Breaking the Silence: An Islamic Legal Approach to Facilitating Reporting and Testimony by Muslim Victims and Witnesses of Sexual Crimes

Abstract

Many Muslims hold the doctrine of the legal schools (madhāhib) in high esteem. As such, the schools’ approaches to rape and sexual assault may impact the behaviour of Muslim victims and witnesses. Through an examination of the legal rules that regulate rape and sexual assault in fiqh and fatwā works associated with the four Sunni schools and Ibn Ḥazm, I aim to determine whether the relevant rules may interfere with the willingness of Muslim victims and witnesses to report or testify to sexual crimes. I argue that although the jurists’ prosecution of sexual assault as a discretionary offence (taʿzīr) is compatible with reporting and testimony, their prosecution of rape as coerced illicit intercourse (zinā), usurpation (ghaṣb), or banditry (ḥirāba) silences victims and witnesses. Further, rules related to financial compensation do not encourage victims to come forward. Reclassifying rape as a discretionary offence would better promote reporting and testimony by victims and witnesses. The central role of ijtihād in creating the historical rules on rape, the jurists’ intent behind those rules, and modern knowledge regarding the reality of rape support this reclassification. Fully resolving issues related to civil compensation is difficult without broader reforms of Islamic tort law.

1. Introduction

Statistics on sexual assault are sobering. According to a Canadian government survey from 2018, 30% of women and 8% of men aged 15 and older have been sexually assaulted since age 15 (Cotter and Savage 2019).1 In Malaysia, an average of five women file rape reports each day (Fernandez and Mohamad Nor 2019, p. 3), a number that likely understates the extent of sexual violence given the country’s narrow definition of rape and the fact that many sexual crimes are not reported. As indicated by the worldwide #MeToo movement, sexual crimes impact victims of all nationalities, ethnicities, and religions. Although issues such as low rates of criminal prosecution and victim blaming are widespread (Cotter and Savage 2019; Temkin 2002), addressing the specific legal and social barriers that impede satisfactory resolution of sexual crimes in a particular geographic region or population may result in more effective solutions than a one-size-fits-all approach.

Many Muslims hold the rules set out by jurists in legal manuals (fiqh books) and legal opinions (fatwās) in high esteem, regardless of whether these rules find expression in state law. When a sexual crime is committed, jurists’ positions on reporting and testimony may guide the actions of Muslim victims and witnesses. In turn, they may impact the Muslim community’s ability to foster an environment that supports victims of sexual crimes and facilitates the investigation and potential prosecution of offenders.

There is significant debate within academia on the scope of Islamic law. While some scholars argue that Islamic law encompasses court judgments that appear to conflict with blackletter rules in fiqh and fatwā works, other scholars argue that such judgments are a deviation from Islamic law.2 Further, scholars disagree on whether legislative codes constitute Islamic law.3 These differences arise from the fact that fiqh and fatwā are understood to be part of the science of the law in contrast to state decrees or legislation, which are the product of a particular legal will (siyāsa). The controversy arises as to whether acts originating in the will of office holders are properly part of Islamic law or external to it.

The present article focuses on Islamic law as represented in fiqh and fatwā works. This restriction is intended to maintain a manageable scope rather than negate the possibility that court decisions and siyāsa may be legitimate expressions of Islamic law. A future analysis of pre-modern and contemporary judicial decisions and legislation on sexual offences could nuance the suggestions presented in this essay. Given many Muslims’ high regard for fiqh and fatwās, understanding jurists’ approaches to sexual crimes in these genres and examining potential reforms within the fiqh framework are important steps. The discussion will resonate with Muslims living as minorities who seek to model their personal conduct on the opinions of the four schools, and Muslims residing in Muslim-majority states who consider jurists’ rulings, rather than legislation modelled on former Western colonial powers, as the basis for an Islamically sound lifestyle.4

The approach to regulating sexual crimes in fiqh and fatwā works may differ from the empirical reality of rape and sexual assault as understood today. For example, contemporary research shows that rape victims experience long-term effects, such as disruptions to their personal relationships, behavioural changes, and persistent feelings of fear (Temkin 2002, p. 2). Further, modern discourse usually assumes that legal prohibitions against rape exist to protect female sexual autonomy (Coughlin 1998, p. 2) and that rape is a crime against the victim herself, not against her husband or father (Stanford Encyclopedia of Philosophy 2021). These understandings sometimes conflict with historical approaches to rape. For example, rather than protect sexual autonomy, historical American rape laws sought to relieve rape victims of criminal liability for adultery or fornication, and thus placed a substantial burden on victims to prove duress (Coughlin 1998).

