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Rape in Islamic Law: Difference between revisions
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{{cite web quotebox|url= http://islamqa.info/en/10382|title= Ruling on having intercourse with a slave woman when one has a wife|publisher= Islam Q&A, Fatwa No. 10382|author= |date= November 24, 2005|archiveurl= http://www.webcitation.org/query?url=http://www.islamqa.com/en/ref/10382&date=2012-01-17|deadurl=no}}|2=Islam allows a man to have intercourse with his slave woman, whether he has a wife or wives or he is not married...Whoever regards that as haraam is a sinner who is going against the consensus of the scholars. }} | |||
Rape, known in Islam as zina bi al-ikrah, is generally defined by Muslim jurists as forced intercourse by a man with a woman who is not his wife and without her consent. It is a crime punishable against the rapist with a [[w:hudud|hadd penalty]] - stoning (if he is a married person) or lashings (if he is unmarried) - just as he would receive for ordinary zina (unlawful intercourse). There is no punishment for the rape victim. Jurists disagree on whether the rapist must also pay a dowry as compensation to the victim. A controversial position of some modern jurists is that the hadd penalty for outlaws should apply to rapists (hadd [[w:Hirabah|Hirabah]]), described in {{Quran|5|33}}. Others say that rape can be treated by the judge as an offence that receives [[w:Tazir|Tazir]] (discretionary) punishment (as in Pakistan, for example). These approaches avoid the impractical four witnesses requirement for applying a zina hadd penalty when there is no confession.<ref>Dr Azman Mohd Noor, [http://irep.iium.edu.my/16877/1/PUNISHMENT_FOR_RAPE_IN_ISLAMIC_LAW.pdf Punishment for rape in Islamic Law], Malayan Law Journal Articles [2009] 5 MLJ cxiv</ref> | |||
A small number of hadiths are cited to support the Islamic punishments for rape, discussed below. These narrations relate to the rape of free women and of female slaves who are not owned by the perpetrator. However, we will see that the Qur'an permits Muslim men to have sexual relations with their own female slaves. Kecia Ali, Associate professor of religion, Boston University says regarding sex with slaves: | |||
{{Quote|1=Kecia Ali, [http://www.huffingtonpost.com/kecia-ali/islam-sex-slavery_b_8004824.html The Truth About Islam and Sex Slavery History Is More Complicated Than You Think]<ref>Kecia Ali, [http://www.huffingtonpost.com/kecia-ali/islam-sex-slavery_b_8004824.html The Truth About Islam and Sex Slavery History Is More Complicated Than You Think], Huffington Post, 2015</ref>|2=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.}} | |||
Dr. Jonathan Brown, Associate Professor and Chair of Islamic Civilization at Georgetown University (who is a Muslim convert) has made similar comments.<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</ref> Furthermore, there are narrations in which female captives were raped prior to being ransomed back to their tribe. | |||
==Definitions== | ==Definitions== | ||
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==Qur'an== | ==Qur'an== | ||
There is no equivalent term for ‘[[rape]]’ in the [[Qur'an]]. Likewise, there is not a single verse in the Qur'an which even remotely discourages forced sex. In contrast, there are several verses in this book which give the green light to rape and other sexual crimes against [[Islam and Women|women]]. | There is no equivalent term for ‘[[rape]]’ in the [[Qur'an]]. Likewise, there is not a single verse in the Qur'an which even remotely discourages forced sex. In contrast, there are several verses in this book which give the green light to rape and other sexual crimes against captured and enslaved [[Islam and Women|women]]. | ||
[[Surah]] [[The Holy Qur'an: An-Nisa (Women)|an-Nisa]] discusses lawful and forbidden women for pious Muslims. Before we delve into the particular verse, it should be noted that it is not easy to understand what is being suggested using the verse alone. Therefore, relying on authoritative [[Tafsir]]s (Qur'an interpretations) and [[Sahih]] (authentic) [[Hadith]]s associated with it, are necessary to get the exact picture. | [[Surah]] [[The Holy Qur'an: An-Nisa (Women)|an-Nisa]] discusses lawful and forbidden women for pious Muslims. Before we delve into the particular verse, it should be noted that it is not easy to understand what is being suggested using the verse alone. Therefore, relying on authoritative [[Tafsir]]s (Qur'an interpretations) and [[Sahih]] (authentic) [[Hadith]]s associated with it, are necessary to get the exact picture. | ||
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What we see in the beginning of this verse as “forbidden” refers to sexual intercourse. The Qur'an dictates, women already married are forbidden for Muslims except those whom their right hands possess (sex [[Slavery|slaves]]). | What we see in the beginning of this verse as “forbidden” refers to sexual intercourse. The Qur'an dictates, women already married are forbidden for Muslims except those whom their right hands possess (sex [[Slavery|slaves]]). | ||
