by Mahmodul Shesheir / Dr. Rasel Hussain
One of the most egregious crimes a person can do is rape. Rape victims suffer terrible physical, emotional, and psychic injuries that never go away. They must endure mental torment for no fault of their own. Their lives become a living torment, and they are frequently despised by society. However, what about the offender? What is to be done to the devil who breaks the victim’s spirit?
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“A man is said to commit “rape” who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions: Firstly. Against her will. Secondly. Without her consent. Thirdly. With her consent, when her consent has been obtained by putting her in fear of death, or of hurt. Fourthly, with her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. With or without her consent, when she is under fourteen years of age. Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception, Sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape”.
In the face of growing concerns about sexual violence around the world, societies are grappling with how best to protect rape victims by ensuring justice and prevent further assaults. Different countries across the world have strong laws against sexual assault to make their societies a safer place for their women. In the case of punishment for Rapist in Bangladesh Society, according to the Penal Code, 1860 the Punishment for rape (376) are “whoever commits rape shall be punished with 2[imprisonment] for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, unless the woman raped is his own wife and is not under twelve years of age, in which case he shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both(CHAPTER XVI, OF OFFENCES AFFECTING THE HUMAN BODY; Of Rape).” Bangladesh’s government has approved The Women and Children Repression Prevention (Amendment) Bill, 2020 that would allow for the death penalty in rape cases, as anger grows in the country over incidents of sexual assault. The bill says anyone convicted of rape will be punished with death or “rigorous imprisonment” for life. The existing provision stipulates a maximum of life in prison for rape.
Very Recently Bangladesh is witnessing and reporting a significant number of rape cases across the country and in most of the cases it was found the minor girls are the worst victims and sufferers. And in most of the rape case that are being filled as case in the police station also take long time to ensure justice which further hampering the social and lawful security of the victims both economically and psychologically.
After the mass upsurge across the country and long march for ensuring justice with the rape victims like Asia the current interim government is looking into the possibility of ensuring justice with the rape victims by accelerating the rape case dealing processes and duration. Along with the lawful dealing, another most crucial discussions revolve around the issue is the potential usages of Islamic Sharia law to play a role in the legal punishment of rapists and to ensure justice with the rape victims. However, there are lots of debates regarding its application. For many, the severity of punishments such as flogging or even the death penalty may seem too extreme. However, given the devastating impact of rape on both the individual and society, it’s worth considering whether such punishments might provide a stronger deterrent and serve justice more effectively than the lenient sentences often handed down by modern legal systems. In this article we are going to explain what is the Sharia law regarding rape and the punishment of the perpetrators.
1. Rape (Zina b’il-Jabr)
In Islam, rape is classified under the crime of “Zina b’il-Jabr” (forced adultery or sexual assault), where one person forces another into non-consensual sexual intercourse. It is considered an extreme violation of a person’s body and autonomy.
In Islamic (Sharia) law, the punishment for rape is severe, as it is considered a grave crime that violates the dignity, safety, and rights of the victim. The punishment for rape under Sharia can vary depending on the circumstances and the legal standards of proof, but it is designed to both deter potential offenders and serve as a form of justice for the victim. Below is an explanation of the potential punishments and conditions:
a. Death Penalty (Qatl)
The death penalty is one of the most severe punishments prescribed for rape in Islamic law, particularly if certain aggravating circumstances exist. This could include cases where the rape is committed with extreme cruelty, the victim is killed, or there are multiple victims. The punishment can also apply if the rape is part of a larger criminal act, such as kidnapping, human trafficking, or repeated offenses. Some interpretations of Sharia law suggest that the death penalty may be applied in such cases.
b. Flogging (Hadd)
Flogging (lashes) is another punishment that may be applied for rape in Islam, especially in cases where the crime involves less severe circumstances but still constitutes a serious offense. In some Islamic jurisdictions, a person found guilty of rape could be flogged with a set number of lashes (typically 100 lashes). This punishment is generally meant to deter the act and show society the severity of the crime.The victim’s testimony plays a crucial role in this process, but there must be strong, unambiguous evidence to convict the accused.