Articles on the Islamic legal approach to sexual crimes often present a simplified narrative. For example, some Muslim community leaders and academics claim that Islamic law prosecutes rape as banditry (ḥirāba) (Bint Younus 2018; Quraishi 1997), likely because the violent nature of banditry aligns with contemporary notions of rape as an assault on the victim’s bodily integrity. While it is accurate that some fiqh and fatwā works contain this position, most jurists did not conceive of rape as banditry. Although an in-depth examination of mainstream fiqh positions on sexual crimes may be discomfiting, a comprehensive reading increases the chance that recommendations regarding the (non-)application of the historical positions to sexual crimes today will be accepted by educated Muslims with a commitment to fiqh and helps ensure that proposed reforms of the pre-modern positions remain rooted in the broader fiqh tradition.

With the goal of reducing Muslims’ hesitancy to report and testify to sexual crimes, this article examines the rules on rape and sexual assault in fiqh and fatwā works and investigates the possibility of adopting a novel Islamic approach to rape that is consistent with the principles of fiqh. I argue that although jurists’ classification of sexual assault as a discretionary offence (taʿzīr) broadly facilitates reporting and testimony, their classification of rape as illicit intercourse (zinā), usurpation (ghaṣb), or banditry (ḥirāba) silences victims and witnesses. I propose reclassifying rape as a discretionary offence and contend that this reclassification is consistent with the Quran and ḥadīth, the historical evolution of fiqh rules on rape, and the intent of the pre-modern jurists. In the area of civil compensation, I argue that supporting rape and sexual assault victims requires far-reaching reforms of Islamic tort law.

The first main section provides a short summary of Islamic criminal and tort law concepts relevant to rape and sexual assault. The following two sections discuss jurists’ approaches to prosecuting sexual assault and rape, respectively. The final section examines civil claims for compensation. Throughout this article, “rape” refers to non-consensual vaginal intercourse between a male aggressor and a female victim.5 “Sexual assault” encompasses all other non-consensual sexual violations, such as sexual touching, digital penetration, and oral sex. I have excluded spousal rape and spousal sexual assault, as they require examination of the Islamic law of marriage. Further, I do not discuss historical doctrines involving slaves nor do I examine the rape of a male victim by a female aggressor.6 This article focuses on Sunni law, in particular, the Mālikī, Ḥanafī, Shāfiʿī, and Ḥanbalī schools and the positions of Ibn Ḥazm.7

2. Summary of Islamic Criminal and Tort Law

Islamic criminal law comprises two main branches, both of which are relevant to sexual crimes: set offences (ḥudūd, singular ḥadd) and discretionary offences (taʿzīr).8 The ḥudūd consist of six offences for which the punishment has been explicitly stipulated in the Quran or ḥadīth: theft (sariqa), illicit intercourse (zinā), slander (qadhf), drinking alcohol (shurb al-khamr), banditry (ḥirāba), and apostacy (ridda).9 The ḥadd crimes of zinā, slander, and banditry are relevant to rape.

Although conviction for a ḥadd offence entails severe corporal punishment or death, the high evidentiary burden often precludes a finding of guilt. For example, conviction for most ḥadd crimes requires eyewitness testimony rather than circumstantial evidence. Further, doubt (shubha) regarding the accused’s guilt prevents conviction.10 The high evidentiary standards for the ḥadd crimes suggest that the ḥudūd mainly function as deterrents.

Most criminal conduct falls under the heading of discretionary offences. Under this category, government officials can enact penalties for any type of ill conduct. Discretionary offences often involve acts unrelated to the ḥudūd, such as fraud or vandalism; however, acts related to the ḥadd crimes may be prosecuted as discretionary offences when the evidence falls short of the stringent standards required for the ḥadd penalty. For example, although theft that was not witnessed by two upright men cannot result in a conviction for the ḥadd crime of sariqa, the thief may be liable to discretionary punishment.

Both the ḥudūd and discretionary offences incorporate consensual sexual acts. For example, the ḥadd crime of zinā includes consensual adultery and fornication, and the category of discretionary offences includes consensual fondling by a non-married couple. This is because Muslim jurists from all schools of law hold that sexual acts are only licit within marriage (or between a male master and his female slave). The legal approach to non-consensual sexual violations often mirrors that of consensual acts.

Islamic tort law regulates claims for bodily injury through the principles of retaliation (qiṣāṣ) and monetary compensation. The concept of retaliation, i.e., an eye for an eye (lex talionis), has almost no application to sexual injuries. Instead, the victim may demand compensation, which may be a pre-determined amount (diya or arsh) stipulated in legal treatises or a judicially determined sum (ḥukūma). Unlike the common law, Islamic tort law does not compensate for injuries that heal or for non-physical harm.

