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Rape in Islamic Law: Difference between revisions
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{{QualityScore|Lead=4|Structure=3|Content=4|Language=3|References=3}}Rape, known in | {{QualityScore|Lead=4|Structure=3|Content=4|Language=3|References=3}}Rape, known in [[Islamic law]] as ''zina bil-ikrah'' or ''zina bil-jabr'' (literally "[[Zina|fornication]] by force"), is generally defined by Muslim jurists as forced intercourse by a man with a [[Islam and Women|woman]] who is not his wife or [[Slavery|slave]] and without her consent. | ||
The male rapist may be punished with a hadd penalty - [[stoning]] (if he is [[Marriage|married]] ) or lashings (if he is unmarried) - just as he would receive for ordinary [[Zina]] (fornication, or unlawful intercourse). Four witnesses are required to prove the offense.<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><ref>{{Quran|24|4}}</ref> There is no punishment for the rape victim if she is able to prove that she was raped. 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 four witnesses requirement for applying a zina hadd penalty in absence of a confession from a rapist. 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, 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 hand possesses"), often in conjunction with the commandment for men to keep otherwise chaste. 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 ( | 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|archiveurl=http://www.webcitation.org/6yjfMCtwF|newspaper=Huffington Post}}</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 [http://www.webcitation.org/6yjfiW2ch Archive]</ref> | ||
As with enslaved females, according to Islamic law, married women are required to oblige their husbands sexual advances - raping one's wife is | As with enslaved females, according to Islamic law, married women are required to oblige their husbands sexual advances - raping one's wife is permissible.<ref>{{Cite journal|first=Muh Endriyo |last=Susila | year= 2013 |url=https://journal.umy.ac.id/index.php/jmh/article/download/271/234| title=Islamic Perspective on Marital Rape |issue=2|volume=20|publisher=Jurnal Media Hukum, p.328}}</ref> The concept of "rape" is thus deemed to be equally non-existent in the contexts of both marriage and slavery. | ||
==Qur'an== | ==Rape in the Qur'an== | ||
There is no equivalent term for ‘[[rape]]’ in the [[Qur'an]]. | There is no equivalent term for ‘[[rape]]’ in the [[Qur'an]]. And while chastity is encouraged as a virtue, it is frequently commanded alongside the recurring exception "except for what your right hand possesses", encouraging men to pursue their sexual ends with those legal to them (their wives and slaves). There is no verse in the Qur'an which explicitly discourages ''forced'' sex. | ||
[[Surah]] [[The Holy Qur'an: An-Nisa (Women)|an-Nisa]] discusses lawful and forbidden | [[Surah]] [[The Holy Qur'an: An-Nisa (Women)|an-Nisa]] is one of the surahs which discusses which women are lawful and forbidden to Muslim men. While the relevant verses in this surah, like much of the substantive content of the Qur'an, can border on the unintelligible in the absence of considerable context, the authoritative [[Tafsir]]s (Qur'an exegeses) and [[Sahih]] (authentic) [[Hadith]]s ([[Muhammad|prophetic]] narrations) associated with these verses have together worked to standardize the Islamic interpretive and legal tradition to some extent. Although the contents of the Qur'an are deemed theologically prior to the hadiths and especially the manmade tafsirs, independent and especially novel interpretations of the Qur'an that flaunt hadith and tafsir tradition are not accepted, particularly when such an interpretation results in a divergent meaning. | ||
=== | ===Qur'an 4:24=== | ||
{{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.}} | {{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.}} | ||
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{{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.}} | {{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.}} | ||
=== | ===Qur'an 23:1-6=== | ||
There are other verses in the Qur'an similar to verse 4:24, but which mention sexual relations with slaves as a category distinct from wives, so it is clear that this is permitted without marrying the slave first. For example, Surah [[The Holy Qur'an: Al-Mumenoon (The Believers)|al-Mumenoon]] makes mention of successful Muslims and their characteristics: | There are other verses in the Qur'an similar to verse 4:24, but which mention sexual relations with slaves as a category distinct from wives, so it is clear that this is permitted without marrying the slave first. For example, Surah [[The Holy Qur'an: Al-Mumenoon (The Believers)|al-Mumenoon]] makes mention of successful Muslims and their characteristics: | ||
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Guarding private parts is denotative of abstaining from sexual activities. The Qur'an points out that successful believers are those who are indulging in sexual activities only with their wives and sex-slaves. | Guarding private parts is denotative of abstaining from sexual activities. The Qur'an points out that successful believers are those who are indulging in sexual activities only with their wives and sex-slaves. | ||
=== | ===Qur'an 70:29-30=== | ||
This is confirmed again in Surah [[The Holy Qur'an: Al-Maarij (The Ascending Stairways)|al-Maarij]]: | This is confirmed again in Surah [[The Holy Qur'an: Al-Maarij (The Ascending Stairways)|al-Maarij]]: | ||