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{{QualityScore|Lead=4|Structure=4|Content=4|Language=4|References=4}}Rape, known in [[Islamic law]] as ''zina bil-ikrah'' or ''zina bil-jabr'' (literally "[[Zina|fornication]] by force"), is a punishable crime generally defined by Muslim jurists as forced intercourse by a man with a [[Islam and Women|woman]] who is not his wife or [[Slavery|slave]] and without her consent. There was no concept of consent in Islamic law with regard either to a man's wives or slaves, though they could bring a legal complaint if physical | {{QualityScore|Lead=4|Structure=4|Content=4|Language=4|References=4}}Rape, known in [[Islamic law]] as ''zina bil-ikrah'' or ''zina bil-jabr'' (literally "[[Zina|fornication]] by force"), is a punishable crime generally defined by Muslim jurists as forced intercourse by a man with a [[Islam and Women|woman]] who is not his wife or [[Slavery|slave]] and without her consent. There was no concept of consent in Islamic law with regard either to a man's wives or slaves, though they could bring a legal complaint if intercourse with him caused them physical harm. A small number of hadiths describe punishments for 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 hands possess"), often in conjunction with the commandment for men to keep otherwise chaste. In addition, various hadiths mention the sexual intercourse which slave owners (including Muhammad) had with their slaves. | ||
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== | ||
The consent of a slave for sex, for withdrawal before ejaculation ([[Qur'an, Hadith and Scholars:Al-'Azl|azl]]) or to marry her off to someone else was not considered necessary, historically.<ref name="Ali">{{Cite web|first=Kecia |last=Ali | publication-date=January 20, 2017 |url=https://www.cambridge.org/core/journals/international-journal-of-middle-east-studies/article/concubinage-and-consent/F8E807073C33F403A91C1ACA0CFA47FD | title=Concubinage and Consent|publisher=Cambridge University Press}}</ref> 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."<ref>{{Citation|url=http://www.huffingtonpost.com/kecia-ali/islam-sex-slavery_b_8004824.html|title=The Truth About Islam and Sex Slavery History Is More Complicated Than You Think|author=Kecia Ali|publication-date=August 19th, 2016|newspaper=Huffington Post}} ([https://web.archive.org/web/20230224094334/https://www.huffpost.com/entry/islam-sex-slavery_b_8004824 archive])</ref> Dr. Jonathan Brown, Associate Professor and Chair of Islamic Civilization at Georgetown University (also a Muslim convert) has made similar comments | The consent of a slave for sex, for withdrawal before ejaculation ([[Qur'an, Hadith and Scholars:Al-'Azl|azl]]) or to marry her off to someone else was not considered necessary, historically.<ref name="Ali">{{Cite web|first=Kecia |last=Ali | publication-date=January 20, 2017 |url=https://www.cambridge.org/core/journals/international-journal-of-middle-east-studies/article/concubinage-and-consent/F8E807073C33F403A91C1ACA0CFA47FD | title=Concubinage and Consent|publisher=Cambridge University Press}}</ref> 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."<ref>{{Citation|url=http://www.huffingtonpost.com/kecia-ali/islam-sex-slavery_b_8004824.html|title=The Truth About Islam and Sex Slavery History Is More Complicated Than You Think|author=Kecia Ali|publication-date=August 19th, 2016|newspaper=Huffington Post}} ([https://web.archive.org/web/20230224094334/https://www.huffpost.com/entry/islam-sex-slavery_b_8004824 archive])</ref> Dr. Jonathan Brown, Associate Professor and Chair of Islamic Civilization at Georgetown University (also a Muslim convert) has made similar comments:<ref>"'slave rape' is a tough term to decipher from a Shariah perspective. A male owner of a female slave has the right to sexual access to her. Though he could not physically harm her without potentially being held legally accountable if she complained, her 'consent' would be meaningless since she is his slave." [https://np.reddit.com/r/islam/comments/3h1abm/this_is_dr_jonathan_brown_professor_at_georgetown/cu3dkhd/ Comment by Dr. Jonathan AC Brown on his Reddit AMA session], 2016 ([https://web.archive.org/web/20210225213159/https://np.reddit.com/r/islam/comments/3h1abm/this_is_dr_jonathan_brown_professor_at_georgetown/cu3dkhd/ archive])</ref> | ||
{{Quote|Jonathan A. C. Brown (2019) ''Slavery & Islam'', pp. 281-282<ref>Jonathan A.C. Brown (2019) ''Slavery & Islam'', London: Oneworld Publications, Chapter 7, pp. 281-282, ISBN 978-1-78607-635-9</ref>|As noted earlier, marriage and a male's ownership of a female slave were the two relationships in which sex could licitly occur according to the Shariah. In marriage, the consent of the wife to sex was assumed by virtue of the marriage contract itself. In the case of the slave-concubine, consent was irrelevant because of the master's ownership of the woman in question. As Kecia Ali has noted, there is no evidence for any requirement for consent from slave women in books of Islamic law in the formative centuries of Islam. Books of Islamic law and natural ethics are full of exhortations for husbands to enter in foreplay and stress the wife's right to orgasm. But such books also foreground Hadiths and laws obliging wives to meet their husbands' sexual needs without contest.<BR /> | |||
[...]<BR /> | |||
In the Shariah, consent was crucial if you belonged to a class of individuals whose consent mattered: free women and men who were adults (even male slaves could not be married off against their will according to the Hanbali and Shafiʿi schools, and this extended to slaves with ''mukataba'' arrangements in the Hanafi school). Consent did not matter for minors. And it did not matter for female slaves, who could be married off by their master or whose master could have a sexual relationship with them if he wanted (provided the woman was not married or under a contract to buy her own freedom).}} | |||
