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{{QualityScore|Lead=4|Structure=4|Content=4|Language=4|References=4}}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. 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. | {{QualityScore|Lead=4|Structure=4|Content=4|Language=4|References=4}}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. As with enslaved females, according to Islamic law, married women are required to oblige their husbands sexual advances - raping one's slave or 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. | ||
A small number of hadiths are cited 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 hand possesses"), often in conjunction with the commandment for men to keep otherwise chaste. In addition, there are narrations in which female captives were raped prior to being ransomed back to their tribe. | A small number of hadiths are cited 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 hand possesses"), often in conjunction with the commandment for men to keep otherwise chaste. In addition, there are narrations in which female captives were raped prior to being ransomed back to their tribe. | ||
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 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). There is no punishment for the rape victim if she is able to prove that she was raped. Four witnesses are required to prove that she was raped.<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> 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> | ||
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> | 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> | ||
==Rape in the Qur'an== | ==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 | 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 from their wives or those their right hands possess" (see [[Rape in Islamic Law#Verses 23:1-6|Qur'an 23:1-6]]), 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]] 4 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. | [[Surah]] 4 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. | ||
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{{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.}} | ||
This verse indicates that | This verse indicates that Muslims are permitted to marry those whom their right hands possess (female [[Slavery|slaves]]) who already have husbands, so long as the dower is paid. Other verses show that slave owners did not even have to marry their slaves in order to have intercourse with them (See the section below [[Rape_in_Islamic_Law#Freedom_and_marriage_as_a_universal_requirement| Freedom and marriage as a universal requirement]]). | ||
Sahih hadiths in Muslim and Abu Dawud detail the nature of the permission granted by this verse: some of Muhammad's fighters were reluctant to have sexual contact with female captives who were already married to the [[Kafir (Infidel)|un-believing]] men of the defeated party. | Sahih hadiths in Muslim and Abu Dawud detail the nature of the permission granted by this verse: some of Muhammad's fighters were reluctant to have sexual contact with female captives who were already married to the [[Kafir (Infidel)|un-believing]] men of the defeated party. | ||
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{{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.}} | {{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.}} | ||
Some early Muslim scholars held that slave marriages, whether between slaves or between a slavewoman and her master, are disolved when ownership is transferred because two men cannot have licit access to the same woman. Later, a concensus emerged that the marriage and licit sexual access remains between the slave woman and her husband on transfer of ownership unless he relinquishes it, whatever his status (for example, by offering him money to divorce her).<ref>Kecia Ali, "Marriage and Slavery in Early Islam", Massachussets: Harvard University Press, 2010, pp. 154-160</ref> | |||
===Qur'an 23:1-6 & 70:29-30=== | ===Qur'an 23:1-6 & 70:29-30=== | ||
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{{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}} | {{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}} | ||
==Rape in the | ==Rape in the hadiths== | ||
