Islamic Feminism – Some issues
addressed.
by
Sr Ruqaiyyah
Waris Maqsood.
Being raped is
not to commit zinah
It seems ridiculous to state that rape is not the same thing as zinah, but in a few places in the Muslim world (notably Pakistan) the law has somehow managed to make a victim of this heinous crime into a guilty person. Thankfully, Shari’ah lawyers are currently dealing with this issue. Obviously, legal systems that imprison and penalise women for being raped are not carrying out Islamic law.
The crime of rape (zinah bi’l jabr) is enforced sex; this could be either
· against the will of the victim (female or male anal rape)
without the consent of the victim, or with consent when that was obtained by putting the victim in fear of death or hurt
by deception if the woman believed she was validly married to the man.
A man whose depraved sexual urges leads him to commit rape, whether of girl, boy, woman, wife or another man, is certainly guilty of lust and zinah, but this is hardly the case for the victim of the rape. On the contrary, victims would have suffered appalling fear, probable actual bodily harm, and traumatisation that could last a lifetime, and in some societies social consequences that could stigmatise or shame them.
Rape should probably never be counted as an example of zinah since it is not an act of public indecency but rather a crime of violence, or hirabah (which comes under the ruling given in 5.33 and could include capital punishment as a penalty, and does not require the testimony of four witnesses).
The taking of a person’s body or personal honour by force could be considered the very worst form of hirabah. Alternatively, the crime could be categorised as jirah (wounding or bodily harm), which might even be applied to domestic abuse and marital rape, and could result in damages or financial compensation for the wounded woman.
Referring back to the hadith regarding Caliph Umar’s comment (Bukhari 8.816), if a raped woman was made pregnant by the rape, there was a danger that a husband might decide to discard her by accusing her of adultery with his lawyer using her pregnancy as public evidence, leaving aside the Qur’anic command to produce four eye-witnesses of the wife’s act. This seems to have become the case in Pakistan and Nigeria (in 2004). In effect, this causes a presumption of guilt, contrary to all justice systems, for the raped pregnant woman would have the problem of proving that she was raped, in absolute opposition to the purpose of the zinah verses which were to protect women’s honour. Raped males (usually by enforced anal sex) never become pregnant.
Of course, an accused male would deny having raped the woman, and his oath would be considered sufficient proof of his innocence unless four witnesses could testify to his voluntary involvement, whereas the victim of the rape would have to produce four eye-witnesses to prove her innocence. Usually, the most she could hope for might be a child who was in the room at the time. The nightmare result could then follow of the victim being charged with slander (qadhf) in addition to adultery, and might be subjected to 100 lashes or even death.
Thus the spirit of the Shari’ah would be completely overturned - the lawyers would be protecting men who had raped or sexually coerced either females or males with impunity. The right spirit of Islamic law would be rather that a women accused without four witnesses should receive the benefit of the doubt, and not be sentenced at all.
Thankfully, although Nigeria and Pakistan do still have the sentence of stoning on their statute books, nobody has ever been stoned to death in living memory, and the recent ly accused pregnant women were granted reprieves and exoneration once they were properly examined by Shari’ah judges.
A further unpleasant consequence could be that a raped woman might be expected or coerced to ‘disappear’ or even commit suicide in order to restore her family’s ‘honour’. This sort of thing was condoned before the revelation of Islam; a family member could be slain for alleged infidelity or some other embarrassment to the family.
With the coming of Islam, killing women suspected of sexual indiscretion was totally forbidden and classed as murder. The so-called ‘honour-killings’ that have taken place in various societies have nothing to do with Islam, and are in fact murder. Murder of an innocent female by a father or brother or uncle is one of the most horrendous crimes.
One can understand strong cultural conditions prevailing to defend family honour, but in Islam people, including parents, brothers and uncles, who even merely accuse others of zinah without genuine grounds for doing so should actually face the penalty for being a false witness and for slander.
