Rape in Islamic law (Sharia) is a violation of moral and divine law. Islam divides claims of sexual violation into 'divine rights' (huquq Allah) and 'interpersonal rights' (huquq al-'ibad): the former requiring divine punishment (hadd penalties) and the latter belonging to the more flexible human realm.
Rape can be defined as: "Forcible illegal sexual intercourse by a man with a woman who is not legally married to him, without her free will and consent". The terms ghasaba and ightasaba have been used by traditional jurists when discussing sexual assault and its punishment. Most jurists hold that rape is committing zinā by force, hence rape is known as zinā bī al-ikrāh (). Al-Shāfi'ī defined rape as: "Forcing a woman to commit zinā against her will". To the Hanafis, illegal intercourse is considered rape when there is no consent and no deliberate action from the victim. In the Māliki view, rape refers to any kind of unlawful sexual intercourse (zina) by usurpation and without consent. This includes instances when the condition of the victims prevents them from expressing their resistance, such as insanity and sleep. The Hanbalites, similar to the Mālikites, consider the use of any kind of force as a denial of consent from the victim. The threat of starvation or suffering the cold of winter are also regarded as against one's will. However, distinctions were made between rape and Zina (adultery).
In the case of rape, the adult male perpetrator (i.e. rapist) of such an act is to receive the ḥadd zinā, but the non-consenting or invalidly consenting female (i.e. rape victim) is to be regarded as innocent of zinā and relieved of the ḥadd punishment. According to Professor Oliver Leaman, the required testimony of four male witnesses having witnessed the actual penetration applies to illicit sexual relations (i.e. adultery and fornication), not to rape.Rape charges can be brought and a case proven, based on the sole testimony of the victim, providing that circumstantial evidence supports the allegations. ..... It (requirements for proof of rape as zina) happens either due to misinterpretation of the intricacies of the Sharia laws governing these matters, or cultural traditions; or due to corruption and blatant disregard of the law, or indeed some combination of these phenomena.
In Islamic fiqh rape is also called Zina Al-Zibr or Ightisab. According to some interpretations it falls under the rules of hirabah (piracy or unlawful warfare). Classical Islamic law (Shari'a) regarded the crime of sexual violation as a coercive zina, and therefore a hudud offence.
Islamic sources An incident during the time of the Islamic prophet Muhammad formed the basis of later jurisprudence of rape:
Traditional fiqh The terms ghasaba and ightasaba have been used by traditional jurists when discussing sexual assault and its punishment. Most jurists hold that rape is committing zinā by force, hence rape is known as zinā bī al-ikrāh (). Al-Shāfi'ī defined rape as: "Forcing a woman to commit zinā against her will". To the Ḥanafis, illegal intercourse is considered rape when there is no consent and no deliberate action from the victim. In Mālik's view, rape refers to any kind of unlawful sexual intercourse (zina) by usurpation and without consent. This includes instances when the condition of the victims prevents them from expressing their resistance, such as insanity, sleep or being under age. The Hanbalites, similar to the Mālikites, consider the use of any kind of force as a denial of consent from the victim. The threat of starvation or suffering the cold of winter are also regarded as against one's will.
Rape is considered a crime in Islam. In Islam, rape is called Zina Al-Zibr or Ightisab, and it falls under the rules of Hirabah. Classical Islamic law (Shari'a) regarded the crime of sexual violation as a coercive zina, and therefore a hadd offence. There is a lack of recognition of marital rape among certain jurists and scholars.
Jurists agree that a woman who has been subject to force and raped is not liable to any punishment.
Analogy to adultery Classical Islamic law defined what today is commonly called "rape" as a coercive form of fornication or adultery (zina).
This basic definition of rape as "coercive zināʾ" meant that all the normal legal principles that pertained to zināʾits definition, punishment, and establishment through evidencewere also applicable to rape; the prototypical act of zināʾ was defined as sexual intercourse between a man and a woman over whom the man has neither a conjugal nor an ownership right.
What distinguished a prototypical act of zināʾ from an act of rape, for the jurists, was that in the prototypical case, both parties act out of their own volition, while in an act of rape, only one of the parties does so. Jurists admitted a wide array of situations as being "coercive" in nature, including the application of physical force, the presence of duress, or the threat of future harm either to oneself or those close to oneself; they also included in their definition of "coercion" the inability to give valid consent, as in the case of minors, or mentally ill or unconscious persons. Muslim jurists from the earliest period of Islamic law agreed that perpetrators of coercive zināʾ should receive the ḥadd punishment normally applicable to their personal status and sexual status, but that the ḥadd punishment should not be applied to victims of coercive or nonconsensual zināʾ due to their reduced capacity.
The crime of rape, according to Sunni Ḥanafī and Mālikī jurists, is as an act of zinā. If the consent was granted under coercion or in a defective legal capacity such as by a mentally impaired person, it is considered non-consent or invalid consent.
