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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 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 | {{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 exemptions 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." | ||
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force greatly diminishes when applied to the remainder of the pericope. The gravity of Q 66:5–6, which threatens divorce as a penalty for plotting against the Prophet, makes a poor match for the trifles of the honey story."<ref>Sean Anthony and Catherine Bronson (2016) "Did Ḥafṣah edit the Qurʾān? A response with notes on the codices of the Prophet's wives" Journal of the Interational Quranic Studies Association 1(2016) pp.93-125 (p.102)</ref> | force greatly diminishes when applied to the remainder of the pericope. The gravity of Q 66:5–6, which threatens divorce as a penalty for plotting against the Prophet, makes a poor match for the trifles of the honey story."<ref>Sean Anthony and Catherine Bronson (2016) "Did Ḥafṣah edit the Qurʾān? A response with notes on the codices of the Prophet's wives" Journal of the Interational Quranic Studies Association 1(2016) pp.93-125 (p.102)</ref> | ||
===Ali rapes | ===Ali rapes a captive girl alloted to the khumus (state share of war booty)=== | ||
Another relevant hadith is one which concerns an incident which led to the famous event of Ghadir Khumm, which is much disputed between Sunnis and Shias. Both Sunni and Shia sources agree that Muhammad received complaints about 'Ali taking a slave-girl from the ''Khums'' (the fifth of all booty allotted for the state<ref>{{Quran|8|41}}</ref>) to which those complaining felt that no private party was entitled. | Another relevant hadith is one which concerns an incident which led to the famous event of Ghadir Khumm, which is much disputed between Sunnis and Shias. Both Sunni and Shia sources agree that Muhammad received complaints about 'Ali taking a slave-girl from the ''Khums'' (the fifth of all booty allotted for the state<ref>{{Quran|8|41}}</ref>) to which those complaining felt that no private party was entitled. | ||
The Arabic of the Sunni hadith below mentions 'Ali taking a Ghusl bath (which is mandatory after sexual contact or ejaculation), implying sexual activity. Later, at a place called Ghadir Khumm, Muhammad tried to pacify those who were upset with 'Ali by declaring Ali to be his ''Mawla''. ''Mawla'' is an honorific meaning something between "follower", "ally", and "leader", which the Shia interpret to mean "successor of Muhammad". Thus, in some sense, Ali's having raped | The Arabic of the Sunni hadith below mentions 'Ali taking a Ghusl bath (which is mandatory after sexual contact or ejaculation), implying sexual activity. Later, at a place called Ghadir Khumm, Muhammad tried to pacify those who were upset with 'Ali by declaring Ali to be his ''Mawla''. ''Mawla'' is an honorific meaning something between "follower", "ally", and "leader", which the Shia interpret to mean "successor of Muhammad". Thus, in some sense, Ali's having raped a captive becomes the immediate cause of what the Shi'a insist was the the announcement of Ali's succession. The emergent Sunni polemic here casts some doubt on the historical reliability of the hadith, yet, as a hadith included in Sahih Bukhari, it more than meets the Sunni requirements for authenticity. | ||
{{Quote|{{Bukhari|5|59|637}}|Narrated Buraida: | {{Quote|{{Bukhari|5|59|637}}|Narrated Buraida: | ||
The Prophet (ﷺ) sent `Ali to Khalid to bring the Khumus (of the booty) and I hated `Ali, and '''`Ali had taken a bath (after a sexual act with a slave-girl from the Khumus)'''. I said to Khalid, "Don't you see this (i.e. `Ali)?" When we reached the Prophet (ﷺ) I mentioned that to him. He said, "O Buraida! Do you hate `Ali?" I said, "Yes." He said, "Do you hate him, for he deserves more than that from the Khumus."}}Ibn Hajar al-Asqalani (d. 1449), one of the most famous Hadith scholars of all time, points out in his seminal ''Fath al-Bari'' (the still-standard commentary on Sahih Bukhari) what several scholars before him noted: that in accounts of this event, Ali does not observe the required '' | The Prophet (ﷺ) sent `Ali to Khalid to bring the Khumus (of the booty) and I hated `Ali, and '''`Ali had taken a bath (after a sexual act with a slave-girl from the Khumus)'''. I said to Khalid, "Don't you see this (i.e. `Ali)?" When we reached the Prophet (ﷺ) I mentioned that to him. He said, "O Buraida! Do you hate `Ali?" I said, "Yes." He said, "Do you hate him, for he deserves more than that from the Khumus."}} | ||