====Context==== | ====Context in Hadiths - Rape of Married Female Captives==== | ||
It is important to know the context of this verse, as it sheds light onto the nature of allowance. If we go through a Sahih Hadith in Sunan Abu Dawud: | It is important to know the context of this verse, as it sheds light onto the nature of allowance. If we go through a Sahih Hadith in Sunan Abu Dawud: | ||
{{Quote|Abu Dawud | {{Quote|{{Abu Dawud||2155|darussalam}}| Abu Said al-Khudri said: "The apostle of Allah 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 the apostle of Allah were reluctant to have intercourse with the female captives because of their pagan husbands. So Allah, the Exalted, sent down the Quranic verse, "And all married women (are forbidden) unto you save those (captives) whom your right hands possess". That is to say, they are lawful for them when they complete their waiting period." [The Quran verse is 4:24]}} | ||
Here in the above hadith, we are told why verse 4:24 was revealed to [[Muhammad]]. It was to encourage his fighters, who were reluctant, to have sexual contacts with female captives even while their husbands were alive. This is made clear when we read: | |||
'''"Some of the Companions of the apostle of Allah were reluctant to have intercourse with the female captives because of their pagan husbands"''' | |||
The Abu Dawud hadith is confirmed in Sahih Muslim: | |||
{{Quote|{{Muslim|8|3432}}|Abu Sa'id al-Khudri reported that at the Battle of Hunain Allah's Messenger 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 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 (Quran 4:. 24)" (i. e. they were lawful for them when their 'Idda period came to an end).}} | |||
There is an entire chapter devoted to this in the Sahih Muslim collection. The title of the chapter speaks in volumes as we read: | |||
:''' | :'''Sahih Muslim - The Book of Suckling - 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>https://sunnah.com/muslim/17</ref> | ||
====Hadiths - Rape of Female Captives Before Ransoming Them==== | |||
On another occasion the only issue of concern for Muhammad's companions was whether the practice of coitus interruptus ('azl) was permissable while raping captive women. | |||
{{Quote|{{Bukhari|5|59|459}}|Narrated Ibn Muhairiz: I entered the Mosque and saw Abu Said Al-Khudri and sat beside him and asked him about Al-Azl (i.e. coitus interruptus). Abu Said said, "We went out with Allah's Apostle for the Ghazwa of Banu Al-Mustaliq and we received captives from among the Arab captives and we desired women and celibacy became hard on us and we loved to do coitus interruptus. So when we intended to do coitus interrupt us, we said, 'How can we do coitus interruptus before asking Allah's Apostle who is present among us?" We asked (him) about it and he said, 'It is better for you not to do so, for if any soul (till the Day of Resurrection) is predestined to exist, it will exist."}} | {{Quote|{{Bukhari|5|59|459}}|Narrated Ibn Muhairiz: I entered the Mosque and saw Abu Said Al-Khudri and sat beside him and asked him about Al-Azl (i.e. coitus interruptus). Abu Said said, "We went out with Allah's Apostle for the Ghazwa of Banu Al-Mustaliq and we received captives from among the Arab captives and we desired women and celibacy became hard on us and we loved to do coitus interruptus. So when we intended to do coitus interrupt us, we said, 'How can we do coitus interruptus before asking Allah's Apostle who is present among us?" We asked (him) about it and he said, 'It is better for you not to do so, for if any soul (till the Day of Resurrection) is predestined to exist, it will exist."}} | ||
A significant additional detail is found in the same hadith in Sahih Muslim. The raped women were planned to be ransomed back to their tribes later. This undermines the occasional, not to mention grotesque apologetic for such behaviour, which argues that the Muslims, by enslaving women whose husbands, fathers and brothers they had killed, were saving them from destitution. | |||
{{Quote|{{Muslim|8|3371}}|Abu Sirma said to Abu Sa'id al Khadri (Allah he pleased with him): | |||
O Abu Sa'id, did you hear Allah's Messenger (ﷺ) mentioning al-'azl? He said: Yes, and added: We went out with Allah's Messenger (ﷺ) on the expedition to the Bi'l-Mustaliq and took captive some excellent Arab women; and we desired them, for we were suffering from the absence of our wives, (but at the same time) '''we also desired ransom for them.''' So we decided to have sexual intercourse with them but by observing 'azl (Withdrawing the male sexual organ before emission of semen to avoid-conception). But we said: We are doing an act whereas Allah's Messenger is amongst us; why not ask him? So we asked Allah's Messenger (ﷺ), and he said: It does not matter if you do not do it, for every soul that is to be born up to the Day of Resurrection will be born.}} | |||
