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Rape in Islamic Law: Difference between revisions
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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 and 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). | |||
Muhammad | Surah 33 twice gives Muhammad explicit and direct permission to have sex with his existing [[Muhammad's Marriages|wives]] (having married more than a dozen times, he is prohibited here from marrying further) and with any slaves he may possess now or may acquire in the future. | ||
{{Quote|{{ | {{Quote|{{Quran-range|33|50|52}}|O Prophet! Lo! We have made lawful unto thee thy wives unto whom thou hast paid their dowries, '''and those whom thy right hand possesseth of those whom Allah hath given thee''' as spoils of war, and the daughters of thine uncle on the father's side and the daughters of thine aunts on the father's side, and the daughters of thine uncle on the mother's side and the daughters of thine aunts on the mother's side who emigrated with thee, and a believing woman if she give herself unto the Prophet and the Prophet desire to ask her in marriage - a privilege for thee only, not for the (rest of) believers - We are Aware of that which We enjoined upon them concerning their wives and those whom their right hands possess - that thou mayst be free from blame, for Allah is ever Forgiving, Merciful. Thou canst defer whom thou wilt of them and receive unto thee whom thou wilt, and whomsoever thou desirest of those whom thou hast set aside (temporarily), it is no sin for thee (to receive her again); that is better; that they may be comforted and not grieve, and may all be pleased with what thou givest them. Allah knoweth what is in your hearts (O men), and Allah is ever Forgiving, Clement. It is not allowed thee to take (other) women henceforth, nor that thou shouldst change them for other wives even though their beauty pleased thee, '''save those whom thy right hand possesseth'''. And Allah is ever Watcher over all things.}} | ||
=== | ===Safiyah bint Huayy=== | ||
{{Main|Safiyah}} | |||
Safiyah the daughter of Huayy was the wife of a Jewish Rabbi named [[Kinana]]. when Muhammad conquered the Jewish village of Khaibar, he had the Rabbi tortured and then killed. According to an account in Sahih Bukhari, Muhammad then took captive the Rabbi's wife. | |||
{{Quote|{{ | {{Quote|{{Bukhari|1|8|367}}|Narrated 'Abdul 'Aziz: Anas said, 'When Allah's Apostle invaded Khaibar, we offered the Fajr prayer there yearly in the morning) when it was still dark. The Prophet rode and Abu Talha rode too and I was riding behind Abu Talha. The Prophet passed through the lane of Khaibar quickly and my knee was touching the thigh of the Prophet . He uncovered his thigh and I saw the whiteness of the thigh of the Prophet. When he entered the town, he said, 'Allahu Akbar! Khaibar is ruined. Whenever we approach near a (hostile) nation (to fight) then evil will be the morning of those who have been warned.' He repeated this thrice. The people came out for their jobs and some of them said, 'Muhammad (has come).' (Some of our companions added, "With his army.") We conquered Khaibar, took the captives, and the booty was collected. Dihya came and said, 'O Allah's Prophet! Give me a slave girl from the captives.' The Prophet said, 'Go and take any slave girl.' He took Safiya bint Huyai. A man came to the Prophet and said, 'O Allah's Apostles! You gave Safiya bint Huyai to Dihya and she is the chief mistress of the tribes of Quraiza and An-Nadir and she befits none but you.' So the Prophet said, 'Bring him along with her.' So Dihya came with her and when the Prophet saw her, he said to Dihya, 'Take any slave girl other than her from the captives.' Anas added: The Prophet then manumitted her and married her." Thabit asked Anas, "O Abu Hamza! What did the Prophet pay her (as Mahr)?" He said, "Her self was her Mahr for he manumitted her and then married her." Anas added, "While on the way, Um Sulaim dressed her for marriage (ceremony) and at night she sent her as a bride to the Prophet . So the Prophet was a bridegroom and he said, 'Whoever has anything (food) should bring it.' He spread out a leather sheet (for the food) and some brought dates and others cooking butter. (I think he (Anas) mentioned As-SawTq). So they prepared a dish of Hais (a kind of meal). And that was Walima (the marriage banquet) of Allah's Apostle ."}} | ||
===Juwairiyah bint al-Harith=== | |||
