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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" /> | </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 | 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, while various other hadiths mention the sexual intercourse which slave owners (including Muhammad) had with their slaves. Many Islamic empires and countries in the past have taken non-Muslims 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 , however, 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> | ||
Typically, apologetic approaches to the issue of slaves and concubines propose that the women mentioned in the Quran and hadiths consented to intercourse with their captors and to their enslavement lest they be left destitute. Critics generally argue that this is highly improbable, point out a hadith in which raped captives were due to be ransomed back to their tribe, and in any case would be incompatible with the modern understanding of consent which could not validly be given in captive circumstances. Some Islamic modernist scholars question the authenticity of the relevant hadiths altogether, in line with their general skepticism towards the hadith corpus and rejection of traditional jurisprudence, and attempt alternative interpretations of the Quranic verses. | Typically, apologetic approaches to the issue of slaves and concubines propose that the women mentioned in the Quran and hadiths consented to intercourse with their captors and to their enslavement lest they be left destitute since their men had been killed. Critics generally argue that this is highly improbable, point out a hadith in which raped captives were due to be ransomed back to their tribe, and in any case would be incompatible with the modern understanding of consent which could not validly be given in captive circumstances. Some Islamic modernist scholars question the authenticity of the relevant hadiths altogether, in line with their general skepticism towards the hadith corpus and rejection of traditional jurisprudence, and attempt alternative interpretations of the Quranic verses. | ||
==Punishments for rape in Islamic Law and its application in modern contexts== | ==Punishments for rape in Islamic Law and its application in modern contexts== | ||
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By the end of the formative period of Islamic law, there was a consensus that rape was to be categorised as a variant of [[Zina]] (fornication, or unlawful intercourse) in which the coerced woman is spared punishment and the male rapist is punished with the [[w:hadd|hadd]] penalty.<ref name="HinaAzam">Hina Azam [http://www.jstor.org/stable/23645194 RAPE AS A VARIANT OF FORNICATION (ZINĀ) IN ISLAMIC LAW: AN EXAMINATION OF THE EARLY LEGAL REPORTS], Journal of Law and Religion, vol. 28, no. 2, 2012, pp. 441–66</ref> This penalty is [[stoning|stoning to death]] (if he is [[Marriage|married]]) or lashings (if he is unmarried) - just as he would receive for ordinary zina. Four reliable muslim male witnesses (bayyinah) or a confession by the perpetrator are required in order to punish the rapist.<ref name="Al Hakam 2022">{{cite web | title=Rape in Islamic law: Establishing the crime and upholding the rights of the innocent | website=Al Hakam | date=23 January 2022 | url=https://www.alhakam.org/rape-in-islam/ | access-date=2 January 2023}}</ref><ref>{{Cite book|first=R. |last= Peters | year= 2012 | title=Encyclopaedia of Islam | edition= 2nd|publisher=Brill |editor=P. Bearman |editor2=Th. Bianquis |editor3=C.E. Bosworth |editor4=E. van Donzel |editor5=W.P. Heinrichs|chapter=Zinā or Zināʾ}}</ref> Jurists agreed that there is no punishment for the rape victim. Her word that she was raped is accepted if there is no named perpetrator. If she does name the alleged rapist but is unable to prove the allegation, the Maliki school held the woman liable to receive the hadd penalty of 80 lashes for slander (qadhf), though the judge may spare her this punishment if there is some circumstancial evidence in support of her allegation. Maliki jurists even held that a woman must be punished with the hadd penalty for fornication (zina) if she falls pregnant while unmarried even if she says she was raped, though she is spared punishment if there is evidence of coercion from her physical state or a witness heard her cry for help. In contrast, for the Hanafi school it was enough to avoid punishment if she simply says that she was raped. Hanafis stated that pregnancy of an unmarried woman is not proof of zina, pointing to the principle that hadd punishments are not applied if there is any doubt.<ref>Position paper by Karamah (Muslim Women Lawyers for Human Rights) [https://karamah.org/zina-rape-and-islamic-law-an-islamic-legal-analysis-of-the-rape-laws-in-pakistan/ Zina, Rape, and Islamic Law: An Islamic Legal Analysis of the Rape Laws in Pakistan](2011)</ref><ref>See the 2nd of the two hadiths here regarding Imam Malik's view: {{Muwatta|41||16}}</ref> | By the end of the formative period of Islamic law, there was a consensus that rape was to be categorised as a variant of [[Zina]] (fornication, or unlawful intercourse) in which the coerced woman is spared punishment and the male rapist is punished with the [[w:hadd|hadd]] penalty.