6,632
edits
Rape in Islamic Law: Difference between revisions
Jump to navigation
Jump to search
m
no edit summary
| [checked revision] | [checked revision] |
Lightyears (talk | contribs) (→Qur'an) |
mNo edit summary |
||
| (9 intermediate revisions by one other user not shown) | |||
| Line 1: | Line 1: | ||
{{QualityScore|Lead=4|Structure=3|Content=4|Language=3|References=3}} | |||
{{Quote|1= | {{Quote|1= | ||
| Line 114: | Line 115: | ||
The Prophet (ﷺ) sent `Ali to Khalid to bring the Khumus (of the booty) and I hated `Ali, and `Ali had taken a bath (after a sexual act with a slave-girl from the Khumus). I said to Khalid, "Don't you see this (i.e. `Ali)?" When we reached the Prophet (ﷺ) I mentioned that to him. He said, "O Buraida! Do you hate `Ali?" I said, "Yes." He said, "Do you hate him, for he deserves more than that from the Khumus."}} | The Prophet (ﷺ) sent `Ali to Khalid to bring the Khumus (of the booty) and I hated `Ali, and `Ali had taken a bath (after a sexual act with a slave-girl from the Khumus). I said to Khalid, "Don't you see this (i.e. `Ali)?" When we reached the Prophet (ﷺ) I mentioned that to him. He said, "O Buraida! Do you hate `Ali?" I said, "Yes." He said, "Do you hate him, for he deserves more than that from the Khumus."}} | ||
===Muhammad | ===Muhammad Did not Consider Intercourse Between a Master and his Slave to be Zina (Adultery)=== | ||
The following hadith is graded | As noted in a later section below, punishments for rape applied only to a man who rapes a free women or a slave he does not own. Similarly, zina (fornication or adultery) only applied to intercourse with women in those two groups, but not to intercourse with a man's own slave women according to Muhammad in this hadith graded Hasan by al-Albani: | ||
{{Quote|{{Abudawud|12|2258}}| 'Amr b. Shu'aib on his father's authority said that his grandfather reported: | |||
The Prophet (ﷺ) decided regarding one who was treated as a member of a family after the death of his father, to whom he was attributed when the heirs said he was one of them, '''that if he was the child of a slave-woman whom the father owned when he had intercourse with her''', he was included among those who sought his inclusion, but received none of the inheritance which was previously divided; he, however, received his portion of the inheritance which had not already been divided; but if the father to whom he was attributed had disowned him, he was not joined to the heirs. | |||
'''If he was a child of a slave-woman whom the father did not possess or of a free woman with whom he had illicit intercourse''', he was not joined to the heirs and did not inherit even if the one to whom he was attributed is the one who claimed paternity, '''since he was a child of fornication whether his mother was free or a slave.''' }} | |||
===Muhammad had Intercourse with his Slave=== | |||
The following hadith is graded Sahih by Dar-us-Salam: | |||
{{Quote|{{Al Nasai||4|36|3411}}|It was narrated from Anas, that the Messenger of Allah had a female slave with whom he had intercourse, but 'Aishah and Hafsah would not leave him alone until he said that she was forbidden for him. Then Allah, the Mighty and Sublime, revealed: | |||
"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: | |||
{{Quote|1=[http://altafsir.com/Tafasir.asp?tMadhNo=0&tTafsirNo=74&tSoraNo=66&tAyahNo=1&tDisplay=yes&UserProfile=0&LanguageId=2 Commentary on verse 66:1]<BR>Tafsir al\Jalalayn|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.}} | |||
An alternate, or additional circumstance for this verse has also been narrated in sahih hadiths: | |||
{{Quote|{{Al Nasai||4|36|3410}}|'Aishah said that the Messenger of Allah used to stay with Zainab bint Jahsh and drink honey at her house. Hafsah and I agreed that if the Prophet entered upon either of us, she would say: | |||
"I perceive the smell of Maghafir (a nasty-smelling gum) on you; have you eaten Maghafir?" He came in to one of them, and she said that to him. He said: "No, rather I drank honey at the house of Zainab bint Jahsh, but I will never do it again." Then the following was revealed: 'O Prophet! Why do you forbid (for yourself) that which Allah has allowed to you.' 'If you two turn in repentance to Allah, (it will be better for you)' about 'Aishah and Hafsah, 'And (remember) when the Prophet disclosed a matter in confidence to one of his wives' refers to him saying: "No, rather I drank honey".}} | |||
The honey story sounds rather less plausible as an explanation for these verses than the slave sex version. Perhaps it is no coincidence that "honey" was a euphemism for sexual intercourse. See for example the following hadith: | |||
{{Quote|{{Abudawud|12|2302|}}|Narrated Aisha, Ummul Mu'minin: | |||
