> Rape?

[Qatada]

Here is a fatwa on this issue, from the IslamToday.com committee:

Question: Is it really true that in Islam, four witnesses are required to prove a case of rape?

Answer: There is some confusion here. In Islamic criminal law, there are two types of punishment: the prescribed punishment (hadd) and the discretionary punishment (ta`zîr).

Prescribed punishments are those that are imposed by the sacred texts for certain crimes in the presence of certain evidence. When guilt is established by that evidence, it becomes obligatory upon the state to carry out the punishment as a religious duty. The judge does not have the jurisdiction to modify or waive this punishment.

The prescribed punishment for fornication is 100 lashes with a whip and for adultery, it is stoning to death. The evidence required for this punishment to be carried out is the testimony of four eyewitnesses of good character or a personal confession willingly given.

In Islamic Law, a ruler or judge may impose a discretionary punishment (ta`zîr) where no prescribed punishment is given in Islamic Law for a certain crime. Likewise, the ruler may decide to give a stricter punishment than the prescribed punishment.

It could be by imprisonment, whipping and in some cases killing. The Muslim scholars in Saudi Arabia, for instance, have decreed the death penalty for drug smugglers who bring large quantities of drugs into the Islamic society. No punishment for drug smuggling is mentioned in the Qur’ân and Sunnah.

Four witnesses are needed to establish unlawful sexual penetration – whether consensual or otherwise – for the Islamic prescribed punishment of flogging or stoning to death to be carried out.

In the absence of this evidence, the prescribed punishment (hadd) for fornication or adultery cannot be carried out.

However, the judge may use other forms of evidence to establish guilt and impose a discretionary punishment that he deems suitable for the crime.

Please refer to the following articles on our site:

DNA Analysis as Court Evidence in Criminal Cases
http://www.islamtoday.net/english/sh...sub_cat_id=538

Punishment for Rape
http://www.islamtoday.com/show_detai...&main_cat_id=6

We hope that this clarifies the matter for you.

Fatwâ Department Research Committee of IslamToday.net chaired by Sheikh `Abd al-Wahhâb al-Turayrî

The second link (Punishment for Rape) leads to this fatwa:

Question: What is the punishment for rape in Islam? What happens to the rape victim?

Answered by Sheikh Sulaymân al-`Îsâ, professor at al-Imâm University in Riyadh

If it is confirmed that a man engaged in sexual intercourse with a woman by threatening to kill her or by using some kind of drug or anesthetic, then his crime will be more serious than that of consentual sex.

The punishment thereto is death by execution. He will not be entitled to any pardon or reprieve whatsoever, regardless of whether he was single or married.

The one who forces sex upon someone else under threat of death is an evil and vile member of the society and should be purged. He is involved in an act of open violence and transgression against others and the spread of mischief throughout the land. His is the fate of bandits and highway robbers:

Allah says: “The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution or crucifixion or the cutting off of hands and feet from opposite sides or exile from the land: that is their disgrace in this world and a heavy punishment is theirs in the Hereafter.” [Sûrah al-Mâ’idah: 33]

A woman will not be punished if there is any reason to believe that she was forced into the act. The least evidence in this regard will be sufficient to save the woman from punishment. Our Prophet (peace be upon him) said: “Allah has pardoned my people for the acts they do by mistake, due to forgetfulness, and what they are coerced into doing” [Related by Ibn Mâjah and authenticated by al-Nawawî, Ibn Hajr, and al-Albânî].

Also, it was related by Ibn Abî Shaybah through Târiq b. Shahâb that a woman accused of adultery was taken to Caliph `Umar. The woman pleaded that she was asleep and woke up to find the man over her. `Umar released the woman. [The narration was approved by al-Albâni]. Ibn Qudâmah stated in his book al-Mughnî: “There is no punishment on the woman who was coerced into adultery.” (SOURCE)

As demonstrated in this fatwa, the punishment of Hirabah (armed robbery) is usually applied to rape.

[Qatada]

In summary of the fatawa that have been quoted, I'll list a few major points, insha'Allah:

1. The Islamic hudood (prescribed) punishments are intended to protect society from the spread of immorality. Hence, although the punishments are extremely severe, an equally high burden of proof is required to establish that the offence was publically witnessed. Consequently, Islam has set 4 witnesses who saw the act of penetration as the required evidence for the hadd punishment to be carried out for unlawful sex. This punishments are, as the IslamToday.com committee writes,

The punishments for fornication and adultery are designed more to protect society from the open practice of licentious sexual behavior than they are designed to punish people.

Since the hudood punishments are intended to protect society from the spread of immorality, they punish those offences that were committed publically, where many could witness. In this manner, the punishments serve as a means of denunciation and condemnation by society of the sin. This is why prescribed punishments have been attached to those offences that are committed publically, in order that there be a strong deterrent from spreading immorality in society.

