Rape in Islamic law

In Islam, human sexuality is governed by God's law. Accordingly, sexual violation is regarded as a violation of moral and divine law.[1] Islam divided claims of sexual violation into 'divine rights' (huquq Allah) and 'interpersonal rights' (huquq al-'ibad): the former requiring divine punishment (hadd penalties) and the latter belonging to the more flexible human realm.[2]

Rape is considered a serious sexual crime in Islam. Classical Islamic law (Shari'a) regarded the crime of sexual violation as a coercive zina, and therefore a hadd offence.[1] However, it allows men to have sex with female slaves and captives of war without any regard to their consent.[3][4][5] There is also a lack of recognition of marital rape by mainstream jurists.[6]

Definition

Rape is considered a serious sexual crime in Islam, and can be defined in Islamic law as: "Forcible illegal sexual intercourse by a man with a woman who is not legally married to him, without her free will and consent".[7]

Islamic law, like the legal systems of classical antiquity and the ancient Near East, does not contain a true equivalent of the modern concept of rape, which is in turn based on the modern notions of individual autonomy and inviolability of the body, particularly the female body. In modern terms, rape is at its most basic level a violation of another person's sexual autonomy. In the communally and patriarchically oriented societies of Late Antiquity, a woman's sexuality was construed as something in control of her legal guardian or owner rather than in her individual control. Therefore, the category of coercive sexual violation was not clearly differentiated from other categories such as consensual violation of sexual norms (seduction).[8]

The terms ghasaba and ightasaba have been used by traditional jurists when discussing sexual assault and its punishment. Most jurists hold that rape is committing zinā by force, hence rape is known as zinā bī al-ikrāh (Arabic: زنا بالإكراه‎). Al-Shāfi‘ī defined rape as: "Forcing a woman to commit zinā against her will". To the Ḥanafis, illegal intercourse is considered rape when there is no consent and no deliberate action from the victim. In Mālik’s view, rape refers to any kind of unlawful sexual intercourse (zinā) by usurpation and without consent. This includes instances when the condition of the victims prevents them from expressing their resistance, such as insanity, sleep or being under age. The Ḥanbalites, similar to the Mālikites, consider the use of any kind of force as a denial of consent from the victim. The threat of starvation or suffering the cold of winter are also regarded as against one's will.[7]

Relationship with zina

Classical Islamic law defined what today is commonly called "rape" as a coercive form of fornication or adultery (zināʾ).[9] This basic definition of rape as "coercive zināʾ" meant that all the normal legal principles that pertained to zināʾ – its definition, punishment and establishment through evidence – were also applicable to rape; the prototypical act of zināʾ was defined as sexual intercourse between a man and a woman over whom the man has neither a conjugal nor an ownership right.[9] What distinguished a prototypical act of zināʾ from an act of rape, for the jurists, was that in the prototypical case, both parties act out of their own volition, while in an act of rape, only one of the parties does so. Jurists admitted a wide array of situations as being "coercive" in nature, including the application of physical force, the presence of duress, or the threat of future harm either to oneself or those close to oneself; they also included in their definition of "coercion" the inability to give valid consent, as in the case of minors, or mentally ill or unconscious persons. Muslim jurists from the earliest period of Islamic law agreed that perpetrators of coercive zināʾ should receive the ḥadd punishment normally applicable to their personal status and sexual status, but that the ḥadd punishment should not be applied to victims of coercive or nonconsensual zināʾ due to their reduced capacity.[9]

The crime of rape, according to Sunni Ḥanafī and Mālikī jurists, is as an act of zinā. If the consent was granted under coercion or in a defective legal capacity such as by a mentally impaired person, it is considered non-consent or invalid consent.[10]

Marital rape

The majority of Islamic jurists do not recognise marital rape as rape,[11] although some interpretations of Islamic law prohibit marital rape.[12][6]

