Rape in Islamic Law
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Islam Q&A, Fatwa No. 10382, November 24, 2005, http://islamqa.info/en/10382.
Rape, known in Islam as zina bi al-ikrah, is generally defined by Muslim jurists as forced intercourse by a man with a woman who is not his wife and without her consent. It is a crime punishable against the rapist with a hadd penalty - stoning (if he is a married person) or lashings (if he is unmarried) - just as he would receive for ordinary zina (unlawful intercourse). There is no punishment for the rape victim. 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 when there is no confession.[1]
A small number of hadiths are cited to support the Islamic punishments for rape, discussed below. These narrations relate to the rape of free women and of female slaves who are not owned by the perpetrator. However, we will see that the Qur'an permits Muslim men to have sexual relations with their own female slaves. Kecia Ali, Associate professor of religion, Boston University says regarding sex with slaves:
Dr. Jonathan Brown, Associate Professor and Chair of Islamic Civilization at Georgetown University (who is a Muslim convert) has made similar comments.[3][4] Furthermore, there are narrations in which female captives were raped prior to being ransomed back to their tribe.
As with enslaved females, according to Islamic law, married women are required to oblige their husbands sexual advances. The category of "rape" is thus deemed to be equally non-existent in the contexts of both marriage and slavery.
Definitions
Rape
noun
- the unlawful compelling of a person through physical force or duress to have sexual intercourse.
Rape
Dictionary.com
Duress
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.[5] 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.[6] 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.Wikipedia
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 the Qur'an which give the green light to rape and other sexual crimes against captured and enslaved women.
Surah an-Nisa discusses lawful and forbidden women for pious Muslims. It should be noted that it is not easy to understand what is being suggested using the verse alone. Authoritative Tafsirs (Qur'an interpretations) and Sahih (authentic) Hadiths associated with these verses are necessary to understand these verses as they have been understood in the Islamic tradition. Interpretations without tafsir or hadith precedent are generally not accepted, especially when they result in a divergent meaning.
Verse 4:24
The Qur'an dictates in this verse that women already married are forbidden for Muslims to marry except those whom their right hands possess (sex slaves). Other verses allow sexual intercourse with female slaves without marrying them first (see below).
Context in Hadiths - Rape of Married Female Captives
It is important to know the context of this verse, as it sheds light onto the nature of allowance. A Sahih Hadith in Sunan Abu Dawud:
This hadith explains why verse 4:24 was revealed to Muhammad. It was to encourage his fighters, who were reluctant, to have sexual contact with female captives even while their husbands were alive. This is made clear in the following quote:
"Some of the Companions of the apostle of Allah were reluctant to have intercourse with the female captives because of their pagan husbands"
The Abu Dawud hadith is confirmed in Sahih Muslim:
There is an entire chapter devoted to this in the Sahih Muslim collection. The title of the chapter is:
- Sahih Muslim - The Book of Suckling - 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[7]
Tafsirs
Ibn Kathir, the most prominent of all Qur'an interpreters, had this to say in regards to verse 4:24:
Tafsir Ibn Kathir
Similarly in Tafsir al-Jalalayn (Qur'an interpretation by two Jalals namely: Jalaluddin Mahalli and Jalaluddin Suyuti, both authorities):
Tafsir al-Jalalayn
The tafsir attributed to (though likely not directly from) Ibn Abbas, Muhammad's paternal cousin, further confirms:
Tafsir 'Ibn Abbas
Verses 23:1-6
There are other verses in the Qur'an similar to verse 4:24, but which mention sexual relations with slaves as a category distinct from wives, so it is clear that this is permitted without marrying the slave first. For example, Surah al-Mumenoon makes mention of successful Muslims and their characteristics:
Guarding private parts is denotative of abstaining from sexual activities. The Qur'an points out that 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:
Related Hadiths
Rape of Female Captives Before Ransoming Them
On another occasion the only issue of concern for Muhammad's companions was whether the practice of coitus interruptus ('azl) was permissible while raping captive women.
A significant additional detail is found in the same hadith in Sahih Muslim. The raped women were planned to be ransomed back to their tribes. Some modern apologists have suggested that theses Muslims, by enslaving women whose husbands, fathers and brothers they had killed, were being saved from destitution; this apologetic line is falsified by the following hadith:
The same hadith including the ransom comment appears also in Al-Muwatta 29:95 and Sunan Abu Dawud 2167 (Ahmad Hasan Ref) (graded sahih).
