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Rape in Islamic Law: Difference between revisions
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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. | 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. | ||
The ''Distinguished Jurist's Primer'' by Ibn Rushd 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 states that Malik and most jurists of Medina set the waiting period for slave girls who were minors as three months, while Shafi'i and Abu Hanifah set it at one and a half months.<ref>Ibn Rushd (transl. Imran Ahsan Khan Nyazee) [https://archive.org/details/BidayatAl-mujtahidTheDistinguishedJuristsPrimerVol2/page/n115/mode/2up ''Distinguished Jurist's Primer''] Volume II, pp. 112-113</ref> | |||
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 | Shafi'i, founder of another major sunni legal school, said that the istibra' in this situation was one and a half months (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: | 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: | ||