As with enslaved females, according to classical Islamic law, married women were required to oblige their husbands' sexual advances.<ref>{{Cite journal|first=Muh Endriyo |last=Susila | year= 2013 |url=https://journal.umy.ac.id/index.php/jmh/article/download/271/234| title=Islamic Perspective on Marital Rape |issue=2|volume=20|publisher=Jurnal Media Hukum, p.328}}</ref> He could punish his wife's continued refusal by beating her (with limitations) as a last resort.<ref name="Brown2014">Professor Jonathan Brown writes regarding medieval jurist interpretions of Q. 4:34: "If a wife exhibited egregious disobedience (nushūz) such as uncharacteristically insulting behaviour, leaving the house against the husband's will and without valid excuse or denying her husband sex (without medical grounds), the husband should first admonish her to be conscious of God and proper etiquette. If she did not desists from her behaviour, he should cease sleeping with her in their bed. If she still continued with her nushūz, he should then strike her to teach her the error of her ways."<BR /> | As with enslaved females, according to classical Islamic law, married women were required to oblige their husbands' sexual advances.<ref>{{Cite journal|first=Muh Endriyo |last=Susila | year= 2013 |url=https://journal.umy.ac.id/index.php/jmh/article/download/271/234| title=Islamic Perspective on Marital Rape |issue=2|volume=20|publisher=Jurnal Media Hukum, p.328}}</ref> He could punish his wife's continued refusal by beating her (with limitations) as a last resort.<ref name="Brown2014">Professor Jonathan Brown writes regarding medieval jurist interpretions of Q. 4:34: "If a wife exhibited egregious disobedience (nushūz) such as uncharacteristically insulting behaviour, leaving the house against the husband's will and without valid excuse or denying her husband sex (without medical grounds), the husband should first admonish her to be conscious of God and proper etiquette. If she did not desists from her behaviour, he should cease sleeping with her in their bed. If she still continued with her nushūz, he should then strike her to teach her the error of her ways."<BR /> | ||
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"The Hanafi view that husbands were entitled to have sex forcibly with their wives when the latter did not have a legitimate reason to refuse sex was not widely shared outside that school. Even the majority of Hanafi thinkers who accepted this doctrine recognized a distinction between forced intercourse and more usual sexual relations between spouses; although both were equally licit, sex by force might be unethical" | "The Hanafi view that husbands were entitled to have sex forcibly with their wives when the latter did not have a legitimate reason to refuse sex was not widely shared outside that school. Even the majority of Hanafi thinkers who accepted this doctrine recognized a distinction between forced intercourse and more usual sexual relations between spouses; although both were equally licit, sex by force might be unethical" | ||
<BR />And p. 120 "Non-Hanafis do not penalize a husband for forcing sex on his wife, but neither do they explicitly authorize it in the way that al-Khassaf does. For all, marital rape is an oxymoron; rape (ightisab) is a property crime that by definition cannot be committed by a husband." | <BR />And p. 120 "Non-Hanafis do not penalize a husband for forcing sex on his wife, but neither do they explicitly authorize it in the way that al-Khassaf does. For all, marital rape is an oxymoron; rape (ightisab) is a property crime that by definition cannot be committed by a husband." | ||
</ref><ref name="Ali" /> For jurists, the concept of "rape" was equally non-existent in the contexts of both marriage and slavery.<ref>{{Cite book|first=Asifa |last=Quraishi-Landesi |publication-date=15 April 2016 |url=https://books.google.co.in/books?id=QfkFDAAAQBAJ&redir_esc=y | title=Feminism, Law, and Religion|page=178|publisher=Routledge|ISBN=978-1-317-13579-1}}</ref><ref>{{Cite book|first=Hina |last=Azam |publication-date=26 June 2015 |url=https://books.google.co.in/books?id=fhy_CQAAQBAJ&pg=PA69&redir_esc=y#v=onepage&q&f=false | title=Sexual Violation in Islamic Law: Substance, Evidence, and Procedure|page=69|publisher=Cambridge University Press|ISBN=978-1-107-09424-6}}</ref><ref name="Ali" /> | </ref><ref name="Ali" />For jurists, the concept of "rape" was equally non-existent in the contexts of both marriage and slavery.<ref>{{Cite book|first=Asifa |last=Quraishi-Landesi |publication-date=15 April 2016 |url=https://books.google.co.in/books?id=QfkFDAAAQBAJ&redir_esc=y | title=Feminism, Law, and Religion|page=178|publisher=Routledge|ISBN=978-1-317-13579-1}}</ref><ref>{{Cite book|first=Hina |last=Azam |publication-date=26 June 2015 |url=https://books.google.co.in/books?id=fhy_CQAAQBAJ&pg=PA69&redir_esc=y#v=onepage&q&f=false | title=Sexual Violation in Islamic Law: Substance, Evidence, and Procedure|page=69|publisher=Cambridge University Press|ISBN=978-1-107-09424-6}}</ref><ref name="Ali" /> | ||
Jonathan Brown notes that a wife or slave-concubine could though complain to a judge if she suffered physical harm (ḍarar). | |||
{{Quote|Jonathan A. C. Brown (2019) ''Slavery & Islam'', p. 96<ref>Jonathan A.C. Brown (2019) ''Slavery & Islam'', London: Oneworld Publications, Chapter 7, p. 96, ISBN 978-1-78607-635-9<BR />On the same page Brown also remarks, "According to the Quran, both marriage and ownership (in the case of the female slave and her male master) were relationships in which sex was licit (Quran 23:5-6). Within these relationships, consent for sexual relations was assumed or irrelevant. In marriage the relationship itself entailed ongoing consent for sex, and with a female slave it was not needed (assuming the slave girl was soley owned by one man and not married; in both cases she was off limits). Kecia Ali has observed that there is no evidence for any requirement for consent for sex from slave women in books of Islamic law from the eighth to the tenth centuries"</ref>|The Shariah offered protection to both wives and slave-concubines, but it came not under the rubric of consent but that of harm. By definition, the crime of rape (i.e., forced ''zina'') could not occur within a licit relationship. But transgressive harm could still be done by the man. Wives and concubines could complain to local judges if they were being abused or if his demands for sex were excessive (we will discuss the issue of concubinage and consent in the concluding chapter of this book). The Hanbali scholar Buhūtī (d. 1641) even says that if a master forced a slave woman unable to bear intercourse to have sex and injured her, she would be freed as a result.}} | |||
In the final chapter he gives examples of medieval judicial reports of wives doing so due to issues with their husband's physical anatomy (judges could require him to use a lubricant, though judicial separation of the couple was sometimes considered necessary).<ref name="Brown2019page283">Jonathan A.C. Brown, ''Slavery & Islam'', Chapter 7, p. 283, London: Oneworld Publications, 2019 ISBN 978-1-78607-635-9</ref> However, on the same topic Brown earlier points out that "Both wives and slaves had the same recourse to courts or members of the community. Unlike wives, however, slaves were almost by definition cut off from support networks other than their owners".<ref>Ibid. p. 132</ref> | |||
==Punishments for rape in Islamic Law and its application in modern contexts== | ==Punishments for rape in Islamic Law and its application in modern contexts== | ||
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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). | 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). | ||
