Rape in Islamic Law: Difference between revisions

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==Qur'an==
==Qur'an==
There is no equivalent term for ‘[[rape]]’ in the [[Qur'an]]. Likewise, there is not a single verse in the Qur'an which even remotely discourages forced sex. In contrast, there are several verses in this book which give the green light to rape and other sexual crimes against [[Islam and Women|women]].


[[Surah]] [[The Holy Qur'an: An-Nisa (Women)|an-Nisa]] discusses lawful and forbidden women for pious Muslims. Before we delve into the particular verse, it should be noted that it is not easy to understand what is being suggested using the verse alone. Therefore, relying on authoritative [[Tafsir]]s (Qur'an interpretations) and [[Sahih]] (authentic) [[Hadith]]s associated with it, are necessary to get the exact picture.  
[[Surah]] [[The Holy Qur'an: An-Nisa (Women)|an-Nisa]] discusses lawful and forbidden women for pious Muslims. Before we delve into the particular verse, it should be noted that it is not easy to understand what is being suggested using the verse alone. Therefore, relying on authoritative [[Tafsir]]s (Qur'an interpretations) and [[Sahih]] (authentic) [[Hadith]]s associated with it, are necessary to get the exact picture.  

Revision as of 19:15, 7 August 2013

Islam allows a man to have intercourse with his slave woman, whether he has a wife or wives or he is not married...Whoever regards that as haraam is a sinner who is going against the consensus of the scholars.
Ruling on having intercourse with a slave woman when one has a wife
Islam Q&A, Fatwa No. 10382, November 24, 2005

Definitions

Rape

rape [reyp] noun, verb, raped, rap·ing.

noun

  1. the unlawful compelling of a person through physical force or duress to have sexual intercourse.
    Rape
    Dictionary.com

Duress

In jurisprudence, duress or coercion refers to a situation whereby a person performs an act as a result of violence, threat or other pressure against the person. Black's Law Dictionary (6th ed.) defines duress as "any unlawful threat or coercion used... to induce another to act [or not act] in a manner [they] otherwise would not [or would]". Duress is pressure exerted upon a person to coerce that person to perform an act that he or she ordinarily would not perform. The notion of duress must be distinguished both from undue influence in the civil law and from necessity.

Duress has two aspects. One is that it negates the person's consent to an act, such as sexual activity or the entering into a contract; or, secondly, as a possible legal defense or justification to an otherwise unlawful act.[1] A defendant utilizing the duress defense admits to breaking the law, but claims that he/she is not liable because, even though the act broke the law, it was only performed because of extreme unlawful pressure.[2] In criminal law, a duress defense is similar to a plea of guilty, admitting partial culpability, so that if the defense is not accepted then the criminal act is admitted.

Duress or coercion can also be raised in an allegation of rape or sexual assault to negate a defense of consent on the part of the person making the allegation.
Duress
Wikipedia

Qur'an

Surah an-Nisa discusses lawful and forbidden women for pious Muslims. Before we delve into the particular verse, it should be noted that it is not easy to understand what is being suggested using the verse alone. Therefore, relying on authoritative Tafsirs (Qur'an interpretations) and Sahih (authentic) Hadiths associated with it, are necessary to get the exact picture.

Verse 4:24

Also (forbidden are) women already married, except those whom your right hands possess. Thus has Allah ordained for you. All others are lawful, provided you seek them from your property, desiring chastity, not fornication. So with those among them whom you have enjoyed, give them their required due, but if you agree mutually after the requirement (has been determined), there is no sin on you. Surely, Allah is Ever All-Knowing, All-Wise.
Quran 4:24

What we see in the beginning of this verse as “forbidden” refers to sexual intercourse. The Qur'an dictates, women already married are forbidden for Muslims except those whom their right hands possess (sex slaves).

