Legal Conceptions of Sexual Violation in Late Islamic Law and Modern Jordan
by
Julie Frances Lowe
A thesis submitted in conformity with the requirements for the degree of Doctor of Philosophy Near and Middle Eastern Civilizations University of Toronto
© Copyright by Julie Frances Lowe 2020
Legal Conceptions of Sexual Violation in Late Islamic Law and Modern Jordan
Julie Frances Lowe
Doctor of Philosophy
Near and Middle Eastern Civilizations University of Toronto
2020 Abstract
Despite the miscarriages of justice that occur when modern governments purport to implement
Islamic laws on rape, and despite continuing interest among some Muslims in present-day applications of Islamic law, not enough research exists on the approach to sexual violations in
Islamic jurisprudence. Further, little is known regarding the legal approach of most Muslim- majority countries to sexual violence. Therefore, this dissertation addresses two main questions:
First, how does Islamic law, as conceived by the Ḥanafī, Mālikī and Shāfīʿī schools from the 15th
CE/9th h century onward, conceptualize sexual violence? Second, how does the law in Jordan conceptualize this issue?
Based on analysis of fiqh and fatwās, and building on Hina Azam’s work, Muslim jurists primarily conceive of rape as a moral transgression against God rather than a crime against an individual victim. The association of rape with zinā (illicit intercourse), where jurists aim to cover the sin, precludes prosecution and compensation in many rape cases and impacts related issues such as reporting of sexual violence and standards of coercion. Further, alternate approaches to rape under usurpation (ightiṣāb) and banditry (ḥirāba), as well as tort compensation for injuries from sexual violence, are intertwined with moral considerations. Moreover, the moral framework combined with gendered concepts leads to additional difficulties for male victims. ii
Analysis of criminal legislation, commentaries and a sample of court decisions indicates that
Jordan has adopted a secular system for criminal law that contains little direct relation to Islamic jurisprudence. However, despite largely treating sexual violence as a crime against an individual victim, Jordan maintains a partially moral notion of sexual offences. While the moral slant has decreased in recent years, and although court judgments do not explicitly incorporate notions not found in the Criminal Code, there is some indication of non-written social mores guiding aspects of judicial proceedings.
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Table of Contents
Introduction ...... 1
Part I Islamic Jurisprudence ...... 13
Chapter 1 Rape as Coerced Illicit Intercourse (Zinā) ...... 14
A Note on Sources and Methodology for Islamic Law ...... 16
The Crime of Illicit Intercourse (Zinā)...... 23
2.1 Zinā as a Crime Against God ...... 23
2.2 Definition of Zinā ...... 24
2.2.1 The Concept of Doubt ...... 25
2.3 Penalties ...... 28
2.4 Evidence ...... 29
Application of Zinā Doctrines to Rape ...... 33
3.1 Difficulties Prosecuting Rape as a Form of Zinā ...... 34
3.1.1 The Corporal Penalty ...... 34
3.1.2 Evidentiary Barriers ...... 35
3.2 Limits on Financial Compensation for Rape Victims...... 50
Summary ...... 54
Chapter 2 Non-Prototypical Rape Victims: The Scope of Coerced Zinā ...... 55
Underage Girls ...... 57
Male Victims and Female Aggressors ...... 60
2.1 Males as Victims of Coerced Zinā ...... 61
2.2 Males Subject to Aggression from Females ...... 69
Spousal Rape ...... 78
3.1 Coercion of Wives ...... 79
3.2 Coercion of Husbands ...... 89 iv
Anal Intercourse ...... 94
4.1 Anal Intercourse as Zinā ...... 95
4.2 Coerced Anal Intercourse ...... 99
Summary ...... 103
Chapter 3 The Meaning of Coercion in Illicit Intercourse ...... 105
The Ḥanafī Approach to Coercion ...... 107
1.1 Standards of Coercion for Vaginal Rape ...... 107
1.2 The Standard of Coercion for Anal Penetration ...... 111
1.3 Establishing the Defense of Coercion ...... 113
The Shāfiʿī Approach to Coercion ...... 115
2.1 The Duty of Resistance ...... 115
2.2 The Case of the Starving Woman ...... 120
The Mālikī Approach to Coercion ...... 121
3.1 The Case of the Starving Person ...... 122
3.2 The Standard of Coercion in Cases of Aggression ...... 124
3.3 Excuses in Cases of Pregnancy ...... 126
Summary ...... 127
Chapter 4 Alternate Methods of Resolving Rape Cases ...... 129
Usurpation (Ightiṣāb) ...... 131
1.1 Eyewitness Testimony ...... 132
1.2 Claim without Witnesses ...... 134
Banditry (Ḥirāba) ...... 142
Self-Help Measures ...... 147
Moral Resolution in the Shāfiʿī School ...... 151
Summary ...... 157
Chapter 5 Physical Injuries and Other Sexual Violations ...... 158 v
Physical Injuries ...... 160
1.1 Vaginal Tearing (Ifḍāʾ) ...... 161
1.1.1 The Ḥanafī Approach ...... 163
1.1.2 The Mālikī Approach ...... 166
1.1.3 The Shāfiʿī Approach ...... 169
1.2 Defloration (Iftiḍāḍ/Izālat al-Bakāra) ...... 170
Discretionary Crimes ...... 177
2.1 Female Frotting ...... 178
2.2 Other Offences ...... 180
Summary ...... 182
Part 2 Modern Jordan ...... 184
Chapter 6 Sexual Violations in Modern Jordan ...... 185
Introduction ...... 185
1.1 A Note on Sources and Methodology for Jordanian Law...... 188
Legal Framework ...... 197
2.1 Rape ...... 198
2.2 Violation of Honour ...... 200
2.3 Other Sexual Offences ...... 201
2.4 General Provisions ...... 204
Evolution and History ...... 205
3.1 Gendered Nature of the Law ...... 206
3.2 Sentencing ...... 210
3.3 Role of Islamic Law ...... 213
3.3.1 Direct Comparison of Jordanian and Islamic Law ...... 214
3.3.2 Ottoman Links ...... 218
Sexual Violence and the Courts ...... 225 vi
4.1 The Code Versus Social Norms ...... 226
4.2 Judicial Interpretation: The Scope of Violation of Honour ...... 228
4.3 Sentencing ...... 233
4.4 Using the Law to Silence Victims? ...... 237
Coercion and Consent ...... 238
5.1 Consent in Rape Cases ...... 240
5.2 Consent in Violation of Honour Cases ...... 244
Civil Compensation ...... 247
6.1 Claim for Rape and Violation of Honour Combined ...... 248
6.2 Claims for Violation of Honour ...... 249
Summary ...... 251
Conclusion ...... 253
Bibliography ...... 255
Appendix: Arabic Text of the Jordanian Criminal Code ...... 269
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List of Tables
Table 1: Core Sources of Islamic Jurisprudence from the 15th CE/9th h Century Onward ...... 18
Table 2: Relationship Between Commentaries, Glosses and Base Texts ...... 21
Table 3: Outcomes for Claims of Usurpation without Witnesses ...... 136
Table 4: Total Compensation for Rape Victims who Suffer Vaginal Tearing (Compensation & Dower) ...... 164
Table 5: Overview of Criminal Law Cases Included in Study ...... 191
Table 6: Summary of Criminal Cases by Time Period ...... 191
Table 7: Rape Cases ...... 193
Table 8: Violation of Honour Cases ...... 195
Table 9: Percentage Breakdowns for Violation of Honour Cases ...... 196
Table 10: Civil Cases ...... 196
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Introduction
The recent viral #MeToo campaign on social media highlighted the prevalence of sexual misconduct while beleaguering figures such as Hollywood’s Harvey Weinstein, American Supreme Court appointee Brett Kavanaugh and former Conservative leader Patrick Brown in addition to countless lesser-known individuals. Around the world, women tweeted their own stories using translated versions of the hashtag, such as #AnaKaman in the Arab world.1 Sexual violence, it seems, traverses the boundaries of social ranks and cultures.
However, societies have been grappling with sexual transgressions long before #MeToo went viral, resulting in a variety of laws and social norms regulating sexual behaviour in different legal systems, jurisdictions and time periods. For example, while modern Canadian law considers penetrative and non-penetrative sexual offences “sexual assault”, in Queensland, Australia, vaginal, vulvar, anal and oral penetrative offences are singled out as “rape”.2 Further, in Canada, the permissibility of accepting a woman’s rape complaint without corroborating evidence only dates to the 1980s.3 Moreover, in the United States, the decoupling of laws regulating sexual assault from adultery and fornication, which historically required that rape victims plead non- consent to be relieved from criminal charges, is a relatively recent change.4
Varying approaches have pros and cons, but none can lay claim to achieving ideal outcomes in all cases.5 Sexual violence, which often occurs in private and carries significant stigma, poses
1 For an English-language article on the #MeToo phenomenon in Jordan, see Dala Alhindi, ‘#MeToo: Jordanian women share their sexual harassment stories’ (Roya News, 16 October 2017)
1 inherent difficulties to criminal prosecution and civil proceedings. Given such challenges, as well as the serious impact of sexual violence on its victims, the topic of sexual violation deserves study across a variety of jurisdictions, time periods and perspectives, such as legal and anthropological. This dissertation aims to contribute to the discussion from a legal perspective according to the parameters defined below.
Scope of the Study and Main Findings
At a basic level, this project addresses two main questions. First, it considers how Islamic law, as conceived by the Ḥanafī, Mālikī and Shāfīʿī schools of jurisprudence from the 15th CE/9th h century onward, conceptualizes sexual violence. Second, it examines how the law in one contemporary Muslim-majority jurisdiction, namely Jordan, conceptualizes sexual violence, and whether there is continuity between the Jordanian laws regulating sexual transgressions and Islamic law.
For both Islamic law and modern Jordan, this study incorporates a large range of sexual violations, such as penetrative offences, physical injuries from intercourse and non-penetrative sexual assaults like unwanted touching. Further, it includes sexual violence inside and outside of marriage. However, it excludes some variants found in Islamic texts, namely violation of slaves and persons of ambiguous gender (khunthā), as well as offences where one or both of the parties is non-Muslim or that take place outside the lands of Islam (dār al-ḥarb). With the exception of persons of ambiguous gender, these situations are not relevant to modern law, as all people are equally subject to the criminal law within the boundaries of the nation state.
In addressing the above questions, this dissertation has several goals:
1. To establish a reliable account of the Islamic legal tradition’s approach to rape and other sexual violations, and to understand the implications of this approach (or approaches where the schools differ) on prosecution and compensation for cases of sexual violence.
that a report authored in New Zealand concluded that the chances that a rapist will actually be caught and convicted may be as low as 4%: ibid 26.
2
The importance of these issues is not merely historical. In recent times, countries such as Pakistan have claimed to implement Islamic laws on sexual violence, leading to international outcry as rape complainants have found themselves on trial for adultery while their alleged attackers walk free.6 On the other hand, defensive literature seeking to distance Islamic law from these miscarriages of justice, particularly prior to Hina Azam’s study (to be discussed below), has led to a variety of contradictory claims about rape in Islamic law.7 Further, there is clearly interest among certain Muslims in the contemporary application of Islamic law. The existence of a reliable historical account is important to debunk false claims and may also serve as a reference for meaningful legal reform projects that aim to respect the Islamic tradition while also being responsive to modern needs.
2. To understand the theoretical underpinnings of Islamic law in the area of sexual violence in addition to the substantive law.
Although many contemporary individuals see rape and other forms of sexual assault as a violation against an individual, this is not necessarily the historical viewpoint. The theoretical basis not only places the substantive doctrines in context, but is also relevant to the question of whether it makes sense to implement such laws in contemporary times, or whether significant change is preferable, whether by new Islamic independent legal reasoning (ijtihād) or secular reform, according to the context and orientation of the lawmaker.
3. To determine how the legal treatment of sexual violence fits with broader themes in Islamic law, including:
a. The gendering of the law.
b. The evolution or stagnation of Islamic law and the role of juristic reasoning in creating that law.
6 See for example Julie D Chadbourne, ‘Never Wear Your Shoes After Midnight: Legal Trends Under the Pakistan Zina Ordinance’ (1999) 17 Wis. Int’l L.J. 179; Martin Lau, ‘Twenty-Five Years of Hudood Ordinances – A Review’ (2007) 64 Wash. & Lee L. Rev. 1291. Also note that the sections of the Pakistani Hudood Ordinances with a detrimental effect on rape victims have been repealed. 7 Hina Azam’s study is: Hina Azam, Sexual Violation in Islamic Law: Substance, Evidence, and Procedure (Cambridge 2015). As for defensive literature, see for example Muhammad Munir, ‘Is Zina bil-Jabr a Hadd, Taʿzir or Syasa Offence – A Re-Appraisal of the Protection of Woman Act, 2006 in Pakistan’ (2008-2009) 14 Y.B. Islamic & Middle E. L. 95 [transliteration is as per the author’s spelling]; Asifa Quraishi, ‘Her Honor: An Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective’ (1997) 18(2) Michigan Journal of International Law 287.
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As Islamic law is heavily gendered in related areas, such as marriage which regulates licit intercourse, similar trends can be expected for sexual violations that concern illicit intercourse. This study explores the contours of the gendered approach, as well as the practical consequences flowing from it. Moreover, by testing the continuity of legal rules related to sexual violence with earlier doctrines reported in Azam’s research, this project incidentally considers the debate regarding whether Islamic law stagnated and ossified after the development of the schools. Further, examination of the diverse approaches of the three schools regarding many details of sexual violence allows us to also imagine what the law “could have said, and what it might yet say”.8
4. To analyze how one Muslim-majority country that does not claim to implement Islamic law, namely Jordan, approaches issues of sexual violence in its legal system.
Unlike a small number of countries such as Pakistan and Sudan that have claimed to implement Islamic criminal law, there is a dearth of academic literature on legal approaches to sexual violation in Muslim-majority countries that make no such assertion. The lack of prior research may stem in part from the idea that because these countries adopted European criminal laws, there is little to be gained from examining their legal approach. While the European link is true, this does not mean that some aspects of the written law and of the implementation in courts has not been influenced by indigenous traditions, which includes, in the case of Muslim-majority countries, Islamic law. As such, in addition to understanding Jordan’s approach on its own merits, a concurrent goal of this analysis is to determine whether there is a relationship between the country’s legal approach to sexual violence and that of Islamic law.
The main findings of this study include: 1. Islamic legal doctrines governing non-consensual intercourse differ substantially from contemporary rape laws. Jurists primarily considered coerced intercourse a type of zinā (adultery/fornication), a category developed for consensual illicit intercourse where the legal concept of privacy (satr) renders prosecution contingent on the public nature of the offence or the participants’ moral imperative to confess. In non-consensual situations, this makes criminal prosecution and financial compensation unlikely and silences the victim due to privacy concerns and a desire to prevent sexual gossip. The most common alternate
8 Azam, Sexual Violation (n 7) 7.
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legal category for coerced intercourse, usurpation (ightiṣāb), which is recognized by Mālikī jurists, is also intertwined with aspects of zinā, leading in part to the same complications. Similarly, the intermixture of tort concepts with zinā concerns complicates claims for compensation for physical injuries sustained from sexual violence.
2. Differing theoretical frameworks account for the radical disconnect between Islamic doctrines on sexual violations and modern laws. Muslim jurists viewed sexual transgressions primarily as moral offences against God, with some ancillary concern for notions of social good. In contrast, many modern legal systems treat sexual violence as an offence against an individual victim. The moral framing by pre-modern Muslim jurists leads to consequences considered problematic and unethical by contemporary standards, such as the difficulties prosecuting rape, the victim’s potential liability to slander, high standards of coercion, and the focus of some jurists on morally rehabilitating the offender. However, within a worldview that considers illicit sexual acts as contraventions of God’s prohibition on illicit intercourse that do not inflict tangible harm on a human victim, these doctrines are logical.
3. Gendered notions incorporated into legal rules for sexual violence generally disadvantage male victims of rape who are expected to demonstrate greater fortitude on the basis of male biology and their assumed sexual dominance. In the spousal context, the reverse applies, as wives are significantly more vulnerable to unwanted sex due to gendered conceptions of sexual rights and obligations within marriage.
4. Although there is significant continuity in the laws of the three schools over time, their doctrines are not completely stagnant. Examples of change include the novel use of banditry (ḥirāba) in the Mālikī school to prosecute sexual violations introduced by later jurists, as well as the abandonment of moral resolution doctrines in the Shāfiʿī school, at least in the legal literature.
5. The Jordanian legal approach to sexual violation, which is relatively uniform in the legislation, commentaries and case law, primarily treats sexual violence as an offence against an individual. However, an element of morality continues to permeate the legal approach to sexual offences, though this has decreased with the passage of amendments over time. Further, the moral aspect in Jordan has little in common with the moral framework of Muslim jurists. Moreover, the impact of positive Islamic law doctrines on Jordanian legislation and judicial interpretation of sexual offences is generally relegated to tertiary matters.
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Previous Scholarship
The most relevant existing work is Hina Azam’s book Sexual Violation in Islamic Law: Substance, Evidence, and Procedure, as well as her related articles.9 Azam’s scholarship focuses on rape, in the meaning of vaginal penetration of non-consenting females outside of marriage, in the formative period of Islamic law and in the Mālikī and Ḥanafī schools through the 12th CE/6th h century.
This project is heavily indebted to Azam’s foundational research and responds to her desire “to pave the way for further studies.”10 While building on her scholarship, the current study differs in the following ways: - The later time period starting in the 15th CE/9th h century, which allows for comparison of doctrines over time.
- The addition of the Shāfiʿī school.
- The use of fatwā collections in addition to fiqh works.
- Consideration of additional topics regarding the vaginal penetration of non-consenting females outside of marriage, such as the complainant’s liability for slander (qadhf), self- help measures and physical injuries.
- The addition of male victims, coercive anal intercourse and non-penetrative sexual offences, as well as non-consensual intercourse between spouses.
- Detailed discussion of the standard of coercion.
- Consideration of a modern Muslim-majority jurisdiction.
The discussion of Islamic jurisprudence in this project also draws on the research of other academics to a lesser extent, including but not limited to Mairaj Syed’s recent book on coercion, which includes discussion on the threshold of coercion for rape among earlier Ḥanafī jurists, and
9 Azam, Sexual Violation (n 7); Hina Azam, ‘Competing Approaches to Rape in Islamic Law’ in Failinger MA and others (eds), Feminism, Law and Religion (Ashgate 2013); Hina Azam, ‘Rape in Islamic Law’ in Brown J (ed), The Oxford Encyclopedia of Islam and Law (Oxford Islamic Studies Online)
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Kecia Ali’s writings on marriage and slavery which are relevant to coerced intercourse between spouses.11
Unlike the extensive scholarship on the partially repealed Hudood Ordinances in Pakistan, there are no pertinent academic studies on legal conceptions of sexual violence in Jordan.12 As such, the Jordanian portion of this project draws mainly on primarily sources, namely Jordanian legislation and court cases. The comparison between Jordanian law and Islamic law relies on a number of previous studies on Ottoman law, which will be mentioned in chapter 6.
Islamic Law
The concept of Islamic law, used interchangeably in this study with the term Islamic jurisprudence, is key to this project. The first five chapters focus on how Islamic law approaches various sexual violations and the implications of that approach. Chapter six, which looks at modern Jordan, returns to the concept of Islamic law to compare the two systems and consider their relationship. While defining Islamic law and delineating all of its components is a substantial undertaking, the discussion below aims to provide key background information to place the upcoming chapters in context.
Islamic law is often called a “jurists’ law”.13 In contrast to civil law which prioritizes legislative codes or common law which relies on precedent, Islamic law depends heavily on the scholarly works of jurists. Such works often take the form of books of jurisprudence (fiqh) in which the jurist sets out the law in diverse areas of worship and interpersonal transactions, such as prayer, fasting, crimes and financial transactions. In another genre called fatwā (plural: fatāwā), jurists respond to specific legal questions that have arisen, giving such works a question and answer format. This study includes both fiqh and fatwā works. In general, there is no difference in conceptions of sexual violence among these two genres except where explicitly noted.
11 Kecia Ali, Sexual Ethics & Islam: Feminist Reflections on Qur’an, Hadith, and Jurisprudence (Oneworld 2006); Kecia Ali, Marriage and Slavery in Early Islam (Harvard 2010); Mairaj Syed, Coercion and Responsibility in Islam: A Study in Ethics and Law (Oxford 2017). 12 There are a few related studies that are not directly on point which will be mentioned in chapter 6 as applicable. 13 See for example Rodolph Peters, ‘From Jurists’ Law to Statute Law or What Happens When the Shari’a is Codified’ (2002) 7(3) Mediterranean Politics 84.
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There is significant debate in the academic literature on the scope of Islamic law. For example, while some scholars argue that Islamic court judgments form part and parcel of Islamic law, even when they appear to contradict the black letter of fiqh and fatwā works, others argue that they are a deviation from the sources of Islamic jurisprudence.14 Further, the concept of codification, i.e. whether a modern legislative code can represent Islamic law or whether it is antithetical to Islamic law by definition, is another area of disagreement.15 These differences arise from the fact that fiqh and fatwā are understood to be part of the science of the law in contrast to state decrees or legislation which are the product of a particular legal will (siyāsa). This creates controversy over whether acts originating in the will of office holders are properly part of Islamic law or external to it.16
Chapters 1-5 on historical Islamic law only include fiqh and fatwā works. Further, as will become apparent, these works give the impression that rape is nearly impossible to prosecute, particularly in the Ḥanafī and Shāfiʿī schools. However, the reader’s position on the role of siyāsa affects the weight that should be accorded to the fiqh and fatwā doctrines. For those who exclude siyāsa from the scope of Islamic law, the material presented in this dissertation provides a comprehensive overview of the Islamic legal treatment of rape and other forms of sexual violation. The jurists’ statements represent the full extent of the law and their silence on the possibility of the state pursuing other remedies amounts to an implicit rejection of legal remedies that exceed the four corners of jurists’ texts.
On the other hand, for those who hold that siyāsa is integral to Islamic law, the doctrines in chapters 1-5 form part of a larger Islamic worldview. Although rape may be nearly impossible to prosecute under the specific doctrines that preoccupied the jurists (ḥadd crimes – see below), this does not mean that rape cases would go unpunished under Islamic law, as the ruler would be expected to exercise his siyāsa jurisdiction to ensure that justice is served. Under this view, the jurists’ silence
14 See for example the competing approaches of James E Baldwin, ‘Prostitution, Islamic Law and Ottoman Societies’ (2012) 55(1) Journal of the Economic and Social History of the Orient 117; Elyse Semerdjian, Off the Straight Path: Illicit Sex, Law, and Community in Ottoman Aleppo (Syracuse University Press 2008). The respective views of these two scholars will be discussed further in chapter 6. 15 Compare for example Baldwin (n 14) 133-36; Oussama Arabi, Studies in Modern Islamic Law and Jurisprudence (Kluwer Law International 2001) 193-194. 16 For more detailed studies of siyāsa, see Mohammad Fadel, ‘Islamic Law Reform: Between Reinterpretation and Democracy’ (2017) 18(1) Yearbook of Islamic and Middle Eastern Law 44; Yossef Rapoport, ‘Royal Justice and Religious Law: Siyāsah and Shariʿah under the Mamluks’ (2012) 16 Mamlūk Studies Review 71. Both articles are in favour of including siyāsa under Islamic law but mention alternate opinions.
8 on other remedies amounts to their tacit approval of parallel siyāsa jurisdiction to fill the gaps left by fiqh rules. Unfortunately, there is little record of siyāsa resolution of cases of sexual violation, such that this historical study is restricted to fiqh and fatwās.17
A related consideration relates to the role of fiqh and fatwā in everyday legal practice. Yossef Rapoport argues convincingly that the Mamlūk legal system incorporated four chief judges, one from each Sunnī school of law, who would divide cases among themselves not according to the school of the litigants or accused, but according to which school’s doctrines were most beneficial in any given case.18 Thus, even though Ḥanafī and Shāfiʿī rape doctrines may be restrictive, this does not necessarily preclude resolution under the more generous Mālikī rules. Imputing tacit acceptance of this methodology to the authors of the fiqh and fatwā works presented in this study would mean that jurists’ rules should not be understood in isolation, but as forming part of a larger system.
Unlike chapters 1-5 on historical doctrines where the reader may determine for him/herself how much weight to give the fiqh and fatwā rules based on his or her view of siyāsa, the inclusion of state law in chapter 6 on Jordan requires more direct engagement with siyāsa-related issues. Specifically, when considering Ottoman law, which influenced Jordanian law, chapter 6 will present two competing viewpoints that reject or accept legislation as Islamic and discuss their effect on how we categorize the relationship between Jordanian and Islamic law.
Within the fiqh and fatwā literature, although all jurists reference the Quran and ḥadīth (sayings of the Prophet Muḥammad) in deriving law, human interpretation has resulted in multiple legal schools which hold different positions on certain matters of law.19 The main schools of legal interpretation in Sunnī Islam are four: Ḥanafī, Shāfiʿī, Mālikī and Ḥanbalī. The first three schools, which historically and in present times represent the majority of Muslims, are the focus of this study. The connection between the Ḥanafī and Shāfiʿī schools and modern Jordan, as well as Azam’s prior study of earlier Ḥanafī and Mālikī law, also favoured this selection. The smaller
17 There are, however, a small number of relevant extant Ottoman court records available in translation that are incorporated into chapter 6 on Jordanian law. 18 Yossef Rapoport, ‘Legal Diversity in the Age of Taqlīd: The Four Chief Qāḍīs under the Mamluks’ (2003) 10(2) Islamic Law and Society 210. 19 Some would argue that the diverse opinions are due to inherited doctrines in different regions and changes to respond to social need, justified through textual hermeneutics, rather than diverse interpretations of the texts: see for example Behnam Sadeghi, The Logic of Law Making in Islam: Women and Prayer in the Legal Tradition (Cambridge 2013).
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Ḥanbalī school, the law of the Shiite sect and other interpretative currents may be taken up by future studies.
Although the legal tradition of each school is relatively consistent, some change can take place over time. The time period considered in this study, namely the 15th CE/9th h century onward, was chosen for two main reasons: first, since Azam’s existing study considers some forms of sexual violation in the Mālikī and Ḥanafī schools through the 12th CE/6th h century, study of a later period allows for comparison with earlier doctrines to determine change and continuity in the law. Second, since part of this project looks at modern Jordan, knowledge of the law in the centuries leading up to the creation of this nation state is important to trace the passage of traditional doctrines into Ottoman laws and the founding of modern Jordan.
In general, sexual behaviour is highly regulated in Islamic law. In addition to rules governing everyday interactions between the genders, such as modest dress requirements, jurists from all schools agree that sexual acts, including any type of sexual touching, foreplay and intercourse, are only licit within marriage or between a male master and his female slave. Engaging in these acts outside of such a relationship is a punishable offence. In fact, illicit intercourse (zinā) is considered such an abomination that juristic treatises describe it in terms such as “the greatest crime (aʿẓam al-jināya)” and “the lewdest of the major sins (afḥash al-kabāʾir)”.20 Moreover, accusing another person of sexual impropriety and/or spreading sexual gossip are also serious crimes.
In legal works, sexual offences are mainly regulated by the criminal law, which Muslim legal tradition splits into three categories: set crimes (ḥudūd, singular ḥadd), retaliation (qiṣāṣ) and discretionary offences (taʿzīr). Set crimes, once proven, carry a mandatory penalty in the form of severe corporal punishment or death that the judge cannot reduce or increase. However, conviction is subject to heightened evidentiary requirements that generally render the prosecution of an accused impracticable. There are only seven such offences: adultery/fornication (zinā), slander (qadhf), banditry (ḥirāba), theft (sariqa), apostasy (ridda), rebellion (baghy) and drinking alcohol
20 ʿAbd al-Ghanī al-Ghanīmī, al-Lubāb fī Sharḥ al-Kitāb (M ʿAbd al-Ḥamīd ed, Al-Maktaba al-ʿIlmiyya, date of publication unknown) vol 3 199; Muḥammad al-Khaṭīb, al-Iqnāʿ fī Ḥall Alfāẓ Abī Shujāʿ in S al-Bujayramī, Tuḥfat al-Ḥabīb ʿalā Sharḥ al-Khaṭīb (Dār al-Fikr 1995) vol 4 167.
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(shurb al-khamr).21 The first three, namely zinā, slander and banditry, are applicable to sexual violence and will be described in greater detail in the main body of this paper.
Retaliation, which corresponds to the principle of an eye for an eye (lex talionis) or financial compensation in lieu of retribution, includes murder and permanent physical injuries, such that it spans contemporary criminal and tort law. This category applies to sexual injuries, such as defloration and vaginal tearing, which are considered in chapter 5. However, as with certain other wounds, only financial compensation rather than retaliation in kind applies to most injuries to the sexual organs.
Discretionary crimes capture all remaining offences, such as forgery or perjury, which are punishable at the discretion of the judge or ruler. Evidentiary standards for this category are less stringent than for set offences and the punishment is generally less severe. In this study, this category mainly applies to non-penetrative forms of sexual violence. However, some jurists include select penetrative offences in this category, such as anal intercourse or intercourse with young girls.
A Note Regarding Terminology
The term “rape” evokes varying images to different people that are influenced by the individual’s culture, life experience and personal views. As noted at the beginning of this introduction, some legal systems also use this term, though the details of the offence will differ from one jurisdiction to another, while others avoid the word rape completely. When encountering the term “rape”, the reader may subconsciously read in preconceptions such as the elements of the crime, the role of consent or the gender of the victim. Thus, there is a risk that using this word in a study of Islamic jurisprudence and Jordanian law for an English-speaking Canadian audience may result in confusion regarding the intended meaning. The same applies to a certain extent to other terms
21 There is some debate on the number of set crimes. For example, Ḥanafī jurists do not consider apostacy as a ḥadd offence: Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century (Cambridge 2005) 65. However, as for the set crimes relevant to this paper, namely zinā, slander and banditry, the three schools agree that they are ḥadd offences.
11 used in this study, such as “slander”. However, concerns over ambiguities and misunderstandings must be balanced with considerations of readability.
Except for a small number of oft-repeated terms such as zinā (illicit intercourse), this paper uses English terminology, providing the Arabic in brackets on the first occurrence and explaining the intended meaning where needed. Particular attention should be paid to the word “rape”, as the connotation varies depending what is being discussed (e.g. vaginal versus anal intercourse). Shifts in meaning are stated explicitly as they occur throughout this study. Further, the reader should attempt to put aside pre-conceived ideas, such as the role of consent and the existence of rape as an independent crime. Instead, the reader is invited to maintain an open mind to grasp Islamic jurisprudence and Jordanian law on their own terms.
Outline
This study is divided into two parts, the first focusing on Islamic jurisprudence and the second on Jordanian law. The section on Islamic law is significantly longer and is divided into five chapters as follows: - Chapter 1 establishes the basic legal approach to rape for the prototypical adult female victim subjected to non-consensual vaginal intercourse by a man other than her husband.
- Chapter 2 examines how the law responds to other rape scenarios including the rape of minor girls, male victims, spouses and anal penetration.
- Chapter 3 looks at the concept of coercion in rape cases, particularly at the standard of coercion imposed on victims.
- Chapter 4 considers alternate legal approaches to resolving rape cases before a judge, as well as extra-judicial resolution.
- Chapter 5 looks at compensation for sexual injuries as well as non-penetrative offences.
The second part of this study on modern Jordan consists of one chapter which examines many of these same issues in the context of the contemporary Jordanian legal system. It also analyzes the evolution of the Jordanian legal approach to sexual violations, including the relationship between the Jordanian approach and the historical doctrines presented in the first five chapters.
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Part I Islamic Jurisprudence
13
Chapter 1 Rape as Coerced Illicit Intercourse (Zinā)
Imagine that Fatima is walking home when a stranger named Zayd forces her into his car, drives her to a secluded location and forcibly has intercourse with her. If asked, many contemporary readers would say that Zayd raped Fatima and should face trial for this offence. As for Fatima, she has done nothing wrong and deserves our full sympathy and support. Even in a less clear-cut case where Fatima’s claims of non-consent were questionable, people might consider her dishonest or of dubious character, but not a criminal. However, Islamic jurisprudence takes a different outlook: the underlying act that Fatima and Zayd have engaged in, i.e. sex outside of marriage, is illicit. Therefore, on the face, both parties are complicit in a crime, such that to be exonerated, Fatima must prove that she was coerced into the act against her will.
The crime of illicit intercourse (zinā) is a set offence most commonly associated with consensual illicit intercourse (adultery/fornication) and is conceived as a transgression against the limits set by God. This moral conception of illicit sex led to the creation of unique rules governing zinā prosecutions that privilege concealing the sin and preserving the reputation of the parties involved over criminal punishment. For consensual sexual transgressions, the doctrines encouraging privacy and prioritizing personal repentance over punishment are unproblematic even by modern standards (leaving aside issues of whether consensual sex should be an offence at all and the penalties that theoretically apply in cases of conviction).
However, the crime of zinā is not restricted to consensual adultery or fornication. Rather, Muslim jurists considered rape, in the meaning of non-consensual vaginal intercourse, as a coercive form of zinā. For many Muslim jurists, zinā is the only legal category applicable to rape claims. This view of rape as a type of zinā, where the primary concern is God’s prohibition on illicit intercourse, is highly problematic from a contemporary perspective. The moral focus renders prosecution nearly impossible, restricts access to compensation for victims, and ties compensation to notions that do not recognize the traumatic impact of the incident on the victim. Further, the victim risks punishment for slander if she mentions the rape and she can also lose her chastity (iḥṣān) despite her involuntary participation in the sex act.
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The idea of rape as a form of zinā is the subject of this chapter, and is also the primary focus of chapters 2 and 3. For the remainder of the present chapter, the presumption is that the victim is female, legally competent (has reached puberty and is of sound mind), is not the perpetrator’s wife, and that the penetration is vaginal. The basic moral framework for rape and the positive doctrines covered in this introductory chapter provide essential context for the remainder of the dissertation, such as discussion of non-prototypical victims like males and alternate methods of resolving rape cases, as well as for comparison with Jordanian law.
In addition to establishing the foundation for the legal approach to rape, the doctrines considered in this chapter demonstrate continuity over time in the Mālikī and Ḥanafī schools for all areas of overlap with Azam’s prior study (the details of testimony to volition and the complainant’s liability to slander, covered here, are not detailed in her work). Further, the chapter confirms that the Shāfiʿī school has the same general conception of rape as a form of zinā as the other two schools. However, in comparison with a previous study on the complainant’s liability for slander by Azman Noor, the results of this project differ significantly.22
22 Azman M Noor, ‘A Victim’s Claim of Being Raped is Neither a Confession to Zina nor Committing Qadhf (Making False Accusation of Zina)’ (2011) 8(1) Muslim World Journal of Human Rights 1.
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A Note on Sources and Methodology for Islamic Law
Before proceeding with our in-depth discussion of sexual violations in Islamic jurisprudence, this section looks in greater detail at the sources for Part I of the dissertation. The table below summarizes the 47 fiqh and fatwā works from the 15th CE/9th h century onward that form the core of this study:
School Author Title Genre Ḥanafī Māhmūd al-ʿAynī (d. 1451 Fiqh - 1 CE/855 h) Al-Bināya Sharḥ al-Hidāya commentary Ghānim al-Baghdādī (d. 1618 2 CE/1030 h) Majmaʿ al-Ḍamānāt Specialized ʿAbd al-Ghanī al-Ghanīmī (d. Fiqh - 3 1881 CE/1298 h) Al-Lubāb fī Sharḥ al-Kitāb commentary Muḥammad al-Ḥaṣkafī (d. Fiqh - 4 1677 CE/1088 h) Al-Durr al-Mukhtār commentary Muḥammad Ibn ʿĀbidīn (d. Minḥat al-Khāliq ʿalā al-Baḥr al- 5 1836 CE/1252 h) Rāʾiq Fiqh - gloss Radd al-Muḥtār ʿalā al-Durr al- 6 Mukhtār Fiqh - gloss Zayn al-Dīn Ibn Nujaym (d. Fiqh - base 7 1563 CE/970 h) Al-Ashbāh wa’l Naẓāʾir text Al-Baḥr al-Rāʾiq Sharḥ Kanz al- Fiqh - 8 Daqāʾiq commentary 9 Fatāwā Ibn Nujaym Fatwā ʿAlī Khalīl (d. 1440 CE/844 10 h) Muʿīn al-Ḥukkām Specialized Lajnat ʿUlamāʾ bi-Riʾāsat Niẓām al-Dīn al-Bulkhī 11 (compiled 17th century CE) Al-Fatāwā al-Hindiyya Fatwā Aḥmad Muḥammad (d. 1687 Ghamz ʿUyūn al-Baṣāʾir fī Sharḥ Fiqh - 12 CE/1098 h) al-Ashbāh wa’l Naẓāʾir commentary Al-Fatāwā al-Khayriyya li Nafʿ Khayr al-Dīn al-Ramlī (d. al-Bariyya ʿalā Madhhab Abī 13 1670 CE/1081 h) Ḥanīfa al-Nuʿmān Fatwā ʿAbd al-Raḥmān Shaykhī Majmaʿ al-Anhur fī Sharḥ Fiqh - 14 Zādeh (d. 1667 CE/1078 h) Multaqā al-Abhur commentary Muḥammad al-Ṭūrī (d. ca. Fiqh - 15 1726 CE/1138 h) Takmilat al-Baḥr al-Rāʾiq commentary
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Mālikī ʿAlī ʿAbd al-Salām (d. 1842 Fiqh - 16 CE/1258 h) Al-Bahja fī Sharḥ al-Tuḥfa commentary ʿAlī al-ʿAdwī (d. 1775 17 CE/1189 h) Ḥāshiyat al-ʿAdwī Fiqh - gloss Muḥammad al-Bannānī (d. Al-Fatḥ al-Rabbānī fīmā Dhahala 18 1780 CE/1194 h) ʿanhu al-Zurqānī Fiqh - gloss Fatāwā al-Burzulī, Jāmiʿ Masāʾil Abū al-Qāsim al-Burzulī (d. al-Aḥkām li mā Nazala min al- 19 1438 CE/841 h) Qaḍāyā bi Muftīn wa’l Ḥukkām Fatwā Aḥmad al-Dardīr (d. 1786 Al-Sharḥ al-Kabīr li’l-Shaykh CE/1201 h) Aḥmad al-Dardīr ʿalā Mukhtaṣar Fiqh - 20 Khalīl commentary Al-Sharḥ al-Ṣaghīr ʿalā Aqrab al- Fiqh - 21 Masālik commentary Muḥammad al-Dusūqī (d. Ḥāshiyat al-Dusūqī ʿalā al-Sharḥ 22 1815 CE/1230 h) al-Kabīr Fiqh - gloss Muḥammad al-Gharnāṭī (known as al-Mawwāq) (d. Al-Tāj wa’l Iklīl li Mukhtaṣar Fiqh - 23 1492 CE/897 h) Khalīl commentary Muḥammad al-Ḥaṭṭāb (d. Mawāhib al-Jalīl fī Sharḥ Fiqh - 24 1547 CE/954 h) Mukhtaṣar Khalīl commentary Muḥammad al-Kharshī (d. Sharḥ Mukhtaṣar Khalīl li’l- Fiqh - 25 1690 CE/1101 h) Kharshī commentary Aḥmad al-Ṣāwī (d. 1825 Bulghat al-Sālik li Aqrab al- 26 CE/1241 h) Masālik Fiqh - gloss Muḥammad al-Tāwudī (d. Fiqh - 27 1795 CE/1209 h) Ḥulā al-Maʿāṣim li Fikr Ibn ʿĀṣim commentary Al-Miʿyār al-Muʿrib wa’l Jāmiʿ al-Mughrib ʿan Fatāwā Ahl Aḥmad al-Wansharīsī (d. Ifrīqiyya wa’l Andalus wa’l 28 1508 CE/914 h) Maghrib Fatwā Muḥammad al-Zurqānī (1688 Sharḥ al-Zurqānī ʿalā Mukhtaṣar Fiqh - 29 CE/1099 h) Khalīl commentary Shāfiʿī Aḥmad al-ʿAbbādī (d. 1584 30 CE/992 h) Ḥāshiyat al-ʿAbbādī Fiqh - gloss Muḥammad al-Ahdal (d. ca. 31 1933 CE/1352 h) ʿUmdat al-Muftī wa’l Mustaftī Fatwā Bughyat al-Mustarshidīn fī Talkhīṣ Fatāwā Baʿḍ al-Aʾimma ʿAbd al-Raḥmān Bāʿalwī min al-ʿUlamāʾ al- 32 (compiler) Mutaʾakhkhirīn Fatwā
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Ḥāshiyat al-Shaykh Ibrāhim al- Ibrāhīm al-Bayjūrī (d. 1859 Bayjūrī ʿalā Sharḥ al-ʿAlāma Ibn 33 CE/1277 h) al-Qāsim al-Ghazzī Fiqh - gloss Sulaymān al-Bujayramī (d. Tuḥfat al-Ḥabīb ʿalā Sharḥ al- 34 1806 CE/1221 h) Khaṭīb Fiqh - gloss Abū Bakr al-Dimyāṭī (d. ca. Iʿānat al-Ṭālibīn ʿalā Ḥall Alfāẓ 35 1892 CE/1310 h) Fatḥ al-Muʿīn Fiqh – gloss 36 Aḥmad al-Haytamī (d. 1567 Al-Fatāwā al-Fiqhiyya al-Kubrā Fatwā 37 CE/974 h) Al-Fatāwā al-Ḥadīthiyya Fatwā Tuḥfat al-Muḥtāj fī Sharḥ al- Fiqh - 38 Minhāj commentary Abū Bakr al-Ḥiṣnī (d. 1426 Kifāyat al-Akhyār fī Ḥall Ghāyat Fiqh - 39 CE/829 h) al-Ikhtiṣār commentary Muḥammad al-Khaṭīb (d. Fiqh - 40 1570 CE/977 h) Al-Iqnāʿ fī Ḥall Alfāẓ Abī Shujāʿ commentary Aḥmad al-Ramlī (d. 1550 41 CE/957 h) Fatāwā al-Ramlī Fatwā Muḥammad al-Ramlī (d. Nihāyat al-Muḥtāj ilā Sharḥ al- Fiqh - 42 1596 CE/1004 h) Minhāj commentary Aḥmad al-Rashīdī (d. ca. 43 1684 CE/1096 h) Ḥāshiyat al-Rashīdī Fiqh - gloss Nūr al-Dīn al-Shabrāmallasī 44 (d. ca. 1676 CE/1087 h) Ḥāshiyat al-Shabrāmallasī Fiqh - gloss ʿAbd al-Ḥamīd al-Sharawānī 45 (d. 1884 CE/1301 h) Ḥāshiyat al-Sharawānī Fiqh - gloss Muḥammad al-Shirbīnī (d. Mughnī al-Muḥtāj ilā Maʿrifat Fiqh - 46 1570 CE/977 h) Maʿānī Alfāẓ al-Minhāj commentary ʿAbd al-Raḥmān al-Suyūṭī (d. 47 1505 CE/911 h) Al-Ḥāwī li’l Fatāwā Fatwā Table 1: Core Sources of Islamic Jurisprudence from the 15th CE/9th h Century Onward
As seen in the table, the 47 core texts are distributed approximately evenly among the three schools. Since the legal doctrines of each school were already well established by this time period, the above texts tend to be somewhat terse, as they are mostly commenting on established school traditions.
Many fiqh works consist of up to three layers. The first is the base text (matn) which sets out the school doctrines, often in a summarized format. The second layer, the commentary (sharḥ), explains the base text in greater detail and may mention views not contained in the base text. Finally, the gloss (ḥāshiya) discusses other views in the school which may have been ignored by
18 the base text and the commentary. The gloss may also incorporate pedantic analysis of matters such as linguistic meanings of terms. There may be multiple commentaries by different authors on a single base text, and likewise there may be several glosses by different authors on a commentary.
Most base texts, as well as the corresponding commentaries and glosses, cover a large range of topics including, but not limited to, worship, financial transactions, marriage and divorce, and criminal law. By examining many commentaries and glosses by different jurists, this dissertation aims to consider the full scope of the doctrines on sexual violation in each school. Although the selection does not explicitly include all of the base texts, particularly as this layer was sometimes composed in an earlier era, it considers them incidentally since the commentaries quote the base text in full.
The chart below shows the correspondence between the commentaries, glosses and base texts incorporated in this dissertation, including texts considered incidentally:
School Commentary Gloss Base Text Ḥanafī Al-Bināya Sharḥ al-Hidāya by al- N/A Al-Hidāya by Marghīnānī ʿAynī (d. 1451 CE/855 h) (d. 1197 CE/593 h) Al-Lubāb fī Sharḥ al-Kitāb by al- N/A Mukhtaṣar al-Qudūrī by al- Ghanīmī (d. 1881 CE/1298 h) Qudūrī (d. 1037 CE/428 h) Al-Durr al-Mukhtār by al-Ḥaṣkafī Radd al-Muḥtār ʿalā al- Tanwīr al-Abṣār by (d. 1677 CE/1088 h) Durr al-Mukhtār by Ibn Tīmūrṭāshī (d. 1598 ʿĀbidīn (d. 1836 CE/1006 h) CE/1252 h) Al-Baḥr al-Rāʾiq Sharḥ Kanz al- Minḥat al-Khāliq ʿalā al- Kanz al-Daqāʾiq by al- Daqāʾiq by Ibn Nujaym (d. 1563 Baḥr al-Rāʾiq by Ibn Nasafī (d. 1310 CE/710 h) CE/970 h) ʿĀbidīn (d. 1836 CE/1252 h) Takmilat al-Baḥr al-Rāʾiq by al- N/A Ṭūrī (d. ca. 1726 CE/1138 h) Ghamz ʿUyūn al-Baṣāʾir fī Sharḥ N/A Al-Ashbāh wa’l Naẓāʾir by al-Ashbāh wa’l Naẓāʾir by Ibn Nujaym (d. 1563 Muḥammad (d. 1687 CE/1098 h) CE/970 h) Majmaʿ al-Anhur fī Sharḥ Multaqā N/A Multaqā al-Abḥur by Al- al-Abhur by Shaykhī Zādeh (d. Ḥalabī (d. 1549 CE/956 h) 1667 CE/1078 h)
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Mālikī Al-Bahja fī Sharḥ al-Tuḥfa by N/A Manẓūmat Tuḥfat al- ʿAbd al-Salām (d. 1842 CE/1258 Ḥukkām by Ibn ʿĀṣim (d. h) 1426 CE/829 h) Ḥulā al-Maʿāṣim li Fikr Ibn ʿĀṣim N/A by al-Tāwudī (d. 1795 CE/1209 h) Al-Sharḥ al-Kabīr li’l-Shaykh Ḥāshiyat al-Dusūqī ʿalā Mukhtaṣar Khalīl by Khalīl Aḥmad al-Dardīr ʿalā Mukhtaṣar al-Sharḥ al-Kabīr by al- Ibn Isḥāq (d. 1374 CE/776 Khalīl by al-Dardīr (d. 1786 Dusūqī (d. 1815 h) CE/1201 h) CE/1230 h) Al-Tāj wa’l Iklīl li Mukhtaṣar N/A Khalīl by al-Gharnāṭī (al- Mawwāq) (d. 1492 CE/897 h) Mawāhib al-Jalīl fī Sharḥ N/A Mukhtaṣar Khalīl by al-Ḥaṭṭāb (d. 1547 CE/954 h) Sharḥ Mukhtaṣar Khalīl li’l- Ḥāshiyat al-ʿAdwī by al- Kharshī by al-Kharshī (d. 1690 ʿAdwī (d. 1775 CE/1189 CE/1101 h) h) Sharḥ al-Zurqānī ʿalā Mukhtaṣar Al-Fatḥ al-Rabbānī fīmā Khalīl by al-Zurqānī (1688 Dhahala ʿanhu al- CE/1099 h) Zurqānī by al-Bannānī (d. 1780 CE/1194 h) Al-Sharḥ al-Ṣaghīr ʿalā Aqrab al- Bulghat al-Sālik li Aqrab Aqrab al-Masālik li Masālik by al-Dardīr (d. 1786 al-Masālik by al-Ṣāwī (d. Madhhab al-Imām Mālik CE/1201 h) 1825 CE/1241 h) by al-Dardīr (d. 1786 CE/1201 h) Shāfiʿī Tuḥfat al-Muḥtāj fī Sharḥ al- Ḥāshiyat al-ʿAbbādī by Minhāj al-Ṭālibīn by al- Minhāj by al-Haytamī (d. 1567 al-ʿAbbādī (d. 1584 Nawawī (d. 1277 CE/676 CE/974 h) CE/992 h) h) Ḥāshiyat al-Sharawānī by al-Sharawānī (d. 1884 CE/1301 h) Nihāyat al-Muḥtāj ilā Sharḥ al- Ḥāshiyat al-Rashīdī by Minhāj by al-Ramlī (d. 1596 Aḥmad al-Rashīdī (d. ca. CE/1004 h) 1684 CE/1096 h) Ḥāshiyat al- Shabrāmallasī by al- Shabrāmallasī (d. ca. 1676 CE/1087 h) Mughnī al-Muḥtāj ilā Maʿrifat N/A Maʿānī Alfāẓ al-Minhāj by al- Shirbīnī (d. 1570 CE/977 h) Kifāyat al-Akhyār fī Ḥall Ghāyat N/A Al-Ghāya wa’l Taqrīb by al-Ikhtiṣār by al-Ḥiṣnī (d. 1426 Abū Shujāʿ (d. 1197 CE/829 h) CE/593 h)
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Al-Qawl al-Mukhtār fī Sharḥ Ḥāshiyat al-Shaykh Ghāyat al-Mukhtār by Ibn Qāsim Ibrāhim al-Bayjūrī ʿalā al-Ghazzī (d. 1512 CE/918 h) Sharḥ al-ʿAlāma Ibn al- Qāsim al-Ghazzī by al- Bayjūrī (d. 1859 CE/1277 h) Al-Iqnāʿ fī Ḥall Alfāẓ Abī Shujāʿ Tuḥfat al-Ḥabīb ʿalā by al-Khaṭīb (d. 1570 CE/977 h) Sharḥ al-Khaṭīb by al- Bujayramī (d. 1806 CE/1221 h) Fatḥ al-Muʿīn bi Sharḥ al-ʿAyn bi Iʿānat al-Ṭālibīn ʿalā Al-ʿAyn bi Muhimmāt al- Muhimmāt al-Dīn by al-Muʿrabī Ḥall Alfāẓ Fatḥ al-Muʿīn Dīn by al-Muʿrabī (d. 1579 (d. 1579 CE/987 h) by al-Dimyāṭī (d. ca. CE/987 h) 1892 CE/1310 h) Table 2: Relationship Between Commentaries, Glosses and Base Texts
In contrast to fiqh works which set out the school doctrines in an academic manner, in fatwā collections jurists apply these doctrines to specific cases. There is significant overlap in jurists’ discussions of sexual violation in the two genres, such that the fatwā collections generally confirm the plain sense of the fiqh doctrines. However, in certain cases, fatwās clarify jurists’ views on matters that are somewhat ambiguous in fiqh works, such as the complainant’s liability to slander which is discussed later in this chapter.
Like the fiqh texts, the fatwā works cover a large range of topics related to worship and interpersonal transactions, such that they are often voluminous compilations. However, whereas some fatwā works represent the opinions of individual jurists, others are compilations of the rulings of multiple jurists or compilations of authoritative opinions in the school. Both Mālikī fatwā texts referenced in this dissertation represent the authoritative opinions of notable Mālikī judges and muftis. In the Ḥanafī school, al-Fatāwā al-Hindiyya is a collection of authoritative school opinions compiled by a large team of jurists from South Asia and smaller teams from Iraq and the Hejaz. Among Shāfiʿī works, Bughyat al-Mustarshidīn is a collection of fatwās from five later Shāfiʿī jurists gathered by a single compiler. The remaining Ḥanafī and Shāfiʿī fatwā collections referenced in the dissertation contain the opinions of individual jurists.
Islamic jurisprudence also includes various types of works that do not fall under the base text- commentary-gloss structure or fatwā collections, such as works on legal maxims (qawāʿid), works
21 directed towards judges and other specialized works. While most of these texts are tangential to the topics covered in this study, the dissertation includes two specialized works regarding judicial decisions (qaḍāʾ) and compensation (ḍamān). The latter was particularly useful for the rulings regarding compensation for physical injuries sustained during intercourse (chapter 5).
The core 47 works were chosen in consultation with a specialist from each school with the aim of incorporating the most significant extant works from the relevant period.23 While a substantial number of texts from each school were written by Egyptian jurists, others were composed by jurists from the Levant (mainly Ḥanafī), the Hejaz (mainly Shāfiʿī) and Morocco (Mālikī). As individual jurists are referenced throughout this dissertation, their summarized biographies will be included in the footnotes.
In each of the texts, I read key sections in full, such as the chapter of zinā (all schools), slander (all schools) and the portion of the chapter of coercion (ikrāh) related to zinā (found in Ḥanafī texts).24 In addition, I read through certain topics in select texts, such as female-initiated divorce (khulʿ), to verify if there was any relevant material related to my topic (in this example, the possibility of a remedy for spousal rape). Further, most of these works are accessible electronically on Shamela. For all texts available electronically, I performed keyword searches to find additional references to sexual violations scattered throughout these multi-volume works.
Although the above texts from the 15th CE/9th h century onward form backbone of Part I of this dissertation, the examination of certain topics incorporates quotes from earlier texts. This occurs where earlier works provide additional context for the summarized points of law found in the later texts. These earlier works are sometimes referenced directly by later jurists, but it is often necessary to return to the earlier text for the full quote or discussion.
Further, there are occasional references to secondary sources. This allows for comparison with related research and discussion of opposing views on a select number of issues. Several contemporary studies on sexual assault also provide useful background information and
23 In particular, I would like to acknowledge Faisal al-Mahmudi (Ḥanafī school), Mohammad Fadel (Mālikī school) and Shuaib Ally (Shāfiʿī school). 24 While I read through most of the texts on my own, I would like to thank Ibrahim Shawa, an advanced sharīʿa student in Jordan, for reading through some relevant portions of Shāfiʿī texts with me at the start of my research. His explanations were helpful to properly understand fiqh vocabulary relevant to my dissertation.
22 comparative outlooks on issues such as the effect of rape on its victims and gendered stereotypes regarding sexual violation.
The Crime of Illicit Intercourse (Zinā)
In Islamic jurisprudence, zinā (illicit intercourse) refers to sexual intercourse that is not between husband and wife or between a male master and his female slave. In English, this is commonly known as adultery or fornication. As one of the set crimes (ḥudūd), zinā has a specific definition, penalties and evidentiary requirements. Although the crime of zinā most commonly applies to consensual illicit intercourse, jurists from the four main Sunnī schools of law unanimously consider rape a coercive form of zinā.25 As such, understanding the basic components of zinā is essential to understanding coerced zinā, i.e. rape. This introductory section considers the theoretical framing of zinā, as well as the substantive doctrines, namely the definition of zinā, penalties and evidentiary standards, to set the stage for discussion of the coerced offence in the following section and in subsequent chapters.
2.1 Zinā as a Crime Against God
Muslim jurists divide rights into two categories from the perspective of the claimant: divine claims (ḥuqūq Allāh) and interpersonal claims (huqūq ādamī/ḥuqūq al-ʿibād). Whereas claims of God “capture those interests that serve the public well-being (e.g. order, security)” and represent “a public interest upheld by the ruling authority’s imperium”, an interpersonal claim “attaches to the individual qua individual”.26
Some set crimes, such as theft (sariqa), involve both divine and interpersonal claims. However, zinā, in its consensual form, constitutes a transgression against claims of God alone, not of human beings. God sets the limits for appropriate sexual behaviour, and exceeding those limits is only a
25 Although the Ḥanbalī school is not considered in this paper, it also adopts the same classification as the Mālikī, Ḥanafī and Shāfiʿī schools: see Azam, ‘Rape in Islamic Law’ (n 9). 26 Anver Emon, ‘Ḥuqūq Allāh and Ḥuqūq al-ʿIbād: A Legal Heuristic for a Natural Rights Regime’ (2006) 13(3) Islamic Law and Society 326.