Analogy with hirabah The inclusion of rape within the purview of hirabah has had support throughout Islamic history.
The medieval Zahiri jurist Ibn Hazm defined hirabah as,'One who puts people in fear on the road, whether or not with a weapon, at night or day, in urban areas or in open spaces, in the palace of a caliph or a mosque, with or without accomplices, in the desert or in the village, in a large or small city, with one or more people… making people fear that they'll be killed, or have money taken, or be raped (hatk al 'arad)… whether the attackers are one or many.'Webb, Gisella - Windows of Faith: Muslim Women Scholar-Activists in North America p.130
It had significant support from the Maliki jurists.Al-Dasuqi, for example, a Maliki jurist, held that if a person forced a woman to have sex, his actions would be deemed committing hiraba.
In addition, the Maliki judge Ibn 'Arabi, relates a story in which a group was attacked and a woman in their party raped. Responding to the argument that the crime did not constitute hiraba because no money was taken and no weapons used, Ibn 'Arabi replied indignantly that "hirabah with the private parts" is much worse than hiraba involving the taking of money, and that anyone would rather be subjected to the latter than the former.
In the Hanafi school of law, the term zina is taken to refer to illegal sexual intercourse, where rape is distinguished as zina bil jabr to indicate its forced and non-consensual nature whereas fornication and adultery fit zina bil ridha, which indicates consent. Though the terminology uses the term zina, nonetheless, they are two categorically different crimes as rape is treated as a tazeer (discretionary) crime by the judge and prosecuted based on circumstantial evidence (medical evidence, any number of witnesses, and other forensic evidence). It is fornication and adultery by mutual consent, or zina bil ridha, which retain their classical hadd punishments from the Qur'an and sunnah provided there are four witnesses (absent which they too default to tazeer, subject to discretionary punishments such as fining, imprisonment, or lashes). Nonetheless, gang rape or public rape, such as the sort that occurs during war, is still traditionally considered hirabah as that is more in line with its classical definition as a war crime or crime against civilization and society.Muhammad Taqi Usmani - The Islamization of Laws in Pakistan: The Case of Hudud Ordinances
Prosecution of rape Caliph Umar accepted the testimony of a single individual who heard the rape victim call for help as evidence that rape occurred. Imam Malik accepted physical injuries on the victim as evidence that rape occurred. If a woman claims to have been raped or sexually abused under duress, she will be acquitted of adultery in light of Qur'anic verse 24:33, which states that a woman has not sinned when compelled to commit this crime.
According to Professor Oliver Leaman, the required testimony of four male witnesses who eyewitnessed the actual penetration applies only to consensual illicit sexual relations (whether adultery or fornication), not to the non-consensual crime of rape. The role of the four male witnesses is to testify that they eyewitnessed not only an illicit sexual encounter, but to testify also that the participants consensually partook in it.
The requirements for proof of rape, by contrast, are less stringent, and do not require any extraneous witness testimony, eyewitness or otherwise:
Rape charges can be brought and a case proven based on the sole testimony of the victim, providing that circumstantial evidence supports the allegations. It is these strict criteria of proof which lead to the frequent observation that where injustice against women does occur, it is not because of Islamic law. It happens either due to misinterpretation of the intricacies of the Sharia laws governing these matters, or cultural traditions; or due to corruption and blatant disregard of the law, or indeed some combination of these phenomena.
Punishment Classical jurisprudence, regards sexual violation as a violation of moral and divine law, divides claims of sexual violation into 'divine rights' (huquq Allah) and 'interpersonal rights' (huquq al-'ibad): while the former requiring divine punishment (hadd penalties) and the latter belonging to the more flexible human realm.
Rape is punishable in some circumstances by the ḥadd of zinā as well as in some circumstances by the ḥadd of ḥirābah and it is also complemented by ta'zīr. Muslim jurists agreed that the punishment would not be averted even if the perpetrator claimed to be ignorant of the law. This is because of the immorality of the crime of rape and the severe harm it causes the victim.
Punishment as zinā Most classical scholars argued for applying the ḥadd penalty for zinā to a convicted rapist, which is stoning to death for the married (muḥsān), or a flogging of 100 lashes and deportation for the unmarried (ghair-muḥsān). They base their argument on a hadith which reports a rape case at the time of the Prophet, where the victim was excused and her rapist (who was married) was sentenced to be stoned to death.,
Punishment as Ḥirābah Certain classical jurists (Al-Tabari and the Maliki Ibn al-'Arabi) and more modern interpretations (The Religious Council of Egypt among others) have classified the crime of rape not as a subcategory of zinā, but rather a different crime of violence under hirabah (banditary), i.e. a violent crime causing disorder in the land in the manner described in the Qur'an (5:33) as 'fasad' (destructive mischief). A similar crime, for example, would be highway robbery, as it puts fear in people going out or losing their property through violence. Thus, the rapist will be considered to be under the category of people who are outlaws and a danger towards the peace and security of the society.
Punishment as Ta'zīr