What is the penalty for raping?

The Details of the Question

-  Is it permissible in Islam for the person who has been raped or one of her relatives to kill the rapist to restore her honor?
- Or, is it necessary to punish the rapist through law?

The Answer

Dear Brother / Sister,

The crime of raping

In the Islamic law, no distinction has been made about the attribute of forcing. According to the Islamic law, what matters is committing fornication “by force”. Accordingly, force, whether material or spiritual, will be sufficient for the formation of the element of the crime.

What we mean by material force is that the rapist limits the actions of the victim in a way that makes it impossible for her to prevent the act of raping. It can occur as the victim being tied up, being beaten so much as to faint, or being threatened with a weapon or lethal tool. Spiritual force, on the other hand, is generally in the form of the rapist’s threatening the victim to kill her spouse, children or family, something that the victim cannot bear if she does not consent. (1)

To sum up, the force used to commit the crime of rape can be material or spiritual; material force consists of the use of violence while spiritual force occurs through threatening.

Punishing the guilty

All criminals and oppressors will be punished either in this world or in the hereafter; they can never get away with it. People who have been persecuted seek their legal rights; and if they cannot obtain their rights in this way, they are left to the hereafter.

One of the conditions for punishing a man or woman who committed fornication is that the fornication should be committed based on one’s own free will. Islamic scholars agree unanimously that no punishment is required for a woman who is forced into fornication.

In addition, four witnesses are necessary to prove fornication but the number of witnesses related to rape does not have to be four. If the number of witnesses who saw that the woman had been raped is fewer than four, the penalty of tazir is applied to the rapist. If the woman cannot prove that she has been raped, she does not have to be punished by qadhf (slander of fornication).

Penalties for fornication and rape are among the rights of Allah. Since it is a crime committed against the society, it is regarded as one of the rights of the society. Thus, it is not necessary for the victim to be a plaintiff for the aggressor to be punished; even if there is no complaint by the victim, the rapist is punished if his crime is proved.

Even if the rape does not occur, penalty of tazir is in question for such harassment.

Ta’zir penalty is the punishment that the judge deems appropriate, such as harsh words, imprisonment, flogging and death, depending on the state of the offender and the attribute of the crime.

Accordingly, the person who raped can also be given the death penalty within the scope of the penalty of tazir.

The penalty for fornication is stated as follows in the Quran:

“The woman and the man guilty of adultery or fornication,- flog each of them with a hundred stripes: Let not compassion move you in their case, in a matter prescribed by Allah, if ye believe in Allah and the Last Day: and let a party of the Believers witness their punishment.” (an-Nur, 24/2)

The penalty varies depending on whether the person who fornicates is married or single. If he/she is single, flogging with a hundred stripes is necessary; if he/she is married, the penalty is being stoned. However, either four people must witness that they saw it, or the person who has committed fornication must confess to the state authorities four times separately that he has committed fornication and must want to be punished for penalty to be imposed. Otherwise, the penalty will occur in the hereafter. The persecuted person will receive his/her right, and the persecutor will be punished duly in the hereafter.

First of all, it should be known that no punishment can be applied by individuals in Islam. On the contrary, if it is determined that such a crime has been committed by the courts of the state, the punishment is given by the state. Otherwise, an imaginary crime might be created due to grudge, suggestions of the soul and the devil, feelings of hatred and enmity, and slanders to punish people arbitrarily and unjustly. In addition, due to the nonsense of “restoring one’s honor”, not one, but dozens of murders can be committed – because of blood feuds. In terms of religion, nobody one has the right to do it as an individual.

On the one hand, the religion of Islam states that it is a very bad crime and aims to distance people from fornication by arousing disgust in the conscience of people in the face of such bad deeds. On the other hand, it aims to prevent slanders of fornication by stating that if that grave crime is falsely attributed to a person and slandered, the slanderer will be punished with a hadd penalty of being flogged with a hundred stripes.

In addition, Islam urges people to be careful regarding the issue by deciding that the crime of fornicating will become definite only if four witnesses see the “actual relationship” with their own eyes. Thus, the Quran virtually warns people as follows with that decree: “Do not open your mouths and do not even move your lips regarding the issue”.

The verses regarding the issue are as follows:

“And those who launch a charge against chaste women, and produce not four witnesses (to support their allegations),- flog them with eighty stripes; and reject their evidence ever after: for such men are wicked transgressors unless they repent thereafter and mend (their conduct); for Allah is Oft- Forgiving, Most Merciful.” (an-Nur, 24/4-5).

