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There is no theology of rape in Islam

August 20, 2015

Best of you are best to their women

By Abu Amina Elias

In the name of Allah, the Beneficent, the Merciful

Islam has forbidden rape and sexual abuse since the time of the Prophet until today. Allegations by anti-Muslim activists are only buttressed by the appalling criminal behavior of terrorist groups acting in the name of Islam who use rape as a weapon of war. Rape by itself is an atrocity, but it is made even worse, tantamount to idolatry, when it is falsely justified in the name of Allah and His Messenger.

The basic principle in Islamic law is that a Muslim is forbidden from harming another person or animal unless it is necessary to repel a greater harm.

Ubaida ibn As-Samit reported: The Messenger of Allah, peace and blessings be upon him, issued a decree:

لاَ ضَرَرَ وَلاَ ضِرَارَ

Do not cause harm or return harm.

Source: Sunan ibn Majah 2340, Grade: Hasan

As-Suyuti expresses the legal principle as follows:

الضَّرَر يُزَال

Harm should be removed.

Source: Al-Ashbah wa Natha’ir 7

Since it is well-established that rape causes innumerable harms to mind, body, and spirit, without any rational justification of preventing a greater wrong, it follows that rape is absolutely forbidden in Islam. This by itself is enough to establish the prohibition of rape. Even so, the Prophet further set the precedent that rape should not be tolerated in Muslim society. A man in Medina was caught after he raped a woman and the Prophet applied legal punishment on him, the maximum of which is the death penalty.

Abu Alqama reported: A woman went out to pray during the time of the Prophet and she was met by a man who attacked her and raped her. She said, “This man has molested me!” The Messenger of Allah, peace and blessings be upon him, said:

ارْجُمُوهُ

He is condemned to death.

Source: Sunan At-Tirmidhi 1454, Grade: Sahih

The righteous Caliphs who succeeded the Prophet continued this policy of legal punishment for the crime of rape. The victim of rape would not be punished regardless of the circumstances.

Ibn Umar reported:

أَنَّ عُمَرَ أُتِيَ بِإِمَاءٍ مِنْ إِمَاءِ الإِمَارَةِ اسْتَكْرَهَهُنَّ غِلْمَانٌ مِنْ غِلْمَانِ الإِمَارَةِ فَضَرَبَ الْغِلْمَانَ وَلَمْ يَضْرِبْ الإِمَاءَ

Umar ibn Al-Khattab was given a servant girl among the girls who served the leadership. She was forced upon by one of the young men, so Umar flogged the man and he did not flog the woman.

Source: Musannaf Ibn Abi Shayba 29012

Nafi’ reported:

أَنَّ رَجُلاً أَضَافَ أَهْلَ بَيْتٍ فَاسْتَكْرَهَ مِنْهُمَ امْرَأَةً فَرُفِعَ ذَلِكَ إِلَى أَبِي بَكْرٍ فَضَرَبَهُ وَنَفَاهُ وَلَمْ يَضْرِبْ الْمَرْأَةَ

A man was invited as a guest of the family of a household, then he forced himself upon a woman among them. It was referred to Abu Bakr, so he flogged him and expelled him, and he did not flog the woman.

Source: Musannaf Ibn Abi Shayba 29013

Hajjaj reported:

أَنَّ حَبَشِيًّا اسْتَكْرَهَ امْرَأَةً مِنْهُمْ فَأَقَامَ عَلَيْهِ عُمَرُ بْنُ عَبْدِ الْعَزِيزِ الْحَدَّ

An Abyssinian forced himself upon a woman among them. It was referred to Umar Ibn Abdul Aziz and he applied legal punishment on him.

Source: Musannaf Ibn Abi Shayba 29014

The righteous jurists who succeeded the companions of the Prophet established a legal consensus that rape was forbidden and should be punished as if it were adultery. They only disagreed about the monetary fine that was to accompany legal punishment.