The Messenger of Allah (ﷺ) was asked about a man who divorced his wife three times, and she married another who entered upon her, but divorced her before having intercourse with her, whether she was lawful for the former husband. She said: The Prophet (ﷺ) replied: She is not lawful for the first (husband) until she tastes the honey of the other husband and he tastes her honey. }} | |||
==Punishments for Rape== | ==Punishments for Rape== | ||
| Line 155: | Line 178: | ||
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. | 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. | ||
==Limitations on Rape of Slaves by their Masters== | |||
===Muhammad Forbids Intercourse with Female Captives Until they have Completed their Iddah or Given Birth if Pregnant=== | |||
The following hadith is graded Hasan by Dar-us-Salam: | |||
{{Quote|{{Al Tirmidhi||3|19|1564}}|Narrated Umm Habibah bint 'Irbad bin Sariyah: | |||
From her father who told her that the Messenger of Allah (ﷺ) prohibited intercourse with female prisoners, until they deliver what is in their wombs."}} | |||
Similarly in Sunan Abu Dawud, which in addition mentions the Iddah waiting period (to avoid doubts over paternity if the slave woman gives birth later). This hadith is graded Sahih by Dar-us-Salam: | |||
{{Quote|{{Abudawud||2152|hasan}}|Abu Sa’id Al Khudri traced to Prophet (ﷺ) the following statement regarding the captives taken at Atwas. There must be no intercourse with pregnant woman till she gives birth to her child or with the one who is not pregnant till she has had one menstrual period.}} | |||
===Intercourse with Polytheist Slaves Forbidden by Scholars (Coercing Them to Islam Permitted)=== | |||
While Muhammad's men seem to have had intercourse with captive polytheist women whom they had captured during the expedition to Awtas/Autas (see hadiths quoted above), most scholars ruled that this was later forbidden by {{Quran|2|221}} (which forbids marriage to polytheist women, but scholars inferred that this also applied to intercourse with slaves). Intercourse with Muslim, Christian or Jewish slaves was not affected by this restriction.<ref>[http://www.islamweb.net/emainpage/index.php?page=showfatwa&Option=FatwaId&Id=272452 Ruling on sexual intercourse with one's polytheistic slave-woman - IslamWeb.net Fawah 272452]</ref> | |||
Early scholars of fiqh devised a workaround for this restriction, including to allow the rape of minors who were polytheist: | |||
{{Quote|Yohanan Friedmann, "Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition (Cambridge Studies in Islamic Civilization)"<ref>Friedmann, Y. "Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition (Cambridge Studies in Islamic Civilization)" Cambridge: Cambridge University Press, 2006, pp. 107-108</ref>|According to a report included in the ''Jāmi‘'' of al-Khallāl (d. 311 A.H. / 923 A.D.), Ibn Hanbal maintained that | |||
:if Zoroastrian and idolatrous women are taken prisoner, they are coerced into Islam; if they embrace it, sexual relations with them are permissible and they can (also) be used as maidservants. If they do not embrace Islam, they are used as maidservants but not for sexual relations (''wa idhā subhīna (sic) al-majūsiyyāt wa ‘abadat al awthān ujbirna 'alā al-Islām fa-in asl ama wutiʼna ma 'stukhdimna wa in lam yuslimna 'stukhdimna wa lam yūtaʼna''). | |||
The contradiction inherent in this passage is evident: despite the unspecified coercive measures, some of the women in question refused conversion and, consequently, the masters could not take full advantage of their services. If the only way to embrace Islam is pronouncing the declaration of faith, the conversion of a defiant woman may not be possible: it is not always feasible to force someone to utter the shahāda. According to a tradition transmitted on the authority of Hasan al-Basri, the Muslims used various devices to attain their objective: they turned the Zorastrian slave-girl toward the Ka‘ba, ordered her to pronounce the shahāda and to perform ablution. Her master then engaged in sexual relations after she had one menstruating period while in his house. Others hold that the master must teach the slave-girl to pray, to purify herself and to shave her private parts before any intercourse. The participation of the girl in this procedure is minimal, and this wording may be interpreted us a considerable lowering of the conversion requirements so that the girl becomes eligible for sexual intercourse as expeditiously as possible. Among the early traditionists, only a few were willing to go beyond this and allow sexual relations with a Zoroastrian slave-girl without insisting on at least a semblance of conversion. | |||
