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Home English Version Hadith Hadith on Incest and Rape - Hadith 8th Edition

Hadith on Incest and Rape - Hadith 8th Edition

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Most people have difficulty finding any material concerning rape in the literature of Fiqh Islam. According to fiqh rape does not have it’s own punishment nor is it considered an individual crime with its own consequences. Within fiqh, rape is seen as an evil act that destroys ones honor. Rape is considered a sexual act outside of marriage, resulting in the possible punishment of 100 lashes or stoning to death. An accusation of rape with no proof, is subject to 80 lashings. Rape however, should not be considered the same as just any sexual act outside of marriage, because rape contains both elements of force and violence.

According to fiqh physical violence does not include rape. In discussions of fiqh, there are two acts of punishment for physical violence the more serious allocated to murder. Lighter punishments are given to those who have committed violent acts to parts of the body for example ears, eyes, hands, and even the penis. This includes both the cutting of body parts as well as losing their function. It is strange that there is no discussion of the vagina or act of damaging the hymen of women (for example that with rape).

In contemporary books of fiqh, discussion concerning the punishment for rape or intended physical assault concerning the vagina and the hymen is not present. On the other hand, there has been discussion concerning punishment for the cutting off of a man’s penis or for violent acts that result in impotency. The very comprehensive books of Dr Wahbah az-Zuhaili al-Fiqh al-Islami wa Adillatuhu and Abd al-Qadir Audah At-Tasyri al-Jina’iy still do not provide a suitable discussion concerning these acts of violence, even considering the evil act of rape threatens the social life of a whole community and in particular women.

Primary sources of fiqh such as the Koran and the hadith do not directly mention punishment for rape. There are however verses in these texts that point in the direction of the prohibition of it, providing protection for victims of sexual violence.

“But force not your maids to prostitution when they desire chastity, in order that ye may make a gain in the goods of this life. But if anyone compels them, yet, after such compulsion, is God, Oft-forgiving, Most Merciful (to them)” (Koran - Al-Nurr:33)

This verse at the very least identifies two important things: firstly, the efforts to forbid acts of force and sexual exploitation, and secondly, the support and assistance that should be offered to victims of sexual exploitation, in order that they will feel safe and believe in themselves again.

Rape and Sexual Acts Outside of Marriage

Islam, as shown in both the Koran and the hadith forbids perzinahan (sexual intercourse outside of marriage). A person who commits a sexual act outside of marriage is considered to ‘lose their faith’. As the Prophet said in one of the texts of the hadith narrated by Abdullah bin ‘Abbas:

“A person who commits this act (sexual intercourse out side of marriage) is not a true believer of their faith” Imam Bukhari and Muslim (See Ibn Al-Atsir, Jami al-Ushul, XII/329 no. 9330).

Perzinahan is the act of sexual intercourse outside of a valid marriage. The primary element of perzinahan is the physical act of sexual intercourse outside of marriage. Perzinahan could be the possible base for the formulation of the act of rape, but rape of course cannot be identified with perzinahan. Acts of rape possess an extra element to that of other sexual relations outside of marriage; that is, the force and violence used creating a traumatic experience for the victim.

Acts of rape also occurred at the time of the Prohet Muhammad, as is expressed in a text of the hadith narrated by Imam Turmudzi and Abu Dawud, from close friend Wail bin Hujr (see Ibn al-Atsir, Jami al-Ushul, IV/270, no 1823).

“One day (at the time of the Prophet) a woman left her house to go and pray at the Mosque. On her way she was met by a man who forced her to have sexual intercourse. The woman screamed while the man raped her. After he raped her the man ran away. A group of men (who accompanied the Prophet on his flight form Mecca to Medina) passed by the girl and she said to them (pointing in the direction of the man running) “that man just raped me”. They then ran after him and caught him and when face to face with the woman she said “yes that was the person”. They went to the Prophet and the man said “Yes Prophet it was me who did this”. The Prophet said to the girl “go now, God has already pardoned you”. The Prophet then said to the man (while appreciating his confession) “stone him”. He then said “Actually, he has already learnt his lesson and if someone learns their lesson all the people of Median will understand”.

Those who committed acts of rape at the time of the Prophet were punished, while the victim was freed with the hope that they would obtain forgiveness form God. At that time the punishment for rape – which had been carried out with force and violence was precisely the same punishment as those who committed perzinahan, which was not carried out with force or violence. As a result, the majority of religious teachers of the hadith and of fiqh place the act of rape on the same level as the act of perzinahan. The only difference is that with perzinahan both actors have to receive the punishment, while with rape only the rapist receives the punishment, while the victim is freed. But the threat of punishment facing both of the cases is the same.

Several other texts of the hadith support this argument, as is seen in the narration by Imam al-Turmudzi:

“ There was a girl who was raped (at the time of the Prophet), she was freed from punishment for perzinahan (sexual intercourse outside of marriage), while the perpetrator was subjected to punishment”

In the narration by Imam Bukhari and Malik, from Nafi mawla Ibn Umar it says: “That Shafiyyah bin Abi Ubaid reports : “that a male slave meets a female slave and forces her to engage in sexual relations, so Khalifah Umar ( a close friend of the prophet) says punish him with a lashings but do not punish the woman” (see Ibn al-Atsir, Jami al-Ushul, IV/269 no 1822).

