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Paper presented at the 8th Family Medicine Scientific Meeting organized by the Malaysian Family Medicine Specialist Association at the Swiss Garden Hotel Kuantan 7th – 10th July 2004 by Professor Dr Omar Hasan Kasule, Sr. MB ChB (MUK), MPH & DrPH (Harvard) Deputy Dean Faculty of Medicine UIA
SUMMARY
The Islamic approach to sexual crimes is predominantly preventive: regulation of human sexuality, control of antecedents to sexual transgression, and satisfaction of sexual desire within marriage. If these measures were followed, these crimes would be virtually wiped out. The few offenders would be punished severely by the death sentence. The victims need rehabilitation to be able to live normal lives once again.
1.0 INTRODUCTION
The main thesis of this paper is that sexual crimes can be prevented by measures undertaken by the family and the community. Many communities with rising sexual crime rates have failed to recognize the social antecedents of the crimes and have lacked the courage and will to eradicate them These communities adopt what would amount to an ‘ostrich head in the sand’ attitude. While on one hand they tolerate or even encourage sexual norms, entertainment, and commercial advertising that stimulate and glorify deviant sexual passions, they complain about increase of sexual crimes. They refuse to acknowledge what is obvious to the naked eye that currently accepted social norms lead to sexual transgressions.
The Law regulates proper conduct of sexual relations by either decreasing sexual stimulation or removing antecedents of sexual transgression. These regulations are under the rubric of prevention of approaching fornication (illegal sexual relations)[1]. Under normal circumstances, sexual transgression is prevented by family and community action. The state intervenes with severe deterrent legal penalties when family and community controls fail.
Rape is a severe crime that involves violence and violation of honor and modesty. Based on a comprehensive and balanced view of human sexuality, the Law prescribes several preventive measures that should in normal societies prevent commission of the crimes. It prescribes the death penalty as a severe deterrent in the few situations in which preventive measures fail and the crimes are committed. The Law presumes that most sexual crimes are due to male sexual aggression and that females are usually victims. Thus its provisions are directed against the sexual aggression of men. While punishing the perpetrator of rape and incest severely, the Law protects and empathizes with the victims and takes care of their rehabilitation.
Unfortunately it is difficult to get preventive measures implemented because of politically powerful vested economic interests in the entertainment and commercial advertising industries.
2.0 SEXUAL HYGIENE
HUMAN SEXUALITY
God created sexual desire, shahwat, in humans[2] as a normal desire that fulfils the dual purposes of procreation and pleasure. Islam forbids complete rejection and suppression of the sexual instinct[3]. Celibacy is a human invention[4] that goes against basic human nature. God created in each gender features that attract the other gender. These include the physical beauty of the body (shape, size, movements, texture, color), the voice (pitch and depth), scalp, and body hair (length, distribution, texture). Physical beauty is appreciated by Islam and is considered one of the 4 reasons for marriage[5]. Shaitan, who is always around each human[6], exploits physical beauty and sexual attraction between the genders to inflame passions that lead to sexual transgression. Beauty and sexual attractiveness can be a temptation for both women and men[7].
REGULATION OF HUMAN SEXUALITY
The sexual drive can be controlled by saum (fasting), dua (prayer), haya (modesty), and psychological barriers. Saum can control the sexual urge among youths for a short time until marriage is possible[8]. DuaHaya is an inner spiritual protective device that makes a person shun sin and what may lead to it. It is the morality of Islam[9], is part of iman (faith)[10], and is always for the good and can never be negative[11]. The family and the community must erect psychological barriers against commission of sexual transgression. These include rejection and despise of the duyuuth (those who encourage or tolerate sexual misconduct in their families)[12], psychological revulsion to sexual corruption, avoiding open and public discussion of sexual misbehavior[13] that will eventually make the crime look ordinary and common and thus easier to commit, and social isolation and boycott of those engaged in sexual misconduct for example by not allowing them to marry from modest families. They can only marry fellow sexual offenders[14] can suppress sexual desires and thus prevent sexual transgression.
