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How on earth did punishment for rape victims get into Shariah?

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Author Topic: How on earth did punishment for rape victims get into Shariah?  (Read 2612 times)
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Ruhi_Rose
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« on: September 15, 2008, 05:13:14 am »




In the Noble Qur'an, we all know that there's absolutely NO punishment for rape victims.  

In fact, I haven't even come across any Hadith that mentions to punish a rape victim.  Let's check some extra Quranic literature for information.

I've often heard Hadithers say that if a woman is forced to commit illicit sex, then there is no hadd punishment inflicted on her.  Thus, Fiqh officially does not declare any such punishments.  Yet, they don't practice what they preach because the Shariah which they run is more than eager to punish a raped woman.  Not just that, but Shariah is also willing to quit the perpetrator.  Anyone can see how very far they've deviated not only from the Qur'an but also from their own man-made laws of Hadith. 

Nafi' related that Safiyya bint Abi 'Ubayd reported to him that slave who was part of government property [lit. of the amirate] had intercourse with a slavegirl of the khums and forced himself on her and deflowered her. 'Umar flogged him and exiled him and did not flog the slavegirl because she had been forced.

Az-Zuhri said about virgin slavegirl who was raped and deflowered by a free man that the judge should fine the man for the loss of her value as a virgin and then flog him. There was no financial penalty according to the imams in the case of a non-virgin. But the man should be flogged. 6549 - 93. Book of Coercion


The above two Ahadith reject punishment for rape victims.  So, I'll presume that Hadith is also against it - unless I'm overlooking some Ahadith that do support it.  After all, there are numerous contraditions with the Hadith literature itself.  If you have any information on this, do give your feedback. 

Okay, now let's proceed to some more information.

The Noble Qur'an says in Verse 33 of Surah An-Nur: “But force not your maids to prostitution when they desire chastity, in order that ye may make a gain in the goods of this life. But if anyone compels them, yet, after such compulsion, is God, Oft-forgiving, Most Merciful (to them)”

This verse clearly identifies two important things: Firstly, the efforts to forbid acts of force and sexual exploitation, and secondly, the support and assistance that should be offered to victims of sexual exploitation, in order that they will feel safe and believe in themselves again.  But as we can see, this ideology is not reflected in Shariah.  Perzinahan which is the term given to the act of consensual sexual intercourse outside of a valid marriage is identified with rape in Shariah. 

According to an article by Faqihudding Abdul Kodir:

Quote -----
Acts of rape also occurred at the time of the Prophet Muhammad, as is expressed in a text of the hadith narrated by Imam Turmudzi and Abu Dawud, from close friend Wail bin Hujr (see Ibn al-Atsir, Jami al-Ushul, IV/270, no 1823).

“One day (at the time of the Prophet) a woman left her house to go and pray at the Mosque. On her way she was met by a man who forced her to have sexual intercourse. The woman screamed while the man raped her. After he raped her the man ran away. A group of men (who accompanied the Prophet on his flight form Mecca to Medina) passed by the girl and she said to them (pointing in the direction of the man running) “that man just raped me”. They then ran after him and caught him and when face to face with the woman she said “yes that was the person”. They went to the Prophet and the man said “Yes Prophet it was me who did this”. The Prophet said to the girl “go now, God has already pardoned you”.

Those who committed acts of rape at the time of the Prophet were punished, while the victim was freed with the hope that they would obtain forgiveness form God.  At that time the punishment for rape – which had been carried out with force and violence was precisely the same punishment as those who committed perzinahan, which was not carried out with force or violence. As a result, the majority of religious teachers of the hadith and of fiqh place the act of rape on the same level as the act of perzinahan. The only difference is that with perzinahan both actors have to receive the punishment, while with rape only the rapist receives the punishment, while the victim is freed. But the threat of punishment facing both of the cases is the same.
Unquote ----

Therefore, if you read the words in color, you'll know where the ulemas and imams have bungled up this issue.  All along things were going right.  The rapist would be punished while the rape victim would be totally innocent.  But as time went by and negative interpolations from corrupt male-dominated minds began to proliferate, they switched the ideology the other way round.  Instead of punishing the rapist, the rape victim began receiving the punishment by equating rape with zina.  And of course, the Hadith writers did bring about the death penalty for both rape as well as adultery / fornication from the Christian Bible. 