<ref name="HinaAzam">Hina Azam [http://www.jstor.org/stable/23645194 RAPE AS A VARIANT OF FORNICATION (ZINĀ) IN ISLAMIC LAW: AN EXAMINATION OF THE EARLY LEGAL REPORTS], Journal of Law and Religion, vol. 28, no. 2, 2012, pp. 441–66</ref> This penalty is [[stoning|stoning to death]] (if he is [[Marriage|married]]) or lashings (if he is unmarried) - just as he would receive for ordinary zina. Four reliable muslim male witnesses (bayyinah) or a confession by the perpetrator are required in order to punish the rapist.<ref name="Al Hakam 2022">{{cite web | title=Rape in Islamic law: Establishing the crime and upholding the rights of the innocent | website=Al Hakam | date=23 January 2022 | url=https://www.alhakam.org/rape-in-islam/ | access-date=2 January 2023}}</ref><ref>{{Cite book|first=R. |last= Peters | year= 2012 | title=Encyclopaedia of Islam | edition= 2nd|publisher=Brill |editor=P. Bearman |editor2=Th. Bianquis |editor3=C.E. Bosworth |editor4=E. van Donzel |editor5=W.P. Heinrichs|chapter=Zinā or Zināʾ}}</ref> Jurists agreed that there is no punishment for the rape victim. Her word that she was raped is accepted if there is no named perpetrator. If she does name the alleged rapist but is unable to prove the allegation, the Maliki school held the woman liable to receive the hadd penalty of 80 lashes for slander (qadhf), though the judge may spare her this punishment if there is some circumstancial evidence in support of her allegation. Maliki jurists even held that a woman must be punished with the hadd penalty for fornication (zina) if she falls pregnant while unmarried even if she says she was raped, though she is spared punishment if there is evidence of coercion from her physical state or a witness heard her cry for help. In contrast, for the Hanafi school it was enough to avoid punishment if she simply says that she was raped. Hanafis stated that pregnancy of an unmarried woman is not proof of zina, pointing to the principle that hadd punishments are not applied if there is any doubt.<ref>Position paper by Karamah (Muslim Women Lawyers for Human Rights) [https://karamah.org/zina-rape-and-islamic-law-an-islamic-legal-analysis-of-the-rape-laws-in-pakistan/ Zina, Rape, and Islamic Law: An Islamic Legal Analysis of the Rape Laws in Pakistan](2011)</ref><ref>See the 2nd of the two hadiths here regarding Imam Malik's view: {{Muwatta|41||16}}</ref> | ||
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 ''Hirabah''), described in {{Quran|5|33}}. Others say that rape can be treated by the judge as an offence that receives Tazir (discretionary) punishment (as in Pakistan, for example). These approaches avoid the impractical evidence requirement of four witnesses for applying a zina hadd penalty to the rapist in the absence of his confession. In some other modern courts where the hadd punishment for zina is applied to rapists, a woman risks being accused of slanderous accusation (qadhf) if she cannot prove her allegation of rape to that evidence standard<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> and the rapists go unpunished.<ref>{{Citation|url=https://www.dawn.com/news/1016271/a-license-to-rape|title=A license to rape|author=Murtaza Haider|publication-date=June 5, 2003|newspaper=Dawn}}</ref> Pregnancy is used as evidence of sex having occurred and women who report rape or sexual violence can be deemed to have confessed to unlawful sex (zina) and prosecuted for that instead.<ref>[https://www.hrw.org/news/2022/04/29/saudi-arabia-forthcoming-penal-code-should-protect-rights Saudi Arabia: Forthcoming Penal Code Should Protect Rights] - Human Rights Watch 29 April 2022</ref> Due to a number of high profile instances, the risk of being prosecuted for zina creates a strong disincentive for women to report rape in some Muslim countries today.<ref>{{cite web | title=Judged for more than her crime | website=deathpenaltyworldwide.org | date=September 2018 | url=https://www.deathpenaltyworldwide.org/wp-content/uploads/2019/12/Judged-More-Than-Her-Crime.pdf | access-date=28 December 2022}}</ref> | 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 ''Hirabah''), described in {{Quran|5|33}}. Others say that rape can be treated by the judge as an offence that receives Tazir (discretionary) punishment (as in Pakistan, for example). These approaches avoid the impractical evidence requirement of four witnesses for applying a zina hadd penalty to the rapist in the absence of his confession. Incidentally, the four witnesses requirement for zina seems to have been introduced by Muhammad when Aisha was accused of adultery.<ref>See {{Quran-range|24|4|17}} and the discussion in [[Zina#Punishments for Zina|Punishments for Zina]]</ref> In some other modern courts where the hadd punishment for zina is applied to rapists, a woman risks being accused of slanderous accusation (qadhf) if she cannot prove her allegation of rape to that evidence standard<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> and the rapists go unpunished.<ref>{{Citation|url=https://www.dawn.com/news/1016271/a-license-to-rape|title=A license to rape|author=Murtaza Haider|publication-date=June 5, 2003|newspaper=Dawn}}</ref> Pregnancy is used as evidence of sex having occurred and women who report rape or sexual violence can be deemed to have confessed to unlawful sex (zina) and prosecuted for that instead.<ref>[https://www.hrw.org/news/2022/04/29/saudi-arabia-forthcoming-penal-code-should-protect-rights Saudi Arabia: Forthcoming Penal Code Should Protect Rights] - Human Rights Watch 29 April 2022</ref> Due to a number of high profile instances, the risk of being prosecuted for zina creates a strong disincentive for women to report rape in some Muslim countries today.<ref>{{cite web | title=Judged for more than her crime | website=deathpenaltyworldwide.org | date=September 2018 | url=https://www.deathpenaltyworldwide.org/wp-content/uploads/2019/12/Judged-More-Than-Her-Crime.pdf | access-date=28 December 2022}}</ref> | ||
