Rape in Islamic Law: Difference between revisions

Rape, known in Islamic law as zina bil-ikrah or zina bil-jabr (literally "fornication by force"), is generally defined by Muslim jurists as forced intercourse by a man with a woman who is not his wife or slave and without her consent. As with enslaved females, according to Islamic law, married women are required to oblige their husbands sexual advances - raping one's wife is permissible.^[1] The concept of "rape" is thus deemed to be equally non-existent in the contexts of both marriage and slavery.

A small number of hadiths are cited to support the Islamic punishments for rape. These narrations relate to the rape of free women and of female slaves who are not owned by the perpetrator. However, the Qur'an, on numerous occasions, permits Muslim men to have sexual relations with their own female slaves (famously referred to as "what your right hand possesses"), often in conjunction with the commandment for men to keep otherwise chaste. In addition, there are narrations in which female captives were raped prior to being ransomed back to their tribe.{{

The male rapist may be punished with a hadd penalty - stoning (if he is married ) or lashings (if he is unmarried) - just as he would receive for ordinary Zina (fornication, or unlawful intercourse). Four witnesses are required to prove the offense.^[2][3] There is no punishment for the rape victim if she is able to prove that she was raped. Jurists disagree on whether the rapist must also pay a dowry as compensation to the victim. A controversial position of some modern jurists is that the hadd penalty for outlaws should apply to rapists (hadd Hirabah), described in Quran 5:33. Others say that rape can be treated by the judge as an offence that receives Tazir (discretionary) punishment (as in Pakistan, for example). These approaches avoid the impractical four witnesses requirement for applying a zina hadd penalty in absence of a confession from a rapist. In some other modern courts a woman risks being accused of zina if she cannot prove to this standard that she has been raped.^[4]

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."^[5] Dr. Jonathan Brown, Associate Professor and Chair of Islamic Civilization at Georgetown University (also a Muslim convert) has made similar comments.^[6][7]

Rape in the Qur'an

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

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

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

This verse indicates that women already married are forbidden for Muslims to marry except for those whom their right hands possess (sex slaves). This verse seems to suggest that one can marry and thereby have intercourse with their slave.

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

The hadith in Sahih Muslim is found in a chapter dedicated to the topic; the chapter is entitled "Chapter: It is permissible to have intercourse with a female captive after it is established that she is not pregnant, and if she has a husband, then her marriage is annulled when she is captured".^[8]

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

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

The tafsir attributed to (though in all likelihood not directly from) Ibn Abbas, Muhammad's paternal cousin, further confirms:

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

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

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

The same idea reoccurs in surah 70:

Rape in the Hadiths

Scenes of Muhammad's companions, and indeed Muhammad himself, engaging in sexual activity with slaves and captives are common throughout hadith literature. While the female perspective is largely absent, leaving the reader to speculate as to whether the female slave or captive would have been receptive to the advances of Muhammad and his companions, it is fair to assume that in at least some (if not most or indeed all) of these cases, the sexual activity occurred without the female's consent and thus qualified as rape. This is particularly clear in the examples that follow where Muhammad's companions initiate sexual contact with the captive women shortly after having slayed their sons, husbands, fathers, and brothers. At the very least, it can be said that in no such case does Muhammad intervene in and that in all such cases he actively permits what, by all appearances, is an instance of his companion's raping a captive or slave.

Muhammad has intercourse with a slave girl

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

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

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

An alternate, or additional circumstance for this verse has also been narrated in multiple sahih hadiths:

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

Ali rapes an underage ward of the state

Another relevant hadith is one which concerns an incident which led to the famous event of Ghadir Khumm, which is much disputed between Sunnis and Shias. Both Sunni and Shia sources agree that Muhammad received complaints about 'Ali taking a slave-girl from the Khums (the fifth of all booty allotted for the state^[9]) to which those complaining felt that no private party was entitled.

