Rape in Islamic Law: Difference between revisions

Rape, known in Islamic law as zina bil-ikrah or zina bil-jabr (literally "fornication by force"), is generally defined by Muslim jurists as forced intercourse by a man with a woman who is not his wife or slave and without her consent. The consent of a slave for sex, for withdrawal before ejaculation (azl) or to marry her off to someone else was not considered necessary, historically.^[1] As with enslaved females, according to Islamic law, married women are required to oblige their husbands' sexual advances.^[2] In the view of the Hanafi school of jurisprudence, a husband had legal entitlement to force his wife into intercourse if she did not so oblige and lacked certain legally allowed reasons such as menstruation or fasting, even though the jurists might consider it unethical in some circumstances, while non-Hanafis neither explicitly authorized nor penalized this.^[3][1] For jurists, the concept of "rape" is equally non-existent in the contexts of both marriage and slavery.^[4][5][1]

A small number of hadiths are cited to support the Islamic punishments for rape. These narrations relate to the rape of free women and of female slaves who are not owned by the perpetrator. However, the Qur'an, on numerous occasions, permits Muslim men to have sexual relations with their own female slaves (famously referred to as "what your right hand possesses"), often in conjunction with the commandment for men to keep otherwise chaste. In addition, there are narrations in which female captives were raped prior to being ransomed back to their tribe. As numerous passages of Islamic scripture and holy history extoll the taking of non-Muslims as prisoners, many Islamic empires and countries have taken non-Muslims and kept them as slaves and sex slaves.^[6]

By the end of the formative period of Islamic law, there was a consensus that rape was to be categorised as a variant of Zina (fornication, or unlawful intercourse) in which the coerced woman is spared punishment and the male rapist is punished with the hadd penalty.^[7] This penalty is stoning to death (if he is married) or lashings (if he is unmarried) - just as he would receive for ordinary zina. Four reliable muslim male witnesses (bayyinah) or a confession by the perpetrator are required in order to punish the rapist.^[8][9] Jurists agreed that there is no punishment for the rape victim. Her word that she was raped is accepted if there is no named perpetrator. If she does name the alleged rapist but is unable to prove the allegation, the Maliki school held the woman liable to receive the hadd penalty of 80 lashes for slander (qadhf), though the judge may spare her this punishment if there is some circumstancial evidence in support of her allegation. Maliki jurists even held that a woman must be punished with the hadd penalty for fornication (zina) if she falls pregnant while unmarried even if she says she was raped, though she is spared punishment if there is evidence of coercion from her physical state or a witness heard her cry for help. In contrast, for the Hanafi school it was enough to avoid punishment if she simply says that she was raped. Hanafis stated that pregnancy of an unmarried woman is not proof of zina, pointing to the principle that hadd punishments are not applied if there is any doubt.^[10][11]

Jurists disagree on whether the rapist must also pay a dowry as compensation to the victim. A controversial position of some modern jurists is that the hadd penalty for outlaws should apply to rapists (hadd Hirabah), described in Quran 5:33. Others say that rape can be treated by the judge as an offence that receives Tazir (discretionary) punishment (as in Pakistan, for example). These approaches avoid the impractical evidence requirement of four witnesses for applying a zina hadd penalty to the rapist in the absence of his confession. In some other modern courts where the hadd punishment for zina is applied to rapists, a woman risks being accused of slanderous accusation (qadhf) if she cannot prove her allegation of rape to that evidence standard^[12] and the rapists go unpunished.^[13] Pregnancy is used as evidence of sex having occurred and women who report rape or sexual violence can be deemed to have confessed to unlawful sex (zina) and prosecuted for that instead.^[14] Due to a number of high profile instances, the risk of being prosecuted for zina creates a strong disincentive for women to report rape in some Muslim countries today.^[15]

Kecia Ali, Associate professor of religion, Boston University (a Muslim convert) says regarding sex with slaves: "For premodern Muslim jurists, as well as for those marginal figures who believe that the permission [for slavery] still holds, the category “rape” doesn’t apply: ownership makes sex lawful; consent is irrelevant."^[16] Dr. Jonathan Brown, Associate Professor and Chair of Islamic Civilization at Georgetown University (also a Muslim convert) has made similar comments.^[17][18]

Rape in the Qur'an

There is no equivalent term for ‘rape’ in the Qur'an. And while chastity is encouraged as a virtue, it is frequently commanded alongside the recurring exception "except from their wives or those their right hands possess" (see Qur'an 23:1-6), encouraging men to pursue their sexual ends with those legal to them (their wives and slaves). There is no verse in the Qur'an which explicitly discourages forced sex.

