Does Islam promote rape?

In the Name of Allah, the Most Gracious, the Most Merciful.

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

Sister in Islam,

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Slavery has always been a highly contested topic for the critics to malign the image of Islam. Islam being a universal religion does not encourage immorality in any way. Slavery was an issue of the state and it should be seen as such from the historical context. It had more to do with culture rather than Islamic laws. If the institution of slavery were to be eliminated, as is the case in modern times, Islam will still remain intact. Its abolishment had no effect on Shariah whatsoever.

Slavery was a universal practice which was wide-spread and rampant across all cultures of that time. It was not something that was introduced by Islam. Irrefutable facts show that man-made systems, devoid of divine guidance have caused severe damage to the socio-political structure of a society. For instance, if we look at the slavery system that existed a few hundred years ago, it was the most brutal manifestation of this institution. On the other hand, the prisoners fallen in the hands of Muslims in wars were never ill-treated, tortured or subjected to humiliation. Islam was the only religion to govern it with a set of laws so that it does not lead to abuse of slaves.

As far as the women were concerned, Islam respected them even in their captivity if they were taken prisoners from foreign enemy lands. They were never treated as a booty captured in war. They belonged to their Master who gave them a life of dignity and honour. They were not treated as a common property of all, as was a common practice in other civilizations and cultures, with multiple men having free access to them to satisfy their carnal passions. In Islam, no one else could establish sexual relation with them other than the master. Moreover, they were, like men, granted the right to work out their freedom through Mukataba (A mechanism through which slaves could free themselves). Islam exhausted every reason for Muslims to free their slaves. Even though they were technically war prisoners, yet they could easily move around. In case the slave woman conceived, Islam legislated the law that she cannot be sold out to others as she has now gained the title of Umm e Walad (mother of the master’s child).[i] Moreover, the child born through this union was deemed free.[ii] [iii]Furthermore, granting slaves their freedom was regarded as one of the highest virtues and was stipulated to expiate various types of sins in the form of kaffarah. The treatment given to them by Islam overall during their captivity was equally noble and generous. So much have been written on the concept of slavery in Islam which debunks the accusations made against this noble deen of Allah.

It is imperative that you understand the premise of having sexual relation with one’s slave woman despite her being married. It is not at all true that Islam permits sexual relation with a slave girl who is already married. In order to clarify this, we need to get a few things into proper perspective. A Muslim’s life in its entirety is ruled by the Shariah. It comprises of precise rules and regulations governing individual relations with God as well as with fellow-Muslims and non-Muslims. Thus, it embraces ideally both the religious and non-religious activities of the Muslims. We have our own set of personal laws related to marital and social affairs which remains uninfluenced by how the western society sees it. We abide by these rules irrespective of what the secular system suggests of being more appropriate. A Man and Woman will get into the bond of marriage merely by offer and acceptance from both sides whether the society objects to it or not. Similarly, divorce will take place by mere verbal words of Talaq whether one likes it or not. We will inherit according to the Shariah law of inheritance irrespective of what the secular law says or feels.

In the same way, it should be understood that as per Islamic law, if a woman is held as a war captive then as soon as she enters Dar al-Islam, her marriage with her non-Muslim husband breaks.[iv] Therefore, the objection that Islam promotes rape with someone married does not hold any weight as Islamically she will no longer be regarded as someone married. Intercourse is happening between a man and an unmarried woman. For this reason, if the woman’s husband is also held as a prisoner and brought to Dar al-Islam along with the wife then the master wouldn’t have the right to get physically intimate with her because her marriage is still intact with her husband. Furthermore, the permissibility for a Master to have intercourse with his slave woman is also a law legislated by the Quran. Just as marriage gives a man legal credence to have coition with his wife, having a slave unmarried girl under one’s care also gives him credence to have coition with her. Adultery, fornication and other promiscuous sex practices are punishable in islam, because they are serious crimes which affect the entire society. There are only two avenues for a legitimate relationship. One is the wife and the other is a slave woman. Nevertheless, we do understand that the modern mind might still regard it as “sexual assault or Rape without consent” as the woman has not agreed to it. But let us ask you a question. Who decides whether a woman has actively agreed to the act or not? Who decides what consent actually means? Let us illustrate this subject matter a little further.

There are generally two scenarios in which a society deems physical contact as acceptable between two opposite genders.

1. Marriage

2. Mutual consent.

Marriage:

Once two individuals are declared as married the whole community start seeing the relationship as acceptable. The only difference between the western culture and Islam is that sexual activities are confined to only post-marriage with one’s partner whilst in the western context every individual is free to have physical relations with whomsoever they wish but only until marriage.

