[preachadaq]

Why is it when you hear a women has been almost raped, or actually raped, that people do nothing or try to sweep it under the rug as if it never happens because their is either no proof or no witnesses?

Regarding crimes of attempted rape and rape what are the hadd punishments that should take place?

If there is no witnesses and proof, and she accuses the man of rape, what happens to the man without proof?
and what about attempted rape such as only touching, kissing, etc..do the rape hadd punishments still apply or are their any punishments for fondling?

[Sthjrderfida]

Women have been getting the short end of the stick in all societies for ages.

It is kind of silly how they, in Muslim countries, will reject a woman's claim of rape because she doesn't have 4 witnesses (those pesky rapists! not raping their victims in broad daylight in the middle of the town square. Mighty clever of them!) but will then turn around and convict her cause she's pregnant and not married. Good thing Maryam wasn't born in this age.

I have a hard time accepting this is the true nature of Shari'a. I'm not a scholar but it seems to me that rape is in a different category than zina with your secret boyfriend. One is a moral law and the other is criminal. Rape is oppression.

Personally, I can tell you if someone were to rape my daughter (assuming I had one), he'd be getting a night visit from me and some of the brothers.

[pongeystrhjst]

Bismillahi
I too want to know what is the punishment of rape. In zina both involve willingly but in rape, one is a zaalim and will he only get the same punishment as that of zina when he did a brutal act on a innocent?

[Vipvlad]

Salaam,

Might be relevant to the discussion: http://qa.sunnipath.com/issue_view.asp?id=12121

[pongeystrhjst]

Salaam,

Might be relevant to the discussion: http://qa.sunnipath.com/issue_view.asp?id=12121

Bismillahi
I see there
"As the classical and contemporary jurists (such as Mufti Taqi Usmani) have made clear, a rapist can be convicted on lesser evidence (including scientific evidence, such as DNA tests and medical reports) for discretionary punishments. These discretionary punishments are left up to the legal system to determine."
Normally what is that discretionary punishment according to the shariah. I hope some scholar will shed the light.
Wassalam

[Vipvlad]

Salaam,

That's the whole point - it's discretionary! I.e. as far as I understand it, there is no specific hadd prescribed. But inshaAllah the ulama on the forum can shed further light.

But I think if i were the Qadi, I would lay the "smackdown" - rajam all the way (the rapist not the "rapee")

[Loonakind]

Assalamu alaikum,

I was reading this thread on my phone while lying down comfortably, but was forced to get up to clarify the emotional misconceptions of the posters on this thread.

If there is any crime there needs to be proof. How can you convict someone on the basis of of just the word of one person, especially when that person (the woman) might have motive to accuse the man of rape if she is pregnant from zina?

Come on, this is completely illogical. Everyone is innocent until proven guilty no matter how heinous the crime. But on the Day of Judgment Allah will get everyone.

To TapeMonkey: Moreover the misconception that the woman will get the hadd because she is pregnant but the man will walk...how do you know of this? Have you ever read the article on the Hudud Ordinances by Mufti Taqi? If you have not researched and exhausted the resources in your disposal to determine the true nature of how these laws are implemented then you have no right to start criticizing Islam and those who implement Islamic laws. Please read the lengthy article by Mufti Taqi before commenting. He used to sit on the Shariah bench which dealth with these laws practically.

To AbuDahdah: Who gave you the authority to lay the rajm on people without evidence? These are emotions speaking. If you were a Qadi you must judge by the law of Allah not your emotion at the time. That is why it says in the hadith no qadi should judge while angry. Allah's justice is the most just and the most merciful, so we do not need additional justice or mercy from the logic of the Qadi.

Discretionary law: All laws in any country are discretionary.

Wrongful rape convictions: We see all the time wrongfully convicted people for rape and murder being released when the cases are reopened after many years due to DNA evidence now being present. Believe me or not but in many cases if a boy from a lower family has consensual sex with a girl from a socially higher family - the family of the girls often accuse the boy of rape when they find out.

,(1) How can you convict anyone without proof? (2) If no witnesses then punishment can still be given for rape as long as there is other proof. But this punishment cannot be as severe as the hadd.

[eduptultyt]

from my brief readings, the actual mizaaj(mentality/spirit) of the shariah is not actually towards dishing out hadd punishments. Unfortunately, some people actually get a 'buzz' when these punishments are given. The mentality of the shariah, and by extention the mentality of the Prophet and the companions was towards hiding of sins, asking for forgiveness etc.

It is only in certain circumstances that hadd punishments were actively sought and carried out.

[Vipvlad]

Salaam,

Just to clarify - I never meant that hadd/other punishments should be carried out without evidence. Only if there is such overwhelming evidence (e.g. there is a DNA match with the victim) - then the Qadi should decide whatever punishment is appropriate.

