Rape and fornication are totally different categories in Islamic law

8-7-2016 | IslamWeb

Question:

In another fatwa, you have basically put the act of rape under the category of zina (fornication). But rape and zina are clearly not the same thing. With zina, it is two people who both agree to have intercourse together. And the crime for that is known. With rape, however, it is one person who forces himself upon another person who did not consent to intercourse. Violence is often involved, and the woman often suffers serious psychological problems from it, which is not the case with people doing zina, which takes place with the consent of the two parties. What is the evidence for treating the crime of rape, which is not the same as zina, under the category of zina and not the category of 'irhaab' (terrorism)? Again, rape is a type of assault, it is not two people comitting zina together, in which case both of them want it. Rape is something that is far worse than zina, so why do the scholars treat this under the same category of crime and give the exact same punishment for it when it is something much, much worse? Again, I would like to know the evidence for this from the Quran and Sunnah. I would just like to know why some scholars have treated this crime as zina when it is not just zina and why they have not placed it under irhaab. I would like to know what the evidence is from the Quran and Sunnah.

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Answer:

All perfect praise be to Allaah, The Lord of the worlds. I testify that there is none worthy of worship except Allaah and that Muhammad, sallallaahu ʻalayhi wa sallam, is His slave and Messenger.

We do not know about this fatwa that you are referring to, but if a man forces adultery upon a woman (i.e. he rapes her), then that is not the same as consensual zina, neither with regard to the man nor with regard to the woman (in ruling). The rapist is liable to receive the hadd (corporal penalty) of zina and is obliged to pay the woman a mahr (bridal gift) that fits her social status. This is contrary to consensual zina, in which case the woman is not entitled to anything.

The rape victim does not receive the hadd of zina; contrary to the woman who willfully commits zina, as she becomes liable to receive the hadd.

Ibn Qudaamah said in Al-Mughni, “The woman forced into intercourse is not liable for the hadd of zina according to the majority of scholars. There is no difference between forcing her by physically overcoming her or by making threats to kill her or the like.” [Al-Mughni]

If she defended herself and could not ward off the rapist except by killing him, then she is not penalized for murder, whereas if he killed her, she dies as a martyr.

Al-Mubaarakfoori said in Tuhfat Al-Ahwathi, “The believer's person, life, family, and wealth are protected by the sharee'ah. If anyone attacks him to violate any of these, then he is entitled to fight the assailant off and defend himself. If the victim is killed in the process, then he is considered a martyr...” [Tuhfat Al-Ahwathi]

The Shaafiʻi book of Fiqh Asna Al-Mataalib reads:

“The attacked person has the right to ward off the assailant regardless of whether that be a person (Muslim or non-Muslim, free or a slave, and competent for religious assignment or not) or an animal, with the purpose of defending his life, his body parts, and his womenfolk (against rape or what leads to it such as forcible kissing, embracing, and the like), and his wealth, even if it is a small amount. If the assailant is killed in the process, then there is no retribution (qisaas), blood money (diyah), expiation (kaffaarah), or any compensation ... because the victim is commanded to ward off the assailant. He cannot be commanded to fight the assailant and then be liable for punishment if he killed him as a result.”

This clearly underlines that rape is different from zina in terms of the legal implications and relevant rulings. It is not correct to say that scholars held that rape and zina are the same thing and that both are punishable by the same penalty.

There is no legislation called terrorism law in the Islamic sharee'ah. But whoever attacks people's lives, wealth, or honor and terrorized them, the Islamic penal code laid down strict punishments as deterrence for such hideous offenses. The resolution issued by the Council of Senior Scholars in the Kingdom of Saudi Arabia reads:

“Kidnapping and armed robbery to violate the Muslims’ sanctity by way of open and audacious hostility is a type of hiraabah, which deserves the punishment mentioned by Allaah in Soorah Al-Maa’idah (which means). {Indeed, the penalty for those who wage war against Allaah and His Messenger and strive upon earth [to cause] corruption is none but that they be killed or crucified or that their hands and feet be cut off from opposite sides or that they be exiled from the land. That is for them a disgrace in this world; and for them in the Hereafter is a great punishment} [Quran 5:33] That is so regardless of whether that aggression is against people’s lives, wealth or honor, or taks place by terrorizing wayfarers by cutting off roads (banditry). It makes no difference whether that happens in cities, villages, the desert, or the wilderness, as is the correct view of the scholars . The Maaliki scholar Ibn Al-ʻArabi said about the time when he was a judge, 'Some bandits who had gone out to attack a group of travelers were brought before me. They took a woman by force from her husband and the group of Muslims who were with him and carried her off. Then they were hunted down, caught, and brought to me. I asked the muftis with whom Allaah tested me about them, and they said, 'Their
 crime
 did
 not
 constitute
 hiraabah because hiraabah applies only with regard to wealth, not rape!' I indignantly said to them, 'Indeed, to Allaah we belong and unto Him is our return (said by Muslims at times of calamity)! Do you not know that hiraabah against honor is worse than aggression against wealth? All people would agree to lose their wealth and have it robbed from them rather than to see aggression committed against their wives or daughters. If there were any punishment more severe than that which Allaah has mentioned, it would be for the crime of violating the honor of one's fellow Muslims (i.e. sexual assault).''”

Allaah knows best.