My question is the following:
Does the Penal Law of Islam establish an element of an intent when seeking a conviction of a crime? That is to say, must a person have a guilty mental state when committing the crime that has to be proven by the prosecution, or does a principle of strict liability apply?
I realize that the mental state may differ according to what the crime may be so I’ll limit my question to the crimes of murder & rape. Regardless of your answer, can you kindly point out textual support from the Quran or the Sunnah?
I commend you on the effort that it must take to answer all of the questions you receive on your website.
Although I cannot imagine a situation that may amount to one’s being guilty of ‘unintentional rape’, yet it is quite clear that in the case of murder, Islam does expressly differentiate between the case of ‘intentionally killing a person’ and that of ‘taking a person’s life by mistake’.
Thus, in contrast to the prescribed punishment relating to intentional murder, Islam prescribes a different set of punishment for unintentionally taking a person’s life. The punishment for unintentionally taking a person’s life, according to Surah Al-Nisaa, verse 92 is a) the payment of Diyah to the relatives of the victim, except where these relatives freely agree to forgive Diyah; and b) freeing of a slave. In case, as is generally the case with the prevalent social structures around the world, one cannot find a slave to free, then he will have to fast continuously for two months.
The foregoing explanation should adequately clarify that Islam does, in fact, give due importance to the accused person’s intention in committing the crime.
I hope this helps.
November 25, 2002