November 22, 2005 first Islamic childhood conference, Morocco. The other issue specially mentioned by the Ministers' declaration was the case of "honour" killings of girls, a practice that is more common in Asia than in Africa. The conference urged Muslim states to take "appropriate legislative and administrative measures and devise suitable programmes" to fight crimes against women and girls committed in the name of honour.
A study of the consequences of rape for young unmarried girls in rural Bangladesh, for example, highlighted numerous cases of victims beaten, murdered, or driven to suicide because of the ‘dishonour’ that their rape or illegitimate pregnancy brought on the family. The study found that there are 130 per cent more deaths from injury–suicide, homicide, assault, and complications from induced abortions–among single than among married teenage girls.
Similarly, in Alexandria, Egypt, a study of female homicides showed nearly half of the women and girls killed had actually been murdered by relatives after they had been raped.
Abuse of ‘those
possessed by some man’s right hand’.
There was outrage in 2005 when the leader of the British National Party (BNP) accused Islam, a faith which practices a life of prayer and totally forbids sex before marriage or outside marriage, of wishing to increase its numbers through rape, and claimed that 'verse after verse of the Qur'an' encouraged men to rape women by force. That is nonsense.
He was probably
referring to women described by the term ‘those your right hands possess’ (ma malakat aymanukum), which occurs 14
times in the Qur'an. It is most often used with reference to women,
particularly prisoners of war, but may be applied to both sexes, and slaves in
general. Before the coming of Islam slave-women were much abused, and their
owners could force sexual intimacy upon them whenever they wished.
Islam ordered the treatment of slaves to be honourable, and encouraged liberating slaves as one of the highest acts of merit. The Qur'an specifically ordered a stop to abusing slave-women and insisteed that Muslim men should marry women honourably, either with dowry payments if they were free women, or if they took a wife from amongst 'those their right hands possessed', the granting of their freedom came in lieu of the dowry.
The actual orders given to the Prophet
sThese are the specific orders sent to the Prophet concerning his own circumstances and those applying to other Muslims.
‘You are
forbidden to take in marriage women already married, except those who
have fallen in your hands as prisoners of war.(The realities of war often
break up marriages). This is the order of Allah relating to marriage
prohibitions
All women other than these are lawful
provided you seek them in marriage with gifts from your property (dowry),
desiring chastity and not lust. Give them their dowry as an obligation for the
benefit you have received from your marriage relationship. However, there is no
blame on you if you change the agreement of dowry with mutual consent. Allah is
the Knowledgeable, Wise.
If any of you
cannot afford to marry a free believing woman, let him marry one of his own
slave girls who is a believer; Allah knows how good you are in your faith. You all
belong to one and the same community. Marry them with the permission of their
family and give them their fair dowry so that they may live a decent life in
wedlock and not live as prostitutes or look for secret illicit relationships.’ (Surah 4.24-25).
These next verses refer specifically to the limits set by Allah upon the Prophet’s own household:
‘O prophet! We
have made lawful to you the wives to whom you have paid their dowers
and those who your right hand possesses out of the prisoners of war God has assigned to you
and daughters of your paternal or maternal uncles and aunts who migrated (from Makkah) with you;
and any believing woman who dedicates her soul to you if you wish to wed her this (concession) only for you and not for the believers (in general); We know what We have appointed for them as to their wives and the captives whom their right hands possess - in order that there should be no difficulty for you….
It is not lawful for you (to marry more) women after this, nor to change your existing wives for (other) wives, even though their beauty may attract you, except from those already amongst your household staff: and Allah watches over all things.’ (Surah 33.50,52).
A frequently quoted but often misunderstood verse is:
‘If you fear that you shall not be able to deal justly with orphan girls, then marry (other) women of your choice, two or three or four; but if you fear that you shall not be able to deal justly (with them), then only one, or (from) those your right hands possess. That will be nearer to prevent you from doing injustice.’(Surah 4.3).
Since sex outside marriage is forbidden to Muslims, and slave-women were granted the right to reject masters trying to force intimacy upon them, the phrase meant that Muslim men could marry women from among their captives or slaves.
