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Rape in Islamic Law: Difference between revisions
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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 a punishable crime 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 consent of a slave for sex, for withdrawal before ejaculation ([[Qur'an, Hadith and Scholars:Al-'Azl|azl]]) or to marry her off to someone else was not considered necessary, historically.<ref name="Ali">{{Cite web|first=Kecia |last=Ali | publication-date=January 20, 2017 |url=https://www.cambridge.org/core/journals/international-journal-of-middle-east-studies/article/concubinage-and-consent/F8E807073C33F403A91C1ACA0CFA47FD | title=Concubinage and Consent|publisher=Cambridge University Press}}</ref> As with enslaved females, according to Islamic law, married women | {{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 a punishable crime 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. There was no concept of consent in Islamic law with regard either to a man's wives or slaves, though they could bring a legal complaint if intercourse with him caused them physical harm. A small number of hadiths describe punishments for 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 hands possess"), often in conjunction with the commandment for men to keep otherwise chaste. In addition, various hadiths mention the sexual intercourse which slave owners (including Muhammad) had with their slaves. | ||
Islamic law allowed the distribution of female captives as spoils of war and for them to be bought and sold, becoming sexually lawful after a short waiting period to confirm they were not pregnant. Slavery including sexual slavery persisted on a massive scale until modern times (see [[Slavery in Islamic Law]]). It is important to note, however, that slavery was legally abolished in majority Muslim countries around the world in the 19th and 20th centuries (though vast numbers of people remain illegally enslaved in a few places such as Mauritania<ref name="Mauritania" />) and all countries signed the 1949 Geneva convention which in article 27 forbids rape and abuse of female captives. It is also now considered forbidden by most scholars in the modern context, though a minority, such as Saudi Sheikh Saleh Al-Fawzan, argue that slavery remains Islamically legitimate. Similarly, today many Muslim-majority countries have made marital rape illegal or offer other legal protections, though others (mainly in the Arab world) do not do so, often explicitly, as also some non-Muslim countries.<ref>As of the early 2020s, marital rape is not recognised as a crime in many Muslim-majority countries, nor in India, China, Myanmar, much of the Caribbean, and much of sub-Saharan Africa, though is illegal in Indonesia, Turkey, the Balkans, most of central Asia, and much of west Africa. See the detailed information in the Wikipedia article [[w:Marital rape laws by country|Marital rape laws by country]], though note that in some cases the colour-coded map is inaccurate. A lack of legal protection in some countries and / or attitudes which refuse to accept the concept of marital rape exacerbates the predicament of millions of women suffering [[Forced Marriage]] in certain regions of the world.</ref> While there is no punishment for rape victims, human rights groups are also concerned about the risks faced by women reporting rape in some countries where [[Zina]] (illicit sexual intercourse) is a punishable offence, as detailed below. | |||
Typically, apologetic approaches to the issue of slaves and concubines propose that the women mentioned in the Quran and hadiths consented to intercourse with their captors and to their enslavement lest they be left destitute since their men had been killed. Critics generally argue that this is highly improbable, point out a hadith in which raped captives were due to be ransomed back to their tribe, and in any case would be incompatible with the modern understanding of consent which could not validly be given in captive circumstances. Some Islamic modernist scholars question the authenticity of the relevant hadiths altogether, in line with their general skepticism towards the hadith corpus and rejection of traditional jurisprudence, and attempt alternative interpretations of the Quranic verses. | |||
==The right to have intercourse with wives and slaves in Islamic law== | |||
