Rape in Islamic law

An incident during the time of the Islamic prophet Muhammad would form 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. 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. 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.' 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. ==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. 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. '"The scholars are in unanimous agreement that the rapist is to be subjected to the ḥadd punishment if there is bayyinah (four witnesses) against him, which would warrant the ḥadd punishment to be imposed. [The imposition of the ḥadd punishment would also apply] if the accused rapist admits to his crime himself. In a situation where the above two instances do not apply, then [according to the other evidence that may be brought against him] he would have to bear aqoobah [taʿzīr]." Financial compensation According to the Mālikī, Ḥanbalī, and Shāfiʾī schools of law, the rape of a free woman consisted of not one but two violations: a violation against a "right of God" (ḥaqq Allāh), provoking the ḥadd punishment; and a violation against a "human" (interpersonal) right (ḥaqq ādamī), requiring a monetary compensation. These jurists saw the free woman, in her proprietorship over her own sexuality (buḍʾ), as not unlike the slave-owner who owns the sexuality of his female slave, a man having the right to sexual intercourse with his female slave. For them, in the same way that the slave owner was entitled to compensation for sexual misappropriation, the free woman was also entitled to compensation. The amount of this compensation, they reasoned, should be the amount that any man would normally pay for sexual access to the woman in questionthat is, the amount of her dower (ṣadāq or mahr). ==Related issues==

Marital rape Islamic law has historically handled marital rape differently from modern laws due to the fact that "sexual consent" is a modern concept and Islamic law was formulated in the pre-modern era. Rather than being a violation of consent, sexual abuse within marriage was conceptualized as harm inflicted on the wife, and judges used the harm-reduction principle when judging these cases. Marital rape could also be classified as act of aggression against the wife and lead to the prosecution of the husband and the wife obtaining divorce, but the punishments were not as severe as they are against other forms of rape. Medieval jurists classified rape under the crime of ightisab, but no medieval jurist classified marital rape as such. Nevertheless, some medieval jurists made a distinction between forced and consensual sex within marriage. While the majority of Islamic jurists do not recognize marital rape as rape, Certain observations of Islamic law advise that the sexual intercourse between man and wife should be conducted with intimacy and love. this is also indicated in the fiqh manual Al-Hidayah. This particular Hanafi position was not prevalent in other schools of thought, who neither authorized forced sex in marriage nor penalized it. Pregnancy due to rape In Islamic law, if a woman becomes pregnant while out of wedlock and denies committing adultery, claiming she was raped by someone, most jurists of the Hanafi, Shafi'i, and Hanbali school of thought suggest that the excuse of such a woman would be accepted without investigation, while the Maliki school of thought requires that a woman provide additional evidence to support such claims, if not, she is subjected to the stipulated punishment. Abortion due to rape Muslim scholars were urged to make exceptions in the 1990s following rapes of Kuwaiti women by Iraqi soldiers (in 1991) and the rape of Bosnian and Albanian women by Serb soldiers. In 1991, the Grand Mufti of Palestine, Ekrima Sa'id Sabri, took a different position than mainstream Muslim scholars. He ruled that Muslim women raped by their enemies during the Kosovo War could take abortifacient medicine, because otherwise the children born to those women might one day fight against Muslims. Self defence A woman who is being forced to commit zina (unlawful sexual activity) is obliged to defend herself and should not give in, even if she kills the one who wants to do that to her. This self-defence is waajib (obligatory), and she is not at fault if she kills the one who wants to force her into zina. ==See also==