Rape And Incest (Rogol Bukan Zina)

Credit to mindasuper.com

(Dalam Islam hukum zina dan rogol adalah berbeza. Zina bermaksud melakukan persetubuhan luar nikah secara sukarela. 4 saksi diperlukan sebelum hukum dapat dilakukan. Rogol ialah perkosaan justeru ia berbeza dengan zina. Ia termasuk dalam hukum hirabah atau keganasan. Wanita yang menjadi mangsa berhak menuntut haknya tanpa memerlukan saksi yang empat. Artikel di bawah ini memperincikan tentangnya.)

FROM: Rape and Incest: Islamic Perspective by Uzma Mazhar, 2002 (http://www.crescentlife.com). Abridged version of this article published in the September issue of "Islamic Reflections 2002"....

INCEST and rape are not new in this day and age; these problems have always existed and will continue to exist if not confronted face on. If you have ever worked with an incest, sexual abuse or rape survivor you will never be able to forget the devastating impact it has on all aspects of their life, nor will you be able to sit back and do nothing about this issue. These are serious crimes that corrode the fabric of family and society and cannot go un-addressed, since these problems do exist in Muslim families it is about time that we address it openly and take action to put an end to it. To fully understand this issue we need to examine what Islam teaches us about the value of human life.

Islam views human life as a sacred gift from God. The Quran repeatedly stresses the sanctity of life (hormat al hayat). The life of every single individual regardless of gender, age, nationality or religion is worthy of respect. In verses referring to the sanctity of life, the term used is ‘nafs' (soul, life); and there is no distinction made in that soul being young or old, male or female, Muslim or non-Muslim.

Surah al An'am 6.151, "Do not take any human being's life, (the life) which God has declared to be sacred - otherwise than in (the pursuit of) justice: this has He enjoined upon you so that you might use your reason." (Also check sûrah al Isra 17.33 & Sûrah al Ma'idah 5.32)

Quranic teachings encompass every aspect of life; hence it does not limit the definition of life to the physical body only, but includes the mental, emotional and spiritual aspects as well. There are about 150 verses that define the term ‘nafs' in various ways making it clear that the concept of ‘life' is not limited to mere physical existence.

Historically, Islam has addressed serious issues openly and sought to correct actions that constitute harm or ‘zulm' (ie: cruelty and abuse) to the dignity of humankind. Human life and respect for it has been stressed unstintingly, regardless of age or gender. As a general rule, Islam forbids all ‘zulm', be it physical, mental, emotional or spiritual: Surah al An'am 6.120, "Abandon all harm (ithm), whether committed openly or in secret." (Also check Sûrah al A`raf 7:33)

Sûrah al 49:11-12 points out categorically that emotionally abusive language and behavior is not acceptable. "You who believe do not let one (set of) people make fun of another set. Do not defame one another. Do not insult by using nicknames. And do not backbite or speak ill of one another."

In the last address to his community, the Prophet (saw) said: "Your lives and properties are forbidden to one another till you meet your Lord on the Day of Resurrection... Regard the life and property of every Muslim as a sacred trust... Hurt no one so that no one may hurt you... You will neither inflict nor suffer any inequity." The Prophet (saw) did not prohibit only the unlawful encroachment of one another's life and property, but also honor and respect.

Considering that human life is to be valued and cruelty is forbidden, what is the Islamic perspective on incest and rape?

According to Islam, a woman has to be respected and protected under all circumstances, whether she belongs to your own nation or to the nation of an enemy, whether she follows your religion or belongs to some other religion or has no religion at all. A Muslim cannot outrage her under any circumstances. All promiscuous relationships have been forbidden to him, irrespective of the status or position of the woman, whether the woman is a willing or an unwilling partner to the act.

The words of the Holy Quran in this respect are: "Do not approach (the bounds of) adultery". (17:32). Heavy punishment has been prescribed for this crime, and the order has not been qualified by any conditions. Since the violation of chastity of a woman is forbidden in Islam, a Muslim who perpetrates this crime cannot escape punishment (Maududi).

The Quran has, in various ways and in different contexts; impressed on men that they must observe the limits set by God (Hudûd Allah) in respect to women and must not encroach upon their rights in either marriage or divorce. In all situations it is the men who are reminded, corrected and reprimanded, over and over again, to be generous to women and to be kind, compassionate, fair and just in their dealings with women. Even in divorce, when the chances of anger and vindictiveness are high, it is stressed that men are to separate with grace, equity and generosity.