Quoting Abdul Kodir a little more:

Quote -----
Several other texts of the hadith support this argument, as is seen in the narration by Imam al-Turmudzi:

“There was a girl who was raped (at the time of the Prophet), she was freed from punishment for perzinahan (sexual intercourse outside of marriage), while the perpetrator was subjected to punishment”

In the narration by Imam Bukhari and Malik, from Nafi mawla Ibn Umar it says: “That Shafiyyah bin Abi Ubaid reports: “that a male slave meets a female slave and forces her to engage in sexual relations, so Khalifah Umar ( a close friend of the prophet) says punish him with a lashings but do not punish the woman” (see Ibn al-Atsir, Jami al-Ushul, IV/269 no 1822).

The text of the hadith above have become a base for many Ulama of the hadith and fiqh in the argument of freeing the victim, the person who has been forced to partake in the evil act. It is not discussed in the context of emphasising the act of force used or the assistance needed for the victim. Imam Bukhari for example, places the hadith mentioned in a chapter with the theme ‘If a Woman is Forced to Engage in Perzinahan then She is not Subjugated to Punishment’. Ibn al-Atsir himself places the texts mentioned in the chapter ‘Punishment for those Forced and the Crazy People’. So, within cases of rape the victim is still considered to have carried out the evil act of perzinahan, but is freed from any threat of punishment because it was within a situation of force.

The element of force used within this evil act is discussed in fiqh Jinayah as an element which, can soften or free the victim (who has been forced) from punishment. But the element of force mentioned is not discussed concerning the punishment for the evil act of the person. Rape itself is indeed an evil act.
Unquote ------

At first it seems that this author is trying to absolve Bukhari.  It looks from his writings that Ibn al-Atsir (whoever he was) was one of the culprits who brought about this rule of punishing rape victims. 

I'm not at all sure what the author infers by those words in purple.  From what I gather he is trying to say that Fiqh does not associate violence with punishment.  I presume this would mean that a woman who have been forcibly violated is not subject to punishment.

However, at the end of the day, it's ample clear that even Hadith despite all its shortcomings, does not condone punishment for rape victims.

Yet, how the hell has this punishment come into existence among certain so-called Muslim circles?  I mean, we can't find any Hadiths nor any official sources of Fiqh endorsing this punishment.  But still it's there.   This is not just disgraceful but mind boggling too.


Excerpts taken from Hadith on incest and rape by Abdul Kodir.

(Apology, this link has been changed)
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Zainab_M
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« Reply #1 on: September 17, 2008, 03:50:13 am »


Yes .. very valid question.  And thanks for all the analytical points.  The most important issue to clarify here is, this is not a religious practice but a social norm in communities lacking in education of the Quraan. 

Punishing rape victims basically carries the same mindset as honor killing.  It originates from deeply patriarchal traditions that go way back into the pre-Islamic period.  When the body of a woman is violated, the male members of her family vent their anger and embarrassment on the poor woman (making her a victim of yet another violation) instead of her violator.  But weirdly enough, if a male member of their family commits rape, they find that act macho rather than embarrassing.  That's the extent of ignorance is some quarters. 

Though this is generally known as crime against women .. it's worth mentioning that nowadays in backward rural areas where these social cultures of punishing rape victims and honor killings are still practiced, many female members of such families willingly co-operate with the male members to participate in these crimes against their own daughters and sisters. 

Thanks for this piece Sister Ruhi.  Salaams and peace to you 🙂


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