{{Quote|{{Al Nasai|26|4|26|3365}}; see also {{Abu Dawud| | {{Quote|{{Al Nasai|26|4|26|3365}}; see also {{Abu Dawud||4460|darussalam}}|It was narrated that Salamah bin Al-Muhabbaq said: "The Prophet passed judgment concerning a man who had intercourse with his wife's slave woman: 'If he forced her, then she is free, and he has to give her mistress a similar slave as a replacement; if she obeyed him in that, then she belongs to him, and he has to give her mistress a similar slave as a replacement.'"}} | ||
In another, similar incident, the rapist of his wife's slave is to be punished by stoning. | In another, similar incident, the rapist of his wife's slave is to be punished by stoning. | ||
{{Quote|{{Al Nasai|26|4|26|3362}}; see also {{Abu Dawud| | {{Quote|{{Al Nasai|26|4|26|3362}}; see also {{Abu Dawud||4459|darussalam}}|It was narrated from An-Nu'man bin Bashir that the Prophet said, concerning a man who had intercourse with his wife's slave woman: "If she let him do that, I will flog him with one hundred stripes , and if she did not let him, I will stone him (to death)."}} | ||
Another hadith reports Caliph Umar sentencing a man to stoning for taking a captive girl for himself. In this case, the illegitimacy is due to strict rules on the distribution of war booty. That hadith is discussed in another section below ([[Rape in Islamic Law#Violations of the spoils-distribution system as rape|Violations of the spoils-distribution system as rape]]). | Another hadith reports Caliph Umar sentencing a man to stoning for taking a captive girl for himself. In this case, the illegitimacy is due to strict rules on the distribution of war booty. That hadith is discussed in another section below ([[Rape in Islamic Law#Violations of the spoils-distribution system as rape|Violations of the spoils-distribution system as rape]]). | ||
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{{Quote|{{Quran|70|29-30}}|'''And those who guard their private parts, Except from their wives or those their right hands possess''', for indeed, they are not to be blamed}} | {{Quote|{{Quran|70|29-30}}|'''And those who guard their private parts, Except from their wives or those their right hands possess''', for indeed, they are not to be blamed}} | ||
===Qur'an 33:50 - Muhammad | ===Qur'an 33:50 - Muhammad's rights over his female captives from the war booty=== | ||
Another verse sets out Muhammad's licit sexual access to his wives and captives from the war booty (probably alluding to those mentioned earlier in the surah), as well as any of his female first cousins and any believing woman who offers herself to him if he wishes to marry her. | Another verse sets out Muhammad's licit sexual access to his wives and captives from the war booty (probably alluding to those mentioned earlier in the surah), as well as any of his female first cousins and any believing woman who offers herself to him if he wishes to marry her. | ||
{{Quote|{{Quran|33|50}}|'''O Prophet, indeed We have made lawful to you your wives to whom you have given their due compensation and those your right hand possesses from what Allah has returned to you [of captives]''' and the daughters of your paternal uncles and the daughters of your paternal aunts and the daughters of your maternal uncles and the daughters of your maternal aunts who emigrated with you and a believing woman if she gives herself to the Prophet [and] if the Prophet wishes to marry her, [this is] only for you, excluding the [other] believers. '''We certainly know what We have made obligatory upon them concerning their wives and those their right hands possess''', [but this is for you] in order that there will be upon you no discomfort. And ever is Allah Forgiving and Merciful.}} | |||
Classical scholars understood the verse to permit Muhammad's use of concubines, though Islamic modernists read the verse as permitting Muhammad to marry his captives. Tafsir al-Jalalayn gives the examples of Juwayriyyah and Safiyya, captives who Muhammad did Marry, while Ibn Kathir also mentions Rayhanna and Maria who Muhammad kept as his unmarried concubines according to most traditions. {{Quran|33|52}} (discussed also in this section) may shed light on this question, though it too is ambiguous. Either way, a captive can freely consent neither to marriage nor concubinage. | |||
The permission in this verse is stated as being for Muhammad alone, commonly interpretated as excusing Muhammad from the obligation to pay a dowry in some circumstances, or his exemption from the maximum limit of four wives and other conditions. | |||
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 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, | |||
{{Quote|{{Quran-range|33|51|52}}|You, [O Muhammad], may put aside whom you will of them or take to yourself whom you will. And any that you desire of those [wives] from whom you had [temporarily] separated - there is no blame upon you [in returning her]. That is more suitable that they should be content and not grieve and that they should be satisfied with what you have given them - all of them. And Allah knows what is in your hearts. And ever is Allah Knowing and Forbearing. | {{Quote|{{Quran-range|33|51|52}}|You, [O Muhammad], may put aside whom you will of them or take to yourself whom you will. And any that you desire of those [wives] from whom you had [temporarily] separated - there is no blame upon you [in returning her]. That is more suitable that they should be content and not grieve and that they should be satisfied with what you have given them - all of them. And Allah knows what is in your hearts. And ever is Allah Knowing and Forbearing. | ||
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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'''".<ref>{{Citation|chapter=(9) 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|title=Sahih Muslim (Book of Suckling)|url=https://sunnah.com/muslim/17}} | 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'''".<ref>{{Citation|chapter=(9) 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|title=Sahih Muslim (Book of Suckling)|url=https://sunnah.com/muslim/17}} | ||
See the three hadiths it contains: {{Muslim| | See the three hadiths it contains: {{Muslim||1456a|reference}}, {{Muslim||1456b|reference}}, and {{Muslim||1456d|reference}}</ref>{{Quote|{{Muslim||1456a|reference}}|Abu Sa'id al-Khudri (Allah her pleased with him) reported that at the Battle of Hanain Allah's Messenger (ﷺ) sent an army to Autas and encountered the enemy and fought with them. Having overcome them and taken them captives, the Companions of Allah's Messenger (may peace te upon him) seemed to refrain from having intercourse with captive women because of their husbands being polytheists. Then Allah, Most High, sent down regarding that: | ||
'''"And women already married, except those whom your right hands possess (iv. 24)"''' (i. e. they were lawful for them when their 'Idda [waiting] period came to an end).}} | '''"And women already married, except those whom your right hands possess (iv. 24)"''' (i. e. they were lawful for them when their 'Idda [waiting] period came to an end).}} | ||