A hadith from Sunan Abu Dawud explains how, following a surprise attack on the Banu Mustaliq, Muhammad took captive the "very beautiful" Juwairiyah, making Aisha jealous. | |||
{{Quote| | {{Quote|1=[http://www.searchtruth.com/book_display.php?book=29&translator=3&start=0&number=3920#3920 <!-- http://www.webcitation.org/query?url=http%3A%2F%2Fwww.searchtruth.com%2Fbook_display.php%3Fbook%3D29%26translator%3D3%26start%3D0%26number%3D3920%233920&date=2012-02-17 -->Abu Dawud 29:3920]|2=Narrated Aisha, Ummul Mu'minin: Juwayriyyah, daughter of al-Harith ibn al-Mustaliq, fell to the lot of Thabit ibn Qays ibn Shammas, or to her cousin. She entered into an agreement to purchase her freedom. She was a very beautiful woman, most attractive to the eye. Aisha said: She then came to the Apostle of Allah (peace be upon him) asking him for the purchase of her freedom. When she was standing at the door, I looked at her with disapproval. I realised that the Apostle of Allah (peace be upon him) would look at her in the same way that I had looked. She said: Apostle of Allah, I am Juwayriyyah, daughter of al-Harith, and something has happened to me, which is not hidden from you. I have fallen to the lot of Thabit ibn Qays ibn Shammas, and I have entered into an agreement to purchase of my freedom. I have come to you to seek assistance for the purchase of my freedom. The Apostle of Allah (peace be upon him) said: Are you inclined to that which is better? She asked: What is that, Apostle of Allah? He replied: I shall pay the price of your freedom on your behalf, and I shall marry you. She said: I shall do this. She (Aisha) said: The people then heard that the Apostle of Allah (peace be upon him) had married Juwayriyyah. They released the captives in their possession and set them free, and said: They are the relatives of the Apostle of Allah (peace be upon him) by marriage. We did not see any woman greater than Juwayriyyah who brought blessings to her people. One hundred families of Banu al-Mustaliq were set free on account of her.}} | ||
A hadith in Sahih Bukhari confirms the same narrative. | |||
{{Quote|{{Bukhari|3|46|717}}|Narrated Ibn Aun: I wrote a letter to Nafi and Nafi wrote in reply to my letter that the Prophet had suddenly attacked Bani Mustaliq without warning while they were heedless and their cattle were being watered at the places of water. Their fighting men were killed and their women and children were taken as captives; the Prophet got Juwairiya on that day. Nafi said that Ibn 'Umar had told him the above narration and that Ibn 'Umar was in that army.}} | |||
==Punishments for rape== | |||
===Rape of a free woman=== | |||
Muhammad ordered the stoning of a confessed rapist who attacked a free woman to whom he was not married. | |||
{{Quote|{{al Tirmidhi|15|3|15|1454}}; see also {{Muwatta|36||14}}|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 | ===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 this incident are graded da'if (weak) by al-Albani, while Dar-us-Salam grade them hasan (good). | |||
{{Quote|{{Al | {{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.'"}} | ||
In another, similar incident, the rapist of his wife's slave is to be punished by stoning. | |||
{{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)."}} | |||
Additionally, Malik in his Muwatta is remarks: | |||
{{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.}} | |||
==Limitations on rape== | |||
=== Avoiding severe physical injury === | |||
Beyond the temporary requirement of waiting past the ''Iddah'' period or conversion of a slave, the only restriction on raping one's slaves or wives is that the victims not incur severe physical injury in the process. However, this derives from a generic prohibition against incurring severe physical injury upon anyone at any time, and men are authorized 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. | |||
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 wives and slaves against their will through means other than penetration (the example of "[[thighing]]" being one discussed explicitly by Islamic jurists) if such less egregious means will help avoid severe physical injury. | |||
===Waiting until the completion of the ''Iddah'' or childbirth=== | |||
A hadith graded sahih by Dar-us-Salam in Abu Dawud describes the ''Iddah'' waiting period as the "one menstrual period" after acquisition of the slave wherein the new owner must abstain from sexual contact in order to ascertain whether or not the slave is pregnant, so as not to confuse paternity. | |||
