This article was just posted on the Facebook page of Professor Jonathan AC Brown. There is a fascinating discussion afterwards about rape and slaves in Islam.
In light of the misinformation and ignorance being batted around over the issue of Rape in Islamic Law, here is the text of Hina Azem’s excellent entry on it from the Oxford Encyclopedia of Islam and Law (of which I am admittedly the editor in chief):
Classical Islamic law defined what we would call “rape” as a coercive form of illicit sex or fornication (zinā). This basic definition of rape as “coercive zinā” meant that all the normal legal principles that pertained to zinā – its definition, punishment, and establishment through evidence – were applicable as well to rape: The prototypical act of zinā was defined as sexual intercourse between a man and a woman over whom he has neither a conjugal nor an ownership right. Sane adult male and female participants to zinā were to receive a fixed corporal punishment (ḥadd): one hundred lashes and exile for unmarried free persons, stoning to death for married or previously married free persons, and fifty lashes (without exile) for slaves. Zinā was established, according to classical law, through either confession of one or both parties, or through the concurrent eyewitness testimony of four sane adult males. (It was unanimously agreed that women’s testimony was excluded in the ḥadd crimes, including zinā.) A third type of evidence – pregnancy in an unmarried/unowned woman – was contested between the schools. The stringent evidentiary and procedural standards for implementing the zinā punishment may have functioned to offset the severity of the punishment itself, an effect that seems to have been intended by legal authorities, who in the early period developed legal maxims encouraging averting the ḥadd punishments as much as possible, whether through claiming ambiguity (shubha) or a lack of legal capacity (ahliyya).
Muslim authorities recognized from the earliest period, however, that not all acts of zinā were mutually consensual, and that the legal principles meant to address cases of consensual zinā were not easily applicable in cases of coercion. Muslim judges and jurists thus developed a theoretical apparatus through which to analyze the various complexities raised by coercive zinā. This classical theoretical apparatus used consensual zinā as its basic framework, but expanded it in important ways.
What distinguished a prototypical act of zinā from an act of “rape,” for the jurists, was that in the prototypical case, both parties act out of volition, while in an act of “rape,” only one of the parties does so. Jurists admitted a wide array of situations as being “coercive” in nature, including the application of physical force, the presence of duress, or the threat of future harm either to oneself or those close to oneself; they also included in their definition of “coercion” the inability to give valid consent, as in the case of minors, mentally ill or unconscious persons. Muslim jurists from the earliest period of Islamic law agreed that perpetrators of coercive zinā should receive the ḥadd punishment normally applicable to their personal status and sexual status, but that the ḥadd punishment should be averted from victims of coercive or non-consensual zinā due to their reduced capacity.
The jurists drew a general status distinction between free persons and slaves, and this distinction is reflected in all areas of the law, including rape law. There are several notable differences between the juristic discussion of sexual violation between free persons and sexual violation involving slaves, all of them stemming from the legal status of slaves as property rather than proprietors. The first is a difference in terminology and placement in legal works. Violation of free women is normally described as “coercive zinā” (al-istikrāh ʿalā al-zinā) and the victim as the “coerced woman” (al-mustakrahah), and substantive discussions are normally found in chapters on ḥudūd and zinā. Violation of slavewomen, on the other hand, is normally described as “property usurpation” (ghaṣb) and the victim as “usurped property” (maghṣūbah), and substantive discussions are normally found in chapters on ghaṣb. The second notable difference is the pointed attention to the volitional state of free women in acts of zinā and the frequent lack of attention to the volitional state of slavewomen in acts of ghasb. For the jurists, sexual usurpation of a slavewoman was a form of property damage that required financial compensation to her owner for depreciation. The consent or coercion of the slavewoman to the act, while important for determining whether or not she should get the ḥadd punishment, was irrelevant to assessing depreciation. A third key difference between the violation of free women and slavewomen is closely related to the previous point: The jurists were in agreement that violation of slavewomen required financial compensation to owners, usually equal to the amount by which she was depreciated by the act (this being of particular relevance if she was previously a virgin). Such agreement on monetary compensation was not found in the case of free female rape victims, and this latter point remained heavily contested between the schools of law, as follows:
According to the Mālikī, Ḥanbalī and Shāfi`ī schools of law, the rape of a free woman consisted of not one but two violations: a violation against a “right of God” (ḥaqq Allāh), provoking the ḥadd punishment as we have seen above, and also a violation against a “human” or interpersonal right (ḥaqq ādamī), provoking a monetary compensation. These jurists saw the free woman, in her proprietorship over her own sexuality (buḍ`), as not unlike the slaveowner who owns the sexuality of his female slave. For them, in the same way that the slaveowner was entitled to compensation for sexual misappropriation, the free woman was also entitled to compensation. The amount of this compensation, they reasoned, should be the amount that any man would normally pay for sexual access to the woman in question – that is, the amount of her dower (ṣadāq or mahr). Islamic juristic thinking thus relied not only on the logic of zinā to deal with rape, but also on the logic of marriage: In the case of slavewomen, rape was specifically analogized to usurpation of sexual property, and the case of free women, it was analogized to a usurped conjugal right. In any case, the dower compensation was only seen as applicable if intercourse had taken place; assault of a free woman that excluded vaginal penetration – such as manual defloration – did not provoke the dower fine. (In the case of slavewoman, manual defloration could result in a fine, as it was regarded as a damage to property.)