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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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Muhammad had a child with a slave girl of his known as [[w:Maria_al-Qibtiyya|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. | Muhammad had a child with a slave girl of his known as [[w:Maria_al-Qibtiyya|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. | ||
{{Quote|{{Muslim| | {{Quote|{{Muslim||2771|reference}}|Anas reported that '''a person was charged with fornication with the slavegirl of Allah's Messenger''' (ﷺ). Thereupon Allah's Messenger (ﷺ) said to 'Ali: | ||
Go and strike his neck. 'Ali came to him and he found him in a well making his body cool. 'Ali said to him: Come out, and as he took hold of his hand and brought him out, he found that his sexual organ had been cut. Hadrat 'Ali refrained from striking his neck. He came to Allah's Apostle (ﷺ) and said: Allah's Messenger, he has not even the sexual organ with him.}} | Go and strike his neck. 'Ali came to him and he found him in a well making his body cool. 'Ali said to him: Come out, and as he took hold of his hand and brought him out, he found that his sexual organ had been cut. Hadrat 'Ali refrained from striking his neck. He came to Allah's Apostle (ﷺ) and said: Allah's Messenger, he has not even the sexual organ with him.}} | ||
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{{Quote|1=[https://tafsir.app/jalalayn/66/1 Tafsir al-Jalalayn 66:1]|2=O Prophet! Why do you prohibit what '''God has made lawful for you''' in terms of '''your Coptic handmaiden Māriya''' — when he lay with her in the house of Hafsa who had been away but who upon returning and finding out became upset by the fact that this had taken place in her own house and on her own bed — by saying ‘She is unlawful for me!’ seeking by making her unlawful for you to please your wives? And God is Forgiving Merciful having forgiven you this prohibition.}} | {{Quote|1=[https://tafsir.app/jalalayn/66/1 Tafsir al-Jalalayn 66:1]|2=O Prophet! Why do you prohibit what '''God has made lawful for you''' in terms of '''your Coptic handmaiden Māriya''' — when he lay with her in the house of Hafsa who had been away but who upon returning and finding out became upset by the fact that this had taken place in her own house and on her own bed — by saying ‘She is unlawful for me!’ seeking by making her unlawful for you to please your wives? And God is Forgiving Merciful having forgiven you this prohibition.}} | ||
An alternate, or additional circumstance for this verse has also been narrated in multiple sahih hadiths (in yet another version {{Muslim| | An alternate, or additional circumstance for this verse has also been narrated in multiple sahih hadiths (in yet another version {{Muslim||1474b|reference}}, Muhammad ate honey at Hafsa's house instead of Zainab's). | ||
{{Quote|{{Al Nasai||4|36|3410}}|'Aishah said that '''the Messenger of Allah used to stay with Zainab bint Jahsh and drink honey at her house'''. Hafsah and I agreed that if the Prophet entered upon either of us, she would say: "'''I perceive the smell of Maghafir (a nasty-smelling gum) on you'''; have you eaten Maghafir?" He came in to one of them, and she said that to him. He said: "'''No, rather I drank honey at the house of Zainab bint Jahsh''', but I will never do it again." Then the following was revealed: 'O Prophet! Why do you forbid (for yourself) that which Allah has allowed to you.' 'If you two turn in repentance to Allah, (it will be better for you)' about 'Aishah and Hafsah, 'And (remember) when the Prophet disclosed a matter in confidence to one of his wives' refers to him saying: "No, rather I drank honey."}} | {{Quote|{{Al Nasai||4|36|3410}}|'Aishah said that '''the Messenger of Allah used to stay with Zainab bint Jahsh and drink honey at her house'''. Hafsah and I agreed that if the Prophet entered upon either of us, she would say: "'''I perceive the smell of Maghafir (a nasty-smelling gum) on you'''; have you eaten Maghafir?" He came in to one of them, and she said that to him. He said: "'''No, rather I drank honey at the house of Zainab bint Jahsh''', but I will never do it again." Then the following was revealed: 'O Prophet! Why do you forbid (for yourself) that which Allah has allowed to you.' 'If you two turn in repentance to Allah, (it will be better for you)' about 'Aishah and Hafsah, 'And (remember) when the Prophet disclosed a matter in confidence to one of his wives' refers to him saying: "No, rather I drank honey."}} | ||
"Honey" was also a sexual euphemism and an explicit example of its usage in this sense is found in a hadith in Abu Dawud:{{Quote|{{ | "Honey" was also a sexual euphemism and an explicit example of its usage in this sense is found in a hadith in Abu Dawud:{{Quote|{{Abu Dawud||2309|darussalam}}|Narrated Aisha, Ummul Mu'minin: | ||
The Messenger of Allah (ﷺ) was asked about a man who divorced his wife three times, and she married another who entered upon her, but divorced her before having intercourse with her, whether she was lawful for the former husband. She said: The Prophet (ﷺ) replied: She is not lawful for the first (husband) until '''she tastes the honey of the other husband and he tastes her honey'''. }} | The Messenger of Allah (ﷺ) was asked about a man who divorced his wife three times, and she married another who entered upon her, but divorced her before having intercourse with her, whether she was lawful for the former husband. She said: The Prophet (ﷺ) replied: She is not lawful for the first (husband) until '''she tastes the honey of the other husband and he tastes her honey'''. }} | ||
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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 a 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. | 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 a 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. | ||
{{Quote|{{Bukhari| | {{Quote|{{Bukhari|||4350|darussalam}}|Narrated Buraida: | ||
The Prophet (ﷺ) sent `Ali to Khalid to bring the Khumus (of the booty) and I hated `Ali, and '''`Ali had taken a bath (after a sexual act with a slave-girl from the Khumus)'''. I said to Khalid, "Don't you see this (i.e. `Ali)?" When we reached the Prophet (ﷺ) I mentioned that to him. He said, "O Buraida! Do you hate `Ali?" I said, "Yes." He said, "Do you hate him, for he deserves more than that from the Khumus."}} | The Prophet (ﷺ) sent `Ali to Khalid to bring the Khumus (of the booty) and I hated `Ali, and '''`Ali had taken a bath (after a sexual act with a slave-girl from the Khumus)'''. I said to Khalid, "Don't you see this (i.e. `Ali)?" When we reached the Prophet (ﷺ) I mentioned that to him. He said, "O Buraida! Do you hate `Ali?" I said, "Yes." He said, "Do you hate him, for he deserves more than that from the Khumus."}} | ||