Consent:

Having a mutual consent for sexual activity has been given more importance in modern times. Perhaps it won’t be an exaggeration if we say that it has superseded the importance of marriage.

A woman in previous times could become a slave girl by two means.

1. She actively participates in waging a war assisting the enemies of Islam and consequently she is taken as war captive. If we look at it from the historical context, when such war and slave culture was prevalent, it becomes apparent that the girl knew of her becoming a slave in case their army loses the war to Muslims. She also knew about the fact that in case the Muslims get defeated, the Muslim women will also be held as slaves by the men from her side. She participated in the battle with full understanding of the consequences. Yet she took part in the battle. Despite this, saying that she never accepted the fact that she may become a slave due to her actions is utterly foolish.

2. The whole tribe was involved in waging a war. Due to the ongoing battle many women had to escape from their homes to safeguard themselves from physical harm. They are then left without any guardian to look after them and the kids. In those difficult times if these women are left unattended, it is of high possibility that another tribe passes by and abducts them. The torments and hardships they would have had to gone through can easily be understood. Either they would have led a life full of tortures and pain living under ruthless leaders or they would have simply given up to the hardships and put themselves into sex work. With all such consequences, it makes it very much rational that the society she is living in will automatically bring consent within her.

The fuzz about consent in the modern society is bizarre. What is the reality of consent? Let us give a few examples to deconstruct the myth of consent finding. At the end of every example we would repeatedly ask a question. You are the one to decide for yourself if the concept of consent is definite or not.

1. Many countries have legalised sex work. These women are selling their bodies for money, for a life that could be led with ease. Each day they deal with new men. Never is their intention to achieve sexual pleasure. They do it as a job in return of some benefit. Is consent being found in here?

2. A woman marries an elderly businessman for the sake of taking benefit from his wealth. For this reason, she unwillingly presents herself to the man. She is forced to make herself available to fulfil the carnal desires of this man. Is consent being found in here?

3. In the Indian sub-continent arrange marriages are very common. In many instances, Parents force their daughters into marriage with a man she dislikes and doesn’t want to get married to. For the honour of her family she however does get married. Now each time she sleeps with the husband and engages in sexual activity with him, she breaks down. Is consent being found here?

4. In this day and age having love partners; boyfriend & girlfriend, is in vogue. It so often happens that the girlfriend against her freewill agrees to engage in a sexual activity with her partner, not because she wants to but because she is emotionally attached to him and he is constantly putting pressure on her and she doesn’t want to lose him. Is consent being found here?

5. Hypothetically let us assume that there is a wife who is happy with her husband. She enjoys getting intimate with her husband. However, the husband’s carnal desire is greater than that of the woman. Due to this the husband wants to have sex more than often. In spite of not being in a romantic mood, the wife affirms to his every call. Is consent being found here?

6. Even from an Islamic perspective, a woman often gets physically intimate with her husband due to the fear of the angels cursing her if she does not answer the husband’s call. Is consent being found in here?

The above examples highlight the fact that the concept of having a consent is so vague. We want you to answer the question asked after every example if consent is being found in the specific case or not. If your answer is in affirmative and you feel that consent is being found then you could clearly see that the consent is being build up due to external factors involved such as financial problems, societal pressure, emotional attachment, religiosity etc. Consent is being forced to come into existence. The situation the woman is in is making her give her consent. When a woman becomes a concubine knowing about the norms of the society, acknowledging her financial needs then such hardships will automatically develop consent in her.

If you disagree and say that this is wrong then you’ll have to admit that according to the principle of the west, example no. 1, 3 and 4 are permissible and very much common in many of their cultures. Will we call it rape with all its implications from the legal standpoint?  One can clearly understand how narrow and unreal the concept of consent is from the modern viewpoint.

For a moment let us return to the actual scenario. When we look at the times when such customs were deemed legal. In such times when a woman gets held as a captive in a legitimate war and her ransom was not being paid by anyone, she well knows of the consequences. She knows that keeping a slave girl is a common phenomenon. If it were their side who won the battle then their captors, her husband included would have enslaved the Muslim women. She also knows that having sexual relation with the master is a norm of today. She well knows that resistance will bear no fruit. She also knows how Islam compassionately deals with slave girls, giving her all her rights and also relinquishing the right of selling her in case she conceives. One should then honestly ponder upon this keeping the historical context in mind. Does the issue of consent even come up in such a society?

In conclusion, the two elements; woman being married or not giving consent, which could have made the sexual relation between a master and his slave woman unacceptable are not being found here.

And Allah Ta’āla Knows Best

Naved Akhtar Ibn Shabbir.

Student - Darul Iftaa

Shillong, India.  

Checked and Approved by,

Mufti Ebrahim Desai.

(2020-02-15)

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