{{ | The same hadith including the ransom comment appears also in {{Muwatta|29||95}} and {{Abu Dawud||2167|Hasan}} (graded sahih). | ||
The story also appears in Sahih Bukhari, where it is even clearer that Muhammad understood exactly the intentions of his companions and his only concern was the method of intercourse: | |||
{{Quote|{{Bukhari|3|34|432}}|Narrated Abu Sa`id Al-Khudri: | |||
that while he was sitting with Allah's Messenger (ﷺ) he said, "O Allah's Messenger (ﷺ)! We get female captives as our share of booty, '''and we are interested in their prices''', what is your opinion about coitus interruptus?" The Prophet (ﷺ) said, "Do you really do that? It is better for you not to do it. No soul that which Allah has destined to exist, but will surely come into existence.}} | |||
====Tafsirs==== | |||
Ibn Kathir, the most prominent of all Qur'an interpreters, had this to say in regards to verse 4:24: | Ibn Kathir, the most prominent of all Qur'an interpreters, had this to say in regards to verse 4:24: | ||
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{{Quote|{{Quran|70|29-30}}|And those who guard their private parts, except in the case of their wives or those whom their right hands possess-- for these surely are not to be blamed,}} | {{Quote|{{Quran|70|29-30}}|And those who guard their private parts, except in the case of their wives or those whom their right hands possess-- for these surely are not to be blamed,}} | ||
==Muhammad== | ==Punishments for Rape== | ||
===Rape of Free Women=== | |||
The following hadith (graded Hasan by Dar-us-Salam) narrates Muhammad ordering the punishment by stoning of a confessed rapist who attacked a free woman. See also the Malik Muwatta hadith in the next section. | |||
{{Quote|{{al Tirmidhi|15|3|15|1454}}|Narrated 'Alqamah bin Wa'il Al-Kindi: | |||
From his father: "A women went out during the time of the Prophet (ﷺ) to go to Salat, but she was caught by a man and he had relations with her, so she screamed and he left. Then a man came across her and she said: 'That man has done this and that to me', then she came across a group of Emigrants (Muhajirin) and she said: 'That man did this and that to me.' They went to get the man she thought had relations with her, and they brought him to her. She said: 'Yes, that's him.' So they brought him to the Messenger of Allah (ﷺ), and when he ordered that he be stoned, the man who had relations with her, said: 'O Messenger of Allah, I am the one who had relations with her.' So he said to her: 'Go, for Allah has forgiven you.' Then he said some nice words to the man (who was brought). And he said to the man who had relations with her: 'Stone him.' Then he said: 'He has repented a repentance that, if the inhabitants of Al-Madinah had repented with, it would have been accepted from them.'" | |||
}} | |||
===Rape of Slaves (Owned by Another Person)=== | |||
The following hadiths concern slaves owned by someone other than the rapist, and reparations are due to the owner in the form of a replacement slave or the amount by which the slave's value has been depreciated. The authenticity of hadiths concerning this incident are graded da'if (weak) by al-Albani, while Dar-us-Salam grade them hasan (good). | |||
{{Quote|{{Al Nasai|26|4|26|3365}}|It was narrated that Salamah bin Al-Muhabbaq said: "The Prophet passed judgment concerning a man who had intercourse with his wife's slave woman: 'If he forced her, then she is free, and he has to give her mistress a similar slave as a replacement; if she obeyed him in that, then she belongs to him, and he has to give her mistress a similar slave as a replacement.'"}} | |||
The same hadith is found in {{Abudawud|38|4445}}. | |||
This practice of raping war captives was practiced by Islam’s very own prophet Muhammad, in his life. On two occasions, he married (for the sake of sexual gratification only) war captives and raped them. Those victims were namely [[Safiyah]] and [[Qur'an, Hadith and Scholars:Muhammads Wives and Concubines#Juwairiya|Juwairiyah]]. | In another version of the incident, the rapist of his wife's slave is to be punished by stoning. | ||
{{Quote|{{Al Nasai|26|4|26|3362}}|It was narrated from An-Nu'man bin Bashir that the Prophet said, concerning a man who had intercourse with his wife's slave woman: "If she let him do that, I will flog him with one hundred stripes , and if she did not let him, I will stone him (to death)."}} | |||
The same hadith in found in {{Abudawud|38|4444}}. | |||
Additionally, Malik in his Muwatta is reported as commenting: | |||
