Al Hakam Publishes Position Paper on Rape in Islamic law

Hajj is a symbol of universal brotherhood and should help Muslims unite around human rights and walk away from divisions on petty theological details. Additional reading: Adultery and Rape: Islamic Guidance and Jurisprudence and Collection of Videos and Articles about Rape and Islamic Sharia

Rape in Islamic law: Establishing the crime and upholding the rights of the innocent

The teachings of Islam stipulate that the state is responsible for the protection of the interests (maṣāliḥ) and rights (ḥuqūq) of their citizens. Through protecting these interests and rights of every individual, Islam has laid the foundations of a peaceful society. Based on the Holy Quran, all schools of Islamic jurisprudence agree on five main types of human interests (maṣāliḥ) which need to be protected by the state: 

1. Religion (dīn)

2. Life (nafs

3. Intellect (ʿaql

4. Offspring (nasl)

5. Property (māl)

The impairment of any one of these five constituents jeopardises the safety and well-being of the individual, which leads to unrest and disorder in society at large. If a person who violates these interests is found guilty by a court, state law will impose a punishment on them. 

The objectives of punishment in Islam are to establish justice, reform offenders, and caution other members of society.

Definition of Crime in Islam and a brief note on Islamic punishments

The definition of crime in Islam is: Any act by which a person is forcibly harmed physically or mentally, whereby harm includes physical violence, bodily harm, attack on one’s honour, and death. (Imam Shāfiʿī, al Umm, Vol 6; Ibn Rushd, Bidayat al-Mujtahid, Vol 2; Imam Ibn Taymiyya, al-Siyasat al-Shariʿah)

In Islam, there are three main types of punishment for crimes: statutory punishment (ḥadd), retaliatory punishment (qiṣāṣ) and discretionary punishment (taʿzīr).

As this article particularly aims at focusing on the Islamic perspective on establishing the elements of the crime of rape, we will only talk about the definition of ḥadd and taʿzīrQiṣāṣ need not be discussed as it is not a prescribed punishment in Islam for crimes like rape.

Ḥudūd

In Islamic law, ḥadd refers to a punishment imposed by Allah the Almighty or the sunnah for certain. Once a ḥadd is warranted through the prescribed procedure, the court or the state or the aggrieved party are not permitted to make any concessions in the implementation of these punishments.

According to most scholars of Islamic law (fuqahā), there are seven ḥudūd in Islam (Al Fiqh al-Islami wa adillatohu by Prof Dr Wahbah az-Zuhaily); however, according to Imam Abū Ḥanīfa the following five crimes are liable to the ḥadd punishment: 

1. Theft (sariqa)

2. Fornication/Adultery (zinā)

3. Consuming alcohol (shurb)

4. Becoming intoxicated (sukr)

5. Slander (qadhf) – especially in the case of sexual abuse or adultery. (Ibid)

It is to be noted that ḥudūd are the strictest punishments set in the Quran and sunnah and whenever these punishments are prescribed, clear guidance has also been given regarding investigation, witnesses, evidence and clues etc. for establishing the crime. A qāzi, or judge, must strictly follow the prescribed guideline and if the evidence does not meet the given standard, ḥadd punishment cannot be imposed. 

However, the victim of a certain crime is never deprived of true justice because if the defendant’s guilt is proven through evidence other than the prerequisite for the imposition of the strictest ḥadd penalty, a taʿzīr penalty may be imposed.

Taʿzīr

The taʿzīr penalty is distinctly different from the ḥadd and qiṣāṣ punishments and is left to the discretion of the court. While the basis for establishing a crime punishable by a ḥadd penalty are strictly guided by the Quran and sunnah, a crime which is punishable by a taʿzīr can be proven on the basis of any kind of credible evidence presented before the court of law. The court has the power to determine and impose a taʿzīr. Thus, crimes that do not meet the strict criteria of ḥudūd, but the evidence proves the defendant guilty, can be tried and punishment imposed by way of taʿzīr.

After this basic introduction to the different kinds of Islamic punishments, we now take a look at the Islamic stance on zinā (adultery) and ightiṣāb (rape).