The consent of a slave for sex, for withdrawal before ejaculation ([[Qur'an, Hadith and Scholars:Al-'Azl|azl]]) or to marry her off to someone else was not considered necessary, historically.<ref name="Ali">{{Cite web|first=Kecia |last=Ali | publication-date=January 20, 2017 |url=https://www.cambridge.org/core/journals/international-journal-of-middle-east-studies/article/concubinage-and-consent/F8E807073C33F403A91C1ACA0CFA47FD | title=Concubinage and Consent|publisher=Cambridge University Press}}</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|newspaper=Huffington Post}} ([https://web.archive.org/web/20230224094334/https://www.huffpost.com/entry/islam-sex-slavery_b_8004824 archive])</ref> Dr. Jonathan Brown, Associate Professor and Chair of Islamic Civilization at Georgetown University (also 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 ([https://web.archive.org/web/20210225213159/https://np.reddit.com/r/islam/comments/3h1abm/this_is_dr_jonathan_brown_professor_at_georgetown/cu3dkhd/ archive])</ref> | |||
{{Quote|Jonathan A. C. Brown (2019) ''Slavery & Islam'', pp. 281-282<ref>Jonathan A.C. Brown (2019) ''Slavery & Islam'', London: Oneworld Publications, Chapter 7, pp. 281-282, ISBN 978-1-78607-635-9</ref>|As noted earlier, marriage and a male's ownership of a female slave were the two relationships in which sex could licitly occur according to the Shariah. In marriage, the consent of the wife to sex was assumed by virtue of the marriage contract itself. In the case of the slave-concubine, consent was irrelevant because of the master's ownership of the woman in question. As Kecia Ali has noted, there is no evidence for any requirement for consent from slave women in books of Islamic law in the formative centuries of Islam. Books of Islamic law and natural ethics are full of exhortations for husbands to enter in foreplay and stress the wife's right to orgasm. But such books also foreground Hadiths and laws obliging wives to meet their husbands' sexual needs without contest.<BR /> | |||
[...]<BR /> | |||
In the Shariah, consent was crucial if you belonged to a class of individuals whose consent mattered: free women and men who were adults (even male slaves could not be married off against their will according to the Hanbali and Shafiʿi schools, and this extended to slaves with ''mukataba'' arrangements in the Hanafi school). Consent did not matter for minors. And it did not matter for female slaves, who could be married off by their master or whose master could have a sexual relationship with them if he wanted (provided the woman was not married or under a contract to buy her own freedom).}} | |||
As with enslaved females, according to classical Islamic law, married women were required to oblige their husbands' sexual advances.<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> He could punish his wife's continued refusal by beating her (with limitations) as a last resort.<ref name="Brown2014">Professor Jonathan Brown writes regarding medieval jurist interpretions of Q. 4:34: "If a wife exhibited egregious disobedience (nushūz) such as uncharacteristically insulting behaviour, leaving the house against the husband's will and without valid excuse or denying her husband sex (without medical grounds), the husband should first admonish her to be conscious of God and proper etiquette. If she did not desists from her behaviour, he should cease sleeping with her in their bed. If she still continued with her nushūz, he should then strike her to teach her the error of her ways."<BR /> | |||
Jonathan A. C. Brown, Misquoting Muhammad, London: Oneworld Publications, 2014, p. 276<BR /> | |||
For more details, see the Islamic Law section of the article [[Wife Beating in Islamic Law]].</ref> In the view of the Hanafi school of jurisprudence, a husband had legal entitlement to force his wife into intercourse if she did not so oblige and lacked certain legally allowed exemptions such as menstruation or fasting, even though the jurists might consider it unethical in some circumstances, while non-Hanafis neither explicitly authorized nor penalized this.<ref>Kecia Ali (2016) "Sexual Ethics and Islam", Oneworld publications, ISBN: 978-1-78074-381-3 p. 12<BR /> | |||
"The Hanafi view that husbands were entitled to have sex forcibly with their wives when the latter did not have a legitimate reason to refuse sex was not widely shared outside that school. Even the majority of Hanafi thinkers who accepted this doctrine recognized a distinction between forced intercourse and more usual sexual relations between spouses; although both were equally licit, sex by force might be unethical" | "The Hanafi view that husbands were entitled to have sex forcibly with their wives when the latter did not have a legitimate reason to refuse sex was not widely shared outside that school. Even the majority of Hanafi thinkers who accepted this doctrine recognized a distinction between forced intercourse and more usual sexual relations between spouses; although both were equally licit, sex by force might be unethical" | ||