==Punishments for rape narrated in hadiths== | ==Punishments for rape narrated in hadiths== | ||
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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]], 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=== | |||
A number of verses in the Qur'an mention sexual relations with slaves as a category distinct from wives, making it clear that sexual relations with female slaves are permitted without marrying the slave first. For example, Surah 23 makes mention of successful Muslims and their characteristics: | |||
{{Quote|{{Quran | {{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 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: | |||
{{Quote|{{Quran|70|29-30}}|'''And those who guard their private parts, Except from their wives or those their right hands possess''', for indeed, they are not to be blamed}} | |||
===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 (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) 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.}} | |||
Earlier verses in the same surah suggest that these women were among the captives, land, houses and wealth seized during a decisive battle with opponents who had left their fortresses ({{Quran-range|33|20|27}}). According to commentators, this was Khaybar, though other views were narrated too. | |||
See also the two verses which follow verse 50, ({{Quran-range|33|51|52}}), which give Muhammad permission to set aside and return to his wives in accordance with his wishes, and forbids Muhammad from exchanging or taking any further wives even if their beauty pleases him, though maintains his limitless permission to take additional concubines. | |||
{{Quote|{{Quran-range|33|51|52}}|You, [O Muhammad], may put aside whom you will of them or take to yourself whom you will. And any that you desire of those [wives] from whom you had [temporarily] separated - there is no blame upon you [in returning her]. That is more suitable that they should be content and not grieve and that they should be satisfied with what you have given them - all of them. And Allah knows what is in your hearts. And ever is Allah Knowing and Forbearing. | |||
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 slave women, even if they are already married=== | |||
{{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.}} | |||
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]]). | |||
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| | {{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: | |||
'''"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: | |||
The | {{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.}} | ||
Similarly in Tafsir al-Jalalayn (Qur'an interpretation by two Jalals namely: Jalaluddin Mahalli and Jalaluddin Suyuti, both authorities): | |||
{{Quote| | {{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 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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"O Prophet! Why do you forbid (for yourself) that which Allah has allowed to you.' until the end of the Verse.}} | "O Prophet! Why do you forbid (for yourself) that which Allah has allowed to you.' until the end of the Verse.}} | ||
Tafsir al-Jalalayn says of the verse referred to in this hadith: | Tafsir al-Jalalayn says of the verse ({{Quran|66|1}}) referred to in this hadith: | ||
{{Quote|1=[https://tafsir.app/jalalayn/66/1 Tafsir al-Jalalayn 66:1]|2=O Prophet! Why do you prohibit what '''God has made lawful for you''' in terms of '''your Coptic handmaiden Māriya''' — when he lay with her in the house of Hafsa who had been away but who upon returning and finding out became upset by the fact that this had taken place in her own house and on her own bed — by saying ‘She is unlawful for me!’ seeking by making her unlawful for you to please your wives? And God is Forgiving Merciful having forgiven you this prohibition.}} | {{Quote|1=[https://tafsir.app/jalalayn/66/1 Tafsir al-Jalalayn 66:1]|2=O Prophet! Why do you prohibit what '''God has made lawful for you''' in terms of '''your Coptic handmaiden Māriya''' — when he lay with her in the house of Hafsa who had been away but who upon returning and finding out became upset by the fact that this had taken place in her own house and on her own bed — by saying ‘She is unlawful for me!’ seeking by making her unlawful for you to please your wives? And God is Forgiving Merciful having forgiven you this prohibition.}} | ||
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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=== | ||