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Rape in Islamic Law: Difference between revisions
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New intro, and new sections on punishments for rape of free women and slaves owned by others
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{{cite web quotebox|url= http://islamqa.info/en/10382|title= Ruling on having intercourse with a slave woman when one has a wife|publisher= Islam Q&A, Fatwa No. 10382|author= |date= November 24, 2005|archiveurl= http://www.webcitation.org/query?url=http://www.islamqa.com/en/ref/10382&date=2012-01-17|deadurl=no}}|2=Islam allows a man to have intercourse with his slave woman, whether he has a wife or wives or he is not married...Whoever regards that as haraam is a sinner who is going against the consensus of the scholars. }} | {{cite web quotebox|url= http://islamqa.info/en/10382|title= Ruling on having intercourse with a slave woman when one has a wife|publisher= Islam Q&A, Fatwa No. 10382|author= |date= November 24, 2005|archiveurl= http://www.webcitation.org/query?url=http://www.islamqa.com/en/ref/10382&date=2012-01-17|deadurl=no}}|2=Islam allows a man to have intercourse with his slave woman, whether he has a wife or wives or he is not married...Whoever regards that as haraam is a sinner who is going against the consensus of the scholars. }} | ||
Rape, known in Islam as zina bi al-ikrah, is generally defined by Muslim jurists as forced intercourse by a man with a woman who is not his wife and without her consent. It is a crime punishable against the rapist with a hadd penalty - stoning (if he is a married person) or lashings (if he is unmarried) - just as he would receive for ordinary zina (unlawful intercourse). There is disagreement on whether he must also pay a dowry. A controversial position of some modern jurists is that the hadd penalty for outlaws should apply to rapists (hadd [[w:Hirabah|Hirabah]]), described in {{Quran|5|33}}. This avoids the four witnesses requirement for the zina hadd penalty to apply when there is no confession.<ref>Dr Azman Mohd Noor, [http://irep.iium.edu.my/16877/1/PUNISHMENT_FOR_RAPE_IN_ISLAMIC_LAW.pdf Punishment for rape in Islamic Law], Malayan Law Journal Articles [2009] 5 MLJ cxiv</ref> | |||
A small number of hadiths are cited to support the Islamic punishments for rape, discussed below. These narrations relate to the rape of free women and of female slaves who are not owned by the man. However, we will see that the Qur'an permits Muslim men to have sexual relations with their female slaves. Kecia Ali, Associate professor of religion, Boston University says regarding sex with slaves: | |||
{{Quote|Kecia Ali, [http://www.huffingtonpost.com/kecia-ali/islam-sex-slavery_b_8004824.html The Truth About Islam and Sex Slavery History Is More Complicated Than You Think], Huffington Post, 2015|2=For premodern Muslim jurists, as well as for those marginal figures who believe that the permission [for slavery] still holds, the category “rape” doesn’t apply: ownership makes sex lawful; consent is irrelevant.}} | |||
Dr. Jonathan Brown, Associate Professor and Chair of Islamic Civilization at Georgetown University (who is a Muslim convert) has made similar comments.<ref>"'slave rape' is a tough term to decipher from a Shariah perspective. A male owner of a female slave has the right to sexual access to her. Though he could not physically harm her without potentially being held legally accountable if she complained, her 'consent' would be meaningless since she is his slave." [https://np.reddit.com/r/islam/comments/3h1abm/this_is_dr_jonathan_brown_professor_at_georgetown/cu3dkhd/ Reddit AMA with Dr. Jonathan AC Brown, 2016</ref> Furthermore, there are narrations in which female captives were raped prior to being ransomed back to their tribe. | |||
==Definitions== | ==Definitions== | ||
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==Qur'an== | ==Qur'an== | ||
There is no equivalent term for ‘[[rape]]’ in the [[Qur'an]]. Likewise, there is not a single verse in the Qur'an which even remotely discourages forced sex. In contrast, there are several verses in this book which give the green light to rape and other sexual crimes against [[Islam and Women|women]]. | There is no equivalent term for ‘[[rape]]’ in the [[Qur'an]]. Likewise, there is not a single verse in the Qur'an which even remotely discourages forced sex. In contrast, there are several verses in this book which give the green light to rape and other sexual crimes against captured and enslaved [[Islam and Women|women]]. | ||