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On one occasion, presented with newly captured women, Muhammad's companions were only concerned about whether coitus interruptus ('azl) was permissible. | On one occasion, presented with newly captured women, Muhammad's companions were only concerned about whether coitus interruptus ('azl) was permissible. | ||
{{Quote|{{Bukhari| | {{Quote|{{Bukhari|||4138|darussalam}}|Narrated Ibn Muhairiz: I entered the Mosque and saw Abu Said Al-Khudri and sat beside him and asked him about Al-Azl (i.e. coitus interruptus). Abu Said said, "We went out with Allah's Apostle for the Ghazwa of Banu Al-Mustaliq and we received captives from among the Arab captives and we desired women and celibacy became hard on us and we loved to do coitus interruptus. So when we intended to do coitus interruptus, we said, 'How can we do coitus interruptus before asking Allah's Apostle who is present among us?" We asked (him) about it and he said, 'It is better for you not to do so, for if any soul (till the Day of Resurrection) is predestined to exist, it will exist."}} | ||
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. | 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. | ||
{{Quote|{{Muslim| | {{Quote|{{Muslim||1438a|reference}}; see also {{Muwatta|29||95}} and {{Abu Dawud||2172|darussalam}}|Abu Sirma said to Abu Sa'id al Khadri (Allah he pleased with him): | ||
O Abu Sa'id, did you hear Allah's Messenger (ﷺ) mentioning al-'azl? He said: Yes, and added: We went out with Allah's Messenger (ﷺ) on the expedition to the Bi'l-Mustaliq and took captive some excellent Arab women; and we desired them, for we were suffering from the absence of our wives, (but at the same time) '''we also desired ransom for them.''' So we decided to have sexual intercourse with them but by observing 'azl (Withdrawing the male sexual organ before emission of semen to avoid-conception). But we said: We are doing an act whereas Allah's Messenger is amongst us; why not ask him? So we asked Allah's Messenger (ﷺ), and he said: It does not matter if you do not do it, for every soul that is to be born up to the Day of Resurrection will be born.}} | O Abu Sa'id, did you hear Allah's Messenger (ﷺ) mentioning al-'azl? He said: Yes, and added: We went out with Allah's Messenger (ﷺ) on the expedition to the Bi'l-Mustaliq and took captive some excellent Arab women; and we desired them, for we were suffering from the absence of our wives, (but at the same time) '''we also desired ransom for them.''' So we decided to have sexual intercourse with them but by observing 'azl (Withdrawing the male sexual organ before emission of semen to avoid-conception). But we said: We are doing an act whereas Allah's Messenger is amongst us; why not ask him? So we asked Allah's Messenger (ﷺ), and he said: It does not matter if you do not do it, for every soul that is to be born up to the Day of Resurrection will be born.}} | ||
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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. | 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. | ||
{{Quote|{{Bukhari| | {{Quote|{{Bukhari|||2229|darussalam}}|Narrated Abu Sa`id Al-Khudri: | ||
that while he was sitting with Allah's Messenger (ﷺ) he said, "O Allah's Messenger (ﷺ)! We get female captives as our share of booty, '''and we are interested in their prices''', what is your opinion about coitus interruptus?" The Prophet (ﷺ) said, "Do you really do that? It is better for you not to do it. No soul that which Allah has destined to exist, but will surely come into existence.}} | that while he was sitting with Allah's Messenger (ﷺ) he said, "O Allah's Messenger (ﷺ)! We get female captives as our share of booty, '''and we are interested in their prices''', what is your opinion about coitus interruptus?" The Prophet (ﷺ) said, "Do you really do that? It is better for you not to do it. No soul that which Allah has destined to exist, but will surely come into existence.}} | ||
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===Muhammad's men hesitate to rape married captives until a verse is sent down=== | ===Muhammad's men hesitate to rape married captives until a verse is sent down=== | ||
{{Quote|{{Muslim| | {{Quote|{{Muslim||1456a|reference}}|Abu Sa'id al-Khudri (Allah her pleased with him) reported that at the Battle of Hanain Allah's Messenger (ﷺ) sent an army to Autas and encountered the enemy and fought with them. Having overcome them and taken them captives, the Companions of Allah's Messenger (may peace te upon him) seemed to refrain from having intercourse with captive women because of their husbands being polytheists. Then Allah, Most High, sent down regarding that: | ||
'''"And women already married, except those whom your right hands possess (iv. 24)"''' (i. e. they were lawful for them when their 'Idda [waiting] period came to an end).}} | '''"And women already married, except those whom your right hands possess (iv. 24)"''' (i. e. they were lawful for them when their 'Idda [waiting] period came to an end).}} | ||
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{{Quote|{{Muwatta|2||90}}|Yahya related to me from Malik from Nafi that the slave girls of Abdullah ibn Umar used to wash his feet and bring him a mat of palm leaves while they were menstruating. Malik was asked whether a man who had women and slavegirlscould have intercourse with all of them before he did ghusl. He said, "There is no harm in a man having intercourse with two of his slave girls before he does ghusl. It is disapproved of, however, to go to a freewoman on another's day. There is no harm in making love first to one slave girl and then to another when one is junub." Malik was asked about a man who was junub and water was put down for him to do ghusl with.Then he forgot and put his finger into it to find out whether it was hot or cold. Malik said, "If no filth has soiled his fingers, I do not consider that that makes the water impure."}} | {{Quote|{{Muwatta|2||90}}|Yahya related to me from Malik from Nafi that the slave girls of Abdullah ibn Umar used to wash his feet and bring him a mat of palm leaves while they were menstruating. Malik was asked whether a man who had women and slavegirlscould have intercourse with all of them before he did ghusl. He said, "There is no harm in a man having intercourse with two of his slave girls before he does ghusl. It is disapproved of, however, to go to a freewoman on another's day. There is no harm in making love first to one slave girl and then to another when one is junub." Malik was asked about a man who was junub and water was put down for him to do ghusl with.Then he forgot and put his finger into it to find out whether it was hot or cold. Malik said, "If no filth has soiled his fingers, I do not consider that that makes the water impure."}} | ||