Shafi‘i's treatment of the issue is slightly different. Speaking of grown-up Zoroastrian or polytheist women taken into captivity, he maintains that no sexual relations with them are allowed before they embrace Islam without bringing up the question of converting them forcibly. If the female captives are minor but were taken captive with at least one of their parents, the ruling is the same. If, however, the girl was captured without her parents, or one of her parents embraced Islam, she is considered a Muslim and is coerced into embracing it (''nahkumu lahā bihukm al-Islām wa nujbiruhā ‘alayhi''). Once this happens, sexual relations with her are lawful.}} | |||
==Muhammad's Slave Women and Qur'an 33:50== | ==Muhammad's Slave Women and Qur'an 33:50== | ||
| Line 209: | Line 258: | ||
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. | 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 that Men had to Marry their Slaves Before Intercourse was Permitted=== | |||
Sometimes it is claimed using verses 4:23-24 (quoted above) that men could not have sex with their female slaves unless they first married them. Even if that were true, it is no more possible for an enslaved person to give genuine consent to marriage than for her to give consent to intercourse with her master. A man had to free his slave in order to marry her, but if she knows that she will remain a slave if she declines, it is hardly a free choice. | |||
In any case, the claim is false. Verses 23:1-6 and 70:29-30 (quoted above) clearly distinguish slaves from wives, and make clear that sexual relations are permitted with both. Verses 4:23-24 merely permit men to marry their slaves, but do not say that marriage as a necessary condition for intercourse with them. Further, the hadith evidence quoted above shows that captives were sometimes raped before being ransomed. Clearly these women were not valued by their captors for anything besides sex and ransom purposes, let alone married to them. | |||
Further, it is well established that a slave who is impregnated by her master to whom she is not married becomes an Umm Walad and remains a slave during his lifetime unless he frees her. | |||
In the following hadith, Muhammad has no objections to a man who has intercourse with his slave-girl to whom he is not married: | |||
{{Quote|{{Muslim|8|3377}}| Abu Sa'id al-Khudri (Allah be pleased with him) reported that mention was made of 'azl in the presence of Allah's Apostle (ﷺ) whereupon he said: | |||
Why do you practise it? They said: There is a man whose wife has to suckle the child, and if that person has a sexual intercourse with her (she may conceive) which he does not like, '''and there is another person who has a slave-girl and he has a sexual intercourse with her, but he does not like her to have conception so that she may not become Umm Walad''', whereupon he (the Holy Prophet) said: There is no harm if you do not do that, for that (the birth of the child) is something pre- ordained. Ibn 'Aun said: I made a mention of this hadith to Hasan, and he said: By Allah, (it seems) as if there is upbraiding in it (for 'azl).}} | |||
===Claims about verse 24:33=== | ===Claims about verse 24:33=== | ||
| Line 220: | Line 282: | ||
The second sentence speaks about slaves who ask for a way to pay for their freedom (like indentured servants) as long as the master knows of "any good in them". It would be interesting to discover how female slaves could earn any money at all if they had been kidnapped from their families and forced into slavery and did not have money-making skills. And if a female slave was to earn her freedom, where then could she go if her family had been massacred? How could she support herself and keep herself safe from rape, prostitution, etc.? Practicalities aside, this verse only tells Muslims to let their slaves purchase their freedom (but puts in a convenient disclaimer of "if ye know any good in them"). To give Muhammad credit, he did stipulate that the masters should give their slaves something (again conveniently leaving out what and how much). | The second sentence speaks about slaves who ask for a way to pay for their freedom (like indentured servants) as long as the master knows of "any good in them". It would be interesting to discover how female slaves could earn any money at all if they had been kidnapped from their families and forced into slavery and did not have money-making skills. And if a female slave was to earn her freedom, where then could she go if her family had been massacred? How could she support herself and keep herself safe from rape, prostitution, etc.? Practicalities aside, this verse only tells Muslims to let their slaves purchase their freedom (but puts in a convenient disclaimer of "if ye know any good in them"). To give Muhammad credit, he did stipulate that the masters should give their slaves something (again conveniently leaving out what and how much). | ||
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 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 what it definitely does not say is that a Muslim man cannot force himself on his own slave-girl. | ||
==Conclusion== | ==Conclusion== | ||