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the crime of rape under Islamic law

Date: January 05, 2003 | 2 Dhu-l-Qidah 1423 Hijriah
Does Islamic law allow men to get away with rape? If a woman brings an accusation of rape against a man and is unable to prove that she was forced, will she be charged with fornication/adultery? Istighfirallah, this is the state of affairs under the law in some Muslim countries.

It is not, however, what Islamic law really says. Rape is a crime of hiraba not of fornication. I have posted previously about hiraba.

Please read Her Honor: An Islamic Critique of the Rape Laws of Pakistan by Asifa Quraishi to learn more about this issue. The article is far too long for me to post it up here, but it is well worth reading, if you wish to see how Islamic scholars have actually treated the issue.

As a side note, in Islamic law, a woman who kills her rapist has committed a lawful act of self-defense and will not be charged with homicide. If she dies while fighting her rapist, she is considered a martyr (source)
~ Posted by Al-Muhajabah, a member of the reality-based community, at 04:32 PM

Comments

Ikram Saeed said: Total comments: 2  

Excellent article.

I know from speaking with Pakistanis that Zia's Hudood ordinance repells them, but I had not realized quite how bad it was until I read that article.

It's shocking how the Quranic message of gender egalitarianism has distorted (by combining it with British common-law) into a law that not only allows men to rape freely without punishment, but then prosecutes the women raped.

What's a real shame is that the uneducated masses in Pakistan think that the Zina portions of Pakistan's Hudood Ordinance are Islamic, and would oppose its repeal or amendment.

I'm revealing my ignorance here: Is there such a thing as a model Islamic penal code (or personal law code) that codifies all the rulings and interpretations? If not, is there a project underway to create such a model code. That way, when a region wants to implement Shariah law, it would have something to start with.

~ Posted at January 5, 2003 08:28 PM | Comment Permalink
one of the top five commentors on this blog! Jonathan Edelstein said: Total comments: 91   gold stargold stargold stargold stargold star

I think the rape laws in Pakistan (and many of the Arab countries, as illustrated by the current case in Dubai) are an example of what Aziz Poonawalla calls "bonehead tribalism" - they are derived from tribal tradition rather than shariah. In some cases - including, apparently, those involving the role of women - custom appears to be stronger than shariah and leads to distortions of Islamic law. Consider how women are treated in Iran, where they have always been valued, as opposed to the Arab world or Pakistan - and nobody could possibly accuse the Iranian government of disregarding shariah.

I'd also like to know whether anyone has put together a model Islamic penal code.


~ Posted at January 6, 2003 08:47 AM | Comment Permalink
moderator Al-Munaqabah said: Total comments: 996   gold stargold stargold stargold stargold star

Hmm, interesting question about model penal codes. I don't know if any Muslim countries of the past like the Ottoman Empire ever produced any such thing.

The other possibility that I can think of is that the four madhhabs (schools of jurisprudence) might have books that codify that as well as their rulings on personal issues.

These laws and rules have been developed and discussed thoroughly by scholars throughout history. Unfortunately, many of these "Islamist" groups seem to ignore all of that when they try to implement "Shari'a laws". Look at the whole Amina Lawal thing.

It's an easy matter for me to find materials on the web that quote classical scholars and that refute the laws in Nigeria, Pakistan, and elsewhere (I can also point you to an article criticizing apostasy laws in Malaysia in the same way; I had quoted in an earlier comments thread). The problem is that a lot of people don't seem to be looking for this information. Another example of the sad state that much of the Muslim world is in these days.

~ Posted at January 7, 2003 12:59 AM | Comment Permalink
moderator Al-Munaqabah said: Total comments: 996   gold stargold stargold stargold stargold star

Here is the critique of Malaysia's hudud laws that I mentioned.

~ Posted at January 8, 2003 12:22 AM | Comment Permalink
d Smith said: Total comments: 1  

What if its a Muslim man who rapes a non-Muslim female? Under Islamic law, a non-Muslim cannot testify against a Muslim. Is that correct?

~ Posted at January 12, 2003 07:09 PM | Comment Permalink
moderator Al-Munaqabah said: Total comments: 996   gold stargold stargold stargold stargold star

Thanks for visiting, d smith, and thanks for leaving your comment.

It is absolutely forbidden for a Muslim to commit any crime against non-Muslims, and if this occurs, the punishment is the same as if the victim were Muslim. The Prophet Muhammad (peace be upon him) said, "Observe scrupulously the protection accorded by me to non-Muslim subjects" and, "Whoever oppresses non-Muslim subjects, shall find me to be their advocate on the day of Resurrection (against the oppressing Muslims)."

Historically, non-Muslims have lived in autonomous communities within the Islamic state where they have full authority, including judicial, over their own people and what happens in their own territory.

The limitiation on the testimony of non-Muslims is not agreed to by all scholars and it is my understanding that in any case it applies to cases when all the participants are Muslims. Non-Muslims are permitted to testify about what happens to them and to testify for and against members of their community.

Here is a website I found that discusses some issues of the status of non-Muslims in the Islamic state. I will continue to look for a page I can refer you to that addresses your question more directly.

~ Posted at January 12, 2003 09:03 PM | Comment Permalink
Abdullah said: Total comments: 4  

I read the article on Pakistani rape laws in a booklet a while back. The article was good, but I was slightly bemused by her arguement that pregnancy should not be admitted as a proof of sexual intercourse becuase it was specific to women. Pregnancy either indicates sexual intercourse, virgin birth or artificial insemination. If a pregnant unmarried woman is seen in public, it would be a prudent question to ask (by the one impowered to do so) of how did you get pregnant in the first place. If she claims rape or artificial insemination - then the question of zina no longer exists unless 4 witnesses can be brought forward. That is not to say the rest of her article was not very good, as it was - the whole point of using hiraba laws to punish rapists was very illuminating.

~ Posted at May 23, 2003 09:50 AM | Comment Permalink

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