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Rape in Islamic Law: Difference between revisions
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==Sex with female slaves and war captives in the Qur'an== | ==Sex with female slaves and war captives in the Qur'an== | ||
There is no equivalent term for | There is no equivalent term for ‘rape’ in the [[Qur'an]]. And while chastity is encouraged as a virtue, it is frequently commanded alongside the recurring exception "except from their wives or those their right hands possess", as set out below. There is no verse in the Qur'an which explicitly discourages forced or coercive sex, despite this being an obvious and virtually certain occurance when it permits sexual access to female captives. | ||
===Qur'an 23:1-6 & 70:29-30 - Believers should have sex only with their wives and slaves=== | ===Qur'an 23:1-6 & 70:29-30 - Believers should have sex only with their wives and slaves=== | ||
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{{Quote|{{Quran|23|1-6}}|Certainly will the believers have succeeded: They who are during their prayer humbly submissive And they who turn away from ill speech And they who are observant of zakah '''And they who guard their private parts Except from their wives or those their right hands possess''', for indeed, they will not be blamed}} | {{Quote|{{Quran|23|1-6}}|Certainly will the believers have succeeded: They who are during their prayer humbly submissive And they who turn away from ill speech And they who are observant of zakah '''And they who guard their private parts Except from their wives or those their right hands possess''', for indeed, they will not be blamed}} | ||
The instruction to "guard [one's] private parts" is the Qur'an's standard manner of commanding chastity. What one's "right hand possesses" is likewise the Qur'an's standard manner of referring to one's slaves. Successful believers are those who engage in sexual activities only with their wives and slaves. | The instruction to "guard [one's] private parts" is the Qur'an's standard manner of commanding chastity. What one's "right hand possesses" is likewise the Qur'an's standard manner of referring to one's slaves or war captives. Successful believers are those who engage in sexual activities only with their wives and slaves. | ||
The same idea recurs in surah 70: | The same idea recurs in surah 70: | ||
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===Qur'an 33:50 - Muhammad may have sex with his wives and captives from the war booty=== | ===Qur'an 33:50 - Muhammad may have sex with his wives and captives from the war booty=== | ||
Another verse sets out Muhammad's licit sexual access to his wives and captives from the war booty mentioned earlier in the surah, as well as any of his female first cousins and any believing woman who offers herself to him if he wishes to marry her | Another verse sets out Muhammad's licit sexual access to his wives and captives from the war booty (probably alluding to those mentioned earlier in the surah), as well as any of his female first cousins and any believing woman who offers herself to him if he wishes to marry her. The verse states that this is a special permission granted for Muhammad alone, though it is unclear which part of the verse comprises these exclusive rights. A common interpretation was that Muhammad is granted here exemption from the maximum limit of four wives. | ||
The words translated "what Allah has returned to you" (wamā [...] afāa l-lahu ʿalayka) | The words translated "what Allah has returned to you" (wamā [...] afāa l-lahu ʿalayka) mean Muhammad's share of the spoils of war, since the same language is mirrored in {{Quran-range|59|6|7}} with that meaning. Those verses twice mention "what Allah has returned to his messenger" (wamā afāa l-lahu ʿalā rasūlihi). | ||
{{Quote|{{Quran|33|50}}|'''O Prophet, indeed We have made lawful to you your wives to whom you have given their due compensation and those your right hand possesses from what Allah has returned to you [of captives]''' and the daughters of your paternal uncles and the daughters of your paternal aunts and the daughters of your maternal uncles and the daughters of your maternal aunts who emigrated with you and a believing woman if she gives herself to the Prophet [and] if the Prophet wishes to marry her, [this is] only for you, excluding the [other] believers. '''We certainly know what We have made obligatory upon them concerning their wives and those their right hands possess''', [but this is for you] in order that there will be upon you no discomfort. And ever is Allah Forgiving and Merciful.}} | {{Quote|{{Quran|33|50}}|'''O Prophet, indeed We have made lawful to you your wives to whom you have given their due compensation and those your right hand possesses from what Allah has returned to you [of captives]''' and the daughters of your paternal uncles and the daughters of your paternal aunts and the daughters of your maternal uncles and the daughters of your maternal aunts who emigrated with you and a believing woman if she gives herself to the Prophet [and] if the Prophet wishes to marry her, [this is] only for you, excluding the [other] believers. '''We certainly know what We have made obligatory upon them concerning their wives and those their right hands possess''', [but this is for you] in order that there will be upon you no discomfort. And ever is Allah Forgiving and Merciful.}} | ||