Forbidding cruelty against children and women is apparent from rulings against female infanticide and rights of inheritance given even to an unborn child; and the kindness mandated even when divorcing your wife. There are numerous hadith about the rights of children to respect and dignity. The same holds true for respect and the unprecedented rights given to women.

Relevant verses from the Quran, surah an-Nisa 4.119, "O you who believe! You are forbidden to inherit women against their will."

Surah an-Nûr 24.33, "And do not, in order to gain some of the fleeting pleasures of this worldly life, coerce your slave women into whoredom if they are desirous of marriage, and if anyone should coerce them, then, verily, after they have been compelled (to submit in their helplessness), God will be much forgiving, a dispenser of grace (to them)."

During the time of the Prophet (saw) punishment was inflicted on the rapist on the solitary evidence of the woman who was raped by him. Wa'il ibn Hujr reports of an incident when a woman was raped. Later, when some people came by, she identified and accused the man of raping her. They seized him and brought him to Allah's messenger, who said to the woman, "Go away, for Allah has forgiven you," but of the man who had raped her, he said, "Stone him to death." (Tirmizi and Abu Dawud)

Islamic legal scholars interpret rape as a crime in the category of Hirabah. In ‘Fiqh-us-Sunnah', hirabah is described as: "A single person or group of people causing public disruption, killing, forcibly taking property or money, attacking or raping women (hatk al ‘arad), killing cattle, or disrupting agriculture".

The famous jurist, Ibn Hazm, had the widest definition of hirabah, defining a hirabah offender 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".

Al-Dasuqi held that if a person forced a woman to have sex, his actions would be deemed as committing hirabah. In addition, the Maliki judge Ibn ‘Arabi, relates a story in which a group was attacked and a woman in their party was 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 hirabah involving the taking of money, and that anyone would rather be subjected to the latter than the former.

The crime of rape is classified not as a subcategory of ‘zina' (consensual adultery), but rather as a separate crime of violence under hirabah. This classification is logical, as the "taking" is of the victim's property (the rape victim's sexual autonomy) by force. In Islam, sexual autonomy and pleasure is a fundamental right for both women and men (Ghazâlî); taking by force someone's right to control the sexual activity of one's body is thus a form of hirabah.

Rape as hirabah is a violent crime that uses sexual intercourse as a weapon. The focus in a hirabah prosecution is the accused rapist and his intent and physical actions, and not second-guessing the consent of the rape victim. Hirabah does not require four witnesses to prove the offense, circumstantial evidence, medical data and expert testimony form the evidence used to prosecute such crimes.

Islamic legal responses to rape are not limited to a criminal prosecution for hirabah. Islamic jurisprudence also provides an avenue for civil redress for a rape survivor in its law of ‘jirah' (wounds). Islamic law designates ownership rights to each part of one's body, and a right to corresponding compensation for any harm done unlawfully to any of those parts. Islamic law calls this the ‘law of jirah' (wounds). Harm to a sexual organ, therefore, entitles the person harmed to appropriate financial compensation under classical Islamic jirah jurisprudence. Each school of Islamic law has held that where a woman is harmed through sexual intercourse (some include marital intercourse), she is entitled to financial compensation for the harm. Further, where this intercourse was without the consent of the woman, the perpetrator must pay the woman both the basic compensation for the harm, as well as an additional amount based on the ‘diyat' (financial compensation for murder, akin to a wrongful death payment).

Islamic law, with its radical introduction of a woman's right to own property as a fundamental right, employs a gender-egalitarian attitude in this area of jurisprudence. In fact, there is a hadith specifically directed to transforming the early Muslim population out of this patriarchal attitude of male financial compensation for female sexual activity. During the time of Prophet Muhammad, a young man committed zina with his employer's wife. The father of the young man gave one hundred goats and a maid as compensation to the employer, who accepted it. When the case was reported to the Prophet, he ordered the return of the goats and the maid to the young man's father and prosecuted the adulterer for zina (Abu Daud 1990, 3: Bk. 33, No. 4430; Bukhâri 1985, 8:Bk. 81, Nos. 815, 821, 826).

Early Islam thus established that there should be no tolerance of the attitude that a woman's sexual activity is something to be bartered, pawned, gossiped about, or owned by the men in her life. Personal responsibility of every human being for their own actions is a fundamental principle in Islamic thought.

Incest & Child Abuse

The Quran clearly outlines those with whom marriage is not permitted, we can extrapolate from it that any sexual relation with these would be unacceptable.

