Editing Islamic sexual jurisprudence (section)

=== Rape ===
{{main|Zina#Rape and zina|Rape in Islamic law}}
Rape is considered a serious sexual crime in Islam, and can be defined in Islamic law as: "Forcible illegal sexual intercourse by a man with a woman who is not legally married to him, without her free will and consent".<ref name="Noor">{{cite journal|last1=Noor|first1=Azman Mohd|title=Rape: A Problem of Crime Classification in Islamic Law|journal=Arab Law Quarterly|date=1 January 2010|volume=24|issue=4|pages=417–438|doi=10.1163/157302510X526724}}</ref>

Rape is forbidden under Islamic law.<ref>{{Cite web|url=http://sunnahfollowers.net/Maliks-Muwatta/www.adly.net/deed/hadith/malik/036_mmt.html |title=MALIK'S MUWATTA, BOOK 36: Judgements|website=sunnahfollowers.net|archive-url=https://web.archive.org/web/20160529005343/http://sunnahfollowers.net/Maliks-Muwatta/www.adly.net/deed/hadith/malik/036_mmt.html|archive-date=2016-05-29|url-status=live|accessdate=2017-01-28}}</ref> It is defined as having extramarital intercourse by force or fear, including any subsequent injury both to the victim's mental and physical health. According to Islamic law, it is classified as ''[[hirabah]]'', i.e. a violent crime causing disorder in the land in the manner described in the Qur'an as ''[[fasad]]'' (destructive mischief). A similar crime, for example, would be [[highway robbery]], as it puts fear in people going out or losing their property through violence. Some other branches of Islamic law consider it to be part of ''[[zina]]'', as a crime called "forced fornication" (''zina-bil-jabr''). In Sharia, rape is punishable by [[stoning]] to death.<ref>
[[Jami` at-Tirmidhi]], [http://sunnah.com/ tirmidhi/17 17:37] {{Webarchive|url=https://web.archive.org/web/20151020025409/http://www.sunnah.com/ |date=2015-10-20 }} , {{Hadith-usc|abudawud|
usc=yes|38|4366}}
</ref>

{{quotation|When a woman went out in the time of the Prophet for prayer, a man attacked her and overpowered (raped) her. She shouted and he went off, and when a man came by, she said: That (man) did such and such to me. And when a company of the emigrants came by, she said: That man did such and such to me. They went and seized the man whom they thought had had intercourse with her and brought him to her. She said: Yes, this is he. Then they brought him to the Messenger of Allah. When he (the Prophet) was about to pass sentence, the man who (actually) had assaulted her stood up and said: Messenger of Allah, I am the man who did it to her. He (the Prophet) said to her: Go away, for Allah has forgiven you. But he told the man some good words (AbuDawud said: meaning the man who was seized), and of the man who had had intercourse with her, he said: Stone him to death. He also said: He has repented to such an extent that if the people of Medina had repented similarly, it would have been accepted from them.|[[Jami` at- Tirmidhi]], [http://sunnah.com/tirmidhi/17 17:37], {{Hadith-usc|abudawud|usc=yes|38|4366}}}}

Under Islam, sexual intercourse is regarded as a loving act within marriage and should only be by mutual consent.{{additional citation| date=January 2017}} There is, however, no explicit concept of rape within marriage in Sharia; a wife is deemed to have accepted conjugal relations as part of the marriage contract. She can only refuse on grounds which are specified as prohibited for sexual intercourse such as when she is fasting, menstruating, undergoing [[Postpartum period|post-natal puerperal discharge]], or whilst on [[Hajj]] or [[Umrah]].<ref>{{cite web
 |url         = http://www.muslimaccess.com/articles/Women/rape_in_islam.asp
 |title       = Archived copy - rape in Islam
 |accessdate  = 2011-06-07
 |url-status     = dead
 |archiveurl  = https://web.archive.org/web/20110603085041/http://muslimaccess.com/
 |archivedate = 2011-06-03
}}</ref>