Some time after the death of the Prophet Aishah made this very clear while explaining to her nephew Urwah that the main drift of the verse was to protect the rights of female orphans:
Aishah said, ‘O my nephew! (This verse was revealed in connection with) orphan girls who were under the guardianship of men who were attracted by their wealth and beauty and intend to marry them with a mahr less than what other women of their standard deserved. So they (such guardians) have been forbidden to marry them unless they did justice to them and gave them their full mahr; or were ordered to marry other women instead of them.’ (Bukhari 7.2.)
As regards the witness of two women being the equivalent of one man’s, the Shari’ah generally accepts that this is advisable in cases where women have little knowledge and no expertise of the subject. However, in matters where their witness would be just as valid as a man’s, the witness of one women is sufficient and accepted the same as a man’s.
All the Qur’an
references except 2:282 apply equally to women as to men – there is no
distinction or extra number of women required. The jurist Ibn
Al-Qayyim pointed out that the rule enunciated in 2:282 is the exception to the
general rule that the testimony of a woman is equal to that of a man. Surah 24:69 explicitly equated the testimony
of both genders in the issue at hand.
Within Islamic jurisprudence once the
reasoning behind a rule is no longer applicable, then the rule itself may not
be applicable. (Khalaf, Abdel Wahab, Ilm Usul al-Fiqh, Dar al-Qalam 1978,
p.66). Professor Khalaf, who was Professor of Shari’ah at Cairo School
of Law, states that all shari’ah rules are based on their reasons;
therefore, the existence or non-existence of a rule depends on the existence or
non-existence of its reason.
In modern society, where both women and men
are well versed in business and financial matters, there is no special danger
of a woman forgetting or misunderstanding a transaction;
The only reason given is to corroborate the
female's witness and prevent unintended errors in the perception of the
business deal. The Arabic term used in this passage (tadhilla) means
literally ‘loses the way,’ ‘gets confused or errs.’ But are females the only
gender that may err and need corroboration of their testimony? Definitely not.
Female genital mutilation (FGM), which is also called female circumcision, is most widespread in sub-Saharan Muslim (and some non-Muslim) cultures, but Muslim scholars have long emphasised that there is no Islamic basis for this very harmful practice, which causes many deaths among young girls each year.
It is still practised by Muslims, Christians and people of no faith in Somalia, Ethiopia, the Sudan, and Egypt, although it is now illegal. It has caused enormous suffering and even death, but was regarded as important to cleanliness, modesty, and chastity.
The Prophet knew of it and disapproved of what was called ‘the deep cut’ – excision of female genitalia. It bears no comparison with male circumcision, which is a religious practice, Allah’s command to the Prophet Ibrahim
According to UNICEF (the United Nation's
Children's Fund) more than 130 million women around the world have undergone
the procedure as female circumcision is still performed every year on 2 million
girls. Female circumcision is practiced in 28 African countries as well as in
Asia and the Middle East, but the procedure is also increasingly found in
Europe, Australia, Canada and the USA, primarily among immigrants from these
countries. So far, according to Amnesty International, only 14 of the overall
53 African countries have adopted laws banning the practice.
The immediate and long-term health consequences of female genital mutilation vary according to the type and severity of the procedure performed. Immediate complications include severe pain, shock, haemorrhage, urine retention, ulceration of the genital region and injury to adjacent tissue.
The growing number of anti-FGM activists have been supported by one of the most important decision-makers in the united Islamic world, the Organisation of Islamic Conference (OIC). The first Islamic Conference of Ministers in Charge of Childhood, organised by the OIC and the Islamic Educational, Scientific and Cultural Organisation (ISESCO) issued a strong-worded declaration condemning FGM, and calling upon all Muslim states to ‘take the necessary measures to eliminate all forms of discrimination against girls and all harmful traditional or customary practices, such as child marriage and female genital mutilation.’ Governments were asked to ‘enact and implement proper legislations and formulate, where appropriate, national plans, programmes and strategies protecting girls.’
There is nothing in the Islamic sources, either the Qur’an or the sunnah, to suggest that it was a prescribed ritual of initiation for women in Islam.