23 contravention of those rules. This does not mean that there is not a significant punishment attached to that violation, at least on paper. Rather, as will be explored in the substantive doctrines below, the divine text stipulates a high penalty for the crime. However, as God is not in need of anything, enforcement of that penalty is circumscribed. Thus, the Shāfiʿī jurist al-Ḥisnī (d. 1426 CE/829 h) mentions that the presumption for God’s claims is waiver (musāmaḥa) whereas the presumption for interpersonal claims is strict performance (mushāḥḥa).27
The framing of the crime of zinā as a transgression solely against the divine impacts the totality of the positive doctrines. As will be explored below, zina is extraordinary difficult to prosecute, as the accused benefits from an expansive concept of “doubt” which precludes fulfillment of the burden of proof. Further, the concept of privacy encourages the transgressor to repent privately to God rather than confess, and likewise discourages witnesses from testifying to allow the transgressor to ask God for forgiveness rather than face justice in this world. This framework and its effect on the legal rules governing zinā also have significant implications for rape, as will be examined later in this chapter.
2.2 Definition of Zinā
The offence of zinā includes the following elements: 1. Penetration (waṭʾ/īlāj) by the entire circumcised part of the penis (ḥashafa), or the equivalent length (qadr);28 2. By a legally competent individual (mukallaf), i.e. someone who has reached puberty and is of sound mind;29
27 Abū Bakr al-Ḥiṣnī, Kifāyat al-Akhyār fī Ḥall Ghāyat al-Ikhtiṣār (ʿA Bulṭajī and M Sulaymān eds, Dār al-Khayr 1994) 275. Abū Bakr Al-Ḥisnī, also known as Taqī al-Dīn, was a Shāfiʿī scholar who was raised in Damascus. He was a prolific author, with works in both jurisprudence and ḥadith. See: Khayr al-Dīn al-Zirkilī, al-Aʿlām (Dār al- ʿIlm li’l Malāyīn 2002) vol 2 69-70. 28 This includes penetration using condoms. Specifically, Shāfiʿī and Mālikī jurists incorporate penetration where the male organ is enveloped in a cover (laff), on condition for Mālikīs that the cover does not impede enjoyment (ladhdha): Muḥammad al-Shirbīnī, Mughnī al-Muḥtāj ilā Maʿrifat Maʿānī Alfāẓ al-Minhāj (Dār al-Kutub al-ʿIlmiyya 1994) vol 5 447; Muḥammad al-Zurqānī, Sharḥ al-Zurqānī ʿalā Mukhtaṣar Khalīl in M al-Zurqānī and M al-Bannānī Sharḥ al- Zurqānī ʿalā Mukhtaṣar Khalīl wa Ḥāshiyat al-Banānī (ʿA Amīn ed, Dār al-Kutub al-ʿIlmiyya 2002) vol 8 127. Ḥanafīs do not comment on this directly, but there does not seem to be any impediment to including condoms/other covers in their works. 29 The condition of sanity does not exclude intoxication, despite the temporary mental impairment, on the condition for Mālikīs and Shāfiʿīs that the person intentionally drank. I did not encounter Ḥanafī statements limiting drunkenness to intentional intoxication. See: Muḥammad al-Dusūqī, Ḥāshiyat al-Dusūqī ʿalā al-Sharḥ al-Kabīr in Aḥmad al-Dardīr and Muḥammad al-Dusūqī, al-Sharḥ al-Kabīr li’l-Shaykh al-Dardīr wa Ḥāshiyat al-Dusūqī (Dār al- Fikr, date of publication unknown) vol 4 313; Aḥmad al-Haytamī, Tuḥfat al-Muḥtāj fī Sharḥ al-Minhāj in A al-
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3. Willingly (ṭāʾiʿan); 4. Into a desirable vagina (qubul), with some jurists also including the anus (dubur); 5. Absent a licit relationship (milk) between the parties, i.e. outside of a husband-wife or male master-female slave relationship; and 6. Absent doubtful circumstances (shubha).
Overall, the offence covers vaginal (and for some, anal) penetration using the penis by a sane person who has reached puberty outside of a marital or slave-master relationship. Although the basic idea is clear, the elements of doubtful circumstances, of a ‘desirable’ vagina and of willingness require further explanation. While doubt will be considered immediately below, other aspects will be discussed in greater detail later. Further, variations on this definition among jurists that impact the matters considered in this study will be mentioned where appropriate.30
2.2.1 The Concept of Doubt
The concept of doubt in the definition, which can play a key role in the verdict in zinā cases, is worth examining at this stage. Where doubt is present, it prevents a conviction for zinā, although the defendant might be punished for a different crime. While the circumstances giving rise to doubt take up many pages in legal manuals and include many situations involving slaves, this discussion will summarize a few relevant examples that impact consensual and coerced intercourse between free parties, particularly intercourse between ex-spouses following divorce and intercourse in ignorance of certain facts.31 It will also consider the threshold for claims of doubt. The expansive nature of doubt, facilitated by the moral conception of zinā, illustrates one way that an accused in zinā proceedings can relatively easily avoid conviction for illicit intercourse.
Doubtful circumstances following divorce include intercourse with a divorcee in her waiting period (ʿidda) after a final divorce (ṭalāq) or female-initiated divorce agreement (khulʿ) or with a
Ḥaytamī, ʿA al-Sharawānī and A al-ʿAbbādī, Tuḥfat al-Muḥtāj fī Sharḥ al-Minhāj wa Ḥawāshī al-Sharawānī wa’l ʿAbbādī (Al-Maktaba al-Tijāriyya al-Kubrā 1983) vol 9 107; Muḥammad Ibn ʿĀbidīn, Radd al-Muḥtār ʿalā al-Durr al-Mukhtār in M al-Ḥaṣkafī and M Ibn ʿĀbidīn, Al-Durr al-Mukhtār wa Ḥāshiya Ibn ʿĀbidīn (Dār al-Fikr 1992) vol 4 9. 30 As an example of variations that do not impact this study, Mālikī jurists require that the individual be Muslim and Ḥanafīs stipulate that the intercourse take place in the lands of Islam (dār al-Islām). Both of these conditions are already assumed in this dissertation, as discussed in the introduction. 31 For a detailed history of the principle of doubt, see Intisar Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (Cambridge 2014).
25 divorcee after a final divorce by indirect declarations (kināyāt).32 In such cases, although intercourse is prohibited, its occurrence does not give rise to criminal responsibility for zinā due to the presence of doubt. This means that a divorced couple can engage in consensual intercourse in these situations, whether in good or bad faith in terms of their knowledge of the religious prohibition, without the threat of the severe punishment associated with zinā, or that a man can rape his ex-spouse, or vice-versa, without the possibility of a guilty verdict under zinā.
Further, all schools hold that ignorance of the prohibition of zinā causes doubt in certain situations, such as a Muslim who recently converted or who was unaware of a breastfeeding relationship.33 Mālikīs also commonly mention cases of forgetfulness (nisyān), such as a man who has intercourse with his ex-wife while forgetting the divorce (as opposed to ignoring the prohibition).34 Moreover, Mālikī and Shāfiʿī jurists are particularly lenient in cases of mistaken identity. For example, under the principle of doubt, the Mālikī jurist al-Kharshī (d. 1690 CE/ 1101 h) exonerates a man who has intercourse while ignorant of the woman’s identity (ʿayn al-mawṭūʾa) because he thought she was his wife or slave woman.35 This is also accepted by Shāfiʿī jurists.36 Further, al-Kharshī adds that if he was doubtful but went ahead with the act, the plain sense of the black-letter doctrine (ẓāhir kalāmihim) suggests that there is no ḥadd punishment.37
32 Maḥmūd al-ʿAynī, al-Bināya Sharḥ al-Hidāya (Dār al-Kutub al-ʿIlmiyya 2000) vol 6 297-98. Intercourse during the divorcee’s waiting period comes under the broader Ḥanafī category of doubt in the act (fī’l-fiʿl), such that doubt only applies if the actor believes the intercourse to be permissible. As for intercourse following an indirect declaration of divorce, this comes under doubt in the locus (fī’l-maḥall) in which case the actor’s belief is irrelevant due to legal evidence which casts doubt on the illegality of the act, here the differing opinions on whether the divorce is final (bāʾin) or revocable (rajʿī). Mālikī jurists accept the second two scenarios as doubtful, but they do not apply doubt to intercourse with a woman in her waiting period: Muḥammad al-Kharshī, Sharḥ Mukhtaṣar Khalīl li’l-Kharshī (Dār al-Fikr date of publication unknown) vol 8 76. I did not come across these situations in Shāfiʿī discussions of doubt. 33 Al-Kharshī (n 32) vol 8 77; al-Shirbīnī (n 28) vol 5 446. There is some dispute in Ḥanafī books about ignorance attaching to new Muslims: Muḥammad Ibn ʿĀbidīn, Minḥat al-Khāliq ʿalā al-Baḥr al-Rāʾiq in Z Ibn Nujaym, M al- Ṭūrī and M Ibn ʿĀbidīn, al-Baḥr al-Rāʾiq Sharḥ Kanz al-Daqāʾiq wa Minḥat al-Khāliq wa Takmilat al-Ṭūrī (Dār al- Kutub al-Islāmī, date of publication unknown) vol 5 4-5. In Islamic jurisprudence, a breastfeeding relationship between two people, established when two children drink the breast milk of the same woman even if they are not related by blood, prevents them from marrying. As such, if they were to have intercourse, it would automatically be treated as zinā. 34 Aḥmad al-Dardīr, al-Sharḥ al-Ṣaghīr ʿalā Aqrab al-Masālik in A al-Dardīr and A al-Ṣāwī, al-Sharḥ al-Ṣaghīr li’l- Sharḥ al-Dardīr li Kitābihi Aqrab al-Masālik wa Hāshiyat al-Ṣāwī (Dār al-Maʿārif, date of publication unknown) vol 4 448. 35 Al-Kharshī (n 32) vol 8 77. Al-Kharshī was a well-known Mālikī jurist based in Cairo where he was the first person to hold the title of the grand imam (shaykh al-Azhar) of the famous al-Azhar mosque. He wrote several works, including at least two commentaries on Khalīl’s Mukhtaṣar. See: al-Mawsūʿa al-Fiqhiyya (Wizārat al-Awqāf wa’l- Shuʾūn al-Islāmiyya, Kuwait 1983) vol 1 348. 36 Al-Shirbīnī (n 28) vol 5 442. 37 Al-Kharshī (n 32) vol 8 77.
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In contrast, Ḥanafīs restrict such claims. While a groom on his wedding night can claim doubt for intercourse with a female who was falsely identified by others as his wife, a married man who finds a woman on his bed (firāsh) has no excuse given that there is no confusion after a long period of cohabitation (ṭūl al-ṣuḥba).38 The case of a man mistakenly having intercourse with another woman outside of his home is not even entertained.
For Ḥanafīs, a mere claim of doubt suffices to deflect criminal liability for zinā.39 This means that it is possible to engage in extra-marital intercourse in full knowledge of its illicitness and subsequently avoid sanction under zinā by a claim of marriage or other recognized doubt, even if there is no evidence of the claim.40 This low standard, which makes it easy to avoid conviction, is not considered problematic, as jurists are keen to avoid prosecution and conviction for illicit intercourse in favour of protecting the defendant’s privacy and encouraging his private repentance, as will be discussed in greater detail when considering evidentiary standards.
Mālikī jurists also seem to accept a mere claim although they do not state this position as a general principle as occurs in Ḥanafī texts. Two Mālikī jurists mention that unlike claims of abduction (ghaṣb) or eccentric claims such as impregnation by semen in public baths, a woman’s claim that intercourse occurred in doubtful circumstances is accepted without circumstantial evidence (qarīna).41 In contrast, while none of the Shāfiʿī texts in this study mention the threshold for claims of doubt, one of the Ḥanafī works indicates that Shāfiʿīs require evidence of the claim.42 This would mean that despite their broad recognition of claims of ignorance, successful recourse to such claims is restricted due to the requirement of supporting evidence.
38 Al-ʿAynī (n 32) vol 6 304-06. Another reason is that a female relative (maḥram) who lives in his house could be sleeping on his bed. In rejecting this as doubtful, he mentions and rejects the opposing Shāfiʿī view. 39 Zayn al-Dīn ibn Nujaym, al-Baḥr al-Rāʾiq Sharḥ Kanz al-Daqāʾiq in Z Ibn Nujaym, M al-Ṭūrī and M Ibn ʿĀbidīn, al-Baḥr al-Rāʾiq Sharḥ Kanz al-Daqāʾiq wa Minḥat al-Khāliq wa Takmilat al-Ṭūrī (Dār al-Kutub al-Islāmī, date of publication unknown) vol 5 12. 40 For an example of a claim of marriage, see Muḥammad al-Sarkhasī, al-Mabsūṭ (Dār al-Maʿrifa 1993) vol 9 52. He mentions that if the woman makes this claim and he swears an oath denying it, he is not liable for the financial repercussions of the claim (no dower will be due), but there is still no ḥadd penalty on either of them. Further, Judith Tucker’s analysis of her fatwā sources for Ottoman Syria and Palestine also indicates that claims of doubt were taken at face value without accompanying evidence for rape cases (coerced zinā): Judith E Tucker, In the House of the Law: Gender and Islamic Law in Ottoman Syrian and Palestine (University of California Press 1998) 160-61. 41 ʿAlī al-ʿAdwī Ḥāshiyat al-ʿAdwī in M al-Kharshī, Sharḥ Mukhtaṣar Khalīl li’l-Kharshī (Dār al-Fikr, date of publication unknown) vol 8 81 [mentions abduction]; Aḥmad al-Ṣāwī, Bulghat al-Sālik li Aqrab al-Masālik in A al- Dardīr and A al-Ṣāwī, al-Sharḥ al-Ṣaghīr li’l-Sharḥ al-Dardīr li Kitābihi Aqrab al-Masālik wa Hāshiyat al-Ṣāwī (Dār al-Maʿārif, date of publication unknown) vol 4 455 [mentions certain eccentric claims]. 42 Al-Sarkhasī (n 40) vol 9 52.
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2.3 Penalties
Since zinā is a ḥadd crime mandated by God, any person, male or female, found guilty of the offence is liable to a specific penalty that the judge can neither reduce nor increase. For the virgin (bikr), i.e. a person who has never consummated a lawful marriage, the penalty is 100 lashes for all schools.43 The Shāfiʿīs also require banishment (taghrīb) for one year whereas Mālikīs stipulate it only for males and Ḥanafīs allow but do not require it.44 Virginity here is a legal category rather than a physical one, such that someone who has had previous unlawful relations is treated as a virgin for the purposes of the penalty.45 As for the non-virgin (muḥṣan), all schools impose capital punishment by stoning.46
For Ḥanafīs and Shāfiʿīs, if a person commits zinā multiple times prior to carrying out the penalty, the penalty will only be implemented once based on unity of genus (jins).47 For example, the Ḥanafī jurist Shaykhī Zādeh (d. 1667 CE/1078 h) states, “one set penalty suffices for multiple crimes where there is unity of genus, such as the person who commits illicit intercourse many times. He is given the punishment once for all of them. (Fa yakfī ḥadd wāḥid li jināyāt ittḥada jinsuhā kamā idhā zanā marrāt mutaʿaddida fa ḥudda marratan yakūn min al-jamīʿ.)”48 Although this has no practical effect on the non-virgin, a virgin could commit zinā multiple times and only receive 100 lashes.
43 Al-ʿAynī (n 32) vol 6 272; al-Kharshī (n 32) vol 8 82; al-Shirbīnī (n 28) vol 5 448. Differences for slaves are not considered here. Further, minutiae such as which body parts should be lashed, whether to remove clothes, how high to raise the whip, when the punishment can be delayed, etc. are discussed in legal texts, but are not of importance here. 44 Al-ʿAynī (n 32) vol 6 288-91; al-Kharshī (n 32) vol 8 83; al-Shirbīnī (n 28) vol 5 448. The Ḥanafīs consider banishment discretionary punishment which the judge may impose in addition to the ḥadd if he sees benefit in it: al- ʿAynī (n 32) vol 6 291. 45 Al-ʿAynī (n 32) vol 6 282; al-Kharshī (n 32) vol 8 82; al-Shirbīnī (n 28) vol 5 446-47. Nuances such as whether intercourse during menstruation gives rise to legal loss of virginity are not of concern here. 46 Al-ʿAynī (n 32) vol 6 268; al-Kharshī (n 32) vol 8 81; al-Shirbīnī (n 28) vol 5 446. 47 I did not encounter this issue in Mālikī works. 48 ʿAbd al-Raḥmān Shaykhī Zādeh Majmaʿ al-Anhur fī Sharḥ Multaqā al-Abhur (Dār Iḥyāʾ al-Turāth al-ʿArabī, date of publication unknown) vol 1 608-09. Al-ʿAynī uses “tadākhul al-ḥukm wa’l ʿuqūba” (integration of the ruling and punishment) to express this concept: al-ʿAynī (n 32) vol 2 674. For a Shāfiʿī example, see al-Bujayramī, Tuḥfat al- Ḥabīb ʿalā Sharḥ al-Khaṭīb (Dār al-Fikr 1995) vol 4 167. As for Shaykhī Zādeh, as he is generally known, his actual name is ʿAbd al-Raḥmān ibn Sulaymān. He was a Turkish Ḥanafī jurist as well as a Quranic exegete who wrote several works. See: al-Mawsūʿa al-Fiqhiyya (n 35) vol 6 350. Note that some Arabic sources may use the Arabicized version of his name, Shaykh Zāda.
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While most discussion in legal texts focuses on the corporal ḥadd penalty for zinā, illicit intercourse can also result in monetary compensation in the form of the dower (mahr), specifically the mahr al-mithl (dower for women of similar characteristics) payable by the male directly to the female whether she is a virgin (bikr) or non-virgin (thayyib).49 Although the reason for choosing the dower over other sums is not mentioned explicitly, Azam’s finding for her time period that jurists linked the sum to “the amount that any man would normally pay for sexual access [by marriage] to the woman in question” likely continues to apply.50
For consensual zinā resulting in the conviction of both parties or of the female alone, there is no financial compensation since the woman cannot benefit from her own criminal conduct.51 However, if all elements of zinā are fulfilled except that there are doubtful circumstances, financial compensation is due in all schools. A frequent example in Mālikī and Shāfiʿī texts is the man’s recantation of his confession of guilt, causing doubt that precludes the corporal penalty yet still requires the dower.52 However, if he thought that she was his wife yet she knew that he was not her spouse, only the female receives the ḥadd for zinā and no dower is due.53
2.4 Evidence
All schools accept confession and eyewitness testimony to prove zinā.54 Mālikī jurists also allow one form of circumstantial evidence, namely an unmarried woman’s pregnancy or childbirth, or delivery of a child within six months of marriage. These types of evidence will be discussed in turn.
49 Muḥammad al-Ḥaṭṭāb, Mawāhib al-Jalīl fī Sharḥ Mukhtaṣar Khalīl (Dār al-Fikr 1992) vol 3 518. Other common terms for the dower are ṣadāq (commonly used by Mālikī and Shāfiʿī jurists) and ʿuqr (used by Ḥanafīs). 50 Hina Azam, ‘Rape in Islamic Law’ (n 9). 51 Al-ʿAynī (n 32) vol 6 318; al-Kharshī (n 32) vol 3 278; al-Shirbīnī (n 28) vol 4 387. 52 Al-Ḥiṣnī (n 27) 27; al-Zurqānī (n 28) vol 8 138. For an alternate example in Ḥanafī texts, see al-ʿAynī (n 32) vol 6 304 (a man who has intercourse with the wrong woman on his wedding night must pay the dower). 53 Al-Kharshī (n 32) vol 3 278; al-Zurqānī (n 28) vol 4 46. This example is also noteworthy for its rare consideration of the female perspective in circumstances of doubt. 54 All schools hold that zinā can also be established by a husband swearing to his wife’s zinā (liʿān) where she does not swear counter-oaths; however, this is of greater concern to issues of divorce and lineage and will not be considered here.
29
Confession establishes the guilt of the confessant only, not the other party. The schools differ on certain details. For example, while Ḥanafīs require that the confession be repeated four times in four separate sittings, Mālikīs and Shāfiʿīs deem a single confession sufficient.55 Further, for Ḥanafī jurists, the person must answer questions from the judge about the nature of the act, how, where and with whom it occurred before the confession is accepted.56 In contrast, Shāfiʿīs hold that it is sufficient to say, “I inserted the tip of my penis into so-and-so’s vagina in the manner of zinā (adkhaltu ḥashafatī fī farj fulāna ʿalā wajh al-zinā)” without mentioning time or place.57
All schools allow recantation of a prior confession before or during the implementation of the penalty, nullifying criminal liability but not dower.58 Ḥanafīs and Shāfiʿīs instruct the judge to encourage retraction by suggesting alternatives such as, “perhaps you only touched her or kissed her (laʿallaka lamastahā aw qabbaltahā)”.59 For Ḥanafīs, the judge should do this after each of the first three declarations.60
The barriers to an accepted confession relate to the principle of privacy (satr).61 For all schools, it is preferable to conceal participation in illicit intercourse and privately repent to God rather than publicize the act.62 Although there are historical examples of guilty parties confessing due to a sense of moral obligation, the legal impediments and the natural inhibition to confess to an act liable to severe punishment significantly decrease the likelihood of conviction by confession.63
The only other agreed-upon method of proving zinā is eyewitness testimony. All schools require four male, free (non-slave), upright (ʿadl) eyewitnesses.64 Testimony from persons not meeting these criteria, such as women, slaves and males of bad character (fisq), is excluded. All witnesses
55 Al-ʿAynī (n 32) vol 6 262-63; al-Kharshī (n 32) vol 8 80; al-Shirbīnī (n 28) vol 5 451. 56 Shaykhī Zādeh (n 48) vol 1 586-87. 57 Al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 112; ʿAbd al-Hamīd al-Sharawānī, Ḥāshiyat al-Sharawānī in A al- Ḥaytamī, ʿA al-Sharawānī and A al-ʿAbbādī, Tuḥfat al-Muḥtāj fī Sharḥ al-Minhāj wa Ḥawāshī al-Sharawānī wa’l ʿAbbādī (Al-Maktaba al-Tijāriyya al-Kubrā 1983) vol 9 112-13. 58 Al-ʿAynī (n 32) vol 6 265; al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 113; al-Kharshī (n 32) vol 8 80. 59 Al-ʿAynī (n 32) vol 6 266; al-Shirbīnī (n 28) vol 5 491. 60 Al-ʿAynī (n 32) vol 6 266; Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 4 9. 61 Privacy (satr) relates to concealing sins. It should not be mistaken with common law torts related to privacy. 62 Al-ʿAynī (n 32) vol 6 258; al-Dusūqī (n 29) vol 4 320; al-Khaṭīb (n 20) vol 4 176. 63 One well-known example in Islamic history is the Prophet’s companion Māʿiz. The story surrounding his confession, which is routinely recounted in works of jurisprudence, is at the root of the disagreement between schools on the required number of confessions. 64 Al-ʿAynī (n 32) vol 6 258; al-Kharshī (n 32) vol 7 198, vol 8 80; Muḥammad al-Ramlī, Nihāyat al-Muḥtāj ilā Sharḥ al-Minhāj in M al-Ramlī, N al-Shabrāmallasī and A al-Rashīdī, Nihāyat al-Muḥtāj ilā Sharḥ al-Minhāj wa maʿahu Ḥāshiyat al-Shabrāmallasī wa Ḥāshiya al-Maghribī al-Rashīdī (Dār al-Fikr 1984) vol 7 429-30, vol 8 310-11.
30 must testify that they saw the act of penetration like the kohl stick (mirwad or mīl) into the jar (mukḥula), and specify where the act took place, how it took place, when it happened and confirm the identities of the accused.65 Should the witnesses disagree on the details, whether initially or after further questioning by the judge, the prosecution fails in all schools. In this case, Mālikīs also punish the witnesses for the crime of slander (qadhf), which carries a set penalty of 80 lashes.66 Moreover, if less than four witnesses testify, or if four testify but one recants, all schools dismiss the charges and deem the witnesses guilty of slander.67 Ḥanafīs also impose a one-month limitation period on testimony for zinā from the date the crime took place unless there is an excuse for the delay, such as sickness or distance.68
These rules discourage testifying and make establishing zinā by eyewitness testimony nearly impossible. This seems to have been upheld in practice, as the Ḥanafī jurist al-ʿAynī (d. 1451 CE/ 855 h) notes that proving illicit intercourse by evidence is rare.69 Further, in justifying the limitation period, al-ʿAynī states that witnesses choose between upholding privacy and testifying. If the delay was due to an initial choice of privacy, subsequent testimony is tainted by grudge and enmity. If the delay was for other reasons, the witnesses must be corrupt (fāsiq), rendering their testimony unacceptable.70 Thus, the concept of privacy present in confession also impacts testimony. Although al-ʿAynī does not actively encourage choosing privacy, he contemplates without censure that witnesses may choose this option provided they remain firm on this choice.
65 Al-ʿAynī (n 32) vol 6 259-60; al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 112; al-Kharshī (n 32) vol 7 198-99, vol 8 80. The phrase “like the kohl stick into the jar” is not required by most jurists provided the idea is conveyed. Other details, such the Ḥanafī addition of a question on the nature (māhiyya) of zinā, would be crucial in a court proceeding but do not affect the discussion here. 66 Lajnat ʿUlamāʾ bi-Riʾāsat Niẓām al-Dīn al-Bulkhī, al-Fatāwā al-Hindiyya (Dār al-Fikr, date of publication unknown) vol 2 153; al-Kharshī (n 32) vol 7 200; al-Shirbīnī (n 28) vol 5 451. 67 Al-ʿAynī (n 32) vol 6 335, 339-41; al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 121; al-Kharshī (n 32) vol 7 221. 68 Al-ʿAynī (n 32) vol 6 328-29; Shaykhī Zādeh (n 48) vol 1 586, 597-98. Although Ḥanafī jurists from this time period normally consider one month the strongest opinion, they also report alternate opinions of six months or at the discretion of the judge in every era. 69 Al-ʿAynī (n 32) vol 6 325. Also see Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 4 31. Al-ʿAynī was from Gazientep (also known as ʿAynṭāb) in what is now modern Turkey. He was from a family of scholars and began his studies at an early age, later writing scholarly works on diverse subjects such as history, Arabic language and ḥadīth in both Turkish and Arabic. He established himself in Mamluk Cairo where he occupied the post of chief judge for the Ḥanafīs for 12 years, as well as other prestigious posts such as supervisor of trade (muḥtasib). See: William Marçais, ‘al- ʿAynī’ in P Bearman and others (eds), Encyclopaedia of Islam (2nd edn, Brill)
31
Other Ḥanafī jurists mention more plainly that the legal impediments in testimony aim to avoid conviction. For example, for Ibn Nujaym (d. 1563 CE/970 h) the purpose of the judge questioning the witnesses is to find a way to divert the punishment (fa’l-yastaqṣi al-qāḍī fī dhālika iḥtiyālan li darʿ al-ḥadd).71 Similarly, the Mālikī jurist al-Kharshī states: “if you asked, ‘why does zinā require four witnesses’, it would be said due to the aim of privacy and averting shame from the defendants and from the woman’s family (fa in qulta lima ikhtaṣṣat shahādat al-zinā bi’l-arbaʿa qīla li qaṣd al-satr wa dafʿ al-ʿār li’l-zānī wa’l-maznī bihā wa ahlihā).”72 Although he proposes other possible reasons, al-ʿAdwī’s (d. 1775 CE/1189 h) gloss (ḥāshiya) on this statement suggests that this justification was mentioned first since it is the best opinion (aḥsan al-aqwāl).73 Further, the Mālikī jurist ʿAbd al-Salām (d. 1842 CE/1258 h) states more emphatically that privacy and relieving shame are the sole justifications.74
As for circumstantial evidence to prove illicit intercourse, the only debate concerns pregnancy or childbirth out of wedlock. Jurists reject all other forms of circumstantial evidence. Ḥanafīs and Shāfīʿīs likewise hold that pregnancy and childbirth are inadmissible, limiting evidence to confession or eyewitness testimony for both genders.75 The following Shāfiʿī fatwā provides various justifications, all of which introduce doubts over the woman’s volition. In place of the ḥadd penalty, it favours discretionary punishment (taʿzīr) for the pregnant, immodest woman:
A woman who became pregnant and gave birth but did not confess to zinā does not incur the ḥadd, as the ḥadd is only by testimony, confession, or her husband’s oath regarding her zinā (liʿān)… It is possible that the woman was penetrated in doubtful circumstances, or while sleeping, unintentionally drunk, insane or coerced, or that she inserted semen into herself without penetration, or similar to this, such that she became pregnant from it and
71 Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 5 6. Ibn Nujaym was a distinguished Ḥanafī jurist from Cairo who began teaching and giving fatwās at a young age. His main area of scholarly activity was in jurisprudence although he was also interested in Sufism. He wrote several commentaries on Ḥanafī texts, the most famous of which is al-Baḥr al- Rāʾiq. His writings also include the genres of legal maxims and fatwās. See: Joseph Schacht, ‘Ibn Nudjaym’ in P Bearman and others (eds), Encyclopaedia of Islam (2nd edn, Brill)
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there is no ḥadd due to doubt. Every woman who gets pregnant and gives birth should attribute the child to her husband if she can, and such a child remains attributed to him except if her husband swears to her zinā. […] Of course, if she has little modesty and God-consciousness and associates freely with unrelated men and adorns herself for them, and she becomes the subject of common gossip and slander, the ruler may punish her in accordance with his considered discretion with the aim of deterring others from doing this.
Ḥamalat imraʾa wa waladat wa lam tuqirr bi’l-zinā lam yalzimhā al-ḥadd illā bi bayyina aw iqrār aw liʿān zawj… Idh qad tūṭaʾ al-marʾa bi shubha aw wa hiya nāʾima aw sakrāna bi ʿudhr au majnūna aw mukraha aw tastadkhilu maniyyan min ghayr īlāj wa naḥw dhālik fa taḥbal minhu wa lā yūjab ḥadd li’l-shubha. Faʿlam anna kull imraʾa ḥamalat wa atat bi walad in amkana liḥāquhu bi zawjihā laḥiqahu wa lam yantafi ʿanhu illā bi’l-liʿān. […] Naʿam in kānat qalīlat al-ḥayāʾ wa’l-taqwā kathīrat al-khulū bi’l-ajānib wa’l-tazyīn lahum wa taḥaddath al-nās bi qadhfihā ʿazzarahā al-imām bimā yazjuru amthālahā ʿan hādhā al-fiʿl.76
In contrast, the Mālikī school’s well-known position considers visible signs of pregnancy or childbirth by unmarried women and delivery of a child by married women within six months of marriage proof of illicit intercourse. This provides an additional method of establishing criminal liability for females.77
Application of Zinā Doctrines to Rape
Although zinā usually refers to the consensual crime of fornication or adultery, jurists unanimously consider that rape, in the sense of penile penetration of a non-consenting female’s vagina outside of a marital or slave relationship, also comes under zinā.78 In such cases, jurists use expressions indicating the presence of coercion, such as “zinā by coercion” (al-zinā bi’l-ikrāh), “coercion to zinā” (al-ikrāh ʿalā al-zinā), or “he committed zinā with her while she was coerced” (zanā bihā wa hiya mukraha). In this study, “rape” or “coerced zinā” are generally used for simplicity.
76 ʿAbd al-Raḥmān Bāʿalwī (compiler), Bughyat al-Mustarshidīn fī Talkhīṣ Fatāwā Baʿḍ al-Aʾimma min al-ʿUlamāʾ al-Mutaʾakhkhirīn (Dār al-Fikr 1994) 409-10. 77 Aḥmad al-Dardīr, al-Sharḥ al-Kabīr li’l-Shaykh Aḥmad al-Dardīr ʿalā Mukhtaṣar Khalīl in A al-Dardīr and M al- Dusūqī, al-Sharḥ al-Kabīr li’l-Shaykh al-Dardīr wa Ḥāshiyat al-Dusūqī (Dār al-Fikr, date of publication unknown) vol 3 459; al-Kharshī (n 32) vol 8 81. 78 Al-Dardīr, al-Sharḥ al-Kabīr (n 77) vol 4 318; Muḥammad al-Ḥaṣkafī, al-Durr al-Mukhtār in Muḥammad al- Ḥaṣkafī and Muḥammad Ibn ʿĀbidīn, al-Durr al-Mukhtār wa Ḥāshiya Ibn ʿĀbidīn (Dār al-Fikr 1992) vol 4 5; al- Shirbīnī (n 28) vol 5 444.
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The placement of rape under the set crime of illicit intercourse means that the same foundational concept of zinā as a transgression against the divine continues to apply. Although some jurists recognize an interpersonal right in favour of the coerced woman in tandem with God’s right, the interpersonal aspect is secondary. As an unwilling participant in a sinful act, the woman is free from moral or legal blame, but is not generally entitled to damages or to bring criminal charges against her coercer. Notions of harm are absent, contrary to modern conceptions of rape as a crime against an individual.
Further, the same definition, evidentiary standards and penalties considered in the last section apply to the coerced act, with the exception that only the perpetrator is liable to the penalty. Two schools also grant the victim dower compensation where coerced zinā is proven (in the consensual crime, this only occurs where conviction is precluded by doubt). Overall, the application of the zinā doctrines to rape results in a near inability to prosecute rapists, the victim’s inability to report due to her liability to slander charges for mentioning the crime, as well as limited access to compensation.
While this section examines the application of the penalty and evidentiary standards for zinā to coercive situations, as well as certain directly related concepts such as reporting the crime, it does not attempt to answer the broader question of what constitutes coercion. This issue, which has no counterpart in the consensual crime and requires significant discussion, will be explored in chapter 3. The first subsection below considers difficulties associated with the criminal prosecution of rape as zinā, including impediments to holding the perpetrator accountable and risks to the victim. The second subsection looks at limits on financial compensation for rape victims.
3.1 Difficulties Prosecuting Rape as a Form of Zinā
3.1.1 The Corporal Penalty
Unlike evidentiary matters, the corporal punishment, which only applies to the perpetrator in rape, is relatively unproblematic from a contemporary perspective. Leaving aside human rights
34 concerns regarding the nature of the penalty, the severe punishment for zinā could arguably act as a deterrent from coercing any woman to have intercourse against her will.
The only issue arises where the perpetrator re-offends prior to punishment based on the previously noted principle that multiple acts of zinā before implementation of the punishment give rise to one ḥadd penalty due to unity of genus. As a result, a man could victimize a woman multiple times and only be liable to one ḥadd penalty. This also seems to apply if a man coerces multiple women, as the concern is the unity of the offence rather than its object, i.e. the fact that the man has transgressed God’s prohibition rather than the number of individuals he impacted in the process. However, in practice, this is only problematic for (legally) virgin serial rapists since otherwise the death penalty applies.
3.1.2 Evidentiary Barriers
The evidentiary standards for consensual zinā apply fully to coercive situations. This means that conviction requires confession by the perpetrator or the testimony of four eyewitnesses according to the conditions that preceded, an almost impossible task. There is only one additional evidentiary consideration in coerced situations, which is that the eyewitnesses must also agree on the victim’s lack of volition. Ironically, this makes conviction harder rather than easier. Further, the evidentiary rules in combination with the doctrine of slander not only prevent the victim from testifying, but also render her liable to the punishment for slander if she mentions the incident.
The following three subsections consider the general barriers to conviction, testimony regarding volition, and the complainant’s inability to report the rape. Although the Mālikī acceptance of pregnancy and childbirth out of wedlock as evidence of zinā also presents a risk to female victims, discussion of this issue will be postponed to the section on usurpation in chapter 4, as the two matters are intertwined.
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3.1.2.1 The Principle of Privacy and the Resulting Barriers to Conviction
The encouragement of privacy (satr) by all jurists in situations of illicit intercourse, which favours private repentance to God rather than conviction, results in multiple legal obstacles to an accepted confession or testimony, as examined previously. In stating their preference for privacy and in setting out the associated evidentiary barriers, jurists do not distinguish between consensual and coerced acts. For example, the statement mentioned earlier by the Ḥanafī jurist Ibn Nujaym that the purpose of the judge’s questioning of witnesses is to divert the punishment does not make any exception for coerced situations.79 This is because the focus is the breach of God’s moral boundaries regarding intimacy rather than seeking redress for a wronged human party.
Only one statement, by the Shāfiʿī jurist al-Shirbīnī (d. 1570 CE/977 h), nuances the general principle and creates a potential exception to the preference for privacy in situations of coercion. Specifically, he says that it is recommended (sunna) for witnesses to protect the participants’ privacy by not testifying provided they see this as beneficial (maṣlaḥa).80 However, he does not clarify under what circumstances he believes it would be preferable to expose the act, such that it is unclear if he believes that coercion is a beneficial reason to bypass privacy. More importantly, he does not lift any of the testimonial obstacles in cases where it is beneficial for witnesses to come forward, which means that a successful prosecution remains unlikely.
Essentially, privacy and the related evidentiary principles mean that rape, like its consensual counterpart, is generally relegated to a public indecency offence. The threat of prosecution and punishment for zinā is largely theoretical. This threat, together with the warning of consequences in the next life, act as a moral deterrent for believers from having sex outside of marriage, whether consensually or through force, transgressing the sexual limits set by God; however, where that deterrent is insufficient, the only consequence in most cases is a guilty conscience, social reprobation, or potentially criminal penalty under the area of discretionary crimes (see chapter 5) that would sanction inappropriate sexual conduct short of the act of forced intercourse. As a result,
79 Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 5 6. 80 Al-Shirbīnī (n 28) vol 5 452. He mentions that the recommendation not to testify does not apply to the fourth witness when three have already testified; rather, he would be sinful if he withholds his testimony. Al-Shirbīnī was an Egyptian Shāfiʿī jurist based in Cairo. In addition to his legal knowledge, he was known for his asceticism and worship. He was the author of several legal commentaries, including his well-known Mughnī al-Muḥtāj cited in this paper, in addition to other scholarly works. See: Muḥammad Ibn al-Ghazzī, Dīwān al-Islām wa bi Ḥāshiyatihi Asmāʾ Kutub al-Aʿlām (S Kasrawī ed, Dār al-Kutub al-ʿIlmiyya 1990) vol 3 161.
36 legal standards that protect flirtatious couples from criminal penalty while still frowning on their conduct extend that same indulgence to sexual predators.
In contrast, Jonathan Brown, writing in response to contemporary sexual misconduct allegations in the Muslim community, has suggested that privacy should not apply to situations of coercion:
Responding to the saying, “A man is not asked why he beat his wife,” the famous Shāfiʿī jurist al-Rāfiʿī (d.1225) objected that this could never be accepted as a principle of law because privacy is not a shield to harming others. If we fail to recognize the limited application of satr [privacy], then we allow to it to serve as a shield for people to abuse others with impunity.81
However, as explained above, there is no suggestion in legal works that the principle of privacy and the related evidentiary barriers are limited to consensual intercourse. Rather, it is only physical injury rather than intercourse itself that gives rise to compensable harm (see chapter 5). As for the dower, it relates to misuse of property rather than harm and is dependent on establishing zinā based on the usual standards of evidence regardless of the consensual or coerced nature of the act. By extending al-Rāfiʿī’s statement to coerced zinā without permanent physical injury, Brown is reading in a concept of harm where jurists traditionally saw none.
Rather, Azam’s statement that in classical Ḥanafī law “evidentiary principles geared toward protecting consensual participants to zinā from prosecution inadvertently functioned to protect rapists as well” is more apt.82 Moreover, this applies to all three schools without exception for rape prosecuted as zinā, with the caveat that the protection is not necessarily inadvertent, as the primary concern is the rapist’s sin against God rather than the infringement on bodily integrity. However, the concept of harm mentioned by Brown could provide opportunities for organic change within Islamic jurisprudence. As it seems that jurists historically considered the sex act in isolation, recognizing that the main component of coerced intercourse is not the mere sexual act but rather an act of aggression with severe repercussions could be a means to disentangle rape from the crime of zinā. Further, given that the textual proof requiring the twinning of coercive and
81 Jonathan Brown, ‘The Presumption of Innocence When Too Many Victims Go Unheard’ (Al-Madina Institute, 14 November 2017)
37 consensual illicit sex is slim, arguments for treating coerced intercourse as a crime distinct from the set crime of zinā may be possible.83
3.1.2.2 Evidence of the Female’s Volition
In eyewitness testimony to coerced zinā, Mālikī and Ḥanafī jurists consider when disagreement over the female’s volition precludes acceptance of the evidence. The requirement that witnesses agree on the victim’s volition introduces an additional obstacle that discourages witnesses from testifying to rape. This is not considered problematic, as jurists focus on the infringement on divine boundaries rather than the violation of the human victim. As Shāfiʿī jurists do not discuss this issue, it is unclear how they would approach the scenarios below.
According to Mālikī jurists, disagreement on whether the female was coerced is equivalent to disagreement over any other element of the offence, with the result that the testimony is rejected, the witnesses are liable to punishment for slander and there is no conviction for zinā:
Likewise [their testimony is invalid] if they differ over place, or over willingness and coercion, or whether there was doubt, or whether she was awake or sleeping, or whether she was on her right side or left side, or whether he was on top of her or below her, or whether they were in the east or west side of the house…
Wa kadhālika idhā ikhtalafū fī amākin al-ruʾyā aw fī’l-tawʿ wa’l-ikrāh aw fī’l-zinā wa’l- shubha aw fī’l-zinā bihā qāʾima aw nāʾima aw wa hiya ʿalā al-jānib al-ayman aw al-aysar aw huwa aʿlāhā aw asfalahā aw kānat fī jānib al-bayt al-gharbī aw al-sharqī…84
This applies whether one witness testifies that she was willing and three testify that she was coerced, or if the witnesses are evenly split on the matter, or if three testify that she was willing and one that she was coerced. Rather than encourage witnesses to come forward where coercion is suspected and/or ease the evidentiary burdens to hold perpetrators liable, this rule creates an additional barrier that discourages testimony in case of any disagreement over volition.
83 Some contemporary reformists already advocate for treating rape as a discretionary crime. See for example Munir (n 7) who believes it should be placed under siyāsa jurisdiction and not under the ḥudūd. However, care should be taken to distinguish such proposals as forms of new juristic reasoning based on contemporary understandings of rape from the views of traditional jurisprudence. Traditional views are typically obscured in these calls for reform. 84 Al-Kharshī (n 32) vol 7 199. Also see al-ʿAdwī (n 41) vol 7 198; al-Ḥaṭṭāb (n 49) vol 6 179.
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The Ḥanafī position is complicated due to differing views in the school and variant rules depending on how many witnesses testify to coercion and how many to willingness. If the witnesses are evenly split, meaning that two testify to voluntariness and two to coercion, Ḥanafī works report two opinions. Per Abū Ḥanīfa and Zufar (two early prominent figures in the school), there is no punishment for zinā because the witnesses have differed over the nature of the act. Further, because the witnesses claiming the woman consented have slandered her, this demonstrates enmity (khaṣm) and the testimony of enemies is not accepted. However, consistent with the Ḥanafī position withholding the punishment for slander for testimonial discrepancies where the minimum evidentiary threshold of four witnesses is met, they are not punished for slander since they are all testifying that zinā occurred.85
In contrast, Abū Yusūf and al-Shaybānī (two other early prominent figures in the school) hold that the male participant receives the ḥadd punishment since all witnesses agree that he committed zinā willingly, and some merely added an additional element to the crime, namely his coercion of the female.86 Further, the witnesses have not engaged in slander. Later jurists convey both early opinions without indicating which they consider preponderant.
The other scenario is when three witnesses testify that the woman was willing or coerced and the fourth claims the opposite. As with the even split, there is no zinā liability for Abū Ḥanīfa and Zufar, whereas the man is guilty of zinā for Abū Yusūf and al-Shaybānī.87 For Abū Ḥanīfa, the witnesses are not liable to slander for the same reasons as the even split. However, for Abū Yusūf and al-Shaybānī, although there is no slander liability where three testify to coercion and one to voluntariness, where only one witness testifies to coercion and three testify to her willingness, the latter three are liable to the ḥadd of slander for falsely accusing the woman.88
Before turning to the explanation of this last view and the corresponding problematic relationship between rape and female chastity, it is worthwhile noting the practical effect of these positions. While opinions attributed to Abū Ḥanīfa and Zufar relieve the rapist from the ḥadd punishment in case of any disagreement over volition, the lack of liability for slander means that there is no
85 Al-ʿAynī (n 32) vol 6 330-31; Shaykhī Zādeh (n 48) vol 1 598. 86 ibid. 87 Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 5 23; Shaykhī Zādeh (n 48) vol 1 598. 88 ibid.
39 additional barrier to witnesses coming forward. In contrast, although the views of Abū Yūsuf and al-Shaybānī implement the ḥadd for zinā on the male despite disagreement over volition, witnesses are less likely to come forward as a 1-3 coercion/voluntariness split renders them liable to punishment for slander. Overall, the potential for disagreement on voluntariness in rape situations means that in addition to the regular barriers to prosecuting zinā, the perpetrator is even less likely to be held accountable where coercion is suspected, as the first view relieves him from the ḥadd and the second discourages witnesses from coming forward.
As for the reason for holding witnesses liable for slander in cases where one testifies to the female’s coercion and three to her willingness, the stated rationale is that the threshold to impugn the woman’s reputation for chastity (iḥṣān) is not met, making her accusers liable to slander.89 The slandered person’s reputation for chastity, meaning that he or she is sane, has reached puberty, is free (ḥurr), Muslim and chaste (ʿafīf) from participation in illicit intercourse, is a condition for liability to slander.90 Testimony regarding reputation for chastity requires two witnesses, not four as in zinā.
However, Ḥanafī jurists do not clarify why one witness testifying to the female’s coercion and three to her willingness do not undermine the woman’s reputation for chastity, meaning that the logic behind the rationale must be inferred. It seems that by invoking willingness, the three witnesses are only testifying to her criminal liability to zinā, which requires four witnesses. This leaves one witness impugning her chastity rather than making a criminal accusation. As one witness falls short of the threshold of two needed to impugn chastity, the woman’s chastity is upheld from a legal perspective, rendering the three accusers liable to slander.
In the case of an even split, or where three witnesses testify to coercion, there are enough witnesses impugning the female’s reputation for chastity to protect her accusers, i.e. those testifying to her voluntary zinā, from slander. The fact that she was coerced, though a defense to liability for zinā, does not safeguard her reputation for chastity, as her chastity is impaired from technical participation in illicit intercourse. As the Ḥanafī jurist Ibn ʿĀbidīn (d. 1836 CE/1252 h) states, “coercion causes the sin to drop, but does not change the nature of the act [from zinā] such that
89 ibid. 90 Al-ʿAynī (n 32) vol 6 364.
40 her reputation for chastity is impugned (al-ikrāh yusqiṭ al-ithm wa lā yukhrij al-fiʿl ʿan kawnihi fa kadhā yasquṭ iḥṣānuhā).”91
Ibn ʿĀbidīn’s statement highlights another result of twinning coerced and consensual illicit sexual relations under the crime of zinā. The pairing results not only in substantial barriers to prosecuting the act, but also in an identical impact on the female’s reputation, causing her to forego the legal protection from slander accorded to chaste persons. Although the victim’s lack of volition excuses her from criminal liability, she has transgressed appropriate sexual boundaries, leaving her vulnerable to gossip about her behaviour from the perspective of the law.
In fact, Ḥanafīs also exempt accusations of zinā outside of court proceedings from slander where tempered by a simultaneous excuse of coercion. Thus, a man can say to a woman on the street, “you did zinā while you were coerced or sleeping or insane (zanayti wa anti mukraha aw nāʾima aw majnūna)” without liability to slander.92 While the woman’s chastity is not impaired from this statement, given the potential social stigma and the treatment of coerced intercourse as a prima facie crime requiring a plea of coercion, it seems problematic that merely mentioning coercion along with zinā suffices to avoid liability to slander.
In contrast, Mālikīs hold that stating “you did zinā while coerced (zanayti mukrahatan)” to a woman who denies this renders the accuser liable to slander unless he brings evidence (qarīna) that the statement was intended as an excuse for her (iʿtidhār ʿanhā).93 However, if he says “you were coerced to zinā (ukrihti ʿalā al-zinā)”, bringing coercion in front, he is punished for slander if there is evidence that his intention was to link her to zinā.94 While this leaves room to escape punishment by false claims of intention, the threat of serious repercussions would be a significant deterrent to using coercion as a cover for slander.
91 Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 4 55. Ibn ʿĀbidīn was born and lived in Damascus. He initially studied Shāfiʿī law before later studying the Ḥanafī school. He became one of the most distinguished Ḥanafī scholars of his time. His best-known work is the presently cited gloss, Radd al-Muḥtār. See: Peri Bearman and others (eds), ‘Ibn ʿĀbidīn’ in Encyclopaedia of Islam (2nd edn, Brill)
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3.1.2.3 Complainant’s Inability to Report the Crime
All schools reject female testimony for zinā, as per the conditions for witnesses examined earlier. No distinction is made between consensual and coerced situations. For example, the Shāfiʿī jurist al-Sharawānī (d. 1884 CE/1301 h) states:
Even if they reached a number so large that their account must be considered truthful (tawātur) [they receive the ḥadd for slander] because the objective of this [female testimony] is to give the judge personal knowledge of the accused’s zinā; however, the judge is not permitted to rule based on his personal knowledge of the facts in the set crimes… Therefore, their testimony does not provide any legal benefit and serves only the end of scandal.
Wa in balaghū ḥadd al-tawātur li anna ghāyat dhālika ifādat al-ʿilm li’l-qāḍī bi zinā al- mashhūd ʿalayhi wa’l-qāḍī la yaḥkum bi ʿilmihi fī ḥudūd Allāh taʿālā…fa lam tufid shahādatuhum illā al-taʿyīr.95
The principle in this passage relates to the fact that the judge can only rule based on facts established in court pursuant to the rules of evidence. Since the rules of evidence render the testimony of women in ḥadd cases inadmissible, the testimony of a large number of women only produces private knowledge in the judge of the defendant’s crime. While that might make the judge a potential witness against the accused, he cannot simultaneously be a judge and a witness in a ḥadd case, such that the women’s testimony cannot support a judicial finding of guilt.
The rejection of female evidence raises a related question of importance to rape victims: what is the effect of a female victim merely reporting the crime without acting as a witness in court proceedings? Theoretically, such a complaint could lead to a confession based on the perpetrator’s moral sense of guilt or result in witnesses coming forward out of sympathy for the victim despite all of the barriers, raising the chance of conviction. However, given the doctrine of slander, the main issue is whether the complainant would be liable to punishment for her unproven allegation
95 Al-Sharawānī (n 57) vol 9 121. Also see the commentary that al-Sharawānī’s gloss is based on: al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 121. In contrast, Ḥanafī jurists do not impose the ḥadd of slander on female witnesses provided they number four or more (the minimum evidentiary threshold for zinā) because they do not categorically exclude them from the category of competent witnesses (ahl al-shāhāda); however, their testimony is still rejected: al-ʿAynī (n 32) vol 6 333-34; al-Fatāwā al-Hindiyya (n 66) vol 2 143. As for al-Sharawānī, he was a Shāfiʿī jurist and a student of Ibrāhīm al-Bayjūrī, another Shāfiʿī jurist whose work is included in this study. While detailed information about his life is difficult to find, it appears that he spent part of his scholarly life in Mecca. See: al-Mawsūʿa al-Fiqhiyya (n 35) vol 1 356.
42 of zinā in situations that do not result in a confession or the accepted evidence of four upright male eyewitnesses.
As will be shown below, the evidence points most strongly to the conclusion that jurists did not exempt complainants from slander; rather, the identical laws governing coerced and consensual zinā and the related doctrine of slander punish the victim for coming forward and violating the principle of privacy. While there is some evidence to the contrary, it appears to be restricted to narrow circumstances. Essentially, the legal conception of rape as zinā not only fails to prosecute the rapist, but also silences the victim by threatening her with liability for slander. For the jurists, the coerced woman’s exemption from criminal liability for zinā sufficiently rectifies her situation. The absence of harm to her as an individual means that there is no need for her to advertise the man’s sin or seek personal redress.
Previous study of the applicability of slander charges to rape victims is limited to an article by Azman Noor.96 Focused on the “unwanted aggression against [the woman’s] freewill” and her “unbearable emotional pain”, he argues that a claim of rape is neither a confession of zinā nor slander.97 While the first argument is non-controversial given the formalities of confession, the negation of slander is more problematic. Aside from the framing of the inquiry that risks back projecting modern notions on historical discussions, the evidence cited in support of the claim is problematic. For example, although there is a ḥadīth which Noor relies upon regarding a case of coerced intercourse during the prophetic era where the female complainant did not receive the punishment for slander or zinā, there is controversy over the authenticity of the narration and the ḥadīth indicates that the man was convicted by confession following the accusation, rendering the issue of slander moot.98
Further, Noor’s claim that circumstantial evidence of rape impugns the alleged perpetrator’s reputation for chastity (iḥṣān) is unsubstantiated and contradicts the juristic requirement of two witnesses for invalidating chastity (with some exception for the Mālikī school, as addressed below).99 Moreover, while his recourse to views held by jurists such as ʿAṭāʾ (d. ca. 732 CE/114
96 Noor (n 22). Hina Azam considers slander as it pertains to the Mālikī doctrine of usurpation but does not discuss the issue more generally. 97 ibid. Quotes from abstract, which is printed before page 1. 98 ibid 3, 6. Noor mentions the dispute over authenticity directly in his footnotes. 99 ibid 3.
43 h before the formation of the four schools of law) and Ibn Ḥazm (d. 1064 CE/456 h), a jurist who did not adhere to the four main Sunnī schools, regarding the acceptability of female evidence in zinā and the categorization of coerced intercourse as a discretionary crime (taʿzīr) may be correct, such figures are not representative of mainstream Sunnī schools.100
Rather, in Ḥanafī and Shāfiʿī texts, there is no suggestion that victims should come forward. While it is possible that this may have occurred historically, as in the previously mentioned narration of disputed authenticity, these jurists only discuss zinā cases arising by spontaneous confession or witnesses coming forward. As Azam aptly notes for the Ḥanafī school:
As for ḥadd violations that are purely against God [such as zinā and drinking alcohol], charges can only be initiated by the ruling authority, who only acts if there is sufficient evidence to do so. In the case of rape…this means that either the perpetrator enters a confession (iqrār) or four suitable witnesses step forward to submit direct testimony (bayyina). The Ḥanafī texts reveal no means by which a rape victim can herself bring charges against her assailant. […] There are witnesses, yes, who act on behalf of God and the community, and can bring forth charges against one who has committed a ḥadd crime… But in the Ḥanafī vision, the rape victim herself disappears from view. […] What we find, instead of an active right to petition for redress for sexual violation, is a passive right, to defend herself by claiming coercion…101
This applies equally to the Shāfiʿī school, as the interpersonal claim to dower in that school (see next section) has no impact on evidentiary standards.
Further, the general rule is that accusations of zinā are slander unless proven by confession or eyewitness testimony, or unless there are impediments to liability. Examples of impediments include the slandered person’s (maqdhūf’s) lack of chastity, unclear speech that only implies zinā, and the slandered person’s decision not to request the ḥadd punishment or to forgive.102 None of the three schools places claims of coercion among these impediments.