Sûrah an Nisa 4:23: "Prohibited for you (in marriage) are your mothers, your daughters, your sisters, the sisters of your fathers, the sisters of your mothers, the daughters of your brother, the daughters of your sister, your nursing mothers, the girls who nursed from the same woman as you, the mothers of your wives, the daughters of your wives with whom you have consummated the marriage - if the marriage has not been consummated, you may marry the daughter. Also prohibited for you are the women who were married to your genetic sons. Also, you shall not be married to two sisters at the same time - but do not break up existing marriages. GOD is Forgiver, Most Merciful."

This includes your foster parents, siblings and children.

Al-Hasan reports: "If somebody commits illegal intercourse with his sister, his punishment is the same as for any other person who commits such a crime". (Bukhâri Vol. 8 pp 526)
Thus, these same laws mentioned above in cases of rape would be equally applicable, and incest can be prosecuted as a crime within the bounds of Islamic law.

According to Islam, all aspects of life, ie: the physical, mental, emotional and spiritual, are sacred and must be respected. No gender or relationship has been given the power or right to hurt or harm the other. Domestic violence, rape and incest are all violent and criminal abuses that are outside the bounds of what is permitted in Islam and there is absolutely no justification for it whatsoever.

References:
•- Ghazâlî; "Ihya Ulum ud Din"
•- Hasan, Riffat; "Religious Human Rights in Global Perspective: Religious Perspectives" John Witte, Jr. and Johan D. van der Vyver Eds. Martinus Nijhoff Publishers, 1996
•- Maudoodi, Abu al Ala; "Human Rights in Islam" The Islamic Foundation UK 1976, 1993
•- Qureshi, Asifa LLM; "Her Honor: An Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective"
•- Rahman, Afzal ur; "Role of Muslim Women in Society" Seerah Foundation, London, 1986
•- Rauf, Muhammad Abdul; "Umar al Faruq" Al Saadawi Publications, 1998
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From readingislam.com, Are Raped Women Punished in Islam?, Kamal Badr, 26 Nov. 2007 (Kamal Badr is Editor-in-chief of IslamOnline.net's English website., formerly the head of Fatwa English Section - IslamOnline.net , M.A on ‘modes of reparation - comparative study between shari'a and international law', post graduate diploma on ‘Islamic legal politics' (al-siyasah al-shari'ah) 1993-96, LLB Faculty of Law and Shari'a, al-Azhar University, Cairo, Egypt, 1987-1992)

As the question mostly revolves around raped women, I would confine my answer to that point, without delving into the issue of punishing the rapist, on which there is no controversy that if it is proven, beyond reasonable doubt, that he is guilty of the crime, he will serve the punishment.But I would like to make it clear that this crime can be proved either by confession or testimony or even through any modern means, thanks for the great revolution that has taken place in the field of science. This has made it easier for criminal experts to lay their hands on clear evidence that paves way for justice to run its course.

So what I am trying to say is that, contrary to what some Westerners claim, the issue is not just "bring four witnesses or set the accused free". Shari`ah is not a legal system that keeps itself away from realities of life. Rather, it is practical in the sense that its mechanism of justice operates in a quite flexible way that makes all its precepts and rulings applicable at all time. Anyway, as I have said, I will not go into details on that now.Moving to your question. Yes, sister, raped women are not punished in Islam. What punishment? This is like saying that a person robbed of his property should be punished..........................

Muslim scholars are unanimous on this. They maintain that any woman, who, despite doing her utmost to resist these thugs and their ilk, is raped, is not guilty of any sin. This is since the situation is beyond her control, and anyone who is forced to do something is not guilty of sin. This is even in the case of disbelief, which is worse than zina (sex out of marriage), as Allah says what means: "{... except him who is forced thereto and whose heart is at rest with faith}". (An-Nahl 16: 106)

The Prophet said: "Allah has forgiven for my Ummah for their mistakes, what they forget and what they are forced to do."

In showing reaction to this heinous crime, Islam takes into consideration the terrible effects it has on its victims. Most rape victims have their self-esteem diminished after an assault or abuse, driving them to be hunted by frequent shame, humiliation and loss of control..... This situation may even exacerbate to the point of making rape victims find it difficult to be intimate with others. That is why Islam lays down certain strategies, which all in all, aim at soothing the rape victim, opening for her new channels of hope and survival.
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From Islamonline.net, Punishment for Rapists, Dr. Ahmad Yusuf Sulaiman, 22 Feb. 2007 (Dr. Ahmad Yusuf Sulaiman is Professor of Law and Islamic Shariah at Cairo University)
Islamically speaking, the raped woman is not guilty of any sin because she was forced to it beyond her control. Stressing this, the Prophet (peace and blessings be upon him) is reported to have said, "Allah has forgiven my Ummah for their mistakes, what they forget and what they are forced to do." Thus, the raped woman is a victim and all members of her community should deal with her with honor and kindness and should encourage her to obtain her rights through all possible means.