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Not lawful to you, [O Muhammad], are [any additional] women after [this], nor [is it] for you to exchange them for [other] wives, '''even if their beauty were to please you, except what your right hand possesses.''' And ever is Allah, over all things, an Observer.}} | Not lawful to you, [O Muhammad], are [any additional] women after [this], nor [is it] for you to exchange them for [other] wives, '''even if their beauty were to please you, except what your right hand possesses.''' And ever is Allah, over all things, an Observer.}} | ||
===Qur'an 4:24 - | ===Qur'an 4:24 - Permission to marry captive women who are already married=== | ||
[[Surah]] 4 is one of the surahs which discusses which women are lawful and forbidden to Muslim men. While the relevant verses in this surah, like much of the substantive content of the Qur'an, can border on the unintelligible in the absence of considerable context, the authoritative [[Tafsir]]s (Qur'an exegeses) and [[Sahih]] (authentic) [[Hadith]]s ([[Muhammad|prophetic]] narrations) associated with these verses have together worked to standardize the Islamic interpretive and legal tradition to some extent. Although the contents of the Qur'an are deemed theologically prior to the hadiths and especially the manmade tafsirs, independent and especially novel interpretations of the Qur'an that flaunt hadith and tafsir tradition are not accepted, particularly when such an interpretation results in a divergent meaning. | [[Surah]] 4 is one of the surahs which discusses which women are lawful and forbidden to Muslim men. While the relevant verses in this surah, like much of the substantive content of the Qur'an, can border on the unintelligible in the absence of considerable context, the authoritative [[Tafsir]]s (Qur'an exegeses) and [[Sahih]] (authentic) [[Hadith]]s ([[Muhammad|prophetic]] narrations) associated with these verses have together worked to standardize the Islamic interpretive and legal tradition to some extent. Although the contents of the Qur'an are deemed theologically prior to the hadiths and especially the manmade tafsirs, independent and especially novel interpretations of the Qur'an that flaunt hadith and tafsir tradition are not accepted, particularly when such an interpretation results in a divergent meaning. | ||
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This verse permits the believers to marry those whom their right hands possess (female [[Slavery|slaves]]) who already have husbands, so long as the dower is paid. Other verses set out in the previous section show that slave owners did not even have to marry their slaves in order to have intercourse with them (See also the section below on the common apologetic claim of [[Rape_in_Islamic_Law#Freedom_and_marriage_as_a_universal_requirement|Freedom and marriage as a universal requirement]]). | This verse permits the believers to marry those whom their right hands possess (female [[Slavery|slaves]]) who already have husbands, so long as the dower is paid. Other verses set out in the previous section show that slave owners did not even have to marry their slaves in order to have intercourse with them (See also the section below on the common apologetic claim of [[Rape_in_Islamic_Law#Freedom_and_marriage_as_a_universal_requirement|Freedom and marriage as a universal requirement]]). | ||
Sahih hadiths in the collections of Muslim and Abu Dawud | Sahih hadiths in the collections of Muslim and Abu Dawud give the traditional background story for the permission granted by this verse: some of Muhammad's fighters were reluctant to have sexual contact with female captives who were already married to the defeated men of the mushrikeen (those who associated partners with Allah). | ||