CONTROL OF ANTECEDENTS OF SEXUAL TRANSGRESSION
Sexual transgression can be prevented by controlling or eliminating its antecedents: exposing awratkhalwat (seclusion), ikhtilat (mixing), tabarruj (sexually provocative dress or behavior), and violating the privacy of the home. (nakedness),
Exposing awrat: The various organs of the body can be involved in actions that are described as non-coital fornication, zina al jawarih[15]. The eye by looking gives sexual enjoyment, shahwat al tamatu’u bi al nadhar that could turn into physical sexual transgression. Covering nakedness, satr al awrat, for both males and females prevents sexual provocation by hiding those parts of the body that could elicit sexual stimulation if seen. Nudity of varying degrees is found in societies according to their level of sexual immorality.
Khalwat, defined as a man being with a marriageable woman who is not his wife in a place where others cannot see them, is forbidden[16]. Whenever a man is with a woman in seclusion, shaitan comes between them and leads them to temptation.
Ikhtilat, defined as mixing of men and women, can lead to sexual transgression. When men and women are together the natural sexual attractiveness could lead them into temptation. When mixing is unavoidable for societal necessity, the Law on male-female interaction has prescribed certain etiquettes. Awrat must be covered as prescribed by the Law[17]. Men and women who are strangers to one another have to lower their gaze, ghadh al basar[18], and not look at each other fixedly and for a prolonged time. Both genders must have haya (modesty). If a man and woman talk to one another they must be serious, jidiyyat al takhatub[19] and not engage in frivolous talk that could lead to temptation.
Tabarruj is sexually provocative dress or behavior that can lead to sexual transgression. Ornamentation must be concealed from public display[20] and should only be within the confines of the home.
Violating the privacy of the home leads to sexual transgression. A stranger is not allowed to enter a home unless given permission. This ensures that the house occupants' nakedness will not be exposed accidentally[21]. Rooms within the home are also private territory that should not be entered before asking for permission.
SATISFACTION OF HUMAN SEXUALITY BY MARRIAGE:
Sexual transgression would be virtually eliminated by early and continuous marriage such that there are no windows of temptation. This requires quick remarriage of those whose marriages are broken by divorce of death. Marriage is the only institution that allows full expression of human sexuality in a responsible way. It is a deep and serious relationship[22] that protects against sexual immorality[23]. Immediate recourse to a spouse in cases of sexual temptation is protection from potential sin[24]. The sexual relation in marriage is wider that coitus. It involves social and psychological bonding. It is forbidden to withhold sexual favors from a spouse without a valid reason[25] because this could lead to temptation. The sexual relation is also private. It is forbidden for both spouses to disclose their sexual experiences to any outside parties[26].
3.0 RAPE
Imaam al Bukhari in his hadith collection set aside a whole chapter of his book on coercion (Kitaab al Ikraah) and related several hadiths about forcing woman into sexual intercourse against their will. He reported on the authority of Aisha the prophet’s ruling that a woman has to consent for the marriage to be valid. The custom of marrying widows as inheritance against their will was prohibited by the Qur’an. He reported the story of Ibrahim with the unjust king who had wanted to rape his wife Sarah but Allah protected her.
The Law protects women servants in the home who because of their weak social status may be victims of sexual transgression. The woman is considered the victim of sexual transgression and is not punished. The most severe punishment is meted out to the man. Bukhari reported from Habiib bin Salim that the prophet made a judgment in case of a man who has sexual relations with his wife’s servant. The prophet judged that if she had consented the man would be whipped 100 lashes and if she had not consented he would be stoned to death[27]
All cases of rape should be investigated carefully because punishment on conviction is severe. These investigations are sometimes difficult because the victims may not give information because of the embarrassment involved. Often the crimes are committed where there are no witnesses. Modern techniques of forensic science can be used to help establish the facts.
The use of forensic science in solving sexual crimes had a very interesting beginning in Muslim history. A woman was very fond of one Ansari man and tried all means to seduce him with no success. She decided to take her revenge by accusing him of raping her. She put some egg albumin on her clothes and between her thighs to appear like semen. Omar Ibn al Khattab had at first believed the woman but on consulting Ali Ibn Abi Talib the conviction was overturned. Ali carried out a simple forensic test by pouring hot water on the alleged ‘semen’ to remove it from the cloth. He then tasted it and discovered that it was egg albumin and nor semen. The woman then confessed her deception. The lesson from this story is that we have to be careful in our investigations because the punishment for rape is a very severe and must be based on strong evidence.
