Answered by Shaykh Irshaad Sedick
In Western law, as long as consent is not given for penetration, the act of penetration will still fall under rape (Even if the girl consented to other non-penetrative sexual acts). What about Islam? If the girl eventually consented to other non-penetrative sexual acts but not penetration, can the act of penetration be considered rape?
In the Name of Allah, the Most Merciful and Compassionate.
May Allah alleviate our difficulties and guide us to what pleases Him. Amin.
In Islam, all forms of harm and abuse are prohibited. Depending on the level of harm, the assailant would be subject to punishment (corporal or other) according to a reliable and qualified Judge ruling according to Sacred Law. Assault involving vaginal penetration (rape), if proven according to Sacred Law, is punishable by death viz-a-viz stoning. Allah knows best.
Rape (forced vaginal penetration) witnessed by four upright men or confessed before the Islamic magistrate (qadi) would be punished with stoning (rajm). [Shirbini, Mughni al-Muhtaj]
Suppose there is no confession before the court. In that case, the Islamic magistrate will judge most cases of rape as sexual abuse and not adultery proper (zina), and the punishment (ta‘zir) would be some other form defined by the law of the Muslim country or by the judge, such as imprisonment. [ibid.]
It would normally be established by a claim from the woman’s side conjoined with circumstantial evidence (qara’in).
Besides the court punishment, rape has no repercussions on the child’s lineage: the mother will still be considered the mother, and if she is married, her husband will be the child’s father unless he takes legal steps to deny lineage. [ibid.]
“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.
Suppose the assailant is killed in the process. In that case, there is no retribution (qisas), blood money (diya), expiation (kaffara), or any compensation … because the victim is commanded to ward off the assailant. He could not be commanded to fight the assailant and then be liable for punishment if he killed him as a result.” [Ansari, Asna al-Matalib]
Different to Zina
The above underlines that rape differs from zina, especially regarding the legal implications and relevant rulings. Zina and fornication are consensual forms, while rape is coerced penetration. It is incorrect to say that rape and zina are the same and that both are punishable by the same penalty.
I pray this is of benefit and that Allah guides us all.
[Shaykh] Irshaad Sedick
Checked and Approved by Shaykh Faraz Rabbani
Shaykh Irshaad Sedick was raised in South Africa in a traditional Muslim family. He graduated from Dar al-Ulum al-Arabiyyah al-Islamiyyah in Strand, Western Cape, under the guidance of the late world-renowned scholar Shaykh Taha Karaan.
Shaykh Irshaad received Ijaza from many luminaries of the Islamic world, including Shaykh Taha Karaan, Mawlana Yusuf Karaan, and Mawlana Abdul Hafeez Makki, among others.
He is the author of the text “The Musnad of Ahmad ibn Hanbal: A Hujjah or not?” He has served as the Director of the Discover Islam Centre and Al Jeem Foundation. For the last five years till present, he has served as the Khatib of Masjid Ar-Rashideen, Mowbray, Cape Town.
Shaykh Irshaad has thirteen years of teaching experience at some of the leading Islamic institutes in Cape Town). He is currently building an Islamic online learning and media platform called ‘Isnad Academy’ and has completed his Master’s degree in the study of Islam at the University of Johannesburg. He has a keen interest in healthy living and fitness.