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

Ibn Hajar al-Asqalani (d. 1449), one of the most famous Hadith scholars of all time, points out in his seminal Fath al-Bari (the still-standard commentary on Sahih Bukhari) what several scholars before him noted: that in accounts of this event, Ali does not observe the required iddah (waiting) period to determine whether or not the girl was pregnant. Al-Asqalani quotes al-Khattabi who summarizes the possibilities: "she was either a virgin [strongly implying a young age in a culture where women married young], had not yet reached maturity, or Ali's ijtihad [independent reasoning] led him to not adhere to the waiting period in her case."^[10]

Muhammad's companions rape captives intended for ransom

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

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

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

Explicit distinction between zina and legal intercourse

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

Muhammad's and female captives

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

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

Safiyah bint Huayy

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

Juwairiyah bint al-Harith

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

A hadith in Sahih Bukhari confirms the same narrative.

Punishments for rape

Rape of a free woman

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

Rape of another's slave

If the individual raped is a slave owned by other than the rapist, reparations are due to the owner of the slave in the form of a replacement slave or the amount by which the raped slave's value has been depreciated as a result of the rape. The authenticity of hadiths concerning this incident are graded da'if (weak) by al-Albani, while Dar-us-Salam grade them hasan (good).

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

Additionally, Malik in his Muwatta is remarks:

Limitations on rape

Avoiding severe physical injury

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

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

Waiting until the completion of the Iddah or childbirth

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

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

Waiting until polytheist slaves convert, by force if necessary

Although Muhammad's men seem to have had intercourse with captive polytheist women whom they had captured during the expedition to Awtas/Autas, most jurists later ruled that this was later forbidden by Quran 2:221 (the verse only forbids marriage to polytheist women, but scholars inferred that this also applied to intercourse with slaves). Intercourse with Muslim, Christian, or Jewish slaves was not affected by this restriction.^[11]

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

Modern perspectives

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

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

Modern revisionary perspectives and criticisms thereof

Quotes from Shafi'i and Malik

The following quote from al-Umm of Imam al Shafi'i, the founder of the Shafi'i school of Islamic jurisprudence is forwarded by some Islamic apologists to forbid slave owners from raping their female slaves:

"Acquires by force" here refers to the manner in which the man gained possession of the slave girl, not a description of the sexual act later. There is a defined process in Islam called Khums for distributing booty (including captives) from wars and raids. Slaves could also later be bought and sold. So whether the man cheated on the Khums system, or simply took by force a slave from another Muslim, this did not make her lawful for him. The massive legal work al-Umm refers to sexual slavery in numerous places elsewhere in a clearly legal context.

Imam Malik, who founded the Maliki school of jurisprudence is also quoted regarding punishments for raping slaves.

However, as stated in the section above about punishments for raping slaves owned by someone else, the comment about payment shows that Malik is not refering to slaves owned by the perpetrator.

Hadith in which Umar punishes Dharah

The following hadith (whose authenticity is in question due to the status of the narrator Harun bin al-Asam^[12]) is also claimed to show the Caliph Umar punishing Dharar for raping a captive woman.

As above, this is almost certainly referring to violation of the Khums system for distributing war booty, which is for the Imam or commander to distribute, including a fifth share for the Prophet (and after his death, for the Caliph). The verses and hadiths in the rest of this article make it amply clear that captives owned in lawful ways were (and are) permissible for Muslim slave owners to sleep with.

Claims that Men had to Marry their Slaves Before Intercourse was Permitted

Sometimes it is claimed using verses 4:23-24 (quoted above) that men could not have sex with their female slaves unless they first married them. If true, a man would still have to free his slave in order to marry her, but if she knows that she will remain a slave if she declines, it is hardly a free choice.

In any case, the claim is false. Verses 23:1-6 and 70:29-30 (quoted above) unambiguously distinguish slaves from wives, and make clear that sexual relations are permitted with both. Verses 4:23-24 merely permit men to marry their slaves, but do not say that marriage is a necessary condition for intercourse with them. The hadith evidence quoted above also shows that captives were sometimes raped before being ransomed.

It is well established that a slave who is impregnated by her master to whom she is not married becomes an Umm Walad and remains a slave during his lifetime unless he frees her.

In the following hadith, Muhammad has no objections to a man who has intercourse with his slave-girl to whom he is not married:

Claims about verse 24:33

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

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.^[13]

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 kidnapped from their families and forced into slavery while not having 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? Practicalities aside, this verse only tells Muslims to let their slaves purchase their freedom (with the requirement of "if ye know any good in them").

The third sentence is what pertains to the Muslim claim that rape of slaves 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 it certainly does not say that a Muslim man cannot force himself on his own slave-girl.

See Also

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

External Links

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

References