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Rape in Islamic Law: Difference between revisions
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Islamic law allowed the distribution of female captives as spoils of war and for them to be bought and sold, becoming sexually lawful after a short waiting period to confirm they were not pregnant. Slavery including sexual slavery persisted on a massive scale until modern times (see [[Slavery in Islamic Law]]). It is important to note, however, that slavery was legally abolished in majority Muslim countries around the world in the 19th and 20th centuries (though vast numbers of people remain illegally enslaved in a few places such as Mauritania<ref name="Mauritania" />) and all countries signed the 1949 Geneva convention which in article 27 forbids rape and abuse of female captives. It is also now considered forbidden by most scholars in the modern context, though a minority, such as Saudi Sheikh Saleh Al-Fawzan, argue that slavery remains Islamically legitimate. Similarly, today many Muslim-majority countries have made marital rape illegal or offer other legal protections, though others (mainly in the Arab world) do not do so, often explicitly, as also some non-Muslim countries.<ref>As of the early 2020s, marital rape is not recognised as a crime in many Muslim-majority countries, nor in India, China, Myanmar, much of the Caribbean, and much of sub-Saharan Africa, though is illegal in Indonesia, Turkey, the Balkans, most of central Asia, and much of west Africa. See the detailed information in the Wikipedia article [[w:Marital rape laws by country|Marital rape laws by country]], though note that in some cases the colour-coded map is inaccurate. A lack of legal protection in some countries and / or attitudes which refuse to accept the concept of marital rape exacerbates the predicament of millions of women suffering [[Forced Marriage]] in certain regions of the world.</ref> While there is no punishment for rape victims, human rights groups are also concerned about the risks faced by women reporting rape in some countries where [[Zina]] (illicit sexual intercourse) is a punishable offence, as detailed below. | Islamic law allowed the distribution of female captives as spoils of war and for them to be bought and sold, becoming sexually lawful after a short waiting period to confirm they were not pregnant. Slavery including sexual slavery persisted on a massive scale until modern times (see [[Slavery in Islamic Law]]). It is important to note, however, that slavery was legally abolished in majority Muslim countries around the world in the 19th and 20th centuries (though vast numbers of people remain illegally enslaved in a few places such as Mauritania<ref name="Mauritania" />) and all countries signed the 1949 Geneva convention which in article 27 forbids rape and abuse of female captives. It is also now considered forbidden by most scholars in the modern context, though a minority, such as Saudi Sheikh Saleh Al-Fawzan, argue that slavery remains Islamically legitimate. Similarly, today many Muslim-majority countries have made marital rape illegal or offer other legal protections, though others (mainly in the Arab world) do not do so, often explicitly, as also some non-Muslim countries.<ref>As of the early 2020s, marital rape is not recognised as a crime in many Muslim-majority countries, nor in India, China, Myanmar, much of the Caribbean, and much of sub-Saharan Africa, though is illegal in Indonesia, Turkey, the Balkans, most of central Asia, and much of west Africa. See the detailed information in the Wikipedia article [[w:Marital rape laws by country|Marital rape laws by country]], though note that in some cases the colour-coded map is inaccurate. A lack of legal protection in some countries and / or attitudes which refuse to accept the concept of marital rape exacerbates the predicament of millions of women suffering [[Forced Marriage]] in certain regions of the world.</ref> While there is no punishment for rape victims, human rights groups are also concerned about the risks faced by women reporting rape in some countries where [[Zina]] (illicit sexual intercourse) is a punishable offence, as detailed below. | ||
Typically, apologetic approaches to the issue of slaves and concubines propose that the women mentioned in the Quran and hadiths consented to intercourse with their captors and to their enslavement lest they be left destitute since their men had been killed. Critics generally argue that this is highly improbable, point out a hadith in which raped captives were due to be ransomed back to their tribe, and in any case would be incompatible with the modern understanding of consent which could not validly be given in captive circumstances. Some Islamic modernist scholars question the authenticity of the relevant hadiths altogether, in line with their general skepticism towards the hadith corpus and rejection of traditional jurisprudence, and attempt alternative interpretations of the Quranic verses. | Typically, apologetic approaches to the issue of slaves and concubines propose that the women mentioned in the Quran and hadiths consented to intercourse with their captors and to their enslavement lest they be left destitute since their men had been killed. Critics generally argue that this is highly improbable, and note that the Quran and legal consensus also made a married woman captured without her husband lawful to her owner. They further point out a hadith in which raped captives were due to be ransomed back to their tribe, and in any case would be incompatible with the modern understanding of consent which could not validly be given in captive circumstances. Some Islamic modernist scholars question the authenticity of the relevant hadiths altogether, in line with their general skepticism towards the hadith corpus and rejection of traditional jurisprudence, and attempt alternative interpretations of the Quranic verses. | ||