Defining zinā (adultery) and ightiṣāb (rape)

All Islamic schools of jurisprudence broadly agree that zinā is the unlawful and mutually consensual sexual intercourse between a man who is sane and who has reached the age of puberty (bulgh) and a woman who is not his legal spouse. (ʿAlaʿ al-Din Abu al-Kasani, Badaʿi al-Sanaʿi, Vol. 7, Dar al-Kutub al-Arabi, Beirut, 1982)

According to this definition of zinā, the Mālikī, Shāfiʿī and Ḥanbalī schools of Islamic jurisprudence define rape as the forced performance of the aforementioned act as coerced adultery or rape.

According to Ḥanafī jurisprudence, ightiṣāb or rape is defined as coercing a woman to commit adultery against her will, and also includes determining whether or not the plaintiff incited the defendant to commit this act.

Thus, the definition of rape in Islam is:

“Forcible illegal sexual intercourse by a man with a woman who is not legally married to him, without her free will.” (Such definitions are generally agreed on in Islamic countries, for instance Pakistan, where section 6 of the Enforcement of Ḥudūd Ordinance (VII of 1979) defines it on similar lines)

Punishment of rape (ightiṣāb) in Islam

Although, in Islamic jurisprudence, the term of forced adultery (zinā bil-jabr) has also remained in use for rape, most Arab jurists use the term ightiṣāb, which means violating the inviolability of a woman by force. 

As for the punishment of this heinous crime, most jurists suggest that it is essentially the same as that for zinā or adultery, which is one hundred lashes or stoning if the perpetrator is married. 

Some scholars such as Imam Mālikrh and Imam Abū Ḥanīfarh suggest that the perpetrator would also be required to pay a mahr (dowry money) to the victim. (Al-Muwatta, 4/1063; Al-Muntaqa Sharh al-Muwatta’, 5/269)

Al-Muwatta Imam Malikrh

Some scholars have written that if the victim of rape was abducted forcefully from her home or from some place other than her home and then raped under the threat of a weapon, such an act would warrant another or higher ḥadd punishment which is the punishment of Muharabah mentioned in verse 34 of Surah al-Maʿidah:

اِنَّمَا جَزٰٓؤُا الَّذِیۡنَ یُحَارِبُوۡنَ اللّٰہَ وَ رَسُوۡلَہٗ وَ یَسۡعَوۡنَ فِی الۡاَرۡضِ فَسَادًا اَنۡ یُّقَتَّلُوۡۤا اَوۡ یُصَلَّبُوۡۤا اَوۡ تُقَطَّعَ اَیۡدِیۡہِمۡ وَ اَرۡجُلُہُمۡ مِّنۡ خِلَافٍ اَوۡ یُنۡفَوۡا مِنَ الۡاَرۡضِ 

“The reward of those who wage war against Allah and His Messenger and strive to create disorder in the land is [only this] that they be slain or crucified, or their hands and their feet be cut off on alternate sides, or they be expelled from the land.”

A detailed discussion specifically with regard to the punishment of rape in Islam demands great detail, which is not the scope of this article. Here, the focus remains on how the crime of rape is established in light of the teachings of Islam.

Establishing the crime of rape

A basic principle that is found in both Islamic jurisprudence and the laws of the land, is that due attention must be paid to protecting innocent people from false allegations. This means that allegations and claims are not acceptable unless there is valid proof and that the accused must be treated as innocent until proven guilty. This principle is synonymous with the following statement of the Holy Prophetsa

لَوْ يُعْطَى النَّاسُ بِدَعْوَاهُمْ لَادَّعَى رِجَالٌ أَمْوَالَ قَوْمٍ وَدِمَاءَهُمْ

“Were people to be given everything they claimed, they would not stop short of making claims on the blood and property of others.” (Bukhari and Muslim)

In light of the guidance given in this hadith, a serious calumny of rape or sexual assault will only be acceptable if proved through evidence that cannot be denied. According to scholars of Islamic jurisprudence, an allegation of rape can be established in three ways:

1. Establishing rape in the most definitive manner

The classical Islamic law defines ightiṣāb (rape) as a coercive form of zinā (adultery) and almost all scholars of Islamic jurisprudence agree that the allegation of rape can be proved in the most definitive manner in two ways: 

i. Through testimony of four witnesses – a limit prescribed in the Holy Quran for establishing zinā

ii. Through confession of guilt by the perpetrator 

According to fuqahā, if an allegation of rape is proved with this level of certainty, it would warrant a ḥadd punishment for the guilty – the strictest punishment prescribed by Islam. 