Dr. Ahmad Yusuf Sulaiman, professor of law and Islamic Shari`ah at Cairo University says, "If a woman is raped, she should press charges against the one who raped her. If it is proved that she was raped, then the court must apply discretionary punishment or ta`zir on the rapist. Such discretionary punishment may reach the death penalty, according to some schools of thought. This is based wholly on the fact that the rape is confirmed through medical tests and court procedures, without the confession of the rapist himself.

In cases where the rapist confesses the crime, then the penalty for zina (illegitimate sexual intercourse) is to be applied to him. If he is not married, then he is to be whipped 100 lashes. If he is married, then he is to be stoned to death.

As for the rape victim, no punishment is to be inflicted on her. She is to be treated with dignity and honor, and all forms of help should be given to her to gain her rights."
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From Islamonline.net, Islamic Punishment for Rape, Sheikh Muhammad Saleh Al-Munajjid (a Saudi Scholar), 12 Sep. 2005

Rape is an abhorrent crime and an abominable sin. This heinous crime is forbidden not only in Islam but in all religions, and all people of sound thinking and pure human nature reject it. The prominent Saudi Islamic lecturer and author Sheikh Muhammad Saleh Al-Munajjid states the following:

The Arabic word ightisab (rape) refers to taking something wrongfully by force. It is now used exclusively to refer to transgression against the honor of women by force. This is an abhorrent crime that is forbidden in all religions and in the minds of all wise people and those who possess sound human nature. All earthly systems and laws regard this action as abhorrent and impose the strictest penalties on it.

Islam has a clear stance which states that this repugnant action is haram (forbidden) and imposes a deterrent punishment on the one who commits it.

Islam closes the door to the criminal who wants to commit this crime. Western studies have shown that most rapists are already criminals who commit their crimes under the influence of alcohol and drugs, and they take advantage of the fact that their victims are walking alone in isolated places or staying in the house alone. These studies also show that what the criminals watch on the media and the semi-naked styles of dress in which women go out also lead to the commission of this reprehensible crime.

The laws of Islam came to protect women's honor and modesty. Islam forbids women to wear clothes that are not modest. In addition, Islam encourages young men and women to marry early, and many other rulings that close the door before rape and other crimes. Hence it comes as no surprise when we hear or read that most of these crimes occur in permissive societies, which are looked up to by some Muslims as examples of civilization and refinement! It is worth mentioning here that in America , for example, Amnesty International stated in a 2004 report entitled "Stop Violence Against Women" that every 90 seconds a woman was raped during that year.

The punishment for rape in Islam is the same as the punishment for zina (adultery or fornication), which is stoning if the perpetrator is married, and one hundred lashes and banishment for one year if he is not married.

Moreover, Ibn `Abdul-Barr (may Allah bless his soul) said ‘The scholars are unanimously agreed that the rapist is to be subjected to the hadd punishment if there is clear evidence against him that he deserves the hadd punishment, or if he admits to that. Otherwise, he is to be punished (that is, if there is no proof that the hadd punishment for zina may be carried out against him because he does not confess and there are not four witnesses, then the judge may punish him and stipulate a punishment that will deter him and others like him). There is no punishment for the woman if it is true that he forced her and overpowered her'. (Al-Istidhkaar, 7/146)
In addition, the rapist is subject to the hadd punishment for zina, even if the rape was not carried out at knifepoint or gunpoint. If the use of a weapon was threatened, then he is a muharib, and is to be subjected to the hadd punishment described in the verse in which Allah says (The recompense of those who wage war against Allah and His Messenger and do mischief in the land is only that they shall be killed or crucified or their hands and their feet be cut off from opposite sides, or be exiled from the land. That is their disgrace in this world, and a great torment is theirs in the Hereafter) (Al-Ma'idah 5:33).

So the judge has the choice of the four punishments mentioned in this verse and may choose whichever he thinks is most suitable to attain the objective, which is to spread peace and security in society, and ward off evildoers and aggressors..................

Edited for mindasuper.com by Dr Danial.