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Source of article: Al Hakam
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 taʿzīr. Qiṣāṣ need not be discussed as it is not a prescribed punishment in Islam for crimes like rape.
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.
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)
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-Ḥukmiyyah.
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.
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-Ḥukmiyyah 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.
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.
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Categories: Collection of articles, Law, Law and Religion, Law Enforcement, Quran, Secularism, Sharia, Sharia Law, Shariah Law, The Muslim Times
This all sounds horribly misogynistic. All these hoops victims have to jump through; all these conditions imposed on them. Four witnesses!? Give me strength!
“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.””
What if she is married to him? Is this suggesting that in Islam, a man can force himself on his wife and this is not rape?!
AK please read some of my articles, I linked at the bottom of this post. For starters:
Reason or Orthodoxy: Which One Should Rule?
Demystifying Prophethood, Theocracy, Democracy and Dictatorship
‘Islamic Law’: A Myopic Reading of the Quran
Thanks, but they don’t answer my question. What about marital rape?