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Sometimes I hear it claimed that rape is a cut-and-dry case of hirabah. Wikipedia lists a few scholars who had this opinion. All other scholars I'm aware of classify rape as zina bil jabr, literally "forced illegal intercourse". This is relevant from two perspectives:

  • the burden of proof for hirabah may be different than for zina (all scholars I'm aware of require the burden of proof for zina in rape cases, which is four witnesses or a confession; in contrast, at least Saudi Arabia is claimed to have a burden of proof of two witnesses or a confession for hirabah)
  • the punishment for hirabah is different from the punishment for zina and coercion

I've seen the nuance mentioned that it matters whether the rapist used a weapon or not. My questions in this regard are these:

Questions:

  • which major scholars from which schools of law classified rape under hirabah?
  • does the use of a weapon matter for the classification of rape as either zina or hirabah?
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According to 'Al-Mausu'ah Al-Fiqhiyah Al-Kuwaitiyah' , the Maliki school consider "trying to rape forcefully" as Hirabah.

They also said referred to the Jawaher Al-iklil which is referring to Mudawwanah (Maliki References) :

"whomever use a weapon or so as a force to take a man's money (by compulsion) , in an ally/corridor , or to enter into where his wives are staying in the city: he will be judged with the Hirabah ruling "

"enter to where his wives are staying in the city": (an allusion) most probably means trying to commit the crime of rape or attacking the wives.

as in Hirabah (in general) , they mentioned that the Hanafi and Hanbali schools, require a form of a weapon to be present , like stones or sticks , in order to describe that incident as Hirabah.

and that Shafi'i and Maliki schools, don't require so. It's enough to forcefully take the money by punching or striking using the fist.

so for the first question I found the Maliki school.

for the second question : The Maliki school qualifies (trying to rape forcefully) as Hirabah, even without a weapon.

I tried my best to translate the Arabic texts into English , but it's not necessarily accurate.

Wa Allah-u A'lam (and God knows best)

  • I'm confused by this answer. Some of it talks about robbery, some about breaking and entering, some about forceful rape (as opposed to I'm not sure what kind of rape). There are two links, but without citations of specific passages in them, and as far as I can tell without translations of the relevant passages. It sounds like the answer seems to claim a consensus among the Maliki school that rape is always hirabah, and that would be very surprising because I can't find corroboration of that anywhere, and it directly contradicts the other answer since Ibn Abd al-Barr was a Maliki scholar. – G. Bach Sep 19 '17 at 12:11
  • True. I don't claim knowing the mazhab. All I know is what is quoted by the links. As I understood, and may be wrong, Forceful rape is apposed to rape by verbal threatening or compulsion . It's by using actual force like beating by hands or sticks . Also, from my understanding , some differentiate between raping secretly and by deceiving (like while the girl is asleep or with a young girl ), and raping openly, with obstinacy and using force. So probably Ibn Abd al-barr was talking about the Not-hirabah-related type, as opposed to what is said by ibn Arabi, in Wikipedia link – Butarek Hd Sep 22 '17 at 18:53
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Which major scholars from which schools of law classified rape under hirabah?

Ibn Abd al-Barr said:

The scholars are unanimously agreed that the rapist is to be subjected to the hadd punishment if there is clear evidence against him that he deserves the hadd punishment, or if he admits to that (ie the hadd punishment for zina).

So rape is classified as zina if no weapon was used.

Does the use of a weapon matter for the classification of rape as either zina or hirabah?

Yes. If a weapon is used, then he will be considered a muharib and is to be subjected to the hadd punishment described in verse 5:33.

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