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. Lets 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
peoples 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 didnt 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 dont
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 countrys 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 wont 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.info
ii ibid