Ibn Hajar al-Asqalani (d. 1449), one of the most famous Hadith scholars of all time, points out in his seminal ''Fath al-Bari'' (the still-standard commentary on Sahih Bukhari) what several scholars before him noted: that in accounts of this event, Ali does not observe the required ''istibra''' (waiting period) to determine whether or not the captive girl was pregnant. Al-Asqalani quotes al-Khattabi who summarizes the possibilities: "she was either a virgin [strongly implying a young age in a culture where women married young], had not yet reached maturity, or Ali's ''[[ijtihad]]'' [independent reasoning] led him to not adhere to the waiting period in her case."<ref>"لِاحْتِمَالِ أَنْ تَكُونَ عَذْرَاءَ أَوْ دُونَ الْبُلُوغِ أَوْ أَدَّاهُ اجْتِهَادُهُ أَنْ لَا اسْتِبْرَاءَ فِيهَا"<BR /> | |||
{{Citation|url=https://www.google.com/books/edition/%D9%81%D8%AA%D8%AD_%D8%A7%D9%84%D8%A8%D8%A7%D8%B1%D9%8A_%D8%AC_9_%D8%A7%D9%84%D9%85%D8%BA%D8%A7%D8%B2%D9%8A/YzZJCwAAQBAJ?hl=en&gbpv=1&bsq=%D9%84%D9%90%D8%A7%D8%AD%D9%92%D8%AA%D9%90%D9%85%D9%8E%D8%A7%D9%84%D9%90%20%D8%A3%D9%8E%D9%86%D9%92%20%D8%AA%D9%8E%D9%83%D9%8F%D9%88%D9%86%D9%8E%20%D8%B9%D9%8E%D8%B0%D9%92%D8%B1%D9%8E%D8%A7%D8%A1%D9%8E%20%D8%A3%D9%8E%D9%88%D9%92%20%D8%AF%D9%8F%D9%88%D9%86%D9%8E%20%D8%A7%D9%84%D9%92%D8%A8%D9%8F%D9%84%D9%8F%D9%88%D8%BA%D9%90%20%D8%A3%D9%8E%D9%88%D9%92%20%D8%A3%D9%8E%D8%AF%D9%91%D9%8E%D8%A7%D9%87%D9%8F%20%D8%A7%D8%AC%D9%92%D8%AA%D9%90%D9%87%D9%8E%D8%A7%D8%AF%D9%8F%D9%87%D9%8F%20%D8%A3%D9%8E%D9%86%D9%92%20%D9%84%D9%8E%D8%A7%20%D8%A7%D8%B3%D9%92%D8%AA%D9%90%D8%A8%D9%92%D8%B1%D9%8E%D8%A7%D8%A1%D9%8E%20%D9%81%D9%90%D9%8A%D9%87%D9%8E|title=Fath al-Bari|publisher=Dar Taybah|page=487|volume=9|author=Ibn Hajar al-Asqalani}} (see alternatively [https://archive.org/details/FP2021/08_2029/page/n66/mode/1up?view=theater Fath al-Bari 8/67 (archive.org)])</ref> | |||
The istibra' was the waiting period which had to be observed before commencing intercourse with a newly acquired slave-woman or girl in order to avoid doubts about paternity if she became pregnant. For an adult slave woman this waiting period was one menstral period. Scholars disagreed on the waiting period before sexual intercourse with slave girls too young to menstruate (either a waiting period of one month or three), as discussed in another section below. However, it is worth noting that Ibn Hajar states that "the practice of many Companions" was to not observe istibra' for virgin pre-pubescent girls. See [https://theislamissue.wordpress.com/2019/06/01/child-sex-slavery/ here] for a translation of Ibn Hajar's commentary on this hadith and some reports of this same view attributed to the generation after the companions ('Ikrima and Iyas b. Mu'awiyah). | |||
===Muhammad's companions rape captives intended for ransom=== | ===Muhammad's companions rape captives intended for ransom=== | ||
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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.}} | ||
== | ==Waiting period before sex with slave girls too young to menstruate== | ||
While it is relatively well known that [[Forced Marriage|forced marriage]] of [[Child Marriage in Islamic Law|children was permitted]] by all schools of Islamic Jurisprudence<ref>[[Child Marriage in Islamic Law|child marriage]] was not only permitted by all schools of Islamic law, but a father [[Forced Marriage|could even compell]] his pre-pubescent children or his female slaves to marry someone (he could even [[Slavery_in_Islamic_Law#In_Islamic_law|so compell his male slaves]] according to Malikis and some Hanafi scholars). Marriage could even be forced upon post-pubescent virgin daughters according to the Maliki and Shafi'i schools of jurisprudence. Follow the links for details of all these points. Child marriage and forced marriage are obvious contexts in which rape would occur.</ref> (illegal today in most modern Muslim-majority countries), less well known is that intercourse was also permitted with pre-pubescent slave girls. | While it is relatively well known that [[Forced Marriage|forced marriage]] of [[Child Marriage in Islamic Law|children was permitted]] by all schools of Islamic Jurisprudence and that some did not require puberty prior to marital consummation<ref>[[Child Marriage in Islamic Law|child marriage]] was not only permitted by all schools of Islamic law, but a father [[Forced Marriage|could even compell]] his pre-pubescent children or his female slaves to marry someone (he could even [[Slavery_in_Islamic_Law#In_Islamic_law|so compell his male slaves]] according to Malikis and some Hanafi scholars). Marriage could even be forced upon post-pubescent virgin daughters according to the Maliki and Shafi'i schools of jurisprudence. Follow the links for details of all these points. Child marriage and forced marriage are obvious contexts in which rape would occur.</ref> (all of which is illegal today in most modern Muslim-majority countries), less well known is that intercourse was also permitted with pre-pubescent slave girls. | ||
