Sexual Violence in Jurisprudence (7): Abuse by Non-Husbands and Sanctions



In a research journal published by Lex Crimen Volume II Number 1, published in January-March 2013 stated that the background of rape and sexual abuse is sometimes not caused by uncontrollable sexual urges. Rape is sometimes the result of opportunities created by the victim himself by undertaking the wishes of the perpetrator to take a walk or get into the car. Somewhere when the victim's position is helpless and no one else can help, that's where the mode of sexual abuse and rape takes place.

Some cases have the same modus operandi, which is often the victim believes in the perpetrator. When offered alcoholic beverages, the victim then believes and accepts it, without the slightest suspicion to the perpetrators who have had the intention to commit rape / molestation. This is what will become the focus of our jurisprudence study in this case of molestation.

Based on the publication of the Psychology Bulletin, Year XI, No. December 2, 2003, was informed that acts of molestation were sometimes carried out by the perpetrators by touching vital organs by hand, or palpation, tickling, squeezing, holding, kissing or with other modes of inserting a device into the victim's genitals. The record of the case that occurred at the Surabaya hospital by one of the nurses some time ago is just one example. But for cases of sexual abuse with this tool, which is sometimes difficult to detect. For cases of palpitations, kisses, touches, squeeze, etc., we have discussed them in previous writings. This time our main focus is on the study of jurisprudence for cases of sexual abuse involving loss of virginity.
It should be underlined that this case sometimes does not only happen to women, but also sometimes affects men. Have you ever heard the term male amrad ? Male amrad is a man who has a beautiful face, but he is male and has a male spirit. In some fiqh texts it is stated that the man amrad was prohibited from traveling without a mahram.
The previous study mentioned that women who were victims of the modus operandi of sexual abuse were referred to as mustakrahah [forced1945]. For the victim, the ulama has agreed as a person who does not apply criminal or punishment for him. How about the culprit?

For perpetrators of this kind of abuse, the perpetrator must keep a close eye on the requirements of the offender, namely:

As a person who has been high,


3. [19659008] Merdeka, which in contemporary terms is often interpreted as having the freedom to do

4. He knows that adultery is forbidden.

The form of punishment offered by the Shari'a against the crime of sexual abuse that eliminates virginity, there are several aspects, in accordance with the criminal hierarchy of sanctions for injury ( had jarîmah ). In the case of molestation involving loss of virginity, it applies jarimah ta’zir (sanctions that contain elements of criminal deterrence). In the jurisprudence literature there are two that can be given, namely:

1. Compensation / fines for disappearance of virginity ( arsyun bikarah ) stipulated by the judge ( diyat hukumah )

2. If there is a disappearance of bodily and genital functions (eliminating the pleasure function jima then criminal acts qishash apply. Some people call it the law of castration with qiyas for the removal of the functions of eyes, hands, teeth, and the like.

Because in this case of molestation there is no element of intimacy in it, the criminal exile ( taghrib and whipping (for unmarried actors) and stoning (for perpetrators who have married) cannot be applied. Because, after all, the terms of the offender can be called zina, besides he is already aged mukallaf there are other conditions also must occur a meeting of two circumcision.

If so, then what is the position of the tool used to impose virginity for the girl in the Shari'a, and what form of sanction can be applied to the perpetrator?

It is certain that this device is of the same nature as the position of the proofing instrument. That is why the category of sexual abuse which involves the destruction of virginity is included in the element jarımah . One of the bases that can be used in this regard is as follows:

[1945919] ـ (فرع: في إزالة بكارة أجنبية بأصبع) مثلا (لا بذكر حكومة) ؛ لأنها جراحة (ويقتص بالبكارة من بكر مثلها) ـ [19659007] Meaning: “Branch issues: Explain about the enactment of hukumah diyat in the case of the disappearance of female virginity by finger and not by dzakar, because the disappearance of this path is entered into an offense offense (jirâhah). The magnitude of diyat hukumah virginity is calculated according to women such as. “(Abu Yahya Zakariya al-Anshary, Asna al-Mathâlib Syarh Raudli al-Thalib Cairo: Mauqi'u al-Islâmy, tt .: 19/92 )

in continuation like this, Sheikh Zakaria also confirmed that:

(فإن أفضاها) غير الزوج مع إزالة بكارتها (دخل أرش البكارة في الدية); لأنهما وجبا للإتلاف فيدخل الأقل في الأكثر بخلاف المهر لاختلاف الجهة فإن المهر للتمتع والأرش لإزالة الجلدة

Meaning: “(Obligatory ransom is given) if those who dissect virginity are not husbands, then enter the law of ransom virginity ( arsyu al-bikarah) diyat. Both the husband and not the husband, both of them are obliged to issue the ransom due to the damage they did, so that they enter the minimum and maximum elements, only different names. If the husband is obliged, the dowry is due to the sexual distribution channel, but if it is not the husband, then it is a mandatory element because of the hymen tearing. “(Abu Yahya Zakariya al-Anshary, 1945-1933) Asna al-Mathlib Syarh Raudli al-Thalib Cairo : Mauqi'u al-Islâmy, tt .: 19/92)

At this point, a conclusion can be drawn that, if sexual abuse occurs to cause damage to vital organs of sexual function of women, then according to Sheikh Abu Yahya Zakaria al- Anshary, the perpetrator is charged diyat hukumah. Diyat hukumah is a property that must be issued due to a criminal case and given to the victim (for light diyat) and his family (for diyat heavy, such as murder). The magnitude of the diyat was determined by the judge, and technically calculated according to the price of the slave. For example, the price of a slave who is still a virgin and with a quality of beauty similar to a victim is worth 100 million, but due to the loss of her virginity to be worth 80 million, the diyat amount that must be borne by the perpetrator is 20 million, the price difference between both. Today, because the slaves are no longer there, the magnitude is fully handed over by the judge in consideration of the justice side.

Of course, what is a provision here does not apply, if the victim's party is pleased to do so, despite its form in the case of adultery. The victim seized him as one of the perpetrators.

[1945919] فكأنها رضيت بإزالتها

Meaning: “As if the woman is happy by losing her hymen.” (Abu Yahya Zakariya al-Anshary, Asna al-Mathâlib Syarh Raudli al-Thalib Cairo: Mauqi'u al-Islâmy, tt .: 19/92)

Diyat hukûmah, also applies to cases wathi syubhat or causes damaged marriages, but there is forced use of other tools in the removal of virginity, so that the loss of virginity is not carried out by wathi (associating with zakar). It should be stressed, that in this case the details that must be understood, are that the woman is basically happy if her hymen is torn due to wathi . Therefore, if other tools are used, then the use of the tool is a form of coercion that applies diyat which was charged by the judge to male perpetrators, coupled with the amount of dowry mitsil for widowed women.

For the latter case, Sheikh Abu Yahya Zakariya Al-Anshary affirmed:

ثيبا) يجبان

Meaning: “Because the woman is pleased with the operation of virginity due to and not a cause other than wathi or she is raped or lost because of how to marry such as marriage damaged or other, in this case diyat hukûmah applies. The price is equivalent to widow dowry which must be paid by both men (who dissect their virginity either by jallan syubhat or coercion / sexual abuse). “(Abu Yahya Zakariya al-Anshary, Asna al-Mathâlib Syarh Raudli al-Thalib Cairo: Mauqi'u al-Islâmy, tt .: 19/92)

Thus, at a glance the review of the loss of virginity due to sexual abuse and the like was carried out by parties other than husbands, or by husbands but from the marriages damaged and their disappearances are carried out not by wathi (associating). Wallâhu almighty shawāb

Ustadz Muhammad Syamsudin Chairperson of the Perumus Bahtul Masail Team Qanuniyah NU National Conference 2019 and Caretaker Hasan Jufri Putri Islamic Boarding School, Bawean Island, East Java


This Article was Published On: NU Online

Translated by Google Translate


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