100 ibid 4, 7. He also seems to believe that Mālikī jurists consider coerced intercourse a discretionary crime, which is incorrect. He may have confused the Mālikī categorization of rape under usurpation with discretionary crimes, especially since this article pre-dates Hina Azam’s publications detailing Mālikī doctrines. 101 Azam, Sexual Violation (n 7) 197-98 [emphasis in original]. 102 Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 4 54-55; Ibrahīm al-Bayjūrī, Ḥāshiyat al-Shaykh Ibrāhim al-Bayjūrī ʿalā Sharḥ al-ʿAlāma Ibn al-Qāsim al-Ghazzī (M Shāhaym ed, Dār al-Kutub al-ʿIlmiyya 1999) vol 2 440; al-Dardīr, al- Sharḥ al-Kabīr (n 77) vol 4 331; Shaykhī Zādeh (n 48) vol 1 604-05. The schools disagree over the details of unclear speech and the validity of forgiveness.
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Moreover, there is no distinction between the liability of third parties and alleged victims, or between consensual and coerced intercourse despite consideration of coercion within the chapters of zinā and slander. As seen in the preceding section, even well-meaning witnesses who mention coercion are liable to the punishment for slander in the absence of impediments or a conviction for zinā (or an evidentiary threshold of four witnesses on one Ḥanafī view). At most, a victim could make general statements indicating that she had been raped without directly or indirectly implicating a specific person, in the hopes that might spur a confession or witness testimony, provided she is willing to place her own chastity in question.
The situation is somewhat more nuanced in the Mālikī school which allows rape complaints under the doctrine of usurpation (ightiṣāb) in addition to zinā, which introduces civil standards of evidence. This doctrine, which is unique to the Mālikī school, will be examined in chapter 4. The resulting rules excuse women from liability for slander where specific requirements are met, namely, witnesses to the abduction or combined character and circumstantial evidence of a specific nature that supports the rape claim. However, a rape allegation based only on the complainant’s word is generally liable to slander, as are certain claims even where there is supporting evidence (see chapter 4 for details). As such, it is unsurprising that the Ḥanafī and Shāfiʿī schools, which conceive of rape purely as zinā, i.e. a set crime against the divine, do not contemplate exemptions for a complainant who cannot meet the high evidentiary burden.
It is true that most Ḥanafī and Shāfiʿī works mention general principles without explicitly stating that complainants are liable for slander, such that it may be tempting to argue for an exception even if this runs counter to the plain sense of these doctrines. However, in addition to the fact that slander liability is consistent with the focus on private repentance for zinā as a crime that primarily involves divine rights, the following two Shāfiʿī fatwās indicate that there is no concession for complainants. The first fatwā reads as follows:
He was asked about a woman who says, “so-and-so seduced me or came to my house” and he denies this, does she receive discretionary punishment for this statement?
He replied that she is given discretionary punishment for harming her accuser.
Suʾila ʿan imraʾa qālat fulān rāwadanī ʿan nafsī aw nazala ilā baytī wa kadhdhabahā hal tuʿazzaru bi hādhā al-lafẓ am lā?
45
Fa ajāba bi annahā tuʿazzar li īdhāhā al-madhkūr.103
This fatwā is the less clear of the two, as it concerns an indirect accusation of zinā. Further, it does not explicitly mention coercion, although this may be implied from the wording and the fact that a woman would not implicate herself in consensual zinā. Because the accusation is indirect, it is a case of discretionary punishment for harm (īdhā) rather than the set punishment for slander. Discretionary punishment for allegations of zinā or other sexual improprieties that fall short of the requirements for slander forms part of the Shāfiʿī discussion of slander.104 The jurisconsult’s imposition of discretionary punishment for the woman’s indirect accusation of coerced zinā implies that she would be liable to slander were the accusation direct.
The second fatwā is explicit:
Issue: It reached the shaykh of the town that a man was having intercourse with his daughter. The girl was asked (about this), and she claimed that her father was coercing her to do this. The shaykh sent a group [to investigate], so they listened as she was reproaching him for wanting this [intercourse] from her.
[Answer:] It is not permissible to prove the set crime of zinā based only on this evidence. Rather, it is necessary that he confess, or testimony be established that they saw him while he had entered his penis into her vagina. If that is established, and we seek refuge from God, then the man is stoned to death and she is exonerated of the set crime by virtue of her claim of coercion due to the Prophet’s saying, “deflect the punishments of set crimes in cases of doubt.” His guilt, however, is not proven by his daughter’s statement; rather, her statement establishes that she has slandered her father and is therefore given the set punishment of 80 lashes. It is incumbent on the ruler to ensure they are separated except in circumstances where there is an impediment preventing them from being alone…
Masʾala: balagha shaykh al-qarya anna rajulan yaṭaʾ bintahu, fa suʾilat al-bint fa iddaʿat anna abāhā yukrihuhā ʿalā dhālik, wa arsala al-shaykh jamāʿa fa samiʿūhā wa hiya tuʿātibuhu wa huwa yurīd minhā dhālik.
Lam yajuz iqamat al-ḥadd ʿalayhi bi mujarrad dhālik, bal lā budda min iqrārihi bi dhālika aw iqāmat al-bayyina annahum raʾawhu wa qad ghayyaba hashafatahu fī farjihā, fa in thabata dhālika wa’l-ʿiyādhu bi’l-llāh ḥudda ar-rajul bi’l-rajm, wa lā ḥadd ʿalā al-bint li suqūṭihi bi daʿwā al-ikrāh li qawlihi ṣalla Allāhu ʿalayhi wa sallam: “idraʾū al-ḥudūd bi’l- shubuhāt”…wa lā yathbut zināhu bi qawl bintihi bal takūn bi dhālika qādhifa li abīhā
103 Aḥmad al-Ramlī, Fatāwā al-Ramlī (Compiled by author’s son M al-Ramlī, Al-Maktaba al-Islāmiyya, date of publication unknown) vol 3 347. 104 Al-Bayjūrī (n 102) vol 2 440.
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tuḥadd thamānīn jalda, wa ʿalā al-ḥākim al-tafrīq baynahumā illā ʿinda wujūd māniʿ al- khalwa…105
In addition to reiterating the evidentiary requirements for zinā, which are unaffected in cases of coercion, this fatwā clearly demonstrates that an accusation of coerced intercourse constitutes slander in the view of this jurisconsult, even when it is the result of an investigation. Coercion is nothing but a defense to criminal liability for zinā, not a sword to bring criminal charges nor to subject the alleged perpetrator to public scrutiny for potential sexual misconduct. Here, the statement is not even unsolicited; rather, a woman who is asked about her father’s sexual transgression and confirms that he is abusing her is guilty of slander. If the general rules are not bent here, a fortiori there is no exemption from slander for victims bringing unsolicited claims of coerced zinā.
The jurist’s appeal to the ruler to separate the father and daughter in the above fatwā is also noteworthy. This is the only instance encountered in the Ḥanafī and Shāfiʿī texts included in this dissertation where a jurist seems to advocate for a penalty for the rapist in the realm of discretionary punishment by the judge or ruler despite the fact that the fiqh rules under zinā let him off the hook. The statement may be taken as support for the view that jurists’ rules are only one part of a larger system. Alternately, it can be taken as a solitary view of one jurist or interpreted to mean that the ruler should intervene to prevent further situations that may lead to sexual gossip rather than punish the father for the alleged rape.
In Shāfiʿī texts, only one statement by the jurist al-Shirbīnī nuances the applicability of slander to some cases of zinā. Specifically, he carves out an exception where fewer than four witnesses testify to an injury sustained from zinā rather than the act of intercourse itself: “the witness to an injury caused by zinā is not liable to slander due to necessity, even if there is no supporting testimony (shāhid al-jurḥ bi’l-zinā laysa bi qādhif li’l-ḥāja wa in lam yuwāfiqhu ghayruh).”106 However, the concession appears limited to the context of grievous bodily harm. As such, it could apply to a complainant seeking compensation for physical injuries sustained from rape, but not seeking to report or speak of the act of intercourse in and of itself. Further, al-Shirbīnī indicates
105 Muḥammad al-Ahdal, ʿUmdat al-Muftī wa’l Mustaftī (Dār al-Minhāj 2002) vol 4 31 [emphasis added]. The daughter must have reached puberty or else she would not be liable for slander. Also note that cases of incest are included in the offence of zinā since it is intercourse outside of a marital or slave-master relationship. 106 Al-Shirbīnī (n 28) vol 5 463.
47 that a highly regarded earlier Shāfiʿī jurist, al-Rāfiʿī, disagreed with the position he is advocating and that he considered that such a person is liable to slander.107
Further, the reference to harm in the first Shāfiʿī fatwā above is telling. In that ruling, the jurist is concerned about the complainant harming the alleged perpetrator through her accusation, that is, by exposing him to gossip and/or exposing his sin. There is absolutely no concern for the complainant herself. It is unlikely that this is due to outright lack of concern for women, as these same jurists exempt women from criminal punishment where coercion is demonstrated, and also allow coerced women to claim financial compensation in the form of the dower and damages for grievous bodily harm (see next section and chapter 5).
Rather, the omission supports the conclusion that jurists historically considered rape, as it pertains to the victim, as an unwanted sex act that inconvenienced her but did not harm her in any substantive way. The perpetrator had only blemished his own standing before God. As no harm was done to the coerced woman, there was no need for her to publicize the issue. However, if she did, that exposure constituted real harm since she was broadcasting another person’s sin without need. The law’s non-recognition of harm sustained by the rape victim is also consistent with Islamic tort principles which exclude many injuries that give rise to legal remedies in common and civil law systems.108
There do not appear to be any direct Ḥanafī statements on this issue, nor any Mālikī texts during the time period covered by this study that consider the complainant’s liability to slander for a claim of coerced zinā without an accompanying claim of usurpation. However, there is a pertinent Mālikī narration from the jurist Burhān al-Dīn ibn Farḥūn (d.1367 CE/799 H) who lived one century earlier. He relates the following incident from Imām Mālik, the founder of the Mālikī school:
Issue: Mālik said, “there was a married woman among us in Madīna whose husband would bring home a boy every day and take him up to the roof. She asked him about this boy. He replied, ‘it is my friend’s son and I engage him in conversation.’ When the husband brought him (again), she went to see what they were doing and found her husband on top of the boy. She took him to the ruler and informed him (of what happened). The ruler
107 ibid. 108 For example, a broken bone that heals without disfiguring the injured party is not compensable in Islamic tort law. Tort liability is covered in more detail in chapter 5.
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consulted the jurists of Madīna and all of them said, ‘we believe she should be given the ḥadd [of slander] due to what she mentioned about him, and we do not think he is liable for anything.’ He consulted Mālik and sent the woman to him. The woman informed him of the matter. Mālik told the ruler to let her go and to lash her husband 75 times. The ruler did this. Aṣbagh said, ‘this (ruling) is the truth and it is correct, God willing. I do not think that Mālik lashed him except because he must have confessed to something. The penalty for slander only dropped from her due to (a type of) jealousy which resembles madness, and were she not his wife, she would have been found guilty.’”
Masʾala: qāla Mālik: kānat lanā imraʾa bi’l-madīna lahā zawj fa kāna yadkhulu ʿalayhā fī kull yawm wa maʿahu ṣabī fa yarqā bihi ilā al-saṭḥ fa qālat lahu imraʾatuhu: ma shaʾn hādhā al-ṣabī? Fa qāla: innahu ibn ṣadīq lī ataḥaddathu maʿahu, thumma innahu jāʾa bihi fa dhahabat li tanẓur mā yaṣnaʿ fa wajadathu ʿalā al-ṣabī fa dhahabat bihi ilā al-amīr wa aʿlamathu fa istashāra fuqahāʾ al-madīna fa kulluhum qāla: narā ʿalayhā al-ḥadd bi mā ramathu bihi wa lā narā ʿalayhi shayʾan, wa istashāra Mālik wa baʿatha ilayhi bi’l- marʾa fa akhbarathu bi’l-khabar fa ashāra ʿalayhi Mālik an yukhallī sabīlahā wa an yaḍriba zawjahā khamsa wa sabʿīn sawṭ fa faʿala bihi dhālik. Qāla Aṣbagh: huwa al-haqq wa’l-ṣawāb in shāʾ Allāh taʿālā. Qālā Aṣbagh: wa lā aẓunn ḍarabahu Mālik illā bi amr aqarra bihi ʿalā nafsihi wa innamā saqaṭa ʿanhā al-ḥadd li’l-ghayra wa hiya shabah al- junūn wa law kāna ghayr zawjatihi kāna ʿalayhā al-ḥadd.109
Mālikī jurists consider same-sex anal intercourse as zinā, such that slander also applies to unproven accusations. In this incident, the woman is excused from liability for slander despite the lack of confession or eyewitness testimony proving illicit intercourse due to her spousal relationship and the mental effect the incident has on her. While the commentary indicates that others would not benefit from this exception, perhaps an argument could be made that coerced women should also be exempt due to the mental effects of rape. However, such an argument would require acceptance of mental trauma from forced intercourse which traditional jurisprudence does not recognize.
Overall, the application of slander to rape complainants, which results from the legal treatment of coerced intercourse as a form of zinā, prioritizes prevention of sexual gossip and private reformation over punishing the perpetrator in a court of law or compensating the victim. While the totality of these doctrines makes prosecution nearly impossible, silencing the victim in addition
109 Burhān al-Dīn ibn Farḥūn, Tabṣirat al-Ḥukkām fī Uṣūl al-Aqḍiya wa Manāhij al-Aḥkām (Maktabat al-Kulliyyāt al- Azhariyya 1986) vol 2 181. Ibn Farḥūn was born into a scholarly family in Medina. Both his father and his uncle served as Mālikī judges in Madina, and Ibn Farḥūn himself was appointed to this post for the last six years of his life. Although he studied almost exclusively in Medina, primarily with local Mālikī scholars, he interacted with scholars from other areas who travelled to Medina during their pilgrimage. During adulthood, Ibn Farḥūn travelled to various cities such as Aleppo, Damascus, Jerusalem and Cairo. See: Mohammad Fadel, ‘Ibn Farḥūn’ in K Fleet and others (eds), Encyclopaedia of Islam (3rd edn, Brill)
49 to any eyewitnesses who cannot speak of the crime except under threat of punishment, such results are unproblematic when we adopt a framework of zinā as a transgression against a divine being who sets these limits for the benefit of humans but is not in need of worldly retribution.
3.2 Limits on Financial Compensation for Rape Victims
Recall that in consensual zinā, the male only pays the dower when the ḥadd corporal punishment drops due to doubtful circumstances. The dower does not accompany the ḥadd penalty for consensual intercourse since the woman cannot benefit from her own criminality.110 However, in coerced zinā where the female is not guilty of a crime, legal texts contain additional discussion. Whereas Mālikī and Shāfiʿī jurists hold the convicted perpetrator liable for the criminal penalty for zinā and the dower payment simultaneously, Ḥanafī jurists do not pair the dower with the criminal penalty in any circumstance based on the principle that certain things are never combined, among them the dower and the criminal penalty for zinā.111 The recognition of a dower claim, where it exists, is the only interpersonal right accruing to the woman in coerced zinā.
At first glance, the Mālikī and Shāfiʿī position is advantageous to female rape victims who can receive the dower in situations where the perpetrator is convicted of zinā, as well as in situations where he is excused from the ḥadd due to doubt. However, practically speaking, the principle of privacy and the related evidentiary requirements nullify the effect of this rule in all but exceptional circumstances where the perpetrator confesses to his crime. In essence, a rare difference between the coerced and consensual variants of zinā that benefits the victim is rendered largely irrelevant by virtue of the underlying evidentiary rules of zinā based on moral considerations.
The views on combining dower and ḥadd in this time period are identical to the opinions that Azam attributes to the Mālikī and Ḥanafī schools during previous centuries. She also invokes the concept of divine and interpersonal claims and proposes that they account for the divergent views of Mālikī
110 In consensual cases, logically the dower could accompany the set penalty if the man is convicted of zinā while the woman is excused due to doubt that only pertains to her; however, this case seems absent from juristic treatises. 111 Al-ʿAynī (n 32) vol 6 263; Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 1 259. Other things that are never combined include lashing (jald) and stoning (rajm), and lashing (jald) and banishment (nafy).
50 and Ḥanafī jurists on whether the dower and ḥadd may be combined.112 Azam mentions that whereas Mālikīs typically uphold interpersonal rights when they co-exist with the ḥadd penalties that belong to God, Ḥanafī jurists view God’s claims as pre-empting personal claims. This analysis holds for all three schools, as Shāfiʿīs, who allow the co-existence of interpersonal rights and divine rights in the ḥudūd like the Mālikīs, also accept the imposition of both dower and ḥadd.
For example, in slander, Shāfiʿīs and Mālikīs allow the slandered person (maqdhūf) or his heirs to demand the ḥadd or to forgive.113 In contrast, Ḥanafīs prohibit pardon by the slandered person and do not recognize the right to demand the ḥadd as inheritable since such things occur only in rights of people, not in divine rights.114 Moreover, in the set crime of theft (sariqa), Ḥanafīs do not require the convicted thief whose hand is cut in fulfillment of God’s claim to also compensate the owner the value of the stolen item if the item no longer exists. In contrast, the Shāfiʿīs insist on fulfillment of both the divine and interpersonal rights, and Mālikīs likewise require fulfillment of both rights provided the thief is sufficiently well-off (mūsir) to reimburse the value.115
Further, without mentioning the term ‘interpersonal rights’ explicitly, the Shāfiʿī jurist Ibn Ḥajar al-Haytamī (d. 1567 CE/974 h) focuses on the victim’s right to justify why she is entitled to the full dower payment for every act of coerced intercourse, implicitly granting importance to the non- divine right. Specifically, he mentions that it is because the cause of dower for the coerced woman is injury (itlāf) and this recurs with every occurrence of penetration.116 The harm here is likely
112 Azam, Sexual Violation (n 7) 138-46. Although she references quotes from late classical Mālikī jurists that explicitly link the co-existence of dower and ḥadd to upholding interpersonal and divine rights simultaneously, such explicit statements seem to be absent from the Mālikī texts considered in the present study: ibid 141-45. Further, based on statements by select classical Mālikī jurists that a man using a woman’s sexuality without consent had to compensate her for its value, Azam argues that that the concept of exchange value for sexual access (ʿiwaḍ) is a second theoretical anchor for the Mālikī ḥadd plus dower doctrine: ibid 135-38; however, such statements are not present in the later texts consulted for this study. 113 Al-Bayjūrī (n 102) vol 2 443; al-Ḥaṭṭāb (n 49) vol 6 302; al-Kharshī (n 32) vol 8 90-91. However, whereas Shāfiʿīs allow forgiveness gratuitously or in exchange for money, Mālikīs forbid monetary exchange. Further, one opinion attributed to Mālik forbids forgiveness due to the divine right necessitating the ḥadd: al-ʿAdwī (n 41) vol 8 90-91. 114 Al-ʿAynī (n 32) vol 6 371, 373. 115 ibid vol 7 71 [discusses the positions of the three schools]. 116 Al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 7 401. Ibn Ḥajar al-Haytamī was a famous Shāfiʿī jurist and author of many works. He studied in al-Azhar where his main teacher was the well-known Shāfiʿī scholar Zakariyya al-Anṣārī. He was given licences to teach and issue legal opinions before the age of 20 years old. He later relocated to Mecca. His commentary Tuḥfat al-Muḥtāj is an authoritative work in the Shāfiʿī school and his fatwās are also held in high esteem. See: Cornelis van Arendonk and Joseph Schacht, ‘Ibn Ḥad̲ j̲ ar al-Haytamī’ in P Bearman and others (eds), Encyclopaedia of Islam (2nd edn, Brill)
51 infringement on the woman’s rights over her sexual organs absent his rightful access (milk), as physical injuries have their own rules. Moreover, in the related context of dower without ḥadd in cases where there is no conviction due to doubt, the Shāfiʿī jurist al-Ḥisnī mentions that the presumption for God’s claims is waiver (musāmaḥa), but the presumption for interpersonal claims is strict performance (mushāḥḥa).117
Ḥanafī jurists justify their position based on the ḥadd of zinā constituting a divine right for which the imam is the exclusive representative.118 Thus, based on the notion that the divine claim to prosecution overrides the victim’s claim entirely, for Ḥanafīs one effect of treating rape as zinā is the rejection of any right to compensation in cases of conviction. Ḥanafī jurists do not propose any alternate heading under which victims may claim damages for intercourse. Rather, these jurists seem to see rape as an isolated act of intercourse which must follow all of the rules of zinā and other set legal principles. The idea of rape as more than a mere sex act that would render lack of prosecution and lack of financial compensation in many circumstances contrary to justice does not enter their worldview. Naturally, this viewpoint heavily conflicts with modern research that considers rape significantly harmful and traumatic:
The acute phase [in the immediate aftermath of rape], which may last for days or several weeks, is commonly characterized by sleep disturbance, decrease in appetite, and physical pain. Although many victims do not display signs of injury, they may none the less experience considerable bodily discomfort. […] [Following the acute phase,] in the succeeding months she may still experience physical and sexual problems, nightmares, intense nervousness, and fear. […] Many are able to resume only a minimal level of functioning. A New Zealand study concluded: ‘Rape is an experience which shakes the foundations of the lives of the victims. For many its effect is a long-term one, impairing their capacity for personal relationships, altering their behaviour and values and generating fear.’119
While understandable that jurists of a different era did not incorporate these notions, the treatment of non-consensual illicit intercourse as zinā, conceived primarily as a moral infringement, and the rules flowing from this choice would make it challenging to incorporate notions of harm in a modern context without overhauling the entire legal conception of rape in Islamic law.120
117 Al-Ḥiṣnī (n 27) 275. 118 Al-ʿAynī (n 32) vol 6 279, 281. 119 Temkin (n 5) 2. 120 The incompatibility is further reinforced by the fact that modern tort law is dramatically more expansive in the scope of the injuries it protects compared to Islamic law which recognizes only permanent injuries as subject to compensation. This will be explored in more detail in chapter 5.
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The same notion of rape as a fleeting act of intercourse that is above all an infringement on divinely-set sexual boundaries leads to the previously noted issue where the staunch Mālikī and Shāfiʿī recognition of interpersonal rights has minimal effect in practice due to the testimonial barriers present in zinā (although the Mālikī school’s doctrine of usurpation bypasses this issue in some but not all situations: see chapter 5). As the default consensual crime of zinā only concerns divine rights, where the presumption is waiver, overlooking the transgression is logical except where committed as a public spectacle or where the participants wish to confess. As such, the rape victim’s interpersonal right to compensation becomes subservient to the divine rights that dictate the main rules of zinā prosecutions.
Unlike the disagreement on combining the dower and ḥadd, if all elements of zinā are fulfilled except for the absence of doubtful circumstances, jurists from all schools impose the dower payment without the ḥadd. This is the same as the consensual offence, as allegations of coercion have no effect when there is doubt regarding the illicitness of the act itself. For Mālikīs and Shāfiʿīs, this is consistent with requiring the dower for coerced zinā. In both cases, the same strict evidentiary burdens proving intercourse have been fulfilled and give rise to the woman’s right to compensation for the sexual use of her body. Although the presence of doubt voids the ḥadd, the interpersonal right established by confession or evidence remains.
Ḥanafīs justify departing from the rule denying the dower with the ḥadd by applying a second principle, namely that “penetration in the lands of Islam is never devoid of both ḥadd and dower (al-waṭʾ fī dār al-islām lā yakhlū ʿan al-ḥadd aw al-mahr)”.121 Once the corporal penalty drops due to doubt, this rule requires dower. Ḥanafī books provide different justifications for various types of doubt. Thus, where a claim of marriage precludes the ḥadd, dower is required due to the gravity of intimacy (taʿẓīman li khaṭar al-buḍʿ) because God requires dower in connection with marriage.122 On the other hand, if a man has intercourse with a woman he mistakenly thinks is his bride, dower is also due, but because this act is like a crime (jināya) committed on her person.123 However, despite the apparent transferability to situations where the ḥadd applies, jurists do not
121 Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 4 29; Shaykhī Zādeh (n 48) vol 1 594. There are limited exceptions to this rule, such as illicit intercourse between a boy and a non-coerced woman where there is no dower due to the woman’s willingness and no hadd due to minority for the male and the woman’s status as ‘follower’. 122 Al-ʿAynī (n 32) vol 6 320; Ibn ʿĀbidīn, Minḥat al-Khāliq (n 33) vol 5 20. 123 Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 4 27.
53 address why these reasons only apply here. The recognition of interpersonal rights only when divine rights drop is likely the overarching reason, not situation-specific rationales.
Although dower in cases of doubt guarantees rape victims compensation provided the remaining elements are met, even establishing zinā but for doubt is difficult due to the restrictions on testimony. Further, in the rare cases that meet this threshold, by modern notions, the lack of criminal punishment seems contrary to justice where the doubtful circumstances are flimsy, such as a claim of marriage without evidence which is accepted by Ḥanafīs. Moreover, in rape cases where compensation is due, whether due to conviction or doubt, the treatment of rape as zinā combined with the focus on sexual use of the woman’s body under the rules governing marriage means that the compensation due to victims of coerced intercourse is no different than women who consented to zinā but were spared the ḥadd punishment by a claim of doubt.
Summary
The conception of zinā as a claim of God, and the associated desire to cover the sin, means that rape as coerced zinā is equally, or even more, difficult to prosecute. The doctrine of doubt, the high evidentiary standards for conviction and threat of punishment for slander all but ensure that the rapist walks free. Absent alternate methods of prosecuting the offence, such as the doctrines of usurpation and banditry recognized by the Mālikīs (chapter 4), or the availability of siyāsa punishments, the law may help deter rape by its moral pull on believers and encourage private reformation, but it does not focus on prosecution in this life.
Further, the moral emphasis impacts not only the rapist, but also the victim. Hiding the rapist’s sin and avoiding prosecution simultaneously makes it nearly impossible for the victim to establish her dower claim for sexual access. Moreover, the victim faces liability for slander for mentioning the incident, and she can lose her chastity for participation in the sin of extramarital intercourse despite the involuntary nature of the act. As the transgression against her person is secondary and does not give rise to legally compensable harm, the concealment of her participation in zinā and excusal from criminal liability largely suffice to remedy her coercion into zinā.
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Chapter 2 Non-Prototypical Rape Victims: The Scope of Coerced Zinā
Thus far, it is clear that if Zayd rapes Fatima, a female adult (i.e. above the age of puberty), that his act constitutes a coerced form of zinā. The adult woman, who tends to be the prototypical rape victim in colloquial contemporary discourse, is also the prototypical victim of rape in Islamic jurisprudence. However, what if Fatima is underage, or if she is Zayd’s wife? Further, what if Fatima rapes Zayd, or if Zayd penetrates Fatima or Amr anally?
Having established the basic framework for rape as coerced zinā, this chapter examines the full scope of the offence. Moving beyond the prototypical victim considered in chapter 1, it looks at minor females, males and spouses subjected to non-consensual penile-vaginal penetration, as well as both male and female victims of coercive anal intercourse. In other words, this chapter examines whether Islamic law conceptualizes these violations as coerced zinā, i.e. primarily as moral infringements, like coercive penile-vaginal penetration of the prototypical adult female. Further, it considers the consequences for victims and perpetrators of the legal treatment of these forms of rape.
This chapter shows that the scope of zinā is vast, with many non-prototypical rape violations coming under this heading, including the rape of some minors, males subjected to coercive penile- vaginal penetration, and for many jurists, anal penetration of both males and females. This complicates prosecutions and the ability of victims to obtain a remedy for the same reasons studied in chapter 1. However, jurists unanimously exclude spousal rape from coerced zinā, as this act is within the divine boundaries of sexual conduct. Nonetheless, their approach varies substantially, with some jurists stopping just short of encouraging the rape of recalcitrant wives while others frown upon coercive sex in marriage and provide some limited remedies outside of the criminal law.
Further, consideration of non-prototypical victims introduces the gendering of rape in Islamic legal discourse. As it is well-known that rules pertaining to marriage and divorce are highly gendered,
55 the extension of gendering to rape should not be a surprise.124 Marriage, which is a contract granting the husband sexual access to his wife, shares its focus on intercourse with non-consensual and consensual illicit sex. Further, when coercive intercourse takes place between husband and wife, the gendered rules of marriage naturally influence the legal treatment of this act.
The gendered notions upheld by jurists provide insight into the reasoning behind rules that result in additional legal barriers for male victims on top of the limitations faced by victims of both genders due to the moral nature of the offence. Further, the combination of the intertwining of rape with zinā and the gendered nature of the rape discourse explains the existence of counterintuitive situations where the man is conceived both as a victim and perpetrator of coerced zinā. Moreover, as hinted at above, gendering explains why women are particularly vulnerable to non-consensual sex within the marital context. Finally, the gender dichotomy explored here also sets the stage for consideration of the highly gendered standard of coercion that will be discussed in the following chapter.
124 See for example Ali, Sexual Ethics (n 11); Tucker (n 40).
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Underage Girls
In the definition of zinā explored in chapter 1, criminal liability only attaches to persons who have reached the age of puberty and are of sound mind, i.e. they are mukallaf. Underage participants are never be liable to the offence zinā, regardless of whether it is consensual or coerced. However, what if only one participant is a minor, such as if the adult Zayd rapes 5-year-old Maryam or has ‘consensual’ intercourse with her? Although it may be tempting to say that Zayd is liable to zinā since he fulfills the requirements of maturity and sanity even though Maryam does not, for Muslim jurists the answer turns on the interpretation of a separate term in the definition of zinā, specifically that penetration occur in a vagina that is sexually desirable (mushtahan).125
As will be discussed below, all jurists use this term to include illicit intercourse with at least some minor girls in the definition of zinā. The conception of rape of some minor girls as zinā leads to the same issues prosecuting the act and obtaining a remedy as those observed for the rape of women in chapter 1. Further, this classification also reinforces the theory that Muslim jurists have historically considered all forms of illicit intercourse primarily as a moral transgression against the law of God rather than an aggression with any significant impact on a non-consenting participant. Since discussion of a desirable vagina does not include boys, with the exception of Shāfiʿīs, this section focuses mainly on the rape of minor girls. As such, given that there is little comparison between genders at this stage, this initial section primarily examines the scope of coerced zinā rather than gendering.
For Ḥanafī jurists, the concept of a desirable vagina excludes intercourse with minor females who are not ordinarily desired for intercourse (ṣaghīra lā yujāmaʿu mithluhā) but includes minor females who are ordinarily desired for intercourse (ṣaghīra yujāmaʿu mithluhā).126 As the Ḥanafī jurist al-ʿAynī states, where a man commits zinā with a minor girl who is ordinarily desired for intercourse, the ḥadd applies to the man by consensus (ijmāʿ), but “if she is among those not ordinarily desired for intercourse, there is no ḥadd on him since it is like intercourse with an animal (idhā lam takun tujāmaʿu mithluhā fa waṭiʾahā lā yajibu al-ḥadd li annahu ka ityān al-bahīma)”.127
125 The precise terms are qubul mushtahan (a vagina that is desired) in Ḥanafī texts and farj mushtahan ṭabʿan (an orifice that is naturally desired) in Shāfiʿī works. Mālikīs do not place this term in the definition of zinā but introduce the same notion in their commentary. This idea of a desirable vagina or orifice does not only concern illicit intercourse with girls, but also serves to exclude intercourse with things such as corpses and animals from zinā. 126 Shaykhī Zādeh (n 48) vol 1 585, 596. 127 Al-ʿAynī (n 32) vol 6 317.
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Like bestiality, cases of intercourse with minor females who are not ordinarily desired for intercourse therefore come under discretionary punishments (taʿzīr).128
Despite its importance, the meaning of ordinarily desired for intercourse is ambiguous.129 Immediately after the previous quote, al-ʿAynī mentions that a person of sound nature (al-ṭibāʿ al- salīma) would not desire a minor girl who is not ordinarily desired for intercourse (lā turghab fī mithlihā).130 He also cites an example of a female not ordinarily desired for intercourse: “if a man has intercourse with a slave girl who is five years old and he causes vaginal tearing and she does not bear intercourse due to her age, there is no expiation due from him and his fast does not break [in Ramadan]…and this is like intercourse with an animal (wa law waṭiʾa al-rajul jāriya lahā khams sinīn wa afḍāhā wa lā taḥtamilu al-waṭʾ li ṣigharihā lā kaffāra ʿalayhi wa lā yufṭiruhu…wa huwa ka īlāj al-bahīma).”131
This term also occurs in other chapters of Ḥanafī works where it sometimes applies to minor males (ghulām mithluhu (lā) yujāmaʿ), but never with a clear definition.132 Further, in the context of spousal maintenance (nafaqa), the Ḥanafī jurist Shaykhī Zādeh mentions that the broader term ‘desirable’ (mushtahan) applies to a minor female when obtaining pleasure from her is possible (yumkinu al-taladhdhudh minhā).133 Overall, it is unclear if the expression relates solely to the girl’s capacity to bear intercourse, or whether her status depends fully or partially on the male’s desire for her and/or ability to derive pleasure even if her body is not fully capable of sexual relations. The commentary that considers male desire and the fact that the similar Mālikī term relates in part to the male (see below) suggest caution in attributing the meaning solely to the female’s characteristics.
128 ibid vol 6 311-12. 129 Azam translates the concept as (un)suitability for sexual relations, “presumably because she was too young”: Azam, Sexual Violation (n 7) 159. Based on her recourse to a presumption and the fact that she does not quote any definition, it seems that earlier works also do not define this term. Tucker, in her work on 17th-18th centuries muftis in Ottoman Syria and Palestine, links readiness for intercourse to the girl’s physical attributes, such as her being “fleshy” (samīna) or “buxom” (ḍakhma) based on the sources included in her study: Tucker (n 40) 44. 130 Al-ʿAynī (n 32) vol 6 317. 131 ibid. He references this example to the author of al-Ajnās. Note that expiation is due for intentionally breaking one’s fast during Ramadan without a legal excuse and takes the form of freeing a slave, or additional fasting, or feeding the poor. 132 See for example: ibid vol 5 478. Here the jurist mentions that intercourse between a woman and a boy ordinarily desired for intercourse obligates ghusl (ritual bathing) on the adult female and makes her permissible for her first husband following a divorce. 133 Shaykhī Zādeh (n 48) vol 1 485.
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Whatever the exact threshold is, it is clear that rape of minor girls who are ordinarily desired for intercourse is zinā while the rape of minors not meeting the standard is a discretionary crime. For intercourse with minor girls that is considered zinā, Ḥanafī jurists do not make any exception to concepts such as privacy and slander to allow for easier prosecution or to obtain a remedy for the girl. However, the exclusion of minors from criminal liability, even where they consent, suggests that jurists put their minds to protecting minors who are not fully cognizant of their actions from unwarranted punishment. In light of this, the lack of concern over the impact of rape on young girls suggests once again that jurists did not envision intercourse as harmful in and of itself, but rather as a moral transgression against the limits set by God.
The Mālikī conception of the rape of minor girls is similar to that of the Ḥanafīs except that Mālikī jurists use the term “a girl with whom penetration is (not) possible (saghīra (lā) yumkinu waṭʾuhā)” and clearly define the difference between the categories. Intercourse with minor females with whom penetration is possible is zinā, whereas intercourse with girls with whom penetration is not possible is not.134 For Mālikīs, this concept relates to the male party’s ability to penetrate the girl. Thus, the Mālikī jurist al-Kharshī mentions that ‘a girl with whom penetration is possible’ refers to “the one who penetrates her even if others cannot (ay li’l-wāṭiʾ lahā wa in lam yumkin li ghayrih).”135 As such, the term appears to include minor girls who can fully bear intercourse, as well as girls who are not entirely capable of intercourse but whom certain men can penetrate, such as an adolescent male whose own sexual organ is small.
In contrast, Shāfiʿī texts do not distinguish between minor girls with whom one may or may not have intercourse. Rather, an orifice (farj) is naturally desired (mushtahan tabʿan) if the genus (jins) is naturally desired; the age or characteristics of specific members of that class are irrelevant. Since human females are generally desired by males, the orifice of any female is naturally desired and included in the definition of zinā, “even a girl who is one day old (wa law bint yawm)”.136
As a result, illicit intercourse with a female of any age is zinā. This eliminates ambiguities over the different classes of minor females and evidentiary issues that may arise regarding whether a girl is capable of intercourse, or a man’s ability to have sexual relations with her. However, the
134 Al-Dardīr, al-Sharḥ al-Kabīr (n 77) vol 4 314; al-Kharshī (n 32) vol 8 76. 135 Al-Kharshī (n 32) vol 8 76. 136 Al-Bayjūrī (n 102) vol 4 169; Abū Bakr al-Dimyāṭī, Iʿānat al-Ṭālibīn ʿalā Ḥall Alfāẓ Fatḥ al-Muʿīn (Dār al-Fikr 1997) vol 4 162 [mentions the one-day old].
59 clarity comes at the cost of subjecting all rape cases involving minor female victims to the stringent ḥadd evidentiary requirements that seek to maintain the privacy of the moral violation.
Nonetheless, the Shāfiʿīs are consistent across genders in this area, such that it cannot be said that they are singling out young girls over boys for sexualization. A woman’s intercourse with a male child, even a boy who is one day old, likewise comes under zinā since the genus of males is desirable to females.137 The concept of a day-old or of any child being naturally desired is a legal construct that impacts the scope of liability to zinā rather than an encouragement to view children in a sexual manner. The Shāfiʿī recourse to genus for categorizing offences against minors is a rare instance of gender neutrality in the laws of zinā. In contrast, the other schools restrict their discussion of natural desire and their categorization of minors to girls and discuss all males from a different perspective that will be explored shortly.
Male Victims and Female Aggressors
According to a recent American study, approximately 9% of rape and sexual assault victims are men. Further, contrary to stereotypes that that men are exclusively the aggressors of sexual violence, 46% of male victims were victimized by women.138 Moreover, some of these males are victims of non-consensual vaginal-penile penetration rather than other forms of sexual assault.139 Overlooking male victims and female perpetrators of rape, even in many contemporary discussions, seems to be a holdover of historical attitudes towards sex and gender roles rather than the actual absence of such situations.140
137 Al-Dimyāṭī (n 136) vol 4 162. 138 Karen G Weiss, ‘Male Sexual Victimization: Examining Men’s Experiences of Rape and Sexual Assault’ (2010) 12(3) Men and Masculinities 280, 284. 139 Rape is defined in the Weiss study as completed forced vaginal, anal or oral penetration. It is unclear what percentage of male victims were victims of rape, as opposed to another form of sexual assault, and how many cases of rape constituted forced vaginal intercourse. Other studies have placed the male victimization rate for rape, defined more narrowly as penile-vaginal intercourse through the use of force or threat, at 3.3%, 2.8% and 5.2%: Barbara Krahé, Renate Scheinberger-Olig and Steffen Bieneck, ‘Men’s Reports of Nonconsensual Sexual Interactions With Women: Prevalence and Impact’ (2003) 32(2) Archives of Sexual Behaviour 172. 140 An article written from a German perspective states: “Men have only recently been recognized as targets of sexual aggression. For a long time, legal definitions of rape and sexual assault contained explicit restrictions to female victims, rendering male targets of sexual aggression nonexistent in the criminal justice system.” See: Krahé et al (n 139) 165. For similar discussion regarding the United Kingdom, see Michelle Lowe and Paul Rogers, ‘The scope of male rape: A selective review of research, policy and practice’ (2017) 35 Aggression and Violent Behavior 38.
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Although Muslim jurists of all schools discuss male victims of rape, here in the meaning of coerced vaginal-penile penetration (anal penetration will be considered separately later in this chapter), the discussion varies somewhat from the prototypical female victim. In Islamic jurisprudence, coerced vaginal intercourse with male victims come under the rules of zinā according to all schools, such that the main issue here is not whether zinā includes penile-vaginal rape of males. Instead, the debate is whether male victims can raise a defense of coercion that excuses them from punishment for zinā or whether males are unconditionally liable to the ḥadd for participation in illicit intercourse, provided the elements of the offence are fulfilled. In other words, is illicit intercourse with a non-willing male treated as consensual zinā, or is it coerced zinā which exonerates the non- willing party from criminal liability?
The conception of male victims is heavily influenced by gendered distinctions, and both presumed gender roles and biological differences are invoked to support various presumptions. From a contemporary standpoint, the result is highly prejudicial to male victims whose victimhood is not recognized by the law in certain situations and curtailed in others. In some cases, it also leads to the incoherent legal treatment of female aggressors whose conduct runs contrary to the sexual role assigned to them.
2.1 Males as Victims of Coerced Zinā
Legal treatises typically consider the coercion of males by third-party aggressors, also presumed to be male, rather than by females. For example, Zayd coerces Amr into having intercourse with Fatima. The female may also be coerced, or she may be consenting.141 However, Fatima’s coercion of Amr is rarely contemplated. It is within the context of third-party male aggression that jurists determine whether males can raise a defense of coercion for zinā, and if so, any restrictions on their claim. The framing of the discussion itself, which sees male coercion as originating from another male rather than a female aggressor, provides an initial window into the gendered assumptions of jurists in rape cases.142
141 Given that the female may be a co-conspirator with the third-party rather than a victim, the term “coerced rapist”, used by Syed to describe the coerced male, should be treated with caution: Syed (n 11). 142 Interestingly, the assumption that third party aggressors are male conflicts with the claim made in a case before the sharīʿa court in Ottoman Aleppo. The female complainant testified that she was raped by her male cousin while a female accomplice held the complainant on the floor and put a handkerchief in her mouth. The case was dismissed
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Given that jurists approach the legitimacy of a male’s defense of coercion for rape in the context of third-party male aggression, the discussion in this subsection likewise focuses on this context. Although this will answer the question of whether and how the law recognizes male victims of rape generally, it will not address whether jurists were willing to transfer these rules to cases of female aggression against males. The latter situation will be considered separately in the following subsection.
For jurists of all schools, allowing a defense of coercion for males in the context of zinā is controversial. Male sexual anatomy, the rights of the woman’s husband or master, and broader notions of male and female sexual roles made jurists reluctant to accept that males can be coerced into intercourse. Although all jurists in the timeframe under study allow males to raise a defense of coercion, earlier dissenting voices continue to be reported in each school and the scope of the defense is highly restricted in Mālikī jurisprudence. Further, even where jurists accept the male’s claim of coercion, he may be liable for the dower, relieving him of the corporal penalty for zinā but treating him as the perpetrator for the financial consequences of the act.
For example, among Ḥanafīs, jurists report disagreement over the applicability of coercion to males in zinā among the founding figures of the school. While Abū Yūsuf and al-Shaybānī accept the defense of coercion, Abū Ḥanīfa and Zufar reject it except if the coercer is a public official (sulṭān). According to the latter opinion, the male is liable to the ḥadd if coerced by any other person, even if threatened with death.143
Abū Ḥanīfa and Zufar invoke male anatomy as the first reason for their position, specifically erection, which only occurs by desire and which indicates willingness. They further hold that so long as the person exercising coercion is not a public official, a person can seek help from the ruler, from a group of Muslims, or defend himself. In addition, since the purpose of the ḥadd is to censure illicit sexual desire (zajr), this is moot where the public official coerces the unlawful act since the man’s submission is motivated by a desire to save himself from destruction (halāk), not to fulfill illicit sexual desire. Finally, even if the man experiences an erection when coerced by
due to the lack of witnesses. Although this differs from the type of third-party aggression considered by jurists, it indicates that alleged female accomplices to rape were not unknown in actual practice, even in Muslim courts. See: Semerdjian (n 14) 149-50. 143 Syed reports an alternate view attributed to Abū Ḥanīfa in early Ḥanafī works that coercion is never valid for males: Syed (n 11) 187. I did not find this in later works although other opinions are occasionally mentioned: see al-ʿAynī (n 32) vol 11 68 for a view he considers weak which is not attributed to any of the founders.
62 the public official, this can occur naturally and does not necessarily indicate free choice, as happens during sleep.144
Unsurprisingly, Abū Yūsuf and al-Shaybānī argue that the reasoning applicable to the public official is valid for any coercer. They further contend that their teacher’s restriction of coercion to public officials related to the circumstances of his time (ikhtilāf al-ʿaṣr wa’l-zamān).145 All later works consulted adopt the view of Abū Yūsuf and al-Shaybānī, and several mention that the fatwā is upon this opinion (ʿalayhi al-fatwā).146 Al-ʿAynī, building on the concept of differing eras, mentions the relative weakness of the ruler in later times such that his presence is insufficient to prevent people from coercing others. He further cites the existence of local powers and the lack of vigilance (ghīra) of Muslims towards Islam, such that they cannot be depended upon for aid.147
Therefore, for later Ḥanafīs both genders are entitled to raise the defense of coercion in a zinā prosecution. However, despite this basic equivalency, gendered distinctions reappear in the requirement that the coerced male pay the dower, regardless of whether the woman was willing or coerced, without any right to reimbursement from the third-party coercer.148 Thus, the rules of zinā combine with gendering to treat the male as victim for the purposes of the criminal penalty and as perpetrator for the purposes of financial compensation. The male is recognized as victim in relation to his fellow male. However, in relation to the female, he is conceptualized as a pseudo- aggressor, or at the minimum as benefitting from sexually accessing her body.
Thus, one stated reason for the requirement that the male victim pay the dower, without a right of reimbursement from the coercer, is that the benefit of penetration (manfaʿat al-waṭʾ) accrues to the man. His case is analogous to that of a starving person whose necessity permits him to eat food belonging to another without paying in advance, but who must reimburse the owner of the food the fair value of what he consumed due to the benefit he obtains.149 His case is unlike the satiated person coerced to eat who can claim the price of food from the coercer.150 However, basing the
144 Al-ʿAynī (n 32) vol 6 319, vol 11 68. 145 ibid. 146 Al-Fatāwā al-Hindiyya (n 66) vol 2 150; Shaykhī Zādeh (n 48) vol 2 436. 147 Al-ʿAynī (n 32) vol 6 319. Syed also mentions the justification of local powers for the classical period: Syed (n 11) 190. In fact, al-ʿAynī is quoting in part from an earlier source. However, the claim that the ruler becomes corrupt (fāsiq) by coercing someone else to sin, thus disqualifying him from office and the ability to implement the ḥadd, which Syed attributes to al-Karkhī (d. 340) is absent from later works: Syed (n 11) 189. 148 Al-Fatāwā al-Hindiyya (n 66) vol 5 48. 149ibid. 150 ibid.
63 situation of the male coerced into zinā on the hungry person is questionable, as he does not necessarily find pleasure in forced intercourse, nor does he obtain the benefits of marriage that accrue to a husband.
The second reason, which is mentioned by Ibn ʿĀbidīn, returns to the principle discussed in the previous chapter that no act of intercourse is devoid of both ḥadd and dower.151 Coercion voids the ḥadd for the male. Further, based on a second principle that the female follows the male in zinā, which will be explained in detail in the next subsection, the male’s coercion also voids the ḥadd for the female even if she is willing, entitling her to dower. The combination of the two principles regarding dower/ḥadd applicability and the female as follower leads to perverse results where the female is not coerced. For example, a woman who willingly conspires with a third- party to force a man to have sex with her not only avoids the ḥadd but is further entitled to the dower at the victim’s expense.152 This is one example of the inability of rape rules built on gendered notions to adequately respond to situations where one or both parties exceeds the boundaries of the gendered box assigned to them.
The position adopted by later Shāfiʿī jurists mirrors the Ḥanafī view with the exception that Shāfiʿī works do not discuss the dower liability of coerced males. While all later Shāfiʿī jurists report a difference of opinion within the school on whether coercion applies to males, all adopt the view that it does. Legal texts use terms such as ṣaḥīḥ (correct view) and aẓhar (apparent view) to describe the admissibility of a defense of coercion on the part of a male defendant in a zinā prosecution.153
Some Shāfiʿī works provide reasons for the reported disagreement over coercion of males and the preference for accepting it. One justification is textual. In discussing this dispute, al-Shirbīnī references the ḥadīth of the thirsty woman whose acquiescence to zinā in exchange for drink was accepted as coercion nullifying criminal liability by the companions.154 Although not stated explicitly, the implication seems to be that there is no equivalent textual evidence for men.
151 Ibn ʿAbidīn, Radd al-Muḥtār (n 29) vol 6 137. 152 According to al-ʿAynī (n 32) vol 6 316 Abū Ḥanīfa held the willing woman who has intercourse with a coerced man liable to the ḥadd, as he restricts the follower principle for females to situations where the male is not addressed by legal commandments, such as minors or the insane. Under this view she would not be entitled to dower. However, al-Shaybānī disagreed. All later works seem to grant the willing woman the dower and most do not mention Abū Ḥanīfa’s contrary view. 153 Al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 105; al-Ḥiṣnī (n 27) 474. 154 Al-Shirbīnī (n 28) vol 5 444.
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However, for al-Shirbīnī and other jurists who admit coercion as a defense for male zinā defendants, another ḥadīth whose general terms excuse mistakes, forgetfulness and coercion encompasses males coerced into zinā.155
The other issue is erection. Shāfiʿī works note that those who reject coercion for males contend that erection only occurs by desire (shahwa) and willfulness (ikhtiyār). However, like Abū Yūsuf and al-Shaybānī, later Shāfiʿī jurists argue that erection can be natural (ṭabīʿī) and is not necessarily representative of free choice.156 The dispute over whether erection represents willfulness, and thus whether biological differences preclude legal acceptance of a male’s defense of coercion, is a unifying thread between the schools and is an issue that persists in modern lay discourse, as some believe that erection or ejaculation indicates consent.157 While reliance on male biological differences is not necessarily a matter of ill will, equating erection with consent does not appear to have factual basis.158 However, later jurists’ acceptance of a disconnect between the two means that modern research does not invalidate later doctrines on this particular issue.
The Mālikī approach is the most restrictive for male victims, as it considers the competing sexual rights of other males to the female participant in addition to the usual issue of erection. Until the lifetime of the famous Mālikī jurist Khalīl (d. 1374 CE/776 h), most Mālikī jurists (al-akthar) were of the view that males cannot claim coercion for zinā. This is still reported as the well-attested opinion (mashhūr) by later texts even though they adopt a different view.159 Thus, al-Zurqānī (d. 1688 CE/1099 h) notes that the reason most Mālikī jurists rejected coercion for males completely is the incompatibility between the man’s erection and coercion (li anna intishārahu yunāfī ikrāhahu). However, “as for the woman, coercion attaches to her due to the absence of anything
155 ibid; al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 105. The widely-known ḥadīth states, “my nation has been relieved of (rufiʿa ʿan ummatī) mistakes (al-khaṭaʾ), forgetfulness (al-nisyān) and what they were coerced to do (wa mā ustukrihū ʿalayh). 156 ibid. 157 Weiss (n 138) 288. 158 ibid. 159 Al-Dardīr, al-Sharḥ al-Kabīr (n 77) vol 4 318; al-Dusūqī (n 29) vol 4 318; al-Kharshī (n 32) vol 8 80. Khalīl ibn Isḥāq al-Jundī was an Egyptian Mālikī jurist. Although his father was Ḥanafī, he adopted the Mālikī school of law. He is famous for his summarized text of Mālikī law, Mukhtaṣar Khalīl, which became the subject of many commentaries and glosses. Due to its popularity, Mukhtaṣar Khalīl was also studied and translated by orientalists. See: Mohammad Ben Cheneb, ‘K̲ h̲ alīl b. Isḥāk’ in P Bearman and others (eds), Encyclopaedia of Islam (2nd edn, Brill)
65 that opposes it (wa ammā al-marʾa fa yataʿallaqu bihā al-ikrāh li ʿadam mā yunāfīhi).”160 The jurists in this first group consider erection the determining factor.
However, according to Khalīl, the chosen opinion (mukhtār) is that coercion extends to males, relieving them of the ḥadd and of any discretionary punishment (adab) for zinā, as per the leading scholars (muḥaqqiqīn) of the school such as Ibn Rushd, al-Lakhmī and Ibn al-ʿArabī.161 This is the opinion adopted by all later works consulted for this study. For example, al-Dusūqī (d. 1815 CE/1230 h) mentions that the going opinion (fatwā) in his day was based on al-Lakhmī’s opinion, and it is the more obvious position from the perspective of legal reasoning (aẓhar fi’l-naẓar).162
Nonetheless, jurists restrict the chosen opinion allowing males to claim coercion to circumstances where the woman is willing (ṭāʾiʿa) and does not have a husband or master. If the woman is also coerced, or she is married or a slave, all Mālikīs reject the male’s claim of coercion and hold him liable for the ḥadd of zinā.163 As al-ʿAdwī says, his coercion in such cases is equivalent to the absence of coercion (idh ikrāhuhu ka lā ikrāh).164 Al-Ḥaṭṭāb (d. 1547 CE/954 h) aptly summarizes the situation as follows:
Whoever is threatened with death or other than this to kill a man, amputate his hand, take his property, commit zinā with his wife [or his slave or a coerced woman] or sell his goods, it is not permissible for him to do this even if he knows that if he refuses the threat will be carried out. If he does it, he is liable for retaliation and must compensate what he destroyed, and he receives the ḥadd if he committed zinā, and he will be beaten if he beat someone. Further, he is sinful.
Wa man huddida bi qatl aw ghayrihi ʿalā an yaqtula rajulan aw yaqṭaʿa yadahu aw yaʾkhudha mālahu aw yazniya bi imraʾatihi aw yabīʿa matāʿ rajul fa lā yasaʿuhu dhālika wa in ʿalima annahu in ʿaṣā waqaʿa dhālika bihi fa in faʿala fa ʿalayhi al-qawad wa gharima mā atlafa wa yuḥaddu in zanā wa yuḍrabu in ḍaraba wa yaʾtham.165
160 Al-Zurqānī (n 28) vol 8 136. Al-Zurqāni was an Egyptian Mālikī jurist. He was based in Cairo where he made a name for himself at al-Azhar as a Mālikī legal scholar. He is well-known for his commentary on Khalīl’s Mukhtaṣar. His son also went on to become a renowned Mālikī jurist who composed a commentary on the Muwaṭṭaʾ. See: Miklos Muranyi, ‘al-Zurḳānī’ in P Bearman and others (eds), Encyclopaedia of Islam (2nd edn, Brill)
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Jurists point to the fact that only God’s right is infringed when a male submits to coercion with a willing, unmarried free woman. Otherwise, interference with the sexual rights of her husband or master, or with her right over her sexual organs if she is neither a wife nor a slave, invalidates the defense of coercion. In such cases, the prohibition on zinā is absolute, just as coercion never excuses intentionally killing or cutting the limb of another person.166 Al-Dusūqī describes the non- willing woman in situations where the male is also coerced as a pitiable woman whom it is impermissible to attack, even if the man’s blood is shed (miskīnatun lā yajūzu an yaqdima ʿalayhā wa law bi safki damih).167
The prohibition on submitting to zinā when the woman is also coerced is rational insomuch as the man’s coercion should not be reason to infringe on the bodily integrity of another unwilling person. However, where the man is subjected to threats of death or amputation, the ban seems disproportional since subjecting the female to intercourse is less harmful than allowing himself to be killed or maimed, particularly as psychological trauma does not enter traditional discussions of coerced zinā and there is little concern for the female victim’s bodily integrity compared to the divine transgression. Further, where the married or slave woman is willing, it seems strange that another man’s sexual rights trump the coerced male’s right to life and bodily integrity.