The famous eleventh-century Muslim scholar, Imam Ibn ʿAbd al-Barr has noted an ijmaaʿ(unanimous agreement of scholars) on this issue and states: 

وقد أجمع العلماء على أن على المستكرِه المغتصِب الحدَّ إن شهدت البينة عليه بما يوجب الحد ، أو أقر بذلك  فإن لم يكن فعليه العقوبة

“The scholars are in unanimous agreement that the rapist is to be subjected to the ḥadd punishment if there is bayyinah (four witnesses) against him, which would warrant the ḥadd punishment to be imposed. [The imposition of the ḥadd punishment would also apply] if the accused rapist admits to his crime himself. In a situation where the above two instances do not apply, then [according to the other evidence that may be brought against him] he would have to bear aqoobah [taʿzīr].” (Al Istidkar 146/7, Bidayah al-Mujtahid 221/4)

Here, Imam Ibn ʿAbd al-Barr has made a clear distinction between what warrants a punishment stipulated by Islamic law (ḥadd), and what warrants a discretionary punishment to be imposed. 

He states clearly that in a situation where four witnesses testify against the perpetrator, or the accused himself confesses the crime, the ḥadd punishment will be imposed. When these two aforementioned conditions are not met, then a second type of punishment may be imposed on the accused at the discretion of the court or judge. The latter is not stipulated by Islamic law; rather, it is determined according to circumstantial evidence that may be brought against the defendant; the purpose being to uphold justice and to deter any similar cases from occurring in the future.

In essence, all jurists, based on the Quranic injunction, agree that as zinā is performed consensually by both parties, it calls for the strictest requirement of four witnesses only. Whereas in the case of ightiṣāb, where the victim is coerced into performing the act, there appears to be a disagreement of opinion. While some schools maintain the strictest demand for four witnesses only, even in the case of rape (Ahmed Raza Khan Barelvi in Fatawa al-Radhawiyah, Vol. 13, p. 613, Fatwa no. 252, Kitab al-Hudood wa al-tazir; http://www.islamweb.net, search “fatwa no. 70220”, “Proving rape by modern medical means”, issued 1 May 2017, accessed 9 January 2022), the majority are inclined towards exploring all avenues of investigation described above, but only if four witnesses cannot be produced as primary evidence. 

2. Establishing rape if the victim becomes pregnant

In Islamic law, if a woman becomes pregnant while out of wedlock, she will be subjected to prosecution for adultery and punishment for the crime as proven. However, if such a woman denies committing adultery and claims that she was raped by someone, there is a disagreement among Muslim jurists whether her claim would be investigated or accepted without investigation. 

Most jurists of the Ḥanafī, Shāfiʿī and Ḥanbalī schools suggest that the excuse of such a woman would be accepted without investigation, and she would not be prosecuted or punished. However, Imam Mālikrh, the earliest Muslim jurist, gives his strong views on the issue and states that the excuse of such a woman would only be acceptable if she brings forth strong evidence supporting her claim. Such proof of rape can be shown by the bleeding caused by the incident if she was a virgin, or if she screams for help and is found by witnesses in a state that proves her ordeal. If she does not provide similar circumstantial evidence, then she is subjected to the stipulated punishment and her claims will be rejected. (Al-Muwatta, 5/1208)

This shows that even in cases where no perpetrator is accused of rape, whose innocence or guilt is under question, a very strong approach is taken in the verification of such claims. This only goes to show how seriously this crime is taken in Islam. 

3. Establishing rape through other forms of evidence

We shall now see if Islam permits the acceptance of evidence other than witnesses or not. It is alleged by the opponents of Islam that if a rape victim is not able to produce four witnesses to support her claim, she is subjected to strict ḥadd punishment for calumny (qadhf).