Context

It is important to know the context of this verse, as it sheds light onto the nature of allowance. If we go through a Sahih Hadith in Sunan Abu Dawud:

Abu Said al-Khudri said: "The apostle of Allah sent a military expedition to Awtas on the occasion of the battle of Hunain. They met their enemy and fought with them. They defeated them and took them captives. Some of the Companions of the apostle of Allah were reluctant to have intercourse with the female captives in the presence of their husbands who were unbelievers. So Allah, the Exalted, sent down the Quranic verse, "And all married women (are forbidden) unto you save those (captives) whom your right hands possess". That is to say, they are lawful for them when they complete their waiting period." [The Quran verse is 4:24]
Abu Dawud 2:2150

Here in the above hadith, we are told why verse 4:24 was revealed to Muhammad. It was to encourage his fighters, who were reluctant, to have sexual contacts with female captives even while their husbands were alive as prisoners of war. This is made clear when we read:

"Some of the Companions of the apostle of Allah were reluctant to have intercourse with the female captives in the presence of their husbands who were unbelievers."

The Abu Dawud hadith is confirmed by the two Sahih collections, namely Sahih Bukhari and Sahih Muslim.

In Sahih Bukhari we read:

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 interrupt us, 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."
Sahih Bukhari 5:59:459

Similarly in Sahih Muslim:

Abu Sa'id al-Khudri reported that at the Battle of Hunain Allah's Messenger 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 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 (Quran 4:. 24)" (i. e. they were lawful for them when their 'Idda period came to an end).
Sahih Muslim 8:3432

There is an entire chapter devoted to this in the Sahih Muslim collection. The title of the chapter speaks in volumes as we read:

Sahih Muslim. Chapter 29: Title: It is permissible to have sexual intercourse with a captive woman after she is purified of menses or delivery. In case she has a husband, her marriage is abrogated after she becomes captive.

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

The Ayah (verses) means Also (forbidden are) women already married, except those whom your right hands possess.), you are prohibited from marrying women who are already married, except those whom your right hands possess) except those whom you acquire through war, for you are allowed such women after making sure they are not pregnant. Imam Ahmad recorded that Abu Sa`id Al-Khudri said, "We captured some women from the area of Awtas who were already married, and we disliked having sexual relations with them because they already had husbands. So, we asked the Prophet about this matter, and this Ayah (verse) was revealed, Also (forbidden are) women already married, except those whom your right hands possess). Accordingly, we had sexual relations with these women." (Alternate translation can be: as a result of these verses, their (Infidels) wives have become lawful for us) This is the wording collected by At-Tirmidhi An-Nasa'i, Ibn Jarir and Muslim in his Sahih.
Forbidding Women Already Married, Except for Female Slaves
Tafsir Ibn Kathir

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

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.
Qur'an 4:24
Tafsir al-Jalalayn

The tafsir attributed to Ibn Abbas, Muhammad's paternal cousin, further confirms:

And all married women (are forbidden unto you save those (captives) whom your right hands possess) of captives, even if they have husbands in the Abode of War, after ascertaining that they are not pregnant, by waiting for the lapse of one period of menstruation. (It is a decree of Allah for you) that which I have mentioned to you is unlawful in Allah's Book.
Qur'an 4:24
Tafsir 'Ibn Abbas

Further Verses

Verses 23:1-6

There are other verses in the Qur'an similar to verse 4:24. For example, Surah al-Mumenoon makes mention of successful Muslims and their characteristics:

Successful indeed are the believers, who are humble in their prayers and who keep aloof from what is vain and who are givers of poor-rate and who guard their private parts, except before their mates or those whom their right hands possess, for they surely are not blamable.
Quran 23:1-6

Guarding private parts is denotative of abstaining from sexual activities. The Qur'an points out successful believers are those who are indulging in sexual activities only with their wives and sex-slaves.

Verses 70:29-30

This is confirmed again in Surah al-Maarij:

And those who guard their private parts, except in the case of their wives or those whom their right hands possess-- for these surely are not to be blamed,
Quran 70:29-30

Muhammad

This practice of raping war captives was practiced by Islam’s very own prophet Muhammad, in his life. On two occasions, he married (for the sake of sexual gratification only) war captives and raped them. Those victims were namely Safiyah and Juwairiyah.

