Rape in Islamic Law: Difference between revisions

{{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.

{{Quote|{{Quran|4|24}}|Also (forbidden are) women already married, except those whom your right hands possess. Thus has Allah ordained for you. All others are lawful, provided you seek them from your property, desiring chastity, not fornication. So with those among them whom you have enjoyed, give them their required due, but if you agree mutually after the requirement (has been determined), there is no sin on you. Surely, Allah is Ever All-Knowing, All-Wise.}}

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]]).  

====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 was permissable while raping captive women.

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 Mes- senger (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 {{Abu Dawud||2167|Hasan}} (graded sahih).

Ibn Kathir, the most prominent of all Qur'an interpreters, had this to say in regards to verse 4:24:

{{Quote|1=[http://tafsir.com/default.asp?sid=4&tid=10803 Forbidding Women Already Married, Except for Female Slaves]<BR>Tafsir Ibn Kathir|2=The Ayah (verses) 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. 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." (Alternate translation can be: 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):

{{Quote|1=[http://www.altafsir.com/Tafasir.asp?tMadhNo=0&tTafsirNo=74&tSoraNo=4&tAyahNo=24&tDisplay=yes&UserProfile=0&LanguageId=2 Qur'an 4:24]<BR>Tafsir al-Jalalayn|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.}}

The tafsir attributed to Ibn Abbas, Muhammad's paternal cousin, further confirms:

{{Quote|1=[http://www.altafsir.com/Tafasir.asp?tMadhNo=0&tTafsirNo=73&tSoraNo=4&tAyahNo=24&tDisplay=yes&UserProfile=0&LanguageId=2 Qur'an 4:24]<BR>Tafsir 'Ibn Abbas| 2= And all married women (are forbidden unto you save those (captives) whom your right hands possess) of captives, even if they have husbands in the Abode of War, after ascertaining that they are not pregnant, by waiting for the lapse of one period of menstruation. (It is a decree of Allah for you) that which I have mentioned to you is unlawful in Allah's Book.}}

====Verses 23:1-6====

There are other verses in the Qur'an similar to verse 4:24. For example, Surah [[The Holy Qur'an: Al-Mumenoon (The Believers)|al-Mumenoon]] makes mention of successful Muslims and their characteristics:

{{Quote|{{Quran|23|1-6}}|Successful indeed are the believers, who are humble in their prayers and who keep aloof from what is vain and who are givers of poor-rate and who guard their private parts, except before their mates or those whom their right hands possess, for they surely are not blamable.}}

Guarding private parts is denotative of abstaining from sexual activities. The Qur'an points out successful believers are those who are indulging in sexual activities only with their wives and sex-slaves.  

This is confirmed again in Surah [[The Holy Qur'an: Al-Maarij (The Ascending Stairways)|al-Maarij]]:

{{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's Slave Women and Qur'an 30:50==

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.}}

{{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.}}

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.