Talk:Rape in Islamic law

Surplus

A

Though seldom discussed, forced sex with one’s wife might (or, depending on the circumstances, might not) be an ethical infraction, and conceivably even a legal one like assault if physical violence is involved...This scenario is never, however, illicit in the jurists’ conceptual world. Nonconsensual sex—what contemporary Westerners would term rape—might be either a coercive subset of zina, with blame lifted from the coerced participant, or a at type of usurpation (ightisab ), a property crime that by definition cannot be committed by a husband or owner, who possesses an entitlement to, or ownership over, his wife’s or slave’s sexual capacity.
- (Kecia Ali, Concubinage and Consent)— Kecia Ali (2017). "Concubinage and Consent". International Journal of Media Studies. 49. doi:10.1017/S0020743816001203

Put another way: Coercion within marriage or concubinage might be repugnant, but it remained fundamentally legal.
- (Hina Azam, Sexual Violation in Islamic Law: Substance, Evidence, and Procedure)

For premodern Muslim jurists, as well as for those marginal figures who believe that the permission still holds, the category "rape" doesn't apply: ownership makes sex lawful; consent is irrelevant.
- Kecia Ali, "The Truth About Islam and Sex Slavery History Is More Complicated Than You Think", Huffington Post, August 19th, 2016 (archive) [1]

The silence of the Hanafis can be explained easily: a wife's sexual refusal is irrelevant if not accompanied by her deartre from the conjugal hime, because the hsband is permitted to have sex with her without her consent. Non-Hanafis do not penalize a husband for forcing sex on his wife, but neither do they explicitly authorize it in the way that al-Khassaf does. For all, marital rape is an oxymoron; rape (ightisab) is a property crime that by definition cannot be committed by a husband.
- (Kecia Ali, Marriage and Slavery in Early Islam) — Kecia Ali, Marriage and Slavery in Early Islam, Harvard University Press, p. 120

Though I believe in the strongest possible terms that meaningful consent is a prerequisite for ethical sexual relationships, I am at a loss to find this stance mirrored in the premodern Muslim legal tradition, which accepted and regulated slavery, including sex between male masters and their female slaves....I recall no instance in any Maliki, Hanafi, Shafii, or Hanbali text from the 8th to 10th centuries where anyone asserts that an owner must obtain his female slave’s consent before having sex with her. Indeed, I am aware of no case where anyone asks whether her consent is necessary or
- — Kecia Ali(2017). "Concubinage and Consent". International Journal of Media Studies. 49. doi:10.1017/S0020743816001203

Hanafi texts extend the ruling on loss of support for physical absence to also uphold its converse:physical presence in the marital home suffices for support...A wife who remained in her husband's home but refused him sexually retained her claim to maintenance. Sexual refusal did not constitute nushuz, because it did not, in this view, make her sexually unavailable as long as she remained physically resent, he could have sexual access to her even aginst her will. Where the wife had legitimate grounds for sexual refusal, the situation was more complex. Abu Hanifa and his disciples disagreed as to what constituted legitimate grounds and, moreover, what the line was between enforceable rules and ethical guidelines. When a wife refused sex in order to claim an unpaid dower, Abu Hanifa supported her actions even after consummation. In this case, he held that "it is not lawful, and he sins [if he forces her]." According to Abu Yusuf and Muhammad al-Shaybani, who did not grant her the right to withhold herself for nonpayment of dower after consumation, the husband's forcing her "is lawful and he does not sin." A variant manuscript reads, "It is lawful and he sns," making a distinction between the legality and morality of the husband's actions...Still, while forcible intercourse might or might not be sinful if the wife had the moral high ground because of unpaid dower, if an unpaid dower was not at issue then the husband's right "to have sex with her against her will" went unquestioned. In this case, they agreed: "It is lawful, because she is a wrongdoer (zalima)." The wife's reproachable behavior justifies the husband's actions. Al-Khassaf, who reports these views, did not even raise the possibility that forced intercourse in these circumstances might be a sin.
- (Kecia Ali, Marriage and Slavery in Early Islam)