Scenes of Muhammad's companions, and indeed Muhammad himself, engaging in sexual activity with slaves and captives are common throughout hadith literature. While the female perspective is largely absent, leaving the reader to speculate as to whether the female slave or captive would have been receptive to the advances of Muhammad and his companions, it is fair to assume that in at least some (if not most or indeed all) of these cases, the sexual activity occurred without the female's consent and thus qualified as rape. This is particularly clear in the examples that follow where Muhammad's companions initiate sexual contact with the captive women shortly after having slayed their sons, husbands, fathers, and brothers. At the very least, it can be said that in no such case does Muhammad intervene in and that in all such cases he actively permits what, by all appearances, is an instance of his companion's raping a captive or slave. | Scenes of Muhammad's companions, and indeed Muhammad himself, engaging in sexual activity with slaves and captives are common throughout hadith literature. While the female perspective is largely absent, leaving the reader to speculate as to whether the female slave or captive would have been receptive to the advances of Muhammad and his companions, it is fair to assume that in at least some (if not most or indeed all) of these cases, the sexual activity occurred without the female's consent and thus qualified as rape. This is particularly clear in the examples that follow where Muhammad's companions initiate sexual contact with the captive women shortly after having slayed their sons, husbands, fathers, and brothers. At the very least, it can be said that in no such case does Muhammad intervene in and that in all such cases he actively permits what, by all appearances, is an instance of his companion's raping a captive or slave. | ||
===Muhammad has intercourse with | ===Muhammad has intercourse with his slave girl Maria bint Sham'un=== | ||
Muhammad had a child with a slave girl of his known as Maria the Copt. In a hadith from Sahih Muslim, a phrase translated as "slave girl" is, in the orignal Arabic, umm walad (أُمِّ وَلَدِ) (literally: "mother of the child") and is the title given to a slave concubine who bore her master a child. | Muhammad had a child with a slave girl of his known as [[w:Maria_al-Qibtiyya|Maria the Copt]], who was a gift to him from the Governor of Alexandria. In a hadith from Sahih Muslim, a phrase translated as "slave girl" is, in the orignal Arabic, umm walad (أُمِّ وَلَدِ) (literally: "mother of the child") and is the title given to a slave concubine who bore her master a child. | ||
{{Quote|{{Muslim|37|6676}}|Anas reported that '''a person was charged with fornication with the slavegirl of Allah's Messenger''' (ﷺ). Thereupon Allah's Messenger (ﷺ) said to 'Ali: | {{Quote|{{Muslim|37|6676}}|Anas reported that '''a person was charged with fornication with the slavegirl of Allah's Messenger''' (ﷺ). Thereupon Allah's Messenger (ﷺ) said to 'Ali: | ||
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{{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.}} | ||
An alternate, or additional circumstance for this verse has also been narrated in multiple sahih hadiths | An alternate, or additional circumstance for this verse has also been narrated in multiple sahih hadiths (in yet another version {{Muslim|9|3497}}, Muhammad ate honey at Hafsa's house instead of Zainab's). | ||
{{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."}} | {{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."}} | ||
"Honey" | "Honey" was also a sexual euphemism and an explicit example of its usage in this sense is found in a hadith in Abu Dawud:{{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'''. }} | 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'''. }} | ||
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{{Quote|{{Bukhari|5|59|459}}|Narrated Ibn Muhairiz: I entered the Mosque and saw Abu Said Al-Khudri and sat beside him and asked him about Al-Azl (i.e. coitus interruptus). Abu Said said, "We went out with Allah's Apostle for the Ghazwa of Banu Al-Mustaliq and we received captives from among the Arab captives and we desired women and celibacy became hard on us and we loved to do coitus interruptus. So when we intended to do coitus interrupt us, we said, 'How can we do coitus interruptus before asking Allah's Apostle who is present among us?" We asked (him) about it and he said, 'It is better for you not to do so, for if any soul (till the Day of Resurrection) is predestined to exist, it will exist."}} | {{Quote|{{Bukhari|5|59|459}}|Narrated Ibn Muhairiz: I entered the Mosque and saw Abu Said Al-Khudri and sat beside him and asked him about Al-Azl (i.e. coitus interruptus). Abu Said said, "We went out with Allah's Apostle for the Ghazwa of Banu Al-Mustaliq and we received captives from among the Arab captives and we desired women and celibacy became hard on us and we loved to do coitus interruptus. So when we intended to do coitus interrupt us, we said, 'How can we do coitus interruptus before asking Allah's Apostle who is present among us?" We asked (him) about it and he said, 'It is better for you not to do so, for if any soul (till the Day of Resurrection) is predestined to exist, it will exist."}} | ||
