2,743
edits
Rape in Islamic Law: Difference between revisions
Jump to navigation
Jump to search
no edit summary
| [checked revision] | [checked revision] |
Lightyears (talk | contribs) No edit summary |
Lightyears (talk | contribs) No edit summary |
||
| Line 166: | Line 166: | ||
{{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.}} | {{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.}} | ||
==Scholars permitted rape of pre-menstral child slaves== | |||
While it is relatively well known that [[Forced Marriage|forced marriage]] of [[Child Marriage in Islamic Law|children was permitted]] by all schools of Islamic Jurisprudence<ref>[[Child Marriage in Islamic Law|child marriage]] was not only permitted by all schools of Islamic law, but a father [[Forced Marriage|could even compell]] his pre-pubescent children or his female slaves to marry someone (he could even [[Slavery_in_Islamic_Law#In_Islamic_law|so compell his male slaves]] according to Malikis and some Hanafi scholars). Marriage could even be forced upon post-pubescent virgin daughters according to the Maliki and Shafi'i schools of jurisprudence. Follow the links for details of all these points. Child marriage and forced marriage are obvious contexts in which rape would occur.</ref> (illegal today in most modern Muslim-majority countries), less well known is that intercourse was also permitted with pre-pubescent slave girls. | |||
The istibra' was the period of time during which a man may not have sexual intercourse with a female slave that he has just bought. This was intended to prevent doubts over a child's paternity in case a slave-girl falls pregnant shortly after being bought by a new master. Muslim jurists disagreed on the duration of the istibra', but did discuss its applicability to child slave girls. | |||
The Risala was a famous treatise of Maliki fiqh (jurisprudence). It gives the istibra' for child slave-girls (who do not yet menstruate) as three months. For slaves who do menstruate, the istibra' is instead measured as one menstral period. | |||
{{Quote|[https://www.iium.edu.my/deed/lawbase/risalah_maliki/book33.html The Risala] 33:5|Istibra' is observed in the case of a slavegirl who changes ownership. It is one menstruation. Ownership changes by selling, giving away, capture, or any other way. If the woman menstruates after being in the possession of the new master before he has bought her, then she does not have to observe an istibra' if she has not gone out. '''The istibra' for a child when she is sold is three months''' as it is for a woman who no longer menstruates. There is no istibra' for a woman who has never had intercourse.}} | |||
Ahmad ibn Hanbal was founder of another major school of jurisprudence. Here Abu Dawud reports Ibn Hanbal's response when the latter was asked about the istibra' for child slave-girls: | |||
{{Quote|''Chapters on Marriage and Divorce: Responses of Ibn Ḥanbal and Ibn Rāhwayh'' Chapter 2 (Abu Dawud) §59-61, translated by Susan Spectorsky, University of Texas Press, 1993<ref name="Spectorsky">''Chapters on Marriage and Divorce'' is a compilation of "responses" that Ahmad ibn Hanbal and his friend Ishaq bin Rahwayh gave to various fiqh questions that people asked them. The book is really three different compilations in one: the first from Abu Dawud, the famous Hadith scholar, the second from Abdullah, Ahmad's son, and the last from al-Kausaj, one of Ahmad's students. The three different compilations were collected and translated by Susan A. Spectorsky, a retired professor at Queens College, City University of New York.</ref>|I heard Aḥmad asked about an istībrāʾ for a girl of ten, and he thought there should be one. I heard Aḥmad say, “A girl of ten years of age may become pregnant.” Someone said to Aḥmad while I was listening, “Even if she is too young to menstruate (ṣaghīra)?” He said, “If she is [very] young, that is, if she is still suckling, then waiting an istibrāʾ has no legal consequences.”}} | |||
Ibn Hanbal's son Abdullah too reported his father's views on this question, as well as on the question of sexual touching of pre-menstral slave-girls. Ibn Hanbal permitted either of these after three months: | |||
{{Quote|''Chapters on Marriage and Divorce: Responses of Ibn Ḥanbal and Ibn Rāhwayh'' Chapter 3 (Abdullah) §138-9, translated by Susan Spectorsky, University of Texas Press, 1993<ref name="Spectorsky" />|I said, “What about a man who buys a female slave not old enough to menstruate?” He said, “He abstains from having sexual intercourse with her for three months.” ... I said to my father, “May he have intimate contact other than that of sexual intercourse with his prepubescent female slave?” He said, “Not until he has abstained from having sexual intercourse with her for three months.” [...] | |||
I asked my father about a man who buys a female slave who is too young to menstruate. “How long should he refrain from having sexual intercourse with her?” He said, “For three months.” I said to my father, “What about intimate contact other than that of intercourse? Can he, for example, touch or kiss her?” He said, “I prefer him not to do that. He should wait an istibrāʾ, for I cannot be certain that if he does touch or kiss her and she is pregnant, he will not do so in an unlawful manner.”}} | |||
Sufyan was the teacher of Ibn Hanbal and Ishaq. Here the views of all three are reported by Ahmad's student al-Kausaj: | |||
{{Quote|''Chapters on Marriage and Divorce: Responses of Ibn Ḥanbal and Ibn Rāhwayh'' Chapter 4 (al-Kausaj) §224, translated by Susan Spectorsky, University of Texas Press, 1993<ref name="Spectorsky" />|I said, “Sufyān said, and he was one of those among the scholars (ahl al-ʿilm) whose opinion was sought, that when a man bought a young female slave, one considered too young for sexual intercourse, that it was not necessary for her to wait an ʿidda. He said, ‘What I prefer when a man buys a female slave too young for intercourse is that her new owner should neither kiss her nor have sexual contact with her, until he has waited a period of istibrāʾ on her behalf, in accordance with the sunna [concerning female slaves].’” | |||
Aḥmad said, “What Sufyān said is excellent.” | |||
Isḥāq said, “There is no harm in his kissing her and having sexual contact with her, because she is among those whom one need not fear having to return to her previous owner because of pregnancy.}} | |||
==Punishments for rape== | ==Punishments for rape== | ||
| Line 221: | Line 250: | ||
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.'''}} | 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== | ||