A very interesting incident in this regard can be found in the history of Islam, narrated by Imam Ibn Qayyim al-Jawziyya in his book Al-Turuq-ul-ukmiyyah.

During the Caliphate of Hazrat Umarra ibn al-Khattab, a woman became infatuated with a young man from Medina. But, despite her persistence in pursuing this man, he did not reciprocate her pining for a relationship.

Medina
Medina

Due to the young man’s refusal, she applied egg white to her garments and thighs before going to Hazrat Umarra claiming that she had been raped by the young man – exhibiting the stains on her garments as evidence against him. 

Hazrat Umarra referred her to some women to inspect her purported evidence. The women concluded that the stains appeared to be from seminal fluid. Upon this, Hazrat Umarra had intended to impose a punishment on the young man, but the young man denied such allegations and pleaded to Hazrat Umarra to further deliberate over his case and confirm the authenticity of the woman’s purported evidence. 

Hazrat Umarra then called upon Hazrat Alira to help in further investigating the claims. Hazrat Alira inspected her garments and poured hot water on the stains. The outcome cast doubt on the claim as the result was very similar to that of egg white. 

Hazrat Alira is said to have gone to the extent to have the result taste-tested before confirming that it was egg white that the woman had used as evidence to prove that she was raped. Upon this, Hazrat Alira strictly demanded her to speak the truth, which she eventually did. (Al-Turuq-ul-ukmiyyah fi al-Siyasat al-Shariʿah, Fasl fi suwari lil-hukam bil-firasah, p. 70)

The athaar (the sayings, actions and consent of the Companions of Prophet Muhammadsa) mentioned in Islamic history helps a reader to draw these important conclusions.

Firstly, in the absence of four witnesses, Hazrat Umarra and Hazrat Alira scrutinised the purported evidence. The procedure adopted clearly proves that although the testimony of witnesses or confession are the primary evidence to prove someone guilty or otherwise, the absence of preliminary types of evidence does not hinder further investigation of a serious crime like rape; nor is the woman subjected to ḥadd if she is not able to produce witnesses.

Secondly, Hazrat Umarra, after having viewed the evidence brought before him, did not make any mention of an Islamically stipulated punishment (ḥadd); rather, due to the absence of four witnesses in this case, the option of taʿzīr was considered which, as described above, is a discretionary punishment below the strictest Islamic punishment of ḥadd

Thirdly, we can ascertain the importance of scrutinising the authenticity of evidence in extreme detail. In cases where certain vile allegations are made, there needs to be firm contingencies in place that protect innocent people from calumnies such as rape.

Important note

The above is a theoretical debate based on Islamic jurisprudence and not advice for anyone to settle cases of such heinous crimes extra-judicially. The Ahmadiyya Muslim Community strongly believes that such criminal matters should be pursued through the law of the land.

(Content prepared and published under the responsibility of Al Hakam)

Reference

26 replies

  1. Let me ask our audience what would you think of DNA evidence in this day and age? Could DNA evidence be more powerful than the 4 witnesses, as the witnesses may lie but some of the DNA evidence can be very conclusive?

  2. The DNA plus other evidence such as circumstantial, etc., should be accepted in place of 4 witnesses, I think.

    Also, having 4 eye-witnesses in such cases would be next to nil as the perpetrator would definitely not be doing her act anywhere where it can be witnessed. Therefore, the condition of the girl/woman after alleged rape (injuries, etc.,), and the crime scene evidence, etc., plus DNA would end up being pretty conclusive.

    Those early Jurists have given their opinion without benefit of today’s scientific evidence.

  3. Hang on, a rape victim requires 4 witnesses to prove they have been raped?! I don’t even know where to begin. Utterly shameful.

  4. I agree with you AK. Your debate may be with other Muslims but not with me. I believe that the Quran in 7th century was merely teaching that use the best possible evidence.

    Now by taking the verse literally and denying DNA, video footage and other convincing evidence the medievalists with concrete thinking are merely setting up an intellectual and religious trap for themselves.

    So, here I may have to be with the agnostics and atheists rather than my fellow Muslim brothers and sisters.