And yes, what I said was out of emotion and not out of intellect or sound study of the shari'ah - but of course, that is why I am not a Qadi and unlikely ever to be. May Allah forgive me for making such statements. As brother Enigma said, the mentality should be hiding of sins and asking for forgiveness. [Although keeping in mind that being raped is different than consensual fornication and adultery]

Just to clarify - "But this punishment cannot be as severe as the hadd" - so even if the Qadi decides (with a calm and cool head) that this punishment is appropriate in order to deter the evils in the society (i.e. one where rape has become prevelant) - would he be not allowed by the Shari'ah i.e. would it be haraam for him to "dish out" such a punishment?

May Allah bring back the Shari'ah to remove fasaad from the lands. Woe to the rapists - may they get what they deserve on the Great Day when Allah will not wrong anyone even by a hair's breadth.

[Vipvlad]

In addtion to my previous thread, brothers, could you also clarify the following fatwa from Islam QA? My intention is not to stir up a debate or do a "copy paste" job but merely to seek clarification:


Question: What is the ruling on the crime of rape in Islam?.


Praise be to Allaah.

The Arabic word ightisaab refers to taking something wrongfully by force. It is now used exclusively to refer to transgression against the honour of women by force (rape).

This is an abhorrent crime that is forbidden in all religions and in the minds of all wise people and those who are possessed of sound human nature. All earthly systems and laws regard this action as abhorrent and impose the strictest penalties on it, except a few states which waive the punishment if the rapist marries his victim! This is indicative of a distorted mind let alone a lack of religious commitment on the part of those who challenge Allaah in making laws. We do not know of any love or compassion that could exist between the aggressor and his victim, especially since the pain of rape cannot be erased with the passage of time – as it is said. Hence many victims of rape have attempted to commit suicide and many of them have succeeded, The failure of these marriages is proven and they are accompanied by nothing but humiliation and suffering for the woman.

Islam has a clear stance which states that this repugnant action is haraam 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 honour and modesty. Islam forbids women to wear clothes that are not modest and to travel without a mahram; it forbids a woman to shake hands with a non-mahram man. Islam encourages young men and women to marry early, and many other rulings which close the door to rape. 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! In America – for example – International Amnesty stated in a 2004 report entitled “Stop Violence Against Women” that every 90 seconds a woman was raped during that year. What kind of life are these people living? What refinement and civilization do they want the Muslim women to take part in?

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

Some scholars also say that he is required to pay a mahr to the woman.

Imam Maalik (may Allaah have mercy on him) said:

In our view the man who rapes a woman, whether she is a virgin or not, if she is a free woman he must pay a “dowry” like that of her peers, and if she is a slave he must pay whatever has been detracted from her value. The punishment is to be carried out on the rapist and there is no punishment for the woman who has been raped, whatever the case. End quote.

Al-Muwatta’, 2/734

Shaykh Salmaan al-Baaji (may Allaah have mercy on him) said:

In the case of a woman who is forced (raped): if she is a free woman, the one who forced her must pay her a “dowry” like that of her peers, and the hadd punishment is to be carried out on him. This is the view of al-Shaafa’i, and it is the view of al-Layth, and it was also narrated from ‘Ali ibn Abi Taalib (may Allaah be pleased with him).

Abu Haneefah and al-Thawri said: the hadd punishment is to be carried out on him but he is not obliged to pay the “dowry”.

The evidence for what we say is that the hadd punishment and the “dowry” are two rights, one of which is the right of Allaah and the other is the right of the other person. So they may be combined, as in the case of a thief whose hand is cut off and he is required to return the stolen goods. End quote.

Al-Muntaha Sharh al-Muwatta’, 5/268, 269

Ibn ‘Abd al-Barr (may Allaah have mercy on him) 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 (i.e., 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, which may be proven by her screaming and shouting for help. End quote.

Al-Istidhkaar, 7/146

Secondly:

The rapist is subject to the hadd punishment for zina, even if the rape was not carried out at knife-point or gun-point. If the use of a weapon was threatened, then he is a muhaarib, and is to be subjected to the hadd punishment described in the verse in which Allaah says (interpretation of the meaning):

“The recompense of those who wage war against Allaah 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-Maaidah 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.

[Sthjrderfida]

To TapeMonkey: Moreover the misconception that the woman will get the hadd because she is pregnant but the man will walk...how do you know of this?

Because every now and then a news story will hit the presses about it happening. It's total fodder for non-muslims. They hear these things too and attack Islam. "Look how demonic, how cruel Sharia is!"

you have no right to start criticizing Islam and those who implement Islamic laws. Brother you misunderstood my post. I was not criticizing Islam or those who implement Islamic laws. My issue is with those who implement non-islamic laws and call it shari'ah, and then Islam gets to take the blame.

[EvaQWmrm]

Because every now and then a news story will hit the presses about it happening. It's total fodder for non-muslims. They hear these things too and attack Islam. "Look how demonic, how cruel Sharia is!"



Brother you misunderstood my post. I was not criticizing Islam or those who implement Islamic laws. My issue is with those who implement non-islamic laws and call it shari'ah, and then Islam gets to take the blame.

If a Muslim country gave out free bread, meat, and rice to the poor, the kuffar press would say that it was over-carbing the population and making them fat.