=== Muhammad tells a man not to use coitus interrupt us/azl (the pull-out contraception method) when having sex with a captured slave girl === | |||
The reason being God has already decided who they are going to create. | |||
{{Quote|{{Bukhari|||7409|darussalam}}|Narrated Abu Sa`id Al-Khudri: That during the battle with Bani Al-Mustaliq they (Muslims) captured some females and intended to have sexual relation with them without impregnating them. So they asked the Prophet (ﷺ) about coitus interrupt us. The Prophet (ﷺ) said, "It is better that you should not do it, for Allah has written whom He is going to create till the Day of Resurrection." Qaza'a said, "I heard Abu Sa`id saying that the Prophet (ﷺ) said, 'No soul is ordained to be created but Allah will create it."}} | |||
And: | |||
{{Quote|{{Bukhari|||2229|darussalam}}|Narrated Abu Sa`id Al-Khudri: that while he was sitting with Allah's Messenger (ﷺ) he said, "O Allah's Messenger (ﷺ)! We get female captives as our share of booty, and we are interested in their prices, what is your opinion about coitus interrupt us?" The Prophet (ﷺ) said, "Do you really do that? It is better for you not to do it. No soul that which Allah has destined to exist, but will surely come into existence.}} | |||
And similarly (this hadith is rated authentic/sahih by Al-Albani): | |||
{{Quote|{{Abu Dawud||2171|darussalam}}|A man said: Messenger of Allah, I have a slave-girl and I withdraw the penis from her (while having intercourse), and I dislike that she becomes pregnant. I intend (by intercourse) what the men intend by it. | |||
The Jews say that withdrawing the penis (azl) is burying the living girls on a small scale. He (the Prophet) said: The Jews told a lie. If Allah intends to create it, you cannot turn it away.}} | |||
===Explicit distinction between zina and legal intercourse=== | ===Explicit distinction between zina and legal intercourse=== | ||
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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. | 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. | ||
{{Quote|{{ | {{Quote|{{Abu Dawud||2265|darussalam}}| 'Amr b. Shu'aib on his father's authority said that his grandfather reported: | ||
The Prophet (ﷺ) decided regarding one who was treated as a member of a family after the death of his father, to whom he was attributed when the heirs said he was one of them, '''that if he was the child of a slave-woman whom the father owned when he had intercourse with her''', he was included among those who sought his inclusion, but received none of the inheritance which was previously divided; he, however, received his portion of the inheritance which had not already been divided; but if the father to whom he was attributed had disowned him, he was not joined to the heirs. | The Prophet (ﷺ) decided regarding one who was treated as a member of a family after the death of his father, to whom he was attributed when the heirs said he was one of them, '''that if he was the child of a slave-woman whom the father owned when he had intercourse with her''', he was included among those who sought his inclusion, but received none of the inheritance which was previously divided; he, however, received his portion of the inheritance which had not already been divided; but if the father to whom he was attributed had disowned him, he was not joined to the heirs. | ||
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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. | 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. | ||
{{Quote|{{Bukhari| | {{Quote|{{Bukhari|||371|darussalam}}|Narrated 'Abdul 'Aziz: Anas said, 'When Allah's Apostle invaded Khaibar, we offered the Fajr prayer there early in the morning) when it was still dark. The Prophet rode and Abu Talha rode too and I was riding behind Abu Talha. The Prophet passed through the lane of Khaibar quickly and my knee was touching the thigh of the Prophet . He uncovered his thigh and I saw the whiteness of the thigh of the Prophet. When he entered the town, he said, 'Allahu Akbar! Khaibar is ruined. Whenever we approach near a (hostile) nation (to fight) then evil will be the morning of those who have been warned.' He repeated this thrice. The people came out for their jobs and some of them said, 'Muhammad (has come).' (Some of our companions added, "With his army.") We conquered Khaibar, took the captives, and the booty was collected. Dihya came and said, 'O Allah's Prophet! Give me a slave girl from the captives.' The Prophet said, 'Go and take any slave girl.' He took Safiya bint Huyai. A man came to the Prophet and said, 'O Allah's Apostles! You gave Safiya bint Huyai to Dihya and she is the chief mistress of the tribes of Quraiza and An-Nadir and she befits none but you.' So the Prophet said, 'Bring him along with her.' So Dihya came with her and when the Prophet saw her, he said to Dihya, 'Take any slave girl other than her from the captives.' Anas added: The Prophet then manumitted her and married her." Thabit asked Anas, "O Abu Hamza! What did the Prophet pay her (as Mahr)?" He said, "Her self was her Mahr for he manumitted her and then married her." Anas added, "While on the way, Um Sulaim dressed her for marriage (ceremony) and at night she sent her as a bride to the Prophet . So the Prophet was a bridegroom and he said, 'Whoever has anything (food) should bring it.' He spread out a leather sheet (for the food) and some brought dates and others cooking butter. (I think he (Anas) mentioned As-SawTq). So they prepared a dish of Hais (a kind of meal). And that was Walima (the marriage banquet) of Allah's Apostle ."}} | ||
===Juwairiyah bint al-Harith=== | ===Juwairiyah bint al-Harith=== | ||
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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 from Sunan Abu Dawud explains how, following a surprise attack on the Banu Mustaliq, Muhammad took captive the "very beautiful" Juwairiyah, making Aisha jealous. | ||
{{Quote|1={{Abu Dawud| | {{Quote|1={{Abu Dawud||3931|darussalam}}|2=Narrated Aisha, Ummul Mu'minin: Juwayriyyah, daughter of al-Harith ibn al-Mustaliq, fell to the lot of Thabit ibn Qays ibn Shammas, or to her cousin. She entered into an agreement to purchase her freedom. She was a very beautiful woman, most attractive to the eye. Aisha said: She then came to the Apostle of Allah (peace be upon him) asking him for the purchase of her freedom. When she was standing at the door, I looked at her with disapproval. I realised that the Apostle of Allah (peace be upon him) would look at her in the same way that I had looked. She said: Apostle of Allah, I am Juwayriyyah, daughter of al-Harith, and something has happened to me, which is not hidden from you. I have fallen to the lot of Thabit ibn Qays ibn Shammas, and I have entered into an agreement to purchase of my freedom. I have come to you to seek assistance for the purchase of my freedom. The Apostle of Allah (peace be upon him) said: Are you inclined to that which is better? She asked: What is that, Apostle of Allah? He replied: I shall pay the price of your freedom on your behalf, and I shall marry you. She said: I shall do this. She (Aisha) said: The people then heard that the Apostle of Allah (peace be upon him) had married Juwayriyyah. They released the captives in their possession and set them free, and said: They are the relatives of the Apostle of Allah (peace be upon him) by marriage. We did not see any woman greater than Juwayriyyah who brought blessings to her people. One hundred families of Banu al-Mustaliq were set free on account of her.}} | ||
