Sexual Violation in Islamic Law

In Islam, human sexuality is governed by Islamic law ( Sharia). Accordingly, sexual violation is regarded as 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 is considered a serious sexual 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 also a lack of recognition of marital rape by mainstream jurists. The consent of a slave for sex, for withdrawal before ejaculation ( azl) or to marry her off to someone else was not considered necessary, historically. As with enslaved females, according to Islamic law, married women are required to oblige their husbands' sexual advances. A raped woman risks being accused of slanderous accusation (qadhf) if she cannot prove her allegation of rape by providing four witnesses (bayyinah) and the rapists go unpunished. 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. Prosecution of rape under the category of ''zina'', is making rape extremely difficult to prove and exposing the victims to jail sentences for admitting illicit intercourse forced upon them. According to human rights organizations, stoning for ''zina'' has also been carried out in Saudi Arabia for such victims. 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.

Islamic sources

An incident during the time of the Islamic prophet Muhammad would form the basis of later jurisprudence of rape:

Definition

Rape is considered a serious sexual crime in Islam and can be defined in Islamic law as: "Forcible illegal sexual intercourse by a man with a woman who is not legally married to him, without her free will and consent".

Islamic law, like the legal systems of classical antiquity and the ancient Near East, does not contain a true equivalent of the modern concept of rape, which is in turn based on the modern notions of individual autonomy and inviolability of the body, particularly the female body. In modern terms, rape is at its most basic level a violation of another person's sexual autonomy. In the communally and patriarchically oriented societies of Late Antiquity, a woman's sexuality was construed as something in control of her legal guardian or owner rather than in her individual control. Therefore, the category of coercive sexual violation was not clearly differentiated from other categories, such as consensual violation of sexual norms (seduction).

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'' ( ar, زنا بالإكراه). 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 (zinā) 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.

Relationship with zina

Classical Islamic law defined what today is commonly called "rape" as a coercive form of fornication or adultery (''zināʾ''). This basic definition of rape as "coercive ''zināʾ''" meant that all the normal legal principles that pertained to ''zināʾ''its 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.

Relationship 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.

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.

Historical records show that when experiencing sexual abuse, some women were able to go to court and force their husbands to desist and pay damages even in the pre-modern Muslim world. For example, perineal tearing by the husband was criminalized and entitled the wife to monetary compensation. 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. The term ''ightisab'' refers to "usurping something that belongs to another by force and against the person's will"; it denotes something "ugly" and "reprehensible". 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, some modern interpretations of Islamic law prohibit marital rape in other ways.

According to Dar al-Ifta al-Misriyyah, Islamic scholars condemn when a husband uses violence to force his wife to sleep with him or asks his wife to have sexual intercourse during her menstrual period, in an abnormal sexual position, or during fasting hours in Ramadan. In response the wife has the right to take her husband to court and he must be punished for the act. According to this opinion, a wife has numerous grounds to refuse sexual relations with her husband, including if he has a contagious disease or if sexual intercourse hurts her body. Islamic law advises that the sexual intercourse between man and wife should be conducted with intimacy and love.

One school, the Hanafi school, traditionally allowed the husband to forcibly have sex with his wife if she didn't have a legitimate reason to refuse sex; 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.

Punishment of a convicted rapist

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.

Ḥadd of 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.

Ḥadd of Ḥirābah as a penalty for rape

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 separate crime of violence under ''hirabah'' (forcible and violent taking), 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.

Rape as Ta‘zīr

Some modern researchers maintain that offenders be allotted a ''ta'zir

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