Surah 4 is one of the surahs which discusses which women are lawful and forbidden to Muslim men. While the relevant verses in this surah, like much of the substantive content of the Qur'an, can border on the unintelligible in the absence of considerable context, the authoritative Tafsirs (Qur'an exegeses) and Sahih (authentic) Hadiths (prophetic narrations) associated with these verses have together worked to standardize the Islamic interpretive and legal tradition to some extent. Although the contents of the Qur'an are deemed theologically prior to the hadiths and especially the manmade tafsirs, independent and especially novel interpretations of the Qur'an that flaunt hadith and tafsir tradition are not accepted, particularly when such an interpretation results in a divergent meaning.

Qur'an 4:24 - rape of slaves and captives who were previously married

This verse indicates that Muslims are permitted to marry those whom their right hands possess (female slaves) who already have husbands, so long as the dower is paid. Other verses show that slave owners did not even have to marry their slaves in order to have intercourse with them (See the section below Freedom and marriage as a universal requirement).

Sahih hadiths in Muslim and Abu Dawud detail the nature of the permission granted by this verse: some of Muhammad's fighters were reluctant to have sexual contact with female captives who were already married to the non-Muslim men of the defeated party.

The hadith in Sahih Muslim is found in a chapter dedicated to the topic; the chapter is entitled "Chapter: It is permissible to have intercourse with a female captive after it is established that she is not pregnant, and if she has a husband, then her marriage is annulled when she is captured".^[19]

Ibn Kathir, the most prominent of all Qur'an interpreters, had this to say in regards to verse 4:24:

Similarly in Tafsir al-Jalalayn (Qur'an interpretation by two Jalals namely: Jalaluddin Mahalli and Jalaluddin Suyuti, both authorities):

Some early Muslim scholars held that slave marriages, whether between slaves or between a slavewoman and her master, are disolved when ownership is transferred because two men cannot have licit access to the same woman. Later, a concensus emerged that the marriage and licit sexual access remains between the slave woman and her husband on transfer of ownership unless he relinquishes it, whatever his status (for example, by offering him money to divorce her).^[20]

Qur'an 23:1-6 & 70:29-30

Several other verses in the Qur'an mention sexual relations with slaves as a category distinct from wives, making it clear that sexual relations with female slaves are permitted without marrying the slave first. For example, Surah 23 makes mention of successful Muslims and their characteristics:

The instruction to "guard [one's] private parts" is the Qur'an's standard manner of commanding chastity. What one's "right hand possesses" is likewise the Qur'an's standard manner of referring to one's slaves. Successful believers are those who engage in sexual activities only with their wives and slaves.

The same idea recurs in surah 70:

Another example is Quran 33:50-52. For discussion of those verses see the section below Muhammad's other female captives.

Rape in the hadiths

Scenes of Muhammad's companions, and indeed Muhammad himself, engaging in sexual activity with slaves and captives are common throughout hadith literature. While the female perspective is largely absent, leaving the reader to speculate as to whether the female slave or captive would have been receptive to the advances of Muhammad and his companions, it is fair to assume that in at least some (if not most or indeed all) of these cases, the sexual activity occurred without the female's consent and thus qualified as rape. This is particularly clear in the examples that follow where Muhammad's companions initiate sexual contact with the captive women shortly after having slayed their sons, husbands, fathers, and brothers. At the very least, it can be said that in no such case does Muhammad intervene in and that in all such cases he actively permits what, by all appearances, is an instance of his companion's raping a captive or slave. These are originally free non-Muslims who are captured in battle.^[21][22] The entire population of a conquered territory can be enslaved, thus providing women who are otherwise rare on the battlefield. This paves the path for concubinage.^[23] The Muslim military commander is allowed to choose between unconditionally releasing, ransoming or enslaving war captives.^[24] If a person converted to Islam after being enslaved, their emancipation would be considered a pious act but not obligatory.^[25] Islamic law does not allow enslavement of free-born Muslims.^[26]

