Rape in Islamic Law: Difference between revisions
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Rape is a crime of violence, Hiraba, a hadd crime defined in the Quran. Hiraba is variously translated as "forcible taking," "highway robbery," "terrorism," or "waging war against the state." | |||
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# the unlawful compelling of a person through physical force or duress to have sexual intercourse.}} | # the unlawful compelling of a person through physical force or duress to have sexual intercourse.}} | ||
The inclusion of rape within the purview of ''hirabah'' has support throughout Islamic history. | |||
The medieval [[Zahiri]] jurist [[Ibn Hazm]] defined ''hirabah'' as, | |||
<blockquote>‘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.'<ref name="Webb p.130">Webb, Gisella - ''Windows of Faith: Muslim Women Scholar-Activists in North America'' p.130</ref></blockquote> | |||
It had significant support from the [[Maliki]] jurists. | |||
<blockquote>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 [[Abu Bakr ibn al-Arabi|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.<ref name="Webb p.130"/></blockquote> | |||
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). In other words, very similar to how it is treated in contemporary Western law. 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). However, gang rape or public rape, such as the sort which 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.<ref>Muhammad Taqi Usmani - [http://globalwebpost.com/farooqm/study_res/islam/fiqh/usmani_hudud.pdf The Islamization of Laws in Pakistan: The Case of Hudud Ordinances]</ref> | |||
A related crime is [[Mofsed-e-filarz|Mofsede-fel-arz]], which is "spreading corruption on the earth", which can be applied for armed robbers, kidnappers, and rapists. | |||
====Duress==== | ====Duress==== | ||