Before discussing the case in question, we feel it is important to clarify a common misconception that many people have about the judicial system in a state that operates within the parameters of Islamic Law. It is commonly assumed that every decision and every criminal sentencing in an Islamic country is derived directly from Islamic religious teachings and from sacred law. This is not the case at all.
A court operating under Islamic Law will be obliged to carry out Islamic legal injunctions in the few instances where those injunctions are relevant. Otherwise, the judicial decisions of the court will be based upon the court's application and interpretation of the country's statutory law and on the discretion of the judge, as it is with purely secular legal systems.
In Islam, there are a handful of crimes that are addresses by the sacred texts and are given prescribed punishments (hudûd in Arabic). The same texts determine the evidentiary burden that is required to establish guilt. When this evidence is established, it becomes the religious duty of the courts to carry out the sentence. There are only a few crimes of this nature. Even with these crimes, if the burden of evidence prescribed by Islam is not met, the prescribed punishment cannot be carried out. Instead, the matter reverts to the courts. It becomes, like any other crime, a matter for the court to decide according to its own discretion or for the country's legal system to determine through statutory legislation.
The vast majority of civil and criminal cases heard by the courts in an Islamic country will not be decided on the basis of scriptural teachings. In the vast majority of criminal cases, the crimes will be determined by the country's statutory laws which are developed through the country's legislative process. Likewise, sentencing will either be dictated by statute or passed according the judge's discretion. This is very similar to the situation in the judicial systems of secular countries.
None of the sentences in the Qatif girl rape case were given on the basis of Islamic doctrine. No prescribed punishments were applicable. For each and every defendant, the sentencing was based purely upon the discretion of the panel of three judges who decided that case.
In the case of the rapists, though the crime they were accused of was an act that is indeed criminalized and punishable according to Islamic teachings (rape being punishable by death in Islamic Law) the burden of evidence required to establish guilt for the Islamic prescribed punishment to be carried out was not met. Therefore, the Islamic prescribed punishment could not be carried out. Consequently, the case, along with its sentencing, reverted to the country's statutory law and the judge's discretion. The perpetrators were found guilty by the court on the strength of circumstantial evidence, and they were therefore sentenced according to the court's discretion and not according to Islamic scriptural pronouncements. This is why they received prison sentences of up to seven years and were not sentenced to death.
As for the crime that the woman and her male companion were convicted of, the crime itself is a matter of the country's statutory law. Their act of being alone together is not criminalized by Islamic Law. Though it is true that Islam considers it a sin for unrelated and unmarried men and women to be alone together – since that increases the possibility for their falling into fornication or being the brunt of a scandal – Islam does not criminalize that behavior. Sinfulness and criminalization are two different things. The criminalization of a man and woman being alone together is purely a matter of statutory law in Saudi Arabia. The two of them broke Saudi law. As is the case with statutory laws in any country, this law can at most be seen to reflect the cultural and social attitudes of certain sectors of Saudi society. A country's statutory law is not a matter of religious doctrine.
Some people in the media are saying that the woman is being punished for being raped. This is a misrepresentation of the truth. The courts are not saying that the girl's behavior brought on the rape or that she was "asking for it". She is not being punished for being raped. Please understand that we are not trying here to defend, justify, criticize, or critique the court's decision in any way. We are simply trying to clarify it. The court is simply arguing that the act of breaking the country's statutory law which was perpetrated by the woman and man put them in a vulnerable position where they were in danger of being abducted. The court argued that it felt it necessary to give a harsh punishment for this woman and man who broke Saudi law so as to discourage other people from breaking that same law in the future and consequently placing themselves in an equally unsafe situation. The wisdom and suitability of the judges' decision in this case is a valid matter for people to debate and express their differences of opinion about. However, it is not a debate about Islam or Islamic teachings. It is simply a debate about a particular court case.
The reluctance of Islamic scholars to speak in a religious capacity on this issue is not an indication of their agreement with the judge's ruling, as some people in the media have opined. Rather, it is because the matter is not one of Islamic doctrine in the first place. Scholars of theology are not going to make pronouncements about a judge's decision in a particular court case when what they say is going to be misconstrued by the public as being a theological pronouncement for or against the courts.
A Muslim scholar, like any other concerned citizen, might have a personal opinion about the appropriateness, effectiveness, or fairness of a judge's ruling in a particular court case, but that is simply going to be his opinion on the case based on his personal attitudes, the extent of his knowledge regarding the details of the case, and his understanding of how the country's judicial system operates. His opinion is not necessarily going to be any better or worse than that of any other citizen. It will not and cannot be an "Islamic" pronouncement. Be that as it may, when an Islamic scholar is publicly asked in his capacity as an Islamic scholar to make a pronouncement, his words are expected to propound on the religious teachings of Islam regarding the matter, and this is simply not possible regarding a particular court case where the judge's decision is not based upon religious edicts, but rather upon the judge's discretion and the application of the country's statutory law.
What we hope to have clarified in this response is that the sentences handed down in the Qatif girl case are not a question of Islam or Islamic teachings. The sentencing in this case is a question of Saudi criminal law in a matter where sentencing is not specified by the religion or by religious doctrine in any way. Consequently, the verdicts and sentencing in this case may at most be seen to reflect the cultural and social attitudes of certain sectors of Saudi society – or of the judges themselves – but should not be interpreted as reflecting Islamic doctrinal beliefs or the application of Islamic Law.
This case is unfortunately being presented in the media as an example of Islamic Law in action and as a reflection of the Islamic faith – or at the very least as an inevitable consequence of Islamic religious values. This is not true. The case is at most a reflection of the Saudi criminal justice system and at the very least a reflection of the judges in question. Any comments made by people for or against the outcome of this case – even when those comments are expressed by Islamic scholars – are no different than people's opinions about any other judicial decision. Their opinions are not religious pronouncements.