Thread by @IbneKhan01

In Ĥanafī Fiqh rape is, “istikrāh ála al-zinā”, coercion upon zinā.

In Mukhtaşar Ikhtilāfi'l Úlamā authored by Imām Abū Jaáfar al-Ţaĥāwī al-Ĥanafī [239-321 AH / 843-933 CE] is the section, “Regarding the one who is coerced upon zinā”:

“Our companions [i.e. scholars] have said,

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if he coerces a woman and commits zinā with her, then upon him is the Ĥadd, and there is no Mahr upon him. And this is the saying of Ibn Shubrumah and Thawrī.”

Vol. 3, pg. 298.

Imām Qudūrī al-Ĥanafī [362-428 AH / 973-1037 CE] writes in Tajrīd in the section, “The man's coercion of a woman upon zinā.”:

“Our companions have said that if the man coerces a woman upon zinā, then upon him is the Ĥ￲add, but there is no Mahr upon him.”

Vol. 7, pg. 3343

Qāđī Khān Ĥasan ibn Manşūr al-Uzjandī al-Ĥanafī [d. 592 AH / 1196 CE] writes in his Fatāwā:

“If the woman is coerced to commit zinā, there is no Ĥadd upon her, according to all.”

Vol. 3, pg. 468.

Shams al-A’immah Abū Bakr al-Sarakhsī al-Ĥanafī [d. 483 AH / 1090 CE] writes in Mabsūţ:

“But we say that his act with a coerced woman is zinā, and the mandatory for zinā is the Ĥadd, and no addition to that on the grounds of rational opinion is permitted.”

Vol. 9, pg. 53.

Also:

“If someone calls a raped woman a zāniyah, that person shall not receive the Ĥadd punishment for qadhf. This is because the woman was copulated with without ownership and by coercion. Though the sin falls away from her, the act is not excluded from being zinā.”

Pg. 118.

Therefore, rape is not considered a crime distinct from zinā, but rather a coercive form of zinā. A victim of rape is a female who has been through zinā, but from whom liability has been lifted due to the factor of coercion or another form of defective capacity,

such as minority or insanity.

The plaintiff has to establish that zinā had occurred, and then, that she had not been a willing participant but had acted under coercion.

In Ĥanafī fiqh there are only two ways to prove zinā has occurred:

1) Confession by one or both parties, or

2) Eyewitness testimony to the act itself

Qudūrī writes:

“Zinā is established through clear evidence [bayyinah] or confession [iqrār].”

Pg. 195.

He elaborates regarding clear evidence [bayyinah]:

“Clear evidence [bayyinah] is that four witnesses testify against a man or a woman for zinā”

Pg. 195.

Thus, either the rapist confesses [iqrār] or there must be [bayyinah] witness testimony of four sane adult men of good character, who together provide the judge with matching reports, describing the sex act that they had observed and using the correct phrasing.

Therefore, we see that the lone claim of a woman in of itself is not valid proof to convict a man or to apply the Hadd upon him.

Mālikī fiqh differs, in that pregnancy among unmarried women too is considered evidence of zinā.

Imām Mālik states in his Muwaţţā:

“The position with us, regarding the woman who is found to be pregnant and does not have a husband, and she says, ‘I was coerced’,

or she says, ‘I was married’, is that is not accepted from her and the Hadd is imposed upon her.

Except if she has clear evidence [bayyinah] for what she claimed regarding the marriage, or that she was coerced, or if she came bleeding if she was a virgin,

or if she called out for help until someone came and she is in that state or what resembles it of the situation in which her dishonouring is known.”

He said, “If she does not bring forth anything from this, the Hadd is imposed upon her and whatever such claims she makes are not accepted from her.”

Chapter 41, section 4.

This is an explicit statement from an Imām of the salaf, that mere claims are not accepted.

Imām Mālik states that a single woman who is found pregnant is to receive the Hadd punishment, even if she claims she was coerced or married. However, if she can show evidence of what she claims, then the Hadd for zinā is suspended.

The reason why Imām Mālik accepted pregnancy in an unmarried woman as constituting evidence of zinā is due to the narration of Sayyidunā Úmar in which he stated:

“Stoning is in the Book of Allāh for those who commit zinā from among the men and the women, when they are muhsan,

if evidence [bayyinah] is established, or pregnancy, or confession.”

Muwaţţā, 41, #8.

Thus, we see the first point that Imām Mālik makes is that a pregnant woman’s claim of coercion is not sufficient to deflect the Hadd.

Rather, in order to deflect the Hadd, she has two options. One is to bring evidence [bayyinah] that her participation in the act was coerced; that is, she may bring four witnesses, who can confirm it.

The other is to bring evidence of the dishonouring, such as that she bled after the encounter if she had been a virgin, that she had called for help such that someone heard her and went to her aid, or something of the sort that would indicate her lack of consent.

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