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{{QualityScore|Lead=4|Structure=4|Content=4|Language=4|References=4}}Rape, known in [[Islamic law]] as ''zina bil-ikrah'' or ''zina bil-jabr'' (literally "[[Zina|fornication]] by force"), is a punishable crime generally defined by Muslim jurists as forced intercourse by a man with a [[Islam and Women|woman]] who is not his wife or [[Slavery|slave]] and without her consent. There was no concept of consent in Islamic law with regard either to a man's wives or slaves, though they could bring a legal complaint if physical injury was suffered. A small number of hadiths were cited by scholars to support the Islamic punishments for rape. These narrations relate to the rape of free women and of female slaves who are not owned by the perpetrator. However, the Qur'an, on numerous occasions, permits Muslim men to have sexual relations with their own female slaves (famously referred to as "what your right hands possess"), often in conjunction with the commandment for men to keep otherwise chaste. In addition, there are hadith narrations of an incident in which Muhammad's companions were permitted to have sex with female war captives prior to them being ransomed back to their tribe, while various other hadiths mention the sexual intercourse which slave owners (including Muhammad) had with their slaves. | {{QualityScore|Lead=4|Structure=4|Content=4|Language=4|References=4}}Rape, known in [[Islamic law]] as ''zina bil-ikrah'' or ''zina bil-jabr'' (literally "[[Zina|fornication]] by force"), is a punishable crime generally defined by Muslim jurists as forced intercourse by a man with a [[Islam and Women|woman]] who is not his wife or [[Slavery|slave]] and without her consent. There was no concept of consent in Islamic law with regard either to a man's wives or slaves, though they could bring a legal complaint if physical injury was suffered. A small number of hadiths were cited by scholars to support the Islamic punishments for rape. These narrations relate to the rape of free women and of female slaves who are not owned by the perpetrator. However, the Qur'an, on numerous occasions, permits Muslim men to have sexual relations with their own female slaves (famously referred to as "what your right hands possess"), often in conjunction with the commandment for men to keep otherwise chaste. In addition, there are hadith narrations of an incident in which Muhammad's companions were permitted to have sex with female war captives prior to them being ransomed back to their tribe, while various other hadiths mention the sexual intercourse which slave owners (including Muhammad) had with their slaves. | ||
Many Islamic empires in the past have taken non-Muslims as slaves and sex slaves (see [[Slavery in Islamic Law]]). It is important to note, however, that slavery was legally abolished in majority Muslim countries around the world in the 19th and 20th centuries (though persists illegally in a few places such as Mauritania<ref name="Mauritania" />). It is also now considered forbidden in the modern context by most scholars, though a minority, such as Saudi Sheikh Saleh Al-Fawzan, argue that slavery remains Islamically legitimate. Similarly, today many Muslim-majority countries have made marital rape illegal or offer other legal protections, though others (mainly in the Arab world) do not do so, often explicitly, as also some non-Muslim countries.<ref>As of the early 2020s, marital rape is not recognised as a crime in many Muslim-majority countries, nor in India, China, Myanmar, much of the Caribbean, and much of sub-Saharan Africa, though is illegal in Indonesia, Turkey, the Balkans, most of central Asia, and much of west Africa. See the detailed information in the Wikipedia article [[w:Marital rape laws by country|Marital rape laws by country]], though note that in some cases the colour-coded map is inaccurate. A lack of legal protection in some countries and / or attitudes which refuse to accept the concept of marital rape exacerbates the predicament of millions of women suffering [[Forced Marriage]] in certain regions of the world.