B

As noted earlier, marriage and a male's ownership of a female slave were the two relationships in which sex could licitly occur according to the Shariah. In marriage, the consent of the wife to sex was assumed by virtue of the marriage contract itself. In the case of the slave-concubine, consent was irrelevant because of the master's ownership of the woman in question. As Kecia Ali has noted, there is no evidence for any requirement for consent from slave women in books of Islamic law in the formative centuries of Islam. Books of Islamic law and natural ethics are full of exhortations for husbands to enter in foreplay and stress the wife's right to orgasm. But such books also foreground Hadiths and laws obliging wives to meet their husbands' sexual needs without contest. [...] In the Shariah, consent was crucial if you belonged to a class of individuals whose consent mattered: free women and men who were adults (even male slaves could not be married off against their will according to the Hanbali and Shafiʿi schools, and this extended to slaves with mukataba arrangements in the Hanafi school). Consent did not matter for minors. And it did not matter for female slaves, who could be married off by their master or whose master could have a sexual relationship with them if he wanted (provided the woman was not married or under a contract to buy her own freedom).
- Jonathan A. C. Brown (2019) Slavery & Islam, pp. 281-282 Jonathan A.C. Brown (2019) Slavery & Islam, London: Oneworld Publications, Chapter 7, pp. 281-282, ISBN 978-1-78607-635-9

The Shariah offered protection to both wives and slave-concubines, but it came not under the rubric of consent but that of harm. By definition, the crime of rape (i.e., forced zina) could not occur within a licit relationship. But transgressive harm could still be done by the man. Wives and concubines could complain to local judges if they were being abused or if his demands for sex were excessive (we will discuss the issue of concubinage and consent in the concluding chapter of this book). The Hanbali scholar Buhūtī (d. 1641) even says that if a master forced a slave woman unable to bear intercourse to have sex and injured her, she would be freed as a result... "According to the Quran, both marriage and ownership (in the case of the female slave and her male master) were relationships in which sex was licit (Quran 23:5-6). Within these relationships, consent for sexual relations was assumed or irrelevant. In marriage the relationship itself entailed ongoing consent for sex, and with a female slave it was not needed (assuming the slave girl was soley owned by one man and not married; in both cases she was off limits). Kecia Ali has observed that there is no evidence for any requirement for consent for sex from slave women in books of Islamic law from the eighth to the tenth centuries"
- Jonathan A.C. Brown (2019) Slavery & Islam, London: Oneworld Publications, Chapter 7, p. 96, ISBN 978-1-78607-635-9

Here the Shariah historically worked differently from modern laws on marital rape, which originated in the 1970s. But the effect is similar: protection. Within marriage, wrongs regarding sex were not conceived of as violations of consent. They were conceived of as harm inflicted on the wife. And in Islamic history wives could and did go to courts to complain and get judges to order husbands to desist and pay damages. So yes, non-consensual sex is wrong and forbidden in Islam. But the operating element to punish marital rape fell under the concept of harm, not non-consent
- ( Jonathan Brown (Feb 16, 2017). "Apology without apologetics". Muslim Matters. )

C

The prescription for abadonment resulted in the same paradox for Hanafi jurists as it did for several exegetes: sexual abandonment caused husbands to suffer unjustly, since they did not deserve to lose their sexual rights because of the wives' nushuz. Al-Kasani offered three solutions to the problem:a husband could abandon his wife verbally rather than sexually...or he could abandon the marital bed but nevertheless have sex with his wofe when he desired her, rather than when she desired him. This ensured that the husand would continue to enjoy his sexual rights while denying a woman her rights; ater all, disciplinary action was meant to discipline a wife and not deny a husband his sdxual rights. The last solution offerdd by Al-Kasani is especially disturbing, since it forces a wife to engage in non-consensual sex. If a wife's nushuz consisted of her sexual refusal, then her husband could have sex with her against her will. According to al-Kasani, marital rae was legally permissible. Marital rape was also regarded as acceptable husbandly conduct by others in the Hanafi legal school. For example Ibn Nujaym argued that as long as wife remains in her husbans's house, she is owed maintenance, even if she is disobedient and withholds sex. This is because as ling as she remains in his house, a husband can dominate her, forcing her to have sex with him. Like al-Kasani, Ibn Nujaym was comfortable with marital rape, seeing it as a natural consequence of a wife's sexual disobedience. Al-Nasafi added an undeniable shade of violence to his discussion on marital rape. While he argued that a necessary condition of hitting one's wife is to leave her intact or sound, soundness is not a cindition for sex. so if a wife dies while her husband is having sex with her, he is not liable. Al-Nasadi understood this to be Abu Hanifa's position, who argued that sexual intercourse-unlike disciplinary beating-was not restricted by the condition of soundness.
- (Ayesha Chaudhry, Domestic Violence and the Islamic Tradition)