The story also appears in Sahih Bukhari, where it is even clearer that Muhammad understood exactly the intentions of his companions and his only concern was the method of intercourse:
Muhammad Approves of 'Ali Raping a Slave-Girl
This hadith concerns an incident which led up to the famous event of Ghadir Khumm, which is much disputed between Sunnis and Shias. Both agree that Muhammad received complaints about 'Ali taking a slave-girl from the Khums share of the booty (because the complainers believed he was not entitled to anything from that share). The Arabic of the Sunni hadith below mentions 'Ali taking a Ghusl bath, which implies sexual activity. Later, at a place called Ghabir Khumm, Muhammad tried to pacify those who hated 'Ali by declaring him to be his Mawla, which Shias interpret to mean the leader to succeed Muhammad after his death.
Muhammad Did not Consider Intercourse Between a Master and his Slave to be Zina (Adultery)
As noted in a later section below, punishments for rape applied only to a man who rapes a free women or a slave he does not own. Similarly, zina (fornication or adultery) only applied to intercourse with women in those two groups, but not to intercourse with a man's own slave women, according to Muhammad in this hadith graded Hasan by al-Albani:
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.
If he was a child of a slave-woman whom the father did not possess or of a free woman with whom he had illicit intercourse, he was not joined to the heirs and did not inherit even if the one to whom he was attributed is the one who claimed paternity, since he was a child of fornication whether his mother was free or a slave.Muhammad had Intercourse with his Slave
The following hadith refers a slave of Muhammad (Maria the Copt) who bore him a child. The phrase translated "slavegirl" is umm walad (أُمِّ وَلَدِ), literally meaning mother of the child and was 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:
Tafsir al\Jalalayn
An alternate, or additional circumstance for this verse has also been narrated in sahih hadiths:
The honey story sounds rather less plausible as an explanation for these verses than the slave sex version. Perhaps it is no coincidence that "honey" was a euphemism for sexual intercourse. See for example the following hadith:
Punishments for Rape
Rape of Free Women
The following hadith (graded Hasan by Dar-us-Salam) narrates Muhammad ordering the punishment by stoning of a confessed rapist who attacked a free woman. See also the Malik Muwatta hadith in the next section.
From his father: "A women went out during the time of the Prophet (ﷺ) to go to Salat, but she was caught by a man and he had relations with her, so she screamed and he left. Then a man came across her and she said: 'That man has done this and that to me', then she came across a group of Emigrants (Muhajirin) and she said: 'That man did this and that to me.' They went to get the man she thought had relations with her, and they brought him to her. She said: 'Yes, that's him.' So they brought him to the Messenger of Allah (ﷺ), and when he ordered that he be stoned, the man who had relations with her, said: 'O Messenger of Allah, I am the one who had relations with her.' So he said to her: 'Go, for Allah has forgiven you.' Then he said some nice words to the man (who was brought). And he said to the man who had relations with her: 'Stone him.' Then he said: 'He has repented a repentance that, if the inhabitants of Al-Madinah had repented with, it would have been accepted from them.'"
Rape of Slaves Owned by Another Person
The following hadiths concern slaves owned by someone other than the rapist, and reparations are due to the owner in the form of a replacement slave or the amount by which the slave's value has been depreciated. However, raping one's own slave is permitted. The authenticity of hadiths concerning this incident are graded da'if (weak) by al-Albani, while Dar-us-Salam grade them hasan (good).
The same hadith is found in Sunan Abu Dawud 38:4445.
In another version of the incident, the rapist of his wife's slave is to be punished by stoning.
The same hadith in found in Sunan Abu Dawud 38:4444.
Additionally, Malik in his Muwatta is reported as commenting:
The mention of paying the depreciation in her value implies that as with the other hadiths, this concerns only slaves owned by someone else rather than by the rapist.
Limitations on Rape of Slaves by their Masters
Muhammad Forbids Intercourse with Female Captives Until they have Completed their Iddah or Given Birth if Pregnant
The following hadith is graded Hasan by Dar-us-Salam:
Similarly in Sunan Abu Dawud, which in addition mentions the Iddah waiting period (to avoid doubts over paternity if the slave woman gives birth later). This hadith is graded Sahih by Dar-us-Salam:
Intercourse with Polytheist Slaves Forbidden by Scholars (Coercing Them to Islam Permitted)
While Muhammad's men seem to have had intercourse with captive polytheist women whom they had captured during the expedition to Awtas/Autas (see hadiths quoted above), most scholars ruled that this was later forbidden by Quran 2:221 (which 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.[8]
Early scholars of fiqh devised a workaround for this restriction, including to allow the rape of minors who were polytheist:
- if Zoroastrian and idolatrous women are taken prisoner, they are coerced into Islam; if they embrace it, sexual relations with them are permissible and they can (also) be used as maidservants. If they do not embrace Islam, they are used as maidservants but not for sexual relations (wa idhā subhīna (sic) al-majūsiyyāt wa ‘abadat al awthān ujbirna 'alā al-Islām fa-in asl ama wutiʼna ma 'stukhdimna wa in lam yuslimna 'stukhdimna wa lam yūtaʼna).