[[Surah]] [[The Holy Qur'an: An-Nisa (Women)|an-Nisa]] discusses lawful and forbidden women for pious Muslims. Before we delve into the particular verse, it should be noted that it is not easy to understand what is being suggested using the verse alone. Therefore, relying on authoritative [[Tafsir]]s (Qur'an interpretations) and [[Sahih]] (authentic) [[Hadith]]s associated with it, are necessary to get the exact picture. | [[Surah]] [[The Holy Qur'an: An-Nisa (Women)|an-Nisa]] discusses lawful and forbidden women for pious Muslims. Before we delve into the particular verse, it should be noted that it is not easy to understand what is being suggested using the verse alone. Therefore, relying on authoritative [[Tafsir]]s (Qur'an interpretations) and [[Sahih]] (authentic) [[Hadith]]s associated with it, are necessary to get the exact picture. | ||
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'''"Some of the Companions of the apostle of Allah were reluctant to have intercourse with the female captives because of their pagan husbands"''' | '''"Some of the Companions of the apostle of Allah were reluctant to have intercourse with the female captives because of their pagan husbands"''' | ||
The Abu Dawud hadith is confirmed | The Abu Dawud hadith is confirmed in Sahih Muslim: | ||
{{Quote|{{Muslim|8|3432}}|Abu Sa'id al-Khudri reported that at the Battle of Hunain Allah's Messenger sent an army to Autas and encountered the enemy and fought with them. Having overcome them and taken them captives, the Companions of Allah's Messenger seemed to refrain from having intercourse with captive women because of their husbands being polytheists. Then Allah, Most High, sent down regarding that:" And women already married, except those whom your right hands possess (Quran 4:. 24)" (i. e. they were lawful for them when their 'Idda period came to an end).}} | |||
On another occasion the only issue of concern for Muhammad's companions was whether the practice of coitus interruptus was permissable while raping captive women. | |||
{{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."}} | ||
A significant additional detail is found in the same hadith in Sahih Muslim. The raped women were to be ransomed back to their tribes later. This undermines the occasional, not to mention grotesque apologetic for such behaviour, which argues that the Muslims, by enslaving women whose husbands they had killed, were saving them from destitution. | |||
{{Quote|{{Muslim|8|3371}}|Abu Sirma said to Abu Sa'id al Khadri (Allah he pleased with him): | |||
O Abu Sa'id, did you hear Allah's Messenger (ﷺ) mentioning al-'azl? He said: Yes, and added: We went out with Allah's Messenger (ﷺ) on the expedition to the Bi'l-Mustaliq and took captive some excellent Arab women; and we desired them, for we were suffering from the absence of our wives, (but at the same time) '''we also desired ransom for them.''' So we decided to have sexual intercourse with them but by observing 'azl (Withdrawing the male sexual organ before emission of semen to avoid-conception). But we said: We are doing an act whereas Allah's Messenger is amongst us; why not ask him? So we asked Allah's Mes- senger (ﷺ), and he said: It does not matter if you do not do it, for every soul that is to be born up to the Day of Resurrection will be born.}} | |||
There is an entire chapter devoted to this in the Sahih Muslim collection. The title of the chapter speaks in volumes as we read: | There is an entire chapter devoted to this in the Sahih Muslim collection. The title of the chapter speaks in volumes as we read: | ||
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{{Quote|{{Quran|70|29-30}}|And those who guard their private parts, except in the case of their wives or those whom their right hands possess-- for these surely are not to be blamed,}} | {{Quote|{{Quran|70|29-30}}|And those who guard their private parts, except in the case of their wives or those whom their right hands possess-- for these surely are not to be blamed,}} | ||
==Punishments for Rape of Free Women and of Slaves Owned by Another Person== | |||