3. Prosecution of Sexual Assault

The rules regulating sexual assault in fiqh and fatwā works pose minimal barriers to reporting and testimony by victims and witnesses. Jurists’ classification of sexual assault as a discretionary offence provides Muslim communities with the flexibility to prosecute sexual assault in a manner appropriate to their time and place. Many statements in legal texts confirm this classification. For example, Ḥanafī jurist Al-ʿAynī (d. 1451 CE/855 h) mentions:

Whoever penetrates a woman with whom he does not have a licit relationship outside of her vagina, such as in her bellybutton or on her thigh or similar to this … receives discretionary punishment (taʿzīr). […] [Discretionary punishment applies since] there is no punishment specifically stipulated in the law. Shāfiʿī and Mālik agree [that discretionary punishment applies], as well as Aḥmad according to one narration, and according to his other narration the man is killed.11

(Al-ʿAynī 2000, 6:308)

Jurists do not discourage victims from reporting discretionary offences, nor do they restrict male witnesses from testifying. Unlike rape cases, witnesses are not liable to punishment for slander (qadhf) when their testimony does not result in a conviction.

However, gendered witness requirements may discourage reporting and testimony. Depending on their school affiliation, jurists either require two female witnesses in place of one man or exclude women’s testimony in sexual assault prosecutions. For example, commenting on same-sex female frotting (tasāḥuq), Mālikī jurist Al-Dusūqī (n.d.) (d. 1815 CE/1230 h) mentions that the offence is only established by “two upright men … not by one man and two women or one man and an oath since it is not a property matter or anything that gives rise to financial compensation” (4:316).12

The rejection of female testimony precludes conviction in cases that turn on the testimony of the victim herself or on the testimony of female witnesses. The requirement of two female witnesses in place of one male may discourage religious women from testifying in a secular court that accords equal value to their testimony. Further, it may deter vulnerable victims from reporting by implicitly validating the stereotypical notion that allegations of sexual misconduct by female complainants must be treated with suspicion.

Although the classification of sexual assault as a discretionary offence generally supports reporting and testimony, it is necessary to rethink the historical restrictions on women’s testimony. Numerous scholars have argued that Islamic law should grant equal weight to testimony by women and men. For example, drawing on historical tensions regarding the weight accorded to women’s narrations and testimony, Mohammad Fadel (1997) concludes that modernist interpretations that grant equal weight to female testimony do not represent a radical break from the past.13 Muslim communities seeking to support victims of sexual crimes and promote accountability for sexual misconduct can draw on existing studies to uphold the equality of female testimony while adhering to the other rules on sexual assault contained in standard works of Islamic law.

4. Prosecution of Rape

In fiqh and fatwā works, jurists prosecute rape as a ḥadd offence or a property claim. Both approaches impede reporting and/or testimony. Although these methods of prosecuting rape account for the matrix of moral values around sex recognized by pre-modern jurists, they do not adequately address the empirical reality of rape as understood today. While minority positions held by Mālikī jurists and by Ibn Ḥazm partially reduce the barriers facing rape victims and witnesses, they are insufficient to remove those barriers completely. Rather than rely on the received blackletter doctrine, I contend that it would be preferable to reclassify rape as a discretionary offence and that this reform is compatible with the broad principles of Islamic law.

In the first subsection, I examine rape prosecutions under the crime of zinā. The second and third subsections discuss rape prosecutions under usurpation (ightiṣāb) and banditry (ḥirāba), respectively. The fourth subsection analyses the possibility of reclassifying rape as a discretionary offence.

4.1. Rape as Zinā

All Sunni jurists hold that rape is a coercive form of zinā (illicit intercourse).14 With the exception of the Mālikīs, the schools of law only prosecute rape under this heading. Fiqh and fatwā works refer to rape using expressions that denote a lack of consent to zinā, such as “zinā by coercion” (al-zinā bi’l-ikrāh). If convicted, the rapist receives the ḥadd punishment for zinā, namely 100 lashes if he is a virgin (bikr) or death by stoning if he is a non-virgin (muḥṣan), whereas the victim is relieved of liability due to coercion.15 As noted by Ḥanafī jurist Al-ʿAynī (2000), conviction for zinā is rare (6:325).16 Unless the rapist freely confesses, a finding of guilt requires the testimony of four upright male eyewitnesses to the act of intercourse, and their testimony must agree in all aspects, such as the time and place of the offence.17 Further, the rapist (or consenting parties in cases of consensual zinā) can claim a variety of excuses (shubha) that prevent a finding of guilt, such as the mistaken belief that the woman was his wife.18

While the low probability of conviction may discourage some witnesses from testifying, the doctrine of slander nearly guarantees their silence. Slander (qadhf), i.e., an unproven accusation of zinā, is another ḥadd crime. If the witnesses fail to establish the offence of zinā because their number is less than four, or according to some jurists if their testimony does not agree in all details, the zinā prosecution fails and the witnesses receive 80 lashes for the crime of slander.19 There are no exceptions for rape, which is equivalent to consensual zinā aside from the victim’s lack of criminal liability.20

Similarly, the prosecution of rape as zinā deters victims from reporting. Jurists do not exempt rape victims from the general rule that an unproven accusation of zinā entails liability for slander except if there are impediments to liability. Examples of impediments include the slandered person’s (maqdhūf’s) lack of chastity, unclear speech that only implies zinā, and the slandered person’s decision not to request the ḥadd punishment or to forgive.21 The schools do not place claims of coercion among these impediments.