As against the other Sunni schools, the Ḥanafī school rejected the principle of a dower compensation to free victims of rape. For this, they relied on a few key principles: The first was what they perceived as a necessary hierarchy and consequent conflict between the “rights of God” (ḥuqūq Allāh) and the “rights of persons” (ḥuqūq ādamīya). According to the Ḥanafīs, in cases of combined violations against both God and persons (of which rape was a type), the right of God – that is, the imposition of the ḥadd punishment – trumped the personal right of the woman to compensation for sexual usurpation: If and when the ḥadd zinā was imposed, the dower fine was to be dropped. The second principle was the rejection of the analogy of rape to marriage, which functioned critically in the discourse of the other schools. The dower that served as an exchange value for sexual right in marriage could not be applied, they argued, in the case of rape, which was a form of zinā. Providing a monetary award to a rape victim would be analogous to paying a prostitute. (A minority opinion within the Ḥanbalī school should also mentioned, which was that a compensation for wrongful sex is only payable in the case of virgins, not matrons.)
The evidentiary rules for establishing rape fell into two categories, depending on what was sought – imposition of the ḥadd zinā on the perpetrator or monetary compensation to the victim. Insofar as rape was a type of zinā, the jurists theorized that it could only be established through the same means as consensual zinā – confession or eyewitness testimony of four adult male witnesses. If neither form of evidence could establish with certainty that penetration had occurred, or if the perpetrator had reduced capacity (due to minority, for example), then the ḥadd punishment could not be imposed on the perpetrator. However, the judge might impose a discretionary corporal punishment (taʿzīr) if he felt there was enough circumstantial evidence to support her claim. This line of thought is most fully developed by the Mālikī scholars, and least so by the Ḥanafī scholars.
As for her claim to the dower compensation (among those who accepted it), the legal texts suggest that it was to be handled like any other civil claim (daʿwā or istiḥqāq), in which the claimant seeks to establish testimony through two male witnesses or one male and two female witnesses, or one male witness and an oath. If the claimant is unable to bring sufficient evidence to support her charge, the defendant would presumably have a choice between either acknowledging her claim or denying it through an oath, in which case the charges would be dropped. The efficacy of this system for civil claims in rape cases is unclear, however, because of certain complications: First, the system seems to be intended for breaches of contract, rather than crimes; bringing even one witness to the concomitant events surrounding an act of rape could be nearly impossible for a victim. Second, oaths are specifically rejected in establishing the rights of God, of which rape is a type. Third, charging someone for rape with less than the four requisite witnesses would expose both the witnesses and the claimant to charges of slander (qadhf), which itself is punishable. The classical school texts do not entirely address the difficulties of applying civil claims procedures in the context of rape charges, but seem to leave room for judges to interpret and apply these different rules as they see appropriate. Of the Sunni schools, the Mālikī school goes furthest to establish ways that a rape victim might mount a successful claim for compensation without sufficient eyewitness support or only circumstantial evidence. This may be due to the fact that of the four schools, only the Mālikī school holds pregnancy in an unmarried woman to be proof of zinā and therefore punishable; the other three schools withhold punishment in this context, on the presumption that she may have been raped. A rape victim in Mālikī jurisdiction, therefore, would be forced to report the crime and bring charges against her assailant, so as to avert punishment should she later show pregnancy. It may be that an acute awareness of the difficult position in which rape victims found themselves prompted Mālikī jurists to develop a more workable theory of evidence than the other schools.
