On Retaliation (Raping and others)
Regarding the application of retaliation in cases like slapping, beating and other things in which the person who is retaliating cannot do exactly the same to his opponent we would like to quote Imam Ibn al-Qayyim who said:
The people of knowledge differed concerning this issue – which is to apply qisas in cases of slapping, beating and other things in which the person who is retaliating cannot do exactly the same to his opponent as was done to him in all aspects – whether qisas is justified in this case, or should a punishment of another type be meted out, which is ta`zeer? There are two views:
The more correct view is that qisas is prescribed in such cases. This is the view of the Rightly-Guided Caliphs, as was narrated from them by Ahmad and Abu Ishaq al-Jawzjani in al-Mutarjim. This was stated by Imam Ahmad. Our Sheikh (may Allah have mercy on him) – i.e., Ibn Taymiyah – said: This is the view of the majority of the salaf.
The second view is that qisas is not prescribed in such cases. This is the view narrated from al-Shafa`i, Malik and Abu Hanifah, and it is the view of the later followers of Imam Ahmad, to such an extent that some of them narrated that there was consensus on the ruling that there is no qisas in this case!
But that is not the case, rather the reports that the consensus of the Sahaabah was that qisaas is prescribed are more likely to be true than the reports which say that there was consensus that it is not prescribed. It is proven from the Rightly-Guided Caliphs and no opposition to that is known.
Both views are based on the fact that Allah has enjoined justice in that, so it remains to be seen which of the two options is closest to justice?
Those who say that qisas is not required say that retaliating in like manner is not possible in this case. So it is as if justice requires using another form of punishment, which is ta’zeer. Qisas can only be by retaliating in like manner, hence it is not required in the case of wounding or cutting, unless it is possible to do the same things. When it is not possible to retaliate in kind with regard to wounding or cutting, then we have to resort to the diyah (blood money) idea, and the same applies to slapping and the like, where we have to resort to ta`zeer if retaliating in like manner is not possible.
Those who say that qisas is permissible say: Qisas in such cases is closer to Qur’an and Sunnah and qiyas (analogy) and justice than ta`zeer. As for Qur’an, Allah says: “The recompense for an evil is an evil like thereof” [al-Shura 42:40] and “Then whoever transgresses the prohibition against you, you transgress likewise against him.” [al-Baqarah 2:194].
It is well-known that responding in kind is required according as much as possible, so a slap is more similar to a slap than ta’zeer, and a blow is more similar to a blow than ta’zeer, because the ta’zeer may be a blow in a different place, that does not resemble the original blow in type or location, or extent. So you are trying to avoid the unavoidable difference between two slaps and you ended up with a greater difference (by choosing ta’zeer) without any evidence from texts or analogy.
They said: As for the Sunnah [Ibn al-Qayyim (may Allah have mercy on him) quoted a number of ahadith which prove that qisas is allowed in such cases]. Then he said: If there was no evidence concerning this matter except the practice of the Rightly-Guided Caliphs, that would be sufficient evidence.
As for the case of raping, retaliation cannot be applied. But the doer will not escape punishment. In this regard we would like to quote Sheikh Muhammad Saleh Al-Munajjid who stated the following:
The Arabic word ightisab (rape) refers to taking something wrongfully by force. It is now used exclusively to refer to transgression against the honor of women by force.
This is an abhorrent crime that is forbidden in all religions and in the minds of all wise people and those who possess sound human nature. All earthly systems and laws regard this action as abhorrent and impose the strictest penalties on it.
Islam has a clear stance which states that this repugnant action is haram (forbidden) and imposes a deterrent punishment on the one who commits it.
Islam closes the door to the criminal who wants to commit this crime. Western studies have shown that most rapists are already criminals who commit their crimes under the influence of alcohol and drugs, and they take advantage of the fact that their victims are walking alone in isolated places or staying in the house alone. These studies also show that what the criminals watch on the media and the semi-naked styles of dress in which women go out also lead to the commission of this reprehensible crime.
The laws of Islam came to protect women’s honor and modesty. Islam forbids women to wear clothes that are not modest. In addition, Islam encourages young men and women to marry early, and many other rulings that close the door before rape and other crimes. Hence it comes as no surprise when we hear or read that most of these crimes occur in permissive societies, which are looked up to by some Muslims as examples of civilization and refinement! It is worth mentioning here that in America , for example, Amnesty International stated in a 2004 report entitled “Stop Violence Against Women” that every 90 seconds a woman was raped during that year.
The punishment for rape in Islam is the same as the punishment for zina (adultery or fornication), which is stoning if the perpetrator is married, and one hundred lashes and banishment for one year if he is not married.
Moreover, Ibn `Abdul-Barr (may Allah bless his soul) said:
The scholars are unanimously agreed that the rapist is to be subjected to the hadd punishment if there is clear evidence against him that he deserves the hadd punishment, or if he admits to that. Otherwise, he is to be punished (that is, if there is no proof that the hadd punishment for zina may be carried out against him because he does not confess and there are not four witnesses, then the judge may punish him and stipulate a punishment that will deter him and others like him). There is no punishment for the woman if it is true that he forced her and overpowered her. (Al-Istidhkaar, 7/146).
In addition, the rapist is subject to the hadd punishment for zina, even if the rape was not carried out at knifepoint or gunpoint. If the use of a weapon was threatened, then he is a muharib, and is to be subjected to the hadd punishment described in the verse in which Allah says (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 from opposite sides, or be exiled from the land. That is their disgrace in this world, and a great torment is theirs in the Hereafter) (Al-Ma’idah 5:33).
So the judge has the choice of the four punishments mentioned in this verse and may choose whichever he thinks is most suitable to attain the objective, which is to spread peace and security in society, and ward off evildoers and aggressors.