</ref> | Many Islamic empires in the past have taken non-Muslims as slaves and sex slaves (see [[Slavery in Islamic Law]]). It is important to note, however, that slavery was legally abolished in majority Muslim countries around the world in the 19th and 20th centuries (though persists illegally in a few places such as Mauritania<ref name="Mauritania" />). It is also now considered forbidden in the modern context by most scholars, though a minority, such as Saudi Sheikh Saleh Al-Fawzan, argue that slavery remains Islamically legitimate. Similarly, today many Muslim-majority countries have made marital rape illegal or offer other legal protections, though others (mainly in the Arab world) do not do so, often explicitly, as also some non-Muslim countries.<ref>As of the early 2020s, marital rape is not recognised as a crime in many Muslim-majority countries, nor in India, China, Myanmar, much of the Caribbean, and much of sub-Saharan Africa, though is illegal in Indonesia, Turkey, the Balkans, most of central Asia, and much of west Africa. See the detailed information in the Wikipedia article [[w:Marital rape laws by country|Marital rape laws by country]], though note that in some cases the colour-coded map is inaccurate. A lack of legal protection in some countries and / or attitudes which refuse to accept the concept of marital rape exacerbates the predicament of millions of women suffering [[Forced Marriage]] in certain regions of the world.</ref> Human rights groups are also concerned about the risks faced by women reporting rape in some countries where [[Zina]] (illicit sexual intercourse) is a punishable offence, as detailed below. | ||
Typically, apologetic approaches to the issue of slaves and concubines propose that the women mentioned in the Quran and hadiths consented to intercourse with their captors and to their enslavement lest they be left destitute since their men had been killed. Critics generally argue that this is highly improbable, point out a hadith in which raped captives were due to be ransomed back to their tribe, and in any case would be incompatible with the modern understanding of consent which could not validly be given in captive circumstances. Some Islamic modernist scholars question the authenticity of the relevant hadiths altogether, in line with their general skepticism towards the hadith corpus and rejection of traditional jurisprudence, and attempt alternative interpretations of the Quranic verses. | Typically, apologetic approaches to the issue of slaves and concubines propose that the women mentioned in the Quran and hadiths consented to intercourse with their captors and to their enslavement lest they be left destitute since their men had been killed. Critics generally argue that this is highly improbable, point out a hadith in which raped captives were due to be ransomed back to their tribe, and in any case would be incompatible with the modern understanding of consent which could not validly be given in captive circumstances. Some Islamic modernist scholars question the authenticity of the relevant hadiths altogether, in line with their general skepticism towards the hadith corpus and rejection of traditional jurisprudence, and attempt alternative interpretations of the Quranic verses. | ||
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By the end of the formative period of Islamic law, there was a consensus that rape was to be categorised as a variant of [[Zina]] (fornication, or unlawful intercourse) in which the coerced woman is spared punishment and the male rapist is punished with the [[w:hadd|hadd]] penalty.<ref name="HinaAzam">Hina Azam [http://www.jstor.org/stable/23645194 RAPE AS A VARIANT OF FORNICATION (ZINĀ) IN ISLAMIC LAW: AN EXAMINATION OF THE EARLY LEGAL REPORTS], Journal of Law and Religion, vol. 28, no. 2, 2012, pp. 441–66</ref> This penalty is [[stoning|stoning to death]] (if he is [[Marriage|married]]) or lashings (if he is unmarried) - just as he would receive for ordinary zina. Four reliable muslim male witnesses (bayyinah) or a confession by the perpetrator are required in order to punish the rapist.