The small number of fatwās that discuss a rape victim’s liability to slander confirm that victims who report the crime are liable to the ḥadd punishment for qadhf. A relevant Shāfiʿī fatwā states:

He was asked about a woman who says, “so-and-so seduced me or came to my house” and he denies this. Does she receive discretionary punishment for this statement?

He replied that she receives discretionary punishment since she has caused harm.

(Al-Ramlī n.d., 3:347)

This fatwā concerns an indirect accusation of zinā, likely of a non-consensual nature. The woman’s accusation renders her liable to discretionary punishment for harm (īdhā) instead of the ḥadd punishment for slander. Shāfiʿī jurists hold that allegations of zinā or other sexual improprieties that do not fulfil all elements of the crime of slander give rise to discretionary punishment (Al-Bayjūrī 1999, 2:440). The imposition of discretionary punishment for the woman’s indirect accusation of rape implies that she would be liable for slander were the accusation direct.

A second Shāfiʿī fatwā is more explicit:

Issue: It reached the shaykh of the town that a man was having intercourse with his daughter. The girl was asked, and she claimed that her father was coercing her. The shaykh sent a group [to investigate], so they listened as she was reproaching him for wanting this [intercourse] from her.

[Answer:] It is not permissible to prove the ḥadd crime of zinā based only on this evidence. Rather, it is necessary that he confess, or that testimony be established that they saw him while he had entered his penis into her vagina. If that is established, and we seek refuge from God, then the man is stoned to death and she is exonerated of zinā due to her claim of coercion because of the Prophet’s saying, “deflect the ḥadd punishment in cases of doubt”. His guilt, however, is not proven by his daughter’s statement; rather, her statement establishes that she has slandered her father and therefore receives the ḥadd punishment of 80 lashes. It is incumbent on the ruler to ensure they are separated except in circumstances where there is an impediment preventing them from being alone…

(Al-Ahdal 2002, 4:31)

This fatwā reiterates the identical evidentiary requirements for consensual zinā and rape, and it indicates that a rape victim’s complaint constitutes slander. Coercion is a defence to criminal liability for zinā, not a sword to bring criminal charges or to subject the rapist to public scrutiny for sexual misconduct. If the rules are not bent for a victim who confirms, upon being asked, that her father is sexually abusing her, a fortiori there is no exemption from slander for victims who bring unsolicited rape claims.

Similarly, Delfina Serrano (2007) mentions two fatwās by Cordovan Mālikī jurists, which hold that a woman who appears before a judge to claim that a man deflowered her is liable to punishment for slander.22 Likewise, Hina Azam states regarding the Ḥanafī school:

The Ḥanafī texts reveal no means by which a rape victim can herself bring charges against her assailant. […] There are witnesses, yes, who act on behalf of God and the community, and can bring forth charges against one who has committed a ḥadd crime … But in the Ḥanafī vision, the rape victim herself disappears from view. […] What we find, instead of an active right to petition for redress for sexual violation, is a passive right, to defend herself by claiming coercion …

(Azam 2015, pp. 197–98)

While jurists routinely mention the availability of discretionary punishment for certain ḥadd crimes such as slander and theft if the evidence falls short of the high evidentiary standards associated with the ḥudūd, fiqh and fatwā works are devoid of statements that suggest that zinā defendants may likewise receive discretionary punishment. Without the testimony of four eyewitnesses or a freely made confession, jurists who classify rape as zinā do not seem to contemplate any punishment for rapists. Azam’s observations regarding Ḥanafī doctrine through the twelfth century CE also apply to later Ḥanafī treatises and to the writings of Shāfiʿī and Ḥanbalī jurists:

Because there was conceptually no way to prove rape without proving zinā, dismissal of evidence for zinā automatically meant dismissing rape charges. There was no alternative category whereby coercive sex could be established outside the parameters of zinā. The substantive and evidentiary inextricability of consensual and coercive zinā restricted penal options as well, for it meant that there was no alternative discretionary (taʿzīr) penalty that a judge could apply when the evidence pointed to sexual violation, but was not sufficient to meet the zinā standard. Nowhere do we see these Ḥanafī jurists recommending taʿzīr in cases when the evidence points to coercive zinā but falls short, or when the judge seeks to avert the ḥadd but impose [sic] a discretionary penalty instead, as he may do in cases of theft.