<BR />And p. 120 "Non-Hanafis do not penalize a husband for forcing sex on his wife, but neither do they explicitly authorize it in the way that al-Khassaf does. For all, marital rape is an oxymoron; rape (ightisab) is a property crime that by definition cannot be committed by a husband." | <BR />And p. 120 "Non-Hanafis do not penalize a husband for forcing sex on his wife, but neither do they explicitly authorize it in the way that al-Khassaf does. For all, marital rape is an oxymoron; rape (ightisab) is a property crime that by definition cannot be committed by a husband." | ||
</ref><ref name="Ali" /> For jurists, the concept of "rape" | </ref><ref name="Ali" />For jurists, the concept of "rape" was equally non-existent in the contexts of both marriage and slavery.<ref>{{Cite book|first=Asifa |last=Quraishi-Landesi |publication-date=15 April 2016 |url=https://books.google.co.in/books?id=QfkFDAAAQBAJ&redir_esc=y | title=Feminism, Law, and Religion|page=178|publisher=Routledge|ISBN=978-1-317-13579-1}}</ref><ref>{{Cite book|first=Hina |last=Azam |publication-date=26 June 2015 |url=https://books.google.co.in/books?id=fhy_CQAAQBAJ&pg=PA69&redir_esc=y#v=onepage&q&f=false | title=Sexual Violation in Islamic Law: Substance, Evidence, and Procedure|page=69|publisher=Cambridge University Press|ISBN=978-1-107-09424-6}}</ref><ref name="Ali" /> | ||
Jonathan Brown notes that a wife or slave-concubine could though complain to a judge if she suffered physical harm (ḍarar). | |||
{{Quote|Jonathan A. C. Brown (2019) ''Slavery & Islam'', p. 96<ref>Jonathan A.C. Brown (2019) ''Slavery & Islam'', London: Oneworld Publications, Chapter 7, p. 96, ISBN 978-1-78607-635-9<BR />On the same page Brown also remarks, "According to the Quran, both marriage and ownership (in the case of the female slave and her male master) were relationships in which sex was licit (Quran 23:5-6). Within these relationships, consent for sexual relations was assumed or irrelevant. In marriage the relationship itself entailed ongoing consent for sex, and with a female slave it was not needed (assuming the slave girl was soley owned by one man and not married; in both cases she was off limits). Kecia Ali has observed that there is no evidence for any requirement for consent for sex from slave women in books of Islamic law from the eighth to the tenth centuries"</ref>|The Shariah offered protection to both wives and slave-concubines, but it came not under the rubric of consent but that of harm. By definition, the crime of rape (i.e., forced ''zina'') could not occur within a licit relationship. But transgressive harm could still be done by the man. Wives and concubines could complain to local judges if they were being abused or if his demands for sex were excessive (we will discuss the issue of concubinage and consent in the concluding chapter of this book). The Hanbali scholar Buhūtī (d. 1641) even says that if a master forced a slave woman unable to bear intercourse to have sex and injured her, she would be freed as a result.}} | |||
In the final chapter he gives examples of medieval judicial reports of wives doing so due to issues with their husband's physical anatomy (judges could require him to use a lubricant, though judicial separation of the couple was sometimes considered necessary).<ref name="Brown2019page283">Jonathan A.C. Brown, ''Slavery & Islam'', Chapter 7, p. 283, London: Oneworld Publications, 2019 ISBN 978-1-78607-635-9</ref> However, on the same topic Brown earlier points out that "Both wives and slaves had the same recourse to courts or members of the community. Unlike wives, however, slaves were almost by definition cut off from support networks other than their owners".<ref>Ibid. p. 132</ref> | |||
==Punishments for rape in Islamic Law and its application in modern contexts== | ==Punishments for rape in Islamic Law and its application in modern contexts== | ||
By the end of the formative period of Islamic law, there was a consensus that rape was to be categorised as a variant of [[Zina]] (fornication, or unlawful intercourse) in which the coerced woman is spared punishment and the male rapist is punished with the [[w:hadd|hadd]] penalty.<ref name="HinaAzam">Hina Azam [http://www.jstor.org/stable/23645194 RAPE AS A VARIANT OF FORNICATION (ZINĀ) IN ISLAMIC LAW: AN EXAMINATION OF THE EARLY LEGAL REPORTS], Journal of Law and Religion, vol. 28, no. 2, 2012, pp. 441–66</ref> This penalty is [[stoning|stoning to death]] (if he is [[Marriage|married]]) or lashings (if he is unmarried) - just as he would receive for ordinary zina. Four reliable muslim male witnesses (bayyinah) or a confession by the perpetrator are required in order to punish the rapist.