The Crime of Rape and the Hanafi Doctrine of Siyasah
Pakistan Journal of Criminology, 6:1 (2014), 161-192
32 Pages Posted: 13 Nov 2015
Date Written: 2014
The issue of rape has remained one of the most contentious issues in the modern debate on Islamic criminal law. It is generally held that because of the strict criterion for proving this offence, injustice is done with the victim of rape. This essay examines this issue in detail and shows that the doctrine of siyasah [the authority of the government for administration of justice] in the Hanafi criminal law can make the law against sexual violence more effective without altering the law of hudud. The basic contention of this essay is that a proper understanding of the Hanafi criminal law, particularly the doctrine of siyasah, can give viable and effective solutions to this complicated issue of the Pakistani criminal justice system. It recommends that an offence of sexual violence is created which does not involve sexual intercourse as an essential element. That is the only way to delink this offence from zina and qadhf and bring it under the doctrine of siyasah. This offence will, thus, become sub-category of violence, not zina. The government may bring sex crimes involving the threat or use of violence under one heading and, then, further categorize it in view of the intensity and gravity of the crime. It may also prescribe proper punishments for various categories of the crime. Being a siyasah crime, it will not require the standard proof prescribed by Islamic law for the hadd offences. In extreme cases, the court may award death punishment which can be commuted or pardoned only by the government, not by the victim or her legal heirs.
Keywords: Sexual Violence, Rape, Hadd, Siyasah, Ta'zir, Hanafi School
JEL Classification: K14
Suggested Citation: Suggested Citation