Thursday, 16 June 2011

Rape in Islam

Rape & Incest: Islamic Perspective

Uzma Mazhar © 2002

Incest and rape are not new in this day and age; these problems
have always existed and will continue to exist if not confronted
face on. If you have ever worked with an incest, sexual abuse or
rape survivor you will never be able to forget the devastating impact
it has on all aspects of their life, nor will you be able to sit
back and do nothing about this issue. These are serious crimes that
corrode the fabric of family and society and cannot go un-addressed,
since these problems do exist in Muslim families it is about time
that we address it openly and take action to put an end to it.

To fully understand this issue we need to examine what Islâm
teaches us about the value of human life.

Islâm views human life as a sacred gift from God. The Qur’ân
repeatedly stresses the sanctity of life (hurmat al hayat). The
life of every single individual regardless of gender, age, nationality
or religion is worthy of respect. In verses referring to the sanctity
of life, the term used is ‘nafs’ (soul, life); and there
is no distinction made in that soul being young or old, male or
female, Muslim or non-muslim.

Sûrah al An'am 6.151:

"Do not take any human being's life, (the life) which God has
declared to be sacred - otherwise than in (the pursuit of) justice:
this has He enjoined upon you so that you might use your reason."

(Also check: Sûrah al Isra 17.33 & Sûrah al Ma'idah
5.32)

Qur’ânic teachings encompass every aspect of life;
hence it does not limit the definition of life to the physical body
only, but includes the mental, emotional and spiritual aspects as
well. There are about 150 verses that define the term ‘nafs’
in various ways making it clear that the concept of ‘life’
is not limited to mere physical existence.

Historically, Islam has addressed serious issues openly and sought
to correct actions that constitute harm or ‘zulm’ (ie:
cruelty and abuse) to the dignity of humankind. Human life and respect
for it has been stressed unstintingly, regardless of age or gender.
As a general rule, Islâm forbids all ‘zulm’, be
it physical, mental, emotional or spiritual:

Sûrah al An'am 6.120

”Abandon all harm (ithm), whether committed openly or in secret.”


(Check Sûrah al A`raf 7:33)

Sûrah al 49:11-12 points out categorically that emotionally
abusive language and behavior is not acceptable.

"You who believe do not let one (set of) people make fun of
another set. Do not defame one another. Do not insult by using nicknames.
And do not backbite or speak ill of one another."

In the last address to his community, the Prophet (saw) said: "Your
lives and properties are forbidden to one another till you meet
your Lord on the Day of Resurrection… Regard the life and
property of every Muslim as a sacred trust… Hurt no one so
that no one may hurt you... You will neither inflict nor suffer
any inequity." The Prophet (saw) did not prohibit only the
unlawful encroachment of one another’s life and property,
but also honor and respect.

Considering that human life is to be valued and cruelty is forbidden,
what is the Islamic perspective on incest and rape?

According to Islâm, a woman has to be respected and protected
under all circumstances, whether she belongs to your own nation
or to the nation of an enemy, whether she follows your religion
or belongs to some other religion or has no religion at all. A Muslim
cannot outrage her under any circumstances. All promiscuous relationships
have been forbidden to him, irrespective of the status or position
of the woman, whether the woman is a willing or an unwilling partner
to the act. The words of the Holy Qur’ân in this respect
are: "Do not approach (the bounds of) adultery" (17:32).
Heavy punishment has been prescribed for this crime, and the order
has not been qualified by any conditions. Since the violation of
chastity of a woman is forbidden in Islam, a Muslim who perpetrates
this crime cannot escape punishment. (Maudoodi)

The Quran has, in various ways and in different contexts; impressed
on men that they must observe the limits set by God (Hudûd
Allah) in respect to women and must not encroach upon their rights
in either marriage or divorce. In all situations it is the men who
are reminded, corrected and reprimanded, over and over again, to
be generous to women and to be kind, compassionate, fair and just
in their dealings with women. Even in divorce, when the chances
of anger and vindictiveness are high, it is stressed that men are
to separate with grace, equity and generosity.

Forbidding cruelty against children and women is apparent from
rulings against female infanticide and rights of inheritance given
even to an unborn child; and the kindness mandated even when divorcing
your wife. There are numerous ahâdîth about the rights
of children to respect and dignity. The same holds true for respect
and the unprecedented rights given to women.

Relevant verses from the Quran:

Sûrah an Nâs 4.119

'O you who believe! You are forbidden to inherit women against their
will...'

Sûrah an Nûr 24.33

'... And do not, in order to gain some of the fleeting pleasures
of this worldly life, coerce your slave women into whoredom if they
are desirous of marriage, and if anyone should coerce them, then,
verily, after they have been compelled (to submit in their helplessness),
God will be much forgiving, a dispenser of grace (to them).

During the time of the Prophet (saw) punishment was inflicted on
the rapist on the solitary evidence of the woman who was raped by
him. Wa'il ibn Hujr reports of an incident when a woman was raped.
Later, when some people came by, she identified and accused the
man of raping her. They seized him and brought him to Allah's messenger,
who said to the woman, "Go away, for Allâh has forgiven
you," but of the man who had raped her, he said, "Stone
him to death." (Tirmidhi and Abu Dawud)

During the time when Umar (raa) was the Khalifah, a woman accused
his son Abu Shahmah of raping her; she brought the infant borne
of this incident with her to the mosque and publicly spoke about
what had happened. Umar (raa) asked his son who acknowledged committing
the crime and was duly punished right there and then. There was
no punishment given to the woman. (Rauf)

Islamic legal scholars interpret rape as a crime in the category
of Hiraba. In ‘Fiqh-us-Sunnah’, hiraba is described
as: ‘a single person or group of people causing public disruption,
killing, forcibly taking property or money, attacking or raping
women (hatk al ‘arad), killing cattle, or disrupting agriculture.’

The famous jurist, Ibn Hazm, had the widest definition of hiraba,
defining a hiraba offender as: ‘One who puts people in fear
on the road, whether or not with a weapon, at night or day, in urban
areas or in open spaces, in the palace of a caliph or a mosque,
with or without accomplices, in the desert or in the village, in
a large or small city, with one or more people… making people
fear that they’ll be killed, or have money taken, or be raped
(hatk al ‘arad)… whether the attackers are one or many."

Al-Dasuqi held that if a person forced a woman to have sex, his
actions would be deemed as committing hiraba. In addition, the Maliki
judge Ibn ‘Arabi, relates a story in which a group was attacked
and a woman in their party was raped. Responding to the argument
that the crime did not constitute hiraba because no money was taken
and no weapons used, Ibn ‘Arabi replied indignantly that "hiraba
with the private parts" is much worse than hiraba involving
the taking of money, and that anyone would rather be subjected to
the latter than the former.

The crime of rape is classified not as a subcategory of ‘zina’
(consensual adultery), but rather as a separate crime of violence
under hiraba. This classification is logical, as the "taking"
is of the victim’s property (the rape victim’s sexual
autonomy) by force. In Islam, sexual autonomy and pleasure is a
fundamental right for both women and men (Ghazâlî);
taking by force someone’s right to control the sexual activity
of one’s body is thus a form of hiraba.

Rape as hiraba is a violent crime that uses sexual intercourse
as a weapon. The focus in a hiraba prosecution is the accused rapist
and his intent and physical actions, and not second-guessing the
consent of the rape victim. Hiraba does not require four witnesses
to prove the offense, circumstantial evidence, medical data and
expert testimony form the evidence used to prosecute such crimes.

Islamic legal responses to rape are not limited to a criminal prosecution
for hiraba. Islamic jurisprudence also provides an avenue for civil
redress for a rape survivor in its law of "jirah" (wounds).
Islamic law designates ownership rights to each part of one’s
body, and a right to corresponding compensation for any harm done
unlawfully to any of those parts. Islamic law calls this the ‘law
of jirah’ (wounds). Harm to a sexual organ, therefore, entitles
the person harmed to appropriate financial compensation under classical
Islamic jirah jurisprudence. Each school of Islamic law has held
that where a woman is harmed through sexual intercourse (some include
marital intercourse), she is entitled to financial compensation
for the harm. Further, where this intercourse was without the consent
of the woman, the perpetrator must pay the woman both the basic
compensation for the harm, as well as an additional amount based
on the ‘diyya’ (financial compensation for murder, akin
to a wrongful death payment).

Islamic law, with its radical introduction of a woman’s right
to own property as a fundamental right, employs a gender-egalitarian
attitude in this area of jurisprudence. In fact, there is a hadith
specifically directed to transforming the early Muslim population
out of this patriarchal attitude of male financial compensation
for female sexual activity. During the time of Prophet Muhammad,
a young man committed zina with his employer’s wife. The father
of the young man gave one hundred goats and a maid as compensation
to the employer, who accepted it. When the case was reported to
the Prophet, he ordered the return of the goats and the maid to
the young man’s father and prosecuted the adulterer for zina
(Abu Daud 1990, 3: Bk. 33, No. 4430; Bukhâri 1985, 8:Bk. 81,
Nos. 815, 821, 826).

Early Islam thus established that there should be no tolerance
of the attitude that a woman’s sexual activity is something
to be bartered, pawned, gossiped about, or owned by the men in her
life. Personal responsibility of every human being for their own
actions is a fundamental principle in Islamic thought.

Marital Rape

The Quran is very clear that the basis of a marital relationship
is love and affection between the spouses, not power or control.
Rape is unacceptable in such a relationship.

Sûrah al Baqarah 2.223

'Your wives are your tilth; go then unto your tilth as you may desire,
but first provide something for your souls*, and remain conscious
of God, and know that your are destined to meet Him...'

* Note in Muhammad Asad's translation: 'a spiritual relationship
between man and woman is postulated as the indispensable basis of
sexual relations.'

Sûrah ar Rum 30.21

"And among His wonders is this: He creates for you mates out
of your own kind, so that your might incline towards then, and He
engenders love and tenderness between you: in this, behold, there
are messages indeed for people who think!

Sûrah al Baqarah 2.187

"... They are as a garment for you, and you are as a garment
for them."

Sûrah al Nisa 4.19

"... And consort with your wives in a goodly manner, for if
you dislike them, it may well be that you dislike something which
God might yet make a source of abundant good."

"Is there recognition of marital rape in Islam?

In the context of jirah, it would appear so: where there is any
physical harm or disease caused to a spouse, there may be a claim
for jirah compensation. The law of jirah provides for compensation
for physical harm between spouses, and supports Islamic legislation
against domestic abuse. Even in these discussions of appropriate
jirah compensation, the question of the injured party’s consent
plays a central role. Some Islamic jurists considered consent to
be presumed by virtue of the marital relationship, while others
maintain that where harm occurs, it is an assault, regardless of
the consent, and therefore compensation is due. In our modern era,
one might take these precedents and their premium focus on consent
and apply the Islamic principle of sexual autonomy to conclude that
any sex without consent is harmful, as a dishonoring of the unwilling
party’s sexual autonomy. Thus, modern Islamic jurists and
legislators, taking a gender-egalitarian perspective, might conclude
that Islamic law does recognize marital rape, and assign the appropriate
injunctions and compensation for this personally devastating harm."
(Qureshi)

An often misquoted and abused hadith that is used to tyrannize
women is that women cannot and should not say no to their husband
when he approaches them Women are advised not to turn away from
their husbands except if they have their period or any other reasonable
excuse. So much so that she is to break her voluntary fast if her
husband approaches her. And if they do angels will curse them. However,
this hadith is not quoted with the complementary one that advises
men of the same consideration.

In the same manner men are advised that meeting the needs of their
wives takes precedence over voluntary worship. Narrated Abdullah
bin Amr bin Al-As: "Prophet Muhammad (saw) said, “O Abdullah!
I have been informed that you fast all the day and stand in prayer
all night?” I said, ‘Yes, O Allah's Apostle!’
He said, “Do not do that! Observe the fast sometimes and also
leave them at other times, stand up for the prayer at night and
also sleep at night. Your body has a right over you and your wife
has a right over you.” (Bukhâri)

To a certain degree these ahâdîth are used to confuse
and distract from the issue, since rape does not have anything to
do with permission or lack of permission. In a marriage abusive
or forced sexual activity cannot be justified by abusing this hadith.
Rape is defined as unwanted, violent and forced sex, whether this
occurs in a marital context or outside it. The definition of rape
does not change because of the relationship.

It is important to not confuse the issue of mutual rights that
a couple has on each other with the misguided, distorted and misogynist
assumption that women become a husband's property. Islam does not
allow for or tolerate ownership of human beings. Human dignity does
not allow that any one person has the right to own, mind/body/soul,
another human being... and Islam demands that all human beings respect
the humanity of everyone.

Incest & Child Abuse

The Quran clearly outlines those with whom marriage is not permitted,
we can extrapolate from it that any sexual relation with these would
be unacceptable.

Sûrah an Nisa 4:23:

Prohibited for you (in marriage) are your mothers, your daughters,
your sisters, the sisters of your fathers, the sisters of your mothers,
the daughters of your brother, the daughters of your sister, your
nursing mothers, the girls who nursed from the same woman as you,
the mothers of your wives, the daughters of your wives with whom
you have consummated the marriage - if the marriage has not been
consummated, you may marry the daughter. Also prohibited for you
are the women who were married to your genetic sons. Also, you shall
not be married to two sisters at the same time - but do not break
up existing marriages. GOD is Forgiver, Most Merciful.

This includes your foster parents, siblings and children.

Al Hasan reports: ‘If somebody commits illegal intercourse
with his sister, his punishment is the same as for any other person
who commits such a crime’. (Bukhâri Vol. 8 pp 526)

Thus, these same laws mentioned above in cases of rape would be
equally applicable, and incest can be prosecuted as a crime within
the bounds of Islamic law.

According to Islam, all aspects of life, ie: the physical, mental,
emotional and spiritual, are sacred and must be respected. No gender
or relationship has been given the power or right to hurt or harm
the other. Domestic violence, rape and incest are all violent and
criminal abuses that are outside the bounds of what is permitted
in Islam and there is absolutely no justification for it whatsoever.

 

References:

-Ghazâlî; “Ihya Ulum ud Din”

-Hasan, Riffat; “Religious Human Rights in Global Perspective:
Religious Perspectives” John Witte, Jr. and Johan D. van der
Vyver Eds. Martinus Nijhoff Publishers, 1996

-Maudoodi, Abu al Ala; “Human Rights in Islam” The Islamic
Foundation UK 1976, 1993

-Qureshi, Asifa LLM; “Her Honor: An Islamic Critique of the
Rape Laws of Pakistan from a Woman-Sensitive Perspective”

-Rahman, Afzal ur; "Role of Muslim Women in Society" Seerah
Foundation, London, 1986

-Rauf, Muhammad Abdul; “Umar al Faruq” Al Saadawi Publications,
1998

Abridged version of article published in the September issue of
'Islâmic Reflections 2002'

 

 

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