The following hadith (graded Hasan by Dar-us-Salam) narrates Muhammad ordering the punishment by stoning of a confessed rapist who attacked a free woman. | |||
{{Quote|{{al Tirmidhi|15|3|15|1454}}|Narrated 'Alqamah bin Wa'il Al-Kindi: | |||
From his father: "A women went out during the time of the Prophet (ﷺ) to go to Salat, but she was caught by a man and he had relations with her, so she screamed and he left. Then a man came across her and she said: 'That man has done this and that to me', then she came across a group of Emigrants (Muhajirin) and she said: 'That man did this and that to me.' They went to get the man she thought had relations with her, and they brought him to her. She said: 'Yes, that's him.' So they brought him to the Messenger of Allah (ﷺ), and when he ordered that he be stoned, the man who had relations with her, said: 'O Messenger of Allah, I am the one who had relations with her.' So he said to her: 'Go, for Allah has forgiven you.' Then he said some nice words to the man (who was brought). And he said to the man who had relations with her: 'Stone him.' Then he said: 'He has repented a repentance that, if the inhabitants of Al-Madinah had repented with, it would have been accepted from them.'" | |||
}} | |||
The following hadiths concern slaves owned by someone other than the rapist, and reparations are due to the owner in the form of a replacement slave or the amount by which the slave's value has been depreciated. The authenticity of hadiths concerning this incident are graded da'if (weak) by al-Albani, while Dar-us-Salam grade them hasan (good). | |||
{{Quote|{{Al Nasai|26|4|26|3365}}|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.'"}} | |||
The same hadith is found in {{Abudawud|38|4445}}. | |||
In another version of the incident, the rapist of his wife's slave is to be punished by stoning. | |||
{{Quote|{{Al Nasai|26|4|26|3362}}|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)."}} | |||
The same hadith in found in {{Abudawud|38|4444}}. | |||
Additionally, Malik in his Muwatta is reported as commenting: | |||
{{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 mention of paying the depreciation in her value implies that as with the other hadiths, this concerns only slaves owned by someone else rather than by the rapist. | |||
==Muhammad== | ==Muhammad== | ||
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The third sentence is what pertains to the Muslim claim that rape is forbidden. However, the word used is not simply sexual intercourse but is more specifically "prostitution" or "whoredom". Prostitution is not simply about sex, but sex for a price. This is why it is often referred to as one of the oldest professions. What this verse speaks of is a master forcing his maid to be a prostitute thereby making money by allowing other men to have sex with her. This verse says nothing about a master forcing himself upon his slave-girl who is considered "halal" for him according to [[Islamic law]]. The fourth sentence says that if a girl is indeed forced into prostitution, then Allah will forgive her for committing [[zina]]. What this verse does not say is what the punishment should be for a man who forces his maid into prostitution. All it says is that he should not do it. And what it definitely does not say is that a Muslim man cannot force himself on his own slave-girl. | The third sentence is what pertains to the Muslim claim that rape is forbidden. However, the word used is not simply sexual intercourse but is more specifically "prostitution" or "whoredom". Prostitution is not simply about sex, but sex for a price. This is why it is often referred to as one of the oldest professions. What this verse speaks of is a master forcing his maid to be a prostitute thereby making money by allowing other men to have sex with her. This verse says nothing about a master forcing himself upon his slave-girl who is considered "halal" for him according to [[Islamic law]]. The fourth sentence says that if a girl is indeed forced into prostitution, then Allah will forgive her for committing [[zina]]. What this verse does not say is what the punishment should be for a man who forces his maid into prostitution. All it says is that he should not do it. And what it definitely does not say is that a Muslim man cannot force himself on his own slave-girl. | ||
==Conclusion== | ==Conclusion== | ||