Moreover, the requirement that the coerced male refuse to submit to his coercer and suffer the consequences accordingly or face legal liability for zinā, killing or cutting off another person’s limb contrasts with the leniency according to the starving person. For zinā, the man cannot commit illicit intercourse and then remedy his transgression by paying the dower after the fact. In contrast, for Mālikīs the starving person has the option of consuming normally forbidden food such as carrion and pork, but it is recommended that he instead consume lawful food owned by another person, such as sheep or crops, against a future right of reimbursement to prevent starvation, provided he only eats what is necessary to prevent starvation and thinks that the owner will believe his claim of necessity so that he will not be liable for theft.168
(fiqh). See: Mawlūd al-Sarīrī, Muʿjam al-Uṣūliyyīn Yaḥtawī ʿalā ʿUlamāʾ Uṣūl al-Fiqh wa Aṣḥāb al-Ārāʾ fīhi wa’l- Muʾallifīn fīhi (Dār al-Kutub al-ʿIlmiyya 2002) 523. 166 Al-Dusūqī (n 29) vol 2 401; al-Zurqānī (n 28) vol 4 156. 167 Al-Dusūqī (n 29) vol 4 318. 168 Abū al-Walīd al-Bājī, al-Muntaqā Sharḥ al-Muwaṭṭaʾ (Maṭbaʿa al-Saʿāda 1332h) vol 3 139-40; al-Dardīr, al-Sharḥ al-Ṣaghīr (n 34) vol 2 184
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Perhaps the difference between another person’s crops or sheep and zinā is that the item consumed, i.e. the woman’s sexuality, is not permissible to the coerced man in any circumstance, such that the rightful user, i.e. the woman’s husband or master, cannot simply be reimbursed the sale value. In contrast, a man’s coerced zinā with a willing free unmarried woman does not give rise to concerns over reimbursement since there is no rightful male user and she forfeits her own claim to compensation through her criminal conduct.
Further, in the case of a starving person who takes lawful food owned by another, Mālikī jurists are concerned about the moral hazard that the rule entails, namely, that people will falsely claim necessity to help themselves to others’ property. Thus, in the foundational Mālikī text al- Muwaṭṭaʾ, after mentioning the rules pertaining to starving people, Mālik says:
Nevertheless, I fear that some people who are not actually starving will transgress and falsely claim necessity in order to permit themselves to take other people’s property, crops and dates.
Maʿa annī akhāf an yaʿduwa ʿādin min man lam yaḍṭarra ilā al-mayta yurīd istijāzat akhdh amwāl al-nās wa zurūʿihim wa thimārihim bi dhālika bi dūn iḍṭirār.169
This same concern may be a cause of skepticism about a man’s claim of coercion. Specifically, if the man’s ability to have sex is prima facie evidence of sexual desire, legal recognition of a defense of coercion might lead to many cases of men falsely claiming coercion.
Regardless of whether his excuse of coercion is accepted, for Mālikīs, in any situation where the female is normally entitled to dower, the coerced man must pay it.170 Thus, for unmarried willing women, the coerced man is not liable to the ḥadd, on the chosen opinion, or to the dower if she is found guilty of zinā; however, if doubt precludes the ḥadd on the female, the male would pay the dower despite his coercion. However, if the man and woman are both coerced, he incurs both ḥadd and dower liability. Further, for married willing women, he is liable to the ḥadd but not to the dower if she is convicted of zinā. The result as it pertains to the female is less problematic than the Ḥanafī rule, as willing women who conspire with a third-party aggressor have no financial entitlement unless there is doubt.
169 Mālik Ibn Anas, al-Muwaṭṭaʾ in A al-Bājī, al-Muntaqā Sharḥ al-Muwaṭṭaʾ (Maṭbaʿa al-Saʿāda 1332h) vol 3 138. Translation from Mālik Ibn Anas, al-Muwaṭṭaʾ (Royal Moroccan Edition, M Fadel and C Monette eds, Harvard 2019) 392. 170 Al-Dardīr, al-Sharḥ al-Ṣaghīr (n 34) vol 4 453; al-Zurqānī (n 28) vol 8 137.
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Further, unlike the Ḥanafī school where there is no recourse against the coercer, for Mālikīs the coerced man who is liable for dower can bring a claim for reimbursement against the third-party coercer.171 Moreover, if the coerced man is insolvent, the woman takes directly from the coercer who cannot seek reimbursement from the coerced male.172 The availability of reimbursement frees the coerced male from both criminal and financial responsibility if the woman is single and willing, provided the coercer has the means to compensate.
2.2 Males Subject to Aggression from Females
Although males can raise a defense of coercion in at least some cases of third-party coercion by other males, the situation of male victims raped directly by a female aggressor is somewhat ambiguous in Islamic jurisprudence. At the root of the hesitancy to contemplate the rape of males by females is the notion of the man as the dominant party in sexual relations. As a result, males raped by females may find themselves faced with legal uncertainty despite the severity of the potential consequences for illicit sex under the rules of zinā, and at times the male and female face paradoxical legal outcomes. While all schools lack comprehensive consideration of male victims of female aggressors, the issue is most apparent in the Ḥanafī school which subscribes to a higher degree of gendered distinctions in zinā than Mālikī and Shāfiʿī jurisprudence.
Within discussions of zinā, women are usually portrayed passively. For example, for the Shāfiʿī jurist al-Bujayramī (d. 1806 CE/1221 h), “zinā is a crime against honour since the male fornicator/adulterer debases himself and the woman with whom he commits zinā (fa al-zinā jināya ʿalā al-ʿirḍ li anna al-zānī tudhamm nafsuhu wa kadhā al-maznī bihā)”.173 Whereas he describes the male with the active participle (ism fāʿil), he describes the female, despite her equal criminal liability, with the passive participle (ism mafʿūl) as the recipient of the male’s action. Further examples abound.
171 ibid. 172 Al-Ḥaṭṭāb (n 49) vol 3 518. 173 Al-Bujayramī (n 48) vol 4 168. Al-Bujayramī was a Shāfiʿī jurist who was educated at al-Azhar in Cairo. His works include the gloss included in this study as well as a commentary on al-Nawawī’s Minhāj. See: al-Mawsūʿa al- Fiqhiyya (n 35) vol 1 342.
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The passivity of females in Shāfiʿī and Mālikī discussions of zinā is unmistakable yet not emphasized. In contrast, Ḥanafī jurists stress the gender divide. As Azam notes:
For the Ḥanafī jurists, sex acts between males and females were not gender symmetrical. Rather, the male party was always considered the originator, not only of the physical act of sex, but also of the act’s legal status. The female is always regarded in Ḥanafī texts as the “follower.” While Mālikī jurists agreed with Ḥanafī jurists that males and females have different roles in sex acts, Ḥanafī jurists were concerned with upholding this gender differentiation and its associated logic, and with following its legal ramifications, with a rigor not found in the Mālikī texts.174
The high degree of gendering in the Ḥanafī discourse has important repercussions in cases of female aggressors. Among the unique Ḥanafī distinctions, the female is only called a fornicator/adulterer (zāniya – the female form of the active participle) rhetorically (majāzan) contrary to the male actor since she is the locus (maḥall al-fiʿl) rather than originator of zinā.175 This is despite the fact that the Quran uses the active form for both males and females in 24:2-3. Thus, the important Ḥanafī text al-Hidāya, in a statement approved by commentator al-ʿAynī, states:
For us [Ḥanafīs] the act of zinā materializes through the man, and she is only the locus of the act. Due to this, he is called the penetrator and adulterer/fornicator (zānī), and the woman is called the penetrated one or the one to whom zinā is done (maznī bihā), but she has been called a fornicator/adulterer (zāniya) rhetorically…
Wa lanā anna fiʿl al-zinā yataḥaqqaqu minhu wa innamā hiya maḥall al-fiʿl wa li hādhā yusammā huwa wāṭiʾan wa zāniyan wa’l-marʾa mawṭūʾa wa mazniyyan bihā illā annahā summiyat zāniya majāzan…176
This concept is tied to a related notion that the man is the default (aṣl) for zinā while the woman’s status is only derivative of his (tābiʿa lahu). This rule, accepted uniformly in Ḥanafī works, means that when there is no ḥadd on the man, there is no ḥadd on the woman since her status follows his; however, no ḥadd on the female does not automatically preclude the ḥadd on the male.177
Legal works typically list examples of this principle. Among them, the sane adult male who commits zinā with a minor girl who is ordinarily desired for intercourse or with an insane female
174 Azam, Sexual Violation (n 7) 183. 175 Unlike other Ḥanafīs, Ibn ʿĀbidīn disagrees that the woman is only called zāniya by majāz: Ibn ʿĀbidīn, Radd al- Muḥtār (n 29) vol 4 6. However, he accepts the other Ḥanafī gender distinctions for zinā and their legal implications. 176 Al-ʿAynī (n 32) vol 6 317. 177 ibid vol 6 315-16; al-Fatāwā al-Hindiyya (n 66) vol 2 150.
70 is liable for the ḥadd even though she is not. However, if a sane adult female gives herself (tamkīn) to a minor or insane male such that zinā takes place, none of the parties is liable to the ḥadd.178 In the latter case, the male party is exempt due to lack of legal capacity (taklīf). The female, as follower, is also spared the ḥadd due to the male’s impediment even if all elements of the crime of zinā are fulfilled from her side. Thus, a female sexual predator who has intercourse with a male child or a man who lacks legal capacity is not liable to the ḥadd punishment.179 Further, legal works make no mention of discretionary punishment, though they do not explicitly preclude it.
It can also be inferred from the rule regarding the female’s derivative status that all male children are treated as one class for zinā unlike female minors who are divided according to whether they are ordinarily desirable for intercourse. The reason may be largely practical. Since the male’s lack of legal capacity automatically precludes the ḥadd on women based on the principle that the woman’s status is derivative, there is no need for subdivision. In contrast, for adult male aggressors it is necessary to consider which females fulfill the definitional requirement of a vagina that is an object of sexual desire to determine when he is liable to the ḥadd. However, the female- specific division and the related discussions about intercourse with girls rather than boys indirectly serve to further emphasize females as objects, but not actors, of sexual desire.
Further, the example of an adult female’s intercourse with a male child or insane man only occurs as a mechanical illustration of the originator/follower distinction. Unlike zinā initiated by males, it does not receive further treatment elsewhere in the zinā chapter or under related topics such as coercion. The perfunctory mention leaves the impression that the jurists did not seriously contemplate this occurring in practice, at least not with any frequency. Moreover, there is no mention in Ḥanafī texts of women coercing sane adult men into intercourse. Not even the sleeping man is mentioned in Ḥanafī works. The omission is striking, even if not unexpected from the male’s status as the only true fornicator/adulterer (zānī). Given this exclusion, it is somewhat doubtful that a Ḥanafī judge would accept a claim of coercion for a legally competent man coerced by a female, in contrast to third-party coercion by other males, if such a case were to arise in practice.
178 Al-ʿAynī (n 32) vol 6 316; Shaykhī Zādeh (n 48) vol 1 596. These works also mention that Zufar, as well as Abū Yūsuf according to one narration (riwāya), rejected the principle that lack of ḥadd on the male precludes the ḥadd on the female and instead held her liable in accordance with the majority view of the other legal schools. 179 This result is the same as Azam’s observations for her time period: Azam, Sexual Violation (n 7) 184.
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The Ḥanafī originator/follower principle also gives rise to a paradox through theoretical comparison of coerced and predator women. For women coerced by a legally responsible male (mukallaf), coercion is a defense in zinā proceedings, and if unsuccessful she is liable to the ḥadd. In contrast, female predators are automatically exempt from ḥadd punishment due to the legal impediment present in the male party, on the assumption that the man can raise a defense of coercion like in situations of coercion by third parties. This counterintuitive result is further indication that for these jurists, female coercion of a sane adult male is legally impossible. Along with the highly gendered roles, the extreme rarity of zinā proceedings may also be a contributing factor to the Ḥanafī view, as rape is hardly prosecuted, much less rape situations involving female perpetrators which are statistically less prevalent.
Mālikī and Shāfiʿī jurists do not recognize the above Ḥanafī principles. In the Mālikī school, although statements on female coercers are sparse compared to males, there is significantly more consideration of female aggressors than in Ḥanafī jurisprudence. Mālikī jurists discuss women coercing sleeping men, insane men and slaves. In these cases, she receives the ḥadd. Further, they contemplate her coercion of a male child without imposition of the ḥadd.
For example, al-Kharshī states, “if a woman enters a sleeping man’s penis into her opening, she receives the ḥadd (wa law adkhalat al-marʾa dhakar nāʾim fī farjihā fa ʿalayhā al-ḥadd).”180 Further, al-Dusūqī mentions, “she is given the ḥadd if she makes herself sexually available to the insane man or enters the sleeping man’s penis into her vagina (kamā annahā tuḥaddu idhā makkanat majnūnan aw adkhlat dhakar nāʾim fī farjihā).”181 However, he adds, “…a woman entering a deceased male’s penis, other than her husband, into her vagina does not result in her receiving the ḥadd according to what appears predominant because of the lack of pleasure, just like (her having intercourse with) a male child (bi khilāf idkhāl imraʾa dhakar mayyit ghayr zawj fī farjihā fa lā tuḥaddu fīmā yaẓharu li ʿadam al-ladhdha ka’l-ṣabī).”182 Moreover, after mentioning that women receive the ḥadd for zinā with an insane man or disbeliever, al-Zurqānī states that this is “unlike the male child in which case there is no ḥadd on her for his penetration because she does not derive pleasure from him (bi khilāf al-ṣabī fa lā ḥadd ʿalayhā bi waṭʾihi li annahā lā tanāl bihi ladhdha).”183
180 Al-Kharshī (n 32) vol 8 75. 181 Al-Dusūqī (n 29) vol 4 313. 182 ibid vol 4 314. 183 Al-Zurqānī (n 28) vol 8 132.
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Although Mālikī jurists exempt the female coercer from the ḥadd when she coerces a male child, their reasons differ from the Ḥanafīs. For Mālikīs, the default is that female coercers receive the ḥadd, such as when she commits zinā with a sleeping or insane man. The male’s excuse has no effect on her. Her exemption from the ḥadd for minors is only due to lack of pleasure. This is consistent with the Mālikī view that males are only liable to zinā for intercourse with minor girls that they can penetrate since his ability to penetrate implies derivation of sexual pleasure from the act.
As for the situation of a woman coercing an adult, conscious, sane free man, this scenario appears briefly in passages on third-party coercion of males in several Mālikī works. The citation from al- Dusūqī’s gloss below is a typical example. The commentary does not mention female coercers.
The commentator said [regarding third-party coercion of males] “the chosen opinion,” meaning, according to al-Lakhmī, and it is the view of the leading scholars like Ibn al- ʿArabī and Ibn Rushd [that the male may claim coercion], as mentioned by al-Kharshī. As for his statement, “the majority take the opposite view and he is given the ḥadd”, this applies in general regardless of whether he experiences an erection or not, as mentioned by Ibn ʿArafa and al-Shāmil. The evident meaning is that he receives the ḥadd according to the majority, even if she coerced him to do zinā with her, and this how it is; however, he does not pay her the dower if she was his coercer. If someone other than her coerced him, he must pay the woman the dower, and he can claim this from the man who coerced him. The place of disagreement is where he is coerced to do zinā and she is willing and does not have a husband or master. In other cases, he receives the ḥadd by agreement given the right of the husband or master, and because she is an unfortunate woman whom he is not allowed to assault, even if his blood is shed. As for his statement “and it is the well-attested opinion”: however, the fatwā is according to what al-Lakhmī said, and it is the soundest view.
Qāla al-shāriḥ (qawluhu: wa’l-mukhtār) ay ʿinda al-Lakhmī wa huwa madhhab al- muḥaqqiqīn ka Ibn al-ʿArabī wa Ibn Rushd kamā fī khā shin. (Qawluhu: wa’l-akthar ʿalā khilāfihi wa annahu yuḥaddu) ay muṭlaqan sawāʾ intashara am lā kamā fī Ibn ʿArafa wa’l- Shāmil wa ẓāhiruhu annahu yuḥaddu ʿalā qawl al-akthar wa law kānat hiya al-mukriha lahu ʿalā al-zinā bihā wa huwa kadhālik illā annahu lā ṣadāq lahā ʿalayhi idhā kānat hiya al-mukriha lahu wa in akrahahu ghayruhā gharima lahā al-ṣadāq wa rajaʿa bihi ʿalā mukrihihi wa maḥall al-khilāf idhā akrahahu ʿalā al-zinā bihā wa kānat ṭāʾiʿa wa lā zawj lahā wa lā sayyid wa illā ḥudda ittifāqan naẓaran li ḥaqq al-zawj wa’l-sayyid wa li annahā miskīna lā yajūzu an yaqdama ʿalayhā wa law bi safki damihi. (Qawluhu: wa huwa al- mashhūr) ay lakin alladhī bihi al-fatwā mā qālahu al-Lakhmī wa huwa al-aẓhar fī al- naẓar.184
184 Al-Dusūqī (n 29) vol 4 318 [emphasis added]. For another example, see al-ʿAdwī (n 41) vol 8 80.
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Although most of the passage parses the views on male-on-male coercion, the fact that a female can coerce a male is contemplated. However, this mention is tempered by the conditional particle law which implies that the jurist considered it unlikely to occur in practice. It appears that the female coercer here is party to the act of zinā rather than a third-party female coercing the male to have intercourse with another woman. Although this latter situation is absent from Mālikī texts, the tentative acceptance of direct female coercers in this and similar passages also opens the possibility that jurists might extend the rules of third-party coercion to coercers of both genders.
From this citation, according to the well-attested view of the majority, if the coercer is female, the male victim receives the ḥadd. Since the well-attested opinion is that men can never claim coercion in zinā, his punishment is not related to the coercer’s gender, but rather the inapplicability of coercion to males. However, unlike coercion by a third-party, here the coerced male has no obligation to pay the dower since the woman wilfully engaged in zinā and is thus liable to the ḥadd.
Nevertheless, later jurists who favour the chosen opinion do not mention how female coercers fit into this view, meaning that there is also ambiguity in Mālikī doctrines despite some consideration of coercion by women. Since the chosen opinion only exempts males coerced by a third-party if the female is willing, free and unmarried, literal application to female coercers would mean that a married female coercer’s victim would be liable to the ḥadd because of the right of her husband, despite her being the cause of his misfortune. It is possible that the principle of juristic preference (istiḥsān) would apply to exempt the male victim in this case from the general rule so that he is spared the ḥadd.
Aside from the above case, there is little mention of female coercion of adult, sane males in Mālikī texts. A rare example occurs when discussing expiation (kaffāra) due from a man who coerces a female, such as his wife or a female slave, to have intercourse during the daylight hours of Ramadan when sexual intercourse is proscribed:
As for the opposite, which is if the wife or female slave coerces her husband or master to penetrate her, or a female coerces an unrelated male (ajnabī) to penetrate her, the free female coercer does not do the expiation on his behalf according to what is apparent because his erection removes him from the domain of coercion…
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Wa ammā ʿaks dhālika wa huwa law akrahat zawja aw ama zawjahā aw sayyidahā ʿalā al-waṭʾ aw ajnabiyya ajnabiyyan ʿalā waṭʾihā lam tukaffir al-ḥurra al-mukriha ʿanhu niyābatan fīmā yaẓhar li anna intishārahu yukhrijuhu ʿan al-ikrāh…185
Here the possibility of female sexual aggression, as well as the accompanying legal ruling for broken fasts (though not the ḥadd of zinā), is clearly contemplated. However, the male’s defense of coercion is rejected based on his erection, a position consistent with the well-attested view on male coercion. Hence, unlike the obligation on the male who coerces a fasting woman to complete the expiation for her broken fast on her behalf, the female coercer is not under an equivalent obligation to fulfill the expiation for the male’s broken fast.186
Even though these jurists accept the chosen view for male coercion, they do not mention it here. This omission, as well as the failure to explain the applicability of the chosen opinion in the previous citation, give the impression that jurists only envisioned the chosen view as applying to male-on-male coercion rather than female-male coercion. In other words, it may be tentatively inferred that the acceptance of the male’s defense of coercion in third-party situations, where it was already restricted, does not extend to female-led coercion.
Mālikī texts include one final example of female coercion in the context of the starving person who cannot find anything to prevent starvation except from someone who demands intercourse in return. Although this example most commonly applies to starving women (see chapter 3), some Mālikī jurists consider its application to starving males. Thus, al-Dusūqī, after mentioning the standard ruling that applies to women, continues:
The implied rule derived from specifying a [starving] woman is that if a man does not find anything to stave off starvation except by committing zinā with a woman who will give him sustenance, he cannot claim this in view of his erection… The truth, however, is that this is permissible provided that she is willing and she has neither a husband nor a master…
Wa mafhūm al-marʾa anna al-rajul idhā lam yajid mā yasuddu ramaqahu illā an yazniya bi imraʾa ṭuʿṭīhi ma yasuddu fa laysa lahu dhālika naẓaran li intishārihi… Wa’l-ḥaqq al- jawāz idhā kānat ṭāʾiʿa wa lā mālik li buḍʿihā min zawj aw sayyid…187
In contrast, al-Zurqānī only mentions the apparent view that he cannot engage in zinā:
185 Al-Zurqānī (n 28) vol 2 371 [emphasis added]. Also see al-ʿAdwī (n 41) vol 2 255 for a nearly identical statement. 186 ibid. The contrast is presented most succinctly by al-ʿAdwī. 187 Al-Dusūqī (n 29) vol 2 369.
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The implied rule derived from specifying a [starving] woman is that if a man does not find anything to stave off starvation except by committing zinā with a woman who will give him sustenance, he cannot claim this in view of his erection, and this is the apparent view.
Wa mafhūm al-marʾa anna al-rajul idhā lam yajid mā yasuddu ramaqahu illā an yazniya bi imraʾa ṭuʿṭīhi ma yasuddu fa laysa lahu dhālika naẓaran li intishārihi wa huwa al- ẓāhir.188
Al-Dusūqī’s opinion that allows the male to commit illicit intercourse with a female to avoid death extends the chosen view for third-party coercion of males to female-led coercion. On the other hand, al-Zurqānī’s statement is consistent with the inference that Mālikī jurists do not accept a legal defense of coercion for males when the aggressor is female, despite allowing it within certain boundaries when the coercer is male. As such, the situation of legally competent males coerced into zinā by females in the Mālikī school is somewhat tenuous.
Like Mālikīs, Shāfiʿī jurists contemplate female aggression and do not recognize the Ḥanafī originator/follower principle. Although discussion again focuses on male coercers, some statements mention women coercing sleeping or insane males and receiving the ḥadd for zinā. Further, unlike the other schools Shāfiʿī jurists hold female coercers liable for the ḥadd for intercourse with male children. However, comments on adult sane men are scarce and ambiguous.
For example, al-Shirbīnī and al-Sharawānī state, “if a mature, sane woman gives herself to an insane male or an adolescent or enters the penis of a sleeping man into herself, she receives the ḥadd (wa law makkanat mukallafa majnūnan aw murāhiqan aw istadkhalat dhakar nāʾim ḥuddat).”189 Further, another jurist mentions that “if a legally responsible male penetrates a minor girl’s vagina with his penis, even a one-day old girl, he is given the ḥadd. Likewise, the legally responsible female who enters a boy’s penis, even if he is one-day old, into her vagina receives the ḥadd (fa law awlaja mukallaf dhakarahu fī farj ṣaghīra wa law bint yawm fa innahu yuḥaddu kamā anna al-marʾa al-mukallafa law adkhalat dhakar ṣabī wa law ibn yawm fī farjihā fa innahā tuḥaddu).”190
There are two reasons for the Shāfiʿī equality between men and women who have intercourse with minors of the opposite gender. First, the lack of originator/follower distinction means that females
188 Al-Zurqānī (n 28) vol 4 155. 189 Al-Sharawānī (n 57) vol 9 107; al-Shirbīnī (n 28) vol 5 446. Both texts contain identical statements. 190 Al-Dimyāṭī (n 136) vol 4 162. Also see al-Bujayramī (n 48) vol 4 168.
76 are independently responsible for their acts. Second, as discussed earlier in this chapter, Shāfiʿī jurists abstain from dividing children into categories for zinā, instead holding that all humans of the opposite gender form a class (jins) that is naturally desirable. As a result, adult perpetrators are uniformly accountable under the laws of zinā regardless of the age or gender of the victim.
As for women coercing legally responsible men, several works mention that “if she climbs over him until she causes his penis to penetrate her vagina while he is able to repel her, both of them receive the ḥadd (idhā ʿalat ʿalayhi ḥattā adkhalat ḥashatafahu fī farjihā wa tamakkana min dafʿihā wajaba al-ḥadd ʿalayhima).”191 Although such statements contemplate the female taking on an active role in intercourse, the consensual nature of the act is ambiguous. It is not clear whether the male is willing and does not wish to repel her advances, or whether he is acquiescing under some form of coercion insufficient to negate the ḥadd.
The only other type of female sexual coercion encountered in Shāfiʿī texts is her enabling intercourse with a monkey.192 This is mentioned briefly along with other types of sexual advances not liable to the ḥadd, such as a man placing his penis on an unrelated woman’s thigh (mufākhada) and lesbian frotting (siḥāq). Coercion of starving men does not occur in Shāfiʿī texts despite their consideration of starving women. Thus, it is unclear whether Shāfiʿī acknowledgement of female coercion within zinā extends to coercion of adult males who are conscious and sane. This hesitation is consistent with the other schools who either completely omit or do not significantly contemplate a woman’s sexual aggression against mature males possessing full legal capacity.
The passive portrayal of women in zinā in all schools is consistent with broader conceptions of gender in marriage and family relations, but contrasts with active, even aggressive, roles accorded to females elsewhere. For example, except for a minority of Ḥanafī jurists, the schools accept the possibility of female bandits (quṭṭāʿ al-ṭarīq), a role that requires strength to overpower others.193 Further, Shāfiʿīs, who allow the master to implement the ḥadd of zinā on his slave, also grant this power of severe corporal punishment to female slave owners (here she is not a participant in the
191 Al-Bujayramī (n 48) vol 4 168. Also see for example: Nūr al-Dīn al-Shabrāmallasī, Ḥāshiyat al-Shabrāmallasī in M al-Ramlī, N al-Shabrāmallasī and A al-Rashīdī, Nihāyat al-Muḥtāj ilā Sharḥ al-Minhāj wa maʿahu Ḥāshiyat al- Shabrāmallasī wa Ḥāshiya al-Maghribī al-Rashīdī (Dār al-Fikr 1984) vol 7 422. 192 Al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 104. 193 Ibn ʿAbidīn, Radd al-Muḥtār (n 29) vol 4 117; al-Shirbīnī (n 28) vol 5 498; al-Zurqānī (n 28) vol 8 190.
77 sexual act).194 While sexual authority may differ from brute strength, their juxtaposition nonetheless creates a degree of tension in the female persona envisioned by jurists.
Spousal Rape
The conflation of rape with consensual zinā, which causes rape to take on the same moral framework as fornication and adultery, leaves most women and many girls without legal recourse in cases of rape outside of the marital context. Further, the gendered discourse creates additional barriers for coerced men. This section turns to the marital relationship where the law creates a different twist on these dilemmas for spouses coerced to have intercourse with their partners.
The main issue here is whether there is any crime or recourse at all. That the husband or wife’s non-consensual intercourse with his/her partner is not zinā is clear from the definition of the offence. Whereas marriage creates a licit relationship, zinā requires that penetration take place absent a licit relationship between the parties. The idea of sex as a transgression against God has no application in an area where God has permitted intimacy. Yet, the idea of rights is still pertinent. As jurists conceive of intercourse within marriage as the husband’s right and the woman’s obligation, this rights-based discourse influences legal outcomes regarding forced marital intercourse.
Although this issue is independent from zinā in the sense that the offence itself does not apply, the basic act of non-consensual intercourse is identical. Further, jurists’ recourse to gendered notions that affect male victims in zinā also impact the legal rules surrounding coercive marital intercourse. However, the impact of gendered notions is inversed: whereas the attribution of sexual dominance to males and sexual passivity to females places female rape victims in an advantageous position compared to their male counterparts, for unwanted sex within marriage where women are expected to submit, it often disadvantages the female who in some cases may be obliged to submit against her will.
194 Al-Shirbīnī (n 28) vol 5 455. There are differing opinions on this issue within the school, but al-Shirbīnī mentions that this position is the soundest (aṣaḥḥ).
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Coerced intercourse between spouses in Islamic law has received little attention in academic writings. Kecia Ali’s studies on marriage and slavery mention certain aspects of marital rape as they pertain to her broader focus, but she does not discuss it in depth.195 For her part, Azam notes:
A second topic that I have chosen not to pursue in this study is that of marital rape. In part, this is due to the way that traditional jurisprudence handled non-consensual relations within marriage, which is do [sic] say, not really at all. In the minds of the jurists, sexual rights were the single most important thing a husband acquired upon marrying a woman, and so the possibility that a husband was violating or committing a crime against his wife by sexually coercing her simply did not arise.196
While Azam is broadly correct, situations of spousal coercion are clearly contemplated by jurists even if they are not considered an offence. Examining them sheds further light on coercive intercourse within Islamic jurisprudence beyond situations where it is considered zinā. As expected from the greater attention given to coercion of females in zinā and the locus of power within the marital relationship, discussion of coercion by husbands is lengthier than coercion by wives, each of which will be considered in turn below. The focus here remains on coercive vaginal-penile intercourse; non-consensual anal intercourse between strangers as well as spouses will be considered separately at the end of this chapter.
3.1 Coercion of Wives
Legal discourse related to the wife’s marital obligations towards her husband is key to understanding the positions of the schools in this area. Whereas Ḥanafī discussion of the woman’s sexual availability occurs in the context of spousal maintenance (nafaqa), the corresponding Mālikī and Shāfiʿī discourse is situated within the broader topic of disobedience (nushūz). Legal works from all schools also contain comments on spousal coercion and sexual entitlement in miscellaneous chapters that provide additional windows into this topic. Unsurprisingly, due to the husband’s sexual rights over his wife, there are limited remedies available to women coerced into intercourse by their partners in any school. However, the leeway granted to the husband to have sex against his wife’s wishes by Ḥanafī jurists is particularly striking. This could be due to their
195 See for example Ali, Sexual Ethics (n 11) 12. 196 Azam, Sexual Violation (n 7) 19.
79 framing of the subject in relation to maintenance, and/or a general tendency by jurists in this school to attribute a high level of sexual passivity to women, as previously observed in the rules of zinā.
For Ḥanafīs, the wife’s right to maintenance (nafaqa) hinges solely on her surrendering herself in her husband’s house. Al-ʿAynī, quoting al-Hidāya, states that “maintenance for the wife is obligatory on her husband, whether or not she is Muslim, if she surrenders herself in his house (al- nafaqa wājiba li’l-zawja ʿalā zawjihā muslima kānat aw kāfira idhā aslamat nafsahā fī manzilihi).”197 Likewise, Ḥanafī texts often state that “maintenance is compensation for confinement (al-nafaqa jazāʾ al-iḥtibās).”198 “In brief, the woman only has to surrender herself in his house, and he must provide everything she needs (wa’l-ḥāṣil anna al-marʾa laysa ʿalayhā illā taslīm nafsihā fi baytihi wa ʿalayhi jamīʿ mā yakfīhā)”.199
Since the sole duty of the wife is surrendering herself in her husband’s house, the only cause of wifely disobedience (nushūz) is her leaving his house without right. Although the husband also has a right over his wife to intercourse, her refusal to submit does not make her disobedient since her physical availability in the husband’s home means he can still have intercourse with her. The husband’s ability to penetrate her against her will (kurhan) is mentioned explicitly in many Ḥanafī texts, with two examples cited below.200 Although there is clearly an element of non-consent, it is unclear if these jurists are envisioning physical coercion or something along the lines of reluctant intercourse.
He was asked about a woman who prevents her husband from penetrating her after he paid her the immediate portion of the dower and took her to the marital home. Is she disobedient or not? He answered that this is not disobedience and he can penetrate her against her will.
Suʾila ʿan al-marʾa idhā manaʿat zawjahā min waṭʾihā baʿda mā dafaʿa lahā muʿajjal al- ṣadāq wa dakhala bihā hal takūn nushūzan am lā? Ajāba lā yakūn dhālika nushūzan wa lahu waṭʾuhā kurhan ʿalayhā wa Allāh aʿlam.201
[Disobedience] was restricted to leaving [the house] because if she remains with him in his house and does not enable him to penetrate her, she is not disobedient. This is because it
197 Al-ʿAynī (n 32) vol 5 659. 198 ibid vol 5 660; Shaykhī Zādeh (n 48) vol 1 485. 199 Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 4 194; Shaykhī Zādeh (n 48) vol 1 487. 200 Judith Tucker also mentions a Ḥanafī fatwā by a muftī in Ottoman-era Palestine, currently only available in manuscript form, allowing a husband to rape his wife if she refuses intercourse: Tucker (n 40) 44. While this is broadly consistent with the sources in this study, I am not sure of the original Arabic wording of the manuscript, which could add nuance to the English rendering. 201 Zayn al-Dīn Ibn Nujaym, Fatāwā Ibn Nujaym (M Al-Shāghūl ed, al-Maktaba al-Azhariyya li’l Turāth 2008) 20.
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is apparent that the husband can obtain what he wants from her, as evidenced from the fact that the virgin is not penetrated except against her will.
Wa qayyada bi’l-khurūj li annahā law kānat muqīmatan maʿahu fī manzilihi wa lam tumakkinhu min al-waṭʾ fa innahā lā takūn nāshiza li anna al-ẓāhir anna al-zawj yaqdiru ʿalā taḥṣīl al-maqṣūd minhā bi dalīl anna al-bikr lā tūṭaʾ illā kurhan.202
From this second statement, in addition to the idea that the wife’s physical availability in the home is sufficient for the husband to exercise his right to intercourse, it seems that allowing husbands to have intercourse with their non-consenting wives is a continuation of the notion that certain types of women need to be pressured into intercourse.203
It is possible that these statements constitute justification of a pre-existing rule limiting disobedience to leaving the house rather than encouragement to engage in such conduct. It is also possible that rather than encouraging husbands to do this, jurists are attempting to block them from denying their wives maintenance by signalling that even if she refuses intercourse, he cannot withhold payment from her. Nonetheless, even if the reasoning promotes the woman’s right from one perspective, the law allows husbands who override their wife’s non-consent to escape punishment.204
Some Ḥanafī texts also consider the case of women who work outside the home (al-muḥtarifāt). For jurists who rigidly apply the general principle, such women who are not home during the day are not entitled to maintenance since their surrender (taslīm) is deficient (nāqiṣ).205 However, others take a more pragmatic approach. For example, al-Ḥaṣkafī (d. 1677 CE/1088 h) and Ibn ʿĀbidīn agree that rigid application is questionable (fīhi naẓar) provided the husband does not object to her weaving or other outside work.206 However, the condition of the husband’s permission still indicates the importance placed on a woman’s sexual availability to the husband.
202 Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 4 195. 203 Other Ḥanafī texts also mention the need for penetrating the virgin against her will, such as Shaykhī Zādeh (n 48) vol 1 489. 204 Kecia Ali states that Ḥanafī thinkers recognized forced intercourse by the husband as unethical yet licit in contrast to usual sexual relations that are both ethical and licit: Ali, Sexual Ethics (n 11) 12. While I would not be surprised to find this distinction outside the legal genre, I did not encounter it in legal texts. 205 Al-Ḥaṣkafī (n 78) vol 3 577; Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 3 577-78. 206 ibid. Al-Ḥaṣkafī is a well-known Ḥanafī jurist. Although his name refers to a place in Iraq, Ḥaṣn Kifā, he was born and later passed away in Damascus. He is the author of several works and was also heavily involved in teaching. See: al-Sarīrī (n 165) 490.
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Further, despite being labelled as reciprocal rights, the husband’s right to the wife’s body seems to take priority over her right to maintenance. While the husband can refuse to pay maintenance if the wife leaves his house without excuse, the wife has no equivalent right to refuse intercourse or leave the home if her husband does not pay maintenance. Judicial intervention ordering the husband to pay is available only in certain situations, such as the well-off husband (ṣāḥib māʾida) whose harm to the wife from failure to pay is apparent.207 Further, there is no judicial separation for his inability to pay on the basis that separation nullifies his right to the wife’s surrender entirely whereas the (presumed) temporary lack of payment only delays her financial right.208
Ḥanafī texts commonly contemplate one situation where the wife can refuse intercourse without the husband being entitled to obtain it against her will. If a newlywed husband has not paid the immediate dower, the woman can decline intercourse without loss of maintenance provided consummation has not taken place or if it took place by the husband coercing her.209 If intercourse was by consent (bi riḍāhā), there are differing views on whether she can rightfully refuse his subsequent advances.210
It is noteworthy that jurists do not contemplate any criminal or tortious consequences for the financially delinquent husband who consummates by coercion. The only result is that the woman does not lose her right to rebuff subsequent advances. Even if the man’s conduct is improper, it is protected since it falls within the bounds of the marriage contract, within which jurists require that the female to be available to satisfy her husband’s sexual needs. In contrast, a woman who refuses to move cities with her husband not only loses her maintenance, but also receives discretionary punishment to induce her to abandon disobedience (maʿṣiya).211
Another relevant case concerns a married woman harmed by her husband’s frequent intercourse. He is not allowed to increase beyond what she is capable of bearing, as determined by a judge.212 Ibn ʿĀbidīn mentions that the judge must accept her oath regarding what she can bear since this information is not known to anybody except her.213 Thus, the wife has legal recourse in situations
207 Al-Fatāwā al-Hindiyya (n 66) vol 1 547. Orders against less well-off husbands do not require this high standard. 208 Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 4 200. 209 Al-ʿAynī (n 32) vol 5 665; Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 3 574. 210 ibid. 211 Khayr al-Dīn al-Ramlī, al-Fatāwā al-Khayriyya li Nafʿ al-Bariyya ʿalā Madhhab Abī Ḥanīfa al-Nuʿmān (Maṭbaʿa Būlāq 1300h) vol 1 77. 212 Al-Ḥaṣkafī (n 78) vol 3 203. 213 Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 3 203.
82 of frequent intercourse beyond her capability, but anything within her capacity she must bear as a spousal duty. Further, it is unclear what remedy is available to the wife if the husband exceeds the judicially imposed bounds.
Finally, Ḥanafī books contain statements regarding spousal coercion in the context of Ramadan and hajj when intercourse is forbidden. One scenario concerns a husband who coerces his fasting wife who is sleeping or insane to have intercourse. After briefly considering the issues of make- up fasts (qaḍāʾ) and expiation (kaffāra), the subject of interest in legal texts is not why a husband would coerce his unconscious or mentally deficient wife or any consequences for doing so, but rather how an insane woman could be fasting.214 This laissez-faire attitude towards his conduct also holds true for statements regarding sexual coercion of wives who are in the sacred state for pilgrimage (iḥrām).215
Overall, Ḥanafīs not only decline to sanction a husband’s sexual coercion of his wife but present some form of compulsion as ordinary if the wife refuses his advances. The man is entitled to sex when he wishes and the woman’s duty is to provide it by remaining available at home. While legal texts stop short of encouraging intercourse against the woman’s will, there is no indication that it falls within the category of disliked actions (karāha). Absent permanent physical harm, the husband’s coercion does not constitute legally actionable conduct.
The Mālikī approach differs substantially. Regarding spousal duties, Mālikīs define the wife’s disobedience (nushūz) as “leaving obligatory obedience” (al-khurūj min al-ṭāʾa al-wājiba). This includes leaving the home without permission, but it also includes refusing sexual intercourse or other sexual enjoyment (istimtāʿ) and leaving the rights of God such as prayer (ṣalāh).216 Thus, the wife’s denial of sexual advances or intercourse is independent from her physical presence in the house.
If a wife refuses intercourse, there is generally no suggestion that the husband should force her to have sexual relations, aside from limited exceptions that will come below. Rather, Mālikī texts enjoin the husband to implement the three-step solution in Quran 4:34 for any kind of disobedience. As such, the husband should verbally admonish his wife, and if she still refuses, he
214 Al-ʿAynī (n 32) vol 4 111-12. 215 ibid vol 4 349; al-Fatāwā al-Hindiyya (n 66) vol 1 205. 216 Al-Dardīr, al-Sharḥ al-Kabīr (n 77) vol 2 343.
83 should boycott her in bed. As a last resort, he can hit her in a non-violent manner, with jurists conditioning this on his belief that physical correction will be beneficial in resolving the situation.217
Further, a unique feature of Mālikī sections on disobedience by the wife is that a large portion focuses on the wife’s remedies for harm caused by the husband. While a detailed discussion of intervention by judges and arbitrators is beyond the scope of this study, a few points are noteworthy. First, if the husband is harming his wife, she can bring the matter to the judge (ḥākim) who has jurisdiction to remove the wife from the marital home pending an investigation, as well as jurisdiction to admonish the husband and punish him if he does not cease his behaviour and to order judicially-imposed divorce (ṭalāq).218 Harm in this context is defined as an action that is not legally permissible, such as insulting her or anally penetrating her.219 Since vaginal penetration in marriage is allowed, this would not fall under the category of harm even if non-consensual. The only exception, mentioned elsewhere in legal texts, is where the high frequency of intercourse causes harm in which case she should make herself available as much as she is able.220
Second, a wife’s complaint that is not substantiated by evidence of harm can still result in a judicial pronouncement of female-initiated divorce (khulʿ).221 The Ḥanafī objection to judicial separation nullifying the husband’s right to enjoy his wife’s body has no place in Mālikī texts. Even though this outcome is not intended to sanction the husband’s action, as the wife rather than the husband bears the financial consequences of the divorce, she has the option of leaving the marriage.
However, in the following situation Mālikī jurists explicitly permit the husband to have intercourse with his wife by coercion:
If the fool (safīh) [a person under legal interdiction due to inability to manage his wealth], slave or wife are ordered not to enter the sacred state for pilgrimage, but they act contrary to this and enter it, they are sinful for not doing what they were ordered. The husband can have intercourse with his wife, even by coercion, and the sin is on her and not on him due to her transgression over his right. His intention in having intercourse with her is that she exits the sacred state for pilgrimage, and the husband’s intention suffices for her even if she did not intend to exit the sacred state for pilgrimage…
217 ibid. 218 ibid vol 2 343-45. 219 ibid vol 2 345. 220 Al-Ḥaṭṭāb (n 49) vol 4 11. 221 Al-Dardīr, al-Sharḥ al-Kabīr (n 77) vol 2 345.
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Yaʿnī anna al-safīh wa’l-ʿabd wa’l-zawja idhā umirū bi ʿadam al-iḥrām fa khālafū wa aḥramū fa inna al-ithm ʿalayhim li ʿadam qabūlihim mā umirū bihi wa li’l-zawj an yubāshira zawjatahu wa law mukrahatan wa’l-ithm ʿalayhā dūnahu li taʿaddīhā ʿalā ḥaqqihi wa yanwī bi mubāsharatihā al-taḥlīl wa yakfī niyyat al-zawj ʿanhā wa in lam yanwi taḥallulahā bi’l-mubāshara…222
This citation emphasizes intercourse as the husband’s right. However, the encouragement to forcefully act on this right seems to be restricted to circumstances where the wife voluntarily and without the husband’s consent enters a state that places legal obstacles on his sexual access. This would likely also encompass her voluntary fasting without his permission.
Further, if the wife refuses to bathe after menstruation, the husband can have intercourse if he forces her (akrahahā) to bathe, even if she lacks the requisite intention for purification.223 This issue arises from the rule in Islamic jurisprudence that sexual intercourse following menstruation is not permitted until the woman bathes. Although there is no mention of the intercourse itself being forced, once again the husband’s right to sexual enjoyment is apparent, as is her inability to manipulate legal rules to block his sexual access (though the woman’s own obligations towards God, which also require bathing, would prevent any sustained period of manipulation here provided she is in the habit of discharging her personal religious duties).
A husband can also seek judgment against his wife obligating intercourse. While some Mālikīs hold that judgment should be given for him to have intercourse four times each day and four times each night with his wife, others opine that he should be granted four times total during the day and night.224 In contrast, a wife who brings such an action gets judgment for once every three nights according to the most generous opinion and only once every menstrual cycle according to the most restrictive view.225 Again, the extent of the husband’s rights over his wife’s body is apparent.
Nonetheless, certain situations require men to exercise sexual restraint. Thus, a man who has intercourse with his wife or female slave who is temporarily forbidden for him due to impediments such as menstruation, being in the sacred state for pilgrimage or being in pious seclusion (iʿtikāf) receives discretionary punishment.226 His general spousal right is insufficient to protect him from
222 Al-Kharshī (n 32) vol 2 395. 223 Al-Ḥaṭṭāb (n 49) vol 1 373. 224 ibid vol 4 11. 225 ibid. 226 Al-Zurqānī (n 28) vol 8 134.
85 punishment for breaking the situational prohibition. It seems that assuming the state for pilgrimage and entering seclusion here are with his permission contrary to the situation that came above.
Further, for an unmarried man who fears zinā yet does not have enough wealth to pay maintenance, Mālikī jurists dispute whether it is obligatory to marry even if he resorts to illicit money or fails to maintain her, or whether he must leave both zinā and marriage until he can support himself and his wife lawfully.227 For some jurists, illegal money or harm from non-payment of maintenance is the lesser of the two evils, just like the woman who commits zinā to avoid starvation (see chapter 3 regarding the starving woman’s zinā). For others, he is legally bound and fully capable of leaving zinā as well as marriage until he can afford maintenance. The second view places the responsibility on the man to control his sexual urges. In contrast, the first opinion presents the male sexual drive as unruly, allowing other legal rules to be broken even at the woman’s expense so that he can have intercourse. Further, by allowing the man to violate other rules to avoid zinā, it prioritizes divine boundaries regarding intimacy over issues such as the woman’s claim to maintenance, similar to the precedence accorded to God’s rights in non-spousal rape.
Tension runs through the Mālikī position on coercion of wives generally. On one hand, the separation between the woman’s presence at home and refusal of sexual advances combined with the three-step solution for disobedience typically avoids suggestions that the man should force himself on her. In fact, if he coerces her, his deviation from the procedural rules of proper discipline could create grounds for judicially imposed divorce (ṭalāq). On the other hand, the man’s sexual right is powerful: her refusal, absent impediments such as menstruation or sickness, is always disobedience, judgment can be given against her for intercourse up to eight times per day, and in select circumstances jurists approve of the man obtaining his right forcefully.
Finally, for Shāfiʿīs, the husband has four rights over his wife: obedience to him, living with him in goodness (muʿāsharatuhu bi’l maʿrūf), surrendering herself to him (taslīm nafsihā ilayh), and living in his house.228 Disobedience (nushūz) occurs in many ways, such as a normally pleasant wife adopting a sour demeanor towards him, leaving his house without permission or excuse, or refusing intercourse or other forms of sexual enjoyment (istimtāʿ) without excuse.229 Excuses include sickness, menstruation and the husband being dishevelled and filthy.
227 Al-Dardīr, al-Sharḥ al-Kabīr (n 77) vol 2 214-15. 228 Al-Bujayramī (n 48) vol 3 474. 229 ibid vol 3 474, 477; al-Khaṭīb (n 20) vol 3 474, 477.
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Therefore, as with Mālikīs, refusal of sexual activity is a separate matter from presence at home. Further, the husband should adopt the same three-step solution to remedy the matter: admonish her, boycott her in bed, and finally physically discipline her in a non-violent manner on condition that he believes that this will bring about benefit.230
Shāfiʿī jurists discuss the husband’s admonition in some detail. Among his warnings, he should remind his wife of the ḥadīth regarding the angels who curse a woman until morning if she boycotts her husband’s bed.231 By placing this statement on the husband’s tongue, jurists use the woman’s sense of guilt to convince her to submit to intercourse or other sexual advances and incorporate moral discourse into what is otherwise a discussion of rights owed to humans. However, as in the Mālikī school, there is no suggestion in Shāfiʿī works of jurisprudence (fiqh) that he should forcefully have intercourse with her if she still refuses.
Nonetheless, one fatwā contains the following view:
Ruling: Sulaymān ibn Yaḥyā ibn ʿUmar al-Ahdal said that a woman is not deserving of maintenance except if there is full sexual availability. If she prevents [him from sexually enjoying her] and she is a minor, her guardian disciplines her. If she is of full age, the judge disciplines her with what he sees fit, even if this means tying her up in her husband’s house so that he can enjoy her.
Masʾala: Qāla al-sayyid Sulaymān bin Yaḥyā bin ʿUmar al-Ahdal: lā tastaḥiqq al-zawja al-nafaqa illā bi’l-tamkīn al-tāmm wa idhā imtanaʿat wa kānat ṣaghīra fa ʿalā waliyyihā ḍabṭuhā aw kāmila fa ʿalā al-ḥākim al-sharʿī ḍabṭuhā bi mā yarāhu ḍābiṭan lahā wa law bi rabṭihā fī bayt al-zawj li yastamtiʿa bihā.232
While this jurisconsult does not suggest the husband should do this unilaterally, he may be able to obtain judicial permission to forcefully have intercourse with his wife. However, the use of the conditional law indicates that this is a hyperbolic suggestion regarding the form of judicial discipline. Further, even if taken at face value, this appears to be a solitary opinion that is not found in other texts of this era and contradicts the usual three-step approach to any type of disobedience.
If the husband has not paid the immediate dower, Shāfiʿī jurists grant the wife the right to refuse intercourse in some situations. Specifically, if she has made herself sexually available yet he
230 Al-Bujayramī (n 48) vol 3 474-77; al-Khaṭīb (n 20) vol 3 474-77. 231 Al-Khaṭīb (n 20) vol 3 474-75. 232 Al-Ahdal (n 105) vol 3 149.
87 neither consummates the marriage nor hands over the dower, or if he penetrated her by coercion, she can refuse intercourse.233 She can also obtain judicial divorce (faskh) if she chooses.234
However, unlike Ḥanafīs, Shāfiʿī jurists unanimously state that she cannot refuse intercourse if she consummated willingly despite his non-payment of the dower. Further, whereas Ḥanafīs do not require that the wife make herself sexually available until the dower is paid, for Shāfiʿīs she must initially make herself available and can only refuse if he neither penetrates her nor pays the dower.235 Therefore, a Shāfiʿī wife will normally engage in intercourse willingly by initially making herself available even if the dower is outstanding, such that she cannot subsequently refuse without being considered disobedient. Thus, the one scenario where jurists grant sexual autonomy to wives is extremely circumscribed in favour of the husband’s sexual rights.
Shāfiʿī texts also include references to the husband coercing his wife to have intercourse during the daylight hours of Ramadan or while in the sacred state for pilgrimage, but only in relation to the rulings on make-up worship (qaḍāʾ) and expiation (kaffāra or fidya).236 Further, Shāfiʿī jurists briefly mention the ruling on legal non-virginity (iḥṣān) when the man penetrates his new wife in her sleep.237
Lastly, Shāfiʿīs accept the husband breaking various situational prohibitions on intercourse if he fears zinā. For example, the husband and wife must cleanse their genitalia, and lack of water does not make intercourse allowable if they are unable to do so. However, if the husband fears zinā, he is allowed to penetrate her (yajūz al-waṭʾ) and she is required to make herself sexually available to him.238 Similarly, if she is menstruating, he can have intercourse with her if he fears zinā since this is the lesser of the two evils.239 These uncontested allowances go further than similar Mālikī cases and allow the male sexual drive to override other legal rules.
Overall, Shāfiʿī texts require the wife’s sexual submission while instructing the husband to resolve her non-compliance through means other than coerced intercourse. However, where coercion takes places, the wife does not have any remedy except in the restricted context of a newlywed
233 Al-Shirbīnī (n 28) vol 4 372. 234 Al-Dimyāṭī (n 136) vol 4 100. 235 Al-Shirbīnī (n 28) vol 4 372. 236 ibid vol 2 179; al-Ramlī, Nihāyat al-Muḥtāj (n 64) vol 3 341. 237 Al-Bayjūrī (n 102) vol 2 430. 238 Al-Bujayramī (n 48) vol 1 314. 239 Al-Shabrāmallasī (n 191) vol 1 331.
88 who has not received her dower. Further, jurists grant significant recognition to the husband’s sexual desires at the expense of other rules. Although Shāfiʿī discourse does not fully mirror Mālikī doctrines, coerced intercourse with the wife generally sits uneasily with these two schools despite accepting its legality and occasionally endorsing it. This contrasts with the Ḥanafīs who present some form of compulsion as a natural extension of spousal rights and obligations.
3.2 Coercion of Husbands
The conception of the male as the dominant player in intercourse generally, as well as the notion of intercourse within marriage as the husband’s right, means that statements contemplating a wife’s coercion of her husband are rare. Before turning to these sparse statements, it is helpful to consider the rights of the wife to intercourse. In legal texts, the wife’s rights do not include intercourse. For example, Ḥanafīs commonly state that she has the right to be housed separately from the husband’s family members and that he cannot prevent her from visiting her parents once per week.240 This emphasis on housing rights is consistent with the school’s stress on the woman’s parallel obligation to remain available to her husband inside the home. Shāfiʿīs typically mention that the wife has a right to good companionship (muʿāsharatuhā bi’l maʿrūf), food (muʾna), dower, and equal division of his time between co-wives (qasm).241
Although the wife does not have a general right to intercourse, Ḥanafīs and Mālikīs grant her a restricted right to occasional intercourse. Thus, the Ḥanafī jurist Ibn ʿĀbidīn states:
Know that leaving intercourse with her completely is not permissible. Our fellow jurists stated that having intercourse with her sometimes is a religious obligation, but it is not an enforceable judicial matter except for the first penetration and there is no specific time set. It is obligatory that it not reach the time period of the oath of abstention (īlāʾ) [the husband’s oath that he will not have intercourse which his wife, which can result in divorce after four months] except if she freely agrees to this. In al-Nahr it is stated that this makes it clear that intercourse is his right after the first time and not her right. However, I say that this is open to debate. Rather, it is his right and her right too since it is a religious obligation… If she asked for it [intercourse], it is obligatory on him and he is forced by judicial judgment once [to consummate], and anything beyond this is a religious obligation, not a judicial matter, though some said he is obligated by court order.
240 Al-ʿAynī (n 32) vol 5 681; Shaykhī Zādeh (n 48) vol 1 493. Likewise she can visit other relatives (maḥārim) once per month. 241 Al-Bujayramī (n 48) vol 3 474.
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Wa iʿlam anna tark jimāʿihā muṭlaqan lā yaḥillu lahu, ṣarraḥa aṣḥābunā bi anna jimāʿahā aḥyānan wājib diyānatan lakin lā yadkhulu taḥta al-qaḍāʾ wa’l-ilzām illā al-waṭʾ al-ūlā wa lam yuqaddirū fīhi mudda. Wa yajib an lā yablugha bihi muddat al-īlāʾ illā bi riḍāhā wa ṭīb nafsihā bihi. Qāla fī al-Nahr: fī hādhā al-kalām taṣrīḥ bi anna al-jimāʿ baʿda al- marra ḥaqquhu lā ḥaqquhā. Qultu: fīhi naẓar bal huwa ḥaqquhu wa ḥaqquhā ayḍan li mā ʿalimta min annahu wājib diyānatan. […] Wa idhā ṭālabathu yajib ʿalayhi wa yujbaru ʿalayhi fī al-ḥukm marratan wa’l-ziyāda tajib diyānatan lā fī al-ḥukm wa ʿinda baʿḍihim tajib ʿalayhi fī al-ḥukm.242
As such, Ḥanafī wives have a right to occasional intercourse that is dependent on the husband’s voluntary compliance with his religious duties.243 The Mālikīs take a similar view regarding the husband’s sporadic obligation to have intercourse with his wife, with the difference that they recognize judicial enforcement beyond consummation. Al-Kharshī states:
Equal division between co-wives is not obligatory for intercourse. Rather, if he calls her to him [for intercourse], he goes to her according what his nature requires and there is no objection if he is in the mood for intercourse on the day of one wife and not another except if he leaves intercourse completely with one of his wives spitefully, as this is not permissible and if it happens it is obligatory on him to stop abstaining.
