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Rape in Islamic Law: Difference between revisions
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The Prophet (ﷺ) sent `Ali to Khalid to bring the Khumus (of the booty) and I hated `Ali, and `Ali had taken a bath (after a sexual act with a slave-girl from the Khumus). I said to Khalid, "Don't you see this (i.e. `Ali)?" When we reached the Prophet (ﷺ) I mentioned that to him. He said, "O Buraida! Do you hate `Ali?" I said, "Yes." He said, "Do you hate him, for he deserves more than that from the Khumus."}} | The Prophet (ﷺ) sent `Ali to Khalid to bring the Khumus (of the booty) and I hated `Ali, and `Ali had taken a bath (after a sexual act with a slave-girl from the Khumus). I said to Khalid, "Don't you see this (i.e. `Ali)?" When we reached the Prophet (ﷺ) I mentioned that to him. He said, "O Buraida! Do you hate `Ali?" I said, "Yes." He said, "Do you hate him, for he deserves more than that from the Khumus."}} | ||
===Muhammad | ===Muhammad Did not Consider Intercourse Between a Master and his Slave to be Zina (Adultery)=== | ||
As noted in a later section below, punishments for rape applied only to free women and slaves not owned by the perpetrator. Similarly, zina (fornication or adultery) only applied to intercourse with women in those two groups, but not to intercourse with one's own slave women according to Muhammad in this hadith graded Hasan by al-Albani: | |||
{Quote|{{Abudawud||12|2258}}| 'Amr b. Shu'aib on his father's authority said that his grandfather reported: | |||
The Prophet (ﷺ) decided regarding one who was treated as a member of a family after the death of his father, to whom he was attributed when the heirs said he was one of them, that if he was the child of a slave-woman whom the father owned when he had intercourse with her, he was included among those who sought his inclusion, but received none of the inheritance which was previously divided; he, however, received his portion of the inheritance which had not already been divided; but if the father to whom he was attributed had disowned him, he was not joined to the heirs. | |||
'''If he was a child of a slave-woman whom the father did not possess or of a free woman with whom he had illicit intercourse''', he was not joined to the heirs and did not inherit even if the one to whom he was attributed is the one who claimed paternity, '''since he was a child of fornication whether his mother was free or a slave.''' }} | |||
===Muhammad had Intercourse with his Slave=== | ===Muhammad had Intercourse with his Slave=== | ||
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The mention of paying the depreciation in her value implies that as with the other hadiths, this concerns only slaves owned by someone else rather than by the rapist. | The mention of paying the depreciation in her value implies that as with the other hadiths, this concerns only slaves owned by someone else rather than by the rapist. | ||
==Limitations on Rape of Slaves by their Masters== | |||
===Muhammad Forbids Intercourse with Female Captives Until they have Completed their Iddah or Given Birth if Pregnant=== | |||
The following hadith is graded Hasan by Dar-us-Salam: | |||
{{Quote|{{Al Tirmidhi||3|19|1564}}|Narrated Umm Habibah bint 'Irbad bin Sariyah: | |||
From her father who told her that the Messenger of Allah (ﷺ) prohibited intercourse with female prisoners, until they deliver what is in their wombs."}} | |||
Similarly in Sunan Abu Dawud, which in addition mentions the Iddah waiting period (to avoid doubts over paternity if the slave woman gives birth later). This hadith is graded Sahih by Dar-us-Salam: | |||
{{Quote|{{Abudawud||2152|hasan}}|Abu Sa’id Al Khudri traced to Prophet (ﷺ) the following statement regarding the captives taken at Atwas. There must be no intercourse with pregnant woman till she gives birth to her child or with the one who is not pregnant till she has had one menstrual period.}} | |||
===Intercourse with Polytheist Slave Women Forbidden by Scholars=== | |||
While Muhammad's men clearly had intercourse with polytheist slave women as evidenced by the hadiths quoted in the sections above, most scholars ruled that this was later forbidden by {{Quran|2|221}} (which forbids marriage to polytheist women, but scholars inferred that it also applied to slaves). Intercourse with Muslim, Christian or Jewish slaves was not affected by this restriction.<ref>[http://www.islamweb.net/emainpage/index.php?page=showfatwa&Option=FatwaId&Id=272452 Ruling on sexual intercourse with one's polytheistic slave-woman - IslamWeb.net Fawah 272452]</ref> | |||
==Muhammad's Slave Women and Qur'an 33:50== | ==Muhammad's Slave Women and Qur'an 33:50== | ||
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In any case, the claim is false. Verses 23:1-6 and 70:29-30 (quoted above) clearly distinguish slaves from wives, and make clear that sexual relations are permitted with both. Verses 4:23-24 merely permit men to marry their slaves, but do not say that marriage as a necessary condition for intercourse with them. Further, the hadith evidence quoted above shows that captives were sometimes raped before being ransomed. Clearly these women were not valued by their captors for anything besides sex and ransom purposes, let alone married to them. | In any case, the claim is false. Verses 23:1-6 and 70:29-30 (quoted above) clearly distinguish slaves from wives, and make clear that sexual relations are permitted with both. Verses 4:23-24 merely permit men to marry their slaves, but do not say that marriage as a necessary condition for intercourse with them. Further, the hadith evidence quoted above shows that captives were sometimes raped before being ransomed. Clearly these women were not valued by their captors for anything besides sex and ransom purposes, let alone married to them. | ||
Further, it is well established that a slave who is impregnated by her master to whom she is not married becomes an Umm Walad and remains a slave during his lifetime unless he frees her. | |||
In the following hadith, Muhammad has no objections to a man who has intercourse with his slave woman to who he is not married: | |||
{{Quote|{{Muslim|8|3377}}| Abu Sa'id al-Khudri (Allah be pleased with him) reported that mention was made of 'azl in the presence of Allah's Apostle (ﷺ) whereupon he said: | |||
Why do you practise it? They said: There is a man whose wife has to suckle the child, and if that person has a sexual intercourse with her (she may conceive) which he does not like, and there is another person who has a slave-girl and he has a sexual intercourse with her, but he does not like her to have conception so that she may not become Umm Walad, whereupon he (the Holy Prophet) said: There is no harm if you do not do that, for that (the birth of the child) is something pre- ordained. Ibn 'Aun said: I made a mention of this hadith to Hasan, and he said: By Allah, (it seems) as if there is upbraiding in it (for 'azl).}} | |||
===Claims about verse 24:33=== | ===Claims about verse 24:33=== | ||