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IslamQA: Why Islam does not have a specific punishment for rape

Why does God frown upon consensual sex before marriage more than rape? I've done some research and haven't found anything about rape. Many don't even validate rape and equates it to normal sex . The only hadith I stumbled on about a woman who had been raped (in this case it was referred as forced zina). The man got stoned and she was told by Rasulallah that she is forgiven. This arise another question which is why would he say that she's forgiven? Had she sinned by being victim to such a horrible thing in the first place? I just feel the issue of rape and molesting is not addressed in the Muslim communities. I've even heard Muslims refering to raped people as unclean. It's very sad. Many woman are being raped and the worst part is that they are being asked about their hijab when rape is not about clothes always. I even personally know a girl who went through that and she wears abayah. I just don't understand why it's more important for Muslims what a woman is wearing. I come from a culture in which raped woman are actually blamed for being raped and to keep modesty they must marry their rapist so its a heavy burden on me to talk about this issue. The Islamic communities I know in the west aren't at this stage but they're definitely not progressive

In Islam, rape is a category of zinā (adultery and fornication), so it is incorrect to say that Islam frowns upon sex before marriage more than rape, it does not. At best they are equal. Islam’s law against “people who spread corruption” allows society to deal with a rapist in whatever way they think is fair, including banishment, amputating their limbs or execution. We have an example of five men (if I remember the number correctly) who raped a boy in Ottoman times and who were executed for their crime (mentioned in Crime and Punishment in Islamic Law by Rudolph Peters).

In the hadith you mentioned, and in similar hadiths, it is almost always guaranteed that we are not getting the full story about what took place. Hadith narrators only transmit what they consider to be the most important features of an event, often neglecting to transmit details that would make the story make more sense to us modern people. You should never take any single hadith too seriously but always relate it to the rest of the literature. The majority of authentic narrations have probabilistic, rather than absolute, authenticity. As books of legal theory (uṣūl) tell us, only a minority of hadith narrations can be considered to yield certain knowledge (ʿilm al-yaqīn).

The hadith you mentioned has its madār (common link) at Samāk (?) bin Ḥarb. The hadith scholar Shuʿba bin al-Ḥajjāj (d. 776 CE) considered him ḍaʿīf (untrustworthy), while Imam Aḥmad ibn Ḥanbal (d. 855 CE) considered him muḍtarib (one who is not fully reliable). There are others who consider him reliable. Due to the uncertainty surrounding this person, the hadith should not be used as the basis for any argument and should be considered at least as likely to be false as it is likely to be authentic. Therefore we can forget about this hadith, it has no significance in the discussion.

Islamic law only gives us a general framework that each civilization can build upon. It allows each society to deal with rape in its own way. One would be right to wonder why Islam did not fully spell out the way to deal with rape. I believe it is because rape is a very context-sensitive crime unlike crimes like murder. A man who rapes random women on the street can be dealt with in the harshest way, he can even get executed in the worst cases. But what about the case of a woman who is in love with a man and wishes to marry him, but during some interaction the man ends up forcing himself on her despite her protestations? That too is rape, but it is different. In such cases some women may become traumatized and lose their respect for the man so that they may want him punished, while others may continue to wish to marry him. A sensible society should therefore take the context into account and find out if and how traumatized the woman is, and what her relationship is with the man. The worse cases of rape can lead to execution, while some cases may lead to the judge forcing the man to marry the woman, as in the case of a rich man forcing himself on a servant girl he is in love with but who he is unwilling to marry due to her low social status. If the servant girl is asked her opinion and she say she wishes to marry him, then they can be made to marry and that can be the end of it.

It is true that most Muslim societies have not had good policies against rape, similar to most other societies, and uneducated Muslims often put the blame on the woman in cases of female rape. These are cultural prejudices rather than concepts derived from Islam. There is nothing in Islam preventing us from being as harsh on rape as we think it deserves. Many Muslim societies are where Europe was in the 19th century. Social change often takes many generations, therefore hopefully things will get better over time.

We should also not forget that rape is not only a women’s rights issue, men and boys can be raped too. It is a human rights issue. As far as I am aware most Muslim societies are unaware that the rape of men and boys is a crime that should be taken seriously.

And God knows best.
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