What is the Punishment for Rape in the Shafi’i Madhab?
Question: How is rape proven in an Islamic court and what are its legal repercussions?
Answer:
Wa alaykum assalam wa rahmatullahi wa barakatuh,
Dear questioner,
Thank you for your important question.
Rape (zina) witnessed by four upright men or confessed before the Islamic magistrate (qadi) would be punished with stoning (rajm).
ّIf there is no confession before the court, the Islamic magistrate will judge most cases of rape as sexual abuse and not adultery proper (zina), and the punishment would be some other form defined by the law of the Muslim country or by the judge (tazir), such as imprisonment.
It would normally be established by a claim from the woman’s side conjoined with circumstantial evidence (qarain).
Besides the court punishment, rape has no repercussions on the lineage of the child: the mother will still be considered the mother, and, if she is married, her husband would be the father of the child unless he takes legal steps to deny lineage.
How Islam Protects against Rape
Sexual dignity and lineage (ird) are one of the most important things in Islam. There are countless rules in Islam that seek to protect the inviolable right to protect one’s one body, dignity, and sense of family and belonging.
Marriage itself is one of the greatest institutions that protect against rape and sexual abuse. Just as it provides physical and emotional protection for women, it also abates sexual frustration, which can be one of the causes of rape. It is narrated that the Prophet (Allah bless him and give him peace) said, ‘When a man comes to you seeking marriage and has good religious practice and good character, then marry him [to one of your daughters]. If you do not there will be much tribulation on Earth, and far reaching corruption.’ (Tirmidhi)
It is worth noting that the right to get married is considered a basic need. If a man does not have the means to get married, he can receive zakat to help him do so. Please see:
http://www.aliftaa.jo/Question2En.aspx?QuestionId=503#.X7H6LFNKi0c
So too, of the basic financial support that offspring have to provide for their father is the dowry and funding needed to support a wife, if he has none. Among many other goals, this reduces the risk of illicit sex and rape (zina).
Another method that the Sacred Law has used to avoid the risk fo rape is forbidding seclusion with non- immediate relatives (maharim). The Prophet (Allah bless him and give him peace) said, ‘Let no man should be alone with a woman except when there is an immediate relative (mahram) with her.’ (Bukhari and Muslim)
In one warning from the US State Department about the dangers of rape for tourists in a certain country, it said, ‘Do not travel alone, particularly if you are a woman.’ It for this very observable reason that the Sacred Law has forbidden woman to travel alone. The Prophet (Allah bless him and give him peace) said, ‘Let no woman travel without an immediate relative (mahram).’ (Muslim)
As a severe deterrent, the Sacred Law has prescribed a very harsh punishment for rape (zina): being stoned to death. Besides the other general means to protect women, this is a very clear deterrent established by the Sacred Law to protect women from rape.
All of the above, among many other matters stipulated by the Sacred Law, all help to remove the causes and scenarios that lead to rape.
Family Defense Systems
No one anticipates rape, especially from family members. The sad truth, however, is that it happens. One of the best defense mechanisms is educating our children about it, teaching them reaction skills, and making sure the channels of communication are open. If someone in the family knows that all the little boys and girls know about it, have a set way to react to it, and can and will talk about with their parents and/or siblings, it makes it much, much harder to happen.
Please also see:
https://www.youtube.com/watch?v=cb4joVkLuRk
How Rape is Established in an Islamic Court
The default assumption is that everyone is innocent until proven guilty. Making a false claim about rape or adultery (qadhf) is a serious criminal offense that is punished harshly in the Sharia.
The default is that an adult (i.e. pubescent) women should take immediate action during or after the act of rape. She should scream out, run away, or tell the authorities as soon as possibly.
Most of the time this is not how it works. The victim (girl, boy or woman) is frightened and does not know how to react, there is a death threat, or other forms of blackmail. This often means that any claim of rape would be made years after the instance.
In such a case, if the claim was followed up by confession, the case would be over, and he would either be stoned to death, or if never married before the event happened, lashed and banished for a year.
Otherwise, for the crime to be legally considered adultery proper (zina), there would have to be four witnesses. Without four witnesses or a formal confession before the court, no one could be stoned to death for rape (zina).
That said, sexual abuse could still be established against the man (or woman for that matter), by the claim against him and circumstantial evidence.
For example, two women claim that their uncle raped them as children (Allah protect us all!). A combination of their claims, the family history, what others in the family witnessed etc. could all be used to show that the crime happened.
The punishment for sexual abuse that is not legally the same as adultery (zina) would not be stoning. Rather, it would be some other punishment set by the law of the Muslim country or by the judge (tazir), such as imprisonment. For example, according to Malaysian Law, Section 376 of the Penal Code states that whoever commits rape shall be punished with imprisonment for a term which may extend to twenty years, and shall be liable to whipping.
In cases of plausibly consensual sex, part of the court case would revolve around proving that the woman was genuinely forced. For example, if the woman claims that she was consensual to the point of penetration, and then wanted to stop, she would actually be confessing to adultery (zina) against herself. He would nonetheless be guilty of adultery (zina).
https://seekersguidance.org/answers/general-counsel/daughter-accused-husband-molesting-denies/
Repercussions for the Rapist
The repercussions for the rapist are primarily the legal punishment itself. If it established that a genuine rape (zina) happened, then if the rapist was married or had been married before (muhsan), he would be stoned to death. It would not be within the rape victim’s power to forgive this as it is the right of society that is defended by Allah (haqq Allah) that does not accept forgiveness.
If however he was not married and had never been married, the punishment would be being lashed and to cast out of town for a year. (Minhaj al Talibin)
The Prophet (peace and blessings be upon him) used to command someone who had committed illicit sex (zina) but had never been married (lam yuhsan) to be lashed a hundred times and banished for a year.’ (Bukhari and Muslim)
In the Shafi’i school, rape or any other form of sinful sex (zina) does not affect the validity of anyone’s marriage, or whether or not they are a mahram to anyone else. (Minhaj al Talibin)
If, for example, a father raped his daughter (Allah protect us all!), the father’s marriage to the mother would still be valid, and the daughter would be still be his daughter. They would just have to be separated for her protection.
Please also see:
The Rape Victim(s)
The sole legal consequence for the rape victim is the lineage of the child. The female rape victim would be considered the biological and legal parent of the child. If she was married, her husband would be the legal parent of the child unless it is physically impossible that it is his child (because, for example, he was in another country for the last few years). (al Majmu, Nawawi)
Otherwise, the legal father would have to legally negate the child’s lineage to him (nafy). If that did not happen, the child would be legally his.
The biological father will never be the legal father.
Please see:
https://seekersguidance.org/answers/general-counsel/dealing-problems-with-abusive-father/
Conclusion
Because the utterly destructive nature of rape, Islam has established a number of general and specific provisions to protect people from such sexual abuse.
Rape is usually only established by confession or four upright male witnesses. Given that normally does not happen, it will usually be treated by the court as sexual abuse and not be punished with stoning, but rather with imprisonment of the like.
The punishment for rape is the same as adultery (zina), and if there is a child it is the mother’s child, but not the biological father’s.
I pray this helps.
[Ustadh] Farid Dingle
Checked and Approved by Shaykh Faraz Rabbani
Ustadh Farid Dingle has completed extensive years of study in the sciences of the Arabic language and the various Islamic Sciences. During his studies, he also earned a CIFE Certificate in Islamic Finance. Over the years he has developed a masterful ability to craft lessons that help non-Arabic speakers gain a deep understanding of the language. He currently teaches courses in the Arabic Language.