  5. With respect, I don’t think any of you understand the realities of sexual assault. Sure, some involve strange men hiding in the bushes, jumping out on women, assaulting them and inflicting injuries. However, the majority of sexual assault are carried out by men known to the victims – husband, boyfriend, colleague, friend, ex partner…

    Some victims fight and there may be injuries (to either party) as a result, other victims freeze and are too frightened to fight. The perpetrators accept sexual contact happened, but claim it were consensual. It is literally one word against another. This is one reason (of many) why victims often don’t report, and why when they do, most rapists never end up in court, let alone get convicted.

    There are many ways in which we can try to tackle this epidemic of male violence against women, but one of the most fundamental is to challenge misogyny and sexism wherever we see it, including some nonsense that says a victim needs four witnesses to be believed.

    • Assalaamu ‘alaikum Dr Zia Shah Sahib,

      Many thanks for your reasoned and balanced view.

      The innocence of Yusuf a.s. [when he was accused of attempted rape, and he countered with an accusation (of sexual assault) of his own], was established by means of *circumstantial evidence* (i.e. his shirt torn from behind) as testified to by a single *expert/forensic witness*. Hence, those demanding four witnesses are doing so in violation of the Holy Qur’an.

      Further details are stated here:

      Sexual Assault

    • I agree, Ak.

      There is a dire need for fully and properly trained muslim women scholars who can relate to rape victims more easily than male scholars can, and they can help review and revise Islamic fiqh especially on matters pertaining to women to start off with.

      • Thanks for making that point – about having women scholars who would understand a rape victim’s mental and physical condition.

        Also, the rape victim would be more comfortable talking to a fellow woman than a man, etc.

        I totally agree this Zubair Ahmen sb.

  6. Indeed, sister raziya mohamedali, and if modest women prefer to go to female gynaecologists rather than males, then why should there not be muslim women scholars so that women can ask them on maters of fiqh related to women? It is to do with hayaa, i.e. modesty, a sense of shame.

    I wrote an article on such issues, which you might find to be of interest:

    Women’s Rights

    • Thoroughly enjoyed reading your very interesting and detailed post! Thank you for sharing these thoughts, as I believed I was a minority in such beliefs. Alhamdulillah, now I know, I am not!

      Btw, where does one leave a comment, there?

  7. Out of interest, what is the definition of a ‘modest’ or ‘immodest’ woman? These terms are themselves misogynistic. Women are people. They are humans with human rights. The idea that some women ‘bring it on themselves’ by wearing certain clothes or drinking alcohol is backward, misogynistic, and has no place in civilised society.

  8. Sorry for causing any confusion. What I meant to say is that some women would prefer to go to a female to discuss personal issues rather than do so with a man, out of shyness. Some women don’t care, as some men don’t care.

    Islam teaches hayaa (modesty, shyness) as being a part and parcel of faith, so I would take it that a large number of muslim women would rather go to a female doctor. Likewise, with regards to issues of fiqh, especially, but not solely, those related to women in particular, I would understand if women would prefer to ask women rather than men.

    This is what I meant to state. Once again, sorry for any ambiguity.

  9. Sorry, @Zubair Ahmed, I didn’t mean it as a comment against you directly. No need to apologise – I can see from your posts you have a lot of compassion and understanding around the sensitivities of this subject. It was more of a wider comment, I suppose, because I hear these terms a lot, and I feel labels like ‘modest’ and ‘immodest’ are unhelpful, because it can imply that a lack of so-called ‘modesty’ somehow makes the victim complicit in what happens to them, which they never are. The fault of rape is always solely on the rapist.

    I think, in the case of sexual assault, it is a matter of standard practice (where I live in the UK, anyway), for female victims to be dealt with solely by women. Police forces and local authorities have specialist sexual assault units for victims, where only women carry out examinations etc. I would hope this was the case everywhere, but I expect it’s not.

  10. That’s okay, Ak. This is a sensitive and delicate matter.

    I completely agree that the attire and/or demeanour of a victim of rape is not valid excuse to commit the evil crime of rape against her. Even if she were to consent to zina (fornication or adultery), a Muslim man is expected to walk away from her, as a Muslim woman should do if a man shows his willingness and desire for it. So, raping or sexually assaulting anyone should be unthinkable for a Muslim man or woman.

