Rape in Islamic Law: Difference between revisions

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.

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.

====Weak hadith regarding the caliph Umar====

A hadith in the Sunan of al-Bayhaqi transmitted by a weak narrator (Harun bin al-Asam) describes the Caliph Umar punishing Dharar for raping a captive woman and is sometimes presented as evidence that one is not permitted to have sexual intercourse with slaves.<ref name=":0" />

Abu al-Hussain bin al-Fadhl al-Qatan narrated from Abdullah bin Jaffar bin Darestweh from Yaqub bin Sufyan from al-Hassab bin Rabee from Abdullah bin al-Mubarak from Kahmas from Harun bin Al-Asam who said: Umar bin al-Khatab may Allah be pleased with him sent Khalid bin al-Walid in an army, hence Khalid sent Dharar bin al-Auwzwar in a squadron and they invaded a district belonging to the tribe of Bani Asad. They then captured a pretty bride, Dharar liked her hence he asked his companions to grant her to him and they did so. He then had sexual intercourse with her, when he completed his mission he felt guilty, and went to Khalid and told him about what he did. Khalid said: 'I permit you and made it lawful to you.' He said: 'No not until you write a message to Umar'. (Then they sent a message to Umar) and Umar answered that he (Dharar) should be stoned. By the time Umar's message was delivered, Dharar was dead. (Khalid) said: 'Allah didn't want to disgrace Dharar'}}

As with the quotes taken from Imam Shafi'i and Imam Malik, this is almost certainly refers to a violation of the system for distributing war spoils. Dharar's intercourse with the captive was ilegal and merited stoning not because he failed to get the consent of the girl he raped, but because he had intercourse with the girl without that girl having been allotted to him at the behest of the caliph (Umar in this case), who has the responsibility of distributing spoils. Consent was not a factor here.