Rape in Islamic law

"Coercion within marriage or concubinage might be repugnant, but it remained fundamentally legal."

"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."

"...marital rape is an oxymoron; rape (ightisab) is a property crime that by definition cannot be committed by a husband."

"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"

"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."

"Thus, marital rape is literally uncriminalizable under dominant interpretations of shari‘a."

"The last solution offered 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 rape was legally permissible."

"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."

"A woman went out to pray at the time of the Prophet, and she was met by a man who attacked her and had his way with her. She screamed and he went away. Then another man passed by and she said: “This man did such and such to me.” A group of the Muhājirīn came by, and she said: “That man did such and such to me.” They caught the man who she thought was the one who had attacked her, and brought him, and she said: “Yes, this is the one.” They brought him to the Messenger of Allah, and when he issued orders concerning him, the one who had attacked her, stood up and said: “O Messenger of Allah, I am the one who attacked her.” He said to her: “Go, for Allah has forgiven you, and he said kind words to the man. [...] And he said concerning the man who had attacked her: “Stone him.” And he said: “He has repented in such a manner that if the people of Al-Madīnah repented like this, it would be accepted from them."

"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."

"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."

"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."

"Sixteenth and seventeenth century Ottoman legislation on adultery and rape, for example, stipulated the frequent use of fines, moving away from the earlier emphasis on corporal punishment The hadd penalty for flogging or death for sexual crime *or even else severe tazir variations on this punishment) was for the most part replaced in this period by a scale of fines that depended on an individual's marital, religious, and economic status. This did not mean, however, that hadd punishments disappeared completely. As Leslie Peirce notes, the punishments articulated in the codes are “qualified .. with the brief statement provided the sharia punishment is not applied.'” Nonetheless, the basic assumption was that “the fine for adultery imposed on a rich Muslim was six times greater than that imposed on a poor Muslim and twelve times that imposed on a poor non-Muslim or a slave” Fines tied to both economic and political/religious status, in other words, replaced universal physical punishments applicable to everyone in the Muslim community."

"I should also emphasize that corporal punishment continued to play a role in the jurisprudence of the early modern period. As Judith Tucker notes in her analysis of seventeenth and eighteenth century legal structures in Ottoman Syria, for example, the shifting line between adultery and rape led many jurists to develop completely new types of physical punishment to respond to sexual crime. While noting that most judges did not make use of these prescriptions int heir actual adjudications, Tucker observes that, [t]he various evolving Ottoman criminal codes (kanun) authorized the Islamic judge to fine a perpetrator of simple za in lieu of applying the hadd penalty of the shari'a, but in the case of forced abduction and rape, whether of a woman, a girl, or a boy, the criminal code prescribed castration of the guilty."

"In this interpretation, in other words, zina as rape led to a severe, corporal tazir punishment that bore very little relationship to hadd adjudifications. At the same time, however, it was not just zina as rape, but rape along with abduction-the movement of perpetrator and his victim across space-that merited this particularly formidable response. The crime, that is, was conceived of as one that struck not just at sexual morality, but also at emerging notions of public and private space. And indeed, a second moment at which corporal punishment continued to be invoked was one that also revolved around questions of space. In this situation, however, the issue at stake was the respectability of the woman involved in the case. As Pierce argues, [I]f the mufti gave the category muhaddere [respectable] a definition, imperial law endowed it with material consequences. According to the statute books issues by the sultans, penalties for illegal behavior might differ according to whether a woman was muhaddere or not ...[i]n other words, the non-muhaddere woman might suffer a severe flogging and a substantial fine, while the parallel punishment for the muhaddere woman was the public humiliation of her husband the imposition of a comparatively lesser fine. By translating muhaddere as “respectable,” Peirce provides the literal translation (veiled, modest, concealed) with a significant social and legal meaning. At the same time, however, by choosing the word “respectable” in particular, she likewise gets at nascent modern notions of, of course, “respectability,” of the spaces in which respectable women travel, of where exactly women of what type move.33 Along with this new, sliding scale of fines linked to social status linked to corporal punishment,34 therefore, we can also see by the seventeenth and eighteenth centuries an interest on the part of the Ottoman government in defining not just the contract and copulation as they relate to sexual crime, but the sexual, moral, marital, economic, and political status of the individuals involved in them-especially to the extent that this status was manifested in movement across space."

"Obviously, the rhetoric of the public/private distinction that would underlies modern political behavior had not been constructed in the Ottoman Empire in the sixteenth and seventeenth centuries. There does, however, appear to be a starting point set for an eventual movement in that direction. A hierarchy of sexual vulnerability (married women to young boys to unmarried women to adult men) is being formulated here and then linked to notions of physical mobility and space. Those who are more sexually vulnerable cannot venture out into public space; those who are less so can cross the public/private divide with more confidence. Likewise, those who are a threat are primarily defined as such because they are capable of carrying those who are threatened across spatial lines. And indeed, theoretically, at least, the crime that was rape occurred only as a result of a violation of these assumptions about space.38 Finally, for women but not for men,39 it was the precise act of entering into a contract (marriage, concubinage) that redefined both sexual vulnerability and physical mobility. It was indeed the contract above all that defined sexualized political space (“the public”) and politicized sexual space (“the private”)."

"In medieval early modern Islamic legislation on zina, therefore, a number of issues collide with one another, setting the foundation for eventual modern reinterpretations. Most fundamentally, sex law is intimately connected in this jurisprudence-as it is in the modern period-to both political identity and political space. At the same time, however, although there is a definite overlap between rape and adultery under the larger rubric of zina, the two remain relatively distinct-rape having to do with inappropriate copulation and adultery having to do with violating a contract. Likewise, for the most part sexuality and reproduction are emphatically separate-pregnancy irrelevant to adultery legislation and (male) sexual behavior the issue at stake in determining sexual crime. Nonetheless, there is also a starting point set here for an eventual conflation of rape and adultery as well as an eventual conflation of sexuality and reproduction. Indeed, by the time the early modern Ottoman codifications were being promulgated, these lines had been effectively blurred. Sexuality and reproduction remained to some extent separate, but with the collapse of hadd and tazir, sex crime became increasingly political and increasingly central to state structures. Likewise, sex crime became far more closely linked to emerging notions of the public and the private spheres-the primary difference between the seventeenth century and the nineteenth century being the seventeenth century emphasis on quasi private contracts and the nineteenth century emphasis on the emphatically public social contract. Moreover, these issues play almost the same role in medieval and early modern Catholic, French, and Italian law. There is, for example, a definite overlap in medieval France and Italy between rape and adultery-rape “defined as any sexual act outside of marriage and in particular applied to sexual intercourse with virgins, regardless of the aspect of violence.” At the same time, however, the punishment for adultery/rape-death and/or the obligation to settle a dowry on a deflowered virgin -sets up distinctions between the two that should at this point be familiar. The emphasis on the marriage contract, for example, once again creates a situation in which the punishment for raping a woman capable being contracted in marriage (i.e., a virgin) is far less severe than the punishment for raping a woman who could not be contracted in marriage (i.e., a married woman)."

"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."