In the first place, we would like to stress that Islam has taken a firm and decisive stance against Zina (fornication or adultery) in all its forms. Allah, the Almighty, commands in explicit and unequivocal words: “And come not near unto adultery. Lo! it is an abomination and an evil way.” (Al-Israa’: 32)
Thus, Islam not only prohibits Zina, but also closes all the avenues and means leading to it. This is achieved by prohibiting every step and means leading to stimulating desires, opening ways for illicit sexual relations between men and women, and promoting indecency and obscenity.</ p>
Zina, as clarified by the late Azharite scholar Sheikh Sayed Sabiq in his well-known book, Fiqhus-Sunnah, is constituted by the penetration of the penis into a “forbidden” vagina, deliberately (i.e. not being forced to), and with no doubt of marriage (i.e. marriage that is deemed invalid but the couple don’t know), even if there is no ejaculation.
In this regard, we would like to cite for you the following by the prominent Saudi Islamic lecturer and author Sheikh Muhammad Saleh Al-Munajjid, in which he states 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 evil doers and aggressors.
Moreover, Dr. Ahmad Yusuf Sulaiman, professor of law and Islamic Shari`ah at Cairo University, adds: If a woman is raped, she should press charges against the one who raped her. If it is proved that she was raped, then the court must apply discretionary punishment or ta`zir on the rapist. Such discretionary punishment may reach the death penalty, according to some schools of thought. This is based wholly on the fact that the rape is confirmed through medical tests and court procedures, without the confession of the rapist himself.
In cases where the rapist confesses the crime, then the penalty for zina (illegitimate sexual intercourse) is to be applied to him. If he is not married, then he is to be whipped 100 lashes. If he is married, then he is to be stoned to death.
As for the rape victim, no punishment is to be inflicted on her. She is to be treated with dignity and honor, and all forms of help should be given to her to gain her rights.
Based on what is mentioned above, we can conclude that there is no punishment for the raped victim as long as she has done her best to resist the perpetrator. The Punishment is on the rapist and his punishment is the same one established for the Zina as clarified above. Above all, Zina al-Jabr is the classical jurisprudential term for the rape or ightisab and it is a punishable crime as clarified above.