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Rape in Islamic Law: Difference between revisions
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{{QualityScore|Lead=4|Structure=4|Content=4|Language=4|References=4}}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. The consent of a slave for sex, for withdrawal before ejaculation ([[Qur'an, Hadith and Scholars:Al-'Azl|azl]]) or to marry her off to someone else was not considered necessary, historically.<ref name="Ali">{{Cite web|first=Kecia |last=Ali | publication-date=January 20, 2017 |url=https://www.cambridge.org/core/journals/international-journal-of-middle-east-studies/article/concubinage-and-consent/F8E807073C33F403A91C1ACA0CFA47FD | title=Concubinage and Consent|publisher=Cambridge University Press}}</ref> As with enslaved females, according to Islamic law, married women are required to oblige their husbands' sexual advances.<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> In the view of the Hanafi school of jurisprudence, a husband had legal entitlement to force his wife into intercourse if she did not so oblige and lacked certain legally allowed reasons such as menstruation or fasting, even though the jurists might consider it unethical in some circumstances, while non-Hanafis neither explicitly authorized nor penalized this.<ref>Kecia Ali (2016) "Sexual Ethics and Islam", Oneworld publications, ISBN: 978-1-78074-381-3 p. 12<BR /> | {{QualityScore|Lead=4|Structure=4|Content=4|Language=4|References=4}}Rape, known in [[Islamic law]] as ''zina bil-ikrah'' or ''zina bil-jabr'' (literally "[[Zina|fornication]] by force"), is a crime 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. The consent of a slave for sex, for withdrawal before ejaculation ([[Qur'an, Hadith and Scholars:Al-'Azl|azl]]) or to marry her off to someone else was not considered necessary, historically.<ref name="Ali">{{Cite web|first=Kecia |last=Ali | publication-date=January 20, 2017 |url=https://www.cambridge.org/core/journals/international-journal-of-middle-east-studies/article/concubinage-and-consent/F8E807073C33F403A91C1ACA0CFA47FD | title=Concubinage and Consent|publisher=Cambridge University Press}}</ref> As with enslaved females, according to Islamic law, married women are required to oblige their husbands' sexual advances.<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> In the view of the Hanafi school of jurisprudence, a husband had legal entitlement to force his wife into intercourse if she did not so oblige and lacked certain legally allowed reasons such as menstruation or fasting, even though the jurists might consider it unethical in some circumstances, while non-Hanafis neither explicitly authorized nor penalized this.<ref>Kecia Ali (2016) "Sexual Ethics and Islam", Oneworld publications, ISBN: 978-1-78074-381-3 p. 12<BR /> | ||
"The Hanafi view that husbands were entitled to have sex forcibly with their wives when the latter did not have a legitimate reason to refuse sex was not widely shared outside that school. Even the majority of Hanafi thinkers who accepted this doctrine recognized a distinction between forced intercourse and more usual sexual relations between spouses; although both were equally licit, sex by force might be unethical" | "The Hanafi view that husbands were entitled to have sex forcibly with their wives when the latter did not have a legitimate reason to refuse sex was not widely shared outside that school. Even the majority of Hanafi thinkers who accepted this doctrine recognized a distinction between forced intercourse and more usual sexual relations between spouses; although both were equally licit, sex by force might be unethical" | ||