The istibra' was the period of time during which a man may not have sexual intercourse with a female slave that he has just | It is important to reiterate at this point that the majority of Islamic scholars today consider slavery to no longer be permissible in a modern context. Slavery was outlawed in Muslim majority countries around the world during the 19th and 20th centuries (though still persists illegally in a few places such as Mauritania). Modern muslims would generally be as appalled as anyone else to learn of these past practices. | ||
The istibra' was the period of time during which a man may not have sexual intercourse with a female slave that he has just acquired. This was intended to prevent doubts over a child's paternity in case a slave-girl falls pregnant shortly after being bought by a new master. | |||
[https://archive.org/details/FPmfkmfk/mfk03/page/n172/mode/1up?view=theater The Kuwait Encyclopedia of Fiqh, Volume 3, p. 174] summarises the opinions of the Sunni legal schools regarding the length of istibra' for non-menstruating slaves whether because they are either too young or too old. It says that Malikis gave opinions ranging from one month to three months. The Hanbali school said three months, while the Hanafi and Shafi'i schools said it is one month. | |||
The Risala was a famous treatise of Maliki fiqh (jurisprudence). It gives the istibra' for child slave-girls (who do not yet menstruate) as three months. For slaves who do menstruate, the istibra' is instead measured as one menstral period. | The Risala was a famous treatise of Maliki fiqh (jurisprudence). It gives the istibra' for child slave-girls (who do not yet menstruate) as three months. For slaves who do menstruate, the istibra' is instead measured as one menstral period. | ||
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Isḥāq said, “There is no harm in his kissing her and having sexual contact with her, because she is among those whom one need not fear having to return to her previous owner because of pregnancy.}} | Isḥāq said, “There is no harm in his kissing her and having sexual contact with her, because she is among those whom one need not fear having to return to her previous owner because of pregnancy.}} | ||
Shafi'i, founder of another major sunni legal school, said that the istibra' in this situation was one month (as mentioned above). See also the section below about polytheist slaves for his view that sex with polytheist child slaves becomes lawful only once the child has embraced Islam, which may be achieved by coercion in some circumstances. | |||
These views contrast with the statement by Ibn Hajar discussed in another section above, that "the practice of many Companions" was to not observe istibra' for virgin pre-pubescent girls. He may have had in mind narrations similar to some attributed to the tabi'un (2nd generation after the companions) which were collected by Ibn Abi Shaybah (d. 849 CE). A chapter of the Musannaf of Ibn Abi Shaybah records a number of relevant narrations including these from 'Ikrima and the renowned judge Iyas b. Mu'awiyah: | |||
{{Quote|1=[https://archive.org/details/waq110421/06_110426/page/n125/mode/1up?view=theater Musannaf Ibn Abi Shaybah 16906 and 16907] (for translation and further discussion see [https://theislamissue.wordpress.com/2019/06/01/child-sex-slavery/ here]|2=(16906) Waki <– Ali Bin Al-Mubarak <– Yahya Bin Abi Kathir <– Ikrimah: | |||
Regarding the man who buys a pre-pubescent slave girl, even one younger than that. He said: “There is nothing wrong with touching her before observing Istibra”<BR /> | |||
(16907) Zayd Bin Hubab <– Hammad Bin Salamah <– Iyas Bin Muawiyah: | |||
Regarding a man who brought a pre-pubescent slave girl, do not those like her have sexual intercourse? He said: “there is nothing wrong with performing the sexual act upon her without observing istibra”}} | |||
Screenshots of the sources used in this section are also available [https://web.archive.org/web/20220125095756/https://www.reddit.com/r/exmuslim/comments/sca71q/evidence_pedophilia_and_forced_marriages_in_islam/ here (archive)]. | |||
==Punishments for rape== | ==Punishments for rape== | ||