Rape in Islamic Law: Difference between revisions

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"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" /> Today, many Muslim-majority countries criminalise marital rape or offer other legal protections, though others (mainly in the Arab world) do not do so, often explicitly, as also in some non-Muslim countries.<ref>As of the early 2020s, marital rape is not recognised as a crime in many Muslim-majority countries, nor in India, China, Myanmar, much of the Caribbean, and much of sub-Saharan Africa, though is illegal in Indonesia, Turkey, the Balkans, most of central Asia, and much of west Africa. See the detailed information in the Wikipedia article [[w:Marital rape laws by country|Marital rape laws by country]], though note that in some cases the colour-coded map is inaccurate. A lack of legal protection in some countries and / or attitudes which refuse to accept the concept of marital rape exacerbates the predicament of millions of women suffering [[Forced Marriage]] in certain regions of the world.</ref>
</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" /> Today, many Muslim-majority countries have made marital rape illegal or offer other legal protections, though others (mainly in the Arab world) do not do so, often explicitly, as also some non-Muslim countries.<ref>As of the early 2020s, marital rape is not recognised as a crime in many Muslim-majority countries, nor in India, China, Myanmar, much of the Caribbean, and much of sub-Saharan Africa, though is illegal in Indonesia, Turkey, the Balkans, most of central Asia, and much of west Africa. See the detailed information in the Wikipedia article [[w:Marital rape laws by country|Marital rape laws by country]], though note that in some cases the colour-coded map is inaccurate. A lack of legal protection in some countries and / or attitudes which refuse to accept the concept of marital rape exacerbates the predicament of millions of women suffering [[Forced Marriage]] in certain regions of the world.</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 hands possess"), often in conjunction with the commandment for men to keep otherwise chaste. In addition, there are hadith narrations in which female war 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> It is important to note at this point that slavery was legally abolished in majority Muslim countries around the world in the 19th and 20th centuries (though persists illegally in a few places such as Mauritania<ref name="Mauritania" />). It is also now considered forbidden in the modern context by most scholars, though a minority, such as Saudi Sheikh Saleh Al-Fawzan, argue that slavery remains Islamically legitimate.  
A small number of hadiths were cited by scholars 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 hands possess"), often in conjunction with the commandment for men to keep otherwise chaste. In addition, there are hadith narrations of an incident in which Muhammad's companions were permitted to have sex with female war captives prior to them 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> It is important to note at this point that slavery was legally abolished in majority Muslim countries around the world in the 19th and 20th centuries (though persists illegally in a few places such as Mauritania<ref name="Mauritania" />). It is also now considered forbidden in the modern context by most scholars, though a minority, such as Saudi Sheikh Saleh Al-Fawzan, argue that slavery remains Islamically legitimate.  


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>
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>
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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 ‘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.
There is no equivalent term for ‘rape’ in the [[Qur'an]], although {{Quran|4|19}} forbids believing men to inherit wives by compulsion. Nevertheless, 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 slaves or 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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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 - Permission to marry captive women who are already married===
===Qur'an 4:24 - Permission to marry slave women, even if they 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.  
{{Quran-range|4|22|25}} is a passage listing the women who believing men are forbidden to marry, such as their sisters or nieces. Verse 24 states that also forbidden are "married women except those your right hands possess" (i.e. slaves or captives).


{{Quote|{{Quran-range|4|23|24}}|Prohibited to you (For marriage) are:- Your mothers, daughters, sisters; father's sisters, Mother's sisters; brother's daughters, sister's daughters; foster-mothers (Who gave you suck), foster-sisters; your wives' mothers; your step-daughters under your guardianship, born of your wives to whom ye have gone in,- no prohibition if ye have not gone in;- (Those who have been) wives of your sons proceeding from your loins; and two sisters in wedlock at one and the same time, except for what is past; for Allah is Oft-forgiving, Most Merciful;-'''Also (prohibited are) women already married, except those whom your right hands possess''': Thus hath Allah ordained (Prohibitions) against you: Except for these, all others are lawful, provided ye seek (them in marriage) with gifts from your property,- desiring chastity, not lust, seeing that ye derive benefit from them, give them their dowers (at least) as prescribed; but if, after a dower is prescribed, agree Mutually (to vary it), there is no blame on you, and Allah is All-knowing, All-wise.}}
{{Quote|{{Quran-range|4|23|24}}|Prohibited to you (For marriage) are:- Your mothers, daughters, sisters; father's sisters, Mother's sisters; brother's daughters, sister's daughters; foster-mothers (Who gave you suck), foster-sisters; your wives' mothers; your step-daughters under your guardianship, born of your wives to whom ye have gone in,- no prohibition if ye have not gone in;- (Those who have been) wives of your sons proceeding from your loins; and two sisters in wedlock at one and the same time, except for what is past; for Allah is Oft-forgiving, Most Merciful;-'''Also (prohibited are) women already married, except those whom your right hands possess''': Thus hath Allah ordained (Prohibitions) against you: Except for these, all others are lawful, provided ye seek (them in marriage) with gifts from your property,- desiring chastity, not lust, seeing that ye derive benefit from them, give them their dowers (at least) as prescribed; but if, after a dower is prescribed, agree Mutually (to vary it), there is no blame on you, and Allah is All-knowing, All-wise.}}
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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 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).
The next verse tells any believer who cannot afford to marry a free believing woman to instead marry "from those whom your right hands possess of believing slave girls". This was understood to mean marrying a believing slave girl owned by someone else (which makes sense as it switches to the plural "right hands possess", and a slave owner by definition would not be too poor to marry a free woman). In Islamic law, she would remain a slave after the marriage, but her owner would no longer have the right of sexual access to her, which transfers to her husband alone. The owner had the right to marry off his female slave without her consent, and would own any children produced by the marriage. If the owner himself wished to marry his own slave, he had to free her first. For details see [[Slavery in Islamic Law]].
 
{{Quote|{{Quran|4|25}}|And whoever among you cannot [find] the means to marry free, believing women, '''then [he may marry] from those whom your right hands possess of believing slave girls'''. And Allah is most knowing about your faith. You [believers] are of one another. So marry them with the permission of their people and give them their due compensation according to what is acceptable. [They should be] chaste, neither [of] those who commit unlawful intercourse randomly nor those who take [secret] lovers. But once they are sheltered in marriage, if they should commit adultery, then for them is half the punishment for free [unmarried] women. This [allowance] is for him among you who fears sin, but to be patient is better for you. And Allah is Forgiving and Merciful.}}
 
The verse states that permission is to be sought from her people, though acceptance would inevitably be a choice not free from coercion, given that the alternative was for her owner to retain the right of sexual intercourse with her, granted elsewhere in the Quran. Perhaps in recognition of the potentially coercive nature of such an arrangement, the same verse halves the punishment she would face for certain conduct during the marriage (traditionally interpreted as adultery).
 
Sahih hadiths in the collections of Muslim and Abu Dawud give the traditional background story for the permission granted by the previous verse ({{Quran|4|24}}): 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.}}
{{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.}}
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