In another version of the same hadith in Sahih Muslim (also found in Malik's Muwatta and Abu Dawud), it is said that the Muslims' goal was to ransom the women back members of the defeated party for monetary gain. It is explained that as a result of not wanting to get the women pregnant prior to ransoming them, Muhammad's companions inquired as to whether coitus interruptus was permissible. | In another version of the same hadith in Sahih Muslim (also found in Malik's Muwatta and Abu Dawud), it is said that the Muslims' goal was to ransom the women back to members of the defeated party for monetary gain. It is explained that as a result of not wanting to get the women pregnant prior to ransoming them, Muhammad's companions inquired as to whether coitus interruptus was permissible. | ||
{{Quote|{{Muslim|8|3371}}; see also {{Muwatta|29||95}} and {{Abudawud||2167|Hasan}}|Abu Sirma said to Abu Sa'id al Khadri (Allah he pleased with him): | {{Quote|{{Muslim|8|3371}}; see also {{Muwatta|29||95}} and {{Abudawud||2167|Hasan}}|Abu Sirma said to Abu Sa'id al Khadri (Allah he pleased with him): | ||
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that while he was sitting with Allah's Messenger (ﷺ) he said, "O Allah's Messenger (ﷺ)! We get female captives as our share of booty, '''and we are interested in their prices''', what is your opinion about coitus interruptus?" The Prophet (ﷺ) said, "Do you really do that? It is better for you not to do it. No soul that which Allah has destined to exist, but will surely come into existence.}} | that while he was sitting with Allah's Messenger (ﷺ) he said, "O Allah's Messenger (ﷺ)! We get female captives as our share of booty, '''and we are interested in their prices''', what is your opinion about coitus interruptus?" The Prophet (ﷺ) said, "Do you really do that? It is better for you not to do it. No soul that which Allah has destined to exist, but will surely come into existence.}} | ||
===Umar tells a man to beat his wife for preventing intercourse with his slave girl=== | |||
Abdullah ibn Umar (the son of the 2nd Caliph, [[Umar_ibn_al-Khattab|Umar ibn al-Khattab]]) said that his father ordered a man to have intercourse with a slave girl after his wife had tried to make this haram for him by means of [[Adult_Suckling|adult suckling]]. | |||
{{Quote|{{Muwatta|30||13}}|Yahya related to me from Malik that Abdullah ibn Dinar said, "A man came to Abdullah ibn Umar when I waswith him at the place where judgments were given and asked him about the suckling of an older person. Abdullah ibn Umar replied, 'A man came to Umar ibn al-Khattab and said, 'I have a slave-girl and I used to have intercourse with her. My wife went to her and suckled her. When I went to the girl, my wife told me to watch out, because she had suckled her!' Umar told him to beat his wife and to go to his slave-girl because kinship by suckling was only by the suckling of the young.' "}} | |||
===Ghusl (full body wash) not required between intercourse with slave girls=== | |||
Imam Malik was asked about intercourse with multiple slave girls. | |||
{{Quote|{{Muwatta|2||90}}|Yahya related to me from Malik from Nafi that the slave girls of Abdullah ibn Umar used to wash his feet and bring him a mat of palm leaves while they were menstruating. Malik was asked whether a man who had women and slavegirlscould have intercourse with all of them before he did ghusl. He said, "There is no harm in a man having intercourse with two of his slave girls before he does ghusl. It is disapproved of, however, to go to a freewoman on another's day. There is no harm in making love first to one slave girl and then to another when one is junub." Malik was asked about a man who was junub and water was put down for him to do ghusl with.Then he forgot and put his finger into it to find out whether it was hot or cold. Malik said, "If no filth has soiled his fingers, I do not consider that that makes the water impure."}} | |||
===Explicit distinction between zina and legal intercourse=== | ===Explicit distinction between zina and legal intercourse=== | ||
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'''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.''' }} | '''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's | ==Muhammad's other female captives== | ||
