even cause her to be charged as making false accusation of adultery to the perpetrator. The woman who is raped and becomes pregnant, her pregnancy can even be used as evidence that she has committed adultery so she is subjected to had zina in the form of 100 lashes or even stoning. If a woman is raped, gets pregnant then reports to the court that she is raped, but she cannot substantiate the allegation, especially if local jinayat law doesnot recognize rape, then she could be sentenced according to law of qadzaf by being flogged 80 times.
In some fiqh books, scholars have distinguished between adultery and rape, where zina is punished with had, while rape is not. However, there are no views on fiqh that differentiate the way of proving of either rape or adultery. The impact is as mentioned above, women experience revictimization, victimized by dubious kind of law treatment. Evidence of rape and adultery should be distinguished, because rape is a crime above crime, meaning a crime that has double layers, and then the proof should use the proof of crimes, not proof of adultery. Specifically, crimes against honor should be disclosed, while case of adultery should be closed and veiled with repentance to God.
Other case that also put women in a vulnerable position is when abortion is considered as an act of murder. Brunei’s Jinayat law prohibits all kinds of abortion of either already in the form of fetus or not yet a fetus. These actions categorised as part of the act of murder, except for medical reasons where pregnancy forwarded the risk of loss of life for the mother is greater than an act of abortion. 201 Women victims of rape who become pregnant and then take abortion to reduce the burden of rape will be subject to criminal penalties in Brunei if she is physically healthy.
201 See Clause 158-164 Section Qatl dengan Pengguguran Janin (Murder by abortion of Fetus), Perintah Kanun Hukuman Jenayah Syariah (decision by Qanun Jenayat of Syari`ah Law),
2013 Brunei.
Political motivation, political agenda, the weak position of society, and the re-victimization of women that often arise in the implementation of hudūd indicate that the mission and the impact of the implementation of hudūd in Muslim countries today have shifted far enough. Benefit and common prosperity which can only be achieved by facilitating the general public in order to meet their needs with ease is not reflected in the implementation of hudūd. This happens because hudūd is separated from a large building of Islamic theology and freed from the philosophy of Islamic law. Political contestation has put hudūd, a tiny portion in the great building of theology and philosophy of Islamic law, to become the main identity of Islamic law.
The Syari`ah law which brought the re-victimization of women is contrary to the mission of Islam as a mercy for all creatures including women through its teachings. Besides, it also contradicts the embodiment of justice as the ultimate goal of Syari`ah law through a breach of all the maintenance of religion, life, intellect, lineage, and soul.
Problems that emerge in the application of Islamic Law in general, and specifically hudūd, in modern countries can be categorized as problems related to reality, and problems related to the religious consciousness. Problems related to reality comprise of social changes that necessitate a shift in relations between the countries, relations between the state and corporations, relationship between the rulers and the people, relation between religion and state, relation between genders, relation between religious leaders, technological development which is very closely linked to the development of crime, and other sort of problems . The problems associated with the religious consciousness may lie in the Muslims who practise it and not on the teachings of Islam itself. However, if the same problem becomes increasingly common in the implementation of hudūd, it is necessary to consider that the problem might not be in the teaching of Islam itself, but on the way we respond to this teaching. The knowleageable scholars have formulated Islamic teachings into the system based on knowledge, experience, and the challenges of their respected era. The problem, of course, is not on this formulation, but on the way we respond to it by ignoring the dynamic challenges of times in the past, present, and future. Therefore, efforts to reinterpret hudūd as formulated by Muslim scholars throughout history need to be supported.