[Sthjrderfida]

If a Muslim country gave out free bread, meat, and rice to the poor, the kuffar press would say that it was over-carbing the population and making them fat.

Yes yes, I forgot, it's all israel's/the kuffar's fault. It's all a conspiracy and no muslim has ever done wrong anywhere, ever.

[EvaQWmrm]

Yes yes, I forgot, it's all israel's/the kuffar's fault. It's all a conspiracy and no muslim has ever done wrong anywhere, ever.

Merely a statement pointing out that you shouldn't worry so much about what the kuffar press says in any case because whatever it says, it's going to be anti-Islamic. Nowhere in there did I claim that Muslims have never done anything wrong.

If someone brings that up to you, state that Mufti Taqi Usmani (sat on the Federal Sharia Court for ages) has stated outright that no woman was ever punished for zina if unable to 'prove' for the hadd. Look for Usmani_hudud.pdf on the internet for a review of the facts.

[gardenerextraordinaire]

Salaam,

Just to clarify - I never meant that hadd/other punishments should be carried out without evidence. Only if there is such overwhelming evidence (e.g. there is a DNA match with the victim) - then the Qadi should decide whatever punishment is appropriate.

And yes, what I said was out of emotion and not out of intellect or sound study of the shari'ah - but of course, that is why I am not a Qadi and unlikely ever to be. May Allah forgive me for making such statements. As brother Enigma said, the mentality should be hiding of sins and asking for forgiveness. [Although keeping in mind that being raped is different than consensual fornication and adultery]

Just to clarify - "But this punishment cannot be as severe as the hadd" - so even if the Qadi decides (with a calm and cool head) that this punishment is appropriate in order to deter the evils in the society (i.e. one where rape has become prevelant) - would he be not allowed by the Shari'ah i.e. would it be haraam for him to "dish out" such a punishment?

May Allah bring back the Shari'ah to remove fasaad from the lands. Woe to the rapists - may they get what they deserve on the Great Day when Allah will not wrong anyone even by a hair's breadth.

I think there is a bit of confusion here.

There are two scenarios in the case of a rape:
-If it's proven as such with witnesses or the admission of the rapist and all the requisites and conditions for hadd to be applied he will indeed get the hadd for zina (stoning or lashes according to his condition, I think?).
-If it's proven with proofs which make quite clear he's the author but which don't arrive to the point of the absolutely sure proofs requested for the hadd to be carried out, only then he will get the ta'zir (discretionary punishment) instead of the hadd. That's because the stringent conditions for hadd to be implemented won't be present and thus only ta'zir can be inflicted, and ta'zir must be less than the relative hadd (i.e. its severity can't be equal or more than that of the hadd).

So it wouldn't be accurate that a rapist will only get a ta'zir and never a hadd: it's not like that; it rather depends on the strenght of the proofs against him.

If I made any mistake please correct me.

[Sthjrderfida]

Merely a statement pointing out that you shouldn't worry so much about what the kuffar press says in any case because whatever it says, it's going to be anti-Islamic. Nowhere in there did I claim that Muslims have never done anything wrong.

If someone brings that up to you, state that Mufti Taqi Usmani (sat on the Federal Sharia Court for ages) has stated outright that no woman was ever punished for zina if unable to 'prove' for the hadd. Look for Usmani_hudud.pdf on the internet for a review of the facts.

Brother I have downloaded the file and I will read it once I have had some sleep. Thank you for the suggestion

[Vipvlad]

Jazak Allah Khair Br. Umar_Italy.

That appears to be in confirmity with Shaykh Salih al-Munajjid's fatwa which I posted earlier.

Just another clarification - So would a DNA match be sufficient as "absolute" proof for the hadd or would an admission be necessary from the rapist? And it's usually unlikely that there wil be four witnesses to a rape (unless, na'udhubillah, it's a gang rape)....

[gardenerextraordinaire]

Just another clarification - So would a DNA match be sufficient as "absolute" proof for the hadd or would an admission be necessary from the rapist?

I think I read somewhere that a DNA test isn't considered 100% conclusive so it wouldn't be accepted for hadd, but I'm not sure about this.

Wa Allahu a'lam.

[9mm_fan]

Salam,
only one reminder brothers,
there is also SIN if in first place woman is accused - without any proof - that she made up story about rape!!!
I hope all rapist get right pounishment - rotten in hell!!

[BalaGire]

Jazak Allah Khair Br. Umar_Italy.

That appears to be in confirmity with Shaykh Salih al-Munajjid's fatwa which I posted earlier.

Just another clarification - So would a DNA match be sufficient as "absolute" proof for the hadd or would an admission be necessary from the rapist? And it's usually unlikely that there wil be four witnesses to a rape (unless, na'udhubillah, it's a gang rape)....

DNA testing isn't enough to prove rape, it only proves intercourse. This is why more than DNA testing is taken into consideration.

Fact is, if there is sufficient proof that a person committed rape to the extent the full hadd is carried out on him, then this will occur

If there is only lesser proof, a different punishment is carried out

If there is little or no proof, how can you carry out any punishment at all?