On at least two occasions, according to accounts in sahih hadiths, Muhammad captured and cohabited with war captives [[Safiyah]] and [[Qur'an, Hadith and Scholars:Muhammads Wives and Concubines#Juwairiya|Juwairiyah]], presumably against their will (having just led the slaughter of their families and tribes). | On at least two occasions, according to accounts in sahih hadiths, Muhammad captured and cohabited with war captives [[Safiyah]] and [[Qur'an, Hadith and Scholars:Muhammads Wives and Concubines#Juwairiya|Juwairiyah]], presumably against their will (having just led the slaughter of their families and tribes). | ||
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===Rape of another's slave=== | ===Rape of another's slave=== | ||
If the individual raped is a slave owned by other than the rapist, reparations are due to the owner of the slave in the form of a replacement slave or the amount by which the raped slave's value has been depreciated as a result of the rape. The authenticity of hadiths concerning | If the individual raped is a slave owned by other than the rapist, reparations are due to the owner of the slave in the form of a replacement slave or the amount by which the raped slave's value has been depreciated as a result of the rape. Hina Azam writes that "sexual ursupation of a slave woman was a form of property damage that required financial compensation to her owner for a depreciation of the property's value....usually equal to the amount by which she was depreciated by the act (this being of particular relevance if she was previously a virgin)".<ref>{{cite web |url=http://www.oxfordislamicstudies.com/article/opr/t349/e0075 |title=Rape |last=Azam |first=Hina |date= |website=Oxford Islamic Studies |publisher=http://www.oxfordislamicstudies.com |access-date=7 April 2021}}</ref> | ||
Malik in his ''Muwatta'' confirms this punishment. | |||
{{Quote|{{Muwatta|36||14}}|Malik related to me from Ibn Shihab that Abd al-Malik ibn Marwan gave a judgment that the rapist had to pay the raped woman her bride- price. Yahya said that he heard Malik say, "What is done in our community about the man who rapes a woman, virgin or non-virgin, if she is free, is that he must pay the bride-price of the like of her. If she is a slave, he must pay what he has diminished of her worth. The hadd-punishment in such cases is applied to the rapist, and there is no punishment applied to the raped woman. If the rapist is a slave, that is against his master unless he wishes to surrender him.}} | |||
The authenticity of hadiths concerning the following incident in which Muhammad commands punishment by stoning for a man who has intercourse with his wife's slave are graded da'if (weak) by al-Albani, while Dar-us-Salam grade them hasan (good). | |||
{{Quote|{{Al Nasai|26|4|26|3365}}; see also {{Abu Dawud|38|4445}}|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}}; see also {{Abu Dawud|38|4445}}|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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{{Quote|{{Al Nasai|26|4|26|3362}}; see also {{Abu Dawud|38|4444}}|It was narrated from An-Nu'man bin Bashir that the Prophet said, concerning a man who had intercourse with his wife's slave woman: "If she let him do that, I will flog him with one hundred stripes , and if she did not let him, I will stone him (to death)."}} | {{Quote|{{Al Nasai|26|4|26|3362}}; see also {{Abu Dawud|38|4444}}|It was narrated from An-Nu'man bin Bashir that the Prophet said, concerning a man who had intercourse with his wife's slave woman: "If she let him do that, I will flog him with one hundred stripes , and if she did not let him, I will stone him (to death)."}} | ||
==Limitations on rape== | ==Limitations on rape== | ||
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{{Quote|1={{citation|author=al-Shafi'i|title=al-Umm|volume=3|page=253}}|2="If a man acquires by force a slave-girl, then has sexual intercourse with her after he acquires her by force, and if he is not excused by ignorance, then the slave-girl will be taken from him, he is required to pay the fine, and he will receive the punishment for illegal sexual intercourse."}} | {{Quote|1={{citation|author=al-Shafi'i|title=al-Umm|volume=3|page=253}}|2="If a man acquires by force a slave-girl, then has sexual intercourse with her after he acquires her by force, and if he is not excused by ignorance, then the slave-girl will be taken from him, he is required to pay the fine, and he will receive the punishment for illegal sexual intercourse."}} | ||