<ref name="Al Hakam 2022">{{cite web | title=Rape in Islamic law: Establishing the crime and upholding the rights of the innocent | website=Al Hakam | date=23 January 2022 | url=https://www.alhakam.org/rape-in-islam/ | access-date=2 January 2023}}</ref><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> Jurists agreed that there is no punishment for the rape victim. Her word that she was raped is accepted if there is no named perpetrator. If she does name the alleged rapist but is unable to prove the allegation, the Maliki school held the woman liable to receive the hadd penalty of 80 lashes for slander (qadhf), though the judge may spare her this punishment if there is some circumstancial evidence in support of her allegation. Maliki jurists even held that a woman must be punished with the hadd penalty for fornication (zina) if she falls pregnant while unmarried even if she says she was raped, though she is spared punishment if there is evidence of coercion from her physical state or a witness heard her cry for help. In contrast, for the Hanafi school it was enough to avoid punishment if she simply says that she was raped. Hanafis stated that pregnancy of an unmarried woman is not proof of zina, pointing to the principle that hadd punishments are not applied if there is any doubt.<ref>Position paper by Karamah (Muslim Women Lawyers for Human Rights) [https://karamah.org/zina-rape-and-islamic-law-an-islamic-legal-analysis-of-the-rape-laws-in-pakistan/ Zina, Rape, and Islamic Law: An Islamic Legal Analysis of the Rape Laws in Pakistan](2011)</ref><ref>See the 2nd of the two hadiths here regarding Imam Malik's view: {{Muwatta|41||16}}</ref> | By the end of the formative period of Islamic law, there was a consensus that rape was to be categorised as a variant of [[Zina]] (fornication, or unlawful intercourse) in which the coerced woman is spared punishment and the male rapist is punished with the [[w:hadd|hadd]] penalty.<ref name="HinaAzam">Hina Azam [http://www.jstor.org/stable/23645194 RAPE AS A VARIANT OF FORNICATION (ZINĀ) IN ISLAMIC LAW: AN EXAMINATION OF THE EARLY LEGAL REPORTS], Journal of Law and Religion, vol. 28, no. 2, 2012, pp. 441–66</ref> This penalty is [[stoning|stoning to death]] (if he is [[Marriage|married]]) or lashings (if he is unmarried) - just as he would receive for ordinary zina. Four reliable muslim male witnesses (bayyinah) or a confession by the perpetrator are required in order to punish the rapist.<ref name="Al Hakam 2022">{{cite web | title=Rape in Islamic law: Establishing the crime and upholding the rights of the innocent | website=Al Hakam | date=23 January 2022 | url=https://www.alhakam.org/rape-in-islam/ | access-date=2 January 2023}}</ref><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> Jurists agreed that there is no punishment for the rape victim. Her word that she was raped is accepted if there is no named perpetrator. If she does name the alleged rapist but is unable to prove the allegation, the Maliki school held the woman liable to receive the hadd penalty of 80 lashes for slander (qadhf), though the judge may spare her this punishment if there is some circumstancial evidence in support of her allegation. Maliki jurists even held that a woman must be punished with the hadd penalty for fornication (zina) if she falls pregnant while unmarried even if she says she was raped, though she is spared punishment if there is evidence of coercion from her physical state or a witness heard her cry for help. In contrast, for the Hanafi school it was enough to avoid punishment if she simply says that she was raped. Hanafis stated that pregnancy of an unmarried woman is not proof of zina, pointing to the principle that hadd punishments are not applied if there is any doubt.<ref>Position paper by Karamah (Muslim Women Lawyers for Human Rights) [https://karamah.org/zina-rape-and-islamic-law-an-islamic-legal-analysis-of-the-rape-laws-in-pakistan/ Zina, Rape, and Islamic Law: An Islamic Legal Analysis of the Rape Laws in Pakistan](2011)</ref><ref>See the 2nd of the two hadiths here regarding Imam Malik's view: {{Muwatta|41||16}}</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 evidence requirement of four witnesses for applying a zina hadd penalty to the rapist in the absence of his confession. Incidentally, the four witnesses requirement for zina seems to have been introduced by Muhammad when Aisha was accused of adultery.<ref>See {{Quran-range|24|4|17}} and the discussion in [[Zina#Punishments for Zina|Punishments for Zina]]</ref> In some other modern courts where the hadd punishment for zina is applied to rapists, a woman risks being accused of slanderous accusation (qadhf) if she cannot prove her allegation of rape to that evidence standard<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> and the rapists go unpunished.