Thus, marital rape is literally uncriminalizable under doinant interpretations of the sharia.
- (Ayesha Chaudhry, Domestic Violence and the Islamic Tradition)

While some traditionalist scholars categorically prohibit marital rape, others leave some room for its possibility, even while voicing strong discouragement. Ibn Adam has written that a husband cannot force himself on his wife if she has a legitimate reason for not having sex, which leaves open the possibility of raping a woman if she refuses her husband without a reasonable cause. He makes interesting use of a prophetic report to discourage husbands from raping their wives.
- (Ayesha Chaudhry, Domestic Violence and the Islamic Tradition)

D

Islamic scholars describe that marital rape occurs when the man asks his wife to have sexual intercourse during her menstrual period or in an abnormal sexual position or during fasting hours in Ramadan...If the husband used violence to force his wife to sleep with him, he is legally a sinner and she has the right to go to court and file a complaint against him to get punished. The woman also has the right to refuse to engage in sexual relationship with her husband if he has a contagious disease or use violence which hurts her body during the sexual intercourse.
- (Dar al-Ifta) [2] Dar al-Ifta al-Misriyyah

H

Coercion within marriage or concubinage might be repugnant, but it remained fundamentally legal.
- — Hina Azam, Sexual Violation in Islamic Law: Substance, Evidence, and Procedure, Cambridge University Press, p. 69

The followers of Imam Abu Hanifah said: "The right of the sexual pleasure belongs to the man, not the woman, by that it is meant that the man has the right to force the woman to gratify himself sexually.
- — Al-jaziri, abd Al-rahman; Roberts, Nancy (2009). Islamic Jurisprudence According To The Four Sunni Schools Al Fiqh 'ala Al Madhahib Al Arba'ah. Fons Vitae. ISBN 978-1887752978.

L

The fatal blot in Islam is the degradation of women. ... The Muslim soldier was allowed to do as he pleased with any infidel woman he might meet with on his victorious march. When one thinks of the thousands of women, mothers and daughters, who must have suffered untold shame and dishonour by this license, he cannot find words to express his horror, And this cruel indulgence has left its mark on the Muslim character.
- Stanley Lane-Poole, Selections from the Kur-an, 2nd ed., Preface. Also partially quoted in Ibn Warraq, Why I am not a Muslim p 291

N

From these judicial opinions, rape can be defined in Islamic law as: "Forcible illegal sexual intercourse by a man with a woman wis not legally married to him, without her free will and consent".
- (Rape: A Problem of Crime Classification in Islamic Law, p. 429)

Marital rape in Islam law is similar to other acts of aggression against a wife where she has the right to ask for divorce and prosecutions. As such, the punishment for marital rape is not similar with the severe punishments for ordinary rape.
- Azman Mohd Noor (Rape: A Problem of Crime Classification in Islamic Law, p. 429)

Q

Traditional Muslim jurists discuss a woman’s right to sexual activity within marriage, but her rights to sexual access to her husband (and even to non-sexual companionship) are virtually unenforceable. Indeed, these jurists think of sex as “the husband’s right and not his duty,” so it makes little sense to compel him to do it. Thus, a Muslim wife’s right to sexual pleasure, though morally acknowledged in the scripture and literature, is legally meaningless.
- (Asifa Quraishi-Landes "A Meditation on Mahr, Modernity, and Muslim Marriage Contract Law".)