<ref name="Al Hakam 2022">{{cite web | title=Rape in Islamic law: Establishing the crime and upholding the rights of the innocent | website=Al Hakam | date=23 January 2022 | url=https://www.alhakam.org/rape-in-islam/ | access-date=2 January 2023}}</ref><ref>{{Cite book|first=R. |last= Peters | year= 2012 | title=Encyclopaedia of Islam | edition= 2nd|publisher=Brill |editor=P. Bearman |editor2=Th. Bianquis |editor3=C.E. Bosworth |editor4=E. van Donzel |editor5=W.P. Heinrichs|chapter=Zinā or Zināʾ}}</ref> Jurists agreed that there is no punishment for the rape victim. Her word that she was raped is accepted if there is no named perpetrator. If she does name the alleged rapist but is unable to prove the allegation, the Maliki school held the woman liable to receive the hadd penalty of 80 lashes for slander (qadhf), though the judge may spare her this punishment if there is some circumstancial evidence in support of her allegation. Maliki jurists even held that a woman must be punished with the hadd penalty for fornication (zina) if she falls pregnant while unmarried even if she says she was raped, though she is spared punishment if there is evidence of coercion from her physical state or a witness heard her cry for help. In contrast, for the Hanafi school it was enough to avoid punishment if she simply says that she was raped. Hanafis stated that pregnancy of an unmarried woman is not proof of zina, pointing to the principle that hadd punishments are not applied if there is any doubt.<ref>Position paper by Karamah (Muslim Women Lawyers for Human Rights) [https://karamah.org/zina-rape-and-islamic-law-an-islamic-legal-analysis-of-the-rape-laws-in-pakistan/ Zina, Rape, and Islamic Law: An Islamic Legal Analysis of the Rape Laws in Pakistan](2011)</ref><ref>See the 2nd of the two hadiths here regarding Imam Malik's view: {{Muwatta|41||16}}</ref> | By the end of the formative period of Islamic law, there was a consensus that rape was to be categorised as a variant of [[Zina]] (fornication, or unlawful intercourse) in which the coerced woman is spared punishment and the male rapist is punished with the [[w:hadd|hadd]] penalty.<ref name="HinaAzam">Hina Azam [http://www.jstor.org/stable/23645194 RAPE AS A VARIANT OF FORNICATION (ZINĀ) IN ISLAMIC LAW: AN EXAMINATION OF THE EARLY LEGAL REPORTS], Journal of Law and Religion, vol. 28, no. 2, 2012, pp. 441–66</ref> This penalty is [[stoning|stoning to death]] (if he is [[Marriage|married]]) or lashings (if he is unmarried) - just as he would receive for ordinary zina. Four reliable muslim male witnesses (bayyinah) or a confession by the perpetrator are required in order to punish the rapist.<ref name="Al Hakam 2022">{{cite web | title=Rape in Islamic law: Establishing the crime and upholding the rights of the innocent | website=Al Hakam | date=23 January 2022 | url=https://www.alhakam.org/rape-in-islam/ | access-date=2 January 2023}}</ref><ref>{{Cite book|first=R. |last= Peters | year= 2012 | title=Encyclopaedia of Islam | edition= 2nd|publisher=Brill |editor=P. Bearman |editor2=Th. Bianquis |editor3=C.E. Bosworth |editor4=E. van Donzel |editor5=W.P. Heinrichs|chapter=Zinā or Zināʾ}}</ref> Jurists agreed that there is no punishment for the rape victim. Her word that she was raped is accepted if there is no named perpetrator. If she does name the alleged rapist but is unable to prove the allegation, the Maliki school held the woman liable to receive the hadd penalty of 80 lashes for slander (qadhf), though the judge may spare her this punishment if there is some circumstancial evidence in support of her allegation. Maliki jurists even held that a woman must be punished with the hadd penalty for fornication (zina) if she falls pregnant while unmarried even if she says she was raped, though she is spared punishment if there is evidence of coercion from her physical state or a witness heard her cry for help. In contrast, for the Hanafi school it was enough to avoid punishment if she simply says that she was raped. Hanafis stated that pregnancy of an unmarried woman is not proof of zina, pointing to the principle that hadd punishments are not applied if there is any doubt.<ref>Position paper by Karamah (Muslim Women Lawyers for Human Rights) [https://karamah.org/zina-rape-and-islamic-law-an-islamic-legal-analysis-of-the-rape-laws-in-pakistan/ Zina, Rape, and Islamic Law: An Islamic Legal Analysis of the Rape Laws in Pakistan](2011)</ref><ref>See the 2nd of the two hadiths here regarding Imam Malik's view: {{Muwatta|41||16}}</ref> | ||
