Warning Against Affront, Rape, Control of Authority
Issue 720 » January 11, 2013 - Safar 29, 1434
Surah al-Ahzab (The Confederates) Chapter 33: Verses 56-62
"God and His angels bless the Prophet. Believers! Bless him and give him greetings of peace. Those who malign God and His Messenger will be rejected by God in this world and in the life to come. He has prepared for them a humiliating suffering. And those who malign believing men and women for no wrong they might have done shall have burdened themselves with the guilt of calumny and with a blatant injustice. Prophet! Say to your wives, daughters and all believing women that they should draw over themselves some of their outer garments. This will be more conducive to their being recognized and not maligned. God is Much-Forgiving, Merciful. If the hypocrites, those who a re sick at heart and those who spread lies in the city do not desist, We will rouse you against them, and then they will not be your neighbours in this city except for a little while: bereft of God's grace, they shall be seized wherever they may be found, and will be slain. Such has been God's way with those who went before. Never will you find any change in God's way."
The whole universe echoes God's praise of His Prophet. No honour could be greater than this. When God so honours and praises the Prophet, it is exceedingly grotesque for humans to give offence to him. What makes this even more grotesque and ridiculous is that it is an affront to God by His creatures. They can never affront or offend God, but the expression here serves to show great sensitivity to any offence committed against the Prophet, in effect making it an offence against God Himself.
God's strong condemnation against maligning believers generally, men and women, suggests that there was in Madinah at the time a group of people who schemed in this way against believers: they defamed them, conspired against them and circulated false allegations about them. God undertakes to reply to the accusers, describing them as hypocrites guilty of calumny and injustice.
God Almighty then instructs His Messenger to say to his wives, daughters and Muslim women generally to draw over themselves some of their outer garments. In this way, they would be recognized as Muslim women and the hypocrites would be wise not to follow them to tease and malign them. Commenting on this verse, al-Suddi says: "Some wicked people in Madinah used to go out at nightfall to make indecent remarks to women... When such people saw a woman wrapped in her outer cover, they refrained from maligning her as they recognized her as free and chaste."
We note the great care taken to purge all wicked behaviour from the Muslim society. These elements had to be pushed into a narrow corner, while new Islamic values and traditions took firm root in the Muslim community.
The passage concludes with a stern warning to the hypocrites and those who were sick at heart as well as those who circulated false rumours requiring that they stop all such wicked action, and refrain from affronting the believers and the Muslim community as a whole. Unless they stopped, God would empower His Messenger to drive them out of Madinah, so that they could be taken and killed wherever they were.
"In The Shade Of The Quran" - Sayyid Qutb, Volume 14, pp. 110-112
During the time of the Prophet (peace be upon him) punishment was inflicted on the rapist on the solitary evidence of the woman who was raped by him. Wa'il ibn Hujr reports of an incident when a woman was raped. Later, when some people came by, she identified and accused the man of raping her. They seized him and brought him to Allah's messenger, who said to the woman, "Go away, for Allah has forgiven you," but of the man who had raped her, he said, "Stone him to death." (Tirmidhi and Abu Dawud)
Islamic legal scholars interpret rape as a crime in the category of Hiraba. The famous jurist, Ibn Hazm, had the widest definition of hiraba, defining a hiraba offender as: ‘One who puts people in fear on the road, whether or not with a weapon, at night or day, in urban areas or in open spaces, in the palace of a caliph or a mosque, with or without accomplices, in the desert or in the village, in a large or small city, with one or more people… making people fear that they’ll be killed, or have money taken, or be raped (hatk al arad)… whether the attackers are one or many."
The Maliki judge Ibn Arabi, relates a story in which a group was attacked and a woman in their party was raped. Responding to the argument that the crime did not constitute hiraba because no money was taken and no weapons used, Ibn Arabi replied indignantly that "hiraba with the private parts" is much worse than hiraba involving the taking of money, and that anyone would rather be subjected to the latter than the former.
The crime of rape is classified not as a subcategory of ‘zina’ (consensual adultery), but rather as a separate crime of violence under hiraba. This classification is logical, as the "taking" is of the victim's property (the rape victim’s sexual autonomy) by force.
The focus in a hiraba prosecution is the accused rapist and his intent and physical actions, and not second-guessing the consent of the rape victim. Hiraba does not require four witnesses to prove the offense, circumstantial evidence, medical data and expert testimony form the evidence used to prosecute such crimes.
Islamic legal responses to rape are not limited to a criminal prosecution for hiraba. Islamic jurisprudence also provides an avenue for civil redress for a rape survivor in its law of "jirah" (wounds). Islamic law designates ownership rights to each part of one's body, and a right to corresponding compensation for any harm done unlawfully to any of those parts. Islamic law calls this the ‘law of jirah’ (wounds). Harm to a sexual organ, therefore, entitles the person harmed to appropriate financial compensation under classical Islamic jirah jurisprudence. Each school of Islamic law has held that where a woman is harmed through rape (some include marital rape), she is entitled to financial compensation for the harm. Further, the perpetrator must pay the woman an additional amount based on the ‘diyya’ (financial compensation for murder, akin to a wrongful death payment).
"Rape & Incest: Islamic Perspective" - Uzma Mazhar
One can often read and hear, from Muslims and non-Muslims alike, a translation of shariah as meaning only and strictly "Islamic Law." This understanding and translation are significant: they reveal one of the reductions that took place within Muslim thought over the course of centuries. Ash-shariah, which had been the Way to the light from which the implementation of laws over time and in different environments was thought out, came to be reduced to a set of laws to be implemented formally, as they then were. This understanding and translation reveal reductions that have critical consequences.
Civil society, that of ordinary women and men, needs to wake up and call for legal councils and intellectuals to provide comprehensive, but precise and consistent answers to their social, cultural, economic, and political questions. The population, through its commitment and its legitimate demands, must take it on itself to seize control of the authority to which it is entitled. The shift in the centre of gravity of authority involves the return of ordinary women and men to full civic commitment, uncompromising critical questioning, and a collective, practical search for solutions. This is one of the aspects of the crisis and of the shortcomings that can be observed today in the Islamic Universe of reference, always with the same reflexes of defensive formalism as obsessed with otherness, whereas what should be initiated is a confident, universalistic reform movement, which is both wholly inclusive and positively assertive.
"Radical Reform: Islamic Ethics and Liberation" - Tariq Ramadan, pp. 271-274