❖ Clarifying the Jurisprudential and Legal Differences Between Sexual Violence and Zina ❖
Islamic jurists (fuqahāʼ) primarily discuss Zina (adultery or fornication) in the context of mutual consent. Any mention of coercion (ikrāh) in their discussions serves only to evaluate its legal consequences, not to redefine the crime itself.
It is essential to distinguish between the nature of the crime and its evidentiary standard.
To conflate rape (zina bil-jabr) with consensual zina is a serious misunderstanding.
✔ According to Imam Sarakhsi, in cases where a woman is coerced, if Zina is proven and later coercion is established, the Hadd (fixed punishment) is lifted from the woman—but not from the man.
✔ The man’s criminal act remains, and the Hadd applies to him unless otherwise proven.
✔ However, where only coercion is established without full proof of Zina, the case does not fall under Hudood, but under Siyasah (discretionary authority of the ruler).
Sexual violence can occur in many forms, and it is not limited to vaginal intercourse (dukhūl fī al-qubul):
✔ If physical abuse occurs without penetration, it is still sexual violence, not Zina.
✔ Anal intercourse (dukhūl fī al-dubur) is also a form of sexual assault but is not defined as Zina in classical jurisprudence.
Conclusion: According to Islamic legal principles, sexual violence is a distinct offense, separate from Zina.
✔ For Zina under Hudood, four eyewitnesses are required.
✔ But in the case of sexual violence, which is treated under Siyasah, the ruler or judge can rule based on:
✔ In severe cases, the perpetrator can be executed or given a harsher discretionary punishment (ta‘zīr).
✔ Section 6 of the Hudood Ordinance defines Zina bil-jabr (rape).
✔ Section 8 clarifies the standard of evidence.
For Hudood punishment, four male eyewitnesses are required.
If this is not available, then the matter shifts to Ta‘zīr (discretionary punishment).
✔ Section 10 allows imprisonment or flogging based on circumstantial or medical evidence.
✔ DNA tests and medical examinations can be legally utilized under Ta‘zīr, not Hudood.
A false narrative has been spread that rape victims are required to produce four witnesses, which is not true in Islamic law.
✔ Qadhf (false accusation) laws apply only when someone accuses another of consensual Zina without proper proof.
✔ These laws do not apply to cases of rape or sexual violence.
✔ According to the fuqahāʼ, four witnesses are not required in rape cases, and rape is not categorized under Qadhf.
✔ Sexual violence must be understood as a separate crime from Zina.
✔ While four witnesses are required for the Hadd of Zina, in cases of sexual violence, other forms of evidence are sufficient.
✔ According to Islamic jurisprudence, sexual violence is addressed under Siyasah, not Hudood.
✔ Misrepresenting this distinction creates confusion and unjust implications—both legally and morally.
◈ Sexual Violence Is Not a Category of Zina
Islamic jurists (fuqahāʼ) primarily discuss Zina (adultery or fornication) in the context of mutual consent. Any mention of coercion (ikrāh) in their discussions serves only to evaluate its legal consequences, not to redefine the crime itself.
It is essential to distinguish between the nature of the crime and its evidentiary standard.
To conflate rape (zina bil-jabr) with consensual zina is a serious misunderstanding.
◈ Juristic Perspective: The Position of Classical Scholars
✔ According to Imam Sarakhsi, in cases where a woman is coerced, if Zina is proven and later coercion is established, the Hadd (fixed punishment) is lifted from the woman—but not from the man.
✔ The man’s criminal act remains, and the Hadd applies to him unless otherwise proven.
✔ However, where only coercion is established without full proof of Zina, the case does not fall under Hudood, but under Siyasah (discretionary authority of the ruler).
◈ Nature of Sexual Violence as a Crime
Sexual violence can occur in many forms, and it is not limited to vaginal intercourse (dukhūl fī al-qubul):
✔ If physical abuse occurs without penetration, it is still sexual violence, not Zina.
✔ Anal intercourse (dukhūl fī al-dubur) is also a form of sexual assault but is not defined as Zina in classical jurisprudence.
Conclusion: According to Islamic legal principles, sexual violence is a distinct offense, separate from Zina.◈ Evidentiary Standard in Cases of Sexual Violence
✔ For Zina under Hudood, four eyewitnesses are required.
✔ But in the case of sexual violence, which is treated under Siyasah, the ruler or judge can rule based on:
- Medical reports
- DNA evidence
- Witness testimonies of a different nature
✔ In severe cases, the perpetrator can be executed or given a harsher discretionary punishment (ta‘zīr).
◈ Clarification Regarding Pakistan’s Hudood Ordinance
✔ Section 6 of the Hudood Ordinance defines Zina bil-jabr (rape).
✔ Section 8 clarifies the standard of evidence.
For Hudood punishment, four male eyewitnesses are required. If this is not available, then the matter shifts to Ta‘zīr (discretionary punishment).✔ Section 10 allows imprisonment or flogging based on circumstantial or medical evidence.
✔ DNA tests and medical examinations can be legally utilized under Ta‘zīr, not Hudood.
◈ Addressing Misconceptions and the Reality of the Fuqahāʼ
A false narrative has been spread that rape victims are required to produce four witnesses, which is not true in Islamic law.
✔ Qadhf (false accusation) laws apply only when someone accuses another of consensual Zina without proper proof.
✔ These laws do not apply to cases of rape or sexual violence.
✔ According to the fuqahāʼ, four witnesses are not required in rape cases, and rape is not categorized under Qadhf.
❖ Conclusion
✔ Sexual violence must be understood as a separate crime from Zina.
✔ While four witnesses are required for the Hadd of Zina, in cases of sexual violence, other forms of evidence are sufficient.
✔ According to Islamic jurisprudence, sexual violence is addressed under Siyasah, not Hudood.
✔ Misrepresenting this distinction creates confusion and unjust implications—both legally and morally.