Jurists disagree on whether the rapist must also pay a dowry as compensation to the victim. A controversial position of some modern jurists is that the hadd penalty for outlaws should apply to rapists (hadd ''Hirabah''), described in {{Quran|5|33}}. Others say that rape can be treated by the judge as an offence that receives Tazir (discretionary) punishment (as in Pakistan, for example). These approaches avoid the impractical evidence requirement of four witnesses for applying a zina hadd penalty to the rapist in the absence of his confession. Incidentally, the four witnesses requirement for zina seems to have been introduced by Muhammad when Aisha was accused of adultery.<ref>See {{Quran-range|24|4|17}} and the discussion in [[Zina#Punishments for Zina|Punishments for Zina]]</ref> In some other modern courts where the hadd punishment for zina is applied to rapists, a woman risks being accused of slanderous accusation (qadhf) if she cannot prove her allegation of rape to that evidence standard<ref>Dr Azman Mohd Noor, [http://irep.iium.edu.my/16877/1/PUNISHMENT_FOR_RAPE_IN_ISLAMIC_LAW.pdf Punishment for rape in Islamic Law], Malayan Law Journal Articles [2009] 5 MLJ cxiv</ref> and the rapists go unpunished.<ref>{{Citation|url=https://www.dawn.com/news/1016271/a-license-to-rape|title=A license to rape|author=Murtaza Haider|publication-date=June 5, 2003|newspaper=Dawn}}</ref> Pregnancy is used as evidence of sex having occurred and women who report rape or sexual violence can be deemed to have confessed to unlawful sex (zina) and prosecuted for that instead.<ref>[https://www.hrw.org/news/2022/04/29/saudi-arabia-forthcoming-penal-code-should-protect-rights Saudi Arabia: Forthcoming Penal Code Should Protect Rights] - Human Rights Watch 29 April 2022</ref> Due to a number of high profile instances, the risk of being prosecuted for zina creates a strong disincentive for women to report rape in some Muslim countries today.<ref>{{cite web | title=Judged for more than her crime | website=deathpenaltyworldwide.org | date=September 2018 | url=https://www.deathpenaltyworldwide.org/wp-content/uploads/2019/12/Judged-More-Than-Her-Crime.pdf | access-date=28 December 2022}}</ref> | Jurists disagree on whether the rapist must also pay a dowry as compensation to the victim. A controversial position of some modern jurists is that the hadd penalty for outlaws should apply to rapists (hadd ''Hirabah''), described in {{Quran|5|33}}. Others say that rape can be treated by the judge as an offence that receives Tazir (discretionary) punishment (as in Pakistan, for example). These approaches avoid the impractical evidence requirement of four witnesses for applying a zina hadd penalty to the rapist in the absence of his confession. Incidentally, the four witnesses requirement for zina seems to have been introduced by Muhammad when Aisha was accused of adultery.<ref>See {{Quran-range|24|4|17}} and the discussion in [[Zina#Punishments for Zina|Punishments for Zina]]</ref> In some other modern courts where the hadd punishment for zina is applied to rapists, a woman risks being accused of slanderous accusation (qadhf) if she cannot prove her allegation of rape to that evidence standard<ref>Dr Azman Mohd Noor, [http://irep.iium.edu.my/16877/1/PUNISHMENT_FOR_RAPE_IN_ISLAMIC_LAW.pdf Punishment for rape in Islamic Law], Malayan Law Journal Articles [2009] 5 MLJ cxiv</ref> and the rapists go unpunished.<ref>{{Citation|url=https://www.dawn.com/news/1016271/a-license-to-rape|title=A license to rape|author=Murtaza Haider|publication-date=June 5, 2003|newspaper=Dawn}}</ref> Pregnancy is used as evidence of sex having occurred and women who report rape or sexual violence can be deemed to have confessed to unlawful sex (zina) and prosecuted for that instead.<ref>[https://www.hrw.org/news/2022/04/29/saudi-arabia-forthcoming-penal-code-should-protect-rights Saudi Arabia: Forthcoming Penal Code Should Protect Rights] - Human Rights Watch 29 April 2022</ref> Due to a number of high profile instances, the risk of being prosecuted for zina creates a strong disincentive for women to report rape in some Muslim countries today.<ref>{{cite web | title=Judged for more than her crime | website=deathpenaltyworldwide.org | date=September 2018 | publisher=Cornell Law School| page=13| url=https://www.deathpenaltyworldwide.org/wp-content/uploads/2019/12/Judged-More-Than-Her-Crime.pdf | access-date=28 December 2022}}</ref> | ||
==Punishments for rape narrated in hadiths== | ==Punishments for rape narrated in hadiths== | ||