    We should also consider the reality that ‘monsters/wild beats’ with no scruples exist just about everywhere. Let’s use another analogy, and see how far it goes. Just as it is a punishable crime to trespass on someone else’s property, it is also unwise to leave an entry door to one’s house open or unlocked, as an opportunist thief on the prowl may just commit the crime of trespass as well as robbery.

    However, the excuse that the door was left open and supposedly ‘inviting’ an entry, should not be entertained in any court of law as a mitigating factor. Why then, when it comes to raped women, must we blame the victim, however unwary she might be, and not focus on blaming the wild beast for his evil? It is best for the women of the house to advise one another, in private, to take adequate precautions against wild beasts when going outside the home, not some ‘wild beasts’, or even otherwise decent men, mansplaining and mocking her for her supposed fault.

    These are my current thoughts on the issue, and I would welcome any constructive criticism.

  11. I agree, but personally, I would take issue with comparing women with un-locked property. Women are human beings with agency and human rights, who have autonomy to live their lives however they choose. There is no equivalent of an “un-locked” woman, regardless of what she is wearing or how she is behaving.

    Also, the trouble with the so-called “adequate precautions” that a woman should be taking is that everyone’s got a different opinion of what this means. Some people would say adequate precautions involve not going out alone, others would say alone is fine but not after dark; others might say she has to dress “modestly” (whatever that means); others would say a woman can do/ dress/ behave how she likes provided she is not harming anyone or breaking the law. Who is right? Who is the arbiter of how women should behave? I would argue that they’re all wrong simply because society has to stop telling women what to do, how to dress, how to behave (and I note, we don’t do this with men). It is unacceptable that the freedoms and opportunities of half the population should be curtailed because of the other half’s behaviour. Maybe it’s men who should take adequate precautions? A curfew, or a female guardian perhaps.

    The point is, everyone has plenty to say about what the victim is doing, but the victim is not at fault. To comment on the behaviour of the victim is victim blaming. Rapists are not monsters who cannot control their behaviour at the sight of a woman’s body. They’re perfectly able to control themselves; they just choose not to. As I’ve said in a previous post, most abusers are people we know – friends, boyfriends, husbands, colleagues – not the bogey-man hiding down a dark alleyway. This is a “men” problem that men need to fix, not women.

    I think we largely agree, and it’s good we can have these discussions on here.

  12. I personally think it is best for women to engage in such a discourse amongst themselves. However, since we have already begun:

    There is undisputed gender di-morphism, i.e. women and men have some physical differences, and these generally put women at a disadvantage with regards to being more vulnerable to assault. Taking precautions is not something to be dictated, as you are right, women have, and should be regarded as having, agency and rights as men do.

    My analogy to an open or unlocked door applied to men as well as to women. We all have some barriers to consensual relations. Breaking down any such barriers without regard to the express consent of the other party is wrong. Even if one takes issue with the analogy of ‘unlocked’ men or women, the door is still closed, and trespass is a crime.

    As regards modesty, laws keep changing. I think public nudity was a crime in the UK but no longer is, as far as I know. It was a crime for women as well as men. If a nudist went to work practising her or his ideology, there would be issues in the office, and understandably so. So, where does one draw the line? I would say that everyone ought to dress to a normal conventional standard in the presence of others, and anything over and above that is a matter of personal choice.

    I disagree with ‘imposing’ ‘extra’ clothing on women, as I have explained in the article on womens rights on my site. It is indeed a matter of personal choice. Nevertheless, until such time as men change into angelic human beings, if that will ever happen, the more vulnerable ones should be given adequate protection by those in authority, and they also ought to take their own realistic and ‘sensible precautions’.

    <>

    I am disturbed by the wrongs and injustices perpetrated by men against women over the centuries, but the majority of men are not likely to change into angels overnight. It is hoped that education and increasing awareness of these issues ought to make a difference.

    <>

    Indeed, and thanks to the muslim times.

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