Yaʿnī anna al-qasm lā yajibu fī al-waṭʾ bayn al-zawjayn bal man daʿathu nafsuhu ilayhā atāhā ʿalā mā taqtaḍīhi sajiyyatuhu wa lā ḥaraj ʿalayhi an yanshaṭa li’l-jimāʿ fī yawm hādhihi dūn yawm al-ukhrā Allāhumma illā an yatruka al-zawj waṭʾ wāhida min zawjātihi ḍararan bihā fa innahu lā yajūzu lahu wa yajib ʿalayhi ḥīnaʾidh tark al-kaff.244
Thus, Mālikī jurists enjoin the husband to have intercourse with his wife at least occasionally. As for judicial enforcement, al-Ḥaṭṭāb mentions:
In al-Tawdīḥ, if a man brings a complaint against her regarding intercourse, then according to al-Ṭirāz from al-Mushāwir, judgment is given for him four times at night and four times during the day… [According to others] he is given judgment for four times during the day and night. […]
As for the opposite ruling, in al-Mudawwana whoever engages in endless worship and leaves intercourse, he is not to be prevented from his devotion and it was said to him either have intercourse or divorce your wife. Ibn Nājī said that there is no clarity in al- Mudawwana regarding what ruling is given to the wife over her husband if he does not have intercourse, and what seems preponderant to me is that she is given judgment for every four nights since he can marry four women. Shaykh Abū al-Ḥasan said that Abū ʿUmar said that there is disagreement regarding the minimum amount of intercourse in judgments against men. Some said one out of every four nights based on the fact that he can marry four women, and [another] said one out of every three nights based on God’s
242 Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 3 202. 243 Also see for example Shaykhī Zādeh (n 48) vol 1 373. 244 Al-Kharshī (n 32) vol 4 3.
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statement “for the man is the share of two women” (4:11), and ʿUmar ruled once during every cycle of purity [from menstruation]…
Qāla fī al-Tawḍīḥ: wa law khāṣamahā al-rajul fī al-jimāʿ fa fī al-Ṭirāz ʿan al-Mushāwir yuqḍā lahu ʿalayhā bi arbaʿ marrāt fī al-layla wa arbaʿ fī al-yawm wa naqalahu ṣāḥib al- Mufīd ʿan ʿAbd Allāh bin al-Zubayr wa nuqila ʿan al-Mughīra annahu yufraḍu lahu arabaʿ marrāt fī al-yawm wa’l-layla. […]
Ammā ʿaks al-masʾala fa qāla fī al-Mudawwana: wa man sarmada al-ʿibāda wa taraka al-waṭʾ lam yunha ʿan tabattulihi wa qīla lahu: immā waṭiʾta aw fāraqta. Qāla Ibn Nājī: laysa fī al-Mudawwana jalāʾ mā alladhī yuqḍā li’l-zawja ʿalā al-zawj in huwa lam yaṭaʾ? Wa’l-ladhī yaghlibu ʿalā ẓannī annī waqaftu ʿalā annhu yaqḍī lahā bi layla min arbaʿ li anna lahu an yatazawwja arbaʿan. Wa qāla al-shaykh Abū al-Ḥasan: qāla Abū ʿUmar: in ukhtulifa fī aqall mā yuqḍā bihi ʿalā al-rajul min al-waṭʾ fa qāla baʿḍuhum: layla min arabaʿ akhadhahu min anna li’l-rajul an yatazawwaja arbaʿan min al-nisāʾ wa’l-ladhī qāla: layla min thalāth akhadhahu min qawlihi “li’l-dhakar mithl ḥaẓẓ al-unthayayn” (al- Nisāʾ:11) wa qaḍā ʿUmar bi marra fī al-ṭuhr…245
Further, al-Ḥaṭṭāb mentions separately:
A woman’s claim for intercourse before a judge does not contradict praiseworthy modesty nor the commended sense of honour since the intended object is [within] marriage. If she contracted [marriage] with him, everyone knows that it is contracted for that purpose, such that if there are difficulties it is permissible to demand it from a religious point of view and from the perspective of honourable conduct.
Ṭalab al-marʾa al-waṭʾ ʿinda al-ḥākim lā yunāqiḍ al-ḥayāʾ al-mamdūḥ wa lā al-murūʾa al-mustaḥsana li annahu maqṣūd al-nikāḥ. Fa idhā ʿaqadathu ʿalima al-kull annahu lahu fa idhā taʿadhhara jāza ṭalabuhu dīnan wa ḥusn murūʾa.246
As such, even though the wife’s claim for intercourse is restricted compared to the husband, that limited right is legally enforceable for Mālikīs and there is no shame upon her for seeking judicial enforcement.
In contrast, Shāfiʿī texts do not mention intercourse as a female right, even in a restricted sense. Rather, intercourse is presented as a purely male right with the female’s rights limited to financial matters and companionship. As al-Ramlī states, “intercourse is his right and money is her right (al-buḍʿ ḥaqquhu wa’l-māl ḥaqquhā).”247 While the wife can seek judicial enforcement of rights
245 Al-Ḥaṭṭāb (n 49) vol 4 11. The text of al-Mudawwana (a foundational Mālikī text) that al-Ḥaṭṭāb paraphrases is even more explicit regarding judicial enforcement. See: Mālik Ibn Anas, al-Mudawwana al-Kubrā, Riwāyat Saḥnūn (Dār al-Kutub al-ʿIlmiyya 1994) vol 2 191. 246 Al-Ḥaṭṭāb (n 49) vol 4 11. 247 Al-Ramlī, Nihāyat al-Muḥtāj (n 64) vol 6 392. He mentions matters such as equal division of time elsewhere in this work.
91 such as equal division of time (qasm) and maintenance, there is no mention of her seeking redress for his lack of intercourse.248
Unlike the male right to intercourse which comes under wifely disobedience (nushūz), the wife’s limited right, for the schools that recognize it, is normally discussed in the section on equal division of time between co-wives. Thus, whereas the husband can exercise the powers granted to him in situations of disobedience to obtain intercourse, meaning admonition, boycotting and (conditional) physical discipline, or compel her in some fashion if he is Ḥanafī, the wife has no legally sanctioned self-help option to obtain intercourse from her recalcitrant husband. Instead, she must rely on her husband’s religious sense of duty, or if she is Mālikī she can seek judicial intervention.
Further, there is a stark contrast between the husband’s nearly absolute right to intercourse, absent impediments such as menstruation or physical harm to his wife, with the wife’s circumscribed right. For example, unlike the Mālikī ruling granting the husband four or eight acts of intercourse each day, rulings in favour of women are very restricted in comparison. Moreover, other allowances for men, such as overriding situational prohibitions for married men who fear zinā, have no counterpart for wives.
Overall, there is minimal contemplation that wives, who are conceived as sexually passive, may also desire intercourse with their husbands, and what modest recognition exists has little or no mechanism for enforcement. Although women benefit from more lenient rules than males for claims of coercion outside of marriage, married men are granted extraordinary leeway to exercise their sexual appetite within the marriage bond where the sexually submissive female must legally yield to his advances in most situations.
However, works from all schools contain a small number of references to wives coercing their husbands within the contexts of intercourse in Ramadan or while the man is unconscious. One Ḥanafī example is as follows:
In Fatāwā Samarqand, if a woman coerces her husband [in Ramadan] such that she has intercourse with him while he is coerced, expiation is obligatory on him because intercourse does not occur except by pleasure and erection and this is evidence of his choice. However, the sound opinion is that expiation is not necessary and this is the opinion of the two [students, Abū Yūsuf and al-Shaybānī] and the fatwā is based upon this view.
248 ibid vol 6 391.
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As for the situation where he coerces her, there is agreement that there is no expiation due from her.
Wa fī Fatāwā Samarqand wa in akrahat al-marʾa zawjahā fa jāmaʿahā mukrahan tajib al- kaffāra ʿalayhi li anna al-jimāʿ lā yutaṣawwar illā bi’l-ladhdha wa’l-intishār wa dhālika dalīl al-ikhtiyār lakinna al-ṣaḥīḥ annahā lā tajib wa huwa qawluhumā wa ʿalayhi al-fatwā wa law akrahahā huwa fa lā kaffāra ʿalayhā ijmāʿan.249
The issue of the man’s erection, which Abū Ḥanīfa takes as evidence of lack of coercion for all third parties except the ruler, carries over to coercion by spouses. Thus, for the founding father, based on the concept of erection equalling willingness, there is therefore no such thing as a wife truly coercing her husband although his two students and later fatwās disagree.
As previously mentioned, the Mālikīs discuss a similar case involving sexual coercion by females, including spouses:
As for the opposite, which is if the wife or female slave coerces her husband or master to penetrate her, or a female coerces an unrelated male (ajnabī) to penetrate her, the free female coercer does not do the expiation on his behalf according to what is apparent because his erection removes him from the domain of coercion…250
Wa ammā ʿaks dhālika wa huwa law akrahat zawja aw ama zawjahā aw sayyidahā ʿalā al-waṭʾ aw ajnabiyya ajnabiyyan ʿalā waṭʾihā lam tukaffir al-ḥurra al-mukraha ʿanhu niyābatan fīmā yaẓharu li anna intishārahu yukhrijuhu ʿan al-ikrāh…
Further, Shāfiʿīs mention that “the wife entering the man’s penis [into herself] while he is sleeping or him entering his penis into her while she is sleeping is sufficient to produce the status of non- virginity (iḥṣān) for the sleeping party (wa lā yaḍurr idkhāl al-marʾa ḥashafat al-rajul wa huwa nāʾim aw ikdkhāluhu ḥashafatahu fīhā wa hiya nāʾima fa yaḥṣul al-iḥṣān li’l-nāʾim).”251
These cases are mentioned matter-of-factly to illustrate rulings regarding matters such as expiation and the conditions of non-virginity. Although they demonstrate that a wife’s coercion of her husband crossed jurists’ minds, there is no further commentary on the female coercer. It seems that jurists treated the idea of a wife coercing her husband, the sexually dominant partner and main owner of the right to intercourse, as a theoretical scenario for the sake of elaborating on other topics rather than something likely to occur in practice. If this situation were to occur, it appears that for Ḥanafīs who consider obedience as physical presence at home, such a woman would not
249 Shaykhī Zādeh (n 48) vol 1 240. 250 Al-Zurqānī (n 28) vol 2 371. Also see al-ʿAdwī (n 41) vol 2 255 for a nearly identical statement. 251 Al-Bayjūrī (n 102) vol 2 430.
93 be guilty of disobedience. However, for Shāfiʿīs and Mālikīs, forcing herself on her husband could contravene her spousal obligations, such as providing good companionship, and render her liable to discipline from her spouse.
Anal Intercourse
Having established the legal conception of various forms of coercive penile-vaginal penetration, this final section examines rape in the meaning of coercive anal intercourse. For anal intercourse outside of a licit relationship, whether between two males or between a male and a female, the main point of contention is whether the act comes under the laws of zinā or whether it is a discretionary offence (taʿzīr). Given the differences between the evidentiary rules of zinā and discretionary offences, this disagreement has significant consequences for consensual partners as well as victims of anal rape. Within licit a relationship, which is excluded from zinā by definition, jurists from all schools consider the matter a discretionary offence.
While the primary concern is whether anal intercourse outside of a licit relationship comes within the scope of zinā, the discussion also exemplifies aspects of the gendered discourse on rape. For anal intercourse, the gendering is mainly implicit. Jurists assume throughout their discussion, which will be examined in detail below, that the aggressor is male where the act occurs outside of a licit relationship, or that the husband anally penetrates his wife. There is no consideration of female perpetrators forcing anal sex on a male, though unlike vaginal penetration this may be due to an actual dearth of real-life cases rather than gender bias. However, there is some mention in contemporary studies of women raping men anally by penetrating them with an object.252 Although anal penetration by objects is not the act under consideration here, nonetheless it is noteworthy that jurists never discuss females engaging in such conduct even though they discuss male aggressors sexually assaulting women with objects (see chapter 5).
Non-consensual anal intercourse, i.e. rape in its anal form, has certain unique considerations compared to coerced vaginal intercourse. In particular, the anal nature of the act affects entitlement to dower and may also vitiate the availability of the defense of coercion. The first subsection below discusses the legal categorization of anal intercourse, which is relevant to both consensual
252 Weiss (n 138) 295 [in particular, see footnote 7].
94 and coerced situations, while matters specific to coercive anal penetration are considered in the following subsection.
4.1 Anal Intercourse as Zinā
In the Ḥanafī school, there is early disagreement on whether the scope of zinā extends to anal violations, with Abū Ḥanīfa declaring anal intercourse outside of a licit relationship a discretionary offence and his two disciples, Abū Yūsuf and al-Shaybānī, considering it zinā. Whereas the latter reasoned that the man’s fulfillment of his desire in a desired locus (maḥall) places the act within the meaning of zinā, Abū Ḥanīfa held that the difference of opinion among the companions (ṣaḥāba – the generation that lived with the Prophet Muḥammad) on the classification of this act and the lack of mixing of lineage or the loss of a child (iḍāʿat al-walad) preclude its categorization under the ḥadd offence of zinā.253 The issues of metaphorically losing or killing a child and of the mixing of lineage are important concepts in Ḥanafī texts that will recur in the gendered standards of coercion (chapter 3).
All later works examined for this study adopt Abū Ḥanīfa’s view as the correct (ṣaḥīḥ) opinion.254 Thus, the definition of zinā in Ḥanafī works is restricted to penetration in the vagina, and anal intercourse, whether between two males or a male and a female, is a discretionary offence rather than a set crime constituting a claim of God. Without the stringent evidentiary standards of zinā, the higher probability of conviction is advantageous for victims, as is the inapplicability of slander.255 Perhaps the only disadvantage of this classification is the inapplicability of dower in cases of doubt, as dower claims are not incorporated into discretionary crimes and there is no concept of civil claims for compensation for coerced intercourse absent physical injury.256
253 Shaykhī Zādeh (n 48) vol 1 595-96. Also see Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 5 17-18. Note that Abū Ḥanīfa did not consider anal penetration of a male slave as zinā, despite the absence of a licit relationship, in contrast to Mālikī and Shāfiʿī jurists who hold that the laws of zinā apply: Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 5 18. 254 See for example Shaykhī Zādeh (n 48) vol 1 596. 255 By definition, slander is inapplicable to anal intercourse when it is classified as a discretionary crime since slander pertains only to false accusations of zinā. However, the lack of slander liability is also mentioned explicitly by some Ḥanafī jurists: see for example Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 5 18. 256 ibid. The jurist mentions many matters applicable to vaginal intercourse that are not applicable to anal intercourse, such as dower, making a divorcee permissible for her first husband (taḥallul) and revoking a divorce (rajʿa).
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However, the classification of anal intercourse as a discretionary crime does not imply that Ḥanafī jurists take the offence lightly. For example, Ibn Nujaym states that although there is no ḥadd punishment due to the lack of evidence for including anal intercourse in the set crimes, the prohibition on anal intercourse is even stronger (ashadd) than zinā due to it being prohibited by the intellect (ʿaql), the law (sharʿ) and nature (ṭabʿ) simultaneously whereas zinā is not proscribed by people’s innate nature.257 Thus, it is not surprising that Ḥanafī texts advocate for jailing the convict until he dies or repents (some add after giving him corporal punishment), and for executing the habitual offender regardless of whether he is a legal virgin or non-virgin.258 These harsh punishments would likely have a similar deterrent effect to those accompanying zinā, but where the crime occurs, the more attainable evidentiary standards increase the probability of conviction so that offenders will not be free to victimize further people.
In contrast, Mālikī texts consider anal intercourse between a male and female outside of a licit relationship as pure zinā. Thus, standard Mālikī definitions of zinā mention penetration in an orifice (farj), which includes both the vagina and anus.259 As zinā, the punishment for heterosexual anal intercourse is 100 lashes for the virgin and stoning for the non-virgin and all other rulings for zinā, such as the evidentiary burdens, the threat of slander and rules of dower, apply.260 This means that victims of coerced anal intercourse face the same obstacles as victims of coerced vaginal intercourse, provided the case is proceeding as zinā rather than under the unique Mālikī concept of usurpation (chapter 4).
Mālikī jurists also consider homosexual anal intercourse subject to the laws of zinā with one modification to the punishment. For example, all commentaries on Khalīl consider penetration outside a licit relationship as zinā “even if it is male-on-male anal penetration (wa in liwāṭan).”261 In Mālikī usage, the word “liwāṭ” is restricted to the male-on-male act in contrast to heterosexual penetration, whether vaginal or anal, which is simply zinā, with the meaning of the two terms, i.e.
257 ibid. He is quoting from Sharḥ al-Mashāriq. In further support of this argument, he also mentions that whereas the ḥadd of zinā constitutes purification from sin according to some jurists, the punishment for anal intercourse does not, such that the punishment is effectively harsher (taghlīẓ ʿalā al-fāʿil). 258 Al-ʿAynī (n 32) vol 6 308; al-Fatāwā al-Hindiyya (n 66) vol 2 150. 259 Al-Kharshī (n 32) vol 8 75. 260 ibid vol 8 76. The jurist mentions the punishment explicitly since this differs from homosexual anal intercourse. The application of the other rulings, such as evidentiary burdens, is understood from the fact that this act is zinā. However, according to the gloss, Saḥnūn restricted the dower to vaginal penetration: al-ʿAdwī (n 41) vol 8 76. 261 See for example: al-Kharshī (n 32) vol 8 76
96 zinā and liwāṭ, often contrasted explicitly in juristic treatises.262 While male-on-male offences follows the standard rules for zinā in evidentiary matters, including testimonial burdens and slander for unproven accusations, the punishment is death by stoning for both the virgin and non- virgin.263
Later Mālikī texts do not explain the basis for the modified punishment. Likewise, it is unclear why they are so keen to differentiate homosexual anal intercourse (liwāṭ) from the heterosexual act (zinā full stop) through explicitly contrasting them even though both follow the laws of zinā with one change for male-on-male penetration which would rarely apply in practice due to the evidentiary burdens. While the division based on the gender of the victim fits generally with the gendered rape discourse, it is unclear if sexual gender roles are the basis for the distinction or if there is another reason, such as the fact that male-on-male anal intercourse comes in the Quran under the story of Lot (“Lūṭ” in Arabic, from which the word liwāṭ is derived) whereas heterosexual anal intercourse does not.
Shāfiʿī jurists likewise treat anal penetration outside of a licit relationship as zinā, but without the distinction between heterosexual and homosexual acts. Both take the rulings of zinā and both are called by the same term in legal texts, namely liwāṭ. Thus, jurists make statements such as, “[penetrating] the anus of the male or female is like [penetrating the female’s] vagina according to the school’s opinion (wa dubur dhakar wa unthā ka qubul ʿalā al-madhhab)” and “it [liwāṭ] is penetration by the circumcised part of the penis or its equivalent length, into a male’s anus, even the anus of his male slave, or a female’s anus other than his wife or female slave (wa huwa īlāj al- ḥashafa aw qadrihā fī dubur dhakar wa law ʿabdihi aw unthā ghayr zawjatihi wa amatihi).”264 As such, Shāfiʿī definitions of zinā commonly mention an orifice (farj) rather than specifying the
262 ibid. Al-ʿAdwī (n 41) vol 8 76 mentions that Ibn al-Qaṣṣār considered both heterosexual anal intercourse liwāt, with the implication that the same punishment applies to both. However, all later jurists seem to differentiate between these two acts. 263 Al-Dardīr, al-Sharḥ al-Kabīr (n 77) vol 4 320-21; al-Dusūqī (n 29) vol 4 320-21 [punishment]; Muḥammad al- Gharnāṭī, al-Tāj wa’l Iklīl li Mukhtaṣar Khalīl (Dār al-Kutub al-ʿIlmiyya 1994) vol 8 401 [slander]; al-Kharshī (n 32) vol 7 198-99 [testimony]. The man whose anus is penetrated does not receive the ḥadd penalty if the penetrating male is not a legally accountable individual (mukallaf), even if he was willing. In contrast, if the penetrator is legally accountable, he receives the ḥadd punishment even if he penetrates a boy under the age of majority: al-Dardīr, al- Sharḥ al-Kabīr (n 77) vol 4 320-21; al-Dusūqī (n 29) vol 4 320-21. Also note that the punishment for slaves who do this act is death by stoning, not half the punishment of free persons as in regular zinā: al-Kharshī (n 32) vol 8 82. 264 Al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 103 [quote is from the base text (matn)]; al-Khaṭīb (n 20) vol 4 176.
97 vagina.265 Therefore, in terms of the legal classification and terminology applied to the act, gendered distinctions do not apply.
However, while the elements of the offence and the rules of evidence applicable to illicit vaginal intercourse also apply here, jurists modify the punishments. Although the person who penetrates (fāʿil) receives the same punishment as for illicit vaginal intercourse, namely 100 lashes and banishment for the legal virgin and death by stoning for the non-virgin, the male or female whose anus is penetrated (mafʿūl bihi) is only subject to 100 lashes and banishment regardless of virginity.266 This is because anal penetration never produces legal non-virginity (al-dubur lā yutṣawwar fīhi iḥṣān).267 This has no practical effect in non-consensual cases involving coercion of the penetrated party; however, if the penetrated person is the coercer, he or she would be subject to less severe punishment than for vaginal zinā under this modification.
Within a licit relationship, jurists from all schools agree that anal penetration is impermissible but is not zinā. This flows from the definition of zinā which requires penetration outside of a licit relationship. Instead, this act may be subject to discretionary punishment in some situations. Ḥanafī and Mālikī texts routinely state that the husband (or slave master) receives discretionary punishment for engaging in this act.268 Shāfiʿī jurists also mention discretionary punishment, but only if the man repeats the act; if he does this once only, he is excused from punishment. For example, a Shāfiʿī fatwā states:
Anally penetrating the wife is not zinā or liwāṭ; rather, it is a minor sin. The one who does this is not acting immorally unless he repeats it and his good deeds are not overwhelmed by his bad. He does not receive discretionary punishment unless the imam forbids him.
Laysa ityān al-ḥalīla fī duburihā bi zinā wa lā liwāṭ bal huwa ṣaghīra lā yafsuq murtakibuhu illā in takarrara minhu wa lam taghlib ṭāʿātahu maʿāsīhi wa lā yuʿazzar ʿalayhi illā in nahāhu al-imām.269
265 There is some variation in Shāfiʿī texts. For example, al-Khaṭīb (n 20) vol 4 168 specifies the vagina, but al- Bujayramī’s gloss disagrees with this restriction: al-Bujayramī (n 48) vol 4 168. Nonetheless, texts that specify the vagina agree that the rulings of zinā apply to anal penetration. 266 Shāfiʿī texts narrate alternate opinions regarding punishments, such as executing the penetrator by the sword, crushing him with a wall, or throwing him off a high place, but consider them weak. See for example al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 103-04. 267 ibid vol 9 104. I presume this principle means that penetration in the anus does not cause legal non-virginity in the penetrated person, but can cause legal non-virginity for the penetrator; otherwise, if the penetrator’s virginity is also not affected, there does not seem to be any reason to only exempt the penetrated person from stoning. 268 Al-Dardīr, al-Sharḥ al-Kabīr (n 77) vol 4 314; Shaykhī Zādeh (n 48) vol 1 595. 269 Bāʿalwī (n 76) 410.
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Some Mālikī and Shāfiʿī jurists mention additional reasons for excluding this act from zinā beyond the definitional requirement of an illicit relationship. For example, the Mālikī jurists al-Dusūqī and al-Zurqānī reference an odd (shadhdh) opinion that allows anal intercourse between spouses or between a man and his female slave. This view, even though it is rejected, introduces doubt into the illicitness of the act and thus removes it from the scope of zinā.270 Further, the Shāfiʿī jurist al-Ramlī mentions that there is no ḥadd for penetrating the wife’s anus due to the doubt created by the rest of her body being permissible.271
The texts from all schools specify the male (husband or slave master) when mentioning discretionary punishment for anal intercourse within a licit relationship. There is no mention of the female in relation to the penalty, nor of her enabling the act. In the context of anal penetration of spouses and slaves, the female is assumed to be non-consenting. While this imputes female passivity, here the presumption is beneficial in practice for non-consenting wives who are presumed innocent of voluntarily participating in a forbidden act liable to punishment. Further, the prohibited nature of anal intercourse and its classification under discretionary punishments within marriage means that coerced wives have legal recourse against their husbands. Nonetheless, the limited advantages here do not substantially mitigate the significant issues in other areas flowing from the moral conception of coercive intercourse.
4.2 Coerced Anal Intercourse
Details specific to anal rape mostly concern the Mālikī and Shāfiʿī schools where non-consensual anal intercourse is a form of coerced zinā. Although Ḥanafīs recognize coercion in the context of anal intercourse, its status as a discretionary crime means that few details are given. The only somewhat sustained Ḥanafī discussion of coercion with respect to anal rape concerns the standard of coercion which is covered in chapter 3. They do not consider the dower which has no application to discretionary crimes.
270 Al-Dusūqī (n 29) vol 4 313; al-Zurqānī (n 28) vol 8 128. Specifically, the odd opinion means the act is not forbidden “bi ittifāq (by agreement)”. The necessity of penetration being unanimously forbidden is common in Mālikī definitions of zinā and excludes penetration that some jurists have allowed, such as within a marriage contract concluded without a guardian (walī). 271 Al-Ramlī, Nihāyat al-Muḥtāj (n 64) vol 7 424.
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In Mālikī jurisprudence where heterosexual anal penetration is legally equivalent to vaginal penetration, all previous discussion regarding coerced zinā applies. Thus, the female victim is exempt from punishment and entitled to dower in cases of doubt or where the male is convicted of zinā.272 Further, it may be presumed given the absence of statements to the contrary that doctrines regarding the third-party coercion of males for illicit vaginal intercourse also apply to men coerced to anally penetrate a female.
As for homosexual anal intercourse, which Mālikī jurists single out under the term liwāṭ with a modified punishment of stoning for both virgins and non-virgins, there is more discussion. Jurists exempt the penetrated male (mafʿūl bihi) from punishment if he is coerced. For example, al- Zurqānī states, “for stoning the penetrated person, [it is required that he] have legal capacity, be willing and that his penetrator has reached puberty; otherwise, he is not stoned but rather given severe discretionary punishment except if he is coerced [then there is no punishment] (wa [yushtaraṭ] fī rajm al-mafʿūl taklīfuhu wa ṭawʿuhu wa kawn wāṭiʾihi bālighan wa illā lam yurjam al-mafʿūl wa innamā yuʾaddab ghayr al-mukrah bi’l-fatḥ adaban shadīdan).”273 However, unlike the coerced female, he is not entitled to the dower.274 Although not justified explicitly, this is expected from the fact that there is no concept of acquiring legitimate access to another male’s sexual organs in exchange for money.
As for the penetrator, Mālikī jurists generally mention that the defense of coercion does not apply. For example, al-Dardīr (d. 1786 CE/1201 h) only allows coercion as an excuse for the penetrated, not the penetrator:
The penetrated and penetrator are stoned, regardless of their virginity or whether they are slaves or non-Muslims… The only condition applicable to both of them is legal capacity, but for the penetrated there are additional conditions that apply to him, namely his willingness and that his penetrator has reached puberty; otherwise, he is not stoned…
Ka lāʾiṭ wa malūṭ bihi fa yurjamān muṭlaqan aḥṣanā am lā wa in ʿabdayn aw kāfirayn… Wa innamā yushtaraṭ al-taklīf fīhimā wa yuzād fī al-mafʿūl ṭawʿuhu wa kawn al-fāʿil bihi bālighan wa illā lam yurjam…275
272 As mentioned previously, Saḥnūn restricted dower to vaginal penetration: al-ʿAdwī (n 41) vol 8 76. 273 Al-Zurqānī (n 28) vol 8 141. 274 Al-Kharshī (n 32) vol 8 82. 275 Al-Dardīr, al-Sharḥ al-Kabīr (n 77) vol 4 320-21. Also see al-Zurqānī (n 28) vol 8 141. Aḥmad al-Dardīr, also known by his nickname (kunyā) Abū al-Barakāt, was a well-known Egyptian Mālikī jurist who was educated at al- Azhar. He wrote several works in Mālikī jurisprudence, two of which are included in this study. See: al-Mawsūʿa al-Fiqhiyya (n 35) vol 1 350.
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However, in his gloss on this statement, al-Dusūqī mentions:
In summary, the requirement for stoning the penetrator is that he have legal capacity, and when this condition is fulfilled, he is stoned regardless of whether the penetrated male has legal capacity. As for stoning the penetrated male, the requirements are his legal capacity, willingness and that his penetrator has reached puberty as the commentator mentioned. Regarding the commentator’s statement that the penetrated one must be willing, as for the penetrator, this is not a condition; rather, if he has legal capacity, he is stoned even if he was coerced based on the well-attested opinion, not on al-Lakhmī’s chosen opinion.
Wa al-ḥāṣil annahu yushtaraṭ fī rajm al-fāʿil kawnuhu mukallafan fa matā kāna mukallafan rujima sawāʾ kāna al-mafʿūl bihi mukallafan am lā wa yushtaraṭ fī rajm al-mafʿūl taklīfuhu wa ṭawʿuhu wa kawn wāṭiʾihi bālighan kamā qāla al-shāriḥ. Qawlhu: wa yuzād fī al- mafʿūl ṭawʿuhu ay wa ammā al-fāʿil fa lā yushtaraṭ fīhi dhālika bal matā kāna mukallafan rujima wa law mukrahan bināʾan ʿalā al-mashhūr al-mutaqaddim lā ʿalā mā ikhtārahu al- Lakhmī.276
Although al-Dusūqī seems to reject the defense of coercion for the penetrator, he hints at an alternate opinion at the end of his statement without elaborating on it. Recall from the discussion of male victims that al-Lakhmī’s chosen opinion regarding zinā, which is also the opinion of the leading scholars (muḥaqqiqīn) of the school, is that the defense of coercion is available to males coerced by third parties provided that the female is willing, unmarried and free. This is mentioned by al-Dusūqī three pages prior.277 Also recall that this is the position adopted by all later Mālikī jurists who reject the well-attested opinion on this matter.
Despite accepting the chosen view for third party coercion of males for vaginal penetration, it appears that later texts take the opposite approach for anal penetration. It is not clear why this is the case. Logically, anally penetrating another male under third party coercion should be less problematic from the perspective of others’ rights since unlike vaginal penetration, there are no concerns about the sexual rights of the husband or slave owner; the only concern is the penetrated male’s volition. Further, the unconditional rejection of a defense of coercion for penetrators is particularly problematic in cases where he is coerced by the penetrated male rather than a third party, as this view does not seem to serve the ends of justice. In essence, by imposing the death sentence for anal intercourse regardless of virginity and by rejecting any defense of coercion for the penetrator, Mālikī jurists take a harsher approach to this act than illicit heterosexual intercourse in its vaginal or anal forms.
276 Al-Dusūqī (n 29) vol 4 321. 277 ibid vol 4 318.
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As for Shāfiʿī legal discourse, which considers both male-on-female and male-on-male anal intercourse like illicit vaginal intercourse except for the inapplicability of stoning to the penetrated person, it holds that the requirement of willingness for criminal liability applies to both the penetrated and penetrator. For example, regarding the penetrator:
Whoever has homosexual anal intercourse, i.e. whoever penetrates a male in his anus while he meets the conditions for liability to zinā due to being of legal capacity, willing and knowledgeable about its prohibition…his punishment is the ḥadd of zinā, such that he is stoned if he is a legal non-virgin and lashed and banished if he is a legal virgin.
Man lāṭa ay man atā dhakaran fī duburihi wa huwa min ahl ḥadd al-zinā li kawnihi mukallafan mukhtāran ʿāliman bi’l-taḥrīm…ḥadduhu ḥadd al-zinā fa yurjam in kāna muḥṣanan wa yujlad wa yugharrab ghayr al-muḥṣan.278
Similarly, regarding the penetrated person Ibn Ḥajar states:
As for the person penetrated in his anus, if that person was coerced or does not have legal capacity, there is nothing for him or against him; however, if the person had legal capacity and was acting voluntarily, the person is lashed regardless of legal virginity, and regardless of whether he/she is male or female.
Ammā al-mawṭuʾ fī duburihi fa in ukriha aw lam yukallaf fa lā shayʾ lahu wa lā ʿalayhi wa in kāna mukallafan mukhtāran julida wa ghurriba wa law muḥṣanan imrʾatan kāna aw dhakaran.279
As with the other schools, Shāfiʿī jurists are unanimous that the coerced male does not receive the dower.280 Males are excluded since they, “like animals, are not a locus of penetration (laysa maḥallan li’l-waṭʾ ka al-bahīma)”.281 However, Shāfiʿī jurists disagree among themselves regarding the coerced female’s entitlement to dower for anal intercourse.
Regarding the phrase “there is nothing for him or against him” which occurs in the above quote from Ibn Ḥajar and in other works, glosses mention jurists who excluded females from dower compensation, exactly as the male is excluded, based on the literal meaning of this phrase. However, they also mention the opposite view: “the apparent view is that this [exclusion from dower] is not the intended meaning since the [woman’s] vagina and anus are equivalent except in certain rulings, and this is not among the exceptions such that dower is required (wa’l-ẓāhir annahu
278 Al-Ḥiṣnī (n 27) 476. “Knowledgeable” here is in contrast to certain types of ignorance that qualify as doubt (shubha), such as a recent convert who is unaware of the prohibition of zinā. 279 Al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 104. 280 Al-Ramlī, Nihāyat al-Muḥtāj (n 64) vol 7 424; al-Sharawānī (n 57) vol 9 104. 281 Al-Bujayramī (n 48) vol 3 435.
102 ghayr murād li taswiyatihim bayn al-qubul wa’l-dubur illā fī masāʾil laysat hādhihi minhā fa yajib lahā al-mahr).”282 While some glosses do not settle on an interpretation, one gloss on al-Ramlī’s Nihāyat al-Muḥtāj states emphatically that this phrase makes it clear that there is no dower, even if the penetrated person is female.283
The view that there is no dower is theoretically prejudicial to female victims who are penetrated anally rather than vaginally; however, given the difficulties establishing the offence due to it being considered zinā, the difference is of little practical import for most victims. Nonetheless, given that Shāfiʿīs consider anal intercourse as pure zinā with no modifications to the rules except for a lightened punishment for the non-virgin penetrated party, it would be more consistent with the near-equivalency of the vaginal and anal acts to adopt the interpretation limiting “there is nothing for him or against him” to male victims such that the financial consequences for aggression against females are identical to illicit vaginal intercourse.
Further, despite the denial of financial compensation, Shāfiʿī male victims fare significantly better than their Mālikī counterparts. It is ironic that Shāfiʿī jurists’ direct importation of zinā rules, where the moral framework creates problematic results in coerced contexts by today’s standards, grants male victims some support by allowing them to claim coercion whether they were the penetrator or penetrated. In contrast, the Mālikī singling out of homosexual intercourse (liwāṭ) as subject to certain special considerations creates a harsher regime for some victims instead of increasing protections.
Summary
Beyond the prototypical rape scenario, coerced zinā incorporates victims with a range of characteristics, including many minors and males, as well as non-consensual anal intercourse (except for Ḥanafīs). While the wide scope provides legal uniformity across variant rape scenarios, it also means that the difficulties experienced by prototypical rape victims prosecuting the offence and obtaining compensation due to the primacy of the moral violation apply fully to other victims.
282 Al-Shabrāmallasī (n 191) vol 7 424; al-Sharawānī (n 57) vol 9 104. 283 Aḥmad al-Rashidī, Ḥāshiyat al-Rashīdī in M al-Ramlī, N al-Shabrāmallasī and A al-Rashīdī, Nihāyat al-Muḥtāj ilā Sharḥ al-Minhāj wa maʿahu Ḥāshiyat al-Shabrāmallasī wa Ḥāshiya al-Maghribī al-Rashīdī (Dār al-Fikr 1984) vol 7 424. Neither al-Shabrāmallasī (n 191) vol 7 424 nor al-Sharawānī (n 57) vol 9 104 advocate for a specific view.
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Further, the few adjustments to coerced zinā rules relevant to non-prototypical situations tend to introduce additional complications rather than facilitate matters, such as the lack of dower for female victims in coercive anal intercourse according to some Shāfiʿīs and the inapplicability of the defense of coercion to the penetrator in homosexual anal intercourse for Mālikīs.
Moreover, gendered notions create additional hurdles, particularly for males whose victimization contradicts accepted notions of manhood. The conflation of erection with willingness results in hesitation recognizing that males coerced by other men are entitled to raise a defense of coercion. Further, when the aggressor is female, assigned sexual gender roles lead to significant doubt (Ḥanafī) or ambiguity (Mālikī and Shāfiʿī) regarding whether a legally competent male can claim coercion at all, or whether he is unconditionally liable for coerced zinā where the elements of the offence are met. Moreover, the law’s refusal to account for situations where the victim or aggressor does not fulfill the gendered box assigned to him or her results in outlandish results in such scenarios upon the application of the blackletter rules.
Finally, within marriage where coercive intercourse is not zinā, gendered roles also create an imbalance, though here to the male’s advantage. Nonetheless, jurists generally stop short of encouraging what is today known as ‘spousal rape’. Although the act is not a criminal offence, the wife may have a non-criminal law remedy in some situations, such as judicial divorce for Mālikīs. Further, although the law only grants the husband, rather than the wife, a general right to intercourse, two schools give her a limited right, with Mālikīs again offering a judicial remedy for non-fulfillment. While the husband benefits from a significant sexual right over his wife within the sphere where God has made intimacy permissible, tension runs through the legal discourse as jurists aim to preclude flagrant abuse.
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Chapter 3 The Meaning of Coercion in Illicit Intercourse
In the context of rape scenarios that come under the crime of zinā, including vaginal and anal penetration of males and females, the function of coercion is to exonerate the non-willing participant from criminal liability for zinā. A successful claim of coercion acts as a shield to protect the coerced person from liability for zinā while the rapist remains liable for the ḥadd penalty and financial compensation where applicable. Whereas the first two chapters considered the details and scope of zinā, which is the one element in the crime of rape (“coerced zinā”) this chapter turns to the issue of coercion to complete the discussion of this offence. Specifically, the current chapter considers aspects such as the threshold of coercion for rape, including the distinct legal and moral standards, and how to plead this defense.
Examination of the details of coercion has several goals. First, despite the fact that this topic is integral to the legal conception of coerced intercourse, there is minimal academic research on it.284 As such, the present discussion aims to delineate the contours of this key aspect of rape cases to better understand the full scope of coerced zinā.
Second, the subject of coercion ties into the broader discussion of the gendered nature of rape in Islamic jurisprudence. Legal manuals emphasize the coerced woman’s lack of criminal responsibility, noting for example that she is exonerated by consensus (ijmāʿ).285 However, building on the hesitancy to ascribe coercion to males at all in the context of rape, many jurists who accept the coercion of males partly undermine their acceptance of the defense by imposing higher, gendered standards for males in the legal threshold as well as the associated moral judgments. In essence, the combination of the gendered discourse with the moral conception of rape leads to rules less likely to alleviate men from moral blame, and sometimes from legal liability, for involuntary participation in zinā.
284 Syed (n 11) has some relevant discussion for the Ḥanafī school. Azam barely considers the content of coercion for the Ḥanafī school, mentioning only that the meaning of coercion is often left unspecified in zinā chapters and that most discussion concerns men coerced by third parties: Azam, Sexual Violation (n 7) 147, 177. She does not seem to consider relevant content from other legal chapters, nor details for the Mālikī school outside of usurpation. 285 Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 4 29.
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Third, examination of coercion introduces the preservation of the social good as an additional factor underlying the legal treatment of coerced zinā in addition to the overarching emphasis on upholding God’s right. In particular, some jurists’ justifications for the standard of coercion rely on the preservation of lineage and support the inference that the strong prohibition on participating in or submitting to zinā aims to maintain the family unit and the related social fabric of society.
Finally, coercion illustrates the differing doctrines that result from positioning a legal discussion in relation to varying considerations. Although the element of coercion in coerced zinā sometimes occurs in the chapter of zinā, many legal texts contain a more sustained discussion of this element in other chapters. Whereas Ḥanafī jurists discuss coercion for rape in relation to coercion in a wide variety of situations in the chapter of coercion (ikrāh), Shāfiʿī jurists situate their discussion in the chapter of assaults (ṣiyāl). The differing lenses lead to substantially different standards. The varying juristic choices and resulting diversity in rules leaves room for modern day reform efforts that do not impinge on the divine texts.
Before turning to the details of coercion, this introduction will briefly address the status of coercion as a defense. The fact that coercion acts as a shield to protect coerced women from liability for zinā rather than as a sword to bring zinā charges has been labelled “a stunning reversal of roles”.286 However, as Ann Coughlin notes in her study of contemporary critiques of rape laws in the United States, such criticism often “proceeds from the theoretical premise that the prohibition against rape exists to protect female sexual autonomy.”287 Rather, under older American laws that criminalized non-marital intercourse, as in Islamic jurisprudence, the “underlying activity in which a rape complainant engaged (albeit…unwillingly) was criminal misconduct, [such that] her complaint logically could be construed as a plea to be relieved of responsibility for committing that crime.”288
As such, the passive conception of coercion in zinā cases is not unusual, even if it is arguably problematic for victims from a contemporary standpoint. Rather, it is among the natural consequences of placing coerced intercourse under the same laws that regulate consensual zinā where the focus is the act of illicit intercourse prohibited by God rather than the aggression against the non-willing party. Given this framing and the related preference for private repentance for the sin, as well as the absence of any concept of harm against a human victim aside from an incidental
286 Azam, Sexual Violation (n 7) 198. 287 Coughlin (n 4) 2. 288 ibid 8.
106 misuse of the person’s genitals framed solely from a property/ownership perspective, treating coercion as a sword would be the illogical choice. From this viewpoint, it is also not surprising that many jurists placed a high threshold on the standard of coercion, as will be demonstrated in this chapter.
The Ḥanafī Approach to Coercion
1.1 Standards of Coercion for Vaginal Rape
For Ḥanafīs, who discuss coercion for rape under the general chapter of coercion that covers situations ranging from murder under duress to unwillingly uttering statements of disbelief, the two categories of coercion that apply to other acts also apply to zinā. “Severe coercion” (ikrāh muljiʾ) comprises threats of death or loss of limb that negate a person’s will (muʿdim li’l-riḍā) and undermine free choice (mufsid li’l-ikhtiyār). Conversely, “lesser coercion” (ikrāh ghayr muljiʾ) encompasses threats of beating, jail or enchainment that interfere with the person’s satisfaction in performing the act, but do not void free choice.289
In zinā, Ḥanafīs relieve coerced women from the ḥadd in both situations. Thus, even lesser coercion, e.g., threats of jail or a beating, void criminal liability. However, whereas severe coercion creates a concession (yurakhkhaṣu lahā) that relieves her from sin, lesser coercion does not exonerate her from sin even though she is not criminally liable.290 In contrast, men have neither a moral nor legal concession under lesser coercion.291 As for severe coercion, a man who submits is not liable for the ḥadd; however, he is sinful for having illicit intercourse.292
289 Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 6 128-29; Shaykhī Zādeh (n 48) vol 2 429. Ibn ʿĀbidīn adds the threat of a severe beating to the category of severe coercion. 290 Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 6 137; Shaykhī Zādeh (n 48) vol 2 433. Some Ḥanafī works also narrate an opinion that extends the woman’s sinfulness to circumstances of severe coercion while upholding her lack of criminal responsibility. Under this variant, if the woman enables (tamkīn) the intercourse, she is sinful even under severe coercion; however, if she does not enable but he has intercourse with her, she is not sinful. However, the view relieving her of sin in all situations of severe coercion is dominant in this period. See: al-Fatāwā al-Hindiyya (n 66) vol 5 48; Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 6 137. 291 Ibn ʿAbidīn, Radd al-Muḥtār (n 29) vol 6 137. 292 ibid.
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In situations where coercion constitutes a legal defense, Ḥanafī jurists do not impose a duty to repel the coercer even though resistance is permissible to the point of killing him.293 Rather, credible threats suffice to engage coercion. For example, even in the sacred state for pilgrimage (iḥrām), it is allowed for a woman threatened with death to struggle against her attacker even if she is killed in the process, or to engage in intercourse without resistance.294 However, one text encourages, though does not compel, men to refuse to engage in zinā even under severe coercion and to instead obtain their reward before God if killed.295 There is no equivalent encouragement for women.
According to Ibn ʿĀbidīn, one reason that exempts women from criminal liability in cases of severe and lesser coercion is the doubt (shubha) created by coercion, even less severe forms.296 To explain the discrepancy between males and females, there is a second gendered reason mentioned in several Ḥanafī texts. The woman’s relief from both criminal and moral responsibility in cases of severe coercion is because the child’s lineage (nasab) is not cut off from the mother, such that her act is not metaphorically the equivalent of murder (qatl).297 In contrast, the coerced man’s zinā is like killing (qatl), which is not permissible by necessity (ḍarūra).298
This argument relates to the fact that illegitimate children are not affiliated to their father, such that the male who has illicit sexual relations is, metaphorically speaking, killing his child. This is unlike the female who becomes pregnant as a result of illicit intercourse since the child will be affiliated to her. Therefore, the man’s submission results in the metaphorical destruction of a soul (qatl al-nafs) and soiling the marriage bed (ifsād al-firāsh) since lineage is cut off and the child does not have anyone to raise him (yurabbīhi).299 As a result, the male’s act of zinā is more egregious than the woman’s, such that it is more important for him to resist coercion. According
293 I encountered one possible exception in a passage by Ibn ʿĀbidīn on discretionary punishment (taʿzīr) regarding the permissibility of a man who finds an unrelated man and woman in seclusion physically intervening, or of a coerced woman opposing her aggressor. He seems to suggest that if a woman can kill her coercer or get rid of him by screaming or beating him, she is not truly coerced (wa illā lam takun mukraha). However, he does not place this condition in his main discussion of coercion in the chapter of coercion. See: ibid vol 4 63. 294 Al-Fatāwā al-Hindiyya (n 66) vol 5 49. 295 ibid vol 5 48. 296 Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 6 137. 297 ibid; al-Ḥaṣkafī (n 78) vol 6 137. 298 Ibn ʿAbidīn, Radd al-Muḥtār (n 29) vol 6 137; Shaykhī Zādeh (n 48) vol 2 433. 299 Ibn ʿAbidīn, Radd al-Muḥtār (n 29) vol 6 137; Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 8 84.
108 to Ibn ʿĀbidīn, the male’s relief from the ḥadd in cases of severe coercion is exceptional, and only due to juristic preference (istiḥsān).300
The metaphorical murder of the child, which also justified removing anal intercourse from the scope of zinā due to the impossibility of conception and of the mixing of lineage, is a key explanation for gendered-based zinā rules and the scope of zinā in the Ḥanafī school. This reasoning also indicates that Ḥanafī jurists were concerned not just with the divine transgression associated with zinā, but also with the social consequences. The cutting off of lineage, which renders the child legally fatherless, precludes the existence of a (legal) father-child relationship and negatively impacts the social fabric. As this breach of the social good is attributable only to the father in Ḥanafī thought, he bears a higher burden of resistance to avoid zinā and prevent the potential conception of an illegitimate child.
Further, in his study of an earlier time period, Mairaj Syed references a statement from the Ḥanafī jurist al-Sarkhasī (d. 1090 CE/483 h) that links the distinction between coercion of males and females to the male’s active role in intercourse compared to the female’s passive role. The male, as the doer, actively uses his organ (āla), such that the act is attributed directly to him (al-rajul mubāshir li’l-fiʿl) while the female is the one to whom the act is done (mafʿūl bihā) and not the originator of the act (laysa min jihatihā mubāshir li’l-fiʿl).301
Although the texts in this study do not rely on such distinctions within coercion, these notions are still present in discussions of zinā to justify other gendered rules, as discussed in chapter 2. As such, the logic still seems appropriate and provides a complementary reason for the higher onus placed on male victims in addition to concerns regarding the social good. Further, it is not a leap to assume that broader notions of appropriate gender roles, beyond those stated explicitly in zinā chapters, also influenced these rules.
300 Ibn ʿAbidīn, Radd al-Muḥtār (n 29) vol 6 137, 140. Juristic preference (istiḥsān) is “the [Ḥanafī] principle that permits exceptions to strict and/or literal legal reasoning in favor of the public interest (maṣlaḥa). Guides decision making in cases where there are several potential outcomes. Allows jurists to abandon a strong precedent for a weaker precedent in the interests of justice. […] Particularly favored in cases where following qiyas (analogical reasoning) would lead to hardship for the believer…”: John Esposito (ed), The Oxford Dictionary of Islam (Oxford 2003). The awkward sentence structure is how the entry appears in the source. 301 Syed (n 11) 193. For the original text, see al-Sarkhasī (n 40) vol 24 138. Al-Sarkhasī was leading Ḥanafī jurist of Persian origin who specialized in jurisprudence (fiqh) and jurisprudential reasoning (uṣūl al-fiqh). His book al-Mabsūṭ (the work cited here) is highly regarded and influential in the Ḥanafī school. See: ʿAbd al-Qādir al-Qirshī, al-Jawāhir al-Muḍiyya fī Ṭabaqāt al-Ḥanafiyya (Mīr Muḥammad Kutub Khāna, date of publication unknown) vol 2 28.
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While understandable in their historical context, contemporary research indicates that these gendered views are erroneous. Addressing stereotypes about male victims, Michelle Lowe (no relation) and Paul Rogers note that “male rape myths – prejudicial and false beliefs about the victims and perpetrators of sexual crime against men – stem from traditional views of masculinity within which men are automatically assumed to be strong, assertive, sexually dominant and heterosexual.”302 However, if being male does not inevitably make it easier to resist coerced intercourse or automatically make him the dominant party in every sexual encounter, any contemporary attempt to implement Islamic jurisprudence would need to rethink the gendered justifications and the fairness of upholding differing burdens for male and female victims.
Moreover, although Ḥanafī texts do not actively contemplate the possibility of adult male coercion by a female coercer, as came in chapter 2, in such situations the threshold of male coercion, namely relief under severe but not lesser coercion, combined with the woman’s derivative status would be non-sensical. A female exerting severe coercion on a male to have illicit sex with her, such as by threatening his life, would be excused from the ḥadd of zinā because the man is excused in such situations. However, a female coercer who only threatens the man with imprisonment would be liable to the ḥadd since the male is not excused. The greater the threat, the less severe the punishment for the female aggressor. Because the paradigmatic rule assumes the female is sexually subservient to the male, the resulting doctrines do not account for the reverse scenario in a logical manner.
As for the low standard of coercion for females in zinā, it is noteworthy not just in comparison to men within the realm of zinā but also in comparison to other acts. For example, although other forbidden acts pertaining to divine rights, such as uttering statements of disbelief or cursing the Prophet, are allowed under severe coercion, refusing to the point of death is considered praiseworthy.303 Further, only severe coercion excuses eating carrion or drinking wine, though there is no reward for abstaining since they are permissible in cases of necessity (ḍarūra).304
In contrast, a woman coerced into zinā is absolved completely of legal consequences and sin in situations of severe coercion and of legal consequences under lesser coercion. Moreover, while refusal leading to death is allowed, jurists do not suggest that this is praiseworthy. As such, despite
302 Lowe and Rogers (n 140) 41. 303 Al-ʿAynī (n 32) vol 11 52-54. 304 ibid vol 11 50-51.
110 the many issues associated with coerced zinā, the relatively low threshold of coercion in rare cases where there is a trial indicates a desire to exculpate victims from criminal liability – at least for females where victimhood rather than aggression is their assigned role. Given that Ḥanafīs give precedence to divine over interpersonal rights, as came in chapter 1, the focus on exonerating the female victim here is somewhat surprising and likely relates to the highly gendered submissive role accorded to her within zinā. In contrast, Mālikīs and Shāfiʿīs expect greater fortitude from female victims. However, even the Ḥanafī standard excludes certain threats that would be considered coercion today, such as threats to reputation that are coercive in Jordanian rape law (chapter 6) but which fall short of lesser coercion under Ḥanafī doctrines.
Although the main boundaries of coercion are clear for men and women, one Ḥanafī text further clarifies the scope of coercion for females. According to that treatise, “the meaning of ‘coerced woman’ is that she is coerced until the time of penetration. If she was coerced until she lay down then she enabled intercourse before penetration, she was willing (maʿnā al-mukraha an takūn mukraha ilā waqt al-īlāj ammā law ukrihat hattā iḍṭajaʿat thumma makkanat qabla al-īlāj kānat muṭāwiʿa).”305 Further, Ibn Nujaym mentions that as long as the beginning of the act of zinā is coerced, if the end is not coerced, there is no ḥadd due to doubt (shakk).306 Thus, it appears that the key moment is penetration, that is, if coercion ends before penetration, there is no coercion from a legal perspective, but if it ends during intercourse, the defense of coercion is valid. Such details are not discussed in relation to men who are not the primary victims of coerced zinā.
1.2 The Standard of Coercion for Anal Penetration
In Ḥanafī texts where anal penetration is a discretionary offence, the topic of coercion does not generally arise. This may be due to the nature of discretionary punishments which do not follow the same strict rules and procedures as set crimes, granting the judge more leeway in dealing with all aspects of the offence including coercion. Further, the coerced victim does not face execution for alleged consent like the non-virgin victim in a zinā trial for vaginal penetration.
305 Al-Fatāwā al-Hindiyya (n 66) vol 2 150. 306 Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 5 24.
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However, in a rare exception, the jurist al-Ḥaṣkafī, after discussing the varying concessions accorded to female and male victims of coerced zinā, introduces the following secondary discussion (farʿ) regarding anal penetration:
What is apparent from their teaching is that the ruling of anal penetration is like the ruling for the female [victim of coerced vaginal penetration] since there is no child. As such, there is a concession under severe coercion. However, this matter [anal penetration] differs in that its prohibition is stronger than zinā since it is never permissible and it is repulsive to the intellect, such that it will not be present in paradise according to the correct opinion.
Zāhir taʿlīmihim anna ḥukm al-liwāṭ ka ḥukm al-marʾa li ʿadam al-walad fa turakhkhaṣ bi’l-muljiʾ illā an yufarraq bi kawnihā ashadd ḥurma min al-zinā li annahā lam tubaḥ bi ṭarīq mā li kawn qubḥihā ʿaqliyyan wa li dhā lā takūn fī al-janna ʿalā al-ṣaḥīḥ.307
The gloss by Ibn ʿĀbidīn adds that this applies to both the penetrator and the penetrated. He also mentions that there is a statement to the contrary in another text that prohibits submitting to anal intercourse (most likely only for males) despite the impossibility of conceiving a child.308
Based on al-Ḥaṣkafī’s text, both male and female victims of coerced anal penetration benefit from a legal excuse under severe and lesser coercion and a moral excuse under severe coercion. Both genders are treated equally since conception is impossible, such that the issue of lineage and metaphorically murdering offspring conceived from illicit intercourse is moot. Here the analogy justifies equality between genders, contrary to its effect in coerced vaginal intercourse, as there are no deleterious societal consequences from submitting to the act, only a breach of the divine boundaries concerning sexual intimacy.
The only other mention of coercion for anal intercourse encountered in Ḥanafī texts is the permission accorded to a young man (ghulām) coerced by another man into anal intercourse to kill his coercer.309 These jurists mention this dispensation in tandem with the identical permission granted to a woman coerced into zinā to kill her attacker. Thus, unlike zinā, the rules pertaining to coercion in the discretionary crime of anal intercourse, at least in the rare references to the act, are gender neutral.
307 Al-Ḥaṣkafī (n 78) vol 6 137. 308 Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 6 137. The wording regarding the prohibition uses the masculine form. From the context of the discussion, it most likely applies only to men though it is possible that the masculine is a generic linguistic usage which would also include women. 309 Ghānim al-Baghdādī, Majmaʿ al-Ḍamānāt (Dār al-Kutub al-Islāmī, date of publication unknown) 203; al-Ḥaṣkafī (n 78) vol 4 63.