Finally, we deem it useful to attract attention to a statement of the Quran, showing the ugliness of that social disgrace:

“Nor come nigh to adultery: for it is a shameful (deed) and an evil, opening the road (to other evils).” (al-Isra, 17/32)

One of the reasons why the phrase “Nor come nigh to adultery” is preferred instead of “Do not commit adultery” is to teach people the following lesson: Preventing fornication in society depends on eliminating the reasons that lead to fornication. The saying “Fire and gunpowder do not sleep together” is very wise and a product of experience.

When the basic principles of the religion of Islam are considered, it can be said that it calls out to all humanity as follows:

“O people! Do not approach the place where the smell of fornication comes from and where there is a slight breeze from it because it is a minefield that is ready to explode any moment. Or, be careful! There is a high-tension line there; do not approach; there is a great danger. Religiously, there is a thick red line there in terms of religion, family and humanity; do not violate that line!”

Can a person who rapes or attempts to rape be given death penalty??

Maliki fiqh scholars display a different approach from other scholars and regard kidnapping of a woman with the intention of rape within the scope of “hiraba”, that is, banditry. Rape by force is an uglier deed than seizing property by force because honor is much more important and valuable than property.

Four types of punishment are mentioned in the Quran regarding the sanction to be applied to the crime of banditry:

“Execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land” (see al-Maida 5/33)

Since Malikis define the crime of banditry more comprehensively and consider every crime committed based on force and violence, violation of public order and security, including rape, within this framework, they prefer to give the state a wider authority to punish the criminals.

As a matter of fact, when Ibn al-Arabi was appointed as a qadi, a case of terror was brought to him; some bandits kidnapped a woman in a group by force from her husband and the group; the perpetrators were caught as a result of intense hunt; when Ibn al-Arabi consulted the muftis about the punishment to be given to the perpetrators, the muftis claimed that the incident was not a crime of hiraba. Thereupon, Ibn al-Arabi told them that violations of chastity and honor were much more serious and uglier than violations of property, emphasizing that people could consent to their property’s being taken from them, but that they could not accept the kidnapping of their wives and daughters. Then, he expressed his opinion that if a more severe penalty had been imposed in the verse in question, it would have been about kidnapping with the intention of rape. (2)

Therefore, according to Maliki madhhab, if a person were waylaid with the intention of rape, the decrees of hiraba would be applied to the perpetrator. Based on this ijtihad, which could be used depending on the situation, the presence of two witnesses would be sufficient for the proof of the crime and the application of the punishment mentioned in the verse to the perpetrator.

This ijtihad provides convenience especially for the plaintiffs who claim that they have been sexually assaulted and cannot bring four witnesses. The approach of Maliki madhhab on hiraba punishment is different from the scholars of other madhhabs. According to the approach of Malikis, if the public authority deems it necessary, even if the crime of rape has not actually been committed, it is entitled to give a penalty between exile and death penalty in return for the act of mere intimidation and kidnapping. (3)

Rape is mostly expressed with the phrase “ugly deed” in Ottoman records. When it is used for women, it means rape, and when it is used for men, it means sodomy.

We see that in the Ottoman Empire, which was governed by Shari’ah, death (4) or amputation (5) punishments were given to rape crimes.

To sum up, the person who raped could be given the death penalty either as a penalty of tazir or as part of the crime of hiraba/banditry.

References:
1) see Sulhi Dönmezer, Ceza Hukuku, İstanbul 1961, pp. 50-51; Mustafa Cevat Akşit, İslam Ceza Hukuku, İstanbul 1976, pp. 57.
2) Ibnul-Arabi, Ahkamul-Quran, Beirut, 1998, 2/95.
3) Ahkamul-Quran, 2/94 ff; Ibn Rushd, Bidayatul-Mujtahid, Beirut, 1995, 4/1759 ff.
4) Başbakanlık Osmanlı Arşivi Mühimme Defteri, d.no. 7, h.no. 225. akt. Başbakanlık Osmanlı Arşivi Daire Başkanlığı, 7 Numaralı Mühimme Defteri (975-976/1567-1569.
5) Ahmet Akgündüz, Kanunnameler, II, 43; see Koç, Mehmet, Osmanlı Hukukunda Ta’zir Suç ve Cezaları, Aybil Yayınevi, Konya 2017.

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