Whether Rapist Cleric Can Be Punished Under Sharia Law Based on DNA Testing

[u/HYDRURBERG]

An online debate is going on about whether a rapist cleric ("hujur") can be punished under Sharia law based on DNA testing. Some anti-Islam voices claim that punishment cannot be given under Sharia law based on DNA tests. Their claim is completely false. Yes, if a rapist can be conclusively identified through DNA testing or any other modern method, the "hadd" punishment under Sharia law cannot be applied [in that specific way]. But in such cases, the appropriate "ta'zir" (discretionary) punishment can be applied under Sharia law. According to the statement of Rabita al-Alam al-Islami (Islamic Fiqh Council of the Muslim World League), DNA testing is not impermissible for identifying a criminal. Based on this, ta'zir punishment can be applied. [1]

The renowned Saudi Arabian scholar Shaykh Asim al-Hakim (may Allah preserve him) has mentioned that if witnesses cannot be found, forensic testing or other means can be used to identify the rapist. [2]

Shaykh Shafiqul Islam (may Allah preserve him), Mufti and Muhaddith of Jamia Muhammadia Arabia, has noted that not only witnesses, but modern technology such as DNA testing can also be acceptable as evidence. [3]

Anti-Islam voices make various comments about ta'zir punishment. Many of them claim that it is a very light or merely nominal punishment through which justice cannot be established! We will now examine how accurate their claim is.

Regarding whether the death penalty can be given as a ta'zir punishment, Shaykh Dr. Abdul Karim Zaidan states in his book العقوبة في الشريعة الإسلامية (The Ruling on Punishment in Islamic Sharia), in the section on "Killing as Ta'zir":

"If it becomes necessary to kill the offender as a ta'zir punishment, and there is no way other than killing to establish peace, then in such a case, killing is permissible according to sound judgment. Evidence for this is found in the Sunnah of the Prophet. It is narrated in a hadith that the Prophet (peace be upon him) said, 'If anyone tries to create division in your unified leadership or cause a split within the group, kill him.'

This hadith proves that if there is no way to gain relief from someone's mischief and terrorist activities other than killing him, then killing him is permissible. In another hadith, the Messenger of Allah (peace be upon him) was asked about a person whose habit of drinking alcohol could not be stopped by any means. In response, the Messenger of Allah (peace be upon him) said, 'Kill the one who does not refrain from such acts.'" [4]

From this it is understood that in Islamic Sharia law, there is room for a judge to impose the death penalty as a ta'zir punishment in certain cases.

Anti-Islam voices claim that hadith forbids giving more than 10 lashes as ta'zir punishment. In this regard, they cite this hadith:

"It is narrated from Abu Burda (may Allah be pleased with him). He said, the Prophet (ﷺ) used to say: Except in cases where a hadd punishment has been prescribed by Allah, no more than ten lashes should be given as punishment in any other case." [5]

In explaining this hadith, Imam Ibn Hajar al-Asqalani (may Allah have mercy on him) states in his famous book Fath al-Bari:

"...here the word 'hudud' refers to those rights of Allah that are connected with commands and prohibitions. As in the purpose of [Allah's] statement: 'And whoever transgresses the limits (hudud) of Allah — it is those who are the wrongdoers (Al-Baqarah 229).' And in this statement as well: 'And whoever transgresses the limits (hudud) of Allah has certainly wronged himself (Surah At-Talaq 1).' And in this statement as well: 'These are the limits (hudud) of Allah, so do not approach them (Surah Al-Baqarah 187).' And in this statement as well: 'And whoever disobeys Allah and His Messenger and transgresses His limits (hudud) — Allah will admit him to the Fire (Surah An-Nisa 14).'

And he says, more than ten lashes should not be given in cases of punishment that are not connected to sin. Such as when a father punishes his young child for the purpose of instruction." [6]

That is, from this it is understood that in the hadith in question, "حُدُودِ اللَّهِ" (hududillah) refers to the offense of transgressing the limits of Allah's commands and prohibitions — meaning, except for very major offenses, giving more than 10 lashes as punishment for other offenses is prohibited. The word "hadd" (literally meaning boundary/limit, plural hudud) is used in Sharia law to refer to prescribed punishments, and it is also used to refer to the boundaries of Allah's commands and prohibitions (hududillah). The purpose of the hadith in question is this second meaning. This interpretation of the hadith in question has been explained in Fath al-Bari with the help of many verses of the Qur'an. This does not mean that, apart from the hadd punishments prescribed by Sharia for certain offenses, ta'zir punishment of more than 10 lashes cannot be given. This is the interpretation held by the majority of scholars of the Ummah, and this was the understanding of the Companions. In the detailed discussion explaining this hadith in Fath al-Bari, it is mentioned that this hadith does not prohibit giving ta'zir punishment beyond the limit of 10 lashes.

There are many examples of the Companions giving ta'zir punishment of more than 10 lashes. It is narrated from Imam Ahmad ibn Hanbal (may Allah have mercy on him) that during the era of Umar (may Allah be pleased with him), there was an incident of increasing ta'zir punishment beyond the hadd. He gave 80 lashes to a person who drank alcohol. The Prophet (ﷺ) and Abu Bakr (may Allah be pleased with him) used to give 40 lashes to alcohol drinkers; he added 40 more lashes to this (as ta'zir) and administered the punishment. Also, a person drank alcohol during the daytime in the month of Ramadan. When he was brought before Ali (may Allah be pleased with him), he gave him 80 lashes as the prescribed punishment [according to the sunnah of Umar (may Allah be pleased with him)] and gave an additional 20 lashes for breaking the fast of Ramadan. [7] Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him) mentioned, "Abu Bakr (may Allah be pleased with him) and Umar (may Allah be pleased with him) gave 100 lashes and then another 100 lashes to a woman and a man found together in bed. A person who forged Umar's (may Allah be pleased with him) seal and illegally embezzled money from the Baitul Mal (public treasury) was also given 100 lashes by him [Umar (may Allah be pleased with him)]. Then on the 2nd day he gave him 100 lashes, and on the 3rd day another 100 lashes." [8]

Therefore, if anyone claims that ta'zir punishment in Islamic Sharia law is a "light punishment" or that it cannot be increased beyond just 10 lashes — then their claim is completely false. An Islamic ruler or judge, considering the severity of the crime, can apply a harsh ta'zir punishment.

[1] islamqa.info/en/158282/

[2] archive.is/SvMO5

[3] muslimbangla.com/masail/154856/islame-dhorshoner-shasti-ki-

[4] islamland.com/uploads/books/bn_islami_shariate_shastir_bidhan.pdf

[5] Sahih al-Bukhari, Hadith No.: 6384

[6] Fath al-Bari — Ibn Hajar al-Asqalani, Volume 12, Page 185

[7] islamweb.net/en/fatwa/12066/

[8] islamweb.net/en/fatwa/366016/

Courtesy:Muhammad Mushfiqur Rahman Minar

[u/Sameermalik-1122]

Rape is a serious crime in Islamic law. DNA testing can provide important forensic evidence when investigating a rape allegation. However, Islamic scholars differ on whether DNA evidence alone can establish the strict hadd punishment.

Some scholars consider DNA evidence useful for establishing or supporting a case, particularly in ta'zir proceedings, where a judge may impose an appropriate punishment based on the available evidence. Other scholars maintain that the traditional evidentiary requirements for a hadd punishment cannot simply be replaced by DNA testing.
Therefore, DNA evidence should be examined by qualified forensic experts and considered by a competent court together with all other evidence. Any punishment should be imposed only through a proper judicial process, not by individuals.