Conviction for rape is based on evidence indicating forced intercourse. Medical evidence includes physical examination for physical injury or signs of vaginal penetration, presence of spermatozoa, and DNA analysis. The prescribed punishment is death. If a woman is forced into illegal coitus she is not punished[28]. A woman who is coerced into illegal sexual acts is not convicted[29]. The aggressor has to pay financial compensation in addition to criminal punishment[30]. ‘Abd al Malik Ibn Marwan gave a judgment that the rapist had to pay the raped woman her dowry and the hadd punishment is then applied to the rapist[31]
REHABILITATION
Rape is a very traumatic experience for the victims. They need a lot of psychological and emotional support. The first issue to be tackled is the feeling of guilt that they experience. Despite knowing that they were victims and not perpetrators of the crime, some feel that may be they are somehow to blame because of something they did or failed to do. The quickest way to rehabilitate them is to forget the crime and put it in the basket of history. Unfortunately may health care workers have the opposite view thinking that talking about the problem takes it ‘off the heart’ and leads to normalcy.
Repeating the gory details of the crime makes the victims be ashamed and they cannot live as normal members of society because everybody will point at them as victims of rape. Islamic Law requires concealing information that affects the social standing of the civtims. Bukharui reported from Abu Hurairah that the prophet said ‘man satara musliman satarahu al llaahu fi al dunia a al akhirat’ he who covers the shame of a Muslim will be rewarded by Allah covering his shame on earth and in the hereafter’[32]
The mass media play a role that I think is negative with regard to rape. They compete with one another in reporting the details of the crime so that we know all what happened to the victim. They never report the details of the suffering of the criminals under punishment. The Islamic approach is not to broadcast the shameful details of the crime but to broadcast the punishment. Islamic Law requires that execution of people convicted of serious crimes should be public to be a deterrent.
Islamic Law provides for financial recompense to the victim. The convicted offender has to make financial restitution before execution. The financial payment cannot wipe away all the physical and psychological damage due to rape but can help relieve some of the physical consequences of the crime such as obtaining medical care.
[1] (Qur’an 17:32)
[2] (Qur’an 3:14)
[3] (MB1828-1830)
[4] (Qur’an 57:27)
[5] (MB1835)
[6] (Muslim Kitaab Sifaat al Mumafiqiin Hadith 69-71, Ahmad 6:115)
[7] (Qur’an 12:23-24 & 12:30-34)
[8] (MB927)
[9] (Ibn Majah Kitaab al Zuhd Baab 17)
[10] (Bukhari Kitaab al Iman Baab 3
[11] (Muslim Kitaab al Iman Hadith 60)
[12] (Ahmad 2:69)
[13] (Qur’an 4:148)
[14] 24:3
[15] (MB2061 Bukhari 8:260)
[16] (Bukhari Kitaab al Nikaah Baab 111)
[17] (Qur’an 24:31)
[18] (Qur’an 24:31)
[19] (Qur’an 33:32)
[20] (Qur’an 24:31)
[21] (MB2060 Bukhari 8:258)
[22] (Qur’an 4:21)
[23] (Abudaud Kitaab al Nikaah Babb 42, Qur’an 60:10)
[24] (Muslim Kitaab al Nikaah Hadith 9)
[25] (Bukhari Kitaab al Nikaah Baab 85)
[26] (Muslim Kitaab al Talaaq Hadith 13)
[27] (Ibn Majah Kitaab al Huduud Baan 8: man waqa’a ala jaariyat imratihi).
[28] (Bukhari Kitaab al Ikraah Baab 6)
[29] (Bukhari Kitaab al Ikraah Baab 6)
[30] (Muwatta Kitaab al Aqdhiyat Hadith 14)
[31] (Muwatta Book of Judgements Chapter on Judgment for Raped Women)
[32] Bukhari Kitaab al huduud Baab man Satara mumiman