MORALITY AND JUSTICE IN SEXUAL OFFENCES: A COMPARISON OF COMMON LAW AND SHARIA

Abstract

The tension between morality and accountability in relation to the treatment of sexual offences forms the central discussion of this article. Despite continued reforms, both Common Law and Sharia systems continue to manifest gender based assumptions that seek to limit the protection of the victims of sexual violence. This article reassesses the conceptualisation of sexual offences in these legal traditions, especially rape and zina bil-jabr, by examining how their normative frameworks promote or prevent gender equity. It employs a comparative doctrinal methodology to analyse statutory developments, judicial decisions, and scholarly discourse in evaluating the relationship between morality and legal responsibility. Drawing from Musa Usman Abubakar’s re-examination of rape under Islamic law and Shaheen Sardar Ali’s contextual feminist analysis of Islamic jurisprudence, the article will seek to expose both systems’ historical tendency to link female chastity to evidential credibility and, by so doing, perpetuate biased standards of accountability. The findings reveal that as Sharia continues to complicate proof and prosecution of sexual offences by conflating moral sin (zina) with coercive crime (zina bil-jabr), the Common Law has evolved towards a consent-based definition of sexual offences. The article recommends that Islamic legal principles be interpreted in a more gender-sensitive manner to reflect the maqaṣid al-sharia. But both systems must integrate restorative justice models. It concludes that to safeguard the dignity and sanctity of the human person across both traditions, both must reconcile moral order with legal accountability.