Some jurists do not consider having sex with an immature child (paedophilia), who under normal circumstances is not engaged in sexual activity as sexual intercourse, per se.
They characterise it as sexual assault that will not only require payment of ṣadāq al-mithli but other forms of monetary compensation depending on the injury caused to her.
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Such that the culprit is made to pay of the dower and monetary compensation (diyah), which can either be full or a fraction thereof.
He is liable to full diyah for causing permanent destruction when his action caused the girl to have a continuous involuntary discharge of urine.
But where despite the injury caused, urine retention is still possible, he may be liable to one-third of full diyah, as stipulated compensation for injury extending to body cavity of the trunk (jāʾifah).
More importantly, they also stipulate that the culprit will be liable to taʿazīr for transgression.
This allows the State to stipulate any penalty, including death penalty for any person found guilty of sexual assault against a child.
Of course, this approach would lessen the burden of proof having moved child sexual assault from the realm of ḥudūd to the jināyāt (bodily harm).
The justification for moving child sexual assault to the genre of bodily harm it is the woman who possesses the venue (maḥal) that makes sexual intercourse possible.
Therefore, the lack of maturity eliminates one necessary element of the offence of zina.
Hence, the exclusion of child sexual assault from the domain of zina to the class of jināyāt.
As noted before, unless consensual sex and rape are delinked by making the latter as an independent offence there will hardly be any conviction of suspected rapist on the strength of four reliable witnesses.
What is proposed here is to consider rape as offence of violence against women, and is predicated on the fact that most of the prescriptions under the existing paradigm were principles adumbrated by jurists (fuqaha) who only theorised but did not have practical knowledge, and may never witness any real case of rape and the agonies associated with it.
I illustrated using what transpired during the formative stage of Islam to justify the need for shift given that jurists who doubled as judges like the Caliphs had viewed rape as an independent offence with distinct means of proof.
Asifa Quraishi advances an opinion that an act of rape shall be viewed as a form of ḥirābah in which the accused used the sexual organ as a weapon to attack his victim.
Quraishi’s analysis of the opinions of jurists like Ibn Al-ʿArabi and Ibn Ḥazm suggests that rape is an independent offence and not a subset of zina. Ibn Al-ʿArabi’, a foremost Maliki jurist who was also a judge views rape as offence that is worse than armed robbery.
A case was brought before the court of Ibn Al-ʿArabi in which a certain community was attacked by armed robbers and in the course of the attack, a woman was raped.
The contention of the suspected robbers was that their action was not robbery since they did not take anything but only raped the woman.
Responding to this self-serving argument Ibn Al-ʿArabi rules:
‘Don’t you know that sexual robbery is much worse than robbing one of his property?
‘Generally, people would prefer to lose their property and possessions than lose the dignity of their wives or daughters.
‘Indeed, if there is any punishment higher than what Allah prescribed (in Q5: 33) it is most appropriate for the person who rapes women.’
During the reign of ʿUmar b Khaṭṭāb, a case was brought before him of a lady who was in love with a certain young man.
The lady did all she could to lure him to satisfy her sexual urge but the young man refused.
She then deceitfully got a fresh egg, removed the yolk and poured the albumin on her thighs and clothes.
She then went before Caliph ʿUmar and alleged that she had been raped by the young man.
Caliph ʿUmar called on some women, who confirmed that the specimen was semen on her body and clothes.
The Caliph sent for the man with a view to penalising him, but he denied it, protesting that he did not rape the lady and that she had been making advances but he refused to do her wishes that is why she implicated him.
ʿUmar b Khaṭṭāb then turned to ʿAli b Abī Ṭālib and sought for his opinion.
On his part, ʿAli b Abī Ṭālib demanded for very hot water that reached boiling point and poured the hot water on the lady’s clothes only for the specimen there to coagulate.
ʿAli then smelled and tasted it and found it was actually albumin of egg and not semen.
When confronted with the evidence, the lady confessed.
Naturally, when albumin is boiled with hot water it coagulates and transforms to white.
What is evident from this athar is that it was a case of rape that was adjudicated by Caliph ʿUmar b Khaṭṭāb, and he did not ask the lady to produce four witnesses but resorted to expert opinion.
ʿAli b Abī Ṭālib, in his own wisdom, did what in the modern world is referred to as forensic analysis. Obviously, it was this analysis that exculpated the young man.
This shows that during the formative period of Islam, rape was never classified as a subset of zina with equally the same evidential burden on the victim.
Indeed, if the experiment conducted by ʿAli b Abī Ṭālib was anything to go by, then it is imperative to rethink the way rape cases are proved.
To further strengthen this position, there was a rape case reported during the lifetime of the Prophet Muḥammad SAW, as reported in the books of Aḥmad, Abū Dāud and Tirmidhi.
A lady, on her way to the mosque, was attacked by somebody who blindfolded her and then had carnal knowledge of her and fled.
A passer-by asked her what happened, and she explained to him and pointed at the direction the attacker followed, and he pursued the attacker.
While looking for her attacker, a group of people met her, and they too joined in chasing the attacker.
However, they mistakenly arrested the man who went in pursuit of the attacker.
These people brought the man before the court of the Prophet Muḥammad SAW, and the lady identified the man as her attacker.
Upon hearing that the Prophet that he be put to death for raping the woman.
Incidentally, the actual attacker who was present in the mosque stood up and surrendered himself and confessed that it was him that raped her and not the other man.
From the foregoing hadith of the Prophet, the penalty for rape is clear, just as the means of proving it.
Apart from the lady who was violated nobody witnessed the incident.
Yet, as a pragmatic and practical leader, the Prophet did not ask her to bring four witnesses before her story was believed.
Her version and the fact that the arrest of the first man was contemporaneous with the fact in an issue made the Prophet to give a verdict.
The Prophet equally did not enquire about the marital status of either the first man or even the second one who actually confessed to committing the act.
Interestingly also, in the earlier narration, no such enquiries were made by ʿUmar b Khaṭṭāb.
Analysis of scholars of Hadith suggests that the man that confessed was pardoned and not stoned.
For instance, Muḥammad Nāṣiruddīn Albāni (1914 – 99 AD) is of the view that the man was pardoned by the Prophet.
However, other scholars believe otherwise, holding that the man was eventually stoned as the reports of Abū Dāud and Tirmidhi clearly showed that the Prophet ordered that the man be stoned.
Bayhaqi further argued that the fact that the man repented will not absolve him from being punished just as the repentance of Mā’iz, al-Jahniyyah and al-Ghāmidiyyah did not prevent the Prophet SAW from meting out the punishment against them.
Furthermore, it is an established principle of law that once a case is established before a judge with concrete evidence the repentance of the suspect will not absolve him from punishment.
Given the avalanche of authorities to justify a paradigm shift from the position of the Maliki School, it is proposed that rape should be viewed as an independent offence of violence against women.
The proof of it should be flexible enough to allow corroborative evidence in the form of expert evidence.
This may provide an answer to our present predicaments or state of helplessness. (Concluded)
Prof. Musa Usman Abubakar