(Azam 2015, pp. 194–95)

The evidentiary rules that silence victims and witnesses do not necessarily imply that jurists intended to prejudice rape victims. Jurists classified zinā as a transgression against God’s rights (ḥuqūq Allāh) rather than a crime against a person.23 Since an individual who commits zinā has sinned against divine rules restricting intercourse to marriage but has not violated the rights of another person, the sin should not be publicized. Instead, the guilty party should privately repent to God. Thus, Mālikī jurist Al-Kharshī (n.d.) (d. 1690 CE/1101 h) states: “If you asked, ‘why does zinā require four witnesses’, one would reply, ‘due to the aim of concealing sins (satr) and averting shame from the defendants and from the woman’s family’” (7:198).

Jurists did not differentiate between consensual illicit intercourse and rape, as they “do not seem to have recognized in any meaningful way that sex itself could be an instrument of harm” (Azam 2015, p. 200).24 Jurists appear keen to avert injustice from rape victims, for example, by exempting them from the ḥadd penalty and by granting compensation for permanent physical injuries resulting from rape (on compensation, see Section 5). While contemporary scholars understand that rape is a traumatizing act that uses sex as an instrument of violence, pre-modern Muslim jurists seemingly envisioned rape as an illicit means to fulfil sexual desires. This disconnect makes contemporary application of rules that privilege private repentance over accountability highly problematic despite the best intentions of the jurists.

Ibn Ḥazm stands out for holding positions that partially reconcile the categorization of rape as zinā with the modern interest in encouraging testimony and reporting. Unlike the four schools, Ibn Ḥazm (n.d.) distinguishes testimony (shahāda) to zinā from a mere accusation of zinā (al-ramy bi’l-zinā) (12:211–13). Whereas the latter constitutes slander, testimony does not, even if there are less than four witnesses or if they disagree on the details of the offence. As for reporting by victims, Ibn Ḥazm (n.d.) distinguishes between a claim and an accusation intended to impose shame (ʿayb) and censure (dhamm) (12:258–61).25 While a woman who makes an accusation intended to cause shame and censure is liable for slander, a victim filing a rape complaint (mushtakiya muddaʿiya) is not.

Ibn Ḥazm’s positions reduce, but do not fully resolve, the problems associated with prosecuting rape as zinā. For example, witnesses may hesitate to testify for fear of making an accusation. Likewise, victims may hesitate to report because their claim could be interpreted as slander, particularly as many victims are not believed (Temkin 2002). In addition, Ibn Ḥazm’s distinctions do not substantially increase the likelihood of conviction for zinā, as they do not alter the requirement of four eyewitnesses.

In light of these issues, it may be preferrable to adopt an alternate Islamic approach to prosecuting rape. The following subsections examine whether alternative Mālikī approaches to rape are suitable candidates or whether contemporary Muslims should consider adopting a novel approach to rape that is rooted in Islamic principles but differs from the rules laid out by the pre-modern jurists.

4.2. Rape as Usurpation (Ightiṣāb)

While the Ḥanafīs, Shāfiʿīs, Ḥanbalīs, and Ibn Ḥazm only prosecute rape as zinā, Mālikī jurists allow rape prosecutions under the alternate legal category of usurpation (ghaṣb or ightiṣāb). The resolution of rape cases under usurpation presents advantages over zinā in circumstances that involve a witnessed kidnapping; however, in other situations, it creates significant hurdles for rape victims. The objective of usurpation claims, namely protecting rape victims from miscarriages of justice, suggests the desirability of adopting a novel Islamic approach to rape that promotes justice by accounting for the empirical realities of rape unknown to medieval scholars.

Usurpation relates to the illegal seizure of property, moveable or immovable, tangible or intangible. Mālikī jurists include kidnapping a woman for intercourse among the situations that may give rise to a claim of usurpation. As a property law claim rather than a ḥadd crime, witness requirements are less stringent. The testimony of two male witnesses to the act of usurpation and the victim’s claim that the defendant had intercourse with her entitles her to compensation in the form of the dower (mahr al-mithl), regardless of whether she was a virgin or non-virgin (ʿAbd al-Salām 1998, 2:587–88). Further, the perpetrator is liable to discretionary punishment (Al-Dardīr n.d.b, 3:583). While not mentioned explicitly in the context of rape, the Mālikī rules of evidence suggest that one male and two female witnesses, or one male witness and the victim’s oath, or two female witnesses and the victim’s oath also suffice.