A hadith in Sahih Bukhari confirms the same narrative. | A hadith in Sahih Bukhari confirms the same narrative. | ||
{{Quote|{{Bukhari| | {{Quote|{{Bukhari|||2541|darussalam}}|Narrated Ibn Aun: I wrote a letter to Nafi and Nafi wrote in reply to my letter that the Prophet had suddenly attacked Bani Mustaliq without warning while they were heedless and their cattle were being watered at the places of water. Their fighting men were killed and their women and children were taken as captives; the Prophet got Juwairiya on that day. Nafi said that Ibn 'Umar had told him the above narration and that Ibn 'Umar was in that army.}} | ||
==Waiting period before sex with slave girls too young to menstruate== | ==Waiting period before sex with slave girls too young to menstruate== | ||
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==Limitations on rape of slaves and war captives== | ==Limitations on rape of slaves and war captives== | ||
===Avoiding physical | ===Avoiding physical harm during intercourse=== | ||
Beyond the temporary requirement of waiting past the ''Iddah'' period or conversion of a slave, the only restriction on sex with one's slaves or wives is that they do not suffer | Beyond the temporary requirement of waiting past the ''Iddah'' period or conversion of a slave, the only restriction on sex with one's slaves or wives is that they do not suffer physical harm in the process.<ref name="Brown2019page283" /> However, this derives from a generic prohibition against incurring harm (ḍarar) upon anyone at any time, and men are authorized in the view of jurists to [[Wife Beating in Islamic Law|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.<ref name="Brown2014" /> | ||
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 [[Child Marriage in Islamic Law|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 slaves against their will through means other than penetration if such less egregious means will help avoid severe physical injury. | 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 [[Child Marriage in Islamic Law|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 slaves against their will through means other than penetration if such less egregious means will help avoid severe physical injury. | ||
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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. | 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. | ||
{{Quote|{{ | {{Quote|{{Abu Dawud||2157|darussalam}}|Abu Sa’id Al Khudri traced to Prophet (ﷺ) the following statement regarding the captives taken at Atwas. There must be no intercourse with pregnant woman till she gives birth to her child or with the one who is not pregnant till she has had one menstrual period.}} | ||
Another hadith graded sahih by Dar-us-Salam in Tirmidhi explains that if the slave is pregnant | Another hadith graded sahih by Dar-us-Salam in Tirmidhi explains that if the slave is pregnant | ||
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{{citation|url=https://islamqa.info/en/answers/13737/what-is-the-ruling-on-intimacy-with-slave-women | archiveurl=https://archive.fo/16upP| chapter= Fatwa No. 13737: What is the ruling on intimacy with slave women?|publisher= Islam Q&A|date= March 18, 2004|editor=Muhammad Salih al-Munajjid}}|2=With regard to your question about it being permissible for a master to be intimate with his slave woman, the answer is that that is because Allaah has permitted it. }}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 in Islamic Law|wife beating]] as a potential means by which to compel one's able but unwilling spouse into sexual activity, among other things. | {{citation|url=https://islamqa.info/en/answers/13737/what-is-the-ruling-on-intimacy-with-slave-women | archiveurl=https://archive.fo/16upP| chapter= Fatwa No. 13737: What is the ruling on intimacy with slave women?|publisher= Islam Q&A|date= March 18, 2004|editor=Muhammad Salih al-Munajjid}}|2=With regard to your question about it being permissible for a master to be intimate with his slave woman, the answer is that that is because Allaah has permitted it. }}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 in Islamic Law|wife beating]] as a potential means by which to compel one's able but unwilling spouse into sexual activity, among other things. | ||
{{Quote|{{citation|url= https://islamqa.info/en/answers/99756/his-wife-is-not-very-interested-in-intercourse-so-he-resorts-to-masturbation|chapter= Fatwa No. 99756: His wife is not very interested in intercourse so he resorts to masturbation| publisher= Islam Q&A|date= July 22, 2007|editor=Muhammad Salih al-Munajjid|archiveurl=https://web.archive.org/web/20201204173121/https://islamqa.info/en/answers/99756/his-wife-is-not-very-interested-in-intercourse-so-he-resorts-to-masturbation}}|The wife is obliged to obey her husband if he calls her to his bed, and if she refuses then she is sinning, because of the report narrated by al-Bukhaari (3237) and Muslim (1436) from Abu Hurayrah (may Allaah be pleased with him), that the Prophet (peace and blessings of Allaah be upon him) said: “If a man calls his wife to his bed and she does not come to him, and he goes to sleep angry with her, the angels will curse her until morning.”}} | {{Quote|{{citation|url= https://islamqa.info/en/answers/99756/his-wife-is-not-very-interested-in-intercourse-so-he-resorts-to-masturbation|chapter= Fatwa No. 99756: His wife is not very interested in intercourse so he resorts to masturbation| publisher= Islam Q&A|date= July 22, 2007|editor=Muhammad Salih al-Munajjid|archiveurl=https://web.archive.org/web/20201204173121/https://islamqa.info/en/answers/99756/his-wife-is-not-very-interested-in-intercourse-so-he-resorts-to-masturbation}}|The wife is obliged to obey her husband if he calls her to his bed, and if she refuses then she is sinning, because of the report narrated by al-Bukhaari (3237) and Muslim (1436) from Abu Hurayrah (may Allaah be pleased with him), that the Prophet (peace and blessings of Allaah be upon him) said: “If a man calls his wife to his bed and she does not come to him, and he goes to sleep angry with her, the angels will curse her until morning.”}} | ||
