Punishment for Rape in Islamic Law
February 15, 2007Rape is defined as:
1) n. the crime of sexual intercourse (with actual penetration of a woman’s vagina with the man’s penis) without consent and accomplished through force, threat of violence or intimidation (such as a threat to harm a woman’s child, husband or boyfriend).
The term “Forced intercourse” (الوطء بالإكراه) and its definition equate to this above modern definition.
Scholars of Islamic Law are in agreement that Rape is a crime deserving punishment. Whether or not that punishment is corporal or capital depends on the circumstances surrounding the case and the evidence presented against the rapist, as well as the discretion given the judge in meting out a tougher sentence.
In general, punishment for rape leads to both physical punishment of the offender as well as compensatory damages awarded to the victim.
Physical Punishment for Rape
With regards to physical punishment, if the offender was not previously married then his act is synonomous to fornication. Fornication, defined as the crime of illicit sexual intercourse commited before marriage, is punished with one hundred lashes and exile for one year (which in most modern cases is applied through a jail sentence).
The offender, if previously married (regardless of whether he was married at the time of the offense or not) deserves capital punishment for his crime. In this instance he is equated to an adulter and stoned to death.
Damages for Rape
As for compensatory or actual damages, the minimum that the offender can be fined is the amount equal to the Bride-purse (arabic Mahr مهر) of the victim. Actual damages are due for each instance of rape, so if a woman is raped repeatedly over a period of time then she is awarded damages for each instance of rape.
Additional Punishments and Damages
In light of the previous, it can be said that the minimum punishment for a rapist are the preceding punishments and fines. Additional physical punishments can be meted out; additional damages can be awarded as well. These are awarded or sentenced at the judges discretion, and can include but are not exclusive to: protection services, general and punitive damages, increased lashes or a variant additional punishment, and additional jail time. Capital punishment for first time offenders is even permitted if deemed necessary or as a detterent that will set a public example.
Such sentences and punishments are not seen as prescribed punishments (arabic: Hudud حدود) but instead are chastisements (arabic: Ta’zir تعزير). The difference between hadd and ta’zir is mainly is the area of discretion; a Hadd punishment is one that is prescribed in divinely dictated Islamic religious texts while a Ta’zir punishment is left up to the discretion of the Judge.
See Also: Capital punishment for a rape victim?
Informative post!
Can you please elaborate on the issue whether 4 witnesses are requird for a rape case? This is currently a very hot topic in Pakistan where the Govt has moved rape under Ta’azir and out from Hadd. So technically, under the new law, 4 witnesses are not required for a rape case.
Thanks…
Jazak Allah khair. However, doesn’t rape come under the category of hirabah because it is the use of violence or the threat of violence to extract some ‘property’ from the victim (in which there is a hudud applied) or is that only the case with particularly violent rapes?
Wa iyyak Amir
Rape can fall under Hirabah as a general category, i just wanted to address rape individually here.
Instances of date-rape and marital rape may differ, which is why I mentioned above that cases depend on their circumstances.
Sheepoo,
I heard a lot about the Pakistan Hudud Ordinance, but to tell you the truth never really looked into it much. if you have any links or info on it please share it.
http://z14.invisionfree.com/Shield_of_Islam/index.php?showtopic=1326&hl=
http://www.globalwebpost.com/farooqm/study_res/islam/fiqh/usmani_hudud.pdf
http://www.hudoodordinance.com/taqi-usmani-article-english.htm
these are articles written by Sh. Mufti Taqi Usmani, Hafidhahullah, related to the Hudud Ordinances. The first is more general and the second deals with more recent controversies. There is a video interview that he did on the issue as well, but it is in urdu.
Brother Hood,
There are quite e few links made available by other readers now; however, I wanted to get your opinion on whether a woman is supposed to produce four witnesses if rape (zina-bil-jabr) has been committed with her? It really seems that this is impossible to do so?
What does your research and knowledge say about this?
Thanks for sharing the knowledge. May Allah bless you for this…
To tell you the truth (and thanks to everyone that left a link) I haven’t had the time yet to read through the above.
All in all we can’t generalize to much as to what should be done to the rapist for punishment. This is something dictated by a court of law and the adjudication process. But in the end of the day, and like i said before this is without reading the above, there doesn’t not seem to be any precedent or any strong logic behind requiring a woman to produce 4 witnesses for rape.