The fiqh manual Hidaya, which contains the official positions of the Hanafi school of jurisprudence (which is the maddhab with the largest number of followers among Sunni Muslims), states that the husband may enjoy his wife by force regardless of her opposition.[13] According to the Hanafis, the right of sex belongs to the man and he may force the woman to have sex with him.[14]

According to Georgetown University professor Jonathan A.C. Brown, Islamic law has historically handled marital rape differently from modern laws, which originated in the 1970s, but the effect is similar i.e protection.[15] Sexual abuse within marriage was conceptualized as harm inflicted on the wife rather than violation of consent.[15] He states that the historical record shows that women were able to go to court and force their husbands to desist and pay damages in such cases.[15]

According to one scholar, Islamic law classified marital rape as an act of aggression against the wife. Marital rape can lead to prosecutions against the husband and the wife obtaining divorce, but the punishments are not as severe as they are against other forms of rape.[16]

According to Dar al-Ifta al-Misriyyah, Islamic scholars condemn when a husband uses violence to force his wife to sleep with him, asks his wife to have sexual intercourse during her menstrual period or in an abnormal sexual position or during fasting hours in Ramadan. In response the wife has the right to take her husband to court and he must be punished for the act. According to this opinion, a wife has numerous grounds to refuse sexual relations with her husband, including if he has a contagious disease or if sexual intercourse hurts her body.[17] According to him Islamic law advises that the sexual intercourse between man and wife should be conducted with intimacy and love;[17] this would be supported by Quran 2:223,[17] which although defines the man's wives as his own personal "tilth" and invites him to approach them "when or how [he] will", prescribes to "do some good act for [his and his wives'] souls beforehand":

Your wives are as a tilth unto you; so approach your tilth when or how ye will; but do some good act for your souls beforehand; and fear Allah. And know that ye are to meet Him (in the Hereafter), and give (these) good tidings to those who believe.

— Qur'an, ^{[Quran 2:223]}

Kecia Ali states that while medieval jurists classified rape under the crime of ightisab, no medieval jurist classified marital rape as such.[18] The term ightisab refers to "usurping something that belongs to another by force and against the person's will"; it denotes something "ugly" and "reprehensible".[19] Nevertheless, most medieval jurists made a distinction between forced and consensual sex within marriage.[18] Hina Azam writes that the crime of marital rape doesn't arise in classical Islamic jurisprudence, but they did address issue of a husband injuring his wife sexually. For example, perineal tearing by the husband was criminalized and entitled the wife to monetary compensation.[20]

Punishment of a convicted rapist

Rape is punishable in some circumstances by the ḥadd of zinā as well as in some circumstances by the ḥadd of ḥirābah and it is also complemented by ta‘zīr.[7]

Ḥadd of zinā

Most classical scholars argued for applying the ḥadd penalty for zinā to a convicted rapist, which is stoning to death for the married (muḥsān), or a flogging of 100 lashes and deportation for the unmarried (ghair-muḥsān). They base their argument on a hadith which reports a rape case at the time of the Prophet, where the victim was excused and her rapist (who was married) was sentenced to be stoned to death.[7][21]

Ḥadd of Ḥirābah as a penalty for rape

Certain classical jurists (Al-Tabari and the Maliki Ibn al-'Arabi) and more modern interpretations (The Religious Council of Egypt among others) have classified the crime of rape not as a subcategory of zinā, but rather a separate crime of violence under hirabah (forcible and violent taking), i.e. a violent crime causing disorder in the land in the manner described in the Qur'an (5:33) as fasad (destructive mischief). A similar crime, for example, would be highway robbery, as it puts fear in people going out or losing their property through violence. Thus, the rapist will be considered to be under the category of people who are outlaws and a danger towards the peace and security of the society.[7]

