Historically, there have been different reiterations of rape in the Muslim world, ranging from treating rape as a coercive zinā (unlawful sexual intercourse) to referring it as similar to bodily injury or (jarḥ). [1] Hina Azam, “Rape as Variant of Fornication (zinā) in Islamic Law: An Examination of the Early Legal Reports,” Journal of Law and Religion 28, no. 2 (2012): 442 – 443. This categorization influences the legal proceeding of the case in front of the Qāḍi in terms of evidentiary rules and punishments. The enactment of Acehnese Qanun No. 6/2014 on Jinayat Law (Aceh Qanun Jinayat) [2] Dewan Perwakilan Rakyat Aceh, Tambahan Lembaran Aceh Nomor 67, Qanun Aceh Nomor 6 Tahun 2014 Tentang Hukum Jinayat (2014)., presents us with a contemporary example of how a region that has adopted Islamic criminal law interprets and punishes perpetrators of rape. [3]For an overview of the Acehnese Islamic Criminal Law see Waskito Jati, “The Authority and Jurisdiction of the Acehnese Mahkamah Syar’iyah Within the Indonesian Justice System,” … Continue reading From examining several court documents and statistics, this paper shall show that Aceh Qanun Jinayat has largely maintained a more contemporary practice of legal proceeding while retaining its Islamic identity mainly through administering punishment in the form of public lashing.

In contrast with the classical classification of rape as a ḥadd offense (crimes whose penalties are scripturally defined) in the form of coercive zinā during the formative period of Islamic law, [4] Azam, “Rape as Variant of Fornication”, 442. Aceh Qanun Jinayat categorized rape as a type of offense punished on the discretion of the judges (taʿzīr). [5] Qanun Aceh Nomor 6 2014 Tentang Hukum Jinayat, Articles 48-50. The chapter in Qanun Jinayat uses the word pemerkosaan, the Indonesian word for rape, to distinguish it from the provisions on zinā. Categorizing rape as taʿzīr gives way for Qanun Jinayat to adopt a more contemporary definition of rape. It does not consider rape only as consisting of forced vaginal penetration. [6]Azam, “Rape as Variant of Fornication”, 447. During the formative period of Islamic law, rape was categorized as a variant of coercive zinā and punishable with the fixed punishment as prescribed … Continue reading Anal penetration, penetration using other non-bodily items, and oral sex are also considered as rape if they are done with force, violence, or threat. [7] Qanun Aceh Nomor 6 2014 Tentang Hukum Jinayat, Articles 1(30). Another leeway that this categorization has lent to Qanun Jinayat is that it opens the possibility for rapists to be punished with punishments not prescribed in the Qur’an. Aside from public lashings, Qanun Jinayat gives the sharīʿa court judges the option of punishing convicted rapists either with imprisonment or the payment of a fine.

[8] Qanun Aceh Nomor 6 2014 Tentang Hukum Jinayat, Articles 48-50. This option challenges the sharīʿa court judges as to what punishment is the most appropriate and just for a convicted rapist. Among the judges in the sharīʿa district courts across Aceh, there is a tendency to put defendants of child rape to jail, whereas defendants of rape towards adult have mostly been punished with public lashings. But this phenomenon is far different in comparison to the opinion of the judges in Aceh Sharīʿa High Court which function as the sharīʿa court of appeal. Among high court judges, imprisonment seems to be the preferred form of punishment for cases of rape. From four rape appeal cases filed to the Sharīʿa High Court, all have resulted in the decisions to either affirm lower courts’ decision to imprison rapists or reversed verdicts that impose public lashings on them.

