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Rape in Islamic Law: Difference between revisions
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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. As numerous passages of Islamic scripture and holy history extoll the taking of [[Kafir_(Infidel)|non-Muslim]]s as prisoners, many Islamic empires and countries have taken non-Muslims and kept them as slaves and sex slaves.<ref name="Slavery 2022">{{cite web | title=Slave past of Kafirs of India and toxic Hindu-Muslim History - Landsca | website=Satyaagrah | date=2022-04-11 | url=https://satyaagrah.com/religion/islam/596-slave-past-of-kafirs-of-india | access-date=2022-04-11}}</ref> | 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. As numerous passages of Islamic scripture and holy history extoll the taking of [[Kafir_(Infidel)|non-Muslim]]s as prisoners, many Islamic empires and countries have taken non-Muslims and kept them as slaves and sex slaves.<ref name="Slavery 2022">{{cite web | title=Slave past of Kafirs of India and toxic Hindu-Muslim History - Landsca | website=Satyaagrah | date=2022-04-11 | url=https://satyaagrah.com/religion/islam/596-slave-past-of-kafirs-of-india | access-date=2022-04-11}}</ref> | ||
The male rapist may be punished with a [[w:hadd|hadd]] penalty - [[stoning|stoning to death]] (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> if not, and if pregnancy proves intercourse, she may receive the punishment for Zina mentioned in the previous sentence.<ref>{{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 requirement of four witnesses for applying a zina hadd penalty in the absence of a confession from a rapist. In some other modern courts where rape is posited as zina, a woman risks being accused of slanderous accusation (qadhf) 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> 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> or she may be deemed to have confessed to sex and prosecuted for [[Zina]] 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> | The male rapist may be punished with a [[w:hadd|hadd]] penalty - [[stoning|stoning to death]] (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> if not, and if pregnancy proves intercourse, she may receive the punishment for Zina as mentioned in the previous sentence.<ref>{{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 requirement of four witnesses for applying a zina hadd penalty in the absence of a confession from a rapist. In some other modern courts where rape is posited as zina, a woman risks being accused of slanderous accusation (qadhf) 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> 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> or she may be deemed to have confessed to sex and prosecuted for [[Zina]] 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> | ||
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> | ||