The witnesses testify that the assailant carried the woman out of sight in their presence such that intercourse was possible (ʿAbd al-Salām 1998, 2:587–88). Since there is no mention of vaginal penetration, the witnesses are not liable to the ḥadd punishment for slander. Further, principles intended to avoid conviction for the ḥudūd, such as doubt (shubha), do not apply. At first glance, the attainable evidentiary standards and the absence of rules that discourage testimony or reporting imply that the doctrine of usurpation could underpin initiatives that encourage Muslim rape victims and witnesses to speak out.26

However, the resolution of rape cases under usurpation is highly problematic in circumstances that do not involve a witnessed kidnapping, such as sexual abuse in the home. Absent a witnessed kidnapping, Mālikī jurists hold that the outcome of the usurpation claim depends on three factors: the character of the defendant, the character of the claimant, and the presence or absence of taʿalluq (immediacy of the claim and circumstantial evidence).27 If a judge finds that the accused is righteous, the victim’s rape claim renders her liable to punishment for slander.28 For rape claims against men of unknown character, chaste women who demonstrate taʿalluq are not liable to slander; however, those who fail to meet the taʿalluq requirement or who are not known to be chaste may be punished for slander. Only if the man is deemed to be of corrupt character is the victim free from liability for slander regardless of her own chastity or whether she demonstrates taʿalluq.

A rape victim’s liability to punishment for slander in situations that do not involve a witnessed kidnapping places a chill on reporting. Further, the use of character judgments and the immediacy of the claim as arbiters of the complainant’s truthfulness conflicts with the empirical reality that some seemingly ‘good’ men engage in sexual misconduct, ‘loose’ women do not necessarily consent to every sexual encounter, and rape victims often hesitate before reporting the crime (Temkin 2002). The erroneous assumptions inherent in the rules of usurpation are unsupportive of victims and impede their ability to speak out within or outside of the justice system.

Despite the problems associated with rape claims under usurpation, it appears that jurists intended to protect bona fide rape victims. Unlike the other schools, Mālikī law allows circumstantial evidence in zinā cases in the form of pregnancy and childbirth out of wedlock. To avoid unjustly convicting an unmarried rape victim of zinā on the basis of pregnancy or childbirth, the victim could bring a claim of usurpation.29 In the worldview of the pre-modern Mālikī jurists, the immediacy of her claim and the characters of the victim and the accused were accurate measures of the truthfulness of her allegation. The goal of avoiding miscarriages of justice suggests the legitimacy of revising the pre-modern fiqh rules to account for empirical realities unknown to the jurists.

4.3. Rape as Banditry (Ḥirāba)

The final method of prosecuting rape in fiqh and fatwā works classifies rape as banditry (ḥirāba or qaṭʿ al-ṭarīq). The rules of banditry do not sufficiently support rape victims and promote accountability for sexual crimes; however, the classification of rape as a violent act of banditry, rather than illicit intercourse or a property crime, supports modern reforms that build upon the notion of rape as a crime of violence.

Banditry is a ḥadd crime that relates to interfering with the safe passage of wayfarers or brazenly stealing their property. While most jurists hold that banditry is distinct from rape, some later Mālikī jurists classified select types of rape as banditry. The first Mālikī jurist to introduce this conception of rape appears to be Ibn al-ʿArabī (d. 1148 CE/543 h), who states:

The Judge [Ibn al-ʿArabī], may God be pleased with him, said: During the days of my judgeship, some people were brought to me who had gone out as bandits to attack another group. They violently seized from that group a woman, whom they took against her will, from her husband and from the group of Muslims with her, and they took her away. Then an appeal was put out for them and they were captured and brought forth. I asked those judges through whom God tested my patience, and they said, “they are not bandits because banditry is a crime that entails violation of property, not violation of sexual rights”. I said to them, “to God we belong and to Him we return! Do you not know that banditry where the aim is rape is viler than banditry which seeks others’ property, and that all people would rather have their property disappear or be plundered from their hands than for their wife or daughter to be raped? If there were any punishment more severe than what God stated for banditry, it would be for the one who uses terror to commit rape. To be tried by the company of such ignoramuses is enough of an ordeal, especially when they are engaged in fatwās and are appointed as judges”.

(Ibn al-ʿArabī 2003, 2:95)30

Ibn al-ʿArabī’s novel classification of rape, which emphasizes its horrendous and violent nature, was accepted by some subsequent Mālikī jurists, such as Al-Dardīr (d. 1786 CE/1201 h) and Al-Ṣāwī (d. 1825 CE/1241 h).31 The notion that rape terrorizes its victims aligns with modern sensitivities. Further, the evidentiary requirement of two eyewitnesses for banditry, rather than the four needed for zinā, and the fact that testimony to banditry does not give rise to liability for slander make the classification of rape as banditry more suitable for modern application than the categories of zinā or usurpation.

However, some aspects of banditry are incompatible with contemporary expectations. Since banditry is a crime related to interfering with the passage of wayfarers, jurists only classified rape as banditry in situations involving interference with public passage along roadways (Al-Bannānī 2002, 8:189; Al-Qurṭubī 1964, 6:156; Al-Ṣāwī n.d., 4:491). It seems that rape cases without the element of interference with public passage would proceed under zinā or usurpation.32 Extending the conception of rape as banditry to other circumstances would necessitate reform of the pre-modern doctrine.