Islamic jurists permitted slave raiding and kidnapping of non-Muslims from Dar al Harb.^[27] South Asian scholars ruled that jihad was not needed to seize non-Muslims nor was it necessary to invite them to Islam before seizing them. Raiders were free to take and enslave any non-Muslim.^[28] However, Islamic jurists held that non-Muslims who lived in areas which had formal pacts with Muslims were to be protected from enslavement.^[29]

Non-Muslim residents of an Islamic state who fail to pay jizya or break their contract with the state can also be enslaved.^[30][31]

Muhammad has intercourse with his slave girl Maria bint Sham'un

Muhammad had a child with a slave girl of his known as Maria the Copt, who was a gift to him from the Governor of Alexandria. In a hadith from Sahih Muslim, a phrase translated as "slave girl" is, in the orignal Arabic, umm walad (أُمِّ وَلَدِ) (literally: "mother of the child") and is the title given to a slave concubine who bore her master a child.

The following hadith is graded Sahih by Dar-us-Salam:

Tafsir al-Jalalayn says of the verse referred to in this hadith:

An alternate, or additional circumstance for this verse has also been narrated in multiple sahih hadiths (in yet another version Sahih Muslim 9:3497, Muhammad ate honey at Hafsa's house instead of Zainab's).

"Honey" was also a sexual euphemism and an explicit example of its usage in this sense is found in a hadith in Abu Dawud:

Sean Anthony and Catherine Bronson have noted that "Modern scholars have been inclined to regard the more scandalous story involving the slave girl as the earlier one given that it appears in the earliest sources, and despite the fact that the honey story has a superior pedigree in the eyes of the ḥadīth scholars. These modern scholars reason that, if the story of Ḥafṣah’s jealousy after seeing the Prophet with his slave-girl predates the honey story, then exegetes likely contrived the honey narrative at a later date in order to provide an alternative to the unflattering portrayal of the Prophet and his wives in the former story. Furthermore, while the honey story may provide a somewhat plausible explanation for Q 66:1–2, its explanatory force greatly diminishes when applied to the remainder of the pericope. The gravity of Q 66:5–6, which threatens divorce as a penalty for plotting against the Prophet, makes a poor match for the trifles of the honey story."^[32]

Ali rapes an underage ward of the state

Another relevant hadith is one which concerns an incident which led to the famous event of Ghadir Khumm, which is much disputed between Sunnis and Shias. Both Sunni and Shia sources agree that Muhammad received complaints about 'Ali taking a slave-girl from the Khums (the fifth of all booty allotted for the state^[33]) to which those complaining felt that no private party was entitled.

The Arabic of the Sunni hadith below mentions 'Ali taking a Ghusl bath (which is mandatory after sexual contact or ejaculation), implying sexual activity. Later, at a place called Ghadir Khumm, Muhammad tried to pacify those who were upset with 'Ali by declaring Ali to be his Mawla. Mawla is an honorific meaning something between "follower", "ally", and "leader", which the Shia interpret to mean "successor of Muhammad". Thus, in some sense, Ali's having raped an underage captive becomes the immediate cause of what the Shi'a insist was the the announcement of Ali's succession. The emergent Sunni polemic here casts some doubt on the historical reliability of the hadith, yet, as a hadith included in Sahih Bukhari, it more than meets the Sunni requirements for authenticity.