2. Conditions for Conviction
Islamic law places great emphasis on the integrity of evidence, and as such, there are strict standards of proof that must be met before a punishment is carried out. These include Four witnesses and Confession. In traditional interpretations of Sharia, to prove the crime of rape, there must be four male witnesses who testify that they saw the act of intercourse taking place. This requirement ensures that the accusation is supported by clear and credible evidence. If the perpetrator confesses to the crime willingly and without coercion, they can be punished according to Sharia law, even without the requirement of witnesses. The confession is considered a strong form of evidence.
3. Justice for the Victim
Victims of sexual violence often face insurmountable psychological and emotional trauma. The effects of rape can haunt an individual for years, causing not just physical pain but deep emotional scars. Yet in many contemporary legal systems, victims often feel their trauma is not properly acknowledged, or worse, that their attackers are treated too leniently. In Sharia, the legal process places a significant emphasis on victim justice. Not only does the law provide a clear structure for prosecuting rapists, but it also aims to protect the dignity and rights of the victim throughout the process. The victim’s testimony is treated with high regard, and their psychological and emotional suffering is taken into account when determining justice. Islamic law’s swift and clear response to the crime of rape aims to restore the victim’s sense of security and dignity, something that is often lost in lengthy court battles in non-religious legal systems.
4. Human Rights Concerns: The Debate Over Severity
Critics of Sharia law often raise concerns about human rights, particularly the severity of corporal punishment and the death penalty. They argue that such punishments are inhumane and cruel. However, it’s essential to recognize that the primary objective of Islamic law is not to enact vengeance but to protect the welfare of society. The system aims to prevent harm to the broader community, and punishments are only met up after careful consideration of evidence.
In the case of rape, Sharia’s requirements for high proof standards (such as requiring four male witnesses or a confession) ensure that punishments are not arbitrarily handed out. This protects individuals from wrongful convictions and ensures that only those truly guilty are punished. At the same time, the victim’s testimony is protected and treated with dignity, recognizing the profound trauma they’ve endured. Furthermore, Islamic law places great emphasis on the rehabilitation of both victim and perpetrator. It recognizes that individuals are capable of reform, and the ultimate goal is not just punishment but also the restoration of societal harmony and moral uprightness.
5. Balancing Justice and Mercy
One of the most misunderstood aspects of Islamic law is its balance between justice and mercy. While the punishments for rape under Sharia are severe, they are never executed in an arbitrary or unjust manner. The possibility of repentance and the opportunity for offenders to reform are built into the law, showing Islam’s recognition of the need for moral growth and personal accountability. However, this mercy does not extend to those who commit crimes as horrific as rape, especially when the victims suffer greatly. In these cases, Islam’s approach is one of clear and firm justice, emphasizing that society must protect the vulnerable and deter those who might commit such crimes in the future.
A Necessary Discussion for Society’s Safety
As we continue to struggle with the problem of sexual violence, it is essential to consider every avenue for justice and prevention. While the application of Islamic law may not be suitable for every society, the concepts of swift and certain punishment, protection of victims’ rights, and moral deterrence should resonate universally.The harshness of the punishments prescribed under Sharia for rapists is not about cruelty, it is about ensuring justice for the victim, safeguarding society, and creating a system where individuals understand that the cost of committing such a heinous crime will be incredibly high. Only when the cost of such a crime is steep enough will we begin to see a true reduction in sexual violence.
It’s time to think beyond our current systems and consider whether stronger deterrents or much enforcement and acceleration of the current legal procedures of dealing with rape cases by making special tribunal could lead to a safer and just world for our women and girls to lead a tension free, safe and sound life that is due for long time in the Bangladesh Society.
Mahmodul Shesheir, Associate Researcher at Yale University, United States, Dr. Rasel Hussain; Assistant professor, East West University, Dhaka, Bangladesh
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