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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. }} | {{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 | Rape, known in Islam as ''zina bi al-ikrah'' or ''zina bil jabr'', 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 if she is able to prove that she was raped. Four witnesses are required to prove the offense.<ref>{{Cite book|first=R. |last= Peters | year= 2012 | title=Zinā or Zināʾ |encyclopedia=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|doi=10.1163/1573-3912_islam_SIM_8168}}</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 [[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. In some other modern courts a woman risks being accused of zina if she cannot prove to this standard that she has been raped. <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: | 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: | ||
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Dr. Jonathan Brown, Associate Professor and Chair of Islamic Civilization at Georgetown University (who is 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 [http://www.webcitation.org/6yjfiW2ch Archive]</ref> Furthermore, there are narrations in which female captives were raped prior to being ransomed back to their tribe. | Dr. Jonathan Brown, Associate Professor and Chair of Islamic Civilization at Georgetown University (who is 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 [http://www.webcitation.org/6yjfiW2ch Archive]</ref> Furthermore, there are narrations in which female captives were raped prior to being ransomed back to their tribe. | ||
As with enslaved females, according to Islamic law, married women are required to oblige their husbands sexual advances. | As with enslaved females, according to Islamic law, married women are required to oblige their husbands sexual advances. "Rape" is thus deemed to be licit in the contexts of both marital rape and rape of a slave. | ||
==Definitions== | ==Definitions== | ||
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}} | }} | ||
===Rape of Slaves Owned by Another Person=== | ===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 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.'"}} | {{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.'"}} | ||
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The third sentence is what pertains to the Muslim claim that rape of slaves 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 it certainly does not say that a Muslim man cannot force himself on his own slave-girl. | The third sentence is what pertains to the Muslim claim that rape of slaves 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 it certainly does not say that a Muslim man cannot force himself on his own slave-girl. | ||
{{Core Women}} | {{Core Women}} | ||