Ibn Abdul Barr writes:

وَقَدْ أَجْمَعَ الْعُلَمَاءُ عَلَى أَنَّ عَلَى الْمُسْتَكْرِهِ الْمُغْتَصِبِ الْحَدَّ إِنْ شَهِدَتِ الْبَيِّنَةُ عَلَيْهِ بِمَا يُوجِبُ الْحَدَّ أَوْ أَقَرَّ بِذَلِكَ فَإِنْ لَمْ يَكُنْ فَعَلَيْهِ الْعُقُوبَةُ وَلَا عُقُوبَةَ عَلَيْهَا إِذَا صَحَّ أَنَّهُ اسْتَكْرَهَهَا وَغَلَبَهَا عَلَى نَفْسِهَا وَذَلِكَ يُعْلَمُ بِصُرَاخِهَا وَاسْتِغَاثَتِهَا وَصِيَاحِهَا

The scholars agreed that the rapist must be given legal punishment if there is clear evidence against him that he deserves punishment or if he confesses to it. If the evidence is not as clear, then he is given a discretionary punishment. There is no punishment for the victim if it is true that she was forced and overpowered, as would be evident by her screams and cries for help.

Source: Kitab Al-Istidhkar 32083

And according to the Kuwaiti Encyclopedia of Islamic Law:

وَإِنْ كَانَتِ الْمَرْأَةُ مُغْتَصَبَةً غَيْرَ مُطَاوِعَةٍ فَعَلَى الْمُغْتَصِبِ الْحَدُّ وَالضَّمَانُ إِجْمَاعًا غَيْرَ أَنَّهُمُ اخْتَلَفُوا فِي مِقْدَارِهِ فَقَالَ الْحَنَفِيَّةُ عَلَيْهِ أَرْشُ الْإِفْضَاءِ لَا الْعُقْرُ وَذَهَبَ الْمَالِكِيَّةُ إِلَى أَنَّ فِيهِ الصَّدَاقَ وَحُكُومَةَ عَدْلٍ وَذَهَبَ الشَّافِعِيَّةُ إِلَى أَنَّ فِيهِ الدِّيَةَ وَذَهَبَ الْحَنَابِلَةُ إِلَى أَنَّ فِيهِ ثُلُثَ دِيَتِهَا وَمَهْرَ مِثْلِهَا

If a woman were to be raped, meaning without consent, then the rapist must be given legal punishment and his fine is agreed upon, although the jurists disagreed on the amount. The Hanafi scholars said he must pay the maximum blood money and no less. The Maliki scholars said he must pay the dowry and a just settlement. The Shafi’ee scholars said he must pay blood money. The Hanbali scholars said he must pay a third of her blood money and a dowry similar to it.

Source: Mawsu’at Al-Fiqhiyya 3212

The prohibition of rape applied to all women, including slaves and prisoners of war.

Ash-Shafi’ee said:

وَإِذَا اغْتَصَبَ الرَّجُلُ الْجَارِيَةَ ثُمَّ وَطِئَهَا بَعْدَ الْغَصْبِ وَهُوَ مِنْ غَيْرِ أَهْلِ الْجَهَالَةِ أُخِذَتْ مِنْهُ الْجَارِيَةُ وَالْعُقْرُ وَأُقِيمَ عَلَيْهِ حَدُّ الزِّنَا

If a man acquires a slave girl by force and then he rapes her, and he is not an ignorant person, then the slave girl is taken from him. He must pay the fine and the legal punishment for adultery will be applied to him.

Source: Kitab Al-Umm 253

Indeed, it is even forbidden in Islam to slap a slave or a servant, let alone commit any greater harm. If a Muslim so much as slapped his servants, the Prophet would command them to be set free.

Ibn Umar reported: The Messenger of Allah, peace and blessing be upon him, said:

مَنْ ضَرَبَ غُلَامًا لَهُ حَدًّا لَمْ يَأْتِهِ أَوْ لَطَمَهُ فَإِنَّ كَفَّارَتَهُ أَنْ يُعْتِقَهُ

Whoever strikes his slave without limit or slaps him, then the expiation for his sin is to emancipate him.

Source: Sahih Muslim 1657, Grade: Sahih

Suwaid ibn Muqarrin reported: He had a servant girl and someone slapped her, so he said to him:

أَمَا عَلِمْتَ أَنَّ الصُّورَةَ مُحَرَّمَةٌ فَقَالَ لَقَدْ رَأَيْتُنِي وَإِنِّي لَسَابِعُ إِخْوَةٍ لِي مَعَ رَسُولِ اللَّهِ صلى الله عليه وسلم وَمَا لَنَا خَادِمٌ غَيْرُ وَاحِدٍ فَعَمَدَ أَحَدُنَا فَلَطَمَهُ فَأَمَرَنَا رَسُولُ اللَّهِ صلى الله عليه وسلم أَنْ نُعْتِقَهُ

Did you not know that it is forbidden to strike the face? I was the seventh of my brothers during the lifetime of the Prophet and we had only one servant. One of us became enraged and slapped him, so the Prophet commanded us to set him free.