Imāmī Shiite jurisprudence on rape is similar to Sunni jurisprudence in basic respects, yet has some appreciable differences. Shiite authorities agreed that the ḥadd punishment for zinā was to be imposed on the perpetrator of rape while averted from the victim. Their arguments for this averting were based not so much on the mitigating role of coercion/invalid consent in application of the ḥadd penalties, but rather on the idea that the rape victim had not actually committed zinā, in the first place, an act that requires intent. As for the punishment to be applied on the perpetrator, Shiite law was univocal in supporting an intensified version of the ḥadd zinā, namely execution by the sword rather than the normal ḥadd zinā (which was flogging for the unmarried and stoning for the previously married).
Shiite jurists were divided over the appropriateness of compensating the free victim of rape in the amount of her dower (mahr or ʿuqr). Some argued that there is no compensation for the victim, based on ʿAlī’s precedent and the Prophetic saying that there is no compensation for the prostitute (baghy), and also on the foundational principle of freedom from liability (barā’at al-dhimmah). Others argued that the victim should receive compensation, as she is neither a prostitute nor a fornicatress (zāniyah), and on the notion that dower payment is the bloodprice (diyah) for the usurped vulva (al-farj al-maghṣūb). In stating their positions on this topic, the Shiite jurists frequently refer to the Sunni Abū Ḥanīfa, who opposed any compensation, and to al-Shāfiʿī, who supported it. Shiite jurisprudence is also multivocal on the correct amount of damages payable to the owner of a sexually misappropriated slavewoman. Some argued that the owner is owed 1/10th of her price if she was a virgin and 1/20th is she was a matron, while others argued that the owner is owed her dower (mahr), as well as a separate fine for defloration if she was a virgin (called arsh al-bakārah).
Another notable area of difference between Sunni and Shiite jurisprudence concerns the liability of the insane to the ḥadd zinā. According to Sunni law, the ḥadd is to be averted from all who have defective legal capacity, such as minors, the insane, and the unconscious, regardless of gender. According to some Shiite jurists, a distinction is to be made between insane men and insane women who commit zinā: While the ḥadd is to be averted from insane women, it is imposed in full upon insane men. Others, however, rejected this gender distinction, and affirmed that insane men, too, should be spared the ḥadd punishments. The Sunni parallel to this exploration of the relationship between legal capacity and sexual agency is the Sunni discussion of a man being coerced to zinā with a woman by a third party. This is debated with some vigor, with attention given to whether a coerced or fearful man can be aroused to perform, whether his enjoyment is indicative of guilt, and whether it matters if the coercion is exerted by a state authority or not.
A few outlying issues should also be addressed. Classical Islamic law drew a line between rape intra-Muslim and intercommunal rape. If a Muslim male violated a non-Muslim (dhimmī) woman, the sentence would be the same for him as if she were Muslim. However, a dhimmī man’s assault against a Muslim woman was considered a violation of the intercommunal political treaty under which dhimmīs lived in Muslim lands, and so was to suffer execution. Same-sex violation is addressed only in a limited fashion, in the context of sex between an adult male and a minor male; assault of one man by another, or one woman by another, receives little or no attention. Both Sunni and Shiite legal sources give considerable attention to injury (jināyah) that may occur in the course of coercive zinā, particularly tearing of the perineum, such as happens with the use of excessive force or where the victim is a minor. The general opinion of the Sunni schools was that a partial tear provoked a fine in the amount of 1/3 her bloodprice (diyah), while a total tear (such as causes incontinence and could even lead to death) prompted a full bloodprice. The Shiite jurists generally agreed to assign her a full diyah, and debated the necessity of also assigning her the dower (as we have seen above).