Punishment of Rape in Shariah

One of the goals of the Shariah is to protect the family and honor. In a hadith reported in the Sunan Abu Dawood, a lady was raped while going to the masjid to pray the Fajr prayer. She complained to the Holy Prophet Muhammad (SAW) about her rape. One man was brought forward who seemed guilty but after further interrogation by the Prophet (SAW), it was concluded that he was innocent and released. However, another man came forward and confessed to raping the woman. The rapist was executed while the Prophet (SAW) spoke kindly to the victim and told her she was not sinful.

This incident offers many lessons. First, crimes of sexual violence occur in every society even in a Prophetic Madina. Prophetic Madina had the highest level of iman in human history and was a role model society but criminals and scums of the earth still existed. This shows that you can never eliminate criminality in society.

There is a limit to what the laws and all the preaching can do. Imagine in the Madina of the Holy Prophet (SAW) and the Sahabah, a crime like rape occurred. Evil exists everywhere even in Prophetic Madina. We must realize that in the Madina of that time, everyone was acting properly and following the Islamic dress code in public, and still, a rape happened. Thus, it is a fallacy to believe that if every woman followed the dress code, rape would never happen.

Another lesson that we learn from the hadith is that the lady was walking alone to the masjid but the Prophet (SAW) and none of the Sahabah berated her for being outside her home alone.  She left her home for a legitimate reason; so, it’s not her fault that she was raped. Therefore, to blame the victim for not doing anything wrong is ludicrous.

This incident also teaches us that contrary to societal norms that force the victims of these types of crimes to remain silent to save the honor of the criminal is ridiculous. No one told the victim to remain silent to protect the honor and dignity of the rapist, as the rapist has no honor and dignity left to protect. The victims have the right in Islam to be explicit about the criminal who harmed them.

Another point that we learn from the hadith is that the Holy Prophet (SAW) spoke kindly to the victim and told her she was not sinful. This is common sense as the victim is never guilty and should not feel that it was their fault for what happened.

In the Shariah, rape is considered a Hirabah, a legal category that comprises highway robbery, rape, and terrorism. The punishment for this category of crime is clear in the Holy Quran (Surah Maida, Ayat 33), “Indeed, the penalty for those who wage war against Allah and His Messenger and spread mischief in the land is death, crucifixion, cutting off their hands and feet on opposite sides, or exile from the land. This ˹penalty˺ is a disgrace for them in this world, and they will suffer a tremendous punishment in the Hereafter.”

Hirabah is spreading mischief or evil and corruption in the world and thus, Hirabah is crimes that threaten social and societal order. There are four punishments that the judge or ruler can choose from death, crucifixion, amputation, or exile.

According to the Maliki and Hanafi schools of thought, you are allowed to crucify and kill those guilty of Hirabah crimes in public. The meaning of crucifying is hanging the body on a pole and kill the criminal on the pole as per Hanafi and Maliki jurisprudence for the public to see and send a message to society that this is the person who committed rape or some other Hirabah crime and that this will happen to you if you do the same. The other two schools of thought, the Hanbali and Shafii believe in execution first then hang the corpse on the pole. One of the goals of Islamic punishments is preventative through ‘shock and awe.’ 

Rape does not fall in the category of classical punishments from the Qur’an and sunnah, in which four witnesses are required.

The time has come for our society to debate the proper punishment for rape. There is an Islamic punishment and then there are the punishments derived by man-made laws. We must decide the purpose of criminal justice, is it to prevent and deter future criminality or just to fill up the jails.