Others side with modern values regarding these issues. Khaled Abou al-Fadl is a prominent reformist scholar who has summarised his understanding of modern Islamic views on slavery and sexual exploitation: | |||
{{Quote|Khaled Abou al-Fadl, ''The Great Theft: Wrestling Islam from the Extremists''<ref name="alFadl">Khaled Abou al-Fadl, ''The Great Theft: Wrestling Islam from the Extremists'', HarperOne, 2009, p. 255</ref>|Consider, for example, the recent truly ominous and disturbing development by one of the highest-ranking puritan jurists. Shaykh Saleh al-Fawzan, a Saudi jurist, issued a ''fatwa'' (a legal opinion) in which he claimed that not only is slavery lawful in Islam, but that it ought to be legalized in Saudi Arabia. Al-Fawzan went further in accusing Muslim scholars who condemned and outlawed slavery of being ignorant and infidels. This ''fatwa'' is particularly disturbing and dangerous because it effectively legitimates the trafficking in and sexual exploitation of so-called domestic workers in the Gulf region and especially Saudi Arabia.<BR /> | |||
The position of slavery had been resolved for most of the twentieth century: slavery was condsidered unlawful and immoral, and all Muslim countries without exception had made the practice illegal. Importantly, most Muslim scholars had reached the reasonable conclusion that slavery is inconsistent with Qur'anic morality and the ethical objectives of the Islamic faith. In short, the prohibition of slavery was considered a closed matter.}} | |||
==Modern revisionary perspectives and criticisms thereof== | ==Modern revisionary perspectives and criticisms thereof== | ||
===Freedom and marriage as a requirement for intercourse=== | ===Freedom and marriage as a requirement for intercourse=== | ||
Verses 4:23-24 ({{Quran-range|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-range|23|1|6}} and {{Quran-range|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.<ref>{{Bukhari| | Verses 4:23-24 ({{Quran-range|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-range|23|1|6}} and {{Quran-range|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.<ref>{{Bukhari|||4138|darussalam}}, {{Muslim||1438a|reference}},{{Muwatta|29||95}}, {{Abudawud||2172|darussalam}}, and {{Bukhari|||2229|darussalam}}</ref> | ||
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. The child is free from birth and the mother is free upon her owner's death. 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. | 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. The child is free from birth and the mother is free upon her owner's death. 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. | ||
{{Quote|{{Muslim| | {{Quote|{{Muslim||1438g|reference}}| Abu Sa'id al-Khudri (Allah be pleased with him) reported that mention was made of 'azl in the presence of Allah's Apostle (ﷺ) whereupon he said: | ||
Why do you practise it? They said: There is a man whose wife has to suckle the child, and if that person has a sexual intercourse with her (she may conceive) which he does not like, '''and there is another person who has a slave-girl and he has a sexual intercourse with her, but he does not like her to have conception so that she may not become Umm Walad''', whereupon he (the Holy Prophet) said: There is no harm if you do not do that, for that (the birth of the child) is something pre- ordained. Ibn 'Aun said: I made a mention of this hadith to Hasan, and he said: By Allah, (it seems) as if there is upbraiding in it (for 'azl).}} | Why do you practise it? They said: There is a man whose wife has to suckle the child, and if that person has a sexual intercourse with her (she may conceive) which he does not like, '''and there is another person who has a slave-girl and he has a sexual intercourse with her, but he does not like her to have conception so that she may not become Umm Walad''', whereupon he (the Holy Prophet) said: There is no harm if you do not do that, for that (the birth of the child) is something pre- ordained. Ibn 'Aun said: I made a mention of this hadith to Hasan, and he said: By Allah, (it seems) as if there is upbraiding in it (for 'azl).}} | ||
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Shāfiʿī is unaware of his blinders. He obviously refers only to men when he declares that "intercourse is a matter of pleasure and no one is compelled to it." Women's sexual availability is, for him, a condition of their support and a prerequisite for their rights to visitation: "if any of them [his wives] refuses to have sex with him, she has disobeyed and abandoned her claim."}} | Shāfiʿī is unaware of his blinders. He obviously refers only to men when he declares that "intercourse is a matter of pleasure and no one is compelled to it." Women's sexual availability is, for him, a condition of their support and a prerequisite for their rights to visitation: "if any of them [his wives] refuses to have sex with him, she has disobeyed and abandoned her claim."}} | ||
Professor Jonathan A. C. Brown in reference to the same ruling remarks, "Shafiʿi himself, in a ruling followed dutifully by the major figures of his school, did not require a husband to have sex with his wife or slave-concubine because, ‘as for sex, it is a locus of pleasure and no one should be compelled to do it.’"<ref name=" | Professor Jonathan A. C. Brown in reference to the same ruling remarks, "Shafiʿi himself, in a ruling followed dutifully by the major figures of his school, did not require a husband to have sex with his wife or slave-concubine because, ‘as for sex, it is a locus of pleasure and no one should be compelled to do it.’"<ref name="Brown2019page283" /> | ||
==See Also== | ==See Also== | ||
[[Qur'an, Hadith and Scholars:Rape of Slaves, Prisoners, and Wives]] | |||
==External Links== | ==External Links== | ||
*{{external link|url= http://womanstats.wordpress.com/2013/01/16/the-high-rape-scale-in-saudi-arabia/|title= The High Rape-Scale in Saudi Arabia|publisher= WomanStats Project (blog)|author= |date= January 16, 2013|archiveurl= http://www.webcitation.org/query?url=http%3A%2F%2Fwomanstats.wordpress.com%2F2013%2F01%2F16%2Fthe-high-rape-scale-in-saudi-arabia%2F&date=2013-07-13|deadurl=no}} | *{{external link|url= http://womanstats.wordpress.com/2013/01/16/the-high-rape-scale-in-saudi-arabia/|title= The High Rape-Scale in Saudi Arabia|publisher= WomanStats Project (blog)|author= |date= January 16, 2013|archiveurl= http://www.webcitation.org/query?url=http%3A%2F%2Fwomanstats.wordpress.com%2F2013%2F01%2F16%2Fthe-high-rape-scale-in-saudi-arabia%2F&date=2013-07-13|deadurl=no}} | ||
*[https:// | *[https://theislamissue.wordpress.com/2019/06/15/islamweb-endorses-rape/ IslamWeb endorses rape] - The Islam Issue | ||
==References== | ==References== | ||
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[[Category:Hudud (punishments)]] | [[Category:Hudud (punishments)]] | ||
[[ar:الاغتصاب_في_الشريعة_الإسلامية]] | [[ar:الاغتصاب_في_الشريعة_الإسلامية]] | ||
[[fr:Le viol dans la loi islamique]] | |||