Thread by @Realoilsheikh

WHY WE NEED EXTREMELY STRINGENT LAWS ON RAPE & SEXUAL ABUSE IN NIGERIA.

To begin with, as a Muslim, I believe there are no laws that can regulate humanity close to the Islamic laws (Shari'ah), and as events unfold day-by-day, I become more convinced with this belief.

Obviously, the laws we see today have either failed to protect the women folk from rapists, or is not elaborate enough to cover the ever-changing dynamics of rape-related cases as we see them daily in our societies; THE RIGHTS TO SEXUAL AUTONOMY AND PLEASURE!

Professor Azman Noor (Prof. of Fiqh & Usul in International Islamic University Malaysia) has made a beautiful differentiation between Zina (illegal sexual intercourse) & Rape, & went further to state some classical opinions of scholars on the punishment of rape. For instance,

According to the Malikis, Shafii's & Hanbali's schools of thoughts, Zina legally means an unlawful & mutually consensual vaginal or anal intercourse between a man who is sane & who has reached the age of puberty (bulgh) & a woman whom he is not legally married to.

(Sources: Imam Malik's al-Mudawwana al-kubra & Ibn Qudama's Al-Mughni). According to the Hanafis, rape is an illegal intercourse that occurs without the consent nor deliberate action from the victim (Sharh muntaha al-iradat).

From all the juristic opinions gathered by Prof. Noor, & as defined in "Bada' al Sana'", in Islamic law, rape can be defined as forcible illegal sexual intercourse by a man with a woman who is not legally married to him, without her free will & consent. He further explains that:

Although rape is known as zina bil-ikrah (forceful illegal sexual intercourse), it is different from zina (illegal intercourse) itself. Here are some reasons:

(a) rape is a physical assault which necessarily causes bodily harm. While the victim is trying to resist her aggressor,

the rapist do use every force needed to fulfil his evil intention, which may include killing the victim.

(b) rape is a painful intercourse to the victim, but an enjoyable experience when it is a consensual illegal sexual intercourse (fornication or adultery).

(c) Rape is also psychologically destructive, that leads to psychological trauma of the victim for a long time, or forever. Thus, a victim of rape is not regarded as an adulterer in Islamic shariah. However, those who indulge in zina are willing participants & there is no victim.

(d) Rape is an utter violation of honour of a woman. For a woman who participates in adultery or formication, she is willing to lose her honour (or virginity- if she is a virgin) & to allow the man to ruin her chastity & reputation.

(e) Zina (adultery & fornication) is a violation of the right of Allah, whereas rape is regarded as the violation of not only the rights of Allah but also those of a human being. Worthy of mention is, Allah may forgive you His rights, but never the rights of others you violate.

The primary objective of Shariah is to preserve the public interests or MASAALIH, which has 5 essential interests: To protect faith, to protect life, protect intellect, protect lineage & protect property. On the issue of punishment for rape, there are several jurists opinions.

A lot of classical jurists base their argument on a hadith of 'Abd al-Jabbar Ibn Wa'il which reports a rape case at the time of the Prophet. The victim was excused while the convicted person who had forcible illegal intercourse with her was sentenced to being stoned to death.

Most of them propose the Hadd punishment similar to that of Zina (illegal sexual intercourse) to the rapists with arguments whether the rapist will be subjected to additional penalty (like forced to pay dowry) beside the Hadd penalty for dishonoring the victim.

However, the modern tendency in punishing rape is to consider rape as "hirabah" which requires the penalty of hadd al-hirabah. Thus, the rapist will be considered an outlaw & as a person who is dangerous for the peace & security of society.

This group of people & their punishment is mentioned in Quran 5:33:

"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 on opposites sides,

or be exiled from the land. That is their disgrace in this world, and a great torment is theirs in the Hereafter" (Quran 5:33).

The Religious Council of Egypt has issued a fatwa that the crime of a violent attack which involves forcible sexual intercourse is an act of Hirabah.

Among the authors that support this opinion are Sheikh Muhammad Ali al-Hanooti, Asifa al-Qureshi, Muhammad Shahhat Jundi, Muhammad Tayyib al-Najjar & Muhammad Salim al-'Awwa. This, they supported by referencing some traditional jurists. Al-Tabari, for example interprets AL-FASAAD

as "causing mischief and chaos on the earth by whatever means of violence including usurping the property & honour of others" (in Tabari's Jami' al-bayan 'an ta'wil al-Qur'an).

Some Maliki scholars, like Ibn 'Arabi, clarify that the infringement of honour i.e. rape is more serious than the taking of property of others (As reported by Al-Dasuqi in Hashiyat al-Dasuqi 'ala al-Sharh al-Kabir). Most of these arguments can be seen in the fact that rape has

some elements of Hirabah in it. Elements like using force to violate someone's right, frightening, usurpation, torture & trauma. I find such arguments very intellectual & highly befitting of our situation. It is entirely the lack of implementing such stringent laws on rapists

that led to the widespread of such crimes across board. For every crime that went unpunished, a precedence is being set for others to repeat such crime knowing fully that they won't be punished. For every rape case that we allow to go unpunished, potential rapists are created.

Let us call for the implementation of Shariah in our states, our cities & the country. No law is close to the law of Allaah in giving total protection to life, to sanity, to intellect, to property. Implement capital punishments, Qisas & Hadd according to Shariah & see changes.