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| Hadith on Incest and Rape Faqihuddin Abdul Kodir Most people have difficulty finding any
material concerning rape in the literature of Fiqh Islam. According to
fiqh rape does not have it’s own punishment nor is it considered an
individual crime with its own consequences. Within fiqh, rape is seen as
an evil act that destroys ones honor. Rape is considered a sexual act
outside of marriage, resulting in the possible punishment of 100 lashes or
stoning to death. An accusation of rape with no proof is subject to 80
lashings. Rape however, should not be considered the same as just any
sexual act outside of marriage, because rape contains both elements of
force and violence. According to fiqh physical violence does
not include rape. In discussions of fiqh, there are two acts of punishment
for physical violence the more serious allocated to murder. Lighter
punishments are given to those who have committed violent acts to parts of
the body for example ears, eyes, hands, and even the penis. This includes
both the cutting of body parts as well as losing their function. It is
strange that there is no discussion of the vagina or act of damaging the
hymen of women (for example that with rape). In contemporary books of fiqh, discussion
concerning the punishment for rape or intended physical assault concerning
the vagina and the hymen is not present. On the other hand, there has been
discussion concerning punishment for the cutting off of a man’s penis or
for violent acts that result in impotency. The very comprehensive books of
Dr Wahbah az-Zuhaili al-Fiqh al-Islami wa Adillatuhu and Abd al-Qadir
Audah At-Tasyri al-Jina’iy still do not provide a suitable discussion
concerning these acts of violence, even considering the evil act of rape
threatens the social life of a whole community and in particular women. Primary sources of fiqh such as the Koran
and the hadith do not directly mention punishment for rape. There are
however verses in these texts that point in the direction of the
prohibition of it, providing protection for victims of sexual violence. “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)” (Koran - Al-Nûr: 33) This verse at the very least 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. Rape and Sexual Acts Outside of Marriage “A person who commits this act (sexual
intercourse outside of marriage) is not a true believer of their faith”
Imam Bukhari and Muslim (See Ibn Al-Atsir, Jami al-Ushul, XII/329 no.
9330). Perzinahan is the act of sexual intercourse
outside of a valid marriage. The primary element of perzinahan is the
physical act of sexual intercourse outside of marriage. Perzinahan could
be the possible base for the formulation of the act of rape, but rape of
course cannot be identified with perzinahan. Acts of rape possess an extra
element to that of other sexual relations outside of marriage; that is,
the force and violence used creating a traumatic experience for the
victim. 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”. The Prophet then said to the man (while
appreciating his confession) “stone him”. He then said “Actually, he
has already learnt his lesson and if someone learns their lesson all the
people of Median will understand”. 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. 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. Texts of the hadith, often cite this issue:
“Your sins will be freed by the community if any of these three factors
occurred; it was unintentional, forgotten or forced by another person”
narrated Ibn Majah, Ibn Hibban and Al-Hakim (see al-Ajluni, Kasyf al-Khafa
1/433 no. 1393). But force and violence in cases of rape,
are not suitable/proper if only based on the judgement/consideration to
remove the punishment for the victim. Because the victim indeed has not
carried out an act of evil, so it is not at all fair for the victim to be
punished. A victim of rape will be traumatised for the rest of their life
and will thus need assistance and strength to restore faith in them. On
the contrary, the person who committed the rape must be punished harshly,
because not only has the perpetrator carried out the act or perzinahan
which is a forbidden act in islam, but thy have also, carried out an act
(with the use of force and violence) damaging the victim both mentally and
physically. Incest and Rape Indeed not all-incestuous activities are
accompanied by force and violence. Occasionally incest with the meaning of
same blood marriage occurs as a result of ethnic decent or a person of
wealthy means with the goal of the continuation of a particular ethnic
lineage. As happened in the family of the Pharaoh of Egypt and often
occurred within the Inca community. This was a result of the society being
an isolated society where incestuous marriage took place, as there was a
dislike to have relations with other groups. Another reason is that the
fulfillment of ones sexual needs is easier, closer and poses lesser risks.
Usually the victims are young girls who do not have the freedom to reject
it. Incestuous behavior both within marriage perzinahan and furthermore the act of rape is condemned within Islam. The perpetrators of these acts face harsh punishment. In one hadith conveyed by close friend Barra bin Azib, he says: “There was a time that I met my uncle
walking in the street carrying the national flag, “where are you
going?” he answered “I have been commanded by God to execute a person
who married the wife of their own father” (see Ibn al-Atsir, Jami al-Ushul,
IV/275, no.1829). In a narration told by Ibn Abbas, the
Prophet said: “whoever carries out intimate relations with a blood
relative, is suitable to be killed” (See Ibn Al-Atsir, Jami al-Ushul,
IV/269, no 1830). In fiqh itself, incestuous marriages, for
the majority of Ulama are considered to be perzinahan and for this reason
can suitably be punished. Mazhab Hanafi however has the opinion that
incestuous marriage is not perzinahan, which should not be threatened by
hukuman hadd but rather hukuman ta’zir. Incestuous behavior can take place for a
variety of reasons. Among them are high sex drive, a low level of control
for sexual activity and a low level of control of the law. With regards to
these factors, Islam offers a set of morals in order to think positively
and to protect and overcome one self from engaging in bad sexual behavior. Assistance for Victims of Incest and
Rape A large portion of these rape victims
experience difficulty to mix with and carry out social relationships
successfully. Among them are those whose sexual relationships with their
husband have been affected. This is not only limited to no longer enjoying
a sexual relationship but to the extent of not being able to engage in
sexual relations at all. For young girls (under age) who are victims of
rape or incest, the affects tend to be even greater. Generally among these
cases, there is an appearance of extreme restlessness in behavior,
anxiety, bad dreams, mental disturbance, and effects for their social and
sexual behavior. These conditions mean all sides must give
support and assistance to these victims. Most unfortunate, is that the
upholders of the law, with regards to this case, often push the case aside
and abuse the victim. For example, questions that tend to embarrass the
victim. This kind of behavior will with no doubt only increase and extend
the victims’ trauma. Religious circles also demand (with fatwa
and religious opinion) all people give assistance to victims of rape or
incest. Like that carried out by Uzma Mazhar, a Pakistani religious
thinker, with the strengthening of law towards perpetrators of rape and
sexual corruption of girls. For Mazhar, this behavior can be classified in
fiqh Islam as the evil act of hirabah, which forms the peak of the
conception of a criminal act in fiqh. Fiqh must be orientated towards the
victims, which in this case are women. Firstly, it should not consider the
sexuality of women as a cause for rape (so that cases of rape can not be
turned around on to the female). Secondly, it is hoped that fiqh will
morally protect, serve and take responsibility for the victims. For
example, the problem of the abortion law for women who are victims of rape
must be associated with a way to assist and protect the victims and
provide a way out for them. With this the trauma suffered by rape victims
may be able to decrease. People who assist victims of rape are one more road closer to God. In one of the text of the hadith narrated by Imam Muslim the Prophet said: “wallahu fi ‘aun al-‘abdi ma dama al-‘abdu fi ‘awni akhihi” (‘God will always assist those who give assistance to their family’, see holy book at-Targhib wa at-Tarhib, III/398). Source: http://www.rahima.or.id/English/hadits_8.htm |