{{Quote|{{Muwatta|36||14}}|Malik related to me from Ibn Shihab that Abd al-Malik ibn Marwan gave a judgment that the rapist had to pay the raped woman her bride- price. Yahya said that he heard Malik say, "What is done in our community about the man who rapes a woman, virgin or non-virgin, if she is free, is that he must pay the bride-price of the like of her. If she is a slave, he must pay what he has diminished of her worth. The hadd-punishment in such cases is applied to the rapist, and there is no punishment applied to the raped woman. If the rapist is a slave, that is against his master unless he wishes to surrender him.}} | |||
The mention of paying the depreciation in her value implies that as with the other hadiths, this concerns only slaves owned by someone else rather than by the rapist. | |||
==Muhammad's Slave Women and Qur'an 30:50== | |||
This practice of raping war captives was practiced by Islam’s very own prophet Muhammad, in his life. On two occasions, he married (for the sake of sexual gratification only) war captives and raped them. Those victims were namely [[Safiyah]] and [[Qur'an, Hadith and Scholars:Muhammads Wives and Concubines#Juwairiya|Juwairiyah]]. | |||
In Qur'an verse 30:50, Muhammad has the green light to have sexual relations with those captive women who Allah has given him (as war booty, according to the tafsirs): | |||
{{Quote|{{Quran|30|50}}|O Prophet! Lo! We have made lawful unto thee thy wives unto whom thou hast paid their dowries, '''and those whom thy right hand possesseth of those whom Allah hath given thee''' as spoils of war, and the daughters of thine uncle on the father's side and the daughters of thine aunts on the father's side, and the daughters of thine uncle on the mother's side and the daughters of thine aunts on the mother's side who emigrated with thee, and a believing woman if she give herself unto the Prophet and the Prophet desire to ask her in marriage - a privilege for thee only, not for the (rest of) believers - We are Aware of that which We enjoined upon them concerning their wives and those whom their right hands possess - that thou mayst be free from blame, for Allah is ever Forgiving, Merciful.}} | |||
After this verse giving him Allah's blessing for the wide range of women he had married or had sex with, a couple of verses later Muhammad's remaining wives are given some relief that he will not marry again. However, sleeping with more slave women will carry on indefinitely: | |||
{{Quote|{{Quran|30|52}}|It is not allowed thee to take (other) women henceforth, nor that thou shouldst change them for other wives even though their beauty pleased thee, save those whom thy right hand possesseth. And Allah is ever Watcher over all things.}} | |||
===Safiyah=== | ===Safiyah=== | ||
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==Muslim Apologetics== | ==Muslim Apologetics== | ||
===Quotes from Shafi'i and Malik=== | |||
The following quote from a book by Imam al Shafi'i, the founder of the Shafi'i school of Islamic jurisprudence is claimed by some Islamic apologists to forbid slave owners from raping their female slaves: | |||
{{Quote|1=Imam Al Shaafi'i, Kitaabul Umm, Volume 3, page 253<ref name="call_to_monotheism">As quoted and translated on [http://www.call-to-monotheism.com/does_islam_permit_muslim_men_to_rape_their_slave_girls_ www.call_to_monotheism.com]</ref>|2="If a man acquires by force a slave-girl, then has sexual intercourse with her after he acquires her by force, and if he is not excused by ignorance, then the slave-girl will be taken from him, he is required to pay the fine, and he will receive the punishment for illegal sexual intercourse."}} | |||
Yet it is quite obvious that "acquires by force" refers to the manner in which the man gained possession of the slave girl, not a description of the sexual act later. There is a defined process in Islam called [[w:Khums|Khums]] for distributing booty (including captives) from wars and raids. Slaves could also later be bought and sold. So whether the man cheated on the Khums system, or simply took by force a slave from another Muslim, this did not make her lawful for him. | |||
Imam Malik, who founded the Maliki school of jurisprudence is also quoted by apologists regarding punishments for raping slaves. | |||
{{Quote|1=Imam Maalik, Al-Muwatta', Volume 2, page 734<ref name="call_to_monotheism"></ref>|2=In our view the man who rapes a woman, regardless of whether she is a virgin or not, if she is a free woman he must pay a "dowry" like that of her peers, and if she is a slave he must pay whatever has been detracted from her value. The punishment is to be carried out on the rapist and there is no punishment for the woman who has been raped, whatever the case.}} | |||
However, as demonstrated in the section above about punishments for raping slaves owned by someone else, the comment about payment shows that Malik is not refering to slaves owned by the perpetrator. | |||
===Hadith in which Umar punishes Dharah=== | |||
