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Rape in Islamic Law: Difference between revisions
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{{QualityScore|Lead=4|Structure=3|Content=4|Language=3|References=3}}Rape, known in [[Islamic law]] as ''zina bil-ikrah'' or ''zina bil-jabr'' (literally "[[Zina|fornication]] by force"), is 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. | {{QualityScore|Lead=4|Structure=3|Content=4|Language=3|References=3}}Rape, known in [[Islamic law]] as ''zina bil-ikrah'' or ''zina bil-jabr'' (literally "[[Zina|fornication]] by force"), is 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. As with enslaved females, according to Islamic law, married women are required to oblige their husbands sexual advances - raping one's wife is permissible.<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> 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 [[Marriage|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.<ref>{{Cite book|first=R. |last= Peters | year= 2012 | title=Encyclopaedia of Islam | edition= 2nd|publisher=Brill |editor=P. Bearman |editor2=Th. Bianquis |editor3=C.E. Bosworth |editor4=E. van Donzel |editor5=W.P. Heinrichs|chapter=Zinā or Zināʾ}}</ref><ref>{{Quran|24|4}}</ref> 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.<ref>Dr Azman Mohd Noor, [http://irep.iium.edu.my/16877/1/PUNISHMENT_FOR_RAPE_IN_ISLAMIC_LAW.pdf Punishment for rape in Islamic Law], Malayan Law Journal Articles [2009] 5 MLJ cxiv</ref> | The male rapist may be punished with a hadd penalty - [[stoning]] (if he is [[Marriage|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.<ref>{{Cite book|first=R. |last= Peters | year= 2012 | title=Encyclopaedia of Islam | edition= 2nd|publisher=Brill |editor=P. Bearman |editor2=Th. Bianquis |editor3=C.E. Bosworth |editor4=E. van Donzel |editor5=W.P. Heinrichs|chapter=Zinā or Zināʾ}}</ref><ref>{{Quran|24|4}}</ref> 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.<ref>Dr Azman Mohd Noor, [http://irep.iium.edu.my/16877/1/PUNISHMENT_FOR_RAPE_IN_ISLAMIC_LAW.pdf Punishment for rape in Islamic Law], Malayan Law Journal Articles [2009] 5 MLJ cxiv</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|archiveurl=http://www.webcitation.org/6yjfMCtwF|newspaper=Huffington Post}}</ref> Dr. Jonathan Brown, Associate Professor and Chair of Islamic Civilization at Georgetown University (also a Muslim convert) has made similar comments.<ref>"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</ref><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 [http://www.webcitation.org/6yjfiW2ch Archive]</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|archiveurl=http://www.webcitation.org/6yjfMCtwF|newspaper=Huffington Post}}</ref> Dr. Jonathan Brown, Associate Professor and Chair of Islamic Civilization at Georgetown University (also a Muslim convert) has made similar comments.<ref>"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</ref><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 [http://www.webcitation.org/6yjfiW2ch Archive]</ref> | |||
==Rape in the Qur'an== | ==Rape in the Qur'an== | ||
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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. | 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 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. | 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. | ||
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==Punishments for rape== | ==Punishments for rape== | ||
{{Quote|1= | 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 (Caliphate)|khilafah]]", or caliphate) persist, as exemplified in the following fatwa from the most popular Islamic [[Fatwas|fatwa]] in the world.{{Quote|1= | ||
{{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.”}} | |||
===Rape of Free Women=== | ===Rape of Free Women=== | ||
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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. | 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 | ==Limitations on rape== | ||
Do no harm | |||
===Muhammad Forbids Intercourse with Female Captives Until they have Completed their Iddah or Given Birth if Pregnant=== | ===Muhammad Forbids Intercourse with Female Captives Until they have Completed their Iddah or Given Birth if Pregnant=== | ||
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{{Quote|{{Bukhari|3|46|717}}|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.}} | {{Quote|{{Bukhari|3|46|717}}|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.}} | ||
==Modern perspectives and criticisms thereof== | ==Modern revisionary perspectives and criticisms thereof== | ||
===Quotes from Shafi'i and Malik=== | ===Quotes from Shafi'i and Malik=== | ||