Islamic Penal Law for Rape and it relevance to Sri Lankan Society

By Raazi Muhammadh Jaabir

A call for implementing capital punishment for who has cruelly raped and killed a four and half year old kid is widely heard nowadays in Sri Lanka.as human beings their instincts inform them a need for a more severe punishments for these sort of crimes which will send a massage to rapists that they will end up the same severe punishments as their predecessors have undergone. When Rape is a very serious crime, raping minor is worse. Raping a kid and killing is something far beyond.

Criminology and Penology describe the justifications for punishments which include retribution, rehabilitation, deterrence, and incapacitation. While retributivism says that the punishments should be proportionate, in deterrence punishments are implemented to deter the people from committing future crimes. By imposing severe punishments to the offender, the concept of deterrence tries to send a message both to them- criminal and potential criminals- that this is what you deserve for what you have done and this is what you will deserve if you do the same in future. From this, deterrence seeks to deter the criminal in particular and the future criminals in general.

The current major legal systems in the word have not addressed the offences and punishments related to sexual harassments against women properly. Rape rates in countries -which claim to have value the rights and dignity of women- are very high. Their penal systems neither have helped to reduce the high volume of rapes in their countries nor to close the ways which promote and encourage rapes. In America -for example- Amnesty international stated in a 2004 report entitled ‘Stop violence against women’ that every 90 seconds, a women was raped during that year. As Islam value the women in higher caliber, any border-crossing of her dignity was treated very harshly and severely.

The Arabic word ‘ightisaab’ refers to taking something wrongfully by forcei.it is now used exclusively to refer to transgression against the honor of women by force. The punishment for rape in Islam is same as punishment for Zina-(illegal intercourse) which is stoning if the perpetrator is married, and one hundred lashes and banishment for one year if he is unmarried. If the victim was threatened with the use of a weapon, then he is a Muhaarib-transgressor and is to be subjected to the Hadd punishment described in the following verse of the Quran,

‘The recompense of those who wage war against Allah and His Messenger and do mischief in the land is only that they 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 Hearafter. (al Maaida 5:33)

Hirabaa means ambushing people and threatening them with weapon and so on, in the deserts or in the cities, killing them, terrorizing them and seizing their property by force and openly. The ruling applies also to people who terrorize others for the purpose of rape or sodomy.

In short if someone rapes a female or male with the use of a weapon or killed after raping her, he is considered as a transgressor who is waging war against the God and his Messanger.so the judge has the choice of four punishments –killing, crucifying, hands and feet to be cut off on the opposite sides, exile from the land)-as mentioned in the above Quranic 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 evildoers

and aggressorsii. Punishment should be carried out in front of the gathering of people preferably after Friday prayers.

On the surface, this punishment seems to be barbaric, ruthless ,inhuman, backward, cruel, archaic implementation of 1500 years old laws from an uncivilized land in a corner of the world which not at all suit the modern standard of the Legal Systems.

But this ‘so called’ barbaric punishment system has worked out very well throughout the history. There is not a single middle east country which applies the original punishment for rape which is stoning to death. But when the implementation of this particular punishment system was in active, rapes were very low. Let’s analyze the justifications Islam provides for this ‘so called’ barbaric punishment and the reason lying behind that.

Those who support the concept of retributive justice may not agree with the people’s call to impose capital punishments for the rapists since they think that the death is not proportionate to rape. What they have failed to understand is in the aftermath of a rape, the challenges a rape victim faces for her survival in the society is nowhere to be equalized with the less punishment for the criminal. punishing only the criminal secretly will not reduce the crime rates. Moreover deciding the proportionality for a crime is another serious matter to argue.

The sole purpose for a punishment should be a crime free society. If the purpose for the punishment is only to punish the criminals, this will not help much to attain the REAL purpose for the punishments. While punishing a criminal for a crime, punishment system should have a mechanism to inform the society a message that will prevent them from committing any such crimes in future. That message should be very strong. A light message will not convince the criminals to stop committing crimes. few years back American Army issued pamphlets to American forces after many incidents of Army officers raping their female colleagues were reported.in the pamphlet it was mentioned “If you want, ask politely, do not force”. That was a very ineffective message to the rapists.it didn’t work. The message was very soft and self-contradictory. If you ask and she says okay what is the need for a rape? forcing the one who says no is what rape is all about. The reason is that soft message will not convince the rapists to change their urges and attitudes. The message should be a warning that creates a fear of life. “if you do this you will end up with a most serious punishment which will cost your life and you will die a painful death.so don’t ever try that”.