==The right to have intercourse with wives and slaves in Islamic law== | ==The right to have intercourse with wives and slaves in Islamic law== | ||
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The words translated "what Allah has returned to you" (wamā [...] afāa l-lahu ʿalayka) mean Muhammad's share of the spoils of war, since the same language is mirrored in {{Quran-range|59|6|7}} with that meaning. Those verses twice mention "what Allah has returned to his messenger" (wamā afāa l-lahu ʿalā rasūlihi). | The words translated "what Allah has returned to you" (wamā [...] afāa l-lahu ʿalayka) mean Muhammad's share of the spoils of war, since the same language is mirrored in {{Quran-range|59|6|7}} with that meaning. Those verses twice mention "what Allah has returned to his messenger" (wamā afāa l-lahu ʿalā rasūlihi). | ||
Earlier verses in the same surah suggest that these women | Earlier verses in the same surah suggest that these women included captives seized from the People of the Book who had been made to leave their fortresses after siding with the confederates in their failed attack against the believers in Yathrib (Medina; see {{Quran-range|33|26|27}}, and {{Quran|33|13}}). According to the vast majority of Muslim commentators and most academic scholars those verses refer to the [[The Massacre of the Banu Qurayza|Banu Qurayza]]. | ||
See also the two verses which follow verse 50, ({{Quran-range|33|51|52}}), which give Muhammad permission to set aside and return to his wives in accordance with his wishes, and forbids Muhammad from exchanging or taking any further wives even if their beauty pleases him, except from among his concubines, or perhaps simply maintains his limitless permission to take additional concubines. | See also the two verses which follow verse 50, ({{Quran-range|33|51|52}}), which give Muhammad permission to set aside and return to his wives in accordance with his wishes, and forbids Muhammad from exchanging or taking any further wives even if their beauty pleases him, except from among his concubines, or perhaps simply maintains his limitless permission to take additional concubines. | ||
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{{Quote|1=[https://tafsir.app/jalalayn/4/24 Tafsir al-Jalalayn 4:24]|2=And, forbidden to you are, wedded women, those with spouses, that you should marry them before they have left their spouses, be they Muslim free women or not; save what your right hands own, of captured [slave] girls, whom you may have sexual intercourse with, even if they should have spouses among the enemy camp, but only after they have been absolved of the possibility of pregnancy [after the completion of one menstrual cycle]; this is what God has prescribed for you.}} | {{Quote|1=[https://tafsir.app/jalalayn/4/24 Tafsir al-Jalalayn 4:24]|2=And, forbidden to you are, wedded women, those with spouses, that you should marry them before they have left their spouses, be they Muslim free women or not; save what your right hands own, of captured [slave] girls, whom you may have sexual intercourse with, even if they should have spouses among the enemy camp, but only after they have been absolved of the possibility of pregnancy [after the completion of one menstrual cycle]; this is what God has prescribed for you.}} | ||
In Islamic law, if a slave woman | Ibn al Mundhir (d. 930 CE), in his famous encyclopedia of Sunni jurisprudence, summarized the legal consensus that a woman captured without her husband had her marriage automatically annulled (he goes on to note the differing opinions when the wife and husband are captured together). | ||
{{Quote|Ibn al Mundhir, ''Al-Awsat min al-Sunan wa al-Ijma' wa al-Ikhtilaf'', 11/292<ref>[https://shamela.ws/book/1568/5623# Al-Awsat min al-Sunan wa al-Ijma' wa al-Ikhtilaf, 11/292]</ref>|All those from the people of knowledge whom we remember, have unanimously agreed that if a woman from the captives falls into the possession of a man, and she has a husband residing in the land of war, then the marriage to her husband is dissolved, and it becomes permissible for her owner to have intercourse with her after the waiting period.}} | |||
In Islamic law, if a slave woman became married after her capture, her owner had no right of sexual access to her. Some early Muslim scholars held that slave marriages, which could occur between slaves or between a slave and a free person, were automatically dissolved when ownership was transferred because her new owner was buying sexual access to her but two men could not have licit access to the same woman. Later, a consensus emerged that the marriage and licit sexual access remained between the slave woman and her husband alone upon transfer of ownership, whether he was a free man or slave.<ref>Kecia Ali, "Marriage and Slavery in Early Islam", Massachussets: Harvard University Press, 2010, pp. 154-159</ref> | |||
==Sex with female slaves and war captives in the hadiths== | ==Sex with female slaves and war captives in the hadiths== | ||
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==See Also== | ==See Also== | ||
[[Qur'an, Hadith and Scholars:Rape of Slaves, Prisoners, and Wives]] | |||
==External Links== | ==External Links== | ||