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Fatwa CenterProving Rape by Modern Medical Means
Question
I have read in a fatwa that the punishment for a rapist is stoning to death if he is a muhsan (currently or previously married) and lashing if he is not muhsan. Should there be four witnesses for rape, as is the case with zina (fornication), especially given that this factor is usually absent in rape crimes, which means that the raped girl could never prove that she has been raped? Can rape be proved by modern medical means? Will this be accepted by Islam as proof of the crime ?
Answer
All perfect praise be to Allah, the Lord of the worlds. I testify that there is none worthy of worship except Allah and that Muhammad, sallallaahu ‘alayhi wa sallam, is His slave and Messenger.
Muslim scholars agreed that for zina to be proven, not less than four witnesses should give their testimony of having seen the incident of zina while being committed. This number of witnesses is specific to zina apart from all other matters for which a testimony is needed, Allah, the Exalted, says (what means): {And those who accuse chaste women and then do not produce four witnesses – lash them with eighty lashes and do not accept from them testimony ever after. And those are the defiantly disobedient.} [Quran 24:4]
It is stipulated that the required witnesses should be upright and should have seen the actual sexual intercourse take place, i.e. to have seen the man's penis inserted in the woman's vagina, and that their testimony should be explicitly expressed.
The only difference between zina and rape is that in the case of rape the woman bears no sin and should not be subject to the hadd (i.e. corporal punishment prescribed for crime), unlike the case of zina. Moreover, the raped woman has due rights over the rapist.
As for proving rape by modern medical means, this is impermissible because Allah, the Exalted, enjoined that for zina to be proven, four witnesses must give their testimony, and He identified specific conditions for the testimony to be accepted. Such restrictions are set forth by the sharia in order to conceal people's sins and safeguard their honor. It is impermissible to renounce these conditions and seek other means that may fail to prove that which is simpler than zina.
Moreover, it is untrue that the factor of witnesses is usually lacking in rape crimes. On the contrary, it is more likely that there are witnesses for rape as the victim would scream and seek help, unlike zina, where both the man and the woman are keen to hide themselves from people.
If we assume that a woman screamed and sought help while being raped and the rapist is caught, then the concerned authority should interrogate him. If he confessed his crime, then his confession is enough and no witnesses are needed in this case. Confession of the perpetrator is the strongest evidence.
Allah knows best.
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