It is clear, however, that "acquires by force" here refers to the manner in which the man gained possession of the slave girl, not a description of the later sexual act. According to Islamic law, a fifth of all war and raid spoils (referred to as the ''Khum -'' literally "fifth"), including captives who may be sold for funds, is to be allotted for public spending. Taking and raping a captive from this public allotment, as [[Rape in Islamic Law#Ali rapes an underage ward of the state|Ali is reported to have in one instance]], amounts to theft and zina (illegal intercourse). This, as well as taking and raping someone else's slave, is of course prohibited and punishable. Indeed, in the remainder of his many-volume legal work ''al-Umm'', al-Shafi'i painstakingly outlines the laws regarding the sexual obligations of one's wives and slaves, in no place suggesting that rape of the female is punishable in these contexts. | It is clear, however, that "acquires by force" here refers to the manner in which the man gained possession of the slave girl, not a description of the later sexual act. Indeed, this quote comes from the section entitled ghasb (property usurpation). According to Islamic law, a fifth of all war and raid spoils (referred to as the ''Khum -'' literally "fifth"), including captives who may be sold for funds, is to be allotted for public spending. Taking and raping a captive from this public allotment, as [[Rape in Islamic Law#Ali rapes an underage ward of the state|Ali is reported to have in one instance]], amounts to theft and zina (illegal intercourse). This, as well as taking and raping someone else's slave, is of course prohibited and punishable. Indeed, in the remainder of his many-volume legal work ''al-Umm'', al-Shafi'i painstakingly outlines the laws regarding the sexual obligations of one's wives and slaves, in no place suggesting that rape of the female is punishable in these contexts. | ||
====Quote from Malik==== | ====Quote from Malik==== | ||
A quote from the ''Muwatta'' of Imam Malik, founder of the Maliki school of jurisprudence, is also sometimes misrepresented in this vein.<ref name=":0" /> As with the quote taken from ''al-Umm'', this quote from the ''Muwatta'' is likewise only referring to stolen slaves and has no bearing on one's own slaves and wives. And, just like Imam Shafi'i, Malik details the legal practices of slavery in several other places throughout the same text. | A quote from the ''Muwatta'' of Imam Malik, founder of the Maliki school of jurisprudence, is also sometimes misrepresented in this vein.<ref name=":0" /> As with the quote taken from ''al-Umm'', this quote from the ''Muwatta'' is likewise only referring to stolen slaves and has no bearing on one's own slaves and wives. Fines for raping slave girls were always paid to the master.<ref>Hina Azam, "Sexual Violation in Islamic Law: Substance, Evidence, and Procedure" New York: Cambridge University Press, 2015, p. 104</ref> And, just like Imam Shafi'i, Malik details the legal practices of slavery in several other places throughout the same text. | ||
{{Quote|1={{Muwatta|36||14}}|2=Malik related to me from Ibn Shihab that Abd al-Malik ibn Marwan gave a judgment that the rapist had to pay the raped woman her bride- price. Yahya said that he heard Malik say, "What is done in our community about the man who rapes a woman, virgin or non-virgin, if she is free, is that he must pay the bride-price of the like of her. If she is a slave, he must pay what he has diminished of her worth. The hadd-punishment in such cases is applied to the rapist, and there is no punishment applied to the raped woman. If the rapist is a slave, that is against his master unless he wishes to surrender him."}} | {{Quote|1={{Muwatta|36||14}}|2=Malik related to me from Ibn Shihab that Abd al-Malik ibn Marwan gave a judgment that the rapist had to pay the raped woman her bride- price. Yahya said that he heard Malik say, "What is done in our community about the man who rapes a woman, virgin or non-virgin, if she is free, is that he must pay the bride-price of the like of her. If she is a slave, he must pay what he has diminished of her worth. The hadd-punishment in such cases is applied to the rapist, and there is no punishment applied to the raped woman. If the rapist is a slave, that is against his master unless he wishes to surrender him."}} | ||
==== | ====Hadith regarding the caliph Umar==== | ||
A hadith in the Sunan of al-Bayhaqi | A hadith in the Sunan of al-Bayhaqi describes the Caliph Umar punishing Dhiraar for raping a captive woman and is sometimes presented as evidence that one is not permitted to have sexual intercourse with slaves.<ref name=":0" /> | ||
{{Quote|1={{citation|title=Sunan al-Bayhaqi|volume=2|author=al-Bayhaqi|page=263|chapter=Hadith 18685}}|2= | {{Quote|1={{citation|title=Sunan al-Bayhaqi|volume=2|author=al-Bayhaqi|page=263|chapter=Hadith 18685}}|2= | ||
