by Dr. Ali Shehata
Rape
In Islam, rape is not classified as a distinct crime category in the Shari’ah law, which has led to some confusion concerning the punishment for it as will soon be discussed. Some poorly educated Muslims have falsely understood that rape needs to be evaluated under the heading of zina (fornication/adultery), whereas in actuality, rape falls under the category of Hiraabah, or terrorism crimes.
Hiraabah is an Arabic word which means ambushing people and frightening them with weapons or with the threat of force, killing them, terrorizing them and seizing their property by force and openly. Wealth is mentioned specifically because typically Hiraabah is associated with robbery, but the ruling applies equally to people who terrorize others for the purposes of rape. In Islam, Hiraabah is one of the most serious of the major sins, and it is forbidden according to the Quran and the Sunnah. In fact, God describes the punishment for terrorism in the Quran as follows:
Indeed, the penalty for those who wage war against God and His Messenger, and who strive to cause corruption upon earth, is that they be killed, or crucified, or that their hands and feet be cut off from opposite sides, or that they be exiled from the land. That is for them a disgrace in this world, and for them in the Hereafter is a great punishment. {5:33}
The Difference in Islamic Law between Adultery and Rape
The early Islamic scholars, most notably al-Dasuqi and Abu Bakr ibn al-‘Arabi, explained the reason why rape is to be considered a crime of Hiraaba as opposed to a crime of zina (fornication or adultery). Ibn al-‘Arabi relates a story in which a group of travelers was attacked and a woman in their party was raped. Responding to the argument that the crime did not constitute Hiraabah because no money was taken and no weapons were used, Ibn al-‘Arabi replied that "Hiraabah with the private parts" is much worse than Hiraabah involving robbery, and that anyone would prefer to be robbed than to be raped.( Sabiq, A.-S. (1972). Fiqh al-Sunnah. al-Qa¯hirah: Da¯r al-Kita¯b al-Isla¯mi¯) This classification is logical, as the "taking" involved in such a case is that of the victim’s property (the rape victim’s dignity and sense of security) by force.
Thus, rape as Hiraabah is a violent crime that uses sexual intercourse as a weapon. The focus then in a Hiraabah prosecution is the accused rapist—specifically his intent and physical actions—and not second-guessing the consent of the rape victim. Hiraabah does not require four witnesses to prove the offense as has sometimes mistakenly been believed by some of the pseudo-Shari’ah councils making headlines today in rural Pakistan and Nigeria. Instead, the prosecution is based on circumstantial evidence, medical data and testimony.
Consequently, establishing that a criminal case is that of rape is extremely critical because in an Islamic court, it could mean the difference between life and death to the perpetrator. Hence, a thorough evaluation is performed to determine if the person accused actually committed the crime. If evidence shows that the intercourse was consensual and the alleged rapist was unjustly accused, both of them would be determined to have committed zina (fornication or adultery), and both of them would be punished for it.
The Western Secular Punishment for Rape
Reviewing the current criminal punishment trends in the West in general, and the US in specific, one begins to understand the great frustration that doctors, police officers, families and rape victims feel when it comes to rape. Reports have shown that nearly seventy percent of rapes are not reported to law enforcement in the US.( Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, National Crime Victimization Survey, 2010-2014 (2015)). What are the reasons behind these staggering statistics? First, it is important to get a grasp on the actual prevalence of the problem.
In 2002, there were 247,730 victims of rape, attempted rape or sexual assault. Of these victims, about 87,000 were victims of completed rape, 70,000 were victims of attempted rape, and 91,000 were victims of sexual assault. (2002 National Crime Victimization Survey, U.S. Department of Justice)
According to the U.S. Department of Health and Human Services, there are over 60 million survivors of childhood sexual abuse in America today—that’s approximately 20% of the US population. (Central MN Sexual Assault Center: https://cmsac.org/facts-and-statistics/)
Every 2 minutes, somewhere in America, someone is sexually assaulted. (2002 National Crime Victimization Survey, U.S. Department of Justice )
Up to 4,065 pregnancies may have resulted from such attacks. (Rape and Incest National Network (RAINN) estimate, based on 2002 National Crime Victimization Survey, U.S. Department of Justice)
Factoring in unreported rapes, about 6% of rapists will ever spend a day in jail.( Central MN Sexual Assault Center: https://cmsac.org/facts-and-statistics/ )
In the UK, approximately 50,000 rapes are estimated to occur each year, but only 600 rapists are sent to jail. In 1985, there was a 24% conviction rate in rape trials, yet by 2003, it had fallen to just 5%. (Sawyer, M. (2003, Jul 31).50,000 rapes each year, but only 600 rapists sent to jail. Retrieved from: https://www.theguardian.com/uk/2005/jul/31/ukcrime.immigrationpolicy )
Why is rape so common in an open society like America? While there are several contributing factors, if the punishment for a particular crime carries little or no risk relative to the possible benefits of the crime, then the criminal is more likely to do the crime. Unfortunately, as economist W. Kip Viscusi noted, “the risks posed by the criminal enforcement system [in the West] are notoriously low and data show that youthful criminals know it." (Viscusi, W. (1986). The Risks and Rewards of Criminal Activity: A Comprehensive Test of Criminal Deterrence. Journal of Labor Economics, 4(3), 317-340. Retrieved from http://www.jstor.org/stable/2535056 )
Indeed, the data on the criminal prosecution of rape in America are appalling. Of course, the nearly 70% of rape/assaults that are not reported to law enforcement never end in any jail time or punishment for the perpetrator. But what of those that are reported? Is there any connection between reporting rape and receiving any justice for victim? Unfortunately, the numbers are not encouraging. Reviewing the data that RAINN (Rape, Abuse and Incest National Network) has compiled we see that out of every 1000 rapes: (https://www.rainn.org/statistics/criminal-justice-system)
310 are reported to police.
57 reports (18% of those reported) lead to an arrest.
7 cases (2.25% of those reported) will lead to a felony conviction.
6 rapists (1.9% of those reported) will be incarcerated.
Furthermore, RAINN reports that perpetrators of sexual violence are less likely to go to jail or prison than other criminals.
So considering the very real risk of potential reprisal by the rapist, or the social stigma, compared with the exceedingly small record of convictions, most women in the West will choose to never report rape.
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