{{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.}} | |||
Another hadith graded sahih by Dar-us-Salam in Tirmidhi explains that if the slave is pregnant | |||
{{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."}} | |||
===Waiting until polytheist slaves convert, by force if necessary=== | |||
{{ | Although Muhammad's men seem to have had intercourse with captive polytheist women whom they had captured during the expedition to Awtas/Autas, most jurists later ruled that this was later forbidden by {{Quran|2|221}} (the verse only forbids marriage to polytheist women, but scholars inferred that this also applied to intercourse with slaves). Intercourse with Muslim, Christian, or Jewish slaves was not affected by this restriction.<ref>{{Citation|url=https://www.islamweb.net/en/fatwa/272452/|archiveurl=https://web.archive.org/web/20201227215257/https://www.islamweb.net/en/fatwa/272452/|title=Ruling on sexual intercourse with one's polytheistic slave-woman|date=November 14, 2014|publisher=Islamweb.net}}</ref> | ||
Early scholars of fiqh devised a workaround for this restriction, including the allowance of raping younger captives who were polytheist: | |||
{{Quote|{{citation| last=Friedmann | first=Yohanan| title=Tolerance and Coercion in Islam: Interfaith Relations in the Muslim Tradition|publisher=Cambridge University Press|ISBN=9780511497568|pages=107-108|date=August 2009|series=Cambridge Studies in Islamic Civilization|url=https://www.cambridge.org/core/books/tolerance-and-coercion-in-islam/603974A9EFEDC7FBD00B38D0845AECAA|archiveurl=https://web.archive.org/web/20180614220208/https://www.cambridge.org/core/books/tolerance-and-coercion-in-islam/603974A9EFEDC7FBD00B38D0845AECAA}}|According to a report included in the ''Jāmi‘'' of al-Khallāl (d. 311 A.H. / 923 A.D.), '''Ibn Hanbal maintained that | |||
:'''if Zoroastrian and idolatrous women are taken prisoner, they are coerced into Islam; if they embrace it, sexual relations with them are permissible''' and they can (also) be used as maidservants. If they do not embrace Islam, they are used as maidservants but not for sexual relations (''wa idhā subhīna (sic) al-majūsiyyāt wa ‘abadat al awthān ujbirna 'alā al-Islām fa-in asl ama wutiʼna ma 'stukhdimna wa in lam yuslimna 'stukhdimna wa lam yūtaʼna''). | |||
The | The contradiction inherent in this passage is evident: despite the unspecified coercive measures, some of the women in question refused conversion and, consequently, the masters could not take full advantage of their services. If the only way to embrace Islam is pronouncing the declaration of faith, the conversion of a defiant woman may not be possible: it is not always feasible to force someone to utter the shahāda. '''According to a tradition transmitted on the authority of Hasan al-Basri, the Muslims used various devices to attain their objective: they turned the Zorastrian slave-girl toward the Ka‘ba, ordered her to pronounce the shahāda and to perform ablution. Her master then engaged in sexual relations''' after she had one menstruating period while in his house. Others hold that the master must teach the slave-girl to pray, to purify herself and to shave her private parts before any intercourse. The participation of the girl in this procedure is minimal, and this wording may be interpreted us a considerable lowering of the conversion requirements so that the girl becomes eligible for sexual intercourse as expeditiously as possible. Among the early traditionists, only '''a few were willing to go beyond this and allow sexual relations with a Zoroastrian slave-girl without insisting on at least a semblance of conversion'''. | ||
Shafi‘i's treatment of the issue is slightly different. Speaking of grown-up Zoroastrian or polytheist women taken into captivity, he maintains that no sexual relations with them are allowed before they embrace Islam without bringing up the question of converting them forcibly. If the female captives are minor but were taken captive with at least one of their parents, the ruling is the same. '''If, however, the girl was captured without her parents, or one of her parents embraced Islam, she is considered a Muslim and is coerced into embracing it''' (''nahkumu lahā bihukm al-Islām wa nujbiruhā ‘alayhi''). '''Once this happens, sexual relations with her are lawful.'''}} | |||
==Modern perspectives== | ==Modern perspectives== | ||