According to Sharia (Islamic law), rape is essentially considered zina (fornication or adultery). The difference is that adultery involves consensual sex whereas rape involves non-consensual sex. Rape is proven in the same way as adultery is proven which is either by a confessesion or if there are four trustworthy men who must have seen the crime being committed with their own eyes, while the testimony of women is not accepted. Consequently, it is almost impossible to prove rape in lands that follow the Sharia. Men can commit rape with impunity: As long as they deny the charge and there are no witnesses, they will get off scot-free, because the victim’s testimony is inadmissible.
The punishment for rape in Islam is same as the punishment for zina (adultery), which is stoning to death if the perpetrator is married, and one hundred lashes and banishment for one year if he is not married.
A woman’s claim to have been forced into zina can only be accepted on the basis of proof or strong circumstantial evidence. If she can’t provide four trustworthy male witnesses her testimony then becomes a “confession” of adultery. This is punishable by stoning to death even though the male is unpunished, since he never “confessed” to a sexual act.
If rape is committed using the threat of a weapon or if the woman is abducted forcefully from her home, then it becomes a case of harabah (banditry or terrorising the people), which is proven with two witnesses only. The punishment for this is mentioned in the Qur’an. So the judge has the choice of the four punishments.
Qur’an 5:33 – The recompense of those who wage war against Allah and His Messenger and do mischief in the land is only that they shall be killed or crucified or their hands and their feet be cut off on the opposite sides, or be exiled from the land. That is their disgrace in this world, and a great torment is theirs in the Hereafter.
-Four trustworthy male witnesses are required for adultery, fornication and rape.
Q4:15 “If any of your women are guilty of lewdness, Take the evidence of four (Reliable) witnesses from amongst you against them; and if they testify, confine them to houses until death do claim them, or Allah ordain for them some (other) way.”
Q24:13 “Those who accuse chaste women then do not come with four witnesses, flog them eighty lashes and never accept their testimony. They are the sinful ones.”
Q24:4 – “And those who accuse free women then do not bring four witnesses (to adultery), flog them…”
Q2:223 – “Your wives are as a tilth unto you; so approach your tilth when or how ye will…”
There is no such thing as rape in marriage, as a man is permitted unrestricted sexual access to his wives.
Sunan Abu Dawud – Book 38, Hadith 4366
Narrated Wa’il ibn Hujr: “When a woman went out in the time of the Prophet for prayer, a man attacked her and overpowered (raped) her. She shouted and he went off, and when a man came by, she said: That (man) did such and such to me. And when a company of the Emigrants came by, she said: That man did such and such to me. They went and seized the man whom they thought had had intercourse with her and brought him to her.
She said: Yes, this is he. Then they brought him to the Apostle of Allah. When he (the Prophet) was about to pass sentence, the man who (actually) had assaulted her stood up and said: Apostle of Allah, I am the man who did it to her.
He (the Prophet) said to the woman: Go away, for Allah has forgiven you. And about the man who had intercourse with her, he said: Stone him to death. He also said: He has repented to such an extent that if the people of Medina had repented similarly, it would have been accepted from them.”
Muwatta Malik – Book 41, Hadith 16
Malik said, “The position with us about a woman who is found to be pregnant and has no husband and she says, ‘I was forced,’ or she says, ‘I was married,’ is that it is not accepted from her and the hadd is inflicted on her unless she has a clear proof of what she claims about the marriage or that she was forced or she comes bleeding if she was a virgin or she calls out for help so that someone comes to her and she is in that state or what resembles it of the situation in which the violation occurred.” He said, “If she does not produce any of those, the hadd is inflicted on her and what she claims of that is not accepted from her.”
Malik said, “A raped woman cannot marry until she has restored herself by three menstrual periods.”
He said, “If she doubts her periods, she does not marry until she has freed herself of that doubt.”
Muwatta Malik – Book 36, Hadith 14
Malik related to me from Ibn Shihab that Abd al-Malik ibn Marwan gave a judgment that the rapist had to pay the raped woman her bride- price. Yahya said that he heard Malik say, “What is done in our community about the man who rapes a woman, virgin or non-virgin, if she is free, is that he must pay the bride-price of the like of her. If she is a slave, he must pay what he has diminished of her worth. The hadd-punishment in such cases is applied to the rapist, and there is no punishment applied to the raped woman. If the rapist is a slave, that is against his master unless he wishes to surrender him.”
Fatwa – Ruling on the crime of rape