Can science be used to establish the punishment for zinā?

Is scientific evidence permissible in the case of rape?
The following verse seems to indicate that science can be used to determine guilt or innocence:
“But if it be that his shirt is torn from the back, then is she the liar, and he is telling the truth!” (  سورة يوسف  , Yusuf, Chapter #12, Verse #27) Qur’an.
So when he saw his shirt,- that it was torn at the back,- (her husband) said: “Behold! It is a snare of you women! truly, mighty is your snare! (  سورة يوسف  , Yusuf, Chapter #12, Verse #28) Qur’an.

They saw that Nabi Yusuf’s , ‘Alayhi Salam, shirt was ripped form behind. Meaning that the wife of Al-Aziz was the one that tried to seduce him.

Can we gather that science is admissible as a form of evidence?

On the matter of 4 witnesses:
Rapists don’t usually perpetrate their crimes in public view. They seek to abduct women, take them to remote locations and the perform the act.
How then can 4 witnesses be produced in such a circumstance?

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More than 50% of all rape/sexual assault incidents were reported by victims to have occured within 1 mile of their home or at their home.²

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According to these statistics how can 4 witnesses be summoned, given their privacy, and especially considering that gags can be placed in the mouth to stop screaming?

Granted that women can make false rape claims in order to seek revenge on men and for other reasons.
This does not detract from the fact that most rapes occur in locations where the 4 witnesses criterion cannot be established.
 
Can semen samples be gathered and if they match those of the alleged perpetrator, at  the very least, establish that there was some kind of sexual interaction, be it Zina or rape?
If semen samples are gathered and they match the DNA of the alleged perpetrator can this be used as evidence to convict him of Zina?

Some information regarding the matter:
http://www.judcom.nsw.gov.au/publications/benchbks/sexual_assault/edwards-medical_examinations_of_sexual_assault_victims.html

Answer:

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

The capital punishment for the crime committed is very severe like the crime itself. Capital punishment is decreed by Divine law and its application must be carefully regulated to maintain the sanctity of the law. If capital punishment is not carefully regulated, it could be manipulated by human beings and the sanctity of the law will diminish. When capital punishment is applied and all doubts surrounding the crime are removed, it becomes clear that that the punishment is pure, unadulterated and fitting the severity of the crime. Such an attitude is in keeping with the sanctity of Divine law.

It is on the spirit of the foregoing that it is important to understand that the objective of Sharī`ah is not to apply capital punishment whenever possible; rather, it is to ward off such punishments even if it is due to a mere doubt.[1] Consider the following hadīth:

قَالَ رَسُولُ اللهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ: ادْرَءُوا الحُدُودَ عَنِ الْمُسْلِمِينَ مَا اسْتَطَعْتُمْ، فَإِنْ كَانَ لَهُ مَخْرَجٌ فَخَلُّوا سَبِيلَهُ، فَإِنَّ الإِمَامَ أَنْ يُخْطِئَ فِي العَفْوِ خَيْرٌ مِنْ أَنْ يُخْطِئَ فِي العُقُوبَةِ 

The Messenger of Allāh (sallalāhu `alayhi wa sallam) said: “Avert the legal penalties from the Muslims as much as possible, if he has a way out then leave him to his way, for if the Imam (i.e. Judge) makes a mistake in forgiving it, it would be better than making a mistake in punishment.”[2]

This does not mean that Shariah disregards upholding justice, especially when there is overwhelming evidence against the offender. In the case of zina, one must differentiate between the official and legal from of preventive punishment (know as hadd) used to deter the public from committing a similar crime and the disciplinary from of punishment (also know as tazir)[3] used to deter that specific individual from committing a criminal act in the future. Since the former is the ultimate form of punishment stipulated by Sharī`ah, the conditions to apply such a punishment are very stringent as well.[4] As such, circumstantial evidence is not sufficient for indictment and punitive action at a level where one is charged with committing zinā without fulfilling the necessary criteria stipulated by Islamic law.[5] On the other hand, disciplinary punishment may be carried out if there is enough circumstantial evidence that proves one guilty of a personal offense.[6]

In summary, if a certain individual commits an act of rape or other forms of battery, he may be tried by Islamic courts and given due justice in accordance to Islamic law. Depending on the amount of evidence available, the criminal will be prosecuted and disciplinary action will be taken accordingly.

It goes without saying that the level of punishment stipulated through tazir is less in degree as compared to a hadd even though both may contain forms of incapacitation; however, unlike a hadd, a tazir may contain other forms of punishment such as rehabilitation, restoration, etc. per the discretion of the judicial authority.[7]

We would like to point out that the verse you have quoted may not be used to deduce the outcome you have provided for the following two reasons:

1) The verse makes no reference to establishing penal laws or applying hadd against an offended in such a case, especially when the eventual outcome was that Yūsuf (`alayhis salām) was imprisoned instead of the wife of al-Azīz.[8]

2) The verse stipulating the conditions of establishing a punishment for zinā are explicit[9] whereas the verse in reference may only be considered at most an inference based on implications of the verse. As such, it cannot be used against to circumvent the requirements laid out in the first verse.[10]

And Allah Ta’āla Knows Best

Bilal Mohammad

Student Darul Iftaa
New Jersey, USA

Checked and Approved by,
Mufti Ebrahim Desai.

www.daruliftaa.net

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[1] Fatāwā Dārul `Ulūm Zakariyyā, v. 4 p. 533, Zam Zam Publishers

[2] Tirmidhī, 1424, The Book of Legal Punishments

[5] Kitābul Fatāwā, v. 5 p. 179, Zam Zam Publishers;

Fatāwā Dārul `Ulūm Zakariyyā, v. 4 p. 533, Zam Zam Publishers;

[6] Fatāwā Uthmānī, v. 3 p. 538, Maktabah Ma`āriful Qur’ān;

Fatāwā Haqqāniyyah, v. 5 p. 195, Jāmi`ah Dārul Ulūm Haqqāniyyah;

[7] See footnote 3.

[8] Surah Yūsuf: 33-35

[9] Surah Nūr: 4