R

The followers of Imam Abu Hanifah said the right of the sexual pleasure belongs to the man, not the woman, by that it is meant that the man has the right to force the woman to gratify himself sexually.
- (Nancy Roberts, Islamic Jursprudence According to the Four Sunni Schools)

S

Complete legal capacity is only held in a person who has complete control of their body and mind. Slavery is premised upon the absence of control over the body, since it transfers control of the body and labour of the slave to another person, including sexual control. Therefore to ask the question pertaining to compulsion or consent of the enslaved person is to ask a question that does not have legal salience. Enslavement by definition removes the requirement for consent.
- — Seedat, Fatima (2016). "Sexual economies of war and sexual technologies of the body: Militarised Muslim masculinity and the Islamist production of concubines for the caliphate". Agenda. 30 (3). doi:10.1080/10130950.2016.1275558.

There were, according to Muslim warrior Abu Sa’id al-Khadri, “some excellent Arab women” among the captives of the Banu al-Mustaliq. “We desired them, for we were suffering from the absence of our wives, [but at the same time] we also desired ransom for them.” The Qur’an permitted them to have sexual intercourse with slave girls captured in battle—“those captives whom your right hands possess” (4:24)—but if they intended to keep the women as slaves, they couldn’t collect ransom money for them. “So,” Abu Sa’id explained, “we decided to have sexual intercourse with them but by observing azl”—that is, coitus interruptus. Muhammad, however, told them this was not necessary: “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.” Conceptions and births were up to Allah alone. The enslavement and rape of the women were taken for granted.
- The History of Jihad: From Muhammad to ISIS (2018), Robert Spencer, chapter 1, section: THE MUSLIMS TAKE SEX SLAVES

Hadith

When a woman went out in the time of the Prophet for prayer, a man attacked her and overpowered (raped) her. She shouted and he went off, and when a man came by, she said: That (man) did such and such to me. And when a company of the Emigrants came by, she said: That man did such and such to me. They went and seized the man whom they thought had had intercourse with her and brought him to her. She said: Yes, this is he. Then they brought him to the Messenger of Allah. When he (the Prophet) was about to pass sentence, the man who (actually) had assaulted her stood up and said: Messenger of Allah, I am the man who did it to her. He (the Prophet) said to her: Go away, for Allah has forgiven you. But he told the man some good words (AbuDawud said: meaning the man who was seized), and of the man who had had intercourse with her, he said: Stone him to death. He also said: He has repented to such an extent that if the people of Medina had repented similarly, it would have been accepted from them.
- An incident during the time of the Islamic prophet Muhammad would form the basis of later jurisprudence of rape:-
- Sunan Abu Dawood 4379

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.'"
- Sunan an-Nasa'i 4:26:3365

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)."
- Sunan an-Nasa'i 4:26:3362

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.
- Al-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.'"
- Jami` at-Tirmidhi 3:15:1454

Islamic texts on Sharia

But not if she be refractory.—If a wife be disobedient or refractory and go abroad without her husband’s consent, she is not entitled to any support from him, until she return and make submission, because the rejection of the matrimonial restraint in this instance originates with her; but when she returns home, she is then subject to it, for which reason she again becomes entitled to her support as before. It is otherwise where a woman, residing in the house of her husband, refuses to admit him to the conjugal embrace, as she is entitled to maintenance, notwithstanding her opposition, because being then in his power, he may, if he please, enjoy her by force.
- The Hidaya (ref. 11, p. 141) Sheikh Burhanuddin Abi Al Hasan Ali Marghinani [3]

A man may gratify his passion with his female slave in whatever way he pleases- It is lawful for a man to perform the act of Azil (i.e. coitus interruptus) with his female slave without her consent, whereas he cannot lawfully do so by his wife unless with her permission. –The reason of this is that the Prophet has forbidden the act of Azil with a free woman without her consent but has permitted it to a master in the case of his female slave. Besides, carnal connexion is the right of a free woman for the gratifying of her passion, and the propagation of children (whence it is that a wife is at liberty to reject a husband who is an eunuch or impotent); whereas a slave possesses no such right.—A man, therefore, is not at liberty to injure the right of his wife, whereas a master is absolute with respect to his slave. If, also, a man should marry the female slave of another, he must not perform the act of Azil with her without the consent of her master.
- The Hidaya p.600. [4]