<ref>{{Citation|url=https://www.dawn.com/news/1016271/a-license-to-rape|title=A license to rape|author=Murtaza Haider|publication-date=June 5, 2003|newspaper=Dawn}}</ref> Pregnancy is used as evidence of sex having occurred and women who report rape or sexual violence can be deemed to have confessed to unlawful sex (zina) and prosecuted for that instead.<ref>[https://www.hrw.org/news/2022/04/29/saudi-arabia-forthcoming-penal-code-should-protect-rights Saudi Arabia: Forthcoming Penal Code Should Protect Rights] - Human Rights Watch 29 April 2022</ref> Due to a number of high profile instances, the risk of being prosecuted for zina creates a strong disincentive for women to report rape in some Muslim countries today.<ref>{{cite web | title=Judged for more than her crime | website=deathpenaltyworldwide.org | date=September 2018 | url=https://www.deathpenaltyworldwide.org/wp-content/uploads/2019/12/Judged-More-Than-Her-Crime.pdf | access-date=28 December 2022}}</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 evidence requirement of four witnesses for applying a zina hadd penalty to the rapist in the absence of his confession. Incidentally, the four witnesses requirement for zina seems to have been introduced by Muhammad when Aisha was accused of adultery.<ref>See {{Quran-range|24|4|17}} and the discussion in [[Zina#Punishments for Zina|Punishments for Zina]]</ref> In some other modern courts where the hadd punishment for zina is applied to rapists, a woman risks being accused of slanderous accusation (qadhf) if she cannot prove her allegation of rape to that evidence standard<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> and the rapists go unpunished.<ref>{{Citation|url=https://www.dawn.com/news/1016271/a-license-to-rape|title=A license to rape|author=Murtaza Haider|publication-date=June 5, 2003|newspaper=Dawn}}</ref> Pregnancy is used as evidence of sex having occurred and women who report rape or sexual violence can be deemed to have confessed to unlawful sex (zina) and prosecuted for that instead.<ref>[https://www.hrw.org/news/2022/04/29/saudi-arabia-forthcoming-penal-code-should-protect-rights Saudi Arabia: Forthcoming Penal Code Should Protect Rights] - Human Rights Watch 29 April 2022</ref> Due to a number of high profile instances, the risk of being prosecuted for zina creates a strong disincentive for women to report rape in some Muslim countries today.<ref>{{cite web | title=Judged for more than her crime | website=deathpenaltyworldwide.org | date=September 2018 | publisher=Cornell Law School| page=13| url=https://www.deathpenaltyworldwide.org/wp-content/uploads/2019/12/Judged-More-Than-Her-Crime.pdf | access-date=28 December 2022}}</ref> | ||
==Punishments for rape narrated in hadiths== | ==Punishments for rape narrated in hadiths== | ||
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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. 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> | 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 and the perpetrator receives the hadd punishment. 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. Malik was founder of one of the four Sunni legal schools. | Malik in his ''Muwatta'' confirms this punishment. Malik was founder of one of the four Sunni legal schools. | ||
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{{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."}} | {{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."}} | ||
=== Muhammad tells a man not to use coitus interrupt us/azl (the pull-out contraception method) when having sex with a captured slave girl === | |||
The reason being God has already decided who they are going to create. | |||
{{Quote|{{Bukhari|9|93|506}}|Narrated Abu Sa`id Al-Khudri: That during the battle with Bani Al-Mustaliq they (Muslims) captured some females and intended to have sexual relation with them without impregnating them. So they asked the Prophet (ﷺ) about coitus interrupt us. The Prophet (ﷺ) said, "It is better that you should not do it, for Allah has written whom He is going to create till the Day of Resurrection." Qaza'a said, "I heard Abu Sa`id saying that the Prophet (ﷺ) said, 'No soul is ordained to be created but Allah will create it."}} | |||
And: | |||
{{Quote|{{Bukhari|3|34|432}}|Narrated Abu Sa`id Al-Khudri: 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 interrupt us?" 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.}} | |||
And similarly (this hadith is rated authentic/sahih by Al-Albani): | |||