<BR />And p. 120 "Non-Hanafis do not penalize a husband for forcing sex on his wife, but neither do they explicitly authorize it in the way that al-Khassaf does. For all, marital rape is an oxymoron; rape (ightisab) is a property crime that by definition cannot be committed by a husband." | <BR />And p. 120 "Non-Hanafis do not penalize a husband for forcing sex on his wife, but neither do they explicitly authorize it in the way that al-Khassaf does. For all, marital rape is an oxymoron; rape (ightisab) is a property crime that by definition cannot be committed by a husband." | ||
</ref><ref name="Ali" /> For jurists, the concept of "rape" is equally non-existent in the contexts of both marriage and slavery.<ref>{{Cite book|first=Asifa |last=Quraishi-Landesi |publication-date=15 April 2016 |url=https://books.google.co.in/books?id=QfkFDAAAQBAJ&redir_esc=y | title=Feminism, Law, and Religion|page=178|publisher=Routledge|ISBN=978-1-317-13579-1}}</ref><ref>{{Cite book|first=Hina |last=Azam |publication-date=26 June 2015 |url=https://books.google.co.in/books?id=fhy_CQAAQBAJ&pg=PA69&redir_esc=y#v=onepage&q&f=false | title=Sexual Violation in Islamic Law: Substance, Evidence, and Procedure|page=69|publisher=Cambridge University Press|ISBN=978-1-107-09424-6}}</ref><ref name="Ali" /> | </ref><ref name="Ali" /> For jurists, the concept of "rape" is equally non-existent in the contexts of both marriage and slavery.<ref>{{Cite book|first=Asifa |last=Quraishi-Landesi |publication-date=15 April 2016 |url=https://books.google.co.in/books?id=QfkFDAAAQBAJ&redir_esc=y | title=Feminism, Law, and Religion|page=178|publisher=Routledge|ISBN=978-1-317-13579-1}}</ref><ref>{{Cite book|first=Hina |last=Azam |publication-date=26 June 2015 |url=https://books.google.co.in/books?id=fhy_CQAAQBAJ&pg=PA69&redir_esc=y#v=onepage&q&f=false | title=Sexual Violation in Islamic Law: Substance, Evidence, and Procedure|page=69|publisher=Cambridge University Press|ISBN=978-1-107-09424-6}}</ref><ref name="Ali" /> | ||
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. As numerous passages of Islamic scripture and holy history extoll the taking of [[Kafir_(Infidel)|non-Muslim]]s as prisoners, many Islamic empires and countries have taken non-Muslims and kept them as slaves and sex slaves.<ref name="Slavery 2022">{{cite web | title=Slave past of Kafirs of India and toxic Hindu-Muslim History - Landsca | website=Satyaagrah | date=2022-04-11 | url=https://satyaagrah.com/religion/islam/596-slave-past-of-kafirs-of-india | access-date=2022-04-11}}</ref> | 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 hadith narrations in which female captives were raped prior to being ransomed back to their tribe. As numerous passages of Islamic scripture and holy history extoll the taking of [[Kafir_(Infidel)|non-Muslim]]s as prisoners, many Islamic empires and countries have taken non-Muslims and kept them as slaves and sex slaves.<ref name="Slavery 2022">{{cite web | title=Slave past of Kafirs of India and toxic Hindu-Muslim History - Landsca | website=Satyaagrah | date=2022-04-11 | url=https://satyaagrah.com/religion/islam/596-slave-past-of-kafirs-of-india | access-date=2022-04-11}}</ref> | ||
By the end of the formative period of Islamic law, there was a consensus that rape was to be categorised as a variant of [[Zina]] (fornication, or unlawful intercourse) in which the coerced woman is spared punishment and the male rapist is punished with the [[w:hadd|hadd]] penalty.<ref name="HinaAzam">Hina Azam [http://www.jstor.org/stable/23645194 RAPE AS A VARIANT OF FORNICATION (ZINĀ) IN ISLAMIC LAW: AN EXAMINATION OF THE EARLY LEGAL REPORTS], Journal of Law and Religion, vol. 28, no. 2, 2012, pp. 441–66</ref> This penalty is [[stoning|stoning to death]] (if he is [[Marriage|married]]) or lashings (if he is unmarried) - just as he would receive for ordinary zina. Four reliable muslim male witnesses (bayyinah) or a confession by the perpetrator are required in order to punish the rapist.