Ibn Hajar al-Asqalani (d. 1449), one of the most famous Hadith scholars of all time, points out in his seminal Fath al-Bari (the still-standard commentary on Sahih Bukhari) what several scholars before him noted: that in accounts of this event, Ali does not observe the required iddah (waiting) period to determine whether or not the girl was pregnant. Al-Asqalani quotes al-Khattabi who summarizes the possibilities: "she was either a virgin [strongly implying a young age in a culture where women married young], had not yet reached maturity, or Ali's ijtihad [independent reasoning] led him to not adhere to the waiting period in her case."^[34]

Muhammad's companions rape captives intended for ransom

On one occasion, presented with newly captured women, Muhammad's companions were only concerned about whether coitus interruptus ('azl) was permissible.

In another version of the same hadith in Sahih Muslim (also found in Malik's Muwatta and Abu Dawud), it is said that the Muslims' goal was to ransom the women back to members of the defeated party for monetary gain. It is explained that as a result of not wanting to get the women pregnant prior to ransoming them, Muhammad's companions inquired as to whether coitus interruptus was permissible.

Yet another version of the same story in Sahih Bukhari is even clearer about Muhammad's companions' sole concern being the potential detriment to the price of the captives if they were impregnated.

Umar tells a man to beat his wife for preventing intercourse with his slave girl

Abdullah ibn Umar (the son of the 2nd Caliph, Umar ibn al-Khattab) said that his father ordered a man to have intercourse with a slave girl after his wife had tried to make this haram for him by means of adult suckling.

Ghusl (full body wash) not required between intercourse with slave girls

Imam Malik was asked about intercourse with multiple slave girls.

Explicit distinction between zina and legal intercourse

Since zina (fornication or adultery) only applies to intercourse with other than one's wives or female slaves, it is only in these contexts that rape is considered possible. The following narration graded hasan (good) by al-Albani in Abu Dawud explicitly makes this distinction by recognizing offspring with one's wives or slaves as legitimate, and included in inheritance, and by labeling the offspring with other women as illegitimate, and removed from inheritance.

Muhammad's other female captives

On at least two occasions, according to accounts in sahih hadiths, Muhammad captured and cohabited with war captives Safiyah and Juwairiyah, presumably against their will (having just led the slaughter of their families and tribes).

Surah 33 twice gives Muhammad explicit and direct permission to have sexual contact with his existing wives (having married more than a dozen times, he is prohibited here from marrying further) and with any slaves he may possess now or may acquire in the future.

Earlier verses in the same surah suggest that these women were among the captives, land, houses and wealth seized during a decisive battle with opponents who had left their fortresses (Quran 33:20-27). According to commentators, this was Khaybar, though other views were narrated too.

Safiyah bint Huayy

Safiyah the daughter of Huayy was the wife of a Jewish Rabbi named Kinana. when Muhammad conquered the Jewish village of Khaibar, he had the Rabbi tortured and then killed. According to an account in Sahih Bukhari, Muhammad then took captive the Rabbi's wife.

Juwairiyah bint al-Harith

A hadith from Sunan Abu Dawud explains how, following a surprise attack on the Banu Mustaliq, Muhammad took captive the "very beautiful" Juwairiyah, making Aisha jealous.

A hadith in Sahih Bukhari confirms the same narrative.

Punishments for rape

Rape of a free woman

Muhammad ordered the stoning of a confessed rapist who attacked a free woman to whom he was not married.

Rape of another's slave

If the individual raped is a slave owned by other than the rapist, reparations are due to the owner of the slave in the form of a replacement slave or the amount by which the raped slave's value has been depreciated as a result of the rape. Hina Azam writes that "sexual ursupation of a slave woman was a form of property damage that required financial compensation to her owner for a depreciation of the property's value....usually equal to the amount by which she was depreciated by the act (this being of particular relevance if she was previously a virgin)".^[35]

Malik in his Muwatta confirms this punishment.

The authenticity of hadiths concerning the following incident in which Muhammad commands punishment by stoning for a man who has intercourse with his wife's slave are graded da'if (weak) by al-Albani, while Dar-us-Salam grade them hasan (good).

In another, similar incident, the rapist of his wife's slave is to be punished by stoning.

