Rape is considered a serious crime in Islam and can be defined in Islamic law as forcible illegal sexual activity by a man with a woman who is not legally married to him without her consent or free will and vice versa. It involves an attempt to overpower a weaker or a threatened person to accept unwillingly the sexual advance of the attacker.
The four school of thoughts in Islam; Shafii, Hanafi, Malik and Hanbali defined it also.
Al–Shafii defined rape as forcing a woman to commit zina [fornication] against her will.
Hanafi says illegal intercourse is considered rape when there is no deliberate action from the victim.
In Malik’s view, rape refers to any kind of unlawful sexual activity by usurpation and without consent. This includes when the condition of the victims prevent them from expressing their resistance such as insanity, sleep or being under age.
The Hanbalites, similar to the Malikites, considered 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.
Allah in the Qur’an condemns all the elements that constitutes the crime of rape, i.e Sex, violence and oppression. He strongly condemns any kind of sexual relationships outside marriage.
In Qur’an5vs5 He says:
‘’You shall maintain chastity, not committing adultery nor taking secret lovers. Anyone who rejects faith, all his work will be in vain and in the Hereafter he will be with the losers.’’
In addition to the condemnation of the sexual crime involved in rape, Allah strongly condemns the oppression element of rape in the strongest possible language. He described oppression in the Qur’an as ‘worsethanmurder’ in Qur’an2vs191
After having defined the subject and what the Qur’an says about it, we will look at its consequence on the rapist, the victim and the society.
THE RAPIST
Rape is punishable by the haddofzina [Divine punishment of fornication] as well as in some circumstances by the haddofhirabah [Divine punishment of forcible or violent taking] and it is also complimented by ta’zir [The punishment at the discretion of the state, the ruler or a judge or magistrate of a shari’ah court].
HADD OF ZINA
Most classical scholars argued for applying the hadd penalty for zina to a convicted rapist which is stoning to death for the married or flogging of 100 lashes and deportation for the unmarried. They base their argument on a hadith which reports a rape case at the time of the prophet [peace be upon him] where the victim was excused and her rapist who was married was sentenced to be stoned to death.
HADD OF HIRABAH AS A PENALTY OF RAPE Certain classical jurists and more modern interpretations have classified rape not as a subcategory of zina but rather a separate crime of violence causing disorder in the land in the manner described in Qur’an5vs33 as fasad [destructive mischief]. A similar crime would be highway robbery. Thus, the rapist will be considered to be under the category of people who are a danger towards the peace and security of the society.
RAPE AS TA’ZIR
Some modern researchers maintain that offenders be allotted a ta’zir penalty upon discretion of the authorities. To them, rape deserves a ta’zir penalty when a conviction is reached as a result of circumstantial evidence such as mark of violence on the body of the victim or a medical report which is sufficient for ta’zir only.
Under the principle of Islamic law of Tort, it is possible for a victim to make a claim of moral damages which may include violation of a person’s freedom, dignity, reputation, social or financial status.
FINANCIAL COMPENSATION
According to the Maliki, Hanbali and Shafii schools, the rape of a free woman consisted of not one but two violations; a violation against a ‘right of God’ which requires a divine punishment and a violation of ‘human right’ requiring a monetary compensation. According to them, the amount of this compensation should be the amount that any man would normally pay for sexual access to the woman in question and that is the amount of her dower[sadaq or mahr].
IMPACT OF RAPE ON THE VICTIM
The victim is always at the receiving end as the effect of the incident would forever be remembered by her. Other consequence includes;
Delayed marriage as no man would be willing to marry the victim of a rape incident.
Health implications/ Bareness some organs might have been damaged.
STDs: Sexually Transmitted Diseases.
Stigmatization and other factors might make the victim mentally unstable.
THE SOCIETY
It brings about decadence of the society and most importantly, anger of the Creator because He warns us against it sternly in the Holy Books.
Written by
Zaynab Oyedeji and Abdullah Taiwo
For Young Leaders Forum
MSSN Ikeja Area