<ref name="Al Hakam 2022">{{cite web | title=Rape in Islamic law: Establishing the crime and upholding the rights of the innocent | website=Al Hakam | date=23 January 2022 | url=https://www.alhakam.org/rape-in-islam/ | access-date=2 January 2023}}</ref><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> Jurists agreed that there is no punishment for the rape victim. Her word that she was raped is accepted if there is no named perpetrator. If she does name the alleged rapist but is unable to prove the allegation, the Maliki school held the woman liable to receive the hadd penalty of 80 lashes for slander (qadhf), though the judge may spare her this punishment if there is some circumstancial evidence in support of her allegation. Maliki jurists even held that a woman must be punished with the hadd penalty for fornication (zina) if she falls pregnant while unmarried even if she says she was raped, though she is spared punishment if there is evidence of coercion from her physical state or a witness heard her cry for help. In contrast, for the Hanafi school it was enough to avoid punishment if she simply says that she was raped. Hanafis stated that pregnancy of an unmarried woman is not proof of zina, pointing to the principle that hadd punishments are not applied if there is any doubt.<ref>Position paper by Karamah (Muslim Women Lawyers for Human Rights) [https://karamah.org/zina-rape-and-islamic-law-an-islamic-legal-analysis-of-the-rape-laws-in-pakistan/ Zina, Rape, and Islamic Law: An Islamic Legal Analysis of the Rape Laws in Pakistan](2011)</ref><ref>See the 2nd of the two hadiths here regarding Imam Malik's view: {{Muwatta|41||16}}</ref> | By the end of the formative period of Islamic law, there was a consensus that rape was to be categorised as a variant of [[Zina]] (fornication, or unlawful intercourse) in which the coerced woman is spared punishment and the male rapist is punished with the [[w:hadd|hadd]] penalty.<ref name="HinaAzam">Hina Azam [http://www.jstor.org/stable/23645194 RAPE AS A VARIANT OF FORNICATION (ZINĀ) IN ISLAMIC LAW: AN EXAMINATION OF THE EARLY LEGAL REPORTS], Journal of Law and Religion, vol. 28, no. 2, 2012, pp. 441–66</ref> This penalty is [[stoning|stoning to death]] (if he is [[Marriage|married]]) or lashings (if he is unmarried) - just as he would receive for ordinary zina. Four reliable muslim male witnesses (bayyinah) or a confession by the perpetrator are required in order to punish the rapist.<ref name="Al Hakam 2022">{{cite web | title=Rape in Islamic law: Establishing the crime and upholding the rights of the innocent | website=Al Hakam | date=23 January 2022 | url=https://www.alhakam.org/rape-in-islam/ | access-date=2 January 2023}}</ref><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> Jurists agreed that there is no punishment for the rape victim. Her word that she was raped is accepted if there is no named perpetrator. If she does name the alleged rapist but is unable to prove the allegation, the Maliki school held the woman liable to receive the hadd penalty of 80 lashes for slander (qadhf), though the judge may spare her this punishment if there is some circumstancial evidence in support of her allegation. Maliki jurists even held that a woman must be punished with the hadd penalty for fornication (zina) if she falls pregnant while unmarried even if she says she was raped, though she is spared punishment if there is evidence of coercion from her physical state or a witness heard her cry for help. In contrast, for the Hanafi school it was enough to avoid punishment if she simply says that she was raped. Hanafis stated that pregnancy of an unmarried woman is not proof of zina, pointing to the principle that hadd punishments are not applied if there is any doubt.<ref>Position paper by Karamah (Muslim Women Lawyers for Human Rights) [https://karamah.org/zina-rape-and-islamic-law-an-islamic-legal-analysis-of-the-rape-laws-in-pakistan/ Zina, Rape, and Islamic Law: An Islamic Legal Analysis of the Rape Laws in Pakistan](2011)</ref><ref>See the 2nd of the two hadiths here regarding Imam Malik's view: {{Muwatta|41||16}}</ref> | ||