{{Quote|{{Abu Dawud|11|2166}}|A man said: Messenger of Allah, I have a slave-girl and I withdraw the penis from her (while having intercourse), and I dislike that she becomes pregnant. I intend (by intercourse) what the men intend by it. | |||
The Jews say that withdrawing the penis (azl) is burying the living girls on a small scale. He (the Prophet) said: The Jews told a lie. If Allah intends to create it, you cannot turn it away.}} | |||
===Explicit distinction between zina and legal intercourse=== | ===Explicit distinction between zina and legal intercourse=== | ||
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==Limitations on rape of slaves and war captives== | ==Limitations on rape of slaves and war captives== | ||
===Avoiding | ===Avoiding physical harm during intercourse=== | ||
Beyond the temporary requirement of waiting past the ''Iddah'' period or conversion of a slave, the only restriction on | Beyond the temporary requirement of waiting past the ''Iddah'' period or conversion of a slave, the only restriction on sex with one's slaves or wives is that they do not suffer physical harm in the process.<ref name="Brown2019page283" /> However, this derives from a generic prohibition against incurring harm (ḍarar) upon anyone at any time, and men are authorized in the view of jurists to [[Wife Beating in Islamic Law|beat]] their wives and slaves as a form of physical discipline if they deny him sexual access or fail to obey him in some other mandatory capacity.<ref name="Brown2014" /> | ||
In practical terms, the relevance of the "do-no-harm" principle in this case is that a man should not penetrate his wives or slaves against their will if they are physically too small to withstand penetration (i.e. in the case of [[Child Marriage in Islamic Law|very young girls]]) or if they are seriously ill or injured to the point where penetration would inhibit their healing or magnify their injury. There is no consideration here for harm in the form of "mental anguish", and men are permitted to sexually utilize very young, ill, and/or injured slaves against their will through means other than penetration if such less egregious means will help avoid severe physical injury. | In practical terms, the relevance of the "do-no-harm" principle in this case is that a man should not penetrate his wives or slaves against their will if they are physically too small to withstand penetration (i.e. in the case of [[Child Marriage in Islamic Law|very young girls]]) or if they are seriously ill or injured to the point where penetration would inhibit their healing or magnify their injury. There is no consideration here for harm in the form of "mental anguish", and men are permitted to sexually utilize very young, ill, and/or injured slaves against their will through means other than penetration if such less egregious means will help avoid severe physical injury. | ||
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{{citation|url=https://islamqa.info/en/answers/13737/what-is-the-ruling-on-intimacy-with-slave-women | archiveurl=https://archive.fo/16upP| chapter= Fatwa No. 13737: What is the ruling on intimacy with slave women?|publisher= Islam Q&A|date= March 18, 2004|editor=Muhammad Salih al-Munajjid}}|2=With regard to your question about it being permissible for a master to be intimate with his slave woman, the answer is that that is because Allaah has permitted it. }}Likewise, as with all rulings of the shariah, the basic rulings governing family relations are unchanging. It would be difficult even today to find a trusted Islamic authority that does not still, at some level, permit marital rape and give general license for [[Wife Beating in Islamic Law|wife beating]] as a potential means by which to compel one's able but unwilling spouse into sexual activity, among other things. | {{citation|url=https://islamqa.info/en/answers/13737/what-is-the-ruling-on-intimacy-with-slave-women | archiveurl=https://archive.fo/16upP| chapter= Fatwa No. 13737: What is the ruling on intimacy with slave women?|publisher= Islam Q&A|date= March 18, 2004|editor=Muhammad Salih al-Munajjid}}|2=With regard to your question about it being permissible for a master to be intimate with his slave woman, the answer is that that is because Allaah has permitted it. }}Likewise, as with all rulings of the shariah, the basic rulings governing family relations are unchanging. It would be difficult even today to find a trusted Islamic authority that does not still, at some level, permit marital rape and give general license for [[Wife Beating in Islamic Law|wife beating]] as a potential means by which to compel one's able but unwilling spouse into sexual activity, among other things. | ||