[9] See Summary of Rape and Sexual Abuse Verdicts 2016-2019 Aceh Qanun Jinayat (Islamic Criminal Law) Aceh, Indonesia. Unlike the formalistic evidentiary rules during the classical period of Islamic law where confession and testimony took precedence over physical signs [10] Baber Johansen, “Signs as Evidence: The Doctrine of Ibn Taymiyya (1263-1328) and Ibn Qayyim Al-Jawziyya (d. 1351) on Proof,” Islamic Law and Society 9, no. 2 (2002): 168., Aceh sharīʿa court uses circumstantial evidence in the form of physical items, forensic examination, and psychological analysis to base its convictions in cases of rape. In some cases, the sharīʿa high court has based its decisions to reverse a lower court verdict to lash a convicted rapist and rule for the imprisonment of the defendant on the severe trauma that the victims had endured. [11] Appeal Decision, Case number 02/JN/2018/MS. Aceh (Mahkamah Syar’iyyah Aceh, May 17, 2018). Testimony of witnesses are also admissible in court, but it does not connote to the conventional witnesses in adultery cases that consist of four male witnesses who directly saw the event. Instead, they refer to character witnesses such as neighbors and family members who did not directly see the crime being committed. This reliance on a more contemporary evidentiary procedure might have contributed to the conviction of almost all rape cases tried at sharīʿa district courts in Aceh. From twenty-four rape cases recorded in sharīʿa district courts across Aceh from 2016-2019, there is only one case resulted in an acquittal.

[12] See summary of rape and sexual Abuse verdicts 2016-2019, Aceh Qanun Jinayat (Islamic Criminal Law) Aceh, Indonesia. In this one case where the defendant was granted an acquittal, the sole reason behind the ruling was the lack of circumstantial evidence. [13] Sharīʿa district court decision, Case Number 08/JN/2017/MS.BNA (Makamah Syar’iyyah Banda Aceh, May 17, 2018). The victim, a woman, claimed that she was drugged by a man and brought to a hotel room on the third floor where she was raped. The receptionist of the hotel who testified in court stated that he did not see the defendant dragging an unconscious woman to the hotel room. Neither can there be found any security footage showing the woman being brought to the room. The sole evidence presented to the court was the victim’s testimony. And since Acehnese Islamic Criminal Procedural Codes of 2013 requires for the court to produce at least two evidence before delivering a guilty verdict, the court decided to release the defendant.

[14] Dewan Perwakilan Rakyat Aceh, Tambahan Lembaran Aceh Nomor 7, Qanun Aceh Nomor 7 Tentang Hukum Acara Jinayat (2013), Article 180. Other than the co-optation of lashing as one possible forms of punishment, another distinctly Islamic feature of Qanun Jinayat in its provisions regarding rape is the admissibility of oath to complement other circumstantial evidence. [15]Johansen, “Signs as Evidence”, page 171. The use of confession and the refusal to take an oath was among the most widely accepted forms of proof during the classical period of Islamic law (8th … Continue reading Procedurally, upon receiving a report from someone who claims to have been raped the police is ordered to investigate to find preliminary evidence. [16] Qanun Aceh Nomor 7 Tentang Hukum Acara Jinayat (2013), Article 18. In a  case where there is not enough evidence during the preliminary investigation, the victim can supplement her report by stating her willingness to swear an oath under the name of God that the alleged rapist had indeed raped her. [17] Qanun Aceh Nomor 6 2014 Tentang Hukum Jinayat, Articles 52 (3). The swearing will take place in court in front of the judges where the victim must reiterate her swearing five times. The alleged rapist can deny the accusation also by swearing five times under the name of God that he is innocent. [18] Qanun Aceh Nomor 6 2014 Tentang Hukum Jinayat, Articles 55 (2-3). If such a scenario happens where both the victim and the alleged rapist swear in court, the case will be dismissed, and the alleged rapist can walk free.

[19] Qanun Aceh Nomor 6 2014 Tentang Hukum Jinayat, Articles 56. When the victim retracts her willingness to swear in court, a rather adaptation of classical Islamic concept emerges. If that is the case, she could be charged with qadzaf (Ar. qadhaf) [20] Qanun Aceh Nomor 6 2014 Tentang Hukum Jinayat, Articles 54, a classical Islamic law term used to define someone who accuses another person, particularly a chaste woman, of adultery without producing four male witnesses. However, the Acehnese Qanun Jinayat defines qadzaf as an accusation towards either a man or a woman that can be implemented in the case of accusation of rape. Similar to the provision related to qadzaf in the Qur’an, Qanun Jinayat maintains the status of qadzaf as hudud crime with fixed punishment of eighty lashes in public. These provisions are potentially harmful to women as the group who suffer the most from rape. In practice, however, no document has been found where women are prosecuted based on the oath or qadzaf provisions.