The following hadith (whose authenticity is in question due to the status of the narrator Harun bin al-Asam<ref name="call_to_monotheism"></ref>) is also claimed to show the Caliph Umar punishing Dharar for raping a captive woman. | |||
{{Quote|1=Sunan Al Bayhaqi, Volume 2, page 363, Hadith no. 18685<ref name="call_to_monotheism"></ref>|2= | |||
Abu al-Hussain bin al-Fadhl al-Qatan narrated from Abdullah bin Jaffar bin Darestweh from Yaqub bin Sufyan from al-Hassab bin Rabee from Abdullah bin al-Mubarak from Kahmas from Harun bin Al-Asam who said: Umar bin al-Khatab may Allah be pleased with him sent Khalid bin al-Walid in an army, hence Khalid sent Dharar bin al-Auwzwar in a squadron and they invaded a district belonging to the tribe of Bani Asad. They then captured a pretty bride, Dharar liked her hence he asked his companions to grant her to him and they did so. He then had sexual intercourse with her, when he completed his mission he felt guilty, and went to Khalid and told him about what he did. Khalid said: 'I permit you and made it lawful to you.' He said: 'No not until you write a message to Umar'. (Then they sent a message to Umar) and Umar answered that he (Dharar) should be stoned. By the time Umar's message was delivered, Dharar was dead. (Khalid) said: 'Allah didn't want to disgrace Dharar'}} | |||
As above, this is actually very likely referring to violation of the Khums system for distributing war booty, which is for the Imam or commander to distribute, including a fifth share for the Prophet (and after his death, for the Caliph). Clearly from the verses and hadiths in the rest of this article, captives owned in lawful ways were permissable for Muslim slave owners to sleep with in Islam. | |||
===Claims about verse 24:33=== | ===Claims about verse 24:33=== | ||
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The third sentence is what pertains to the Muslim claim that rape is forbidden. However, the word used is not simply sexual intercourse but is more specifically "prostitution" or "whoredom". Prostitution is not simply about sex, but sex for a price. This is why it is often referred to as one of the oldest professions. What this verse speaks of is a master forcing his maid to be a prostitute thereby making money by allowing other men to have sex with her. This verse says nothing about a master forcing himself upon his slave-girl who is considered "halal" for him according to [[Islamic law]]. The fourth sentence says that if a girl is indeed forced into prostitution, then Allah will forgive her for committing [[zina]]. What this verse does not say is what the punishment should be for a man who forces his maid into prostitution. All it says is that he should not do it. And what it definitely does not say is that a Muslim man cannot force himself on his own slave-girl. | The third sentence is what pertains to the Muslim claim that rape is forbidden. However, the word used is not simply sexual intercourse but is more specifically "prostitution" or "whoredom". Prostitution is not simply about sex, but sex for a price. This is why it is often referred to as one of the oldest professions. What this verse speaks of is a master forcing his maid to be a prostitute thereby making money by allowing other men to have sex with her. This verse says nothing about a master forcing himself upon his slave-girl who is considered "halal" for him according to [[Islamic law]]. The fourth sentence says that if a girl is indeed forced into prostitution, then Allah will forgive her for committing [[zina]]. What this verse does not say is what the punishment should be for a man who forces his maid into prostitution. All it says is that he should not do it. And what it definitely does not say is that a Muslim man cannot force himself on his own slave-girl. | ||
==Conclusion== | ==Conclusion== | ||
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==See Also== | ==See Also== | ||
{{Hub4|Rape|Rape}} | |||
*[[Adultery is Permitted in Islam]] | *[[Adultery is Permitted in Islam]] | ||
==External Links== | ==External Links== | ||
*{{external link|url= http://womanstats.wordpress.com/2013/01/16/the-high-rape-scale-in-saudi-arabia/|title= The High Rape-Scale in Saudi Arabia|publisher= WomanStats Project (blog)|author= |date= January 16, 2013|archiveurl= http://www.webcitation.org/query?url=http%3A%2F%2Fwomanstats.wordpress.com%2F2013%2F01%2F16%2Fthe-high-rape-scale-in-saudi-arabia%2F&date=2013-07-13|deadurl=no}} | |||
*[http://www.islam-watch.org/index.php?option=com_content&view=article&id=259:sexual-slavery-and-concubinage-in-islam&catid=111:fakhour&Itemid=58 Sexual Slavery and Concubinage in Islam] ''- [[Islam Watch]]'' | *[http://www.islam-watch.org/index.php?option=com_content&view=article&id=259:sexual-slavery-and-concubinage-in-islam&catid=111:fakhour&Itemid=58 Sexual Slavery and Concubinage in Islam] ''- [[Islam Watch]]'' | ||
==References== | ==References== | ||