Rape as a variant of fornication(Zinā)Inislamic Law: An Examination of the Early Legal Reports

Abstract

The contemporary treatment of rape in the penal codes of Muslim nations has come under increasing scrutiny over the last two decades, as several high-profile cases have arisen in which women have claimed sexual assault but been unable to bring sufficient proof of non-consent. In some cases, claimants have subsequently been punished for fornication (zinā) because their accusations were seen as constituting confession to consensual illicit sex, while in other cases, a resulting pregnancy has been taken as evidence of the same. These cases have illustrated the particular problems that stem from defining rape as a coercive variant of fornication, orzinā.These cases have largely arisen in the context of national efforts to Islamize the legal code by bringing laws into line with perceivedsharī'aguidelines. This slew of cases has prompted journalists, human rights groups and Muslim reformers to ask whether contemporary “Islamic” rape laws are really continuous with the classical Islamic juristic tradition, or whether they may in fact represent distortions of that tradition. A central point of debate has been over whether Islamic juristic discourse truly placed rape—that is, a man's unlawful sexual intercourse with a woman against her will—under the category ofzinā, or not.