The Acehnese Qanun Jinayat provisions on rape have shown the intricacy of attributing Islamic characteristics on a rather contemporary type of crime. The result could potentially be harmful to women as shown by the provisions pertaining to the use of oath and qadzaf in Qanun Jinayat. Contemporary understanding of rape has been able to influence the opinion of some of the judges in the Shari’a court in Aceh and render some of the dangerous provisions dormant. Nevertheless, further criticism, observation, and advocacy are needed to ensure a just legal system in Aceh.

References

References
1 Hina Azam, “Rape as Variant of Fornication (zinā) in Islamic Law: An Examination of the Early Legal Reports,” Journal of Law and Religion 28, no. 2 (2012): 442 – 443.
2 Dewan Perwakilan Rakyat Aceh, Tambahan Lembaran Aceh Nomor 67, Qanun Aceh Nomor 6 Tahun 2014 Tentang Hukum Jinayat (2014).
3 For an overview of the Acehnese Islamic Criminal Law see Waskito Jati, “The Authority and Jurisdiction of the Acehnese Mahkamah Syar’iyah Within the Indonesian Justice System,” Shariasource.com, April 5, 2018, https://beta.shariasource.com/documents/3170.
4 Azam, “Rape as Variant of Fornication”, 442.
5 Qanun Aceh Nomor 6 2014 Tentang Hukum Jinayat, Articles 48-50.
6 Azam, “Rape as Variant of Fornication”, 447. During the formative period of Islamic law, rape was categorized as a variant of coercive zinā and punishable with the fixed punishment as prescribed in the Qur’an (Hudud).  The consequence of such categorization is that the conventional definition of zinā remained applicable, that is the act of illicit genital intercourse outside of marriage or concubinage.
7 Qanun Aceh Nomor 6 2014 Tentang Hukum Jinayat, Articles 1(30).
8 Qanun Aceh Nomor 6 2014 Tentang Hukum Jinayat, Articles 48-50.
9 See Summary of Rape and Sexual Abuse Verdicts 2016-2019 Aceh Qanun Jinayat (Islamic Criminal Law) Aceh, Indonesia.
10 Baber Johansen, “Signs as Evidence: The Doctrine of Ibn Taymiyya (1263-1328) and Ibn Qayyim Al-Jawziyya (d. 1351) on Proof,” Islamic Law and Society 9, no. 2 (2002): 168.
11 Appeal Decision, Case number 02/JN/2018/MS. Aceh (Mahkamah Syar’iyyah Aceh, May 17, 2018).
12 See summary of rape and sexual Abuse verdicts 2016-2019, Aceh Qanun Jinayat (Islamic Criminal Law) Aceh, Indonesia.
13 Sharīʿa district court decision, Case Number 08/JN/2017/MS.BNA (Makamah Syar’iyyah Banda Aceh, May 17, 2018).
14 Dewan Perwakilan Rakyat Aceh, Tambahan Lembaran Aceh Nomor 7, Qanun Aceh Nomor 7 Tentang Hukum Acara Jinayat (2013), Article 180.
15 Johansen, “Signs as Evidence”, page 171. The use of confession and the refusal to take an oath was among the most widely accepted forms of proof during the classical period of Islamic law (8th – 12th C AD).
16 Qanun Aceh Nomor 7 Tentang Hukum Acara Jinayat (2013), Article 18.
17 Qanun Aceh Nomor 6 2014 Tentang Hukum Jinayat, Articles 52 (3).
18 Qanun Aceh Nomor 6 2014 Tentang Hukum Jinayat, Articles 55 (2-3).
19 Qanun Aceh Nomor 6 2014 Tentang Hukum Jinayat, Articles 56.
20 Qanun Aceh Nomor 6 2014 Tentang Hukum Jinayat, Articles 54