{{Quote|{{Abu Dawud||2155|darussalam}}|Abu Sa’id Al Khudri said “The Apostle of Allah(ﷺ) sent a military expedition to Awtas on the occasion of the battle of Hunain. They met their enemy and fought with them. They defeated them and took them captives. '''Some of the Companions of Apostle of Allah (ﷺ) were reluctant to have relations with the female captives because of their pagan husbands.''' So, Allah the exalted sent down the Qur’anic verse “And all married women (are forbidden) unto you save those (captives) whom your right hand posses.” This is to say that they are lawful for them when they complete their waiting period.}}The hadith in Sahih Muslim is found in a chapter dedicated to the topic; the chapter is entitled "Chapter: It is permissible to have intercourse with a female captive after it is established that she is not pregnant, and if she has a husband, then her marriage is annulled when she is captured".<ref>{{Citation|chapter=(9) Chapter: It is permissible to have intercourse with a female captive after it is established that she is not pregnant, and if she has a husband, then her marriage is annulled when she is captured|title=Sahih Muslim (Book of Suckling)|url=https://sunnah.com/muslim/17}} | {{Quote|{{Abu Dawud||2155|darussalam}}|Abu Sa’id Al Khudri said “The Apostle of Allah(ﷺ) sent a military expedition to Awtas on the occasion of the battle of Hunain. They met their enemy and fought with them. They defeated them and took them captives. '''Some of the Companions of Apostle of Allah (ﷺ) were reluctant to have relations with the female captives because of their pagan husbands.''' So, Allah the exalted sent down the Qur’anic verse “And all married women (are forbidden) unto you save those (captives) whom your right hand posses.” This is to say that they are lawful for them when they complete their waiting period.}} | ||
The hadith in Sahih Muslim is found in a chapter dedicated to the topic; the chapter is entitled "Chapter: It is permissible to have intercourse with a female captive after it is established that she is not pregnant, and '''if she has a husband, then her marriage is annulled when she is captured'''".<ref>{{Citation|chapter=(9) Chapter: It is permissible to have intercourse with a female captive after it is established that she is not pregnant, and if she has a husband, then her marriage is annulled when she is captured|title=Sahih Muslim (Book of Suckling)|url=https://sunnah.com/muslim/17}} | |||
See the three hadiths it contains: {{Muslim|8|3432|}}, {{Muslim|8|3433|}}, and {{Muslim|8|3434|}}</ref>{{Quote|{{Muslim|8|3432}}|Abu Sa'id al-Khudri (Allah her pleased with him) reported that at the Battle of Hanain Allah's Messenger (ﷺ) sent an army to Autas and encountered the enemy and fought with them. Having overcome them and taken them captives, the Companions of Allah's Messenger (may peace te upon him) seemed to refrain from having intercourse with captive women because of their husbands being polytheists. Then Allah, Most High, sent down regarding that: | See the three hadiths it contains: {{Muslim|8|3432|}}, {{Muslim|8|3433|}}, and {{Muslim|8|3434|}}</ref>{{Quote|{{Muslim|8|3432}}|Abu Sa'id al-Khudri (Allah her pleased with him) reported that at the Battle of Hanain Allah's Messenger (ﷺ) sent an army to Autas and encountered the enemy and fought with them. Having overcome them and taken them captives, the Companions of Allah's Messenger (may peace te upon him) seemed to refrain from having intercourse with captive women because of their husbands being polytheists. Then Allah, Most High, sent down regarding that: | ||
'''"And women already married, except those whom your right hands possess (iv. 24)"''' (i. e. they were lawful for them when their 'Idda [waiting] period came to an end).}}Ibn Kathir, the most prominent of all Qur'an interpreters, had this to say in regards to verse 4:24: | '''"And women already married, except those whom your right hands possess (iv. 24)"''' (i. e. they were lawful for them when their 'Idda [waiting] period came to an end).}} | ||
Ibn Kathir, the most prominent of all Qur'an interpreters, had this to say in regards to verse 4:24: | |||
{{Quote|1=[https://tafsir.app/ibn-katheer/4/24 Tafsir Ibn Kathir 4:24]|2=The Ayah means 'also [forbidden are] women already married, except those whom your right hands possess'. You are prohibited from marrying women who are already married, except those whom your right hands possess, except those whom you acquire through war, for you are allowed such women after making sure they are not pregnant [that is, upon the completion of the "iddah" waiting period]. Imam Ahmad recorded that Abu Sa`id Al-Khudri said, "We captured some women from the area of Awtas who were already married, and we disliked having sexual relations with them because they already had husbands. So, we asked the Prophet about this matter, and this Ayah (verse) was revealed, 'Also (forbidden are) women already married, except those whom your right hands possess'. Accordingly, we had sexual relations with these women. [literally: 'as a result of these verses, their (Infidels') wives have become lawful for us']" This is the wording collected by At-Tirmidhi An-Nasa'i, Ibn Jarir and Muslim in his Sahih.