Abu al-Hussain bin al-Fadhl al-Qatan narrated from Abdullah bin Jaffar bin Darestweh from Yaqub bin Sufyan from al-Hassab bin Rabee from Abdullah bin al-Mubarak from Kahmas from Harun bin Al-Asam who said: Umar bin al-Khatab may Allah be pleased with him sent Khalid bin al-Walid in an army, hence Khalid sent | Abu al-Hussain bin al-Fadhl al-Qatan narrated from Abdullah bin Jaffar bin Darestweh from Yaqub bin Sufyan from al-Hassab bin Rabee from Abdullah bin al-Mubarak from Kahmas from Harun bin Al-Asam who said: Umar bin al-Khatab may Allah be pleased with him sent Khalid bin al-Walid in an army, hence Khalid sent Dhiraar bin al-Azwar in a squadron and they invaded a district belonging to the tribe of Bani Asad. They then captured a pretty bride, Dhiraar liked her hence he asked his companions to grant her to him and they did so. He then had sexual intercourse with her, when he completed his mission he felt guilty, and went to Khalid and told him about what he did. Khalid said: 'I permit you and made it lawful to you.' He said: 'No not until you write a message to Umar'. (Then they sent a message to Umar) and Umar answered that he (Dhiraar) should be stoned. By the time Umar's message was delivered, Dhiraar was dead. (Khalid) said: 'Allah didn't want to disgrace Dhiraar'}} | ||
As with the | As with the quote taken from Imam Shafi'i, this almost certainly refers to a violation of the system for distributing war spoils. Dhiraar's intercourse with the captive girl was illegal and merited stoning not because of her captive status or lack of consent, but because he had intercourse with the girl without that girl having been allotted to him at the behest of the caliph (Umar in this case), who has the responsibility of distributing spoils. Neither captivity nor consent are mentioned as a factor in the punishment. Indeed, in a [[Rape_in_Islamic_Law#Umar_tells_a_man_to_beat_his_wife_for_preventing_intercourse_with_his_slave_girl|another hadith discussed above]], Umar tells a man to have intercourse with his slave girl after his wife tried to prevent it. | ||
===Freedom and marriage as a universal requirement=== | ===Freedom and marriage as a universal requirement=== | ||
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{{Quote|1={{Quran|24|33}}|2='''Let those who find not the wherewithal for marriage keep themselves chaste''', until Allah gives them means out of His grace. And if any of your slaves ask for a deed in writing (to enable them to earn their freedom for a certain sum), give them such a deed if ye know any good in them: yea, give them something yourselves out of the means which Allah has given to you. But '''force not your maids to prostitution when they desire chastity''', in order that ye may make a gain in the goods of this life. But if anyone compels them, yet, after such compulsion, is Allah, Oft-Forgiving, Most Merciful (to them),}} | {{Quote|1={{Quran|24|33}}|2='''Let those who find not the wherewithal for marriage keep themselves chaste''', until Allah gives them means out of His grace. And if any of your slaves ask for a deed in writing (to enable them to earn their freedom for a certain sum), give them such a deed if ye know any good in them: yea, give them something yourselves out of the means which Allah has given to you. But '''force not your maids to prostitution when they desire chastity''', in order that ye may make a gain in the goods of this life. But if anyone compels them, yet, after such compulsion, is Allah, Oft-Forgiving, Most Merciful (to them),}} | ||
Chastity is instructed throughout the Qur'an and is repeatedly defined as the habit of one who "guards their private parts" from all except "their wives [of whom they may have [[Polygamy|up to four]]] and what their right hand possesses [i.e. female slaves, of whom they may have an unlimited number]" (e.g. {{Quran|23|6}}, {{Quran|33|50}}, {{Quran|33|52}}, and {{Quran|70|30}}). It is clear that, in the view of the Qur'an's author, an unmarried male may be considered chaste even if he engages in sexual activity with a technically unlimited number of women, so long as they are his slaves. | Chastity is instructed throughout the Qur'an and is repeatedly defined as the habit of one who "guards their private parts" from all except "their wives [of whom they may have [[Polygamy in Islamic Law|up to four]]] and what their right hand possesses [i.e. female slaves, of whom they may have an unlimited number]" (e.g. {{Quran|23|6}}, {{Quran|33|50}}, {{Quran|33|52}}, and {{Quran|70|30}}). It is clear that, in the view of the Qur'an's author, an unmarried male may be considered chaste even if he engages in sexual activity with a technically unlimited number of women, so long as they are his slaves. | ||