This is what comes to mind concerning the issue. For information sake the court system here in Saudi Arabia does not require four witnesses, and I have not heard of any other Islamic court system in the world doing this other than Pakistan (although I may be wrong).
I hope that this helps.
Sh. Usmani has stated the following in his second article that I cited on the Hudud Ordinances:
“Now arises the question as to why there is so much insistence on abolishing the shara’i punishment for Zina bil Jabr? The reason for this is the extremely unjust propaganda which certain circles have been busily spreading ever since the Hudood ordinance was implemented. According to this (false) propaganda, if any rape victim intends to sue the offender under the Hudood ordinance, she must produce four witnesses to support her claim. If this condition is not met, she is arrested in place of the offender. This claim has been and is being repeated incessantly, such that even educated people have begun to consider it as true. In fact, it is precisely claim which was argued as justification (for the new bill) by our president during his speech.
Now if such propaganda is publicized so much so that even the children on the streets are talking about it, then those who speak out against will be perceived as insane. However, if anyone wishes to analyse the matter objectively, then I would request him to leave all of the propaganda aside for a moment, and consider the following points:
The fact of the matter is that I myself have been directly hearing cases registered under Hudood Ordinance, first as a Judge of Federal Shariah Court and then for 17 years as a member of Shariah Appellate Bench of the Supreme Court. In this long tenure, not once did I come across a case in which a rape victim was punished because she was unable to present four witnesses. It was in fact impossible precisely due to the Hudood Ordinance that this instance did not occur: as according to Hudood Ordinance the condition of four witnesses was necessary only to enforce the Shariah punishment (hadd). Yet at the same time clause 10(3) was included to award the taa’zeeri punishment when one did not have four witnesses. Instead, the crime could be proven through one witness, medical examination and a chemical analysis report. Consequently, most rape criminals were awarded punishment due to this clause.”
This part is particularly relevant:
“The fact of the matter is that I myself have been directly hearing cases registered under Hudood Ordinance, first as a Judge of Federal Shariah Court and then for 17 years as a member of Shariah Appellate Bench of the Supreme Court. In this long tenure, not once did I come across a case in which a rape victim was punished because she was unable to present four witnesses.”
Thanks IS, this following paragraph however is troubling:
Mufti Taqi stating
“Clause no. 3, Exemption no. 2 clearly states that if someone approaches the legal authorities with a rape complaint, she cannot be punished in case she is unable to present 4 witnesses.”
He then says:
“No court of law can be in its right mind to award such a punishment”
His statement of personal discretion and application is one thing, and the letter of the law is another.
Clause no.3 ex. no.2 does seem to necessitate that 4 witnesses are needed.
I can’t really comment too much on the issue as I haven’t read up on Pakistani Law, but from a very theoretical standpoint the issue and how it is being dealt with is problematic (on both sides).
JazakAllah khair, your discussion was helpful in my research on this matter. I have a question though, what happens when a woman claims rape, and it is only her words against his. There is no physical evidence neither do circumstancial evidence goes against him. Then what happens? (I am not making this situation up, it actually happened)
Is she to be punished or is there supposed to be strong evidence that she was lying?
[...] of Islamic Hudood laws (capital punishment) with regards to rape and adultery: here, here and here. An important read for Muslim activists who have to deal with the wrath of the media and [...]
Umm Reem,
Its up to the Judge, the laws of slander may apply.
salam alaikum,
I’m an American lawyer and having no knowledge of the application of Islamic law, I’d like to hear you chime in on how Shariah courts tackle the hurdle of distinguishing between rape and consensual sex.
In America it almost always boils down to her word against his, especially in cases of date-rape. DNA samples, soreness, bruising, and other typical forms of medical evidence only prove that sex occurred, it does NOT prove rape. Same goes for the kinds of evidence Taqi Usmani cites above to indicate application of a ta’zir punishment - it only proves sex in my opinion, not rape.
In a shariah court, if a woman accuses a man of rape, and the man claims it was consensual fornication and both should be lashed 100 times, what is her defense?
and if she has no defense, doesn’t this create a hurdle to reporting claims of rape the same way fear of punishment for slander would?