}} | {{Quote|1=[https://tafsir.app/ibn-katheer/4/24 Tafsir Ibn Kathir 4:24]|2=The Ayah means 'also [forbidden are] women already married, except those whom your right hands possess'. You are prohibited from marrying women who are already married, except those whom your right hands possess, except those whom you acquire through war, for you are allowed such women after making sure they are not pregnant [that is, upon the completion of the "iddah" waiting period]. Imam Ahmad recorded that Abu Sa`id Al-Khudri said, "We captured some women from the area of Awtas who were already married, and we disliked having sexual relations with them because they already had husbands. So, we asked the Prophet about this matter, and this Ayah (verse) was revealed, 'Also (forbidden are) women already married, except those whom your right hands possess'. Accordingly, we had sexual relations with these women. [literally: 'as a result of these verses, their (Infidels') wives have become lawful for us']" This is the wording collected by At-Tirmidhi An-Nasa'i, Ibn Jarir and Muslim in his Sahih.}} | ||
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{{Quote|1=[https://tafsir.app/jalalayn/4/24 Tafsir al-Jalalayn 4:24]|2=And, forbidden to you are, wedded women, those with spouses, that you should marry them before they have left their spouses, be they Muslim free women or not; save what your right hands own, of captured [slave] girls, whom you may have sexual intercourse with, even if they should have spouses among the enemy camp, but only after they have been absolved of the possibility of pregnancy [after the completion of one menstrual cycle]; this is what God has prescribed for you.}} | {{Quote|1=[https://tafsir.app/jalalayn/4/24 Tafsir al-Jalalayn 4:24]|2=And, forbidden to you are, wedded women, those with spouses, that you should marry them before they have left their spouses, be they Muslim free women or not; save what your right hands own, of captured [slave] girls, whom you may have sexual intercourse with, even if they should have spouses among the enemy camp, but only after they have been absolved of the possibility of pregnancy [after the completion of one menstrual cycle]; this is what God has prescribed for you.}} | ||
In Islamic law, if a slave woman was married her owner had no right of sexual access to her. Some early Muslim scholars held that slave marriages, which could occur between slaves or between a slave and a free person, were automatically dissolved when ownership was transferred because two men could not have licit access to the same woman | In Islamic law, if a slave woman was married her owner had no right of sexual access to her. Some early Muslim scholars held that slave marriages, which could occur between slaves or between a slave and a free person, were automatically dissolved when ownership was transferred because her new owner was buying sexual access to her but two men could not have licit access to the same woman. Later, a consensus emerged that the marriage and licit sexual access remained between the slave woman and her husband alone upon transfer of ownership, whatever his status.<ref>Kecia Ali, "Marriage and Slavery in Early Islam", Massachussets: Harvard University Press, 2010, pp. 154-159</ref> | ||
==Sex with female slaves and war captives in the hadiths== | ==Sex with female slaves and war captives in the hadiths== | ||
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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). | 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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In these narrations captive women were due to be ransomed back to their tribes. This undermines a common modern apologetic claim that enslavement and intercourse with captive women was permitted in order to save them from destitution after their men had been defeated in battle. | In these narrations captive women were due to be ransomed back to their tribes. This undermines a common modern apologetic claim that enslavement and intercourse with captive women was permitted in order to save them from destitution after their men had been defeated in battle. | ||
===Muhammad's men hesitate to rape married captives until a verse is sent down=== | |||
{{Quote|{{Muslim|8|3432}}|Abu Sa'id al-Khudri (Allah her pleased with him) reported that at the Battle of Hanain Allah's Messenger (ﷺ) sent an army to Autas and encountered the enemy and fought with them. Having overcome them and taken them captives, the Companions of Allah's Messenger (may peace te upon him) seemed to refrain from having intercourse with captive women because of their husbands being polytheists. Then Allah, Most High, sent down regarding that: | |||
'''"And women already married, except those whom your right hands possess (iv. 24)"''' (i. e. they were lawful for them when their 'Idda [waiting] period came to an end).}} | |||
For other narrations of this hadith see the section above on Quran 4:24. | |||
===Umar tells a man to beat his wife for preventing intercourse with his slave girl=== | ===Umar tells a man to beat his wife for preventing intercourse with his slave girl=== | ||