Firstly: The issue needs a comprehensive description to arrive at a proper ruling. The question states that the girl, considered a minor under the law, was subjected to physical sexual harassment that did not reach the level of rape and did not cause physical harm to any of her body parts. However, the assault caused her psychological harm, requiring treatment and follow-up with a specialist.
Therefore, the harm here is primarily psychological, although it had a physical cause. It is also related to the woman’s honor (᾽irḍ), which is protected by Sharī῾ah’s objectives.
Secondly: The woman did not bring her case to court to seek civil justice and retribution from the criminals, although she could have. Instead, she chose to threaten them and obtain a financial settlement as compensation for what happened to her.
Scholars have differed regarding the ruling on taking compensation for crimes against honor:
- The majority of jurists (fuqahā᾽) prohibit taking monetary compensation for crimes against honor. The author of “Al-Mughnī” said: “If a person reconciles with another [i.e., the perpetrator] over the fixed penalty for slander, the reconciliation is not valid because if it is for Allāh, he cannot take compensation for it as it is not his right, similar to the punishment for adultery and theft. However, if it is his right, he cannot exchange it for compensation because it is a non-financial right, which is why it cannot be replaced, unlike retribution (qaṣāṣ). It [i.e., the fixed penalty] is legislated to protect honor, so it cannot be compensated with money.”
The author of “Mawāhib al-Jalīl” said: “If someone reconciles over slander for a portion of wealth, it is not valid and should be rejected, without any pre-emption, whether the case reached the Imam [i.e., legal authority] or not, because it involves taking money in exchange for honor.”
The majority of jurists adopted this view because of several reasons, including the distinction between physical and psychological harms. Physical matters are quantifiable and can be compensated equivalently (e.g., an eye for an eye), while psychological harms are unquantifiable and vary based on circumstances. Additionally, honor is not subject to compensation, as this would open the door to compensating for crimes like adultery and rape, turning compensation into a backdoor way to avoid punishment.
- Imam Abū Yūsuf, Ya῾qūb, allowed what is called “᾽Arsh al-᾽Alam” (pain compensation). In “Majma῾ al-Ḍamanāt,” Ghayyāth al-Dīn al-Ḥanafī states: “If a man was injured, and the wound healed without leaving a scar and the hair grew back, the compensation for the pain is waived according to Abū Ḥanīfah, but Abū Yūsuf said: He owes compensation for the pain, determined by fair judgment.”
Imam Ibn ῾Arafah from the Mālikī school viewed it permissible to take the doctor’s fee for an injury that has no predetermined compensation.
Some modern jurists permit taking compensation for psychological harms, citing evidence such as:
- The previous statements of Abī Yūsuf and Ibn ῾Arafah. Shaykh Shaltūt in “Civil and Criminal Liability” mentioned that the origin of financial compensation for matters of honor is taken from the Shāfi῾ī school.
- The rule that a crime should not go unpunished, whether physical or psychological, as stated in the verse: “And the retribution for an evil act is an evil one like it” [Ash-Shūrā: 40]. Crimes involve punishment either through fixed penalties or discretionary punishments (ta῾zīr). Fixed penalties are known. Discretionary punishments (ta῾zīr) are subject to the reasoning of jurists, imams, and judges. Many jurists, including Mālikīs and Ḥanbalīs, and a view among Shāfi῾īs, permitting issuing discretionary financial punishments.
- Compensation for psychological harms is a contemporary issue that past jurists did not address adequately. The “Fiqh Encyclopedia” states: “We did not find any scholar expressing this—psychological damage—rather, it is a recent expression, and we did not find in the books of jurisprudence that any jurist discussed financial compensation for psychological harms.” Therefore, it falls under the category of public interest (maṣāliḥ mursalah) and necessitated prevalence (῾umūm al-balwā), allowing the imam [i.e., legal authority] to impose what he deems necessary for maintaining social peace, including financial penalties.
This is the ruling on the matter.
In my view: It is permissible for this woman to take the compensation to cover her treatment expenses and doctor’s fees. Any excess should be given as charity to the poor among Muslims or donated to organizations that rehabilitate rape victims or fight against harassment. In this way, she fulfills her right to tangible compensation and enforces a discretionary punishment on the perpetrators, which is the right of society, without making her honor subject to compensation.
After all, Allāh knows best.
Fatwā issued by Dr. Khālid Naṣr
