Rogol, Liwat dan zina adalah tidak sama/ Rape, Sodomy and Zina are not Identicals

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Question: Should sodomy, zina and rape be treated the same?

It is submitted that there are clear textual evidence from Al-Quran and Sunnah pertaining to the punishments for zina (adultery) and its strict requirement of evidence prior to conviction. A question has arisen, should the same punishment and the same requirement of proving be applied to sodomy and rape? To answer this question, the is a jursitic issue, whether the principle of al-qiyas (analogy) can be applied in penalties (al-qiyas fi al-‘uqubat).

The root of the jurists’ dispute in adopting an appropriate approach to deal with sodomy stems from their disagreement on the basic principle of whether or not to apply analogy in the case of penalties for crimes. Those who classify rape as similar to zina rely on the mechanism qiyÉs.

Qiyas or analogical reasoning is one of primary sources of Islamic law after the Quran,  Sunnah and ijma’. Although it is almost unanimously agreed between Muslim jurists to use qiyas extensively in many legal issues when there is no direct textual evidence, they hold different opinions with regard to the applicability of the doctrine of qiyas in the issues of crimes and penalties.

The majority of the jurists do not make any distinction in this respect, and maintain the view that qiyas is applicable to these circumstances in the same way as it is to other rules of the Shariah. They support their view by generalizing the indicators of the Quranic passages and hadiths which are quoted in favour of the admissibility of qiyas, which are all worded in absolute terms, without drawing any distinction in regard to penalties. Since the evidence in the sources does not impose any restriction on qiyas, it is therefore applicable in all spheres of the Shariah.[1] An example of qiyas with regard to penalties is the application of the same punishment for sodomy as for zina. Majority of the jurists  draw an analogy between zina and sodomy and apply the hadd of the former to the latter by analogy.[2]

The Hanafis, however are against this view. The Hanafis are in agreement with the majority to the extent that qiyas may validly operate in ta’zir penalties, but they oppose the application of qiyas in penalties and kaffaras. They do not apply analogy between zina and other sexual offences, and these offences should, according to them, be penalized under ta’zir.

The reason for their argument is that the illah (occasioning factor) of the qiyas founded in hadd cases involves a measure of speculation and doubt. And the hadd doctrine eliminates the implementation of the punishment when the there is any sort of doubt in conviction. This is based on hadith: “Drop dubious hadd cases as far as possible. If there is a way out, then clear the way, for in penalties, if the imam makes an error on the side of leniency, it is better than making an error on the side of severity.[3]

Besides the Hanafis, Ibn Hazm al-Zahiri who does not accept the validity of qiyas, holds the same idea. Ibn Hazm says: “Whoever considers sex with an animal and sodomy as similar to zina is ignorant of the concept of zina.”[4]

Adopting the same mechanism of proving sodomy as for zina or its punishment, based on qiyas is refutable. This is because the nature and consequences are different. There is no great loss like virginity loss, reputation, possible pregnancy in sodomy compared to zina.

As for rape i.e. there are elements of usurpation, using force against one’s willingness that result in victimization. This is applicable in zina by force or sodomy by force. If so the doer should be held liable, otherwise- if it is consensual- then, both should be accountable. For the prosecution of rape, one has to prove that the rapist has actually committed the crime by using force with the absence of consent of the victim and at the same time that the victim is innocent. This is because conviction of the crime will result in severe physical punishment as well as financial compensation.

In other words, in case of rape besides its investigation to convict the criminal, the court also has a duty to investigate the impact suffered by the victim such as physical injury, trauma and other medical consequences. There is a special provision in Islamic law called the law of jirah (wounds). It is not only the issue of penetration, but the victim has the rights of compensation for every single harm to any part of her body, particularly her private parts. All these harms need to be proven and valued. The criminal is liable to pay all the financial compensation demanded by the victim once it has been scrupulously by the experts.

Based on these arguments, in light of the Hanafis approach, I would suggest the need to differentiate between the punishment and prosecuting zina from sodomy, consensual and non consensual. Sodomy deserves the punishment of ta’zir. Rape needs different approach of proving for both the victim and the criminal respectively. The proof of victimization is acceptable however slim it is, such as a scream for help, because it aims at avoiding punishment. In contrast, it is made difficult to prove the guilt of a criminal, because it will end him up with severe punishment.  

Wallahua’alam


[1] Abu Zahrah, Usul al-Fiqh, Cairo: Dar al-Fikr al-‘Arabi, 1958 p.205.

[2] Al-Shawkani, Irshad al-Fuhul, ed. Abu Musʿab Muhammad, Beirut: Mu’assasat al-kutub al-thaqafiyya, 1998, pg. 222.

[3] Ibn Qayyim, I’lam al-MuwaqqiÑin, Beirut: Dar al-Jail, 1973.vol. 1, pg. 209.

[4]  See Ibn Hazm, al-Muhalla, vol.12, pg.401.

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