The portion of the verse which instructs slaveowners to "force not [their] maids to prostitution" has traditionally been understood in its simplest sense, which prohibits slaveowners from playing the role of a pimp and trafficking their slave women - such a business built on illegal intercourse is of course prohibited and, understood this way, the verse says nothing of novel import. Another accepted sense of this verse is that if a female slave desires her (or, say, her child's) freedom, her master ought to give her some legal means by which to pursue it, the alternative being her feeling compelled to prostitute herself to earn the funds necessary to purchase that freedom (traditional tafsirs also mention the also undesirable possibility of a master forcing a slave to prostitution as a condition for her freedom). Since such a temptation on the part of the slave girl is all the more plausible given the likelihood that she was captured in a war or raid where her people were both slaughtered and enslaved (leaving her with no means), and so the verse concludes by saying that if a slave girl is driven to such behavior, then Allah will be forgiving. And in the simpler sense, if her master forces her to prostitution, then Allah will forgive her for what was not in her control.<ref>See [https://tafsir.app/qurtubi/24/33 Tafsir Qurtubi 24:33] in particular; see also [https://tafsir.app/tabari/24/33 Tafsir al-Tabari 24:33], [https://tafsir.app/ibn-katheer/24/33 Tafsir Ibn Kathir 24:33], and [https://tafsir.app/24/33 Tafsirs 24:33] in general</ref> | The portion of the verse which instructs slaveowners to "force not [their] maids to prostitution" has traditionally been understood in its simplest sense, which prohibits slaveowners from playing the role of a pimp and trafficking their slave women - such a business built on illegal intercourse is of course prohibited and, understood this way, the verse says nothing of novel import. Another accepted sense of this verse is that if a female slave desires her (or, say, her child's) freedom, her master ought to give her some legal means by which to pursue it, the alternative being her feeling compelled to prostitute herself to earn the funds necessary to purchase that freedom (traditional tafsirs also mention the also undesirable possibility of a master forcing a slave to prostitution as a condition for her freedom). Since such a temptation on the part of the slave girl is all the more plausible given the likelihood that she was captured in a war or raid where her people were both slaughtered and enslaved (leaving her with no means), and so the verse concludes by saying that if a slave girl is driven to such behavior, then Allah will be forgiving. And in the simpler sense, if her master forces her to prostitution, then Allah will forgive her for what was not in her control.<ref>See [https://tafsir.app/qurtubi/24/33 Tafsir Qurtubi 24:33] in particular; see also [https://tafsir.app/tabari/24/33 Tafsir al-Tabari 24:33], [https://tafsir.app/ibn-katheer/24/33 Tafsir Ibn Kathir 24:33], and [https://tafsir.app/24/33 Tafsirs 24:33] in general</ref> | ||
==See Also== | ==See Also== | ||
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*{{external link|url= http://womanstats.wordpress.com/2013/01/16/the-high-rape-scale-in-saudi-arabia/|title= The High Rape-Scale in Saudi Arabia|publisher= WomanStats Project (blog)|author= |date= January 16, 2013|archiveurl= http://www.webcitation.org/query?url=http%3A%2F%2Fwomanstats.wordpress.com%2F2013%2F01%2F16%2Fthe-high-rape-scale-in-saudi-arabia%2F&date=2013-07-13|deadurl=no}} | *{{external link|url= http://womanstats.wordpress.com/2013/01/16/the-high-rape-scale-in-saudi-arabia/|title= The High Rape-Scale in Saudi Arabia|publisher= WomanStats Project (blog)|author= |date= January 16, 2013|archiveurl= http://www.webcitation.org/query?url=http%3A%2F%2Fwomanstats.wordpress.com%2F2013%2F01%2F16%2Fthe-high-rape-scale-in-saudi-arabia%2F&date=2013-07-13|deadurl=no}} | ||
== References == | ==References== | ||
{{reflist}} | {{reflist}} | ||
[[Category:Shariah (Islamic Law)]] | |||
[[Category: | [[Category:Women]] | ||
[[Category: | |||
[[Category:Honor violence]] | [[Category:Honor violence]] | ||
[[Category:Marriage]] | [[Category:Marriage]] | ||
[[Category:Sex]] | [[Category:Sex]] | ||
[[ru:Изнасилование в Исламе]] | [[ru:Изнасилование в Исламе]] | ||
[[Category:Human rights]] | |||
[[Category:Slavery]] | |||
[[Category:Criticism of Islam]] | |||
[[Category:Child Marriage]] | |||
[[Category:Health]] | |||
[[Category:Hudud (punishments)]] | |||