Safiyah

Safiyah the daughter of Huayy was the wife of a Jewish Rabbi named Kinana. When Muhammad conquered the Jewish village of Khaibar, he tortured and killed the Rabbi and took captive his wife. Sahih Hadith in Bukhari testify to this fact:

Narrated 'Abdul 'Aziz: Anas said, 'When Allah's Apostle invaded Khaibar, we offered the Fajr prayer there yearly 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 ."
Sahih Bukhari 1:8:367

Juwairiyah

The following hadith from Sunan Abu Dawud bears out how Muhammad obtained Juwairiyah, a beautiful woman of a tribe called Banu Mustaliq. Muhammad was attacking the tribe without warning and conquering them:

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.
Abu Dawud 29:3920

The following hadith from Sahih Bukhari is evidentiary to the above:

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.
Sahih Bukhari 3:46:717

Muslim Apologetics

Claims about verse 24:33

Muslims will frequently quote the following when confronted with the passages provided in this article and others like it:

Let those who find not the wherewithal for marriage keep themselves chaste, until Allah gives them means out of His grace. And if any of your slaves ask for a deed in writing (to enable them to earn their freedom for a certain sum), give them such a deed if ye know any good in them: yea, give them something yourselves out of the means which Allah has given to you. But force not your maids to prostitution when they desire chastity, in order that ye may make a gain in the goods of this life. But if anyone compels them, yet, after such compulsion, is Allah, Oft-Forgiving, Most Merciful (to them),
Quran 24:33

The first part of the verse is telling unmarried people to keep themselves chaste. Now, the important thing to remember is that the Islamic definition of chaste is different than the commonly agreed upon definitions of the word. According to Quran 23:6, Quran 33:50, Quran 33:52, and Quran 70:30 a Muslim man is considered "chaste" so long as he only has sex with his wives (of whom he may have up to four) and his right-hand possessions (female captives/slaves). An unmarried Muslim man who has sex with his slave girl is still considered to be "chaste" by Islamic standards.[3]

The second sentence speaks about slaves who ask for a way to pay for their freedom (like indentured servants) as long as the master knows of "any good in them". It would be interesting to discover how female slaves could earn any money at all if they had been kidnapped from their families and forced into slavery and did not have money-making skills. And if a female slave was to earn her freedom, where then could she go if her family had been massacred? How could she support herself and keep herself safe from rape, prostitution, etc.? Practicalities aside, this verse only tells Muslims to let their slaves purchase their freedom (but puts in a convenient disclaimer of "if ye know any good in them"). To give Muhammad credit, he did stipulate that the masters should give their slaves something (again conveniently leaving out what and how much).

The third sentence is what pertains to the Muslim claim that rape is forbidden. However, the word used is not simply sexual intercourse but is more specifically "prostitution" or "whoredom". Prostitution is not simply about sex, but sex for a price. This is why it is often referred to as one of the oldest professions. What this verse speaks of is a master forcing his maid to be a prostitute thereby making money by allowing other men to have sex with her. This verse says nothing about a master forcing himself upon his slave-girl who is considered "halal" for him according to Islamic law. The fourth sentence says that if a girl is indeed forced into prostitution, then Allah will forgive her for committing zina. What this verse does not say is what the punishment should be for a man who forces his maid into prostitution. All it says is that he should not do it. And what it definitely does not say is that a Muslim man cannot force himself on his own slave-girl.

Claims about Muhammad's behavior

Conclusion

From 4:24, it can be rightly assumed, that the Qur'an does not see any wrong-doing in Muslims having sex with captive women even if these women are married and their husbands are still alive. This clearly indicates that the Qur'an allows rape, as captive women, even in the unlikely case of agreeing to sexual intercourse, would still be having that intercourse under duress.

This page is featured in the core article, Islam and Women which serves as a starting point for anyone wishing to learn more about this topic
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See Also

External Links

References

  1. ↑ Gaines, Larry; Miller, LeRoy (2006). Criminal Justice In Action: The Core. Thomson/Wadsworth. ISBN 0-495-00305-0.
  2. ↑ 1st Class Investigations Glossary
  3. ↑ Ruling on having intercourse with a slave woman when one has a wife - Islam Q&A, Fatwa No. 10382, November 24, 2005
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