Rape is a crime seen to signify a different degree of harm in different cultures. In most cultures it is a crime against women, this is what I subscribe too. In pushtun culture it is mostly a crime against a family's honor and similarly in Islam it is mostly against GOD (consenting sex labelled as zina). Thus the restitution in different cultures and Islam is different and aimed to provide restitution to the perceived victim.
One more thing before rape can be punished it has to be reported.
In pushtun culture if a girl was raped or even assumed to have been raped she was killed for honor (as I said the victim was and is considered to be the family, mainly male family members and not the women). This still goes on. In this atmosphere nobody comes out. So forget about providing justice, the victim rarely reports a case.
The recent experiment of the Pakistani government with Islamic law by passing the hudood and zina ordinance has created a nightmare for the poor victims of zina. If a women is raped and gets pregnant she has to come out. At this point if she states that so and so raped her she is asked, by Islamic law, to produce four adult males who witnessed the sexual act. This has never been possible. As this condition is not fulfilled the women is considered to have had sexual relations out of wedlock. Pakistani jails are full of such women who are incarcerated.
Now close to thirty years of experience in Pakistan with the Islamic law of hudood and zina has shown us that it is quite inadequate. Actually there has been an increase in domestic violence (well documented) after inception of these laws. But as it is considered divine there is no way out of it.
A law is a restriction on behavior. Laws in a group should serve a purpose, mainly that of restricting a particular behavior. So a law in our example of rape should deal with women suffering and exploitation not GOD.
When a women is raped it should be easy for her to report it with honor and dignity without fear of persecution. This right to be part of a law. And violators punishable by law.
Once reported a case is investigated and if reasonable data suggest that a culprit can be convicted beyond reasonable doubt (witnesses, collaborative evidence, DNA matching etc) then he or she be apprehended and brought to justice and punished in a reasonable humane way. A few years in jail or transfer of his property to the women or such will suffice.
In this system the law is dynamic, new methods of investigation when available are looked at (like DNA analysis) the only underlying essence of the law is to decrease the incidence of rape in a society and mitigate its trauma to its victim.
And if a case is weak due to lack of evidence and no evidence of lies on part of the victim she is allowed to live a life with the same dignity as before a rape occurred.
This brings us to another issue of the definition of rape. Rape is sex without informed consent. Zina is not synonymous with rape as consensual sex can be zina but not rape. Consensual sex is no body else's business. A concept very alien to a pushtoon when his sister is mentioned. But something absolutely necessary for creating a just, healthy and equitable society.
Our focus should be to decrease the exploitation of women. Forced marriages, marriages of minors, buying and selling of women, prostitution due to starvation, polygamy, and incarceration of women within walls and behind veils, domestic violence and lack of say in their own affairs are some of the things that we need to address as a nation. None of these can be addressed without a dynamic judicial system.
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