The text of the hadith above have become a base for many Ulama of the hadith and fiqh in the argument of freeing the victim, the person who has been forced to partake in the evil act. It is not discussed in the context of emphasising the act of force used or the assistance needed for the victim. Imam Bukhari for example, places the hadith mentioned in a chapter with the theme ‘If a Woman is Forced to Engage in Perzinahan then She is not Subjugated to Punishment’. Ibn al-Atsir himself places the texts mentioned in the chapter ‘Punishment for those Forced and the Crazy People’. So, within cases of rape the victim is still considered to have carried out the evil act of perzinahan, but is freed from any threat of punishment because it was within a situation of force.

The element of force used within this evil act is discussed in fiqh Jinayah as an element which, can soften or free the victim (who has been forced) from punishment. But the element of force mentioned is not discussed concerning the punishment for the evil act of the person. Rape itself is indeed an evil act.

Texts of the hadith, often cite this issue: “Your sins will be freed by the community if any of these three factors occurred; it was unintentional, forgotten or forced by another person” narrated Ibn Majah, Ibn Hibban and Al-Hakim (see al-Ajluni, Kasyf al-Khafa 1/433 no. 1393).

But force and violence in cases of rape, are not suitable/proper if only based on the judgement/consideration to remove the punishment for the victim. Because the victim indeed has not carried out an act of evil, so it is not at all fair for the victim to be punished. A victim of rape will be traumatised for the rest of their life and will thus need assistance and strength to restore faith in them. On the contrary, the person who committed the rape must be punished harshly, because not only has the perpetrator carried out the act or perzinahan which is a forbidden act in islam, but thy have also, carried out an act (with the use of force and violence) damaging the victim both mentally and physically.

Incest and Rape

Often, perpetrators of rape tend to be people close to the victim. So, in many cases rape is carried out by a family member towards another female family member (incest); like one’s birth father, step father, grand father, uncle or one’s own brother. Often we see cases involving a person who is close to the victim but not blood related, like a teacher, friend or neighbor.

Indeed not all-incestuous activities are accompanied by force and violence. Occasionally incest with the meaning of same blood marriage occurs as a result of ethnic decent or a person of wealthy means with the goal of the continuation of a particular ethnic lineage. As happened in the family of the Pharaoh of Egypt and often occurred within the Inca community. This was a result of the society being an isolated society where incestuous marriage took place, as there was a dislike to have relations with other groups. Another reason is that the fulfillment of ones sexual needs is easier, closer and poses lesser risks. Usually the victims are young girls who do not have the freedom to reject it.

Incestuous behavior both within marriage perzinahan and furthermore the act of rape is condemned within Islam. The perpetrators of these acts face harsh punishment. In one hadith conveyed by close friend Barra bin Azib, he says:

“There was a time that I met my uncle walking in the street carrying the national flag, “where are you going?” he answered “I have been commanded by God to execute a person who married the wife of their own father” (see Ibn al-Atsir, Jami al-Ushul, IV/275, no.1829).

In a narration told by Ibn Abbas, the Prophet said: “whoever carries out intimate relations with a blood relative, is suitable to be killed” (See Ibn Al-Atsir, Jami al-Ushul, IV/269, no 1830).

In fiqh itself, incestuous marriages, for the majority of Ulama are considered to be perzinahan and for this reason can suitably be punished. Mazhab Hanafi however has the opinion that incestuous marriage is not perzinahan, which should not be threatened by hukuman hadd but rather hukuman ta’zir .

Incestuous behavior can take place for a variety of reasons. Among them are high sex drive, a low level of control for sexual activity and a low level of control of the law. With regards to these factors, Islam offers a set of morals in order to think positively and to protect and overcome one self from engaging in bad sexual behavior.

Assistance for Victims of Incest and Rape
The most serious problem concerning rape and incest is the loss of dignity that descends upon the victim. Suffering from a forced situation is what makes it even worse. The victim then has to live with this trauma for the rest of their life, both in their social life and in the sexual relationship with their partner.

A large portion of these rape victims experience difficulty to mix with and carry out social relationships successfully. Among them are those whose sexual relationships with their husband have been affected. This is not only limited to no longer enjoying a sexual relationship but to the extent of not being able to engage in sexual relations at all. For young girls (under age) who are victims of rape or incest, the affects tend to be even greater. Generally among these cases, there is an appearance of extreme restlessness in behavior, anxiety, bad dreams, mental disturbance, and effects for their social and sexual behavior.

These conditions mean all sides must give support and assistance to these victims. Most unfortunate, is that the upholders of the law, with regards to this case, often push the case aside and abuse the victim. For example, questions that tend to embarrass the victim. This kind of behavior will with no doubt only increase and extend the victims’ trauma.

Religious circles also demand (with fatwa and religious opinion) all people give assistance to victims of rape or incest. Like that carried out by Uzma Mazhar, a Pakistani religious thinker, with the strengthening of law towards perpetrators of rape and sexual corruption of girls. For Mazah, this behavior can be classified in fiqh Islam as the evil act of hirabah, which forms the peak of the conception of a criminal act in fiqh.

Fiqh, must be orientated towards the victims, which in this case are women. Firstly, it should not consider the sexuality of women as a cause for rape (so that cases of rape can not be turned around on to the female). Secondly, it is hoped that fiqh will morally protect, serve and take responsibility for the victims. For example, the problem of the abortion law for women who are victims of rape must be associated with a way to assist and protect the victims and provide a way out for them. With this the trauma suffered by rape victims may be able to decrease.

People who assist victims of rape are one more road closer to God. In one of the text of the hadith narrated by Imam Muslim the Prophet said: “wallahu fi ‘aun al-‘abdi ma dama al-‘abdu fi ‘awni akhihi” (‘God will always assist those who give assistance to their family’, see holy book at-Targhib wa at-Tarhib, III/398). []

 

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