The problem of classification of the crime of rape in Islamic law and the effect of this problem on proof and penalty methods

In Islamic law, the tripartite classification of crimes in the form of hadd tazir qisas is essential. The adultery is considered a hadd crime by sectarian schools, including all sexual crimes. The fact that adultery is handled with all its types in verses and hadiths leaves no room for doubt that adultery is a hadd crime. However, all other crimes, which are considered sub-branches of adultery, differ from adultery in terms of the elements of the crime. At the same time, the requirement of legal evidence, which is presented by the public as a condition for the proof of the crime of adultery, gives freedom to the individuals who commit this crime within the sphere of secrecy, while it causes victimization in other sexual crimes, which are considered sub-branches of adultery. If the use of free evidence in hadd crimes, which is presented as a solution to this problem, is accepted, it will create the right of the state to intervene in the secret area of individuals who commit adultery, which is a dangerous approach that will mean that Islam assumes a totalitarian structure against freedoms.In our study, firstly, the classification studies made in Islamic law were examined and the place of the principle of inviolability of the person's secret area in law was shown, then the types of adultery crime were created in the light of the verses, and it was determined that these types were not found in the crime of rape. The crimes of adultery and rape were compared with the punishment given to these crimes in terms of the legal values protected. All these showed that rape is not a sub-branch of adultery. Three possibilities have been identified to solve this problem. The first is to count them as tazir crimes, as in the Ottoman period. The second is to accept it as a crime of acquisition (iğtisab), which is offered as a remedy by modern-era Islamic jurists. Thirdly, to open an independent field where the crime of rape and its derivatives can be proved with free evidence, in accordance with the structure of Islamic law, as exemplified in Surah Yusuf and applied in the period of the Companions. All these possibilities were evaluated in our study.