Limitations on rape

Avoiding severe physical injury

Beyond the temporary requirement of waiting past the Iddah period or conversion of a slave, the only restriction on raping one's slaves or wives is that the victims not incur severe physical injury in the process. However, this derives from a generic prohibition against incurring severe physical injury upon anyone at any time, and men are authorized to beat their wives and slaves as a form of physical discipline if they deny him sexual access or fail to obey him in some other mandatory capacity.

In practical terms, the relevance of the "do-no-harm" principle in this case is that a man should not penetrate his wives or slaves against their will if they are physically too small to withstand penetration (i.e. in the case of very young girls) or if they are seriously ill or injured to the point where penetration would inhibit their healing or magnify their injury. There is no consideration here for harm in the form of "mental anguish", and men are permitted to sexually utilize very young, ill, and/or injured wives and slaves against their will through means other than penetration (the example of "thighing" being one discussed explicitly by Islamic jurists) if such less egregious means will help avoid severe physical injury.

Waiting until the completion of the Iddah or childbirth

A hadith graded sahih by Dar-us-Salam in Abu Dawud describes the Iddah waiting period as the "one menstrual period" after acquisition of the slave wherein the new owner must abstain from sexual contact in order to ascertain whether or not the slave is pregnant, so as not to confuse paternity.

Another hadith graded sahih by Dar-us-Salam in Tirmidhi explains that if the slave is pregnant

Waiting until adult polytheist slaves convert, by force if necessary

Although Muhammad's men seem to have had intercourse with captive polytheist women whom they had captured during the expedition to Awtas/Autas, most jurists later ruled that this was later forbidden by Quran 2:221 (the verse only forbids marriage to polytheist women, but scholars inferred that this also applied to intercourse with slaves). Intercourse with Muslim, Christian, or Jewish slaves was not affected by this restriction.^[36]

Early scholars of fiqh devised a workaround for this restriction, including the allowance of raping younger captives who were polytheist:

Modern perspectives

While most Islamic scholars today are comfortable with at least the temporary abolition of slavery in light of the fact that Islamic scriptures universally praise the freeing of slaves as a meritorious act, few are comfortable with the idea of permanently and irreversibly amending divine law. As a result, the legal rulings relating to slaves and the technical permissibility of owning slaves under the proper circumstances (e.g. under the rule of a "legitimate khilafah", or caliphate) persist, as exemplified in the following fatwa from the most popular Islamic fatwa in the world.

Likewise, as with all rulings of the shariah, the basic rulings governing family relations are unchanging. It would be difficult even today to find a trusted Islamic authority that does not still, at some level, permit marital rape and give general license for wife beating as a potential means by which to compel one's able but unwilling spouse into sexual activity, among other things.

Modern revisionary perspectives and criticisms thereof

Violations of the spoils-distribution system as rape

Quote from al-Shafi'i

A quote from al-Umm of Imam al Shafi'i, the founder of the Shafi'i school of Islamic jurisprudence, is sometimes misrepresented^[37] as forbidding slave owners from raping their female slaves.

It is clear, however, that "acquires by force" here refers to the manner in which the man gained possession of the slave girl, not a description of the later sexual act. Indeed, this quote comes from the section entitled ghasb (property usurpation). According to Islamic law, a fifth of all war and raid spoils (referred to as the Khum - literally "fifth"), including captives who may be sold for funds, is to be allotted for public spending. Taking and raping a captive from this public allotment, as Ali is reported to have in one instance, amounts to theft and zina (illegal intercourse). This, as well as taking and raping someone else's slave, is of course prohibited and punishable. Indeed, in the remainder of his many-volume legal work al-Umm, al-Shafi'i painstakingly outlines the laws regarding the sexual obligations of one's wives and slaves, in no place suggesting that rape of the female is punishable in these contexts.

Quote from Malik

A quote from the Muwatta of Imam Malik, founder of the Maliki school of jurisprudence, is also sometimes misrepresented in this vein.^[37] As with the quote taken from al-Umm, this quote from the Muwatta is likewise only referring to stolen slaves and has no bearing on one's own slaves and wives. Fines for raping slave girls were always paid to the master.^[38] And, just like Imam Shafi'i, Malik details the legal practices of slavery in several other places throughout the same text.