The contradiction inherent in this passage is evident: despite the unspecified coercive measures, some of the women in question refused conversion and, consequently, the masters could not take full advantage of their services. If the only way to embrace Islam is pronouncing the declaration of faith, the conversion of a defiant woman may not be possible: it is not always feasible to force someone to utter the shahāda. According to a tradition transmitted on the authority of Hasan al-Basri, the Muslims used various devices to attain their objective: they turned the Zorastrian slave-girl toward the Ka‘ba, ordered her to pronounce the shahāda and to perform ablution. Her master then engaged in sexual relations after she had one menstruating period while in his house. Others hold that the master must teach the slave-girl to pray, to purify herself and to shave her private parts before any intercourse. The participation of the girl in this procedure is minimal, and this wording may be interpreted us a considerable lowering of the conversion requirements so that the girl becomes eligible for sexual intercourse as expeditiously as possible. Among the early traditionists, only a few were willing to go beyond this and allow sexual relations with a Zoroastrian slave-girl without insisting on at least a semblance of conversion.
Shafi‘i's treatment of the issue is slightly different. Speaking of grown-up Zoroastrian or polytheist women taken into captivity, he maintains that no sexual relations with them are allowed before they embrace Islam without bringing up the question of converting them forcibly. If the female captives are minor but were taken captive with at least one of their parents, the ruling is the same. If, however, the girl was captured without her parents, or one of her parents embraced Islam, she is considered a Muslim and is coerced into embracing it (nahkumu lahā bihukm al-Islām wa nujbiruhā ‘alayhi). Once this happens, sexual relations with her are lawful.Muhammad's Slave Women and Qur'an 33:50
This practice of raping war captives was practiced by Muhammad, according to Islamic scriptures. On two occasions, he married and raped war captives Safiyah and Juwairiyah.
In Qur'an verse 33:50, Muhammad has the green light to have sexual relations with those captive women who Allah has given him (as war booty, according to the tafsirs):
A few verses later, Muhammad's remaining wives are told that he will not marry again. However, sleeping with more slave women will carry on:
Safiyah
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, he then took captive the Rabbi's wife. Sahih Hadith in Bukhari say:
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:
The following hadith from Sahih Bukhari is evidentiary to the above:
Muslim Apologetics
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[10]) 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.[11]
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.
Modern implementation
Saudi Arabia
A report by Human Rights Watch has concluded that a rape victim may be punished when they speak out against it in Saudi Arabia. In one case, the sentence of a victim was doubled for speaking out; and the court harassed the lawyer of the victim also, going so far as to cancel his professional licence.[12]
Pakistan
The continued enforcement of the discriminatory Zina Ordinance - by which the prohibited sexual activities, including rape (zina bil jabr), became religious offenses, subject to different standards of evidence and punishment and the appellate jurisdiction of Islamic higher courts but inconsistent rulings by the courts, and gender bias in the criminal justice system makes it extraordinarily difficult for rape victims to get justice and continues to leave them vulnerable to wrongful prosecution for adultery or fornication.[13][14]
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
- ↑ Dr Azman Mohd Noor, Punishment for rape in Islamic Law, Malayan Law Journal Articles [2009] 5 MLJ cxiv
- ↑ Kecia Ali, The Truth About Islam and Sex Slavery History Is More Complicated Than You Think, Huffington Post, 2015 Archive
- ↑ "In the case of a slave-concubine, consent was irrelevant because of the master's ownership of the woman in question" Brown, J.A.C. "Slavery & Islam", Chapter 7, London: Oneworld Publications, 2019
- ↑ "'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." Comment by Dr. Jonathan AC Brown on his Reddit AMA session, 2016 Archive
- ↑ Gaines, Larry; Miller, LeRoy (2006). Criminal Justice In Action: The Core. Thomson/Wadsworth. ISBN 0-495-00305-0.
- ↑ 1st Class Investigations Glossary
- ↑ https://sunnah.com/muslim/17
- ↑ Ruling on sexual intercourse with one's polytheistic slave-woman - IslamWeb.net Fawah 272452
- ↑ Friedmann, Y. "Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition (Cambridge Studies in Islamic Civilization)" Cambridge: Cambridge University Press, 2006, pp. 107-108
- ↑ 10.0 10.1 10.2 10.3 As quoted and translated on www.call_to_monotheism.com
- ↑ Ruling on having intercourse with a slave woman when one has a wife - Islam Q&A, Fatwa No. 10382, November 24, 2005
- ↑ "Saudi Arabia: Rape Victim Punished for Speaking Out", HRW, 2007, https://www.hrw.org/news/2007/11/15/saudi-arabia-rape-victim-punished-speaking-out/.
- ↑ Template:Cite encyclopedia
- ↑ "The State response to violence against Women", HRW, 1999.