Section 75
Zina bil-jabar
A person is said to commit zina bil-jabar if he or she has sexual intercourse with a woman or a man, as the case may be, to whom he or she is not validly married, in any of the following circumstances —
(a)
against the will of the victim;
(b)
without the consent of the victim;
(c)
with the consent of the victim, when the consent has been obtained with threat by putting the victim in fear of death or hurt;
(d)
with the consent of the victim, when the offender knows that the offender is not validly married to the victim and that the consent is given because the victim believes that the offender is another person to whom the victim is validly married or the victim believes herself or himself to be validly married to the offender;
Illustrations
(a)
A, as the wali mujbir to his daughter B, marries her off to C. B have never met C.
D came to B and claims to be her husband. B believes that D is her husband and consents to having sexual intercourse with D. D has committed the offence under this section.
(b)
E and F are identical twin sisters. G is married to E. F claims that she is G’s wife and G believes that F is his wife. G consents to having sexual intercourse with F. F has committed the offence under this section.
Syariah Penal Code 52
(c)
H has four wives. H married I who does not know that H already has four wives.
I consents to having sexual intercourse with H because she believes that their marriage was valid. H has committed the offence under this section.
(d)
J is still in her’iddah period. K does not know that J is still in her ’iddah period and marries her. K consents to having sexual intercourse with J because he believes that their marriage was valid. J has committed the offence under this section.
(e)
with the consent of the victim, if the consent is given by a person under a misconception of fact and the person doing the act knows, or has reason to believe, that the consent was given in consequence of such misconception;
Illustration
A, a patient, asks for help from B, a bomoh (traditional healer). B told A that for medical purposes, anything is allowed to be done by any means. A, because of a misconception of fact believes B, consents to having sexual intercourse with B. B has committed the offence under this section.
(f)
with the consent of the victim, if the consent is given by a person who, from unsoundness of mind or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or if the consent is given by a person who has not attained the age of baligh.
Illustrations
(a)
A who is of unsound mind is persuaded by B to have sexual intercourse with him.
A consents to having sexual intercourse with B. B has committed the offence under this section.
(b)
C deliberately adds drugs to D’s drinks to intoxicate D. C invites D to have sexual intercourse with him. D because of intoxication, consents to having sexual intercourse with
C. C has committed the offence under this section.
(c)
E who has not attained the age of baligh is persuaded by F, by promising her gifts, to have sexual intercourse with him. E consents to having sexual intercourse with F. F has committed the offence under this section.
Explanation — Penetration by hasyafah or qadar thereof is sufficient to constitute the sexual intercourse necessary for the offence of zina bil-jabar.