In addition, the requirement of two eyewitnesses would result in an acquittal in many rape cases. Since banditry is a ḥadd crime, it is not possible to modify the high standards of evidence without impacting principles that regulate the ḥudūd as an entire legal category, such as the undesirability of conviction. Further, victims reporting an act of penetrative intercourse in explicit terms could be liable to punishment for slander when there is insufficient evidence to support a conviction for banditry. In light of these issues, it may be preferrable to adopt a novel Islamic conception of rape that incorporates the advantageous aspects of banditry while avoiding its shortcomings.

4.4. Rethinking the Legal Classification of Rape

The prosecution of rape under zinā, usurpation, and banditry conflict to varying degrees with fostering a culture that supports rape victims and holds perpetrators accountable. In this subsection, I discuss the possibility of adopting a novel Islamic legal approach to rape that is better suited to encouraging victims and witnesses to come forward, namely the reclassification of rape as a discretionary offence. I contend that the historical Islamic approaches to rape are the result of juristic reasoning (ijtihād) that does not need to be applied to all times and places, and that reclassifying rape as a discretionary offence upholds the spirit of the pre-modern law better than applying the received blackletter doctrine.

The primary source texts, i.e., the Quran and ḥadīth, are nearly silent on rape. While the Quran addresses zinā, it does not discuss circumstances involving non-consent.33 As for the ḥadīth, Muslim scholars have disputed the authenticity of the sole Prophetic narration on rape.34 Presuming it is authentic, the ḥadīth is subject to interpretation and does not necessarily support the rules on rape established by pre-modern jurists. For example, the ḥadīth depicts the Prophet’s willingness to punish a man for rape based solely on the victim’s claim, which conflicts with the evidentiary requirements for zinā, usurpation, and banditry.

Given the lack of relevant source texts, jurists used legal reasoning (ijtihād) to create rules for prosecuting rape. The category of zinā was a natural fit for jurists who focused on the illicit nature of the intercourse and who analysed rape through the web of moral values relevant to intercourse outside of marriage, such as God’s right to set boundaries and the primacy of privacy (satr) over publicizing sins. However, some jurists reasoned that rape could also be treated as a property crime or a form of banditry. The variation in the pre-modern legal classification of rape, including the Mālikī school’s reconceptualization of some forms of rape as banditry approximately five centuries into Islamic history, suggests that adopting a new legal approach to rape based on Islamic principles and modern knowledge of the empirical reality of rape is not antithetical to the Islamic legal tradition.

The intent of the pre-modern jurists also suggests the validity and desirability of reform. As preceded, Mālikī jurists envisioned that a rape victim’s usurpation claim in situations when there were no witnesses to a kidnapping would prevent miscarriages of justice involving bona fide rape victims. Similarly, it is likely that the conception of rape as zinā was not intended to cause injury. Since jurists considered rape a sex act that, at its core, constituted a transgression against God’s law rather than a traumatic experience for the non-consenting party, discouraging reporting in favour of private repentance was sufficient to address the sinful nature of the act.35 Later Mālikī jurists who recognized the violent nature of rape ensured that the law reflected that understanding by reclassifying certain types of rape as banditry; however, they do not seem to have grasped the horrendous nature of rape that occurs in private settings. Upholding the jurists’ objectives of justice and satisfactory resolution of rape claims requires updated legal rules that account for the reality of rape rather than reliance on received blackletter fiqh rules.

The existing category of discretionary offences, which encompasses sexual assault and incorporates attainable evidentiary standards, appears to be the most suitable alternative.36 Since the actus reus of discretionary offences and their associated penalties are amenable to change based on time and place, reclassifying rape under this category would allow contemporary Muslim communities to define the offence of rape in a manner that meets modern expectations. In addition, dissociating rape from zinā would facilitate reporting by distinguishing rape from the sin of illicit intercourse, thereby decreasing the stigma of rape. Because jurists already recognize discretionary offences as a category that encompasses criminal acts for which the Quran and ḥadīth have not explicitly set punishments, reclassifying rape under this heading does not disturb the overarching framework or divisions of Islamic law, increasing the probability of acceptance by Muslims who hold fiqh in high esteem.

5. Monetary Compensation for Rape and Sexual Assault

Under common law, a rape or sexual assault victim may sue for restitution under heads such as pain and suffering, lost income, and punitive damages. While financial compensation is not always available, such as when the defendant is insolvent, civil remedies offer some victims an avenue to obtain redress. Due to the differences between civil and criminal trials, such as the lower burden of proof in civil cases and greater control over how the case proceeds, some victims prefer to bring civil proceedings rather than pursue criminal charges (Szklarski 2017).