2. This does not mean that if an offence is committed which does not meet the standard of evidence for a hadd (prescribed) punishment, that it will go unpunished. No, on the contrary, the Islamic legal system has ta'azir (discretionary) punishments as well as the prescribed punishments. These discretionary punishments form a major aspect of the penal code in an Islamic state as they are usually the more common punishments.

3. With regard to rape, if it meets the standard of proof (i.e. four witnesses) for the hadd punishment, then the rapist will recieve that. If there are not four witnesses, it does not mean that the rapist goes unpunished. So long as there is sufficient evidence to establishg the guilt of the rapist, he can be punished severely according to a ta'zir (discretionary) punishment.

4. The nature of the punishment can vary according to the nature of the rape (all though all punishments will be very severe). Depending on the use of weapons and the extent of the force used, a more severe punishment may be given, often the same as that given in the case of hirabah (armed robbery) (Qur'an 5:33). Victims of sexual assault are encouraged to report their cases to authorities so that justice may be served.


http://www.islamicboard.com/fiqh/461...tml#post130001

[Qatada]

Rape Statistics


Here are some rape statistics within the U.S.

General Rape Statistics

Every 2 minutes a woman is raped in the U.S.
72 of every 100,000 women are raped in the U.S. each year.
28% of women are raped by boyfriends.
35% of women are raped by acquaintances.
5% of women are raped by relatives.
Less than one third of all rapes are reported to the authorities.

Rape Situation Statistics
25% of rapes take place in a parking garage or public area.
68% of rapes occur between 6 p.m. and 6 a.m.
More than 45% of rapists were under the influence of drugs or alcohol.
Rapists used a weapon in 29% of all rapes.
The victim received external injuries in over 47% of all rapes.

Youth Rape Statistics
15% of rape victims are under the age of 12 (another source said as high as 22%).
29% of rape victims are between the ages of 12 and 17.
44% of rape victims are under the age of 18 (another source said as high as 54%).
80% of rape victims are under the age of 30.

College Rape Statistics
25% of college women have been victims of rape.
8.5% of college men admit to sexually abusing women - but don't consider that rape.
Of the women who were raped, only 25% described it as rape.
Of the women who were raped, only 10% reported the assault.
47% of the rapes were by dates and romantic acquaintances.

Date Rape Statistics
84% of women who were date raped knew their attacker.
Women who are 16-24 are more than four times as likely to be date raped.
90% of date rapes occur when either the victim or attacker was drinking.
33% of men said they would date rape someone if it could go undetected.
44% of women who were date raped have considered suicide.


Sources include RAINN, University of South Florida, Federal Bureau of Investigation (Uniform Crime Statistics, 1996), U.S. Department of Justice, Violence against Women (Bureau of Justice Statistics, U.S. Dept. of Justice, 1994)

It's saddening, the parts in red are acts which could have been avoided if Islam had been applied. i.e. most rapes are done when a stranger male or female are together alone, or when people are with people they shouldn't have been with etc. (i.e. while dating etc.)



It's also extremely sad because when people attack Islam for 'requiring 4 witnesses' to prove rape (when this isn't the case from the above fatawa) - they have a really low rape conviction level - which is really sad for the girl raped in countries like the UK.

The statistics are shocking: only 5.7% of rape cases reported to police lead to a conviction, the lowest rate in Europe. An increase in date rape cases, which are harder to prove, has been blamed for the conviction rate plummeting since the 1980s.

http://blogs.guardian.co.uk/news/200...e_victims.html

[Qatada]

Kamal Badr:

As the question mostly revolves around raped women, I?d confine my answer to that point, without delving into the issue of punishing the rapist, on which there is no controversy that if it?s proven, beyond reasonable doubt, that he?s guilty of the crime, he will serve the punishment.

But I?d like to make it clear that this crime can be proved either by confession or testimony or even through any modern means, thanks for the great revolution that has taken place in the field of science. This has made it easier for criminal experts to lay their hands on clear evidence that paves way for justice to run its course.

So what I?m trying to say is that, contrary to what some Westerners claim, the issue is not just ?bring four witnesses or set the accused free?. Shari`ah is not a legal system that keeps itself away from realities of life. Rather, it?s practical in the sense that its mechanism of justice operates in a quite flexible way that makes all its precepts and rulings applicable at all time. Anyway, as I?ve said, I won?t go into details on that now. (SOURCE)

Ahmad Kutty:

A woman who has been raped cannot be asked to produce witnesses; her claim shall be accepted unless there are tangible grounds to prove otherwise. To insist that she provide witnesses is akin to inflicting further pain on her. If anyone refutes her claim of innocence, the onus is on him to provide evidence, and she may simply deny the claim by making a solemn oath, thus clearing herself in public. The Prophet (peace and blessings be upon him) said, ?The onus to provide evidence falls on the one who makes a claim, and the one who denies (the same) can absolve himself or herself by making a solemn oath to the contrary.? (SOURCE, emphasis added)