Classical Islamic law defined what today is commonly called "rape" as a coercive form of fornication or adultery (''zināʾ'').<ref name="Kassam">{{cite web |url= http://www.oxfordislamicstudies.com/article/opr/t349/e0075 |title= The Oxford Encyclopedia of Islam and Law |last=Kassam |first=Zayn |publisher= Oxford Islamic Studies Online |archiveurl= https://web.archive.org/web/20160304113724/http://www.oxfordislamicstudies.com/article/opr/t349/e0075 |archive-date= 2016-03-04 |url-status=live |accessdate= 3 May 2013}}</ref> This basic definition of rape as "coercive ''zināʾ''" meant that all the normal legal principles that pertained to ''zināʾ''{{spaced ndash}}its definition, punishment and establishment through evidence{{spaced ndash}}were also applicable to rape; the prototypical act of ''zināʾ'' was defined as sexual intercourse between a man and a woman over whom the man has neither a conjugal nor an ownership right.<ref name="Kassam"/> Sane adult male and female convicted of ''zināʾ'' were to receive a fixed corporal punishment (''ḥadd''):

* One hundred lashes and exile for one year for unmarried free persons;
* Stoning to death for married or previously married free persons;

''Zināʾ'' was established, according to classical law, through confession by one or both parties as well as proof. A second type of evidence{{spaced ndash}}pregnancy in an unmarried/unowned woman{{spaced ndash}} was contested between the schools. The stringent evidentiary and procedural standards for implementing the zināʾ punishment may have functioned to offset the severity of the punishment itself, an effect that seems to have been intended by legal authorities, who in the early period developed legal maxims encouraging averting the ḥadd punishments as much as possible, whether through claiming ambiguity (shubhah) or a lack of legal capacity (ahliyya).<ref name="Kassam"/>

What distinguished a prototypical act of zināʾ from an act of rape, for the jurists, was that in the prototypical case, both parties act out of their own volition, while in an act of rape, only one of the parties does so. Jurists admitted a wide array of situations as being "coercive" in nature, including the application of physical force, the presence of duress, or the threat of future harm either to oneself or those close to oneself; they also included in their definition of "coercion" the inability to give valid consent, as in the case of minors, or mentally ill or unconscious persons. Muslim jurists from the earliest period of Islamic law agreed that perpetrators of coercive ''zināʾ'' should receive the ''ḥadd'' punishment normally applicable to their personal status and sexual status, but that the ḥadd punishment should not be applied to victims of coercive or nonconsensual ''zināʾ'' due to their reduced capacity.<ref name="Kassam"/>

According to the Mālikī, Ḥanbalī, and Shāfiʾī schools of law, the rape of a free woman consisted of not one but two violations: a violation against a "right of God" (''ḥaqq Allāh''), provoking the ''ḥadd'' punishment; and a violation against a "human" (interpersonal) right (''ḥaqq ādamī''), requiring a monetary compensation. {{additional citation|date=January 2017}} These jurists saw the free woman, in her proprietorship over her own sexuality (''buḍʾ''), as not unlike the slave-owner who owns the sexuality of his female slave. For them, in the same way that the slave owner was entitled to compensation for sexual misappropriation, the free woman was also entitled to compensation. The amount of this compensation, they reasoned, should be the amount that any man would normally pay for sexual access to the woman in question {{spaced ndash}}that is, the amount of her dower (''ṣadāq'' or ''mahr''){{additional citation needed|date=January 2018}}.<ref name="Kassam"/> As far as abortion in the context of rape, most jurist do not consider rape to be a valid reason: the sanctity of the new life takes precedence over the autonomy of the pregnant women.<ref name="Moosa"/>

However, some women{{which|date=February 2018}}in the middle east were arrested after they went to the police to report rapes.<ref>{{cite web |url=https://www.bbc.com/news/uk-38013351 |title=Archived copy |accessdate=2017-09-21 |url-status=live |archiveurl=https://web.archive.org/web/20170921194207/http://www.bbc.com/news/uk-38013351 |archivedate=2017-09-21 }}</ref>