Rape in Islamic law

Classical Islamic law defined what today is commonly called "rape" as a coercive form of fornication or adultery (zināʾ).[10] 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 evidence – were 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.[10] 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.[10]

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.[11]

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.'[12]

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.[12]

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). In other words, very similar to how it is treated in contemporary Western law. 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.[13]

The majority of Islamic jurists do not recognize marital rape as rape,[6] but some modern interpretations of Islamic law prohibit marital rape in other ways.[14][6] According to a hadith, a master could marry off a female slave without her consent, but needed to obtain her consent if he wanted to marry her after setting her free.[15]

Hina Azam writes that the crime of marital rape doesn't arise in classical Islamic jurisprudence, but they did address issue of a husband injuring his wife sexually. For example, perineal tearing by the husband was criminalized and entitled the wife to monetary compensation.[16]

Kecia Ali states that the Hanafis allowed the husband to forcibly have sex with his wife if she didn't have a legitimate reason to refuse sex;[17][18] this is also indicated in the fiqh manual Al-Hidayah.[19] This particular Hanafi position was not prevalent in other schools of thought,[17] who neither authorized forced sex in marriage nor penalized it.[20] While medieval jurists classified rape under the crime of ightisab, no medieval jurist classified marital rape as such.[21] 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".[22] Nevertheless, most medieval jurists made a distinction between forced and consensual sex within marriage.[21]

Azam Noor claims that Islamic law classified marital rape as an act of aggression against the wife. Marital rape can lead to prosecutions against the husband and the wife obtaining divorce, but the punishments are not as severe as they are against other forms of rape.[23]

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.[24] According to it Islamic law advises that the sexual intercourse between man and wife should be conducted with intimacy and love, and this would be supported by Quran 2:223:[24]

Your wives are as a tilth unto you; so approach your tilth when or how ye will; but do some good act for your souls beforehand; and fear Allah. And know that ye are to meet Him (in the Hereafter), and give (these) good tidings to those who believe.

— Qur'an, ^{[Quran 2:223]}

According to Georgetown University professor Jonathan A. C. Brown, Islamic law has historically handled marital rape differently from modern laws, which originated in the 1970s, but the effect is similar i.e. protection.[25] Sexual abuse within marriage was conceptualized as harm inflicted on the wife rather than violation of consent.[25] He states that the historical record shows that women were able to go to court and force their husbands to desist and pay damages in such cases.[25] Sadaf Jaffer, of the Princeton Institute for International and Regional Studies, criticized Brown and his questioning of "whether Muslim wives have recourse to the idea of sexual consent in their relationships with their husbands".[26] According to Jaffer, Brown's position also "does not address the issue of a concubine’s lack of legal consent throughout much of Islamic history".[26]

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.[8][28]

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.[8]

Some modern researchers maintain that offenders be allotted a ta'zir penalty upon the discretion of the authorities. To them, rape deserves a ta‘zīr penalty when a conviction is reached as a result of circumstantial evidence, such as marks of violence about the genitals, marks of violence on the body of the victim or accused, the presence of semen or blood-stains on the body or clothes of the victim or accused, or a medical report, all of which are sufficient for ta‘zīr only. Under the principle of al-fi‘l al-darr (Islamic law of Tort), it is possible for a victim to make a claim for moral damages, which may include violation of a person's freedom, dignity, reputation, social or financial status.[8]

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. 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 question – that is, the amount of her dower (ṣadāq or mahr).[10]