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1.3 Establishing the Defense of Coercion
Discussion of evidence of coercion occurs only in relation to coerced zinā, not coercive anal intercourse. Even though coercion is a type of doubt (shubha), unlike other types of doubt that are established by a mere claim (daʿwā), coercion requires evidence (bayyina).310 While most works do not justify this, according to Ibn ʿĀbidīn the reason is that coercion does not take the act out of the realm of zinā, but is merely an excuse (ʿudhr) that voids the penalty even though the sin remains. Further, he compares coerced intercourse to coerced murder which provides a defense against retaliation (qiṣāṣ) from the deceased’s next of kin but does not negate sinfulness before God. In contrast, other types of doubt negate (yunkir) the existence of zinā. For example, a claim of marriage negates criminal liability despite the actual absence of a licit relationship.311
The reliance on sin is odd given that Ḥanafī works, including Ibn ʿĀbidīn’s gloss, hold that women who engage in zinā under severe coercion are not sinful. He may be relying on the sinfulness of coerced males or the sinfulness of both genders under lesser coercion to justify this rule, such that the reasoning omits one situation. Further, while other doubts create uncertainty regarding the illegality of the intercourse, they do not establish a licit relationship with certainty. A mere claim of marriage, sufficient to establish doubt, does not necessitate the existence of a valid marriage contract. As such, this rationalization of the evidentiary burden to prove coercion is not fully persuasive.
Al-Sarkhasī provides a more coherent reason for this rule. Even though this jurist predates the time period under consideration, his works continue to exert influence in this period, as per a statement considered below that cites him. Al-Sarkhasī relies on the Ḥanafī rule that the dower and ḥadd cannot coexist. A claim of doubt such as marriage constitutes a civil claim for dower since dower automatically precludes the ḥadd. In contrast, a claim of coercion only relieves the woman from the ḥadd penalty within the context of criminal proceedings (presumably where evidence of the ḥadd has already been established); there is no civil claim since dower cannot accompany the ḥadd.312
310 Al-Fatāwā al-Hindiyya (n 66) vol 2 148; Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 5 12. 311 Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 4 19. 312 Al-Sarkhasī (n 40) vol 9 52.
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However, while it is clear that a claim of coercion requires evidence, Ḥanafī texts do not discuss what constitutes valid evidence. In one sense, this is disconcerting given the high stakes for the victim. On the other hand, types of evidence are not normally specified for any form of coercion, such as coercion to utter disbelief (kufr), despite the seriousness of blasphemy. Further, given the largely theoretical nature of this topic due to the near absence of zinā prosecutions by eyewitness testimony, it is possible that jurists did not see any reason to discuss the details of evidence of coercion.
As for who can give evidence of coercion, a ruling in al-Fatāwā al-Hindiyya (a summary of the most authoritative opinions of the school) mentions that if four witnesses present acceptable testimony for zinā and all testify that the woman was willing, her claim of coercion is rejected and both her and the male receive the ḥadd of zinā.313 Thus, it appears that only the witnesses rather than the victim can claim coercion. This ruling is based on a text by the above-mentioned jurist al-Sarkhasī. In the original text, he mentions that the reason for this is that her denial of willingness is not of greater value than her denial of the act itself and is of no benefit after the witnesses have testified (li anna inkārahā ṣifat al-ṭawāʿiyya lā yakūnu fawqa inkārihā aṣl al-fiʿl wa lā yanfaʿuhā dhālika baʿda mā shahida al-shuhūd bihi ʿalayhā).314
Nonetheless, al-Sarkhasī gives her a way out: if she claims he married her, there is no ḥadd on either, even if he denies it, and she also receives the dower if he refuses an oath that she is lying.315 While this continuation is not quoted in al-Fatāwā al-Hindiyya, it is consistent with the continued acceptance of doubt, other than coercion, by mere claim. Thus, a victim may avoid criminal liability by claiming doubt even where zinā is established by witnesses who deny coercion. However, it would arguably be less tortuous to place coercion under the same lax standards that govern other types of doubt rather than requiring victims to lie to avoid legal sanction.
Nevertheless, the apparent tension between the rules governing coercion and doubt can be understood in reference to their distinct roles. Doubt, as well as the principle of privacy, seek to
313 Al-Fatāwā al-Hindiyya (n 66) vol 2 p158. The last word confirming the ḥadd seems to be missing, but the overall meaning is clear and confirmed by the source cited in the fatwā: al-Sarkhasī (n 40) vol 9 52. 314 Al-Sarkhasī (n 40) vol 9 52. 315 ibid. This passage is also mentioned by Azam, as al-Sarkhasī belongs to the time period she considers: Azam, Sexual Violation (n 7) 198-99. Azam objects to what she interprets as suggesting a coerced woman seek marriage to her assailant. However, a claim of marriage and concluding an actual marriage contract are two separate matters. Regarding the lack of evidence required to substantiate a claim of doubt, other than coercion, also refer back to “The Concept of Doubt” in chapter 1 of this paper.
114 hide the moral transgression and leave repentance between the individual and God. In contrast, claims of coercion only arise where the act of zinā, i.e. the transgression against God, has been established in a court of law without any claim of doubt, such that the judge must implement the set penalty. At that stage, the victim, who has implicitly admitted the illegality of the act by not claiming doubt, needs to bring evidence of coercion to excuse his or her participation in illicit intercourse. Alternately, she can still avoid the penalty by a subsequent claim of doubt, annulling her prior tacit admission.
If the victim does not claim doubt and wishes to claim coercion, it is unclear if the victim can introduce her own witnesses to rebut the four witnesses who testified to the fact of non-coercion even though her own claim of coercion is not accepted. Since Ḥanafīs permit testimony by both genders to nullify the ḥadd for reasons such as virginity, it is possible that two male witnesses or four females testifying to coercion could relieve the victim of liability despite the view of the first four.
The Shāfiʿī Approach to Coercion
Shāfiʿī jurists consider the standard of coercion in rape cases by aggression, as well as the specific situation of starving women who submit to illicit intercourse to obtain food. These two scenarios will be considered separately below. The exceedingly minimal discussion in Shāfiʿī texts about establishing the defense of coercion, such as acceptable evidence and testimony, will be incorporated into the examination of the threshold of coercion. For additional context, recall from chapter 1 that Shāfiʿīs do not appear to treat claims of coercion differently from claims of doubt, as both require evidence; however, even this aspect is only apparent from a Ḥanafī text refuting the opposing view.
2.1 The Duty of Resistance
Shāfiʿī jurists take a very different view of the standard of coercion than the Ḥanafī school. The Shāfiʿī discussion of coercion in the context of zinā, which primarily occurs in the chapter of assaults (ṣiyāl) in legal works, focuses on the concept of resistance. Further, the discussion focuses
115 on the prototypical victim of rape who is female. In general, males enter the conversation as the aggressor who must be repelled, or as third parties who intervene to stop the attack. The latter role is considered in detail in chapter 4 under the concept of self-help. Following the gendered framing of the issue directly in legal works, the discussion below concentrates on the duty of resistance imposed on female victims before considering the standards that apply to male victims.
The Shāfiʿī approach forbids women from surrendering to an attacker (ṣāʾil) who tries to commit zinā with her even if she fears for her life.316 Rather, she must resist even if this requires killing her attacker. In doing so, she is emulating the woman during ʿUmar al-Khaṭṭāb’s reign who killed a man who tried to coerce her (yurāwiduhā ʿan nafsihā) and whose action was unanimously approved by the companions.317 Jurists further justify this obligation by the principle that zinā is not made lawful by coercion (al-zinā lā yubāḥu bi’l ikrāh).318 Although this statement also occurs in some Ḥanafī works, they do not use it to impose obligations of resistance.319
Shāfiʿīs consider murder and zinā equally impermissible under coercion, such that both require resistance.320 This contrasts with actions such as drinking wine, breaking one’s fast, uttering words of disbelief (kufr), or relinquishing property (fawāt al-māliyya) which are permissible under coercion.321 In addition to the limited interpersonal right distinguishing zinā from actions such as disbelief, some Shāfiʿī jurists are concerned with the mixing of lineage in zinā.322 However, they do not restrict this to the male party unlike Ḥanafī jurists, and thus require women to resist to prevent confusion in lineage. Although lineage is mentioned in the context of the starving woman (see below) rather than an active attacker, the reasoning seems transferrable and explains the resistance requirement. Otherwise, since the interpersonal right in coerced zinā belongs to the victim herself, unlike in murder, she could seemingly choose to forego her own right.
The concern over lineage returns to the notion of preserving the social good, in addition to respecting the divine boundaries on intimacy, as a reason to avoid zinā. As Shāfiʿīs extend the
316 Al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 183; al-Ramlī, Nihāyat al-Muḥtāj (n 64) vol 8 25. 317 Al-Ḥiṣnī (n 27) 490. 318 Al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 183; al-Ramlī, Nihāyat al-Muḥtāj (n 64) vol 8 25. 319 Al-ʿAynī (n 32) vol 7 57. 320 Al-Ramlī, Nihāyat al-Muḥtāj (n 64) vol 8 p159; al-Shabrāmallasī (n 191) vol 7 259. In contrast, Ḥanafīs, who do not uphold an interpersonal right in zinā, distinguish these two acts and grant women a legal concession in coerced zinā but not in coerced murder: see al-ʿAynī (n 32) vol 11 58. 321 Al-Shabrāmallasī (n 191) vol 7 259. 322 Al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 390; al-Ramlī, Nihāyat al-Muḥtāj (n 64) vol 8 159.
116 responsibility for maintaining this aspect of the social fabric to women, they too must display a high degree of fortitude in the face of coercion to commit zinā before they can legally and morally benefit from a defense of coercion.
The Shāfiʿī threshold that requires resistance at any cost, invalidating the defense of coercion unless the victim is overpowered, combines requirements in the chapter of assaults (ṣiyāl) for sexual assaults (attacks on the buḍʿ) with general statements in zinā sections that coercion relieves women from liability. However, additional statements regarding divorced women coerced by their ex-husbands further support this conclusion.
The jurist al-Shirbīnī considers the situation of a man who says to his wife, “if I penetrate you, you are divorced (in waṭiʾtuki fa anti ṭāliq)” where that divorce is final (bāʾin). If he has intercourse with her, the first penetration is permissible, but divorce immediately takes effect. If he penetrates her a second time, which is now zinā given the divorce, al-Shirbīnī mentions the following possibilities:
[1.] If he was ignorant of the prohibition [and she was too], the penetration constitutes doubt…and she gets the dower and there is no ḥadd [for zinā] on either of them. [2.] If they both knew of the prohibition, it is zinā. [3.] If he coerced her [and she could not defend herself], or if he knew of the prohibition but not her, he is liable for the ḥadd and dower and there is no ḥadd on her. [4.] If she knew of the prohibition but not him, and she was able to defend herself, she receives the ḥadd and has no entitlement to dower.
[1.] Fa in jahila al-taḥrīm fa waṭʾ shuhba…fa lahā al-mahr wa lā hadd ʿalayhimā. [2.] Wa in ʿalimāhu fa zinā. [3.] Wa in akrahahā ʿalā al-waṭʾ aw ʿalima al-taḥrīm dūnahā fa ʿalayhi al-ḥadd wa’l-mahr wa lā ḥadd ʿalayhā. [4.] Aw hiya dūnahu wa qadarat ʿalā al- dafʿ fa ʿalayhā al-ḥadd wa lā mahr lahā.323
Another variant is the woman whose marriage contract has been judicially declared invalid (kādhib) who must flee or kill her ex-husband who tries to coerce her to have intercourse. Here, “if she submits despite her ability to do what was mentioned [flee or slay him], she is sinful. […] [However], if she is coerced to have intercourse and is not able to flee or kill him, she is not sinful if he penetrates her. (Fa law sallamat nafsahā maʿa al-qudra ʿalā mā dhukira athimat bihi. […] Fa in ukrihat ay ʿalā al-waṭʾ bi an lam taqdir ʿalā al-harab wa lā ʿalā qatlihi fa lā ithm ʿalayhā
323 Al-Shirbīnī (n 28) vol 5 22 [emphasis added].
117 bi waṭʾihi iyyāhā.)”324 Thus, where a woman is overpowered, she is not only free of legal liability but also of sin.325
Only the Shāfiʿī fatwā previously cited for slander of female complainants appears to contradict this standard. That fatwā mentions that if the man’s zinā with his daughter is established by testimony or evidence, “there is no ḥadd on the daughter since it drops by her claim of coercion due to the Prophet’s saying, ‘deflect the ḥadd penalty in cases of doubt’ (wa lā ḥadd ʿalā al-bint li suqūṭihi bi daʿwā al-ikrāh li qawlihi ṣalla Allāhu ʿalayhi wa sallam: idraʾū al-ḥudūd bi’l- shubuhāt).”326 This can be reconciled by assuming the claim involves her father overpowering her. Moreover, this fatwā hints at the acceptability of the complainant herself pleading coercion. However, as Shāfiʿī texts do not discuss testimony to volition, this interpretation is provisional.
As for the threshold of coercion for males, Shāfiʿī works do not discuss this since the chapter of assaults only considers the male as aggressor or as intervenor on behalf of the woman, as mentioned above. However, given the duty on the female to resist unless she is overpowered, even in face of death, as well as the obligation on male witnesses to intervene, a male’s defense of coercion would not likely be accepted unless he is physically unable to repel his attacker. However, unlike females, it is clear that Shāfiʿīs consider the coerced male to be sinful even though he is not liable to the ḥadd.327
As such, the exceptional threshold placed on females results in presumed gender equality in the legal standard. However, this is at the expense of both male and female victims who must display extraordinary courage before their defense is accepted. The application of this threshold to females is at odds with the usual secondary role accorded to them in intercourse although it is consistent with the severe prohibition of illicit sex and the associated need to avoid the act, as well as their equal role in preserving lineage. As for the sinfulness of males who are coerced, meaning that an aggressor has overcome the male victim’s resistance, this places the overpowered man in an impossible moral situation. It seems to imply that men are not supposed to be overpowered in the realm of zinā, and if this happens, moral blame attaches to him for not fulfilling his natural dominant role in the area of sexual relations.
324 Al-Dimyāṭī (n 136) vol 4 272. 325 Also see ʿAbd al-Rahmān al-Suyūṭī, al-Ḥāwī li’l Fatāwā (Dār al-Fikr 2004) vol 1 131. 326 Al-Ahdal (n 105) vol 4 31. 327 Al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 8 389.
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Shāfiʿī works do not explicitly discuss the standard of resistance that applies to coerced anal intercourse.328 Since the school considers both heterosexual and same-sex anal intercourse as zinā, it may be assumed that the same duty of resistance that applies to victims of illicit vaginal intercourse also applies to victims of coerced anal sex.
As with Ḥanafīs, Shāfiʿī works contain some limited additional detail on the scope of coercion. Specifically, they mention that if a child, insane person, or coerced person (mukrah) engage in intercourse but childhood, insanity or coercion end before withdrawal, this person is not liable to the ḥadd because continuation of penetration is not equivalent to the initial act of penetration.329 Since the masculine “mukrah” often refers specifically to males coerced by a third party, it is not clear whether this principle applies to coerced females. However, assuming it extends to her case, coercion at the beginning of the act suffices, as for Ḥanafīs.
The differing Ḥanafī and Shāfiʿī views on the threshold of coercion in zinā correlate with the divergent contexts under which they consider this issue. Ḥanafī jurists situate their discussion of coerced zinā in the chapter of coercion and relate coercion for zinā to the norms of severe and lesser coercion that govern coercion in many different areas. In these discussions, jurists focus on what a coerced person may do under various degrees of compulsion, such as when eating carrion, uttering blasphemy or engaging in zinā are allowed.
In contrast, Shāfiʿī works, which do not contain independent sections on coercion, consider coercion for zinā in the chapter of assaults. That chapter focuses on the duty of the victim to defend himself or herself against attacks on his or her property, life, or genitals (buḍʿ). The standard for coercion becomes intertwined with notions of resistance. The influence of self- defense concepts, concerns about lineage and the divine prohibition on illicit intercourse that require fortitude to avoid becoming party to a major moral wrong explain this threshold from a theoretical perspective. Nonetheless, from a contemporary perspective of rape as an offence against an individual rather than against sacred norms, the standard is exceedingly high and risks playing into stereotypes that lack of physical resistance by rape victims is equivalent to consent.
328 One gloss briefly mentions that a person coerced into anal intercourse or vaginal intercourse can repel his attacker however he is able. Although this statement, which occurs outside the chapter of assaults, equates the vaginal and anal act in terms not holding the victim liable for his or her self-defense, it does not address the required standard of resistance: al-Sharawānī (n 57) vol 8 389. 329 Al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 107; al-Sharawānī (n 57) vol 9 107.
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Despite other issues with the Ḥanafī doctrines of coerced zinā, their notion of coercion is more responsive to what is now understood as the potential reaction of a range of victims.
The varying doctrines on coercion that correlate with positioning coercion for zinā in relation to different topics, resulting in Ḥanafīs accepting the defense in many situations where Shāfiʿīs would refuse it, is also evidence of the strong human influence in this area of Islamic jurisprudence. Many aspects of rape laws, though broadly based on divine texts prohibiting sex outside of a licit relationship, are derived in detail through juristic reasoning. For modern scholars interested in the application of Islamic law to contemporary society in a manner responsive to today’s needs, the diversity in the pre-modern positions and the extensive use of human reasoning leaves ample room for reform efforts that do not contradict texts that are considered divine.
2.2 The Case of the Starving Woman
The only situation where Shāfiʿīs accept coercion for zinā without resistance is the case of the woman who complies with a demand for illicit sex to obtain food to save herself from starvation. Although jurists still consider the intercourse impermissible, they reason that coercion from being on the brink of death creates a doubt that nullifies that ḥadd.330 The lack of permissibility implies that the woman is sinful even though she is not criminally liable.
Al-Sharawānī explains the impermissibility by the fact that unlike eating carrion to prevent starvation, intercourse is only a means to achieve the needed outcome rather than the item of necessity itself (food), such that the man could persist in his refusal after she has intercourse with him.331 Further, Ibn Ḥajar al-Haytamī and Muḥammad al-Ramlī (d. 1596 CE/1004 h) justify the sinfulness by the fact that, like in other situations of coerced zinā, threats of death do not make zinā permissible and illicit intercourse leads to the mixing of lineages.332
330 Al-Shabrāmallasī (n 191) vol 9 425; al-Sharawānī (n 57) vol 9 105. There is another opinion in the school, considered weak, that it is permissible to commit zinā in this situation just as it is permissible to surrender to a Muslim who wishes to kill you: al-Ramlī, Nihāyat al-Muḥtāj (n 64) vol 8 159. 331 Al-Sharawānī (n 57) vol 9 390. 332 Al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 390; al-Ramlī, Nihāyat al-Muḥtāj (n 64) vol 8 159. Al-Ramlī was a prominent Shāfiʿī jurist. His father and primary teacher, Shihāb al-Dīn al-Ramlī (d. 1550 CE/957 h), was the leading Egyptian Shāfiʿī jurist of his day. Al-Ramlī held various teaching posts in the Azhar mosque and elsewhere where he taught many students Shāfiʿī jurisprudence and ḥadīth. The presently quoted commentary, Tuḥfat al-Muḥtāj is among his most important texts and is considered a leading Shāfiʿī work. He is held in high esteem in the Shāfiʿī school where he holds the honourific title of “the little Shāfiʿī (al-Shāfiʿī al-ṣaghīr)”. See: Aron Zysow, ‘al-Ramlī’ in P
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However, it seems inconsistent to treat fear of death as an excuse for the starving woman who actively commits zinā, yet not for the woman who passively submits when attacked. The distinction may be due to the well-known case of the woman whom ʿUmar ibn al-Khaṭṭāb excused from committing zinā with a shepherd due to her extreme thirst.333 This precedent is not cited directly by jurists for this situation, but it occurs elsewhere in Shāfiʿī texts, such as al-Shirbīnī’s, where he mentions it in the course of explaining why there is consensus that coercion relieves a female of ḥadd liability for zinā, but no equivalent consensus exists for coerced males.334
Shāfiʿī jurists do not mention males at all in this context. As seen above, in standard situations of coercion by an aggressor, any concession granted to men is stricter since, unlike females, they are always considered sinful regardless of whether there is a legal excuse. Further, the situation of the starving woman is an exception to the general rule of resistance, and she is held sinful here unlike in cases of coercion by an aggressor. Given the extra constraints usually placed on men and given the limited concession granted to women in this situation, it is unlikely that starving men would benefit from any excuse under Shāfiʿī doctrines.
The Mālikī Approach to Coercion
In the Mālikī school, the details of coercion for females are most commonly considered in relation to the starving person. In contrast, they are rarely discussed with respect to the rape of females by physical aggression. This is probably due to the fact that cases involving female victims subject to aggression would most likely proceed under the doctrine of usurpation rather than zinā, as will be discussed in chapter 4. On the other hand, for males Mālikī jurists usually debate the threshold for victims of third-party aggression while rarely considering them in relation to starvation.
The cases of the starving person and situations of aggression will be considered in turn below. Further, given the Mālikī acceptance of pregnancy and childbirth out of wedlock as evidence of zinā, this section will also consider excuses available to such women which resemble pleas of coercion. Like the Shāfiʿī school, Mālikī texts contain minimal discussion of evidence and
Bearman and others (eds), Encyclopaedia of Islam (2nd edn, Brill)
121 testimony to coercion, such that any details will be integrated into the sections below rather than considered separately.
3.1 The Case of the Starving Person
Mālikī works frequently cite the scenario of the starving woman who acquiesces to illicit sex in exchange for food but grant a wider allowance than Shāfiʿīs by considering the woman’s action legitimate (yajūzu/yubāḥu lahā) and not sinful.335 The only condition placed on the female is that if she finds prohibited food such as carrion or pork, she must eat it instead of committing zinā since such food is permissible in cases of necessity (ḍarūra).336
Mālikī jurists compare this case to statements of disbelief (kufr), defaming the Prophet (sabb) and slander (qadhf) of a Muslim, all of which are permissible if one fears death. The woman’s fear of death here, but not of grievous bodily harm, similarly excuses zinā.337 However, jurists add that abstaining from illicit intercourse and facing death is more meritorious, just like the person who refuses to utter statements of disbelief or blasphemy.338 Thus, abstention is preferred, but there is no legal or moral sanction if she submits. Further, jurists use analogy (qiyās) to extend the lack of criminal or moral liability to women who commit zinā to obtain food for their starving children.339
Mālikī texts also consider the case of a starving man coerced by a female to commit illicit vaginal intercourse, as well as the case of a starving boy (walad) or young adolescent male (amrad) who submits to anal intercourse with a man to obtain food. These scenarios only appear in select legal treatises, and older males do not appear to be discussed at all with respect to anal intercourse. This may be because younger males were considered more attractive to men, such that a sexual predator would be more likely to coerce them.
As for the adult starving man who submits to vaginal intercourse, his situation was discussed in the previous chapter while considering whether coercion applies to males at all. Recall that while al-Dusūqī allows him to submit provided the woman is free (not a slave) and unmarried, al-Zurqānī
335 Al-Dardīr, al-Sharḥ al-Kabīr (n 77) vol 2 369; al-Zurqānī (n 28) vol 4 155. 336 ibid. 337 ibid. 338 ibid. Also see al-Kharshī (n 32) vol 4 35-36. 339 Al-Dardīr, al-Sharḥ al-Kabīr (n 77) vol 2 369; al-Zurqānī (n 28) vol 4 155.
122 denies his claim of coercion on the basis of his erection.340 Al-Dusūqī’s word choice, which mentions permission (jawāz) for the man, seems to imply that he is not sinful. Although al- Dusūqī’s implied parity between starving men and women is surprising given that jurists most commonly deny coerced men a moral excuse even while accepting their legal defense, it matches the lack of moral reprobation that attaches to men who submit to third party aggressors in Mālikī thought, as will be discussed in the following subsection.
In contrast, al-Dusūqī does not allow a starving boy to submit to anal intercourse with another male:
As for the commentator’s statement, “she can commit zinā”: i.e. to prevent starvation… However, the woman is not like the boy. It is not permissible for him to engage in homosexual anal intercourse even if his hunger leads to his death.
Qawluhu fa yajūz lahā al-zinā li dhālika ay li sadd ramaqihā… Wa’l-marʾa bi khilāf al- walad fa lā yajūz lahu an yumakkina min al-liwāṭ fīhi wa law addā al-jūʿ li mawtihi.341
Al-Zurqānī poses the question without definitively answering it. In the passage below, he seems to say that vaginal penetration, in principle, is an act that is permissible for a woman, so that if she is coerced into illicit intercourse, the problem is not the act itself, but the wrongfulness of the actor doing it. In contrast, in the case of the boy, anal penetration is wrongful in itself, suggesting a different treatment. Thus, after mentioning the permission for starving women and the Mālikī restriction on starving men engaging in vaginal intercourse, he states:
Also take note of the young adolescent boy. If he does not find anything to allay his starvation except by engaging in homosexual anal intercourse, is he allowed to do this out of fear of death based on the lesser of the two evils since this act is allowed for a woman in principle, unlike him? What will be discussed regarding a person who is coerced into zinā by his blood relative or a female who is not is wife or relative supports this conclusion.
Wa unẓur ayḍan al-amrad idhā lam yajid mā yasudd ramaqahu illā li man yalūṭ bihi hal yubāḥ lahu tamkīnuhu min nafishi ḥīnaʾidhin khawf halākihi irtikāban li akhaff al- ḍararayn awwalan li anna al-marʾa yubāḥ fīhā al-fiʾl fī al-jumla bi khilāfihi wa mā yaʾtī anna man ukriha ʿalā al-zinā bi maḥramihi aw ajnabiyya yushīr li hādhā.342
Recall that in the Mālikī school heterosexual anal intercourse is pure zinā. In contrast, homosexual anal intercourse takes the same general rulings as zinā except that the punishment is always stoning
340 Al-Dusūqī (n 29) vol 2 369; al-Zurqānī (n 28) vol 4 155. 341 Al-Dusūqī (n 29) vol 2 369. 342 Al-Zurqānī (n 28) vol 4 155.
123 and penetrators cannot claim a defense of coercion. As for women, while legal works only mention the submission of starving females to vaginal intercourse, the absolute equivalency between vaginal and anal intercourse should also entail acceptance of a woman’s claim of coercion to anal intercourse on the same standards mentioned above, i.e. provided she is starving and cannot even find prohibited food, she is both legally and morally exempt from zinā.
The complete exclusion of starving males from any concession for anal intercourse, at least in al- Dusūqī’s opinion, places a higher burden on male victims. However, this is not surprising given the particular distaste for homosexual anal intercourse in Mālikī jurisprudence, as well as the restrictions that commonly attach to male victims in other contexts, such as the significant constraints on third-party coercion claims by males in Mālikī law. Nonetheless, given the wide latitude granted to starving women, and even starving men for vaginal intercourse, the gendered burden on starving males in the context of coercive same-sex anal intercourse is harsh in comparison.
3.2 The Standard of Coercion in Cases of Aggression
For female victims, although Mālikī jurists rarely consider the standard of coercion for zinā in cases of aggression, two divorce-related cases are exceptions. In the first case, if a woman knows that her husband has divorced her three times, jurists state that she must take all means to escape zinā (wa’l taftadi minhu wujūban bi kulli mā amkanahā). There are two opinions on the permissibility of killing him: first, that she can kill him if she believes nothing else will repel him; second, that she cannot kill him, but that she cannot enable the intercourse (tamkīn) except if she fears he will kill her.343
Similarly, a woman divorced by her husband who breaks his oath must resist his attempts at intercourse. Again, one opinion permits her to kill him. A second view, which the Mālikī jurist al-Gharnāṭī (d. 1492 CE/897 h) attributes to Saḥnūn (an important early authority in the Mālikī school), is that it is not permissible to kill him or to kill herself. Rather, she can only refuse (imtināʿ) and try to abstain without killing him. He further quotes the Mālikī jurist Ibn Muḥriz (d.
343 Al-Dardīr, al-Sharḥ al-Kabīr (n 77) vol 2 401.
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1058 CE/450 h) who supported Saḥnūn’s opinion since before penetration he does not deserve to be killed, and after intercourse the matter is a ḥadd case which is not for her to implement.344
Presuming these rulings apply outside of ex-spousal situations, Mālikīs seem to require active resistance while disagreeing on whether she can kill the aggressor. However, it is unclear whether the requirement of resistance extends to threats of death or loss of limb, or if it only applies to lesser forms of coercion.
As for males subject to third-party coercion, several Mālikī jurists who accept their defense of coercion provided the female is willing, free and unmarried place the threshold at nothing short of threats of death:
As for the willing woman without a husband or master, it [zinā] is permissible under coercion since it is only God’s right [that is infringed]. The obvious rule (ẓāhir) is that only cases where the defendant was reasonably threatened with death constitutes coercion.
Wa ammā bi ṭāʾiʿa lā zawj lahā wa lā sayyid fa yajūz maʿa al-ikrāh li anna al-ḥaqq ḥīnaʾidh li’l-lāh taʿālā wa’l-ẓāhir anna al-ikrāh fī hādhā bi’l-qatl faqaṭ.345
However, there is some disagreement on this standard. Al-Dusūqī, commenting on al-Dardīr’s requirement of threats of death, believes that the matter is not so straightforward (fīhi naẓar). He references a passage of Ibn Rushd quoted by al-Gharnāṭī where Saḥnūn treated zinā with a willing woman without a husband or master like drinking intoxicants or eating carrion, indicating that coercion for zinā is satisfied by a general fear of being subject to substantial pain (khawf muʾlim muṭlaqan).346 Al-Kharshī also believes that coercion is valid for threats other than death (yajūzu bi ghayr al-qatl).347 The view attributed to Saḥnūn also indicates formative period acceptance of coercion for males in zinā despite most classical Mālikī jurists rejecting this.
Jurists who accept coercion of males within zinā in the face of death or on a lesser threshold do not discuss the man’s sinfulness. The lack of statements encouraging the man to resist or any mention of reward for doing so seems to imply lack of moral reprobation provided the standard of coercion is met. Further, under either standard, it appears that when the threshold is met, there is
344 Al-Gharnāṭī (n 263) vol 5 375-77. Al-Gharnāṭī, commonly known as al-Mawwāq, was the main scholar, imam and mufti of Gharnāṭa during his time. He composed works in the areas of Mālikī law and spirituality (taṣawwuf). See: al-Mawsūʿa al-Fiqhiyya (n 35) vol 3 368. 345 Al-Zurqānī (n 28) vol 4 156. Also see al-Dardīr, al-Sharḥ al-Kabīr (n 77) vol 2 369. 346 Al-Dusūqī (n 29) vol 2 370. 347 Al-Kharshī (n 32) vol 4 36.
125 no requirement of resistance. As for anal coercion where most Mālikī jurists only accept a defense of coercion for the penetrated male and not the penetrator, the standard of coercion for the penetrated male is not discussed. Assuming the above standards apply, some jurists would require a fear of death and others would allow lesser threats.
Since it would be incoherent in light of the usual gender division to attribute a lesser threshold to males than females in cases of aggression, it is possible that the requirement of resistance imposed on women coerced by their ex-husbands assumes a low level of compulsion, such as threats of slander. Alternately, perhaps the discussion surrounding illicit intercourse with ex-husbands is not meant to apply generally. Unlike male victims whose illicit sex only falls under zinā, Mālikī female victims would rarely find themselves claiming coercion under this heading due to the existence of the related crime of usurpation.
3.3 Excuses in Cases of Pregnancy
Given their acceptance of pregnancy as evidence, Mālikīs also consider excuses that relieve pregnant women of liability for zinā. The term coercion (ikrāh) is not used since these excuses relate to involuntary actions while the defendant is unaware rather than threats or attacks against a person capable of resistance. One situation concerns a married woman who gives birth less than six months after marriage, precluding attribution of the child to her husband. A claim of impregnation while sleeping, her husband’s testimony that he found her to be a virgin (ʿadhrāʾ), her known chastity (ʿafāf) and her good character (ḥusn al-ḥāl) all combined suffice to escape criminal liability, although the marriage is annulled (faskh).348
Another situation involves an unmarried pregnant woman. Although outlandish unsubstantiated claims such as pregnancy from semen that entered her in public baths or impregnation by a jinn (other-worldly being) are not acceptable on their own, she is not liable for zinā if she brings evidence (qarīna) to support her claim.349 Further, her claim that she was penetrated in
348 Al-Ḥaṭṭāb (n 49) vol 6 294; al-Zurqānī (n 28) vol 8 139. 349 Al-Dusūqī (n 29) vol 4 319; al-Ṣāwī, (n 41) vol 4 455. For al-Dusūqī, supporting evidence includes her being a virgin (ʿadhrāʾ) and being among those known for chastity (ahl al-ʿiffa).
126 circumstances of doubt or by mistake (ghalaṭ) while sleeping is accepted without evidence “since this happens a lot (li anna hādhā yaqaʿ kathīran)”.350
Thus, unmarried, pregnant women benefit from relatively easy excuses to avoid criminal liability, largely neutralizing the effect of accepting pregnancy as evidence of zinā. Newly married women would have more difficulty given the necessity of the husband’s testimony and the condition that she be of good character. This may be why some works immediately consider alternatives under usurpation when discussing this latter case.351
Similarly, Mālikīs exempt sleeping women subjected to intercourse from ḥadd liability, as do Ḥanafī and Shāfiʿī jurists.352 This is due to lack of mental capacity rather than coercion. However, unlike the situations involving pregnancy, there is no suggestion that a mere claim of sleeping suffices. Rather, the four witnesses may need to testify to her unconscious state during the act to exempt her from liability, as required by the Mālikī jurist al-Kharshī.353
Summary
As zinā is a serious violation of divine boundaries, it is unsurprising that none of the schools allow a person, male or female, to claim coercion for trifling matters. Instead, the spectrum among jurists varies from credible threats of a beating at the lower end, to fear of starvation, to genuine fear of being killed, with or without a requirement of active resistance, but does not encompass threats to reputation, to property, or threats to report the person to the authorities. Further, the exact standard adopted by a given school may correlate in part to the broader context in which those jurists discuss coercion, such as coercion in general versus assaults.
In addition, for some jurists, concerns over preserving the social good by maintaining lineage further support the need to resist zinā, even under coercion, along with concerns regarding the infringement on God’s rules. Despite the already significant burden on females seeking to claim coercion, conventional gender roles usually raise the moral and legal thresholds further for males
350 Al-ʿAdwī (n 41) vol 8 81; al-Ṣāwī (n 41) vol 4 455. 351 Al-Zurqānī (n 28) vol 8 139. 352 Al-Fatāwā al-Hindiyya (n 66) vol 2 150; al-Kharshī (n 32) vol 7 199; al-Sharawānī (n 57) vol 9 107. 353 Al-Kharshī (n 32) vol 7 199.
127 and sometimes deny their claim of coercion altogether. Although legal treatises leave many of the details regarding how to plead coercion unanswered, this seems to be consistent with coercion for matters outside of zinā, such that the lack of detail in this area does not support positive or negative inferences regarding jurists’ approach to rape.
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Chapter 4 Alternate Methods of Resolving Rape Cases
Islamic jurisprudence generally conceives of rape as coerced zinā, a crime which is normally heard before a judge in the unusual case where it is not concealed by privacy considerations, and which was the focus of chapters 1-3. However, Muslim jurists also contemplate some alternate means of resolving rape cases. The present chapter examines these alternatives for rape, which throughout this chapter is still within the meaning of coercive vaginal or anal penetrative intercourse.
One alternate means of resolution consists of re-conceptualizing rape as a crime other than zinā and prosecuting the case before a judge. The second possibility is to maintain that rape is zinā, but to introduce extra-judicial methods of resolution. The first approach is used by Mālikī jurists who accept two alternate legal classifications of rape: usurpation (ightiṣāb) and banditry (ḥirāba). The main proponents of the second method are the Ḥanafī and Shāfiʿī schools which allow self- help measures by ordinary individuals against perpetrators of zinā. Further, Shāfiʿī jurists also consider steps that a perpetrator can take on his own to make amends for his crime.
As for the approach taken by Mālikīs, these alternate conceptions of rape avoid some of the pitfalls of zinā prosecutions. The focus shifts from the act of illicit intercourse to a property transgression in the case of usurpation, or to terrorizing another human being in the case of banditry. However, placing rape inside the boxes of usurpation or banditry – crimes designed primarily for aggressions other than rape – and upholding traditional notions of evidence associated with these crimes, means that prosecution and compensation are not problem-free. Further, these alternatives do not fully override the concept of rape as zinā, resulting in lingering issues from zinā doctrines. Thus, while offering advantages, these alternate resolutions, as historically conceived, require further development from the standpoint of modern sensibilities.
As for extra-judicial resolution of coerced zinā, the potential harm from these methods is significant despite some advantages. Although these alternatives may thwart a rapist caught in the act or morally rehabilitate a repentant perpetrator, the victim is placed at risk of physical harm and reputational damage while coming out no further ahead in terms of a successful prosecution and/or obtaining compensation. Further, the concept of self-help measures co-exists uneasily with other
129 zinā doctrines, as the former bypasses many of the extensive safeguards present in court proceedings for zinā.
This chapter completes the discussion of rape within the meaning of coercive vaginal or anal intercourse in terms of the act of penetration itself (physical injury is covered in chapter 5). The refusal of the two largest schools to recognize rape, absent permanent physical damage, as anything but zinā, with the exception of anal penetration for Ḥanafīs, highlights the unwavering pairing of consensual and coerced illicit intercourse in traditional Islamic jurisprudence where most jurists reduce rape to an immoral sex act that violates the stringent prohibition on intercourse outside of a licit relationship. The alternate means of resolution within these two schools merely take the matter outside of the courts while upholding the status of the act as zinā. Further, the most common judicial alternative in the Mālikī school, usurpation, is partly intertwined with zinā notions, and banditry is still enmeshed in the broader notion of divine claims.
As for the issue of the gendering of rape doctrines, which has been a significant theme in judicial coerced zinā proceedings, this notion continues to flow through these alternate methods of resolution. Here the gendering typically occurs in a broad sense. The victim is always conceived as female, such that usurpation and banditry doctrines only contemplate female victims. Similarly, in extra-judicial doctrines, the aggressor and intervenor are inevitably male while the woman is the victim or at most a consensual participant in the act of intercourse.
Finally, rape as banditry also provides insight into the evolution of Islamic law. Despite evidence of an early exegete who held this opinion, the association between rape and banditry only begins to take shape in Mālikī treatises over 500 years into Islamic history. Whereas the doctrines of usurpation in this paper are continuous with those presented by Azam, the growing association of rape with banditry among Mālikī jurists is unique to this later period and challenges the concept of the complete ossification of Islamic law advocated by some academics. Change is also noticeable to some extent in Shāfiʿī moral resolution doctrines that nearly disappear from legal texts after the beginning of the time period in this study. However, there is no explicit indication that later texts reject the notion, and it is possible that the issue shifted into non-legal writings.
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Usurpation (Ightiṣāb)
Usurpation (ightiṣāb or ghaṣb) relates to the illegal seizure of property, moveable or immoveable, tangible or intangible. In Mālikī treatises, kidnapping a woman for intercourse figures among these misappropriations, providing an alternate legal category for coerced intercourse. As a property claim, usurpation operates substantially differently than zinā. Zinā is a set crime (ḥadd) with special evidentiary requirements and where dower compensation is contingent on conviction or fulfillment of all elements but-for doubt. In contrast, usurpation is primarily a civil claim for compensation, again the dower, with more relaxed evidentiary standards, and may also trigger a discretionary criminal penalty (taʿzīr) for the defendant.
Although all Mālikī works recognize coerced intercourse as usurpation, most devote minimal space to it, typically a few lines in the chapter of usurpation and a few more in the zinā section. The commentaries on Ibn ʿĀṣim’s (d. 1426 CE/829 h) Manẓūmat Tuḥfat al-Ḥukkām by the Moroccan jurists ʿAbd al-Salām (d. 1842 CE/1258 h) and al-Tāwudī (d. 1795 CE/1209 h) are the exceptions among the works consulted.354 Unlike most books of jurisprudence, the base text (matn) and its commentaries focus on matters such as judgment (qaḍā’), witnesses (shuhūd), oaths (yamīn) and compensation (ḍamān) to the exclusion of worship. This discussion relies heavily on these two commentaries, especially the more detailed commentary by ʿAbd al-Salām, for the details of this doctrine.
Further, the fact that coerced intercourse as usurpation receives significant attention in works focused on judicial and civil matters provides some indication that this doctrine was applied in practice. It is easy to imagine that a claim with attainable evidentiary standards would arise regularly in courts even though legal textbooks devote substantially more discussion to zinā.
The findings in this section partially agree with and partially contradict Azam’s portrayal of the Mālikī rules of coerced intercourse as “highly sophisticated”, “more pragmatic” and “more fair”
354 ʿAbd al-Salām (n 74); Muḥammad al-Tāwudī, Ḥulā al-Maʿāṣim li Fikr Ibn ʿĀṣim in ʿA ʿAbd al-Salām and M al- Tāwudī, al-Bahja fī Sharḥ al-Tuḥfa wa maʿahu Ḥulā al-Maʿāṣim li Fikr Ibn ʿĀṣim (Dār al-Kutub al-ʿIlmiyya 1998). Ibn ʿĀṣim was a Mālikī jurist from a scholarly family in Granada where he was appointed chief judge. In addition to jurisprudence, he wrote works on the variant readings of the Quran, Arabic grammar and literature (adab). See: Joseph Schacht, ‘Ibn ʿĀṣim’ in P Bearman and others (eds), Encyclopaedia of Islam (2nd edn, Brill)
131 compared to Ḥanafī (and by extension Shāfiʿī) law due to their use of usurpation.355 This is because although usurpation is advantageous in some situations, in others it does not fully eliminate the prejudicial effects of accepting pregnancy as evidence of zinā, leading to complications absent from the zinā-only doctrines of the other schools. Further, usurpation appears to be limited to females, which means that male rape victims, who face many restrictions under Mālikī zinā rules, cannot avail themselves of any advantages offered by usurpation.356
The rules of usurpation for coerced intercourse differ depending on whether there are eyewitnesses. Both possibilities will be considered in turn.
1.1 Eyewitness Testimony
When two male witnesses testify to the act of usurpation and the woman claims that the man had intercourse with her, whether vaginal or anal, she is entitled to compensation in form of the dower (mahr al-mithl) whether she was a virgin (bikr) or non-virgin (thayyib).357 Further, the testimony of one male along with his oath and her claim of intercourse is likewise sufficient.358 Moreover, while not mentioned explicitly in the context of coerced intercourse, one male and two female witnesses, or one male witness and her oath, or two female witnesses and her oath, should also suffice as with other civil matters.
The witnesses must testify that the assailant carried the woman out of sight in the witnesses’ presence such that intercourse was possible.359 Unlike zinā, there are no requirements that the witnesses’ evidence match in every detail, nor any discouragement from testifying. Slander is inapplicable to the witnesses since there is no testimony to the act of intercourse itself. Further, the woman’s claim of intercourse suffices once testimony establishes the act of carrying her away
355 Azam, Sexual Violation (n 7) 203, 238. 356 I did not encounter any explicit discussion of the applicability of usurpation to male rape victims. However, in addition to the fact that only female victims are mentioned, the property violation inherent in usurpation only logically applies to the male’s use of the female’s genitalia as per the Islamic view of marriage. 357 ʿAbd al-Salām (n 74) vol 2 587-88. For confirmation of the applicability of these doctrines to claims of anal intercourse, see: al-Tāwudī (n 354) vol 2 588. 358 ʿAbd al-Salām (n 74) vol 1 177. 359 ibid vol 2 587-88.
132 and the perpetrator’s denial has no effect on her entitlement to the dower.360 Such claims also give rise to dower if made by a minor girl with whom penetration is possible.361
However, if the female is a virgin, a mere claim of intercourse following witness testimony may be insufficient for the dower. ʿAbd al-Salām states that although the preponderant (ẓāhir) opinion is that women do not examine the virgin, the practice (ʿamal) is the opposite.362 According to this view, the virgin’s claim must be corroborated by evidence of loss of virginity for compensation.
If the claim of usurpation is successful, the perpetrator is liable for financial compensation but not to the ḥadd punishment. Comparing the outcomes of zinā and usurpation, ʿAbd al-Salām states:
[He receives] the ḥadd punishment [of zinā] in addition to paying the dower for the free woman or the decrease in value for the slave woman if four eyewitnesses testify to seeing the act of penetration or he confesses and does not recant. As for the situation where they testify that he carried her off and took her into seclusion and the woman claims penetration and he denies it, he does not get the ḥadd [of zinā] and only pays the dower for the free woman…
Wa’l-ḥadd maʿa dhāk al-ghurm li’l-ṣadāq aw qīmat al-naqṣ ʿalayhi fīhimā ay al-ḥurra wa’l-ama wa hādhā in shahida arbaʿa bi muʿāyanat al-waṭʾ aw aqarra bi dhālika ʿalā nafsihi wa lam yarjiʿ ʿanhu wa ammā in shahidū bi annahu iḥtamalahā wa ghāba ʿalayhā wa iddaʿat al-marʾa al-waṭʾ wa ankara huwa falā ḥadda ʿalayhi wa innamā ʿalayhi al- ṣadāq li’l-ḥurra…363
However, the perpetrator is liable to discretionary punishment (adab) in lieu of the ḥadd. This is based on a general principle in works of jurisprudence that usurpation is a proper context for discretionary punishment.364 Further, al-Tāwudī mentions:
If there is only testimony to the act of usurpation and seclusion and the woman claims there was penetration whereas he denies it, he is not liable to the ḥadd but he receives a severe punishment.
Fa in lam takun al-shahāda illā ʿalā al-ightiṣāb wa’l-khalwa wa iddaʿat al-marʾa al-waṭʾ wa ankara huwa fa lā ḥadd ʿalayhi wa yuʿāqabu ʿuqūba shadīda.365
360 ʿAbd al-Salām (n 74) vol 2 588. Although Azam mentions disagreement on whether the female must take an oath regarding the act of intercourse, none of the works consulted for the later period impose this requirement: Azam, Sexual Violation (n 7) 225. 361 ʿAbd al-Salām (n 74) vol 2 587. 362 ibid vol 2 588. 363 ibid. 364 Al-Dardīr, al-Sharḥ al-Ṣaghīr (n 34) vol 3 583. 365 Al-Tāwudī (n 354) vol 2 588.
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While the witnesses are not liable for slander due to their testimony to the act of abduction only, Mālikī works are silent on the woman’s slander liability for her claim of intercourse, which is necessary to obtain the dower. Most likely, she is not liable for slander. As will be examined in the following subsection, Mālikī jurists discuss the woman’s slander liability in detail for usurpation without witnesses and excuse her in circumstances where the combination of the woman’s character, defendant’s character and circumstantial evidence supports the claim. There, no situation that results in an accepted dower claim also results in slander liability. A fortiori, in claims involving witnesses, the woman should be exempt. Further, as claims with witnesses are mentioned immediately before or after claims without witnesses, where situations giving rise to liability for slander are stated explicitly, the silence on slander for claims with witnesses in its larger context implies lack of liability.
Overall, the doctrine of usurpation where there are witnesses, which frames the rape as a violation against the female’s ownership of her own sexuality, facilitates claims for compensation as well as punishment of the perpetrator. While the financial award only recognizes sexual use of the woman’s body and not other forms of damages, and the diminished status of female witnesses may be a hurdle in some cases, the victim has increased access to justice compared to zinā doctrines. Further, the use of coercion as a sword indicates that restricting coercion to a defense in legal systems that criminalize non-marital intercourse is not necessary provided that the legal treatment of coerced intercourse is disentangled from the doctrines regulating consensual illicit sex.
On the whole, despite some limitations that relate primarily to the difference between property notions and modern views of rape as an aggression against the individual that causes broader harm to her entire person, the many positive aspects vindicate the claim that Mālikī rules in this area are, from a contemporary perspective, more pragmatic, fair and sophisticated than the other schools’ treatment of coerced intercourse.
1.2 Claim without Witnesses
For a claim of usurpation without witnesses, Mālikī jurists premise the outcome on three factors: the character of the defendant, the character of the claimant, and the presence or absence of taʿalluq (immediacy of the claim and circumstantial evidence). Further, unlike claims with witness
134 testimony, the outcome is not limited to determining entitlement to the dower; rather, the three factors determine the woman’s entitlement to dower as well as her liability for the ḥadd punishments for zinā and slander.
Although the three factors are uniform across Mālikī works, there is disagreement between the commentaries on Manẓūmat Tuḥfat al-Ḥukkām and the remaining legal works on some of the outcomes. Further, the sources sometimes mention different views, with or without a preference for a certain result.366 Where multiple opinions exist, those advocated by the commentaries on Manẓūmat Tuḥfat al-Ḥukkām are noted in the chart below by “[T]”, whereas views stated in the other works are distinguished by “[O]”.
366 As such, the diversity of opinions noted by Azam for her period persists into the following centuries where there are no witnesses: Azam, Sexual Violation (n 7) 204.
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Taʿalluq Man's Woman's Woman liable for (timeliness and Woman liable for zinā? Dower Due? Character Character corroborating circum- slander? stantial evidence) Chaste/ Yes if pregnant or if not Upright unknown/ No Yes No pregnant and does not recant unchaste Yes [O; T mentions] No No Upright Chaste Yes Yes if he declines oath and No [T prefers] No she swears Unknown/ Upright Yes Yes No No unchaste Yes if pregnant or if not Yes [O; T prefers] No pregnant and does not recant Yes if he declines oath and Unknown Chaste No No [T mentions] No she swears Yes if pregnant or if not No [T mentions] No pregnant and does not recant Unknown/ Yes if pregnant or if not Unknown No Yes No unchaste pregnant and does not recant No [O] Unknown Chaste Yes No No Yes if he declines oath and she swears [T] Yes [O; T] No No Unknown/ Unknown Yes No [O]; yes if he declines unchaste No [O; T] No oath and she swears [T] No [O] Chaste/ Corrupt unknown/ No No Yes if pregnant Yes if he declines oath and unchaste she swears, provided she is not pregnant [T] Chaste/ No [O] Corrupt unknown/ Yes No No unchaste Yes if she swears oath [T] Table 3: Outcomes for Claims of Usurpation without Witnesses
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Jurists measure the male’s character on a three-level scale: upright (referred to by terms such as ṣāliḥ/upright, maʿrūf bi’l-dīn/known for religiosity and maʿrūf bi’l-khayr/known for goodness), unknown (majhūl), and corrupt (often called maʿrūf bi’l-fasād/known for depravity). The female’s character also spans three levels but is gauged by her chastity. She can be chaste (maʿrūfa bi’l- ṣiyāna/known for care or maʿrūfa bi’l-ʿafāf/known for chastity), unknown (majhūla), or unchaste (maʿrūfa bi ʿadam al-ṣiyāna/known to be careless or maʿrūfa bi ʿadam al-ʿafāf/known for lack of chastity). Perceived reputation is of utmost importance since there is no concept of weighing testimony and assessing credibility aside from the limited components of taʿalluq that will be discussed below.
Although the third factor of taʿalluq is accepted by all works and plays a key role in determining the outcome, many jurists do not explain the meaning of the term and those that define it offer varying explanations. Among these definitions, ʿAbd al-Salām considers taʿalluq the woman’s immediate reporting of the incident of usurpation, at least to her family (ahl):
The meaning of taʿalluq is that she mentions it [the incident] immediately and complains of it to her family. The meaning is not that she comes pulling him by the hand or by his clothes, as this does not apply to her regarding the one over whom she has no power.
Wa maʿnā al-taʿalluq an tadhkura dhālika fī’l-ḥīn wa tashtakī bi dhālika li ahlihā wa laysa al-murād an taʾtiya māsika bi yadihi aw thawbihi fa hādhā lā yataʾattā lahā fī man lā qudra lahā ʿalayhi.367
Elsewhere, ʿAbd al-Salām contrasts taʿalluq with delayed reporting after the event (al-tarākhī ʿan al-nāzila), whether a short or long delay.368 This means that any wait falls short of taʿalluq.
The Egyptian Mālikī al-Zurqānī likewise requires immediate reporting, though without specifying to whom. He also adds a component, stating “the meaning of taʿalluq is that she comes immediately after the penetration seeking help or the virgin comes bleeding even if she did not call for help (wa al-murād bi’l-taʿalluq an taʾtiya ʿaqaba al-waṭʾ mustaghītha aw taʾtiya al-bikr tadmā wa in lam tastaghith).”369 Al-Dusūqī proposes a similar definition, but further requires the virgin to say, “so-and-so coerced me (akrahanī fulān)”, a condition not found in the other later
367 ʿAbd al-Salām (n 74) vol 2 590. 368 ibid vol 2 589. 369 Al-Zurqānī (n 28) vol 8 139.
137 sources, but which matches a stipulation by Qāḍī ʿIyāḍ (d.1149 CE/544 h) who pre-dates this time period.370
The main content of these definitions can be reconciled. Although ʿAbd al-Salām limits the meaning of taʿalluq to immediate reporting, he further inquires whether the woman came seeking help and/or bleeding.371 For him, the third factor seems to comprise taʿalluq and additional evidence of coercion, whereas other jurists place both components under the label of taʿalluq. Moreover, none of these definitions accept valid reasons for delay, such as a woman’s fear of reprisal or shame that may discourage her from seeking immediate help, even if she persists in her claim after some time.372 For these jurists, it is her immediate willingness to expose herself to shame that indicates the likelihood that she is being truthful.
If the man is righteous and there is no taʿalluq, the woman has no remedy and receives the ḥadd of slander for her claim. Further, in this case she is liable to the ḥadd of zinā if pregnant or if she is not pregnant but does not recant, regardless of her character. Where taʿalluq is present, she is still liable for slander according to many jurists, although ʿAbd al-Salām and al-Tāwudī excuse the chaste woman from liability. However, even for these two jurists, the man can avoid the dower by swearing that her accusation is false.
The lack of remedy and potential liability for slander and zinā raise the question of why a female would accuse an upright man of coerced intercourse under this doctrine. In legal texts, a woman’s sole claim of usurpation is often mentioned in the chapter of zinā as a way for females to avoid the ḥadd of zinā despite being pregnant in addition to the excuses discussed earlier under the concept of coercion.373 Thus, al-Dardīr states:
[Zinā] is established by the appearance of pregnancy in the unmarried woman…or by childbirth within six months of the marriage contract, such that she is given the ḥadd. Her claim…of coerced intercourse (ghaṣb) is not believed without extrinsic evidence that confirms it, rather she receives the ḥadd.
370 Azam, Sexual Violation (n 7) 227; al-Dusūqī (n 29) vol 4 319. 371 ʿAbd al-Salām (n 74) vol 2 590-91. Although other sources seem to limit bleeding to its literal meaning for the virgin, he also applies it to the non-virgin in the meaning of screaming (ṣārikha) and seeking help: ibid vol 2 591. 372 Azam renders taʿalluq as “persistence” which I am not sure captures the totality of the term: see for example Azam, Sexual Violation (n 7) 210. However, she mentions the requirements of timely reporting and evidence such as bleeding: ibid 226. As such, there does not seem to be a significant change in the legal meaning of the term over time. 373 See for example al-Kharshī (n 32) vol 6 148 [chapter of usurpation], vol 8 81 [zinā section]. Excuses discussed previously included impregnation by semen in public baths and impregnation while sleeping.
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Wa yathbutu bi ḥaml ay ẓuḥurihi fī imraʾa ghayr mutazawwija…aw atat bihi kāmilan li dūn sitta ashhur min al-ʿaqd fa tuḥaddu wa lam yuqbal daʿwāhā ay man ẓahara bihā al- ḥamlu al-ghaṣba bi lā qarīna tuṣaddiquhā fa tuḥadd.374
In such cases, usurpation does not act as a true civil claim but rather as a victim’s plea to be excused from zinā established by circumstantial evidence.375 In essence, the coerced female must choose between omitting the usurpation claim, thereby risking zinā liability if she later shows pregnancy, or claiming usurpation, thereby incurring liability for slander. Unlike usurpation claims with witnesses, the doctrines here are fully interwoven with zinā rules and function as a partial patch for the acceptance of pregnancy in zinā cases.