Hadith regarding the caliph Umar

A hadith in the Sunan of al-Bayhaqi describes the Caliph Umar punishing Dhiraar for raping a captive woman and is sometimes presented as evidence that one is not permitted to have sexual intercourse with slaves.^[37]

As with the quote taken from Imam Shafi'i, this almost certainly refers to a violation of the system for distributing war spoils. Dhiraar's intercourse with the captive girl was illegal and merited stoning not because of her captive status or lack of consent, but because he had intercourse with the girl without that girl having been allotted to him at the behest of the caliph (Umar in this case), who has the responsibility of distributing spoils. Neither captivity nor consent are mentioned as a factor in the punishment. Indeed, in a another hadith discussed above, Umar tells a man to have intercourse with his slave girl after his wife tried to prevent it.

Freedom and marriage as a universal requirement

Verses 4:23-24 (Quran 4:23-24) are sometimes presented as evidence for the idea that a man must first manumit and marry a slave in order to have sex with her. The verse lists the types of women a Muslim man is permitted to marry, one given option being his slave women, of whom he may free and marry. While 4:23-24 do not mention slaves outside of a marital context, several other verses (e.g. Quran 23:1-6 and Quran 70:29-30) make clear reference to sexual activity with slaves with whom the owner is not married by explicitly distinguishing between his sexual access to his wives and his sexual access to his slaves. The further example of Muhammad's companions raping captives from Banu al-Mustaliq prior to ransoming them (a scenario which effectively necessitates their non-marriage) confirms this idea.^[39]

In addition, there is the universally attested legal category of the Umm Walad (literally "mother of child") that is used by Islamic jurists to refer to those slaves who have given birth to one of their master's children. An Umm Walad is legally distinct from a free mother because she is still a slave. Indeed, the concept of Umm Walad is apparently attested even in the prophet's time according to a hadith in Sahih Muslim - further clarifying the matter is the fact that in this very hadith, Muhammad approves of the companion's sexual relations with his unmarried slave girl.

Encouragement to chastity as a prohibition on rape

Verse 24:33 (Quran 24:33), which instructs unmarried men to keep chaste and instructs slaveowners to "force not [their] maids to prostitution", is sometimes presented as evidence for the idea that sexual activity is only permitted in a marital context and that slaveowners may not compel their slave girls to sexual activity of any sort.

Chastity is instructed throughout the Qur'an and is repeatedly defined as the habit of one who "guards their private parts" from all except "their wives [of whom they may have up to four] and what their right hand possesses [i.e. female slaves, of whom they may have an unlimited number]" (e.g. Quran 23:6, Quran 33:50, Quran 33:52, and Quran 70:30). It is clear that, in the view of the Qur'an's author, an unmarried male may be considered chaste even if he engages in sexual activity with a technically unlimited number of women, so long as they are his slaves.

The portion of the verse which instructs slaveowners to "force not [their] maids to prostitution" has traditionally been understood in its simplest sense, which prohibits slaveowners from playing the role of a pimp and trafficking their slave women - such a business built on illegal intercourse is of course prohibited and, understood this way, the verse says nothing of novel import. Another accepted sense of this verse is that if a female slave desires her (or, say, her child's) freedom, her master ought to give her some legal means by which to pursue it, the alternative being her feeling compelled to prostitute herself to earn the funds necessary to purchase that freedom (traditional tafsirs also mention the also undesirable possibility of a master forcing a slave to prostitution as a condition for her freedom). Since such a temptation on the part of the slave girl is all the more plausible given the likelihood that she was captured in a war or raid where her people were both slaughtered and enslaved (leaving her with no means), and so the verse concludes by saying that if a slave girl is driven to such behavior, then Allah will be forgiving. And in the simpler sense, if her master forces her to prostitution, then Allah will forgive her for what was not in her control.^[40]

See Also

• Rape - A hub page that leads to other articles related to Rape

External Links

• The High Rape-Scale in Saudi Arabia - WomanStats Project (blog), January 16, 2013 (archived), http://womanstats.wordpress.com/2013/01/16/the-high-rape-scale-in-saudi-arabia/ 

References