{{Quote|{{citation|url= https://islamqa.info/en/answers/99756/his-wife-is-not-very-interested-in-intercourse-so-he-resorts-to-masturbation|chapter= Fatwa No. 99756: His wife is not very interested in intercourse so he resorts to masturbation| publisher= Islam Q&A|date= July 22, 2007|editor=Muhammad Salih al-Munajjid|archiveurl=https://web.archive.org/web/20201204173121/https://islamqa.info/en/answers/99756/his-wife-is-not-very-interested-in-intercourse-so-he-resorts-to-masturbation}}|The wife is obliged to obey her husband if he calls her to his bed, and if she refuses then she is sinning, because of the report narrated by al-Bukhaari (3237) and Muslim (1436) from Abu Hurayrah (may Allaah be pleased with him), that the Prophet (peace and blessings of Allaah be upon him) said: “If a man calls his wife to his bed and she does not come to him, and he goes to sleep angry with her, the angels will curse her until morning.”}} | {{Quote|{{citation|url= https://islamqa.info/en/answers/99756/his-wife-is-not-very-interested-in-intercourse-so-he-resorts-to-masturbation|chapter= Fatwa No. 99756: His wife is not very interested in intercourse so he resorts to masturbation| publisher= Islam Q&A|date= July 22, 2007|editor=Muhammad Salih al-Munajjid|archiveurl=https://web.archive.org/web/20201204173121/https://islamqa.info/en/answers/99756/his-wife-is-not-very-interested-in-intercourse-so-he-resorts-to-masturbation}}|The wife is obliged to obey her husband if he calls her to his bed, and if she refuses then she is sinning, because of the report narrated by al-Bukhaari (3237) and Muslim (1436) from Abu Hurayrah (may Allaah be pleased with him), that the Prophet (peace and blessings of Allaah be upon him) said: “If a man calls his wife to his bed and she does not come to him, and he goes to sleep angry with her, the angels will curse her until morning.”}} | ||
Others side with modern values regarding these issues. Khaled Abou al-Fadl is a prominent reformist scholar who has summarised his understanding of modern Islamic views on slavery and sexual exploitation: | |||
{{Quote|Khaled Abou al-Fadl, ''The Great Theft: Wrestling Islam from the Extremists''<ref name="alFadl">Khaled Abou al-Fadl, ''The Great Theft: Wrestling Islam from the Extremists'', HarperOne, 2009, p. 255</ref>|Consider, for example, the recent truly ominous and disturbing development by one of the highest-ranking puritan jurists. Shaykh Saleh al-Fawzan, a Saudi jurist, issued a ''fatwa'' (a legal opinion) in which he claimed that not only is slavery lawful in Islam, but that it ought to be legalized in Saudi Arabia. Al-Fawzan went further in accusing Muslim scholars who condemned and outlawed slavery of being ignorant and infidels. This ''fatwa'' is particularly disturbing and dangerous because it effectively legitimates the trafficking in and sexual exploitation of so-called domestic workers in the Gulf region and especially Saudi Arabia.<BR /> | |||
The position of slavery had been resolved for most of the twentieth century: slavery was condsidered unlawful and immoral, and all Muslim countries without exception had made the practice illegal. Importantly, most Muslim scholars had reached the reasonable conclusion that slavery is inconsistent with Qur'anic morality and the ethical objectives of the Islamic faith. In short, the prohibition of slavery was considered a closed matter.}} | |||
==Modern revisionary perspectives and criticisms thereof== | ==Modern revisionary perspectives and criticisms thereof== | ||
===Freedom and marriage as a requirement for intercourse=== | |||
Verses 4:23-24 ({{Quran-range|4|23|24}}) are sometimes presented as evidence for the idea that a man must first manumit and marry a slave in order to have sex with her. The verse lists the types of women a Muslim man is permitted to marry, one given option being his slave women, of whom he may free and marry. While 4:23-24 do not mention slaves outside of a marital context, several other verses (e.g. {{Quran-range|23|1|6}} and {{Quran-range|70|29|30}}) make clear reference to sexual activity with slaves with whom the owner is not married by explicitly distinguishing between his sexual access to his wives and his sexual access to his slaves. The further example of Muhammad's companions raping captives from Banu al-Mustaliq prior to ransoming them (a scenario which effectively necessitates their non-marriage) confirms this idea.<ref>{{Bukhari|5|59|459}}, {{Muslim|8|3371}},{{Muwatta|29||95}}, {{Abudawud||2167}}, and {{Bukhari|3|34|432}}</ref> | |||