Although there is a possibility that “ghaṣb” in the preceding quote is intended as a synonym for coercion (ikrāh) rather than as a reference to usurpation, the utility of a pregnant woman’s timely claim of usurpation to avoid the ḥadd of zinā can also be deduced logically from the combinations presented in the chart above. Further, the link between claims of coerced intercourse without witnesses and pregnancy explains why, unlike usurpation with witnesses, legal texts are silent on usurpation without witnesses for anal intercourse. Rationally, the impossibility of conception from anal penetration means that victims do not need to bring such a claim to preclude zinā charges from the appearance of pregnancy.376
The resulting choice facing coerced females is far more stunning than the predicaments that preceded for zinā. The zinā-only doctrines of the other schools that reject circumstantial evidence offer her the option of remaining silent with no threat of zinā or slander liability. While it seems that coerced, pregnant females without witnesses to usurpation can bypass both slander and zinā liability in the Mālikī school by omitting the usurpation claim and claiming impregnation while sleeping when put on trial for zinā (discussed earlier under the concept of coercion), she must still face judicial proceedings unlike in schools that disallow circumstantial evidence. The prejudicial result is not a shortcoming of the property theory of usurpation in and of itself, but of the Mālikī
374 Al-Dardīr, al-Sharḥ al-Kabīr (n 77) vol 4 319. 375 In the classical period, Azam notes that al-Bājī explicitly mentions pregnancy as evidence of zinā as a key impetus for the laws of usurpation: Azam, Sexual Violation (n 7) 232. In later texts, this link can only be inferred. 376 Further, given the liability to slander and the lack of dower for usurpation claims without witnesses according to most later jurists, there is no benefit whatsoever to claiming usurpation absent witnesses in the context of anal penetration. The only potential exception is where the combination of the male and female character traits and taʿalluq preclude slander liability and we adopt the opinion of ʿAbd al-Salām and al-Tāwudī who allow dower claims.
139 theory of evidence regarding zinā which accepts pregnancy as evidence. Usurpation does not override this aspect of zinā but rather exists in tandem with it.
As seen in the chart, criminal liability also attaches to females claiming coerced intercourse without witnesses for other combinations of factors aside from those already explained above. Only in select cases, such as a chaste female’s immediate claim against a man of unknown or bad character, does the female’s claim of coerced intercourse without witnesses act as a full shield against both slander and zinā charges. However, even in such cases, bringing a claim is only made necessary by the pregnancy as proof of zinā rule, placing the burden on the victim to bring a claim to protect herself from liability if she shows pregnancy. Nonetheless, such claims against corrupt men do offer one advantage beyond protecting the female from zinā charges, as the perpetrator will be given discretionary punishment even though he is not liable to the set penalty.377
For the jurists who recognize a financial remedy where there are no witnesses, namely ʿAbd al- Salām and al-Tāwudī, access to compensation is largely dependent on the man’s character. If deemed righteous, there is no compensation except in one disputed case. Moreover, for all except the corrupt male, his oath can defeat the financial remedy for women of lower, equal or higher character. In contrast, chaste women must meet strict conditions of reporting to preserve the possibility of obtaining a remedy, and in other cases just to be relieved of criminal liability despite claiming to be the victim.
However, other jurists deny the dower for all claims of usurpation without witnesses for two reasons:
She does not get the dower in any of the three cases since [1.] her statement amounts to a confession regarding her own person and the defendant, but he cannot be held liable by her confession. [2.] Also, Ibn Rushd mentioned a narration from ʿĪsā from Ibn al-Qāsim that she is not entitled to dower if she claims it from the corrupt man with taʿalluq, so a fortiori [she does not obtain the dower] without taʿalluq or if she claims this from the unknown or righteous man.
Wa iʿlam annahu lā mahr lahā ʿalā wāḥid min al-thalātha li anna mā dakarathu iqrār ʿalā nafsihā wa ʿalā al-muddaʿā ʿalayhi fa lā yuʾākhadhu bi iqrārihā ʿalayhi wa ayḍan fa qad dhakara Ibn Rushd ʿan riwāyat ʿĪsā ʿan Ibn al-Qāsim annahu lā ṣadāq lahā idhā iddaʿathu
377 Aḥmad al-Wansharīsī, al-Miʿyār al-Muʿrib wa’l Jāmiʿ al-Mughrib ʿan Fatāwā Ahl Ifrīqiyya wa’l Andalus wa’l Maghrib (Wizārat al-Awqāf wa’l Shuʾūn al-Islāmiyya li’l Mamlakat al-Maghribiyya 1981) vol 10 230.
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ʿalā fāsiq wa taʿallaqat bihi fa awlā idhā lam tataʿallaq bihi wa awlā idhā iddaʿathu ʿalā majhūl ḥāl aw ṣāliḥ.378
This view of the woman’s claim as a confession with no impact on the alleged perpetrator further emphasizes the nature of usurpation claims without witnesses as a shield against ḥadd liability rather than a civil claim against the culprit or an allegation that necessarily results in his punishment.
In contrast, ʿAbd al-Salām mentions the same account from ʿĪsā, but counters it with a second narration indicating that Ibn al-Qāsim had two views: the first, that she is not entitled to anything as per ʿĪsā, and the second that she receives the dower if she takes an oath.379 He also appeals to an opinion narrated from Mālik which grants the free woman the dower. Further, ʿAbd al-Salām states that judicial practice (ʿamal) is based on this opinion. This is because in property matters (amwāl) the usurped person is believed, so this is even more appropriate regarding claims of penetration (furūj). Further, the opposite view – no liability – results in increased corruption and dissipates the rights of people (taḍyīʿ ḥuqūq al-ʿibād).380
ʿAbd al-Salām’s justifications position the female as a true victim while imposing financial consequences on the male where the combination of factors results in the dower. Unfortunately, this does not change the fact that the entanglement of usurpation without witnesses with the rules of zinā and slander can be extraordinary problematic for victims. While it is possible that greater family and communal living in past eras would have meant that unwitnessed kidnappings would have been relatively uncommon, where they did occur, the victim could face significant challenges. Further, directly importing these doctrines into today’s world entail results that by modern standards would be considered miscarriages of justice.
378 Al-Dusūqī (n 29) vol 3 459. For an almost identical statement, see al-Zurqānī (n 28) vol 6 279. 379 ʿAbd al-Salām (n 74) vol 2 592-93. 380 ibid.
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Banditry (Ḥirāba)
Banditry, known as ḥirāba or qaṭʿ al-ṭarīq, is one of the ḥadd crimes against the limits set by God. For most jurists, banditry relates to interfering with the safe passage of wayfarers or brazenly stealing their property (as opposed to surreptitious theft, sariqa); there is no link between banditry and intercourse, whether coerced or consensual. The absence of any relation holds true across all Shāfiʿī and Ḥanafī texts and many Mālikī works.
For example, Shāfiʿī sources define banditry as “a group that lies in wait for people, then when they see them, they emerge, intending to take their property, relying on their strength and might to overpower them (fa quṭṭāʿ al-ṭarīq ṭāʾifa yataraṣṣadūn fī al-amākin li’l-rufqa fa idhā raʾawhum barazū ilayhim qāṣidīn al-amwāl muʿtamidīn fī dhālika ʿalā quwwa wa qudra yataghallabūn bihā).”381 Further, discussions of punishment by Shāfiʿī and Ḥanafī jurists centre on the penalties accorded to four types of violations by the bandits, i.e. did they only terrorize wayfarers without taking property or otherwise physically harming them, or did they steal property from their victims, or did they kill them, or did they both steal and kill?382 Differences such as whether banditry can take place in a city have no impact on the main thrust of the offence.
Although it is possible that a bandit may simultaneously engage in illicit intercourse or other infractions such as drinking alcohol, these are separate crimes, as mentioned by the Shāfiʿī jurist al-Bujayramī.383 Such a person is liable to trial and punishment for each offence according to the standards of evidence and penalties for that crime. Zinā, which concerns illicit intercourse, is not subsumed under the banditry proceedings. Any claim that coerced intercourse may be prosecuted as banditry in these two schools is reading in notions absent in the schools’ traditions.
Many Mālikī jurists also understand banditry in this manner. Thus, school texts mention that banditry involves intimidation (ikhāfa) of people to prevent passage (li manʿ al-sulūk) on the roadway or taking the property of a Muslim or non-Muslim.384 Further, hindering public highways
381 Al-Ḥiṣnī (n 27) 488. Ḥanafī sources do not usually set out a succinct definition, but rather mention the conditions of banditry: see for example al-ʿAynī (n 32) vol 7 80. 382 Al-ʿAynī (n 32) vol 7 81-82; al-Ḥiṣnī (n 27) 487. 383 Al-Bujayramī (n 48) vol 4 217. 384 Al-Dardīr, al-Sharḥ al-Kabīr (n 77) vol 4 348.
142 suffices even if the culprit did not intend to take money, as does taking someone’s money when they cannot seek help.385
However, unlike the other schools, some Mālikī jurists advocate for the inclusion of rape in banditry in addition to the usual violations that come under this crime. This occurs in five of the fourteen Mālikī texts consulted for this time period: al-Zurqānī’s commentary on Khalīl and al- Bannānī’s (d. 1780 CE/1194 h) related gloss, al-Dardīr’s al-Sharḥ al-Saghīr and al-Ṣāwī’s (d. 1825 CE/1241 h) associated gloss, and al-Dusūqī’s gloss on al-Sharḥ al-Kabīr (also by al-Dardīr, but this concept only comes in his other commentary).386
These five jurists rely on the following argument for incorporating rape: if taking the property of a Muslim or non-Muslim constitutes banditry, a fortiori forcible penetration must be included insofar as it has greater protections in the law than property (al-buḍʿ aḥrā min al-māl).387 Further, all reference al-Qurṭubī (d. 1273 CE/671 h) and Ibn al-ʿArabī (d. 1148 CE/543 h) as authorities for this position.388
For a better understanding, it is helpful to cite the earlier sources in full:
The Judge [Ibn al-ʿArabī], may God be pleased with him, said: During the days of my judgeship, some people were brought to me who had gone out as bandits to attack another group. They violently seized from that group a woman, whom they took against her will, from her husband and from the group of Muslims with her, and they took her away. Then an appeal was put out for them and they were captured and brought forth. I asked those
385 Al-Ḥaṭṭāb (n 49) vol 6 314; al-Kharshī (n 32) vol 8 104. 386 Al-Bannānī, also referred to as Bannānī without the definite article, was a Mālikī jurist based in Fes, Morocco. He was appointed as orator (khaṭīb) of the Mausoleum of Moulay Idriss (al-ḍarīḥ al-idrīsī), an important shrine outside of Fes. He authored works in jurisprudence and logic (manṭiq). See: al-Zirkilī (n 27) vol 6 91. Al-Ṣāwī was a Mālikī jurist from Egypt who later passed away in Medina. He wrote works in the areas of Mālikī jurisprudence and Quranic exegesis. See: al-Zirkilī (n 27) vol 1 246. 387 Muḥammad al-Bannānī, al-Fatḥ al-Rabbānī fīmā Dhahala ʿanhu al-Zurqānī in M al-Zurqānī and M al-Bannānī Sharḥ al-Zurqānī ʿalā Mukhtaṣar Khalīl wa Ḥāshiyat al-Bannānī (ʿA Amīn ed, Dār al-Kutub al-ʿIlmiyya 2002) vol 8 189; al-Dardīr, al-Sharḥ al-Ṣaghīr (n 34) vol 4 491; al-Dusūqī (n 29) vol 4 348; al-Ṣāwī (n 41) vol 4 491; al-Zurqānī (n 28) vol 8 189. 388 Al-Qurṭubī was a Mālikī jurist and scholar of ḥadīth who is well-known for his Quranic exegesis. He was from Spain but settled in Egypt. His exegesis, which is the work that concerns us here, is distinguished by its incorporation of a large number of ḥadīths and is above all intended to clarify the meaning and implication of the law. See: Roger Arnaldez, ‘al-Ḳurṭubī’ in P Bearman and others (eds), Encyclopaedia of Islam (2nd edn, Brill)
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judges through whom God tested my patience, and they said, “they are not bandits because banditry is a crime that entails violation of property, not violation of sexual rights.” I said to them, “to God we belong and to Him we return! Do you not know that banditry where the aim is rape is viler than banditry which seeks others’ property, and that all people would rather have their property disappear or be plundered from their hands than for their wife or daughter to be raped? If there were any punishment more severe than what God stated for banditry, it would be for the one who uses terror to commit rape. To be tried by the company of such ignoramuses is enough of an ordeal, especially when they are engaged in fatwās and are appointed as judges.”
Qāla al-qāḍī raḍiya Allāh ʿanhu: wa la qad kuntu ayyām tawliyat al-qaḍāʾ qad rujiʿa ilayya qawm kharajū muḥaribīn ilā rufqa fa akhadhū minhum imraʾa mughālaba ʿalā nafsihā min zawjihā wa min jumlat al-muslimīn maʿahu fīhā fa iḥtamalūhā thumma jadda fīhim al-ṭalab fa ukhidhū wa jīʾa fīhim fa saʾaltu man kāna ibtalānī Allāh bihi min al-muftīn fa qālū: laysū muḥāribīn li anna al-ḥirāba innamā takūnu fī al-amwāl lā fī al-furūj. Fa qultu lahum: innā li’llāhi wa innā ilayhi rājiʿūn a lam taʿlamū anna al-ḥirāba fī al-furūj afḥash minhā fī al-amwāl wa anna al-nās kullahum la-yarḍawn an tadhhaba amwāluhum wa tuḥrab min bayni aydīhim wa lā yuḥrab al-marʾ min zawjatihi wa bintihi wa law kāna fawqa mā qāla Allāh ʿuqūba la-kānat li man yaslubu al-furūj wa ḥasbukum min balāʾ ṣuḥbat al-juhhāl wa khuṣūṣan fī al-futyā wa’l-qaḍāʾ.389
Moreover, al-Qurṭubī states in his exegesis of the verses of banditry (Quran 5:33-34):
Mujāhid [an early exegete] said that what is intended by “banditry” in this verse is illicit intercourse (zinā) and theft. However, this is not correct because God the exalted explained in His book on the tongue of His Prophet that the thief’s hand is cut and that the fornicator/adulterer is lashed and banished if he is a virgin or stoned if he is a non-virgin, but the ruling of the bandit in this verse contradicts that. However, this view would be correct if he intends to intimidate wayfarers by drawing weapons in order to commit rape because this is the vilest type of banditry and more repulsive than taking property, so it is included in the meaning of “and spread corruption in the earth” [in Quran 5:33].
Qāla Mujāhid: al-murād bi’l-muḥāraba fī hādhihi al-āya al-zinā wa’l-sariqa, wa laysa bi ṣaḥīḥ li anna Allāh subḥānahu bayyana fī kitābihi wa ʿalā liṣan nabiyyihi anna al-sāriq tuqṭaʿu yaduhu wa anna al-zānī yujladu wa yugharrabu in kāna bikran wa yurjamu in kāna thayyiban muḥṣanan wa aḥkām al-muḥārib fī hādhihi al-āya mukhālifa li dhālik Allāhumma illā an yurīda ikhāfat al-ṭarīq bi iẓhār al-silāḥ qaṣdan li’l-ghalaba ʿalā al-furūj fa hādhā afḥash al-muḥāraba wa aqbaḥ min akhdh al-amwāl wa qad dakhala fī maʿnā qawlihi taʿālā “wa yasʿawna fi’l-arḍi fasādan”.390
From al-Qurṭubī’s exegesis it seems that the view linking illegal intercourse and banditry dates to the formative period, but that this interpretation was not advocated by jurists from the four schools until several centuries later.
389 Muḥammad Ibn al-ʿArabī, Aḥkām al-Qurʾān (Dār al-Kutub al-ʿIlmiyya 2003) vol 2 95. 390 Muḥammad al-Qurṭubī, al-Jāmiʿ li Aḥkām al-Qurʾān (Dār al-Kutub al-Miṣriyya 1964) vol 6 156.
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Mālikī works that include rape within banditry contain the same zinā and usurpation doctrines as those that do not. This leads to the question of when these jurists consider rape as banditry and when they consider it zinā or usurpation.
First, that such jurists include intercourse under banditry as opposed to another type of sexual violation is itself an assumption. Commonly used expressions such as “domination of genitalia” (al-ghalaba ʿalā al-furūj), or “the vulva has more protections than property” (al buḍʿ aḥrā min al- māl) do not explicitly denote penetration. One source also uses the term “violation of female relatives” (hatk al-ḥarīm).391 Only the citation by al-Qurṭubī directly links forcible taking of the genitalia with zinā. While subsequent works mention al-Qurṭubī as an authority, they do not quote the content of his opinion as they do with Ibn al-ʿArabī.
However, combining the quote from al-Qurṭubī with inferences drawn from ideas such as dominating another’s sexual organs, it is not unlikely these jurists intended coerced intercourse; nonetheless, there is a possibility that they had another form of sexual violation in mind and would place all intercourse under zinā and usurpation.
In either case, inclusion of sexual violation under banditry may be limited to certain circumstances. Al-Qurṭubī restricts it to situations where there is intent to intimidate wayfarers by drawing weapons while placing other circumstances under the laws of zinā.392 This seems to exclude situations such as a man luring a lone female or breaking into a woman’s home from banditry.
In contrast, al-Bannānī links rape as banditry to “whoever goes out to strike fear in the public highway (ikhāfat al-sabīl)”.393 Similarly, al-Ṣāwī says, “regarding the genitalia being more worthy, i.e. they are more worthy of protection than property, as set out in al-Qurṭubī and Ibn al- ʿArabī, so whoever goes out to strike fear in the path intending to dishonour women, he is a bandit, as happens in our times in Egypt (qawluhu wa’l-buḍʿ aḥrā: ay min al-māl kamā li’l-Qurṭubī wa
391 Al-Ṣāwī (n 41) vol 4 491. 392 This opinion, i.e. that rape is banditry only when weapons are used, is also advocated by a popular contemporary Saudi Arabian fatwā website that draws on jurists from the four schools as well as the opinions of formative period jurists and their own interpretation of the Quran and ḥadīth. Although other parts of the ruling quote multiple known jurists, it is unclear whether this aspect relies on al-Qurṭubī or another Mālikī jurist, or whether the source of their reasoning lies elsewhere. See: Muhammad S al-Munajjid, ‘Ḥukm Jarīmat al-Ightiṣāb’ (Islam Question & Answer, 21 August 2005)
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Ibn al-ʿArabī fa man kharaja li ikhāfat al-sabīl qaṣdan li hatk al-ḥarīm fa huwa muḥārib kamā huwa al-ān ʿindanā bi Miṣr).”394 As such statements are more inclusive than al-Qurṭubī’s, and given that Mālikī works allow banditry in cities, these jurists might accept any situation of coercive intercourse by strangers outside the home as banditry.
The possible circumscribed nature of rape situations that come under banditry rather than zinā is one potential limitation of this doctrine. Further, it is unknown whether traditional jurists would accept male rape as banditry. Although males are not explicitly excluded, many of the preceding quotes single out female victims, such the last citation by al-Ṣāwī regarding intent to “dishonour women” and the recurring statement in legal texts that “the vulva is more worthy of protection than property” (al buḍʿ aḥrā min al-māl).
Moreover, although evidentiary burdens for banditry are less than zinā, a unique aspect of banditry accepted by all schools is that the ḥadd punishment drops by repentance before capture as per Quran 5:34. Like zinā, banditry is set crime that involves a divine claim which may be waived in appropriate circumstances. However, discretionary punishment could still apply. As for the victim, banditry may jointly involve an interpersonal claim, and in such cases the rights of individuals are treated separately, such that entitlement to retaliation (qiṣāṣ) survives where killing or physical injury occurred.395 As such, the culprits may be liable to the dower for sexual access, although this is not mentioned explicitly in the limited statements on rape as banditry. Further, banditry doctrines do not contemplate claims for non-grievous bodily injury or psychological harm, and such claims are absent from Islamic jurisprudence generally.
In addition, as rape as banditry only occurs in a minority of Mālikī texts, it is unclear if this concept enjoys wider acceptance. While failure to endorse explicitly does not automatically imply rejection, rape as zinā or usurpation seems to enjoy greater prominence among the majority of the school’s jurists. As such, unconditional claims that the Mālikī school prosecutes rape as banditry in some academic and reformist literature should be treated with caution, and the implication that Sunnī jurists accept this generally is an appeal to the authority of tradition while selectively ignoring its content.396 Moreover, difficulties using this doctrine to prosecute sexual crimes, such
394 Al-Ṣāwī (n 41) vol 4 491. 395 Al-Zurqānī (n 28) vol 8 193. 396 See for example Quraishi (n 7) 315-317. Such works also tend to invoke Ibn Ḥazm as representative of the four schools.
146 as the ḥadd dropping by repentance and the limitations on compensation for victims, are rarely addressed.
Nonetheless, the existence of this view of rape in the Mālikī school is one possible method of decoupling coerced intercourse from consensual zinā in a legal system that forbids sexual relations outside of marriage. As such, while challenges associated with the ḥadd rules generally would need to be addressed, and while honest accounts of historical rules would be preferable, this doctrine could be a source for further developments in Islamic jurisprudence that are both connected to tradition and responsive to access to justice for victims.
Self-Help Measures
The permission granted to rape victims to resist, or even the obligation to do so, has already been discussed in connection with the concept of coercion. This section turns to actions taken against the coercer by the victim’s husband, male relative or an unrelated third party, referred to here as self-help measures. Except where noted below, these actions are equally applicable to consensual situations. Though performed without court judgment, self-help measures are authorized by jurists in certain situations. Therefore, unlike usurpation and banditry which are judicial alternatives to a zinā prosecution, self-help measures are legally sanctioned forms of rough justice taken by ordinary persons in situations of zinā outside of the court setting.
Legal discourse situates these measures a subset of discretionary punishment (taʿzīr) (Ḥanafī), assaults (ṣiyāl) (Shāfiʿī), or rulings on restitution and retaliation (aḥkām al-dimāʾ wa’l qiṣāṣ) (Mālikī). While Ḥanafīs grant individuals broad but non-obligatory powers of interference and Shāfiʿīs obligate action, Mālikīs barely allow self-help measures. The permissibility of these measures, even with restrictions, sits somewhat uneasily with the rules governing ḥadd prosecutions and exposes rape victims to additional risks.
Further, jurists from all schools seem to assume that the bystander is male while the victim is female. The applicability of these rulings to female intervenors is unknown. Although women are allowed or required to defend themselves as victims, given the restrictions on female testimony, it is possible that female bystanders could be subject to constraints when acting as third parties.
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Ḥanafīs allow a person who finds an unmarried man and woman engaging in illicit intercourse, or who finds them in seclusion (khalwa) even if he does not witness the act of zinā, to kill the male party if yelling (ṣiyāḥ) or a beating (ḍarb) are not sufficient deterrence (inzijār).397 Further, if the woman is his wife or blood relative (maḥram), some jurists allow him to kill the male party without restriction (muṭlaqan) without attempting lesser measures, particularly if he sees the act of zinā.398 Although taking action is not obligatory, the intervener is not only free from liability, but according to some works he is also rewarded for his action.399 This applies as long as the act is in progress. After it is complete, it is a judicial matter, such that anybody interfering is himself liable to punishment.400 This restriction contrasts with contemporary suspicion-based honour killings.
For Shāfiʿīs, intervention is often obligatory. Thus, when someone tries to commit zinā with a man’s wife, daughter, mother or other female relatives (ḥarīma/ahl), he must defend her provided he does not fear for his own life or limb.401 Many jurists also extend this obligation of defense to non-related females.402 However, in contrast to the other schools, for Shāfiʿīs these self-help measures only concern coerced, rather than consensual, intercourse since they confine their discussion to the chapter of assaults which concerns attacks on victims. There is no indication in Shāfiʿī texts that any form of self-help measure is permissible or required for consensual zinā. Thus, as occurred in the threshold of coercion, the variant legal lenses for self-help, i.e. assault versus discretionary punishment (in coercion, assault versus coercion generally), lead to differing conceptions of this duty.
The Shāfiʿī obligation also applies to precursors (muqaddimāt) of zinā, such as kissing.403 This is comparable to the Ḥanafī school whose allowance of intervention for seclusion (khalwa) would also cover such precursors outside of public locations. However, Shāfiʿī jurists are divided on whether it is necessary to use the least forceful method to repel the attacker if he is a virgin (for
397 Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 4 63; Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 5 45. A few works seem to restrict these self-help measures to situations where the parties to zinā are non-virgin (muḥṣan): al-Baghdādī (n 309) 172; al-Fatāwā al-Hindiyya (n 66) vol 5 314. Ibn ʿĀbidīn explicitly rejects this restriction: Ibn ʿĀbidīn, Minḥat al- Khāliq (n 33) vol 5 45. 398 Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 4 63; Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 5 45. 399 Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 5 45; Al-Ramlī, al-Fatāwā al-Khayriyya (n 211) vol 1 87-88. 400 Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 5 45. 401 Al-Ḥiṣnī (n 27) 490; al-Shirbīnī (n 28) vol 5 528. 402 Al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 183; al-Ḥiṣnī (n 27) 490; al-Shirbīnī (n 28) vol 5 528. 403 Al-Ramlī, Nihāyat al-Muḥtāj (n 64) vol 8 25. Among the works consulted, only Ibn Ḥajar questions the extension to such acts (“fīhi naẓar”), though he opines that the obligation is not farfetched (lā yabʿud): al-Haytamī, Tuḥfat al- Muḥtāj (n 29) vol 9 183.
148 non-virgins, their blood is considered lawful due to having committed a capital offence).404 Jurists who reject this requirement do so unconditionally, unlike the Ḥanafī rule that makes bypassing the order of severity contingent on the bystander being the woman’s husband or relative (maḥram).
In contrast, in the Mālikī school killing a virgin party to zinā always gives rise to retaliation (qiṣāṣ) with one exception.405 Further, there is punishment (adab) if the person is a non-virgin just like killing the apostate (murtadd) or cutting the hand of the thief without permission of the imam.406 The exception for virgins occurs when a man finds him with his wife and there is evidence of zinā in the form of four witnesses who establish the offence or the testimony of one eyewitness which introduces doubt (shubha) regarding the killing.407 Mālikī texts are silent on lesser forms of interference such as hitting (ḍarb) upon discovery of zinā. It seems that such actions would be liable to retaliation and/or discretionary punishment according to the usual laws that govern injuries and wrongdoing contrary to the other schools.
As for the coerced female, Ḥanafī jurists hold that the permissibility of killing the male extends to the woman only if she is willing.408 Although female victims are theoretically protected, or even aided by bystanders taking measures against her attacker, tragic outcomes seem likely. For example, a Ḥanafī woman’s legally excused submission could be interpreted by a bystander as consent, leading him to physically injure or kill both the attacker and victim. Particularly in societies where female sexual chastity is emphasized, even the theoretical exclusion of coerced females from bystander violence seems likely to encourage ‘mistaken’ killings of female victims, whether based on an actual mistake of fact or to coverup an illegal honour killing for a perceived sexual transgression despite the presence of coercion.409
404 For example, al-Ramlī, Nihāyat al-Muḥtāj (n 64) vol 8 27 holds that this only applies outside of indecent acts (fāḥisha), whereas al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 187 holds that it applies generally. These and other works set out a standard order (tartīb) of means to repel attackers according to their degree of severity, such as hitting by hand, with a whip, and cutting a limb. 405 Al-Dardīr, al-Sharḥ al-Kabīr (n 77) 4 239; al-Zurqānī (n 28) vol 8 7. 406 Al-Kharshī (n 32) vol 8 5; al-Zurqānī (n 28) vol 8 7. 407 Al-Dusūqī (n 29) vol 4 239; al-Zurqānī (n 28) vol 8 8. The term used is “laṭkh” (circumstantial evidence) which al-Dusūqī specifies as one eyewitness. The same term is used by al-Zurqānī without explanation. I am not sure whether Mālikī jurists would consider testimony to matters such as isolation (khalwa) as sufficient in this case or whether they require at least one witness to the act of zinā itself. Further, in these cases, some Mālikī jurists still require the payment of compensation (diya): ibid. 408 Shaykhī Zādeh (n 48) vol 1 609. 409 Although speaking of adultery rather than rape, Catherine Warrick notes that in modern Jordanian law, where until recently a man who found his wife or female relative (maḥram) in the act of adultery and killed or wounded one or both of them benefitted from a legal excuse, in practice it was usually women who were killed: Catherine Warrick, ‘The Vanishing Victim: Criminal Law and Gender in Jordan’ (2005) 39(2) Law & Society Review 327.
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In contrast, the restricted Mālikī allowance for self-help appears to apply to measures taken against the male party only. Similarly, Shāfiʿī texts, which restrict self-help to repelling male attackers, do not permit harming females in any case, meaning that there is little chance of disastrous mix- ups for victims based on the law itself.
However, it is peculiar that jurists allow self-help up to and including killing by an ordinary person who witnesses the act yet impose a barrage of safeguards that preclude conviction and punishment for zinā by the courts.410 In this sense, the Mālikī position is most coherent with zinā doctrines. Justifying the exception for husbands from the general prohibition on self-help, the Mālikī jurist al-Dusūqī states that it is because of the husband’s jealously (ghīra) which causes him to become like a crazy person (majnūn) when he sees them.411
Thus, one line of reasoning for self-help measures is emotional, that is, an allowance is made because the bystander cannot bear to see the act of zinā. As long as the act remains private, or if witnessed by a bystander who can reasonably be expected to control his anger, private repentance for the moral transgression is encouraged. However, the law excuses interference attributable to the utter madness that a person feels when witnessing somebody having intercourse with his wife, as it is not an ordinary emotion that people can be expected to regulate. Nonetheless, while it is true that the husband only has sexual access to his wife, as opposed to other females such as his mother or daughter, one may question whether it is truly unreasonable for a husband to control his anger sufficiently to avoid murder or other forms of grievous harm.
For their part, Ḥanafīs view interfering in zinā and other wrongful acts such as banditry as an instance of “commanding the good and forbidding the evil.”412 The jurist Khayr al-Dīn al-Ramlī (d. 1670 CE/1081 h) analogizes acts such as zinā to the darkness of oppression (ẓulm), such that
410 The Ottoman criminal laws enacted by Sulaymān the Magnificent around 1540 CE required a person who found his wife and another man committing zinā and who killed them to immediately call people into his house to take them as witness; otherwise, the heirs of those he killed could bring a claim against him: Uriel Heyd, Studies in Old Ottoman Criminal Law (Oxford 1973) 98. While I did not encounter this requirement, which introduces some safeguards in the area of self-help, in works of jurisprudence, I wonder whether this was a rule invented by the Ottomans or whether it was already present in Muslim court practice and/or in fatwās not included in this study. 411 Al-Dusūqī (n 29) vol 4 239. Also see al-Zurqānī (n 28) vol 8 8. 412 Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 5 45; Shaykhī Zādeh (n 48) vol 1 609. “Enjoining good and forbidding evil” is a concept found in numerous Quranic verses which has been elaborated upon by Muslim scholars. At a basic level, Muslims should enjoin acts that are considered virtuous in the religion, and forbid acts that God has prohibited. Outwardly, this principle can be manifested verbally or through physical interference. For a more detailed explanation, see Michael Cook, Forbidding Wrong in Islam (Cambridge 2003).
150 killing somebody engaged in this act constitutes good by cutting off the oppression.413 Further, Ibn Nujaym mentions that the only reason someone would refrain from killing a man he catches committing zinā is fear of not being believed.414 It seems that as long as the act is in progress, interference is encouraged to prevent active transgression of God’s commands; however, if the witness forgoes intervention, once the act is complete, it is preferable to leave the wrongdoer to atone for his sin privately, as per the principle of privacy.
Shāfiʿīs justify intervention based on the principle that genitalia (buḍʿ) cannot be made permissible (lā sabīla li ibāḥatih).415 This is similar to the principle discussed earlier that zinā is not made permissible by coercion to justify the woman’s duty of resistance. Since the Shāfiʿī obligation of self-help only exists in cases of coercion, any tension between this requirement and the many safeguards in zinā cases would be solved in the Shāfiʿī school if coerced intercourse were decoupled from the crime of consensual zinā.
Moral Resolution in the Shāfiʿī School
The last method of resolving rape cases, which is unique to the Shāfiʿī school, can occur in tandem with a zinā trial or can take place on its own when there is no zinā trial due to privacy and the associated evidentiary rules. In cases of illicit intercourse, in addition to God’s right to the ḥadd and the female’s limited right to compensation for the sexual use of her body if she did not consent, some Shāfiʿī jurists posited interpersonal rights for the woman’s husband and her male relatives (qarāba). These jurists puzzled over the following issue: since sins involving the rights of other human beings, such as slander, require seeking forgiveness (istiḥlāl) from the wronged individual in addition to asking God for forgiveness, does this requirement also attach to zinā?
This issue sits at the intersection of the moral framing of rape with the recognition of circumscribed interpersonal rights in zinā. The rights accruing to the husband and male relatives are not worldly
413 Al-Ramlī, al-Fatāwā al-Khayriyya (n 211) vol 1 87-88. Khayr al-Dīn al-Ramlī is a Ḥanafī jurist who should not be mistaken for well-known Shāfiʿī jurists who share the same last name (nisba). He lived in Palestine where he would give fatwās and teach, but he also spent six years at al-Azhar in Egypt. One of his most famous works is the fatwā collection cited in this study. See: al-Zirkilī (n 27) vol 2 327. 414 Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 5 45. He is quoting from al-Mujtabā. 415 Al-Bujayramī (n 48) vol 4 222; al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 183. This contrasts with attacks on one’s property where it is not obligatory to defend since property can be given away (yajūzu ibāḥatuhu li’l ghayr): al- Shirbīnī (n 28) vol 5 528.
151 rights (with limited exception), but a debt against the adulterer/fornicator or rapist in the afterlife. Thus, although the issue involves a claim among humans, the discussion focuses on rehabilitating the perpetrator so that he will not face ruin in the next life. In addition to repenting to God for zinā, he must absolve himself in front of those affected by his act or seek their grace indirectly by petitioning God. Moreover, the focus on the perpetrator’s moral standing before God and shame accruing to the family, with no concern for the victim except to spare her harm from outraged family members from participation in zinā, further highlights the chasm between the historical framing of rape primarily as a transgression against sexual mores and contemporary understandings of rape as an offence against an individual.
However, even in Shāfiʿī texts this issue is rare, only occurring in detail in two fatwā works from the earliest part of the relevant period: al-Suyūṭī’s (d. 1505 CE/911 h) al-Ḥāwī li’l Fatāwa, and Ibn Ḥajar al-Haytamī’s al-Fatāwā al-Fiqhiyya al-Kubrā.416 Al-Bujayramī’s gloss also mentions it briefly.417 In considering this issue, these jurists are continuing an earlier debate attributed to the prominent Shāfiʿī jurists al-Ghazālī (d. 1111 CE/505 h), al-Rāfiʿī (d. 1226 CE/623 h) and al- Nawawī (d. 1277 CE/676 h).418
The two fatwā collections provide differing explanations for granting rights to male family of the female party to consensual or coerced zinā. According to Ibn Ḥajar, jurists agree that zinā is a crime (jināya) against honour (aʿrāḍ) and lineage (ansāb).419 Similarly, in a second fatwā he mentions that shame (ʿār) attaches to the relatives (aqārib) and that the husband’s bed (firāsh) is soiled.420
In contrast, al-Suyūṭī grounds these rights in a ḥadīth:
There is no man who appoints another man to look after his family then he betrays him with respect to them except that on the Day of Judgment that man will be presented to him
416 Aḥmad al-Haytamī, al-Fatāwā al-Fiqhiyya al-Kubrā (Al-Maktaba al-Islāmiyya, date of publication unknown); al- Suyūṭī (n 325). Al-Suyūtī, who was born and raised in Cairo, was a gifted scholar who taught and wrote in many areas including Shāfiʿī jurisprudence, ḥadīth, Quranic sciences and history. His works were sought after in various areas of the Muslim world before he had reached 30 years of age, and they continue to be published and studied today. He claimed to have reached the rank of independent reasoning within the Shāfiʿī school (mujtahid muṭlaq muntasib), which caused controversy among his contemporaries, and he also laid claim to being the renewer (mujaddid) of his era. See: Éric Geoffroy, ‘al-Suyūṭī’ in P Bearman and others (eds), Encyclopaedia of Islam (2nd edn, Brill)
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and it will be said to him, “this man betrayed you in your family, so take from his good deeds whatever you wish.” He will take from his good deeds until he is satisfied. Do you see him leaving any of his good deeds?
Mā min rajul yakhluf rajulan fī ahlihi fa yakhūnuhu fīhim illā nuṣibat lahu yawm al-qiyāma fa qīla lahu hādhā qad khānaka fī ahlika fa khudh min ḥasanātihi ma shiʾta fa yaʾkhudh min ḥasanātihi mā shāʾa ḥattā yarḍā a tarawna yadaʿu lahu min ḥasanātihi shayʾan?421
Ibn Ḥajar’s concern with lineage and soiling the marital bed hints at why the rights in question concern the male relatives only. Although descent is patrilineal, an illegitimate child from zinā is not attributed to the father. The mixing or cutting off of lineage is the same issue raised by Ḥanafī and Shāfiʿī jurists to justify a high standard of coercion (for Ḥanafīs for males only), but here it creates rights for woman’s male relatives who will bear the social stigma for the child affiliated to the maternal family. This also returns to the issue of maintaining the social good in the form of preserving the family unit as a supporting reason for the prohibition on zinā.
While other Shāfiʿī texts also consider zinā a crime against lineage and honour, these are normally secondary justifications for the criminalization of zinā (the base is the Quranic prohibition) that do not give rise to interpersonal rights.422 The concept of shame (ʿār) is also common in discussions of slander (qadhf), but also as a secondary concern that does not create rights or penalties in and of itself.423 Unless the foundation for rights here likewise comes from a separate source, such as the ḥadīth quoted by al-Suyūṭī, Ibn Ḥajar seems to grant honour and lineage a status beyond that accepted by other jurists, allowing social concerns to serve independently as a basis for legal rights in zinā.
Al-Suyūṭī and Ibn Ḥajar also adopt different views on the nature of the rights. For al-Suyūṭī, a man who commits zinā with a woman must seek forgiveness:
Whoever betrays a man in his family through zinā or other means has wronged the husband and given him a right that he will demand in the hereafter… This is an interpersonal right in which repentance is not accepted except upon fulfillment of four conditions, among them asking him for forgiveness…
421 Al-Suyūṭī (n 325) vol 1 131. He references this ḥadīth to Muslim, al-Tirmidhī and al-Nasāʾī, and further mentions that it applies to zinā as well as other actions. 422 Al-Bujayramī (n 48) vol 4 167-68; al-Ramlī, Nihāyat al-Muḥtāj (n 64) vol 7 422. Such terms occur to a lesser extent in Mālikī texts as secondary reasons for some zinā-related rules: see for example ʿAbd al-Salām (n 74) vol 1 177. 423 Al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 121.
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Fa man khāna rajulan fī ahlihi bi zinā aw ghayrihi fa qad ẓalama al-zawj wa taʿallaqa lahu bihi ḥaqq yuṭālibuhu bihi fī’l-ākhira… Wa hādhā ḥaqq ādamī lā taṣiḥḥ al-tawba minhu illā bi’l-shurūṭ al-arbaʿa wa minhā istiḥlāluhu min dhālik…424
Further, if the wronged man refuses to forgive except if the male fornicator/adulterer or rapist pays him, the wrongdoer should pay to obtain his forgiveness.425 Thus, upon demand the consequences shift from apology under threat of ruin in the next life to monetary compensation akin to standard legal penalties. However, unlike the dower there is no indication that a court can enforce this request. The non-enforceability and default intangible nature of this right may also explain the absence of this issue from many Shāfiʿī legal works despite the high profile of earlier scholars who debated this matter.
Although al-Suyūṭī considers seeking forgiveness the general rule, he contemplates the impact on the female and nuances his position accordingly. When zinā is coerced, al-Suyūṭī upholds this requirement unconditionally, as informing her male relatives will not cause her harm (ḍarar).426 While the meaning of harm is unspecified, he is likely envisioning harm from outraged family members similar to Ibn Ḥajar’s concern that will be discussed below. Further, he mentions that the woman does not need to repent, confirming the coerced female’s lack of moral liability.
However, al-Suyūṭī hesitates regarding the consenting woman due to the potential harm to her from disclosure.427 He leans toward the opinion that the man should not disclose his act. Rather, he should accept his liability to her husband in the hereafter and repent to God privately in hope of being absolved of this liability because of his good intention to shield the woman from injury. Alternately, he suggests that he should inform the husband while lying about the woman’s role, such as saying she was coerced, to safeguard her from harm. However, fear of harm upon himself, rather than her, is never an excuse not to inform the husband and fulfill his rights, as harm in this life is better than in the next. Further, unlike the coerced female, the consenting woman is sinful and must repent.
424 Al-Suyūṭī (n 325) vol 1 131. The other three conditions, required for all sins, are: giving up the sin, regret, resolving not to return to the act. 425 ibid vol 1 132. This is a further example of Shāfiʿī monetization of interpersonal rights in addition to forgiveness for slander which was noted in chapter 1. 426 ibid vol 1 131. 427 ibid vol 1 131-32.
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Al-Suyūṭī’s view is reminiscent of the old common law torts of seduction and loss of consortium brought by a woman’s father or husband respectively.428 However, whereas these torts originally required proof of loss of the woman’s services, here the males’ claims attach to acts of zinā unconditionally.429 Further, the focus is on rights to the guilty party’s good deeds rather than worldly compensation. Moreover, even if payment is demanded for forgiveness, such requests do not seem to be legally enforceable unlike these torts which were by definition judicial matters.
Further al-Suyūṭī’s reasoning, while well-intentioned regarding shielding females from physical harm, seems to omit reputational damage from bringing any form of zinā to the attention of others despite importance accorded to chastity, as preceded in earlier sections, and as per al-Suyūṭī’s own use of honour and shame to create these additional rights for males. Moreover, even though the female here is not liable to criminal punishment due to lack of witnesses, it is perverse that the victim cannot mention the incident without being liable for slander yet she can be exposed by the male perpetrator in front of her husband and male family members without slander liability so that he can obtain forgiveness. (presuming the Ḥanafī and Mālikī doctrines regarding coercion as an excuse from slander extend to the Shāfiʿī school).
In contrast, Ibn Ḥajar, who aligns himself with al-Ghazālī, favours the opinion that zinā does not require seeking forgiveness from male kin except in the unusual case where no turmoil (fitna) is feared.430 However, Ibn Ḥajar clarifies that “not imposing the condition of seeking forgiveness for zinā does not indicate that it is not of those rights related to men. […] [Rather, it is] clear that in it there is a right for the male relatives and husband of the female participant or her master (thumma ʿadam ishtirāṭ al-istiḥlāl fī’l-zinā lā yadullu ʿalā annahu laysa min al-ḥuqūq al- mutaʿalliqa bi’l-ādamī muṭlaqan…fa hādhā ṣarīḥ fī anna fīhi ḥaqqan li aqārib al-maznī bihā wa li zawjihā aw sayydihā).”431
This restriction stems from the consequences that may arise from informing them, especially the possibility of male relatives killing the male party to zinā or their female kin.432 Instead, he should
428 See Temkin (n 5) 330. 429 The requirement of proving loss of service evolved over time: see MBW Sinclair, ‘Seduction and the Myth of the Ideal Woman’ (1987) (Articles by Maurer Faculty, Paper 2272)
155 repent directly to God and beseech God to make the husband and male relatives pleased with him.433 As Ibn Ḥajar’s approach automatically precludes harm to the female from disclosure, he does not differentiate between coerced and consensual zinā. Further, by placing the onus on the perpetrator alone to atone privately for his sin, Ibn Ḥajar avoids the issues for victims present in al-Suyūṭī’s understanding of these rights. In addition, his concern regarding honour killing and turmoil further illustrates the danger to rape victims from broad self-help doctrines prone to overzealous implementation.
Ibn Ḥajar further mentions that some scholars held that zinā does not give rise to any interpersonal rights for the male relatives, but he links this view to situations where the woman does not have a husband or close male relative.434 Alternately, he suggests that Shāfiʿī jurists who focused on the divine right in zinā did not require seeking forgiveness whereas those who focused on the interpersonal right imposed this obligation.435 However, given that all Shāfiʿī works include a limited interpersonal right for the woman in coerced zinā and all recognize interpersonal rights in the ḥudūḍ generally, perhaps these jurists simply considered that such rights end with the female’s right to dower and do not extend to third parties.
Overall, regardless of the position that one takes on the disputed areas of this doctrine, moral resolution does not improve the shortcomings that, from a contemporary perspective, result from treating rape as zinā. Rather than help the victim obtain justice or compensation, the perpetrator’s duty of seeking forgiveness focuses primarily on his standing before God, as his crime is not conceived as an assault against an individual. Further, in some cases the victim may fare worse than in schools that limit resolution to court proceedings and self-help measures. Contrary to the strict concept of privacy in judicial zinā proceedings, the perpetrator’s need to absolve himself of sin may expose the victim’s participation in illicit intercourse, an act that his heavily frowned upon even where coerced.
433 ibid vol 4 359. 434 ibid. 435 ibid.
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Summary
The jurists’ conception of rape as zinā is far-reaching. Even in the Mālikī school where rape may be re-conceptualized as another offence, usurpation interacts heavily with zinā rules when there are no witnesses while banditry likely leaves certain rape situations under coercive zinā, such as rape in the home. Further, in circumstances where usurpation and banditry operate more independently, such as when there are witnesses to the abduction or rape along a public highway, aspects of the historical doctrines, such as the limitation of compensation to the dower and the evidentiary rules, sit uneasily with modern notions of criminal and civil liability for rape. Moreover, the disconnect between contemporary expectations and banditry exists despite rape as banditry being a later addition to the law.
As for extrajudicial resolution, these methods do not separate rape from zinā and the associated focus on divine claims. Rather, they uphold this conception while introducing additional complications. Thus, self-help measures can put the victim in harm’s way, bypassing safeguards present in zinā trials while otherwise maintaining all of the doctrines that preclude judicial prosecution and remedies. Further, Shāfiʿī moral resolution may expose the victim to reputational damage, even while precluding physical harm, and further emphasizes the moral nature of rape by focusing on rehabilitating the perpetrator from his sin. Simultaneously, Ibn Ḥajar’s use of honour and lineage provides further evidence that some jurists looked to the issue of the social good in their legal treatment of rape in addition to the transgression against the divine.
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Chapter 5 Physical Injuries and Other Sexual Violations
The previous chapters have focused on the resolution of rape cases by holding the perpetrator accountable for the act of penetration itself, either before a court or through extra-judicial means. As seen in those chapters, jurists emphasized the moral transgression inherent in the penetrative act of illicit sex, even where coerced, giving rise to various doctrines at odds with contemporary expectations. This final chapter on Islamic law shifts to two remaining issues pertaining to sexual violence: tort claims for physical injuries to the genitalia, intended to hold the perpetrator liable for grievous bodily harm rather than the mere act of penetration, and prosecution of forms of sexual assault other than penile penetration of the vagina or anus.
The two primary sexual injuries contemplated by jurists, namely vaginal tearing and defloration, often result from zinā. Although compensation for bodily harm, which will be described in more detail below, and the set crimes are two separate areas of the law, some jurists allow concerns regarding zinā to influence compensation for injury, somewhat similar to the intertwining of Mālikī property claims under usurpation with evidentiary notions from zinā. The lingering preoccupation with the illicit nature of the intercourse, which is testament to the strength of the moral framing of this issue in both its consensual and coercive forms, and the resulting entanglement of tort compensation with zinā concerns, means that victims of severe sexual injuries may not receive compensation for that damage.
On the other hand, alternate views that treat physical harm independently result in relatively robust compensation schemes for the injury itself, despite the limited access to dower compensation under zinā for the act of penetration. However, even this position only upholds compensation in limited circumstances. The circumscribed scope of the award, which applies only to permanent injuries, is vastly different from the expansive scope of modern tort law and reinforces the incompatibility with contemporary notions of rape as an inherently harmful offence against a human being that, in and of itself, constitutes the basis for a damage award.
As for the miscellaneous consensual and coercive sexual acts that come under discretionary crimes, despite their simplicity from a legal standpoint, these violations demonstrate the extent of
158 the prohibition on any form of intimacy outside of marriage in Islamic law. As such, they are an indirect illustration of why zinā, which is full intercourse, is a major issue in Islamic jurisprudence, and why jurists are inclined to certain harsh opinions that affect anyone shown to have transgressed God’s boundaries in this area, such as reducing the availability of compensation for parallel physical injuries and restricting the availability of the defense of coercion.
The issue of the gendering of the law, which has been a persistent theme, is still felt here, though less strongly than in previous chapters. Although the focus of physical injuries is female victims, this is largely justifiable based on biology. Further, female aggressors and female-only sex acts receive some consideration in both injuries and discretionary crimes, albeit with less vigour than their male counterparts. The biggest concern in these areas is not the imposition of differing standards on male and female victims or aggressors, but the fact that females, by the biological nature of their injuries, bear the brunt of the aforementioned intermixture of the rules of injury with zinā concerns, such that they may be denied compensation for bodily harm sustained in a sexual assault.
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Physical Injuries
Although coerced vaginal or anal penile penetration, which has been the focus of the preceding chapters, may occur without physical injury, in some situations permanent damage to the sexual organs and surrounding tissue may occur. Further, digital penetration and the use of objects can result in injury to the genital area even if there is no accompanying penile penetration.
Islamic jurisprudence regulates claims for bodily harm, including sexual injuries and other types of injuries like the loss of a finger, through the principles of retaliation (qiṣāṣ) and monetary compensation. The concept of retaliation, which is the idea of an eye for an eye, has almost no application to sexual injuries. Instead, the victim may demand compensation. Many bodily injuries, including some sexual injuries, result in fixed compensation. The maximum fixed compensation (diya) for a free Muslim female is 2.125 kg of gold (approximately $150,000 CAD), and this amount will be called “full compensation” throughout this chapter.436 Full compensation applies to her life (i.e. her heirs may claim this if she is murdered) as well as certain severe injuries. Lesser injuries, such as losing a tooth, will result in a set fraction of this amount (arsh). In some cases, compensation instead takes the form of judicially determined damages (ḥukūma).
Claims for bodily harm apply only to permanent injury. Unlike contemporary tort law which recognizes many heads of damages, there is no compensation in historical Islamic law for temporary bodily injury or non-physical harm such as psychological trauma. This in itself is a major disconnect between Islamic jurisprudence and modern notions of rape as a crime with significant effects on an individual victim that give rise to compensable claims. However, while reformed Islamic tort law notions recognizing such forms of harm could move rape closer to modern expectations, on their own they would be insufficient for full harmonization, as the intertwining of the criminal aspect of the offence with the divine transgression under zinā significantly impacts prosecution.
There are two main sexual injuries that preoccupied jurists: tearing of vaginal tissue (ifdāʾ) and defloration of virgins by removing the hymen (iftiḍāḍ/izālat al-bakāra), each of which will be considered below. From the outset, it is evident that vaginal tearing and defloration only apply to women. However, legal texts contain short references to injuries to the male sexual organs, such
436 This is equivalent to 500 dinars, 6000 dirhams (5000 dirhams for Ḥanafīs), or 50 camels. See: Peters, Crime and Punishment (n 21) 51.
160 as cutting off the penis or testicles. These are not examined in this study, as such statements briefly state the amount of compensation due without further discussion, and this type of mutilation does not typically accompany coerced intercourse nor occur with any frequency on its own.437 While the discussion is gendered, unlike issues such as the standard of coercion, the focus on females does not necessarily disadvantage male victims.
If either gender suffers a disadvantage in this area, it is women due to their susceptibility to these injuries combined with the intertwining of compensation for injury with zinā concepts in some juristic approaches. Women who were raped, or women who consented to illicit intercourse and sustained injuries beyond the intended scope of that consent, do not always have access to compensation for physical damage, as some legal conceptions fail to treat the underlying sex act and/or the dower for sexual access in zinā as independent from bodily harm. Although injuries normally result in compensation on civil standards of evidence and fall under a different area of the law than the ḥadd crime of zinā, the extreme distain for illicit intercourse and the corresponding strength of the moral prohibition seem to have exerted a pull on some jurists who intertwined compensation for sexual injury with concerns regarding the illicit nature of its cause.
1.1 Vaginal Tearing (Ifḍāʾ)
The exact meaning of vaginal tearing is a matter of debate. Jurists from all schools question whether it consists of the destruction of the tissue between the orifices of urination and menstruation, such that the two become joined, or alternately the destruction of the tissue between the orifices of defecation and menstruation.438 While some jurists state a clear preference, the dispute has no practical implication since the three schools allow compensation according to both possible meanings.
Vaginal tearing may result from penile penetration, digital penetration, or the use of an object. Further, the injury may occur during an illicit sexual encounter, whether consensual or coerced, or
437 For an example concerning the testicles, tip of the penis and entire penis, see: Muḥammad al-Ṭūrī, Takmilat al- Baḥr al-Rāʾiq in Z Ibn Nujaym, M al-Ṭūrī and M Ibn ʿĀbidīn, al-Baḥr al-Rāʾiq Sharḥ Kanz al-Daqāʾiq wa Minḥat al-Khāliq wa Takmilat al-Ṭūrī (Dār al-Kutub al-Islāmī, date of publication unknown) vol 8 350. 438 Al-Baghdādī (n 309) 202; al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 8 481; al-Zurqānī (n 28) vol 3 421. Also note that depending on the nature of the tear, the wound may or may not be equivalent to the injury known in English as perineal tearing. The perineum is the area between the vagina and anus.
161 between licit sexual partners. While the schools agree that some of these possibilities give rise to compensation if tearing occurs, they differ on the amount and type of compensation, as well as whether certain scenarios result in compensation at all.
Despite differences between schools, there are certain elements common to their discussions of vaginal tearing. First, unlike defloration which will be considered later, there is no concept of a female vaginally tearing another woman even though tearing can be caused by digital penetration or the use of objects. While this situation is likely rare in comparison to injuries caused by males, it is not out of the realm of possibility. However, the complete omission fits with the passive status normally accorded to women in sexual acts.
Second, none of the legal treatises address how to bring a claim for vaginal tearing. While claims that do not result from illicit intercourse would be straightforward civil matters, injuries linked to coerced or consensual zinā may require avoiding any mention of zinā due to slander doctrines. Further, opinions that make compensation contingent on the injury occurring outside of zinā could prompt an investigation into the circumstances giving rise to the claim, resulting in a fear of punishment for zinā and/or loss of reputation for chastity among tearing victims. Such issues could deter victims from seeking compensation for the injury even where they are legally entitled to damages.
Finally, although vaginal tearing is a risk of intercourse, severe and permanent vaginal tearing that is compensable in legal treatises appears to be relatively uncommon.439 For example, Weiss notes that physical injury requiring medical treatment occurs in approximately 9% of sexual assaults, a figure that includes injuries to any part of the body from weapons or blows, such that the percentage of serious vaginal tears would be a fraction of this.440 Therefore, the majority of rape victims who suffer only temporary physical injury and/or psychological harm from the assault have no recourse for compensation, as they cannot effectively obtain the dower under the laws of zinā nor do they have a valid claim for compensation under the heading of injuries.
