Rape & Incest: Islamic Perspective

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 endto it.
To fully understand this issue we need to examine what Islâm teaches
us about the value of human life.
Islâm views human life asa 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 lifeto the physical body only,but includes the
mental, emotional and spiritual aspects as well. There areabout 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 isnot 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 anothertill 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 andrape?
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 yourreligion 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 menwho 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
withwomen. 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 toan
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 togain 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 bemuch forgiving, a dispenser of grace (to them).
During the time of the Prophet (saw) punishment was inflictedon 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
whohad 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 ofpeople 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 desertor 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 astory 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 thetaking 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 activityof 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 torape 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 thisintercourse 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 withhis 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 ofthe
attitude that a woman's sexual activity issomething to be bartered,
pawned, gossiped about, or owned by the men in herlife. 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 maritalrelationship 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 asyou 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, andHe 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 garmentfor you, and you are as a garment for them."
Sûrah al Nisa 4.19
"... And consort with yourwives 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 bea claim for
jirah compensation. The law ofjirah provides for compensation for
physical harm between spouses, and supports Islamic legislation
againstdomestic abuse. Even in these discussions of appropriate jirah
compensation, the question of the injured party's consent plays a
central role. Some Islamicjurists considered consent to be presumed by
virtue of the marital relationship, while othersmaintain 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 sexualautonomy 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 womenis
that women cannot and should not say no to their husband when he
approaches them Womenare 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 withthe 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 allthe 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 leavethem at other times, stand up for the
prayer atnight 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 theseahâdîth are used to confuse and distract
fromthe issue, since rape doesnot 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. Rapeis 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 ofyour 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 Critiqueof 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'