In addition, there is the universally attested legal category of the ''Umm Walad'' (literally "mother of child") that is used by Islamic jurists to refer to those slaves who have given birth to one of their master's children. The child is free from birth and the mother is free upon her owner's death. An ''Umm Walad'' is legally distinct from a free mother ''because'' she is still a slave. Indeed, the concept of ''Umm Walad'' is apparently attested even in the prophet's time according to a hadith in Sahih Muslim - further clarifying the matter is the fact that in this very hadith, Muhammad approves of the companion's sexual relations with his unmarried slave girl. | |||
{{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).}} | |||
===Encouragement to chastity as a prohibition on rape=== | |||
Verse 24:33 ({{Quran|24|33}}), which instructs unmarried men to keep chaste and instructs slaveowners to "force not [their] maids to prostitution", is sometimes presented as evidence for the idea that sexual activity is only permitted in a marital context and that slaveowners may not compel their slave girls to sexual activity of any sort. | |||
{{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 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> | |||
===Violations of the spoils-distribution system as rape=== | ===Violations of the spoils-distribution system as rape=== | ||
====Quote from al-Shafi'i==== | ====Quote from al-Shafi'i==== | ||
A quote from ''al-Umm'' of Imam al Shafi'i, the founder of the Shafi'i school of Islamic jurisprudence, is sometimes misrepresented<ref name=":0">{{Citation|archiveurl=https://web.archive.org/web/20201112021758/https://www.call-to-monotheism.com/does_islam_permit_muslim_men_to_rape_their_slave_girls_|url=https://www.call-to-monotheism.com/does_islam_permit_muslim_men_to_rape_their_slave_girls_|author=Bassam Zawadi|publisher=Call to Monotheism|chapter=Does Islam Permit Muslim Men to Rape Their Slave Girls?}}</ref> as forbidding slave owners from raping their female slaves. | A quote from ''al-Umm'' of Imam al Shafi'i, the founder of the Shafi'i school of Islamic jurisprudence, is sometimes misrepresented<ref name=":0">{{Citation|archiveurl=https://web.archive.org/web/20201112021758/https://www.call-to-monotheism.com/does_islam_permit_muslim_men_to_rape_their_slave_girls_|url=https://www.call-to-monotheism.com/does_islam_permit_muslim_men_to_rape_their_slave_girls_|author=Bassam Zawadi|publisher=Call to Monotheism|chapter=Does Islam Permit Muslim Men to Rape Their Slave Girls?}}</ref> as forbidding slave owners from raping their female slaves. | ||
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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. | 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. | ||
=== | ===Quote from Shafi'i on pleasure without compulsion in intercourse=== | ||
A passage from al-Shāfiʿī's ''al-Umm'' is occasionally proposed on Islamic websites as establishing a principle for sexual consent in general from a major legal figure. However, such a generalization is not justified from the context, which is about marital relations and specifically the husband's obligation but not compulsion to satisfy his wife' sexual needs. Here are comments and a translation by Professor Kecia Ali: | |||
{{Quote| | {{Quote|Shāfiʿī's ''al-Umm'' quoted by Kecia Ali, ''Marriage and Slavery in Early Islam'', p.119<ref>Kecia Ali,"Marriage and Slavery in Early Islam", Massachussets: Harvard University Press, 2010, p.119</ref>|Where there was no question of justice to co-wives, Shāfiʿī explicitly denies the wife's claim to a specific amount of intercourse: | ||
<blockquote>He said: And so if she is alone with him [i.e., he has no other wives], or with a slavegirl he has that he has sex with, he is ordered [to fulfill his obligations] in reverence to God the Exalted, and not to do her harm with regard to intercourse, and he is not obligated to any specific amount of it (wa lam yufraḍ ʿalayhi minhu shayʾbi ʿaynihi). Rather, he is only [obligated] to provide what she absolutely cannot do without, maintenance and lodging and clothing, and also to visit her (yaʾwī). However, intercourse is a matter of pleasure and no one is compelled to it. | |||
</blockquote> | |||
Shāfiʿī is unaware of his blinders. He obviously refers only to men when he declares that "intercourse is a matter of pleasure and no one is compelled to it." Women's sexual availability is, for him, a condition of their support and a prerequisite for their rights to visitation: "if any of them [his wives] refuses to have sex with him, she has disobeyed and abandoned her claim."}} | |||
Professor Jonathan A. C. Brown in reference to the same ruling remarks, "Shafiʿi himself, in a ruling followed dutifully by the major figures of his school, did not require a husband to have sex with his wife or slave-concubine because, ‘as for sex, it is a locus of pleasure and no one should be compelled to do it.’"<ref name="Brown2019page283" /> | |||
==See Also== | ==See Also== | ||