The impact will be very high when the punishment is very severe. Twenty years imprisonment for a rapist. – he will be confined in a cell for few years, food and accommodation will be given to him for free, If he behaves well there is a possibility that he will be out after serving few years in prison. The girl he raped would have committed suicide or not married, left the country out of shame and struggling for recognition and trying to be normal in the society she was brought up. What proportion can retributivism could bring to that girl? How would retributivism calculate proportions for he lost dignity. What could be more there to her in this world, if she happens to see the rapists living in the same society with family and children while she is supposed to live with shame in her remaining years. How can we calculate the proportions here?

That is the reason Islam follows the principle of deterrence when introducing a punishment for a rapist. when a very serious, painful punishment is introduced for the one who rapes a women, the severity of the punishment will make the rapist think about the consequences of his potential action. As long as the

harshness of the punishment is high, the committals of the crimes will be less.one of the reasons for murders are less and traffic violations are high in a country’s crime records is the punishment for the murder is higher than the punishments for traffic violations. This is the reason in the early Islamic Khilafa crimes rates were very less specially rapes ,because people were well aware of the punishments for rapes. This is the message Islam circulates for the rapists.

This message will prevent criminals even dreaming about raping anyone. When you fear for something you will never do it. this is a simple human nature. If you fear that you will die for if you do it, you will never do it. a punishment system should create a fear among the public about the crimes and the severe punishments that would follow.

That fear could be strongly and deeply created when you let the people see the punishments when executed. This is why Islamic punishments are carried out in Public. If you see with your bare eyes how the rapists are treated by the Law and the suffering of the criminal, the physiological impact it leaves the audience is very powerful. After someone has witnessed the carrying out of the Punishment no one will ever dare to rape anyone.

People will read in the newspapers that so and so was executed for raping a girl. when the time elapses they will forget that soon. Then and there rapist will start to pop up again. when the layman witnesses the execution the impact will be very high.it will leave a lifelong imprint in his heart as what he has witnesses happened for rapist. The news will spread like fire.it will reach all the rapist as to what happened to a person like them. This will finally stop the rapists. This is what happened in Islamic history.

If the government decides to impose capital punishment to the rapist and he is executed by hanging or electrical shock or poisoning in a closed cell, it won’t give a serious impact to the people. Some activists argue even capital punishment should be very light. A painless death. They argue he is going to die finally, at least let him die in peace. An injection will give them a calm death they claim. When implementing the punishments the main purpose should be to find ways to stop future committals rather than merely punishing the criminals themselves. Even a capital punishment like these methodologies is carried out, the society would get rid of that particular criminal not the potential rapist in the society. Because a person who rapes will not fear for a prison. He may fear for his death. past surveys indicate that most of the rapist were convicted for other crimes previously at least once.

By carrying out a most severest punishment for Rape in front of Public Islam is trying to send a message to the potential rapists that their ends will be very pity and pathetic as same as their predecessors. And Islam succeeded in this cause. No any punishments systems helped to minimize the crimes almost to zero except Islamic punishment systems.

The problem and hesitance in adapting this workable punishment system into any other Legal System is because it came from Islam. If this model is suggested by a secular, democratic, liberal element or by United Nations or by Non -governmental originations working for prosperous societies, It would have gained momentum and received a warm welcome.an usual perception about Islam spread by the western media and some inconsistent activities of some groups of Muslims might have clouded the minds in understanding the practical reality and possibility in adapting this punishment system. If the Islamic flavor is removed from this punishment system, it is for sure many countries would think about

adapting this since it assures the eradication of rape in their lands. hatred against Islam in default is the reason making them fail to understand ground reality.

It is better for Countries like Sri Lanka where rapes are in rise should consider implementing a more severe capital punishment for rapists to put an end to the raising rape rates.

i Islamqa.infoii ibid