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| Rape & Incest: Islamic
Perspective Uzma Mazhar 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. Sűrah al An'am 6.151: 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: Sűrah al An'am 6.120 Sűrah al 49:11-12 points out categorically
that emotionally abusive language and behavior is not acceptable. 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 (Hudűd 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: Sűrah an Nűr 24.33 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 Sűrah
al Baqarah 2.223 Sűrah ar Rum 30.21 Sűrah al Baqarah 2.187 Sűrah al Nisa 4.19 "Is there recognition of marital rape in
Islam? 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 Sűrah an Nisa 4:23: 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: Abridged version of article published in the September issue of 'Islâmic Reflections 2002' Contact Info: UzmaMazhar@hotmail.com |