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Rape in Islamic Law: Difference between revisions
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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 evidence requirement of four witnesses for applying a zina hadd penalty to the rapist in the absence of his confession. In some other modern courts where the hadd punishment for zina is applied to rapists, a woman risks being accused of slanderous accusation (qadhf) if she cannot prove her allegation of rape to that evidence standard<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> and the rapists go unpunished.<ref>{{Citation|url=https://www.dawn.com/news/1016271/a-license-to-rape|title=A license to rape|author=Murtaza Haider|publication-date=June 5, 2003|newspaper=Dawn}}</ref> Pregnancy is used as evidence of sex having occurred and women who report rape or sexual violence can be deemed to have confessed to unlawful sex (zina) and prosecuted for that instead.<ref>[https://www.hrw.org/news/2022/04/29/saudi-arabia-forthcoming-penal-code-should-protect-rights Saudi Arabia: Forthcoming Penal Code Should Protect Rights] - Human Rights Watch 29 April 2022</ref> Due to a number of high profile instances, the risk of being prosecuted for zina creates a strong disincentive for women to report rape in some Muslim countries today.<ref>{{cite web | title=Judged for more than her crime | website=deathpenaltyworldwide.org | date=September 2018 | url=https://www.deathpenaltyworldwide.org/wp-content/uploads/2019/12/Judged-More-Than-Her-Crime.pdf | access-date=28 December 2022}}</ref> | 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 evidence requirement of four witnesses for applying a zina hadd penalty to the rapist in the absence of his confession. In some other modern courts where the hadd punishment for zina is applied to rapists, a woman risks being accused of slanderous accusation (qadhf) if she cannot prove her allegation of rape to that evidence standard<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> and the rapists go unpunished.<ref>{{Citation|url=https://www.dawn.com/news/1016271/a-license-to-rape|title=A license to rape|author=Murtaza Haider|publication-date=June 5, 2003|newspaper=Dawn}}</ref> Pregnancy is used as evidence of sex having occurred and women who report rape or sexual violence can be deemed to have confessed to unlawful sex (zina) and prosecuted for that instead.<ref>[https://www.hrw.org/news/2022/04/29/saudi-arabia-forthcoming-penal-code-should-protect-rights Saudi Arabia: Forthcoming Penal Code Should Protect Rights] - Human Rights Watch 29 April 2022</ref> Due to a number of high profile instances, the risk of being prosecuted for zina creates a strong disincentive for women to report rape in some Muslim countries today.<ref>{{cite web | title=Judged for more than her crime | website=deathpenaltyworldwide.org | date=September 2018 | url=https://www.deathpenaltyworldwide.org/wp-content/uploads/2019/12/Judged-More-Than-Her-Crime.pdf | access-date=28 December 2022}}</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| | 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|newspaper=Huffington Post}} ([https://web.archive.org/web/20230224094334/https://www.huffpost.com/entry/islam-sex-slavery_b_8004824 archive])</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 ([https://web.archive.org/web/20210225213159/https://np.reddit.com/r/islam/comments/3h1abm/this_is_dr_jonathan_brown_professor_at_georgetown/cu3dkhd/ archive])</ref> | ||
==Rape in the Qur'an== | ==Rape in the Qur'an== | ||
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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 from Sunan Abu Dawud explains how, following a surprise attack on the Banu Mustaliq, Muhammad took captive the "very beautiful" Juwairiyah, making Aisha jealous. | ||
{{Quote|1= | {{Quote|1={{Abu Dawud|29|3920}}|2=Narrated Aisha, Ummul Mu'minin: Juwayriyyah, daughter of al-Harith ibn al-Mustaliq, fell to the lot of Thabit ibn Qays ibn Shammas, or to her cousin. She entered into an agreement to purchase her freedom. She was a very beautiful woman, most attractive to the eye. Aisha said: She then came to the Apostle of Allah (peace be upon him) asking him for the purchase of her freedom. When she was standing at the door, I looked at her with disapproval. I realised that the Apostle of Allah (peace be upon him) would look at her in the same way that I had looked. She said: Apostle of Allah, I am Juwayriyyah, daughter of al-Harith, and something has happened to me, which is not hidden from you. I have fallen to the lot of Thabit ibn Qays ibn Shammas, and I have entered into an agreement to purchase of my freedom. I have come to you to seek assistance for the purchase of my freedom. The Apostle of Allah (peace be upon him) said: Are you inclined to that which is better? She asked: What is that, Apostle of Allah? He replied: I shall pay the price of your freedom on your behalf, and I shall marry you. She said: I shall do this. She (Aisha) said: The people then heard that the Apostle of Allah (peace be upon him) had married Juwayriyyah. They released the captives in their possession and set them free, and said: They are the relatives of the Apostle of Allah (peace be upon him) by marriage. We did not see any woman greater than Juwayriyyah who brought blessings to her people. One hundred families of Banu al-Mustaliq were set free on account of her.}} | ||
A hadith in Sahih Bukhari confirms the same narrative. | A hadith in Sahih Bukhari confirms the same narrative. | ||