This section examines whether Islamic law provides civil remedies that empower victims of rape and sexual assault. My analysis suggests that existing fiqh rules that make compensation for the coercive sex act dependent on the outcome of a zinā or usurpation trial and which restrict other monetary claims to circumstances that involve permanent physical injury do not adequately support rape and sexual assault victims. Unlike the criminal prosecution of rape, reforming the pre-modern rules of civil compensation without disturbing broader Islamic legal principles is challenging.

Jurists from all schools permit rape victims to claim compensation for the act of coercive intercourse within a zinā prosecution against the rapist. If zinā is proven, the Mālikīs, Shāfiʿīs, and Ḥanbalīs hold that the rapist must pay the victim her dower (mahr al-mithl).37 All schools grant the victim her dower if zinā is established by confession or eyewitness testimony, but a legal excuse (shubha) precludes a guilty verdict. Since a Muslim groom must pay the bride a dower to obtain access to her sexual organs, the dower award provides the victim with the amount that she would have received had the rapist accessed her sexual organs lawfully through a marriage contract. Given the near impossibility of proving zinā, rules that render compensation contingent on establishing zinā effectively prevent most rape victims from obtaining restitution.

The Mālikī school also allows victims to claim compensation for the act of coercive intercourse under usurpation. Rape victims receive the dower when eyewitness testimony to a kidnapping establishes the act of usurpation. However, in situations that do not involve a witnessed kidnapping, rape victims cannot obtain compensation under the rules of usurpation.38 Thus, the Mālikī doctrine minimally improves access to compensation for the act of non-consensual intercourse.

All schools allow rape and sexual assault victims who suffer a permanent physical injury to bring a tort claim for that injury. Specifically, a victim who suffers permanent vaginal tearing (ifḍāʾ) or defloration (iftiḍāḍ or izālat al-bakāra) can bring a claim for damages against her rapist independent of any criminal prosecution.39 However, such tort claims do not significantly increase access to compensation.

Most rape and sexual assault victims do not suffer the type of severe and permanent vaginal tearing that is compensable in Islamic law, namely the destruction of the tissue between the orifices of urination and menstruation or between the orifices of defecation and menstruation.40 For example, Karen Weiss (2010) notes that physical injury requiring medical treatment only occurs in approximately 9% of rape and sexual assault incidents, a figure that includes injuries to any part of the body from weapons or blows (280).41 The percentage of victims who suffer serious vaginal tears would be a fraction of that statistic.

Regarding defloration, defined as the removal of a virgin’s hymen by penile penetration, a finger, an object, or a blow, jurists hold differing positions on whether compensation is restricted to non-penile defloration.42 Irrespective of the precise scope of defloration claims, the inherent limitation to virgin victims and the narrow focus of the damage award on the loss of a tissue with no biological function reduces the availability and usefulness of this form of civil compensation.

Jurists do not contemplate further avenues to obtain civil compensation. The fiqh rules that make dower claims contingent on the outcome of a zinā or usurpation prosecution and that exclude damage awards for non-permanent physical injury and psychological trauma prevent many rape and sexual assault victims from obtaining compensation.

Revising the rules of civil compensation to better support victims presents challenges. Islamic tort law limits compensation to permanent physical injuries, regardless of their sexual or non-sexual nature, and does not contemplate damages under heads such as pain and suffering. Allowing victims to claim a wider variety of damages would require the adoption of tort concepts that are foreign to pre-modern Islamic law and would affect personal injury claims unrelated to sexual violation. A detailed analysis of potential reforms of the rules of civil compensation should be undertaken in a dedicated research project that examines Islamic tort law as a whole.

6. Conclusions

Miscarriages of justice involving contemporary Islamic law-inspired rape legislation are well documented. For example, rape victims Safia Bibi and Jehan Mina were both convicted of zinā by trial courts in Pakistan.43 These tragic outcomes involve mixing Mālikī and Ḥanafī conceptions of rape to create hybrid rules that do not represent the position of any individual legal school.44 The pre-modern jurists, who appear to have approached rape in a manner that they believed would adequately address sexual misconduct and avoid injustice, would likely be appalled by such outcomes. Were these jurists cognizant of the empirical reality of rape, as understood in present times, it is probable that they would also support new ijtihād to eliminate the barriers facing rape victims in the received doctrine.

By revising the received rules, which are the result of legal reasoning rather than static law set by the Quran and ḥadīth, contemporary scholars can ensure that Muslim victims of sexual crimes are able to seek help outside or within the justice system with a clear conscience that reporting does not violate Islamic law. Likewise, empowering witnesses of sexual violence to come forward free of misplaced concerns regarding privacy and slander is important to foster accountability for sexual misconduct. While legal initiatives alone are insufficient to address the complex issue of sexual violence, tackling legal barriers—including religious laws that exert influence over believers regardless of their enforceability by local courts—is a necessary step to support victims and hold perpetrators accountable.