The Crime of Rape and The Hanafi Doctrine of Siyasah

Muhammad Mushtaq Ahmad

Abstract
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: Rape, Sexual Violence, Zina, Qadhf, Hirabah, Hadd, Ta`zir, Siyasah, Circumstantial
Evidence.