Popularity: 2% [?]

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 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.

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 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:

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 is not 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 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 (Hudûd 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:
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 to gain 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 be much forgiving, a dispenser of grace (to them).

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
The Quran is very clear that the basis of a marital relationship 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 as you 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, and He 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 garment for you, and you are as a garment for them.”

Sûrah al Nisa 4.19
“… And consort with your wives 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 be a claim for jirah compensation. The law of jirah provides for compensation for physical harm between spouses, and supports Islamic legislation against domestic abuse. Even in these discussions of appropriate jirah compensation, the question of the injured party’s consent plays a central role. Some Islamic jurists considered consent to be presumed by virtue of the marital relationship, while others maintain 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 sexual autonomy 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 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
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 of your 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 Critique of 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′

Popularity: 1% [?]

Sisters in Islam shares the concern expressed by the Deputy Prime Minister that the absence of a definition on rape in syariah law has led to victims of rape being charged for zina (illicit sex).

Throughout the history of Islam, differing human interpretations and understanding of the word of God had always existed. We as a society must debate and discuss in a rational and informed manner which interpretation will serve the best interest of our multi-ethnic, multi-religious, industrialising and modernising society.

In Pakistan, it is reported that three out of four women in prison under its Hudud laws, are rape victims. Because rape is equated with zina under Hudud law, rape victims are required to produce four pious male witnesses. It is of course nearly impossible for the rape victims to produce the four male witnesses required to prove their allegation. Therefore their police report of rape was taken as a confession of illicit sex on their part and they were duly found guilty.

In the real world, rape is unlikely to occur in the open, such that four pious males can observe the act of penetration. If they actually did witness such an act, and have not sought to prevent it, then technically they are abettors to the crime. In reality, unless the rapist confesses to the crime, women can never prove rape at all if rape is placed under syariah jurisdiction.

It is because of such gross injustice and abuse of the law that Sisters in Islam objected to several provisions which discriminated against women in the Hudud Enactment of Kelantan in 1993. The enforcement of such laws leaves rape victims who are unable to provide four male eye witnesses liable to prosecution for illicit sex.

In Malaysia, rape is a crime under the Penal Code. There is therefore no necessity for a new crime of rape under the Syariah criminal offences legislation as this would lead to a further conflict of jurisdiction between civil and syariah law. All citizens, whether Muslims or non-Muslims, who commit the crime of rape, which includes incest, should be prosecuted under the Penal Code. According to the Federal Constitution crime is a federal matter and effort must be made to minimise areas of overlapping of jurisdiction between civil and syariah law which have already led to numerous cases of conflict that must be addressed by the authorities in consultation with NGOs.

We feel there are adequate provisions in the Penal Code to deal with the Deputy Prime Minister’s concern of sexual abuse at home. Even though the crime of incest is not defined in the Penal Code, the perpetrator could be charged for rape and the judge should take into consideration the aggravating circumstances of a family relationship and impose a higher sentence on the rapist.

Incest, however, is a specific crime under the Syariah Criminal Code. In an unprecedented case in Kelantan recently, a 17-year-old daughter was charged for incest with her father under the Kelantan Syariah Criminal Code. Sisters in Islam views this development with deep concern.

That the Syariah prosecutors regarded the girl as a willing partner in the commission of the crime and therefore an offender, rather than a victim, is totally against the grain of justice. The girl is a juvenile under the authority and control of her father. The failure of the Syariah judicial officers to understand the dynamics of power relationship led to the prosecution of a daughter, a victim of sexual abuse by the father, as if she was an equal perpetrator and willing partner in the crime.

In this case, the cause of justice would have better been served if the father was charged with rape under the Penal Code where he is liable to imprisonment for not less than five years and not more than 20 years. This sentencing properly reflects the gravity of the crime committed and society’s abhorrence of such a crime. However, under the Kelantan Syariah Criminal Code, the person who commits incest is liable only to a fine not exceeding $3,000 or to imprisonment for a term not exceeding two years, or both.

In the Kelantan case, society would regard the daughter as the victim, not the offender. She is regarded as a minor under civil law and should have been given the professional care and support she so necessarily needed to help her overcome the trauma of an incestuous relationship. She should not have been treated as a criminal.

Sisters in Islam urges the Government to form a committee which includes women’s groups and other NGOs to review the Syariah Criminal Law and its many provisions which conflict or overlap with civil law, which conflict with constitutional provisions on fundamental liberties and which discriminate against women and marginalised communities.

Popularity: 1% [?]