439 Regarding the fact that moderate vaginal tearing does occur sometimes during intercourse, see: Jennifer Huizen, ‘Causes and treatment of vaginal cuts’ (Medical News Today, 2 May 2019)
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1.1.1 The Ḥanafī Approach
In general, Ḥanafīs hold that females who suffer vaginal tearing, including adults and girls regardless of whether they are ordinary desired for intercourse, are entitled to the full compensation for the life of a free woman (diya) if the injury leaves her fully incontinent, or to one third of the full amount if she is not.441 The figure of one third is because vaginal tearing is treated as an injury to a bodily cavity (jawf), which is reimbursed by this standard amount.442 This applies whether the injury occurs during penile intercourse or by a blow from an external object.443
However, when the injury occurs in the context of penile intercourse, whether licit or illicit, Ḥanafīs often blur compensation for the injury of tearing with the dower for sexual access, resulting in a decreased overall financial award. The chart below summarizes the compensation scheme for tearing sustained during coerced zinā.444 To understand these rulings, it is important to recall that for Ḥanafīs the ḥadd of zinā and the dower are never combined.
441 Although most Ḥanafī texts discuss the matter on the assumption that tearing refers to making the orifice of urination and menstruation one, the same rulings apply if the passages of defection and menstruation merge: Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 6 567; al-Ṭūrī (n 437) vol 8 350. 442 Al-Baghdādī (n 309) 167-68, 201. Another example of a bodily cavity is the stomach. 443 One example of an external blow is the following case (farʿ), introduced after considering damages for injuries arising from hitting one’s pupil, child or wife for discipline: “He hit a woman, causing vaginal tearing. If she remains continent, he owes one third of the full compensation; otherwise, he owes the full compensation. (Ḍaraba imraʾa fa afḍāhā fa in kānat tastamsik bawlahā fa fīhi thuluth al-diya wa illā fa kull al-diya.)”: al-Ḥaṣkafī (n 78) vol 6 567. While the jurist does not specify if the blow results from the man’s hand or the use of an object, there does not seem to be any reason to restrict it to one or the other. For another mention of hitting causing vaginal tearing, see al-Ṭūrī (n 437) vol 8 350. 444 Summarized from al-Fatāwa al-Hindiyya (n 66) vol 2 151. Also see Aḥmad Muḥammad, Ghamz ʿUyūn al-Baṣāʾir fī Sharḥ al-Ashbāh wa’l Naẓāʾir (Dār al-Kutub al-ʿIlmiyya 1985) vol 1 396 for a near-identical description (primarily in the base text rather than commentary).
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Claimant Extent of Tearing Compensation for Entitlement to Dower Tearing
Adult, or a minor Continent One third of the full Full dower if the man is not ordinarily desired for compensation (1/3 liable to the ḥadd (due to intercourse, or a diya) doubt, or due to the minor minor not ordinarily being not ordinarily desired desired for for intercourse); if liable to intercourse the ḥadd, no dower per zinā rules.
Incontinent Full compensation No dower at all per Abū (diya) Ḥanīfa and Abū Yūsuf; dower where normally required under zinā rules per al-Shaybānī. Table 4: Total Compensation for Rape Victims who Suffer Vaginal Tearing (Compensation & Dower)
As shown above, if the tearing is so severe that she is incontinent, Abū Ḥanīfa and Abū Yūsuf deny the dower for sexual access in addition to the full compensation due for the physical injury. Later works do not indicate a preference for either opinion.445 This view is a deviation from the normal rules of zinā which require dower payment where the perpetrator is relieved of the ḥadd due to the presence of doubtful circumstances. The basis of this rule is not explained in later texts.446 However, the result seems to penalize the woman, rather than the perpetrator, by limiting compensation to damages for physical harm and excluding payment for sexual access when the severity of the injury requires the full set compensation.
445 Al-Fatāwa al-Hindiyya (n 66) vol 2 151 only mentions the view of Abū Ḥanīfa and Abū Yūsuf, but clearly attributes it to them such that the other view is implied. Al-Baghdādī (n 309) 202; Muḥammad, Ghamz ʿUyūn al-Baṣāʾir (n 444) vol 1 396 list both without further comment. 446 It may be speculated that the reason is because she can no longer fulfill her duties as a wife. In other words, since the tearing is severe, she can no longer have intercourse, such that she would not receive a significant dower if she (re-)married.
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As for adult women who suffer tearing during consensual zinā, some Ḥanafī jurists deny compensation even when doubt precludes zinā liability. Others do not differentiate between consensual and coerced zinā for physical injuries, such that the above chart applies.447 As a result, a woman who consents to illicit sex but becomes the victim of an unanticipated physical injury may or may not be entitled to compensation for that injury. Whereas the opinion granting compensation maintains distinct boundaries between physical harm, which the woman did not consent to, and the act of illicit intercourse, the view denying her damages blurs compensation with other concerns. However, whereas denying the full compensation for injury plus dower for sexual access to coerced women is difficult to rationalize, here jurists were probably concerned with women bearing the full consequences of their criminality, including injuries sustained during the crime. Nonetheless, if she is not liable for the ḥadd due to doubt, denial on the basis of criminality is difficult to maintain logically.
In the context of licit intercourse, early Ḥanafī figures are split on whether the husband owes his wife compensation if he causes vaginal tearing. Later texts report both views without indicating a preference for either. As Ibn ʿĀbidīn mentions:
As for his statement “if he strikes a woman causing vaginal tearing”: i.e. he causes the passages of urine and menstruation or menstruation and defecation to become one. Further, intercourse [causing tearing] takes the same ruling as striking her, as will come. What is intended here is a woman he is not in a licit relationship with. As for the wife, if he has intercourse with her that causes vaginal tearing, he is not liable for compensation even if she is left incontinent, according to the two of them [Abū Ḥanīfa and al-Shaybānī]. According to Abū Yūsuf, she is like other women.
Qawluhu ḍaraba imraʾa fa afḍāhā ay jaʿala maslak bawlihā wa ḥayḍihā aw ḥayḍihā wa ghāʾiṭihā wāḥidan wa’l-waṭʾ ka’l-ḍarb kamā yaʾtī. Wa’l-murād al-ajnabiyya ammā al- zawja idhā waṭiʾahā fa afḍāhā fa lā shayʾ ʿalayhi wa in lam yastamsik bawluhā ʿindahumā wa ʿinda Abī Yūsuf ka’l-ajnabiyya.448
447 Al-Fatāwā al-Hindiyya (n 66) vol 2 151 denies compensation if she consents. Al-Baghdādī (n 309) does not mention consent in his discussion, which seems to imply that it is the act of tearing during zinā, not her consent or lack thereof, which renders her eligible for compensation. This disagreement dates to the early Ḥanafī figures. Abū Ḥanīfa and al-Shaybānī deny compensation to willing women whereas Abū Yūsuf allows it: al-Ṭūrī (n 444) vol 8 350. For minor girls, their consent is without effect and does not impact compensation: al-Fatāwa al-Hindiyya (n 66) vol 2 151. 448 Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 6 567. Also see al-Fatāwā al-Hindiyya (n 66) vol 6 28. Further note that Ibn ʿĀbidīn quotes a jurist who restricted Abū Ḥanīfa and al-Shaybānī’s opinion denying compensation for tearing to wives who have reached puberty, are willing (mukhtāra) and can bear intercourse; as for other women, they would be entitled to compensation by agreement. While the newlywed wife who lawfully declines intercourse because dower has not been paid (see chapter 2) who is nonetheless coerced into intercourse is a clear example of a wife who would be entitled to compensation for tearing under this view, the full scope of situations of coercion between spouses sufficient to grant compensation for injury according to this jurist is unclear.
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One Ḥanafī work contains an interesting statement in the related context of a wife who dies from vaginal tearing. In this situation, Abū Yūsuf similarly holds that compensation is due contrary to Abū Ḥanīfa and al-Shaybānī who do not grant compensation. Regarding the justification for the more generous position, the text mentions:
It was said regarding this: It is said that the dower is paid in exchange for intercourse, as intercourse is use [of the body], while compensation is due for vaginal tearing, not because penetration makes compensation obligatory but rather because of the tearing that resulted from it. Dower is for the aspect of use and compensation is for the aspect of vaginal tearing.
Qīla ʿalayhi fa yuqāl al-mahr muqābal bi’l-waṭʾ min ḥayth innahu istimtāʿ wa’l-ḍamān bi’l-ifḍāʾ laysa min ḥayth innahu waṭʾ li yalzama kawnuhu mūjiban li shayʾayn bal min ḥayth mā tasabbaba ʿanhu wa huwa al-ifḍāʾ fa’l-mahr bi iʿtibārihi jihat al-istimtāʿ wa’l- ḍamān bi iʿtibārihi jihat al-ifḍāʾ fa taʾammal.449
This dichotomy, or the refusal to recognize it and instead blur physical injuries with sexual access for the mere act of penetration, is a tension that runs through the Ḥanafī positions on compensation for vaginal tearing for both non-related women and wives. The majority views of Abū Ḥanīfa and Abū Yūsuf, which later texts report along with the opposing views without specifying their chosen opinion (with some exceptions for consensual zinā), place a heavy burden on women to unilaterally bear the consequences of sexual injuries sustained in a variety of situations, including both coercive and consensual, and illicit and licit encounters.
1.1.2 The Mālikī Approach
Mālikī jurists tie compensation for vaginal tearing to the resulting decrease in the woman’s dower if she (re-)marries. This judicially determined amount (ḥukūma) is the difference between her dower without tearing and her dower with tearing, thus linking compensation to future lost income due to decreased marriage value rather than compensating for the injury qua injury.450 Although there is another opinion in the school that requires set compensation, most later texts only mention judicially determined damages in the form of the decrease in dower. According to the alternate opinion, set compensation is due because vaginal tearing prevents her from pleasure (ladhdha) and from holding in a child (presumably meaning a foetus) or her urine, such that the misfortune that
449 Muḥammad, Ghamz ʿUyūn al-Baṣāʾir (n 444) vol 3 250. 450 Al-Dardīr, al-Sharḥ al-Kabīr (n 77) vol 4 277.
166 befalls her from this injury is greater than the loss of eyelids, which is a body part requiring set compensation.451 While the majority Mālikī opinion puts her in the same position she would be dower-wise but-for the injury, it overlooks other issues stemming from the tearing.
Further, the standard Mālikī opinion does not explicitly differentiate between tearing that results in incontinence and tearing that leaves the woman continent. Most likely any permanent tear that decreases the value of her future dower is eligible, with the severity of the injury affecting the anticipated dower loss. Further, school texts only mention penile penetration and do not mention tearing by blows or objects. While the main issue is likely the injury itself rather than the external cause, such that compensation would be due in either case, this is not completely certain.
Despite tying the amount of compensation to the decrease in dower, Mālikī jurists maintain a clear distinction between compensation due for vaginal tearing and the dower due for sexual access. Since vaginal tearing is not a necessary outcome of intercourse, compensation for tearing is separate from the dower for sexual access payable upon marriage or in the context of coerced zinā. As an independent injury, the husband is equally liable for causing tearing. Al-Dardīr states:
Vaginal tearing does not come under dower regardless of whether it was done by the husband or a man who raped her. This is unlike defloration by the husband or a rapist which comes under dower since it is among the natural consequences of intercourse, as intercourse is not possible without it unlike vaginal tearing.
Wa lā yandarij al-ifḍāʾ taḥta mahr sawāʾ kāna min zawj aw min ajnabī ightaṣabahā bi khilāf izālat al-bakāra min zawj aw ghāṣib fa tandarij taḥta al-mahr li annahā min lawāḥiq al-waṭʾ idh lā yumkin waṭʾ bi dūnihā bi khilāf al-ifḍāʾ.452
Commenting on this, al-Dusūqī further emphasizes the distinction:
Vaginal tearing not coming under dower means that if the husband or rapist causes tearing by intercourse, he must pay compensation for tearing in addition to the dower, as compensation for tearing is not incorporated in the dower required by intercourse.
Qawluhu wa lā yandarij al-ifḍāʾ taḥta mahr yaʿnī anna al-zawj aw al-ghāṣib idhā afḍāhā bi’l-jimāʿ fa innahu yalzamuhu ḥukūma li’l-ifḍāʾ ziyādatan ʿalā al-mahr wa lā tandarij ḥukūmat al-ifḍāʾ fī al-mahr al-lāzim bi’l-waṭʾ.453
451 Al-Bannānī (n 387) vol 8 69; al-Dusūqī (n 29) vol 4 277-78. 452 Al-Dardīr, al-Sharḥ al-Kabīr (n 77) vol 4 278. 453 Al-Dusūqī (n 29) vol 4 278.
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At first glance, this view separating the two issues seems to offer greater financial protection to wives and coerced women who are entitled to the full dower under the laws or marriage or coerced zinā respectively plus compensation for injury. However, the full compensation without dower granted by Ḥanafī jurists could be more than the sum of the dower for sexual access and anticipated loss of future dower, particularly for women of low social status.
Although wives coerced to have intercourse and women coerced into zinā are equally entitled to compensation for vaginal tearing, willing wives are also entitled to compensation whereas women willingly participating in illicit intercourse are not:
If a man penetrates a willing woman who is not his wife, she is not entitled to anything for vaginal tearing. […] Al-Ṣaqallī mentioned that the difference between the wife and other women is that the wife’s obedience is obligatory and she cannot prevent him [from having intercourse with her] whereas any other woman must prevent him such that her willingness is like her giving him permission to tear her
Law faʿalahu ay al-waṭʾ bihā al-ajnabī ṭāʾiʿatan lam yakun lahā shayʾ fī al-ifḍāʾ… Thumma qāla al-Ṣaqallī al-farq bayn al-zawja wa’l-ajnabiyya anna ṭawʿ al-zawja wājib lā taqdir ʿalā manʿihi wa’l-ajnabiyya yajib ʿalayhā manʿuhu fa ṭawʿuhā kamā law adhinat lahu an yūḍiḥahā.454
Despite generally distinguishing the physical injury from sexual access, this stance on willing women participating in zinā follows the Ḥanafī tendency to merge the two issues. In essence, the man, who is equally consenting to the act of illicit intercourse, can hide behind the woman’s zinā to force her to bear the full physical and financial consequences of an injury that he caused.
Further, it is unclear why a woman’s consent to have intercourse is considered consent to harm her physically. The latter, as Mālikī texts adamantly uphold in the context of coerced acts, is a separate aggression which is not a natural consequence of intercourse. While women willingly participating in illicit sex are barred from receiving the dower for sexual access to prevent them from benefiting from their own criminality, compensation for injury is not a form of profiteering from the sex act but rather reparation for the decrease in marriage value stemming from unwanted physical mutilation.
454 ibid. Also see al-Bannānī (n 387) vol 8 69 for a near-identical statement.
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1.1.3 The Shāfiʿī Approach
The Shāfiʿī framework considers compensation for vaginal tearing a form of set compensation (diya) and/or judicially determined damages (ḥukūma), depending on the extent of the injury, and separates compensation for tearing from the dower for sexual access with even more vigour than Mālikī jurists. The result is the most robust compensation scheme among the schools for affected women.
There are three possible scenarios, each with a different amount of compensation. First, if vaginal tearing results in permanent breakage of the barrier between the places of menstruation and defecation or urination, full compensation is due. Second, if the tearing results in a permanent broken barrier and she is incontinent, discretionary compensation is awarded in addition to the full set compensation. Finally, if the breakage heals yet a trace (athar) of the injury remains, discretionary juristic compensation is imposed.455
This third situation does not result in any compensation in the Ḥanafī school and may or may not be compensable by Mālikīs depending if it decreases her future dower prospects. Further, attaching full compensation to the breakage itself and imposing additional judicially determined damages for impairment of bodily functions results in more compensation than in the Ḥanafī school, despite both relying on the concept of set compensation (diya), as the latter imposes one third of the full compensation for breakage only and full compensation for breakage with impairment.
These rulings apply equally whether tearing occurs from the penis, a finger or an object such as wood, and regardless of whether the culprit is the woman’s husband or another man.456 Shāfiʿī jurists also prohibit the husband from having intercourse with his wife if he will inevitably cause tearing, such as if his penis is big or her orifice is very narrow.457 As such, these jurists do not consider the husband’s general right to intercourse as including circumstances likely to cause physical damage.
455 Al-Shirbīnī (n 28) vol 5 326-27. He also mentions that if the man tears the tissue between the places and menstruation and urination as well as the tissue between the places of menstruation and defecation, compensation is due for each. 456 Al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 8 481. 457 ibid.
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Further, Shāfiʿī texts do not make compensation for injury contingent on lack of consent to intercourse. Even in the context of zinā, the woman’s consent to sex is separate from physical injury. As al-Sharawānī says, “she receives the set compensation for tearing regardless of whether she was coerced or willing because consent to intercourse does not entail consent to vaginal tearing (qawluhu diya lahā: sawāʾ fī dhālika al-mukraha wa’l-muṭāwiʿa li anna al-ridā bi’l-waṭʾ lā yaqtaḍī al-idhn fī al-ifḍāʾ).”458 This straightforward view, without any exceptions, precludes any need for a longer discussion of different scenarios.
This is the only school where there is a complete division between the laws of zinā and injury, holding males financially accountable for vaginal tearing regardless of their relation to the victim or her consent to the act of intercourse. The dower for sexual access is granted or withheld based on the rules of marriage and zinā and has no effect on compensation for the injury. Whereas other jurists focus, at least in part, on the connection between the injury and the transgression against the divine, the Shāfiʿīs see an incursion on bodily integrity that is not a natural consequence of the underlying act, thus giving rise to independent legal obligations. As a result, females who suffer permanent tearing are entitled to compensation for that damage, requiring the male to share the burden by shouldering the financial consequences.
1.2 Defloration (Iftiḍāḍ/Izālat al-Bakāra)
Defloration means removing a female virgin’s hymen by penile penetration, a finger or an external object or blow. This can occur in the context of a licit or illicit sexual encounter. During intercourse between husband and wife, this is not a compensable matter in any school since it is a natural consequence of a fully lawful act. Outside of this situation, i.e. intercourse between illicit partners, or manual defloration by anyone, jurists adopt different approaches on when defloration is a compensable injury and the type of compensation due. The discussion below will first consider defloration by illicit partners before examining a husband’s manual defloration of his wife.
For a man’s defloration of a virgin who is not his licit sexual partner, all schools grant some form of compensation in certain circumstances. For Ḥanafī jurists, this compensation takes the form of the dower and arises only through non-penile defloration, such as by digital penetration, a rock or
458 Al-Sharawānī (n 57) vol 8 481. Also see al-Shirbīnī (n 28) vol 5 327 for a nearly identical statement.
170 a blow (dafʿa).459 This same compensation is due by a virgin girl (bikr/ṣabiyya) who deals a blow to another virgin causing defloration according to some Ḥanafī jurists.460 One text stipulates discretionary punishment in addition to the dower for a man who deflowers a virgin, though this is neither confirmed nor negated by other Ḥanafī works.461
By precluding compensation for defloration resulting from penile penetration, even among illicit partners and even where coerced, Ḥanafī law conceptualizes the loss of the hymen as unconditionally incidental to penile intercourse. For rape victims, this means that if the perpetrator is convicted of zinā, the victim will not receive any financial compensation under Ḥanafī doctrines unless there is vaginal tearing. The dower is precluded by the general principle that the ḥadd and the dower cannot be combined, as well as on the basis that loss of the hymen is incidental to the act of intercourse rather than independently compensable.
Where compensation is due for manual defloration, the reason for assigning the dower instead of another form of compensation is not mentioned. Further, it is curious that women deflowered through an object or a blow receive equivalent compensation to women coerced into full penile intercourse, provided there are doubtful circumstances precluding the ḥadd (the cause of compensation for the latter is sexual access, not injury). Although manual defloration is arguably less severe than coerced intercourse, the value of the compensation is not only identical but also easier to obtain given the inapplicability of zinā laws. Moreover, victims of manual defloration fare significantly better than rape victims when the perpetrator’s conviction for coerced zinā precludes the dower entirely.
In contrast, for manual defloration outside of a licit relationship Mālikī jurists impose compensation in the form of set compensation (arsh) for the hymen rather than the dower.462 However, in the context of penile intercourse, whether licit or illicit, they agree with their Ḥanafī
459 The concept of defloration through “dafʿa” (literally a shove/thrust) occurs frequently in Ḥanafī texts but is never defined, leading to some confusion over the intended meaning. However, it is occasionally contrasted with defloration by rocks, a finger or the like, the latter of which occur in private whereas “dafʿa” occurs in public: see for example Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 3 103. I believe that the intent is the use of force, which may or may not include the use of an object, while the woman is fully clothed. Mention of defloration using fingers or objects without the term “dafʿa” seems to indicate penetration directly into the vagina. 460 Al-Ṭūrī (n 437) vol 8 351 mentions that this al-Shaybānī’s view. Al-Baghdādī (n 309) 169 states generally that a girl who breaks another girl’s hymen must pay the dower. 461 Al-Ṭūrī (n 437) vol 8 351. 462 Al-Dardīr, al-Sharḥ al-Kabīr (n 77) vol 4 278. Mālikī texts mention digital defloration and do not mention the use of objects; however, the latter is likely encompassed by the same ruling.
171 counterparts that there is no compensation specifically for defloration; rather, she obtains the dower for the act of intercourse (unless she is convicted of zinā). This is because unlike vaginal tearing, Mālikī jurists consider loss of the hymen among the natural consequences of intercourse (lawāḥiq al-waṭʿ) since intercourse is not possible without this occurring.463
Shāfiʿī jurists also impose set compensation (arsh) for loss of the hymen caused by a non-licit male sexual partner who uses digital penetration or objects such as wood.464 For penile penetration in the context of zinā, the Shāfiʿī school is unique in that it holds the man is liable to compensation for the hymen of the virgin in addition to the dower for sexual access where the intercourse is coerced or marred by doubt.465 Al-Shirbīnī mentions that “this is because dower is required for sexual use whereas compensation is required for removing the piece of skin and these are two separate matters (li anna al-mahr yajib li istīfāʾ manfaʿat al-buḍʿ wa’l-arsh yajib li izālat tilka al- jilda wa humā jihatān mukhtalifatān).”466 Similarly, a Shāfiʿī fatwā states the following:
It is mentioned in al-Minhāj and al-Tuḥfa: Whoever is not entitled to deflower a woman, if he causes the loss of her hymen by a means other than his penis, like his finger or wood, set compensation is incumbent on him… If it is by penile intercourse in circumstances of doubt or while she is coerced, he must pay the dower as well as compensation determined in a judicial proceeding. It is not incorporated in the dower because dower is for sexual use whereas compensation is for removing the piece of skin and these are two separate matters. If the loss of her hymen occurred during zinā while she was willing, no compensation or dower is due.
Wa qāla fī al-Minhāj wa al-Tuḥfa: wa man lā yastaḥiqq iftiḍāḍahā fa in azāla al-bakāra bi ghayr dhakar ka uṣbuʿ aw khashaba fa arshuhā yalzamuhu…aw bi dhakar li shubha aw mukrahatan fa mahr mithl thayyiban wa arsh al-bakāra yalzamuhu lahā wa huwa al- ḥukūma wa lam tadkhul fī al-mahr li annahu li istīfāʾ manfaʿat al-būdʿ wa hiya li izālat tilka al-jilda fa humā wajhān mukhtalifān wa law uzīlat bakāratuhā bi zinā wa hiya muṭāwiʿa fa lā arsh ʿalayhi wa lā mahr.467
This applies as long as the virgin victim does not suffer simultaneous vaginal tearing. In this case, the perpetrator is liable for the dower for sexual access and the set compensation for tearing, not
463 ibid. 464 Al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 8 481. 465 Al-Shirbīnī (n 28) vol 5 327-28. There is another opinion in the school, considered weak, that only the dower is due since the goal of intercourse is sexual enjoyment and defloration is included in this: ibid vol 5 328. 466 ibid vol 5 327-28. 467 Al-Ahdal (n 105) vol 4 16. It may be inferred that if she consents to zinā, defloration is incidental and not compensable since she should anticipate defloration as a natural consequence of her consent. In contrast, the coerced woman did not consent to the act of penetration nor to defloration.
172 defloration. This is because both defloration and tearing are injuries, such that the smaller injury (defloration) is subsumed into the larger (tearing).468
The Shāfiʿī separation of compensation for defloration and dower for sexual access and the alternate view that defloration is a natural consequence of intercourse are equally plausible theoretical constructs. However, when applied to coerced zinā, the Shāfiʿī position is beneficial for virgin victims. This is because she can bring a claim for defloration as a civil matter separately from zinā proceedings, granting her access to compensation for the physical consequence of intercourse without the complications of zinā laws, as stated in the following Shāfiʿī fatwā:
A virgin’s claim that a person deflowered her is a claim for injury so the oath is on the defendant like in all claims. This applies whether or not there are incriminating circumstances like if they were found in seclusion and she cried that she was coerced. The oath is never upon the plaintiff except in the case of qasāma for murder [a procedure to identify the murderer] despite the presence of preponderant incriminating circumstances related to this occurrence. If the claim gives rise to retaliation, such as a woman’s claim that another woman removed her hymen on purpose, two witnesses are required. If it gives rise to money, such as a claim that it was done unintentionally or intentionally by a man, one male witness along with two females witnesses or the plaintiff’s oath suffice, or four female witnesses because this is a matter that normally only women would be privy to. They testify by saying, “I bear witness that so-and-so removed the hymen of so-and-so on purpose or semi-intentionally” according to what is being claimed. The witness does not have to mention what the hymen was removed with, such as the penis or a finger. Absent any testimony, the defendant has the opportunity to swear fifty oaths since oaths for injuries are like oaths for murder even if they give rise to lesser consequences and the compensation is not set. If the defendant refuses to swear, the plaintiff is given the opportunity to swear and this establishes the matter, whether it is retaliation or something else.
Daʿwā al-bikr anna shakhṣan iftaḍḍahā daʿwā jurḥ fa’l-yamīn fīhi fī jānib al-muddaʿā ʿalayhi ka kull daʿwā sawāʾ kāna lawth ka an wujidā fī khalwa wa ṣāḥat ḥāl al-ikrāh am lā idh al-yamīn lā takūn fī jānib al-muddaʿī muṭlaqan illā fī al-qasāma fī al-qatl faqaṭ maʿa wujūd al-lawth al-mughallib li’l-ẓann iqtiṣāran ʿalā al-wārid fa ḥīnaʾidh in awjabat al- daʿwā qiṣāṣan ka an iddaʿat imraʾa ʿalā ukhrā annahā azālat bakāratahā ʿamdan fa lā budda min shāhidayn aw mālan bi an kānat khaṭaʾ aw ʿamdan min rajul kafā fīhā rajul wa imraʾatān aw yamīn al-muddaʿī aw arabaʿ niswa idh lā yaṭṭaliʿ ʿalā dhālika illā al-nisāʾ ghāliban wa ṣifat al-shahāda an yaqūla: ashhad anna fulānan azāla bakārat fulāna ʿamdan aw shibha aw khaṭʾ ʿalā wafq al-daʿwā wa lā yushtaraṭ taʿarruḍuhu li mā uzīlat bihi al-bakāra min dhakar aw naḥw uṣbuʿ fa in lam takun bayyina fa’l-qawl qawl al- munkir fa yaḥlif khamsīn yamīnan li anna ḥilf al-jurḥ ka’l-nafs wa in qalla wājibuhu wa lam takun diyatuhu muqaddara fa in nakala ḥalafa al-muddaʿī al-mardūda khamsīn ayḍan wa thabata al-wājib qiṣāṣan aw ghayrahu.469
468 Al-Shirbīnī (n 28) vol 5 328. 469 Bāʿalwī (n 76) 405.
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The possibility of obtaining compensation by claiming defloration under the category of injury rather than zinā, side-stepping zinā proceedings, bears some resemblance to the Mālikī use of property concepts to obtain the dower without recourse to zinā rules, provided there are witnesses. It is particularly important that witnesses to defloration do not have to mention how the injury occurred just as witnesses to usurpation do not have to mention the act of intercourse, which prevents liability for slander.470 However, usurpation is a more versatile doctrine compared to this claim for injury which is restricted to virgins.
Shāfiʿī texts also discuss a virgin girl deflowering another virgin, as came in the fatwā above. Unlike Ḥanafīs, they impose retaliation rather than monetary compensation.471 Further, of the three schools, only Shāfiʿī texts mention the possibility of a non-virgin woman doing this act, rendering her liable to payment of set compensation. In particular, the following scenario occurs:
Among this is the situation that frequently occurs where the husband is unable to break his wife’s hymen so he gives permission to a woman to break it. That woman must pay the set compensation for the hymen since his permission does not negate the right to compensation.
Wa minhu mā yaqaʿu min al-shakhṣ yaʿjiz ʿan izālat bakārat zawjatihi fa yaʾdhan li imraʾa fī izālat bakāratihā fa yalzam al-marʾa al-maʾdhūn lahā al-arsh li anna idhn al-zawj lahā lā yusqiṭ al-ḍamān.472
The role of the third-party female here deviates somewhat from the usual tendency to portray women as submissive in sexual acts. However, it is notable that even this reference is restricted to a woman acting in good faith under the husband’s orders rather than deflowering another female as an independent act of sexual assault or by consent for her own sexual pleasure.
Further, none of the schools mention a woman’s consent to defloration by digital penetration or penetration by objects. This is despite the fact that unlike vaginal tearing which has serious physical repercussions, it is probable that some females would wilfully engage in acts short of intercourse that cause defloration just as some females voluntarily participate in zinā. While it
470 Also recall from chapter 1 that the Shāfiʿī jurist al-Shirbīnī goes one step further by carving out an exception for slander liability when testimony concerns an injury sustained during zinā even if there are less than four witnesses: “the witness to an injury caused by zinā is not liable to slander due to necessity, even if there is no supporting testimony (shāhid al-jurḥ bi’l-zinā laysa bi qādhif li’l-ḥāja wa in lam yuwāfiqhu ghayruh).” However, he also indicates that a highly regarded earlier Shāfiʿī jurist, al-Rāfiʿī, considered that such a person is liable to slander. See: al-Shirbīnī (n 28) vol 5 463. 471 Al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 8 481. 472 Al-Bujayramī (n 48) vol 3 441.
174 may be tempting to read this in light of notions of female sexual passivity in legal texts, the omission can also be explained through general principles denying compensation for a consensual injury. For example, the Shāfiʿī jurist al-Shirbīnī mentions generically that “if someone says to another person ‘cut my hand off’, for example, and the person does so and he does not die, there is no retaliation and no compensation by agreement (fa law qāla lahu iqṭaʿ yadī mathalan fa qaṭaʿahā wa lam yamut fa lā qawad wa lā diya qawlan wāḥidan).”473
Moreover, despite widening the opportunities for compensation for sexual assault, reparation for defloration is somewhat odd. Although the removal of this piece of skin is an irreversible change to the woman’s body, it has no impact on the body’s function and does not cause any physical suffering. In comparison, worse physical injuries from sexual violence that heal, such as significant cuts and bruising, are not eligible for compensation, nor is lasting non-physical harm. Again, from the jurists’ point of view, sexual acts that do not result in physical mutilation are not conceived as significantly harmful to the victim and thus not subject to civil compensation.
As for the husband deflowering his wife, Ḥanafīs do not grant compensation for the loss of the hymen regardless of how this occurs. These jurists often mention this scenario in conjunction with the rules of divorce and no reasons are given for the bar.474 Presumably, the rule relates to the wife’s body being permissible for the husband and his right to sexual access. Ḥanafī jurists grant husbands the widest right to compel their wives to have intercourse, as examined previously, while simultaneously imposing the most restrictions on the wife’s ability to claim compensation for vaginal tearing or defloration.
Mālikī and Shāfiʿī jurists agree that if the husband deflowers his wife using his penis, she does not have any right to compensation. As preceded, Mālikīs hold that removal of the hymen is a natural consequence of any act of intercourse such that defloration by the penis only gives rise to the dower for sexual access, whether the sex act is licit or illicit. Although Shāfiʿī jurists grant compensation in the context of coerced zinā, within the bounds of marriage this act is not seen as an injury since the husband is entitled to have intercourse with, and thus deflower, his wife.475
473 Al-Shirbīnī (n 30) vol 5 224. 474 See for example Ibn ʿĀbidīn, Minḥat al-Khāliq (n 33) vol 3 154; Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 3 153- 44. If he deflowers his wife by any means and divorces her before consummation, he must pay half the dower. If he deflowers her then divorces after consummation, he must pay the full dower. However, the obligation of dower is due to the rules of marriage and divorce rather than the act of defloration. 475 Al-Shirbīnī (n 28) vol 5 328.
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As for the husband’s defloration by his finger or objects, the Mālikī answer turns on whether he subsequently divorces her before consummation. If a newlywed husband uses his finger to deflower his wife then divorces her without consummating the marriage, such as if he did this in front of other women, he must pay the set compensation (arsh) for the loss of her hymen in addition to the half dower owed for the divorce itself.476 In line with the Mālikī focus on loss of future dower for vaginal tearing, the set compensation in this situation is intended to compensate for her lower anticipated dower upon re-marriage due to the absence of her hymen.477
However, if the husband deflowers his wife digitally or with an object and does not divorce her or divorces her following consummation, he only pays the full dower for the marriage and is not liable to anything for his defloration. Nonetheless, some Mālikī jurists are not keen on this conduct despite not financially penalizing the husband. For example, al-Dusūqī mentions a statement by an earlier jurist that the husband using his finger “is impermissible and he receives discretionary punishment (annahu ḥarām wa yuʾaddab).”478
Shāfiʿī jurists generally do not require the husband to pay compensation regardless of how he deflowers his wife. This is not contingent on him consummating the marriage. This is because the husband is entitled (mustaḥiqq) to deflower his wife, a right which these jurists do not make subject to the chosen method of defloration.479 Nonetheless, the opposite opinion, namely that he is liable to set compensation (arsh) for defloration by other than the penis, is also reported in the school even though it is considered weak.480
However, even on the view that the husband does not pay compensation, Ibn Ḥajar imposes discretionary punishment in the context of divorce before consummation if he deflowered her digitally or with an object:
He was asked about a man who removes his wife’s hymen by a means other than his penis then divorces her before consummation: is anything due from him other than half of the dower?
476 Al-Dusūqī (n 29) vol 2 300. There is also an opinion in the school, which is not relied upon, that he owes the full dower for using his finger: ibid. 477 As such, there is an opinion that if her anticipated dower will not be affected by the loss of the hymen, he is only liable for half of the dower based on the laws of divorce and does not compensate for defloration: ibid vol 2 300-01. 478 ibid vol 4 278. The jurist he refers to is al-ʿAdawī. 479 Al-Shirbīnī (n 28) vol 5 328. 480 ibid.
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He responded that nothing is required for the removal of the hymen since he had a right to do so. However, he receives discretionary punishment for harming her by using something other than his penis.
Wa suʾila ʿan rajul azāla bakārat zawjatihi bi ghayr dhakarihi thumma ṭallaqahā qabl al- dukhūl fa hal yalzamuhu shayʾ ghayr niṣf mahrihā li tafwīt al-bakāra ʿalayhā?
Fa ajāba raḥimahu Allāh taʿālā bi qawlihi lā yalzamuhu shayʾ li izālat al-bakāra li annahu yastaḥiqquhā lakinnahu yuʿazzar li kawnihi adhāhā bi izālatihā bi ghayr al-dhakar wa Allāh subhānahu wa taʿālā aʿlam.481
Thus, while stopping short of classifying defloration as an independent injury within marriage due to the husband’s right of sexual access, this view considers certain types of defloration an abuse of this right with potential to harm the wife, leading some jurists to find a means other than financial compensation to sanction the husband’s behaviour. The explicit link between harming the wife and punishment in this fatwā is also evidence of desire to protect women from detrimental behaviour even if jurists’ conceptions of injury, harm and sex do not match contemporary expectations.
Discretionary Crimes
The main sexual acts discussed by jurists concern vaginal and anal penetration, largely due to their status as a set crime against God and the myriad of resulting rules. However, jurists also turned their minds to other miscellaneous sexual offences, all of which are matters of discretionary punishment. Free from the constraints of zinā or other set crimes such as banditry, these residual offences are straightforward matters that do not attract significant debate or discussion in legal texts. As with intercourse, both consensual and coerced acts are prohibited whenever they occur outside of a licit relationship. However, given the absence of issues such as privacy which affect zinā, the pairing of consensual and coerced discretionary offences does not cause problems for victims aside from needing to plead coercion successfully.
The most frequently mentioned violation is female frotting since as a substitute for intercourse between females, it must be distinguished from zinā. Other offences are mentioned in brief, such
481 Al-Haytamī, al-Fatāwā al-Fiqhiyya (n 416) vol 4 220. Note that for Shāfiʿīs, virginity is physical, so loss of the hymen for any reason is loss of virginity.
177 as penile penetration of a woman’s bellybutton and kissing. This section will consider female frotting followed by a brief discussion of other offences.
2.1 Female Frotting
Female frotting is referred to by a variety of names in legal texts, such as tasāḥuq (and variants of this root, such as musāḥaqa and siḥāq) and shirār al-nisāʾ. The Mālikī jurist al-ʿAdwī explains one of these names while clarifying the meaning of the act:
In the dictionary, it is used as follows: the udder has become distended (“asḥaqa”) [the verb from the same root as the terms tasāḥuq, musāḥaqa and siḥāq] means that its milk finished and became exhausted and stuck to its stomach; and it refers to a person who was sent far away; and, it means expanded/stretched. Therefore, the act was called musāḥaqa since each of the two women attaches her orifice to the orifice of the other and because their act distances them from goodness and mercy and good characteristics, or because each of them extends herself to the other in this state.
Fī al-qāmūs asḥaqa al-ḍarʿ dhahaba labanuhu wa baliya wa laṣiqa bi’l-baṭn wa fulānan abʿadahu wa asḥaqa ittasaʿa. Wa ḥīnaʾidh summiya musāḥaqa li anna kullan minhumā tulṣiq farjahā bi farj al-ukhrā aw li anna fiʿlahumā yubʿiduhumā ʿan al-khayr wa’l-raḥma wa’l-simāt al-ḥasana aw li anna kullan minhumā tuwassiʿ nafsahā li’l-ukhrā fī tilka al- ḥāla.482
Few mentions of frotting take up more than a line or two in legal works (the quotes in this section are among the longest). Rather, the unusual consideration of a female-led sexual act mainly serves to clarify the scope of zinā and there is rarely any sustained focus on the women themselves. Naturally, the lack of penetration means that frotting cannot come under zinā and is instead a discretionary crime.483 For all schools, the matter therefore comes under discretionary punishment. For example, a Ḥanafī fatwā by Ibn Nujaym states:
He was asked about a woman who went to another woman and did an act with her until she obtained her (sexual) desire. What are they liable to? He responded that they are given discretionary punishment.
Suʾila ʿan imraʾa atat imraʾa wa faʿalat bihā ḥattā atat arabahā fa mādhā yajib ʿalayhimā? Ajāba yajib ʿalayhimā al-taʿzīr.484
482 Al-ʿAdwī (n 41) vol 8 78. 483 This issue is usually mentioned in passing by Mālikī and Shāfiʿī jurists. Ḥanafī fiqh works rarely mention female frotting at all, such that most references are restricted to fatwā collections. 484 Ibn Nujaym, Fatāwā Ibn Nujaym (n 201) 67-68.
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Similarly, the Mālikī jurist al-Zurqānī states, “as for the exclusion [from the ḥadd] for female frotting, it is not zinā since it does not include penetration; however, she receives discretionary punishment (qawuluhu lā musāḥaqa fa laysat bi zinā li annahu lā īlāj fīhā wa uddiba fāʿiluhu)”.485 Further, the Shāfiʿī jurist Ibn Ḥajar mentions that “there is no ḥadd for…acts where there is no penetration by the circumcised part of the penis, such as female frotting… (wa lā ḥadd li mufākhadha wa ghayrihā mimmā laysa fīhi taghyīb ḥashafa ka’l-siḥāq…)”486
Unsurprisingly given the strong prohibition on any form of sexual relations outside of marriage in Islamic thought, the distinction from zinā and the brevity of most references to frotting does not mean that this act, when it occurs, is treated as a minor matter. Even though God has not singled out this crime, as with zinā, it is still a transgression against God’s boundaries on intimacy. While the above quote by the Mālikī jurist al-ʿAdwī regarding the origin of the name indicates that frotting is viewed as depraved, the following Shāfiʿī text is even more critical:
Know that female frotting is prohibited and they are given discretionary punishment for doing so. Al-Qāḍī Abū al-Ṭayyib said, “its sin is like the sin of zinā.” Further, it was narrated from [the Prophet] that if one woman goes to another [for frotting], they are [like] fornicators/adulterers.
Iʿlam anna tasāḥuq al-nisāʾ ḥarām wa yuʿazzarna bi dhālika. Qāla al-Qādī Abū al- Tayyib: wa ithm dhālika ka ithm al-zinā wa ruwiya ʿanhu: idhā atat al-marʾa fa humā zāniyatān.487
Further, although the Mālikī jurist al-Gharnāṭī mentions that their punishment is at the discretion of the ruler, he also includes a statement suggesting that both women should receive 50 lashes, which is a relatively harsh punishment even if less than the ḥadd of zinā.488
As for evidentiary requirements, the Mālikī jurist al-Dusūqī clarifies that unlike some discretionary crimes, frotting is only established by “two upright men…not by one man and two women or one man and an oath since is not a property matter or anything that gives rise to money (bi ʿadlayn…wa lā bi shāhid wa imraʾatayn aw aḥadihimā maʿa yamīn li anna dhālika laysa bi māl wa lā āyil lahu).”489 For coerced victims, this makes it difficult to establish the guilt of the perpetrator since the act is unlikely to occur in front of two male witnesses; however, the burden is significantly less
485 Al-Zurqānī (n 28) vol 8 133. 486 Al-Haytamī, Tuḥfat al-Muḥtāj (n 29) vol 9 104. 487 Al-Dimyāṭī (n 136) vol 3 304. This ḥadīth is narrated by al-Bayhaqī (n 333) vol 8 406, vol 17 221. 488 Al-Gharnāṭī (n 263) vol 8 392. 489 Al-Dusūqī (n 29) vol 4 316.
179 than for zinā and there are no additional obstacles impeding testimony where witnesses exist. Although Ḥanafī and Shāfiʿī books do not address witness requirements for this offence directly, based on their general principles regarding witnesses, it appears that Shāfiʿī jurists would impose the same requirements as Mālikīs whereas Ḥanafīs would allow oaths and female testimony at a two-to-one ratio.490
The lack of available compensation is another downside for victims. Absent grievous physical harm sustained during the act, such as loss of a limb, the victim has no claim for compensation. The dower has no role here, as the dower is compensation for sexual access only in the context of penile penetration. Thus, while criminal prosecution is somewhat more available, once again lack of consent may preclude punishment for involvement in immoral activity but it does not give rise to an actionable civil claim.
2.2 Other Offences
The remaining sexual violation most commonly contemplated in Ḥanafī and Shāfiʿī texts is a man placing his penis on or into any part of the woman’s body other than the vagina or anus. For example, the Ḥanafī jurist al-ʿAynī states:
Whoever penetrates a woman with whom he does not have a licit relationship outside her orifice [the vagina or anus], such as in her bellybutton or on her thigh or similar to this…receives discretionary punishment, and they said it is worthy of the most severe discretionary punishment, as penetration outside of the orifice is reprehensible since it is a vile act. [Discretionary punishment is because] there is no punishment specifically stipulated in the law, and al-Shāfiʿī and Mālik agree, as well as Aḥmad according to one narration and according to his other narration the man is killed.
Wa man waṭiʾa ajnabiyya ay imraʾa ajnabiyya fīmā dūn al-farj ka’l-tabṭīn wa’l-tafkhīdh wa naḥwihimā wa laysa al-murād minhu al-ityān fī al-dubur li anna bayānahu yajīʾ ʿaqīb hādhā yuʿazzar qālū ashadd al-taʾzīr li annahu ay li anna al-waṭʾ fīmā dūn al-farj munkar li annahu shayʾ qabīḥ laysa fīhi shayʾ muqaddar fī al-sharʿ wa bihi qāla al-Shāfiʿī wa Mālik wa Aḥmad fī riwāya wa fī riwāya yuqtal.491
Although the term “penetration (waṭʾ)” is often used to describe these acts, this is a loose usage, as noted explicitly in a Shāfiʿī gloss, since it excludes penetration of the vagina or anus (which
490 See for example al-Ḥaṣkafī (n 78) vol 4 74 [Ḥanafī]; al-Shirbīnī (n 28) vol 6 367-68 [Shāfiʿī]. 491 Al-ʿAynī (n 32) vol 6 308.
180 come under zinā/liwāṭ, except for anal penetration for Ḥanafīs) and encompasses non-penetrative acts such as placing the penis between the thighs or on other body parts.492
Shāfiʿī texts also mention penetration by only part of the circumcised part of the penis – a situation excluded from zinā in all schools due to the requirement of penetration by the full portion of the circumcised part – as well as the precursors of penetration, which include a large spectrum of actions such as kissing and sexual touching.493 Similarly, the Mālikī jurist al-Ḥaṭṭāb lists some of these precursors while suggesting a specific punishment for each:
If a man and woman who are not in a licit relationship wink at each other or laugh together, they are each lashed 20 times if she was willing [and if she was not willing, only he is lashed]. If he kissed her while she was willing, both are lashed 50 times, and if she was not willing, he alone is lashed 50 times. Whoever confines a woman is lashed 40 times, and if she obeyed him she is also lashed the same number of times.
Wa man taghāmaza ajnabiyya aw taḍāḥaka maʿahā ḍuribā ʿishrīn idhā kānat ṭāʾiʿatan fa in qabbalahā ṭāʾiʿatan ḍuribā khamsīn wa in lam tuṭiʿhu ḍuriba waḥdahu khamsīn wa man ḥabasa imraʾa ḍuriba arbaʿīn fa in ṭāwaʿathu ḍuribat mithlahu.494
Further, in a catch-all expression that occurs while discussing the necessity of the punishment fitting the crime and the need for deterrence, the Ḥanafī jurist Ibn ʿĀbidīn mentions a man who does “every prohibited act short of intercourse (kull muḥarram siwā al-jimāʿ)” with a woman who is not licit for him.495
Overall, in all schools, any sexual activity between a man and woman who are not in a licit relationship is a punishable offence, whether consensual or coerced. As with zinā, the only difference between a woman engaging in such acts under coercion or willingly is that the former is not liable to punishment, as confirmed in al-Ḥaṭṭab’s statement above. The inclusion of trivial flirting, such as winking, in these texts demonstrates the extent of the prohibition on all forms of intimacy outside of marriage in Islamic law and the seriousness with which jurists approached upholding the limits they believed to be set by God. Although zinā has special considerations due to its categorization among the set crimes, the fact that even flirtatiousness is severely frowned upon and subject to the law provides further context for why jurists may have been inclined to
492 Al-Bayjūrī (n 102) vol 2 436. 493 Al-Shirbīnī (n 28) vol 5 443. 494 Al-Ḥaṭṭāb (n 49) vol 6 303. These sexual offences are mentioned within a longer list of misconduct considered deserving of punishment, such as calling another man a criminal (“yā mujrim”) and disobeying the ruler. 495 Ibn ʿĀbidīn, Radd al-Muḥtār (n 29) vol 4 62.
181 certain strict opinions for full intercourse, such as requiring those claiming coercion to meet high standards to avoid punishment.
Further, the gendered nature of the discourse regarding sexual violations extends into discretionary offences. The only textual reference encountered that includes mutual reciprocity is the above quote by al-Ḥaṭṭāb. Other mentions of discretionary sexual crimes, other than female frotting, assume that the actor is male and only mention his punishment. The female is a shadow of the male’s act with no mention of her volition or punishment, much less any suggestion that she could initiate sexual activity with a man. From one perspective, the almost complete omission of female aggressors and male victims makes this discussion even more gendered than zinā; however, since many concerns affecting male victims in zinā, such as erection and lineage, are not relevant here, in practice the gender gap in a prosecution could be smaller than in zinā proceedings.
From a practical perspective, coerced victims would also have a greater chance of seeing the perpetrator convicted than in zinā. However, once again, the lack of financial compensation absent grievous bodily harm is a disconnect between contemporary notions of harm and the doctrines historically advocated by jurists.
Summary
The effect of zinā on entitlement to tort compensation in some schools further illustrates the strength of the prohibition on illicit intercourse in Islamic thought. Moreover, the restricted scope of compensation runs counter to modern views of rape as inherently giving rise to compensable injury. In combination, the limited scope of tort law and the zinā/tort interplay preclude compensation for many sexual injuries. This includes injuries that are not compensable at all, such as severe bruising or vaginal tearing that heals after some time, as well as injuries that would be compensable but-for their occurrence during zinā, such as when a man vaginally tears a woman during consensual illicit sex . As a result, the doctrines place a significant burden on women who bear the brunt of such injuries but may not be entitled to compensation.
However, for jurists willing to differentiate between physical injury and the act of illicit intercourse, women implicated in coerced or consensual illicit sex or wives who suffer permanent vaginal tearing may be able to obtain compensation for that suffering even if they cannot
182 successfully obtain the dower for sexual access under zinā doctrines. Further, the unique Shāfiʿī recognition of an independent claim of compensation for defloration in coerced illicit sexual encounters opens the door for the virgin rape victim to seek compensation for the loss of her hymen even if she cannot obtain the dower for sexual access under the strict rules of zinā.
Further, the vast scope of sexual offences under discretionary punishments, spanning sexual touching to winking, is additional evidence of the firm boundaries of appropriate sexual conduct. However, despite the more attainable standards of evidence compared to zinā, the exclusion of female witnesses and oaths by two schools still creates complications bringing the perpetrator to justice. Moreover, the victim lacks access to financial compensation.
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Part 2 Modern Jordan
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Chapter 6 Sexual Violations in Modern Jordan
Introduction
Around 5pm on April 4, 2017, a man named Ḥātim picked up Zaynab (name changed to protect victim’s identity), a Bengali woman living in Jordan, on the pretense that he wanted her to clean his home. Instead, Ḥātim took Zaynab to a secluded area where he forced her into the trunk, placed a razor blade on her neck, removed her clothes and had intercourse with her against her will. Alone after he drove off, Zaynab encountered a shepherd who called the police. A medical examination confirmed the presence of Ḥātim’s semen in and around the victim’s vagina and anus and on her lower back. In a decision more recognizable to a Canadian lawyer than a traditional Muslim jurist, Jordan’s Grand Criminal Court, in a decision affirmed by the Court of Cassation, convicted Ḥātim of rape on the strength of the medical evidence and the victim’s testimony and sentenced him to 15 years in prison.496
Jordan, known formally as the Hashemite Kingdom of Jordan, formed part of the Ottoman empire until 1918. After a period of time as a mandate of the United Kingdom, Jordan became independent in 1946. Its current population of approximately 10.5 million is a significant increase over its less than 250,000 inhabitants in the late 1940s, attributable in part to the hundreds of thousands of Palestinian refugees who fled to Jordan from 1949-1967 following the creation of Israel. Considered one of the most politically liberal countries in the Arab world, Jordan is a constitutional monarchy with one appointed legislative house (the Senate) and one elected house (the House of Representatives). Islam is the official religion and over 97% of the population is Muslim. Further, the population is over 97% Arab, primarily Jordanian and Palestinian, but also comprising significant Syrian and Iraqi minorities who sought refuge in neighbouring Jordan to escape troubles in their home countries.497
496 R v al-ʿAbūs 2018/716 (Court of Cassation). 497 Ian J Bickerton, Verity E Irvine and Kamel S Abu Jaber, ‘Jordan’ in Encyclopaedia Britannica (online edn)
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The current criminal law system in Jordan dates back nearly 70 years to the adoption of the Criminal Code of 1951, replacing the Ottoman Penal Code of 1858 which had applied until then. Less than 10 years later, the Jordanian legislature adopted the Criminal Code of 1960, which was a near carbon copy of the 1951 Code in the area of sexual violence. The Criminal Code of 1960 remains in force today, albeit with amendments over the decades. Jordan also has other modern legislation that complements the Criminal Code and covers other areas of the law, such as the Code of Criminal Procedure and the Civil Code.
Accompanying the legislative framework is a court system particularly recognizable to those from the civil law tradition. Two tiers of courts are responsible for cases of sexual violence. The Grand Criminal Court (Maḥkamat al-Jināyāt al-Kubrā) is the trial court whereas the Court of Cassation (Maḥkamat al-Tamyīz) functions as the appellate court. In most other criminal matters, with the exception of murder and kidnapping, and in civil cases, matters may pass through three levels: the Court of First Instance (Maḥkamat al-Bidāya), the Court of Appeal (Maḥkamat al-Istiʾnāf) and the Court of Cassation. Although previous judgments are not binding as in the common law tradition, they are commonly cited by lawyers, judges and legal commentators and are considered influential.
On the surface, the criminal law system in Jordan is European influenced with little relation to Islamic jurisprudence. Currently, only family law and inheritance remain under the jurisdiction of religious courts. However, this does not automatically mean that there is no link between the Jordanian legal approach to sexual violence and traditional Islamic law, particularly in court decisions where culture, including religion, may play a role in judicial interpretation.498 The attraction to traditional religious notions remains strong in Jordanian society, even among some legal scholars and practitioners.499
Based on Jordanian legislation, a sample of written court judgments and legal commentaries, as well as the Islamic jurisprudence presented in the first part of this dissertation, this chapter explores the following questions: What is the current state of the law on sexual violence in Jordan, and how
498 For example, in the area of honour killings, Catherine Warrick argues that although the Jordanian Criminal Code does not recognize honour killing unless the woman is caught in flagrante delicto of the act of adultery (s. 340), courts use the section regarding crimes committed in a furious passion (s. 98) to reduce the penalty for men who kill their female relatives on mere suspicion by inferring that men who suspect a female relative of bad behaviour would be overcome with rage. See: Warrick (n 409). 499 For example, in his commentary on sexual offences under the Criminal Code, Muḥammad Najm of the University of Jordan mentions the benefits of the Islamic prohibition on sexual relations outside of marriage. See: Muḥammad S Najm, al-Jarāʾim al-Wāqiʿa ʿalā al-Ashkhāṣ (2002 Dār al-Thaqāfa) 180.
186 has it evolved over time? Further, how do courts apply the law to real cases? For example, do they deviate from the written text of the Code, and do they facilitate complaints or place barriers in the way of sexual assault victims? Finally, what is the relationship between the contemporary Jordanian legal approach to sexual violation and that of traditional Islamic jurisprudence? As there are no prior studies on these issues and this project considers an initial sample of cases that is limited in size, the conclusions on these matters are necessarily tentative.
Analysis of the sources in this project indicates that although Jordan has adopted a broad moral framework for sexual offences, the detailed legal approach places significant emphasis on sexual violence as an offence against an individual victim. While the legal approach to sexual violence in Jordan has been stable since the inception of the first Criminal Code in 1951, it has not been saddled with inertia. Rather, the law has slowly evolved in areas such as sentencing. Further, while the framework that places sexual violations under honour and morality has not been subject to reform, recent amendments have reduced the impact of the moral slant and started to erode the gendered paradigm for sexual violence, improving access to justice for both male and female victims.
Moreover, the legislation, case law and legal commentaries take a unified approach to sexual offences. Judges usually apply the text of the law without apparent outside influence. Where judicial interpretation is necessary, the courts generally take a balanced approach, neither reading in notions that are difficult to substantiate on the face of the law, nor shying away from reasonable interpretation where needed. However, in aspects such as the availability of calumny charges and the limits of physical coercion, the cases analyzed indicate that the legal approach could benefit from amendment and/or more aggressive judicial interpretation in favour of victims.
Finally, this chapter indicates that there is a substantial disconnect between Islamic jurisprudence, as it exists in fiqh and fatwā literature, and the contemporary Jordanian approach to sexual violence in both the legislation and case law. Even though Jordanian sