[4] Classical Islamic law (Shari'a) regarded the crime of sexual violation as a coercive zina, and therefore a hadd offence.
In Mālik's view, rape refers to any kind of unlawful sexual intercourse (zina) by usurpation and without consent.
[9] Classical Islamic law defined what today is commonly called "rape" as a coercive form of fornication or adultery (zināʾ).
Jurists admitted a wide array of situations as being "coercive" in nature, including the application of physical force, the presence of duress, or the threat of future harm either to oneself or those close to oneself; they also included in their definition of "coercion" the inability to give valid consent, as in the case of minors, or mentally ill or unconscious persons.
Muslim jurists from the earliest period of Islamic law agreed that perpetrators of coercive zināʾ should receive the ḥadd punishment normally applicable to their personal status and sexual status, but that the ḥadd punishment should not be applied to victims of coercive or nonconsensual zināʾ due to their reduced capacity.
The medieval Zahiri jurist Ibn Hazm defined hirabah as, 'One who puts people in fear on the road, whether or not with a weapon, at night or day, in urban areas or in open spaces, in the palace of a caliph or a mosque, with or without accomplices, in the desert or in the village, in a large or small city, with one or more people… making people fear that they'll be killed, or have money taken, or be raped (hatk al 'arad)… whether the attackers are one or many.
Al-Dasuqi, for example, a Maliki jurist, held that if a person forced a woman to have sex, his actions would be deemed committing hiraba.
In addition, the Maliki judge Ibn 'Arabi, relates a story in which a group was attacked and a woman in their party raped.
[15] Historical records show that when experiencing sexual abuse, some women were able to go to court and force their husbands to desist and pay damages even in the pre-modern Muslim world.
[21] Islamic law advises that the sexual intercourse between man and wife should be conducted with intimacy and love.
[28] Most classical scholars argued for applying the ḥadd penalty for zinā to a convicted rapist, which is stoning to death for the married (muḥsān), or a flogging of 100 lashes and deportation for the unmarried (ghair-muḥsān).
They base their argument on a hadith which reports a rape case at the time of the Prophet, where the victim was excused and her rapist (who was married) was sentenced to be stoned to death.
To them, rape deserves a ta'zīr penalty when a conviction is reached as a result of circumstantial evidence, such as marks of violence about the genitals, marks of violence on the body of the victim or accused, the presence of semen or blood-stains on the body or clothes of the victim or accused, or a medical report, all of which are sufficient for ta'zīr only.
Under the principle of al-fi'l al-darr (Islamic law of Tort), it is possible for a victim to make a claim for moral damages, which may include violation of a person's freedom, dignity, reputation, social or financial status.
[36] According to Professor Oliver Leaman, the required testimony of four male witnesses who eyewitnessed the actual penetration applies only to consensual illicit sexual relations (whether adultery or fornication), not to the non-consensual crime of rape.
The requirements for proof of rape, by contrast, are less stringent, and do not require any extraneous witness testimony, eyewitness or otherwise: Rape charges can be brought and a case proven based on the sole testimony of the victim, providing that circumstantial evidence supports the allegations.
It is these strict criteria of proof which lead to the frequent observation that where injustice against women does occur, it is not because of Islamic law.
[40] When the pregnancy is unplanned and therefore unwanted, as in the case of rape, the parents, [have to/should, as adoption is unlawful] abort the fetus and thus prevent the disgrace that awaits both mother and child [..] the child born of rape, like one born of adultery (walad zina) is a more lowly member of society with regard of the rights he or she is guaranteed and the social status he or she can attain.
In 1991, the Grand Mufti of Palestine, Ekrima Sa'id Sabri, took a different position than mainstream Muslim scholars.
[40][41] A woman who is being forced to commit zina [unlawful sexual activity] is obliged to defend herself and should not give in, even if she kills the one who wants to do that to her.