Rape as Ta‘zīr

Some modern researchers maintain that offenders be allotted a ta'zir penalty upon the discretion of the authorities. To them, rape deserves a ta‘zīr penalty when a conviction is reached as a result of circumstantial evidence, such as marks of violence about the genitals, marks of violence on the body of the victim or accused, the presence of semen or blood-stains on the body or clothes of the victim or accused, or a medical report, all of which are sufficient for ta‘zīr only. Under the principle of al-fi‘l al-darr (Islamic law of Tort), it is possible for a victim to make a claim for moral damages, which may include violation of a person’s freedom, dignity, reputation, social or financial status.[7]

Financial compensation

According to the Mālikī, Ḥanbalī, and Shāfiʾī schools of law, the rape of a free woman consisted of not one but two violations: a violation against a "right of God" (ḥaqq Allāh), provoking the ḥadd punishment; and a violation against a "human" (interpersonal) right (ḥaqq ādamī), requiring a monetary compensation. These jurists saw the free woman, in her proprietorship over her own sexuality (buḍʾ), as not unlike the slave-owner who owns the sexuality of his female slave. For them, in the same way that the slave owner was entitled to compensation for sexual misappropriation, the free woman was also entitled to compensation. The amount of this compensation, they reasoned, should be the amount that any man would normally pay for sexual access to the woman in question – that is, the amount of her dower (ṣadāq or mahr).[9]

Prosecution of rape

If a woman claims to have been raped or sexually abused under duress, she will be acquitted of adultery in light of Qur'anic verse 24:33, which states that a woman has not sinned when compelled to commit this crime.[22]

According to Professor Oliver Leaman, the required testimony of four male witnesses having seen the actual penetration applies to illicit sexual relations (i.e. adultery and fornication), not to rape.[23] The requirements for proof of rape are less stringent:

Rape charges can be brought and a case proven based on the sole testimony of the victim, providing that circumstantial evidence supports the allegations. It is these strict criteria of proof which lead to the frequent observation that where injustice against women does occur, it is not because of Islamic law. It happens either due to misinterpretation of the intricacies of the Sharia laws governing these matters, or cultural traditions; or due to corruption and blatant disregard of the law, or indeed some combination of these phenomena.[23]

Abortion

As far as abortion in the context of rape, most jurist do not consider rape to be a valid reason: the sanctity of the new life takes precedence over the autonomy of the pregnant women.[24]

Muslim scholars have held that the child of rape is a legitimate child and thus it would be sinful to kill this child. Scholars permit its abortion only if the fetus is less than four months old, or if it endangers the life of its mother.[25]

When the pregnancy is unplanned and therefore unwanted, as in the case of rape, the parents, [have to/should, as adoption is unlawful] abort the fetus and thus prevent the disgrace that awaits both mother and child [..] the child born of rape, like one born of adultery (walad zina) is a more lowly member of society with regard of the rights he or she is guaranteed and the social status he or she can attain.

— [25]

Muslim scholars were urged to make exceptions in the 1990s following rapes of Kuwaiti women by Iraqi soldiers (in 1991) and the rape of Bosnian and Albanian women by Serb soldiers. In 1991, the Grand Mufti of Palestine, Ekrima Sa'id Sabri took a different position than mainstream Muslim scholars. He ruled that Muslim women raped by their enemies during the Kosovo War could take abortifacient medicine, because otherwise the children born to those women might one day fight against Muslims.[25]

References

1. Wolf, Leslie F. (10 December 2016). "Leslie F. Wolf; Sexual Violation in Islamic Law: Substance, Evidence, and Procedure By HINA AZAM". Journal of Islamic Studies: etw060. doi:10.1093/jis/etw060.
2. Semerdjian, Elyse (18 July 2017). "Sexual Violation in Islamic Law: Substance, Evidence, and Procedure". Journal of Middle East Women's Studies. 13 (2): 315–317. doi:10.1215/15525864-3861356.
3. Myrne, Pernilla (6 June 2019). "Slaves for Pleasure in Arabic Sex and Slave Purchase Manuals from the Tenth to the Twelfth Centuries". Journal of Global Slavery. 4 (2): 196–225. doi:10.1163/2405836X-00402004. As men were legally permitted to have sexual relations with their female slaves, enslaved women could be used for sexual service. Erotic compendia and sex manuals were popular literature in the premodern Islamic world, and are potentially rich sources for the history of sex slavery, especially when juxtaposed with legal writings.
4. Suad, Salma (May 1990). The legal and social status of women in the hadith literature (PDF) (PhD). Retrieved 2020-08-05. In fact, concubines were owned by masters, who had either bought, captured or received them as a present. Their owners had the right to have sexual intercourse with them and these affairs were never regarded as adulterous or sinful. This kind of relationship was practised among the Arabs before Islam and it was legalised during Islamic times with new elements and conditions.
5. https://books.google.com/books?id=l0SyDwAAQBAJ&pg=PA5
6. Susila, Muh Endriyo (2013). "Islamic Perspective on Marital Rape". Jurnal Media Hukum. 20 (2): 328.
7. Noor, Azman Mohd (1 January 2010). "Rape: A Problem of Crime Classification in Islamic Law". Arab Law Quarterly. 24 (4): 417–438. doi:10.1163/157302510X526724.
8. Hina Azam (2015). Sexual Violation in Islamic Law: Substance, Evidence, and Procedure. Cambridge University Press. pp. 16–17.
9. Kassam, Zayn. "The Oxford Encyclopedia of Islam and Law". Oxford Islamic Studies Online. Retrieved 3 May 2013.
10. Hina Azam (2013). "Competing Approaches to Rape in Islamic Law". In Marie A. Failinger; Elizabeth R. Schiltz; Susan J. Stabile (eds.). Feminism, Law, and Religion. Farnham, Surrey, England: Ashgate. pp. 328–329. ISBN 978-1-4094-7481-4.
11. Susila, Muh Endriyo (2013). "Islamic Perspective on Marital Rape". Jurnal Media Hukum. 20 (2): 328.
12. ELEANOR ROSS. "World's Largest Gathering of Female Muslim Clerics Issue Fatwa Against Marital Rape, Child Marriage". Newsweek.
13. ibn Abī Bakr Marghīnānī, ʻAlī. The Hedaya, Or Guide: A Commentary on the Mussulman Laws. p. 141.
14. 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. 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.
15. Jonathan Brown (Feb 16, 2017). "Apology without apologetics". Muslim Matters. Retrieved July 31, 2017.
16. "Rape: A Problem of Crime Classification in Islamic Law". Arab Law Quarterly. 24 (4): 429.
17. "Does marital rape exist in Islam?". Dar al-Ifta al-Misriyyah.
18. Ali, Kecia. Marriage and Slavery in Early Islam. Harvard University Press. p. 120.
19. Sonbol, Amira El-Azhary. Women of Jordan: Islam, Labor, and the Law. Syracuse University Press. p. 205.
20. Azam, Hina. Sexual Violation in Islamic Law: Substance, Evidence, and Procedure. Cambridge University Press. p. 19.
21. Jami` at-Tirmidhi, 17:37 Archived 2013-01-26 at the Wayback Machine, Sunan Abu Dawood, 38:4366
22. Zakariyah, Luqman (2015). Legal maxims in Islamic criminal law : theory and applications. Leiden Boston: Brill Nijhoff. p. 141. ISBN 90-04-30487-8.
23. Leaman, Oliver (2013). Controversies in Contemporary Islam. New York: Routledge. p. 78. ISBN 978-0-415-67613-7.
24. Moosa, Ebrahim. "Encyclopedia of Islam and the Muslim World". Macmillan Reference USA.
25. Rispler-Chaim, Vardit (2003). "Chapter 4: The Right Not to Be Born: Abortion of the Disadvantaged Fetus in Contemporary Fatwas". In Brockopp, Jonathan E (ed.). Islamic Ethics of Life: Abortion, War, and Euthanasia. Columbia, SC: University of South Carolina Press. pp. 87–88.