Source: Sahih Muslim 1658, Grade: Sahih

If it is forbidden to simply strike a slave in a humiliating way, then how can it be lawful to commit rape which is many times worse?

Anti-Muslim activists and their extremist Muslim counterparts in criminal terrorist organizations agree that Islam allows the rape of captive women, yet they cannot produce any clear scriptural and legal proof for their position. Instead they must rely upon the ignorance of their audience who are unable or unwilling to investigate the intended meaning of the Quran and Sunnah.

The Noble Quran speaks about marriage to “those whom your right hands possess,” meaning slaves and servants. This was known as the institution of concubinage which was a form of marriage in pre-modern Arab and Muslim society. To infer from these verses that rape is permissible, or even praiseworthy, is an incredibly unwarranted eisegesis, or a reading into the text that which it does not say.

Likewise, extremists cannot find any instance in the prophetic traditions or biography in which the companions of the Prophet raped captive women. Therefore, they must once again erroneously infer their desired interpretation by citing a prophetic tradition without any regard to context and scholarly commentary.

Their primary proof-text used to justify rape is the following tradition:

Abu Sa’eed Al-Khudri reported: At the battle of Hunain, the Messenger of Allah, peace and blessings be upon him, sent an army to Awtas and they encountered the enemy and fought them. Having overcome them and taken them prisoner, the companions of the Messenger of Allah refrained from having intercourse with the captive women because their husbands were idolaters. Then Allah revealed the verse:

وَالْمُحْصَنَاتُ مِنَ النِّسَاءِ إِلَّا مَا مَلَكَتْ أَيْمَانُكُمْ

(Prohibited for you) are married women except those whom your right hands possesses. (4:24)

Source: Sahih Muslim 1456, Grade: Sahih

Interpreted on its own, this tradition might appear to sanction the rape of captive women. Yet the scholarly methodology requires the collation of all texts and commentaries on a given topic before coming to a conclusive rule, principle, or practice. We must see how the companions of the Prophet, their students, and the scholars who succeeded them understood and applied the tradition within the entirety of Islamic teachings.

In reality, we will find that this tradition is a proof against their position. Sexual intercourse was only made lawful with these women after they embraced Islam, which requires consent.

An-Nawawi comments on this tradition, saying:

وَاعْلَمْ أَنَّ مَذْهَبَ الشَّافِعِيِّ وَمَنْ قَالَ بِقَوْلِهِ مِنَ الْعُلَمَاءِ أَنَّ الْمَسْبِيَّةَ مِنْ عَبَدَةِ الْأَوْثَانِ وَغَيْرِهِمْ مِنَ الْكُفَّارِ الَّذِينَ لَا كِتَابَ لَهُمْ لَا يَحِلُّ وَطْؤُهَا بِمِلْكِ الْيَمِينِ حَتَّى تُسْلِمَ فَمَا دَامَتْ عَلَى دِينِهَا فَهِيَ مُحَرَّمَةٌ وهَؤُلَاءِ الْمَسْبِيَّاتُ كُنَّ مِنْ مُشْرِكِي الْعَرَبِ عَبَدَةِ الْأَوْثَانِ فَيُئَوَّلُ هَذَا الْحَدِيثُ وَشِبْهُهُ عَلَى أَنَّهُنَّ أَسْلَمْنَ وَهَذَا التَّأْوِيلُ لَا بُدَّ مِنْهُ وَاللَّهُ أَعْلَمُ

Know that it is the way of Ash-Shafi’ee and the scholars who agreed with him that it is unlawful to have intercourse with the captive women among the idolaters and other unbelievers who are without a divine scripture unless they first embrace Islam. They are forbidden to approach as long as they are following their religion and these captive girls were among the Arab polytheists who worshiped idols. This tradition and others like it imply that the women embraced Islam and this is how they must be interpreted. Allah knows best.

Source: Sharh Sahih Muslim 1456

Hence, contrary to the practice of Muslim terrorists who rape their hostages, the righteous jurists prohibited intercourse with non-Muslim prisoners of war, just as they prohibited compulsion in the propagation of Islam.

Following the Prophet is done by adhering to the scholarly method and prioritizing the foundational Islamic values and principles at the heart of all authentic religious practice. Forcing a predetermined interpretation onto scripture by clinging to the literal meaning of texts, without regard to context and exegesis, is not faithfulness or devotion; it is ignorance and illiteracy.

Success comes from Allah, and Allah knows best.