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Rape in Islamic Law: Difference between revisions
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'''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.''' }} | '''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's and female captives == | ==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 [[Qur'an, Hadith and Scholars:Muhammads Wives and Concubines#Juwairiya|Juwairiyah]], presumably against their will (having just led the slaughter of their families and tribes). | On at least two occasions, according to accounts in sahih hadiths, Muhammad captured and cohabited with war captives [[Safiyah]] and [[Qur'an, Hadith and Scholars:Muhammads Wives and Concubines#Juwairiya|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 | Surah 33 twice gives Muhammad explicit and direct permission to have sexual contact with his existing [[Muhammad's Marriages|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. | ||
{{Quote|{{Quran-range|33|50|52}}|O Prophet! Lo! We have made lawful unto thee thy wives unto whom thou hast paid their dowries, '''and those whom thy right hand possesseth of those whom Allah hath given thee''' as spoils of war, and the daughters of thine uncle on the father's side and the daughters of thine aunts on the father's side, and the daughters of thine uncle on the mother's side and the daughters of thine aunts on the mother's side who emigrated with thee, and a believing woman if she give herself unto the Prophet and the Prophet desire to ask her in marriage - a privilege for thee only, not for the (rest of) believers - We are Aware of that which We enjoined upon them concerning their wives and those whom their right hands possess - that thou mayst be free from blame, for Allah is ever Forgiving, Merciful. Thou canst defer whom thou wilt of them and receive unto thee whom thou wilt, and whomsoever thou desirest of those whom thou hast set aside (temporarily), it is no sin for thee (to receive her again); that is better; that they may be comforted and not grieve, and may all be pleased with what thou givest them. Allah knoweth what is in your hearts (O men), and Allah is ever Forgiving, Clement. It is not allowed thee to take (other) women henceforth, nor that thou shouldst change them for other wives even though their beauty pleased thee, '''save those whom thy right hand possesseth'''. And Allah is ever Watcher over all things.}} | {{Quote|{{Quran-range|33|50|52}}|O Prophet! Lo! We have made lawful unto thee thy wives unto whom thou hast paid their dowries, '''and those whom thy right hand possesseth of those whom Allah hath given thee''' as spoils of war, and the daughters of thine uncle on the father's side and the daughters of thine aunts on the father's side, and the daughters of thine uncle on the mother's side and the daughters of thine aunts on the mother's side who emigrated with thee, and a believing woman if she give herself unto the Prophet and the Prophet desire to ask her in marriage - a privilege for thee only, not for the (rest of) believers - We are Aware of that which We enjoined upon them concerning their wives and those whom their right hands possess - that thou mayst be free from blame, for Allah is ever Forgiving, Merciful. Thou canst defer whom thou wilt of them and receive unto thee whom thou wilt, and whomsoever thou desirest of those whom thou hast set aside (temporarily), it is no sin for thee (to receive her again); that is better; that they may be comforted and not grieve, and may all be pleased with what thou givest them. Allah knoweth what is in your hearts (O men), and Allah is ever Forgiving, Clement. It is not allowed thee to take (other) women henceforth, nor that thou shouldst change them for other wives even though their beauty pleased thee, '''save those whom thy right hand possesseth'''. And Allah is ever Watcher over all things.}} | ||
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==Limitations on rape== | ==Limitations on rape== | ||
=== Avoiding severe physical injury === | ===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 [[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. | 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 [[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. | ||
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===Quotes from Shafi'i and Malik=== | ===Quotes from Shafi'i and Malik=== | ||
A quote from ''al-Umm'' of Imam al Shafi'i, the founder of the Shafi'i school of Islamic jurisprudence, is sometimes misrepresented<ref name=":0">{{Citation|archiveurl=https://web.archive.org/web/20201112021758/https://www.call-to-monotheism.com/does_islam_permit_muslim_men_to_rape_their_slave_girls_|url=https://www.call-to-monotheism.com/does_islam_permit_muslim_men_to_rape_their_slave_girls_|author=Bassam Zawadi|publisher=Call to Monotheism|chapter=Does Islam Permit Muslim Men to Rape Their Slave Girls?}}</ref> as forbidding slave owners from raping their female slaves. | |||
{{Quote|1= | {{Quote|1={{citation|author=al-Shafi'i|title=al-Umm|volume=3|page=253}}|2="If a man acquires by force a slave-girl, then has sexual intercourse with her after he acquires her by force, and if he is not excused by ignorance, then the slave-girl will be taken from him, he is required to pay the fine, and he will receive the punishment for illegal sexual intercourse."}} | ||
" | It is clear, however, that "acquires by force" here refers to the manner in which the man gained possession of the slave girl, not a description of the later sexual act. According to Islamic law, a fifth of all war and raid spoils (referred to as the ''Khum -'' literally "fifth"), including captives who may be sold for funds, is to be allotted for public spending. Taking and raping a captive from this public allotment, as [[Rape in Islamic Law#Ali rapes an underage ward of the state|Ali is reported to have in one instance]], amounts to theft and zina (illegal intercourse). This, as well as taking and raping someone else's slave, is of course prohibited and punishable. Indeed, in the remainder of his many-volume legal work ''al-Umm'', al-Shafi'i painstakingly outlines the laws regarding the sexual obligations of one's wives and slaves, in no place suggesting that rape of the female is punishable in these contexts. | ||
Imam Malik, | A quote from the ''Muwatta'' of Imam Malik, founder of the Maliki school of jurisprudence, is also sometimes misrepresented in this vein.<ref name=":0" /> As with the quote taken from ''al-Umm'', this quote from the ''Muwatta'' is likewise only referring to stolen slaves and has no bearing on one's own slaves and wives. And, just like Imam Shafi'i, Malik details the legal practices of slavery in several other places throughout the same text. | ||
{{Quote|1= | {{Quote|1={{Muwatta|36||1418}}|2=Malik related to me from Ibn Shihab that Abd al-Malik ibn Marwan gave a judgment that the rapist had to pay the raped woman her bride- price. Yahya said that he heard Malik say, "What is done in our community about the man who rapes a woman, virgin or non-virgin, if she is free, is that he must pay the bride-price of the like of her. If she is a slave, he must pay what he has diminished of her worth. The hadd-punishment in such cases is applied to the rapist, and there is no punishment applied to the raped woman. If the rapist is a slave, that is against his master unless he wishes to surrender him."}} | ||
===Hadith in which Umar punishes Dharah=== | ===Hadith in which Umar punishes Dharah=== | ||
The | The hadith with a weak narrator (Harun bin al-Asam)<ref name="call_to_monotheism"></ref> is also claimed to show the Caliph Umar punishing Dharar for raping a captive woman. | ||
{{Quote|1=Sunan Al Bayhaqi, Volume 2, page 363, Hadith no. 18685<ref name="call_to_monotheism"></ref>|2= | {{Quote|1=Sunan Al Bayhaqi, Volume 2, page 363, Hadith no. 18685<ref name="call_to_monotheism"></ref>|2= | ||