What is the Punishment of Rape crime in Islam?

 

Praise be to Allah.

The Arabic word ightisaab refers to taking something wrongfully by force. It is now used exclusively to refer to transgression against the honor of women by force (rape).

This is an abhorrent crime that is forbidden in all religions and in the minds of all wise people and those who are possessed of sound human nature. All earthly systems and laws regard this action as abhorrent and impose the strictest penalties on it, except a few states which waive the punishment if the rapist marries his victim! This is indicative of a distorted mind let alone a lack of religious commitment on the part of those who challenge Allah in making laws. We do not know of any love or compassion that could exist between the aggressor and his victim, especially since the pain of rape cannot be erased with the passage of time – as it is said. Hence many victims of rape have attempted to commit suicide and many of them have succeeded, The failure of these marriages is proven and they are accompanied by nothing but humiliation and suffering for the woman.

Islam has a clear stance which states that this repugnant action is haraam and imposes a deterrent punishment on the one who commits it.

Islam closes the door to the criminal who wants to commit this crime. Western studies have shown that most rapists are already criminals who commit their crimes under the influence of alcohol and drugs, and they take advantage of the fact that their victims are walking alone in isolated places, or staying in the house alone. These studies also show that what the criminals watch on the media and the semi-naked styles of dress in which women go out, also lead to the commission of this reprehensible crime.

The laws of Islam came to protect women’s honor and modesty. Islam forbids women to wear clothes that are not modest and to travel without a mahram; it forbids a woman to shake hands with a non-mahram man. Islam encourages young men and women to marry early, and many other rulings which close the door to rape. Hence it comes as no surprise when we hear or read that most of these crimes occur in permissive societies which are looked up to by some Muslims as examples of civilization and refinement! In America – for example – International Amnesty stated in a 2004 report entitled “Stop Violence Against Women” that every 90 seconds a woman was raped during that year. What kind of life are these people living? What refinement and civilization do they want the Muslim women to take part in?

The punishment for rape in Islam is same as the punishment for zina, which is stoning if the perpetrator is married, and one hundred lashes and banishment for one year if he is not married. Some scholars also say that he is required to pay a mahr to the woman.

Imam Malik (may Allah have mercy on him) said:

In our view the man who rapes a woman, whether she is a virgin or not, if she is a free woman he must pay a “dowry” like that of her peers, and if she is a slave he must pay whatever has been detracted from her value. The punishment is to be carried out on the rapist and there is no punishment for the woman who has been raped, whatever the case. End quote.  [Al-Muwatta’, 2/734]

Abu Haneefah and al-Thawri said: the hadd punishment is to be carried out on him but he is not obliged to pay the “dowry”.

The evidence for what we say is that the hadd punishment and the “dowry” are two rights, one of which is the right of Allaah and the other is the right of the other person. So they may be combined, as in the case of a thief whose hand is cut off and he is required to return the stolen goods. End quote. [Al-Muntaha Sharh al-Muwatta’, 5/268, 269]

Ibn ‘Abd al-Barr (may Allaah have mercy on him) said: 

The scholars are unanimously agreed that the rapist is to be subjected to the hadd punishment if there is clear evidence against him that he deserves the hadd punishment, or if he admits to that. Otherwise, he is to be punished (i.e., if there is no proof that the hadd punishment for zina may be carried out against him because he does not confess, and there are not four witnesses, then the judge may punish him and stipulate a punishment that will deter him and others like him). There is no punishment for the woman if it is true that he forced her and overpowered her, which may be proven by her screaming and shouting for help. End quote. [Al-Istidhkaar, 7/146]

Rape is essentially zina (fornication or adultery) and is proven in the same way as zina is proven, which is with four witnesses. The punishment is one hundred lashes if the man was a virgin and stoning if he was previously married.

If rape is committed using the threat of a weapon or if the woman is abducted forcefully from her home, then it becomes a case of haraabah (banditry or terrorizing the people), which is proven with two witnesses only. The punishment for it is mentioned in the verse in which Allah says (interpretation of the meaning):

“The recompense of those who wage war against Allah and His Messenger and do mischief in the land is only that they shall be killed or crucified or their hands and their feet be cut off on the opposite sides, or be exiled from the land. That is their disgrace in this world, and a great torment is theirs in the Hereafter” [al-Maa’idah 5:33]

So the judge has the choice of the four punishments mentioned in this verse, and may choose whichever he thinks is most suitable to attain the objective, which is to spread peace and security in society, and ward off evildoers and aggressors. It should be noted that he becomes subject to this hadd punishment merely by abducting the woman forcefully, regardless of whether he has his way with her or not.

Merely by abducting her he comes under the ruling of “qaati‘ at-tareeq” (lit. bandit); if he commits zina with her (rapes her), that his crime becomes more abhorrent because he has then combined two crimes: zina and haraabah. 

Secondly:

The accusations made by non-Muslims against Muslims, saying that the man’s word is given precedence and that the woman cannot prove that she was raped, and that the man will get away with his action, is not correct.

But one of the basic principles of both shari’ah (Islamic law) and man-made law, to which attention must be paid, is that the accused is innocent until proven guilty and the claim of the claimant – whether man or woman – cannot be accepted unless there is proof that it is valid. Hence the Prophet (blessings and peace of Allah be upon him) said: “If people were given on the basis of their claims, people would make claims on the blood and property of others. Rather the oath should be sworn by the defendant.” [Narrated by al-Bukhaari, 4277; Muslim, 1711]

An-Nawawi (may Allah have mercy on him) said:

This hadeeth represents one of the most important principles of shar‘i rulings: it shows that no person’s word can be accepted merely on the basis of his claim; rather there is a need for evidence or confirmation from the defendant, and if the claimant wants to ask the defendant to swear an oath, he has the right to ask for that.

The Prophet (blessings and peace of Allah be upon him) demonstrated the wisdom behind not giving on the basis of a mere claim, because if it were to be given on that basis, then some people would make claims on the blood and wealth of others, and would regard that as permissible, and the defendant would not be able to protect his wealth or blood. As for the claimant, he can protect his wealth and blood by means of proof. [Sharh Muslim, 12/3]

If the field were open for every woman to make claims of rape, the prisons would be filled to bursting with the men accused by those women, and they would not be able to prove their innocence. The matter is not so random that any woman’s claim may be taken as being true and certain, otherwise a woman could make a claim against her former lover in order to take revenge on him! Or she could make claims against rich and famous people and blackmail them, or against her father and brothers so as to escape their guardianship and authority. And these are things that would lead to the collapse of society.

Thirdly:

A woman’s claim to have been forced into zina can only be accepted on the basis of proof or strong circumstantial evidence. If there is no such evidence, then the hadd punishment is to be carried out on her as it is carried out on the zaani (the man who committed fornication or adultery).

Ibn ‘Abd al-Barr (may Allah have mercy on him) said:

“She is not to be punished if it is proven that he forced her and overpowered her. That may be known from her having screamed and shouted for help.” [Al-Istidhkaar, 7/146]

Fourthly:

The presence of the man’s semen on the woman does not prove that rape has taken place. That may have happened with her consent, in which case she is as deserving punishment as he is. It may be that she is claiming that he raped her because of an argument between them, so that he will be punished or in order to blackmail him. So this is not proof that the crime of rape has taken place, nor is it proof that the crime of zina has taken place. It is possible that no real intercourse took place, but the semen entered her vagina or she put it there herself. The possibilities are many and according to shari‘ah, hadd punishments cannot be imposed on the basis of possibilities; rather it must be on the basis of proof. The results of DNA testing may be mistaken, or samples may be switched or the results may be falsified, so they cannot be taken as shar‘i evidence on the basis of which hadd punishments are carried out.

In the answer to question no. 103410 we quoted a statement from the Islamic Fiqh Council of the Muslim World League on the issue of DNA and ways of benefitting from it, in which it said:

Firstly: there is no shar‘i prohibition on relying on DNA in criminal investigations and regarding it as a means of proving evidence in crimes for which there is no hadd punishment or qisaas (retaliatory punishment) prescribed in Islam, because of the report which says, “Ward off hadd punishments by means of doubts (i.e., do not carry out hadd punishments if there is any doubt).” That is so as to achieve justice and security in society; it leads to the criminal getting the punishment he deserves and proving the innocence of the innocent. This is an important aim of shari‘ah. End quote.

This statement indicates that the hadd punishment may not be applied to the accused if the evidence that is specified in shari‘ah in order for the crime to be proven is not available. But there may be strong circumstantial evidence to prove the case against the accused.

In this case the judge may punish the accused with a disciplinary punishment (ta‘zeer) as he sees fit. Then the accused (once he is proven guilty by circumstantial evidence) will not escape punishment.

Even if this criminal is saved from punishment in this world, that is not due to a shortcoming in shari‘ah. It may be because there is not sufficient evidence or it may be because of shortcomings on the part of the judge or because he is not sufficiently qualified… and so on.

Moreover, there is the punishment of the Hereafter that awaits him if he does not repent from his crime or if Allah does not forgive him.

And Allah knows best.

Source: Islamqa and others.