History of Rape - Islamic Conception

Islamic Conception

In Islamic criminal jurisprudence, the overwhelming majority of Muslim scholars believe that there is no punishment for a woman forced to have sex. According to a Sunni hadith, the punishment for committing rape is death, there is no sin on the victim, nor is there any worldly punishment ascribed to her. Most scholars treat rape as hiraba (disorder in the land).

Rape is defined as 'zina biljabr' fornication/adultery with the use of coercion or compulsion. The Islamic law approach provides a range of possible charges, and this penalties, which the qadi may posit. Hirabah being but one, yet the most severe of them. Thus the charge of zina may bring about a penalty of 100 lashes upon the perpetrator and the element of the use of force and or compulsion may be quantified, and thus punished serially or consecutively. I.e. a A year's banishment, a prison sentence, a corporal sentence etc. It is to be noted that Hirabah is a Hadd penalty (i.e. one predicating a fixed choice, which in the case of Hirabah has three options at the discretion of the qadi). If the offence is deemed to not be a Hirabah offence then the penalties available to the qadi would be those of ta'zeer and will not be permitted to reach the level of either severe retributory physical harm (i.e. more than ten lashes of a whip) let alone execution. The interpretation and application of these laws is very controversial, not least due to modern ill-fated legislataion, such as Pakistan's Hudood Ordinance, under General Zia ul-Haq, which arguably criminalise the victim who fails to produce four witnesses. Thus perverting the aim behind the law, to protect the victim of rape and grant her justice.

In Islamic military jurisprudence, classical jurists laid down severe penalties for rebels who use "stealth attacks" and "spread terror". In this category, Muslim jurists included abductions, poisoning of water wells, arson, attacks against wayfarers and travellers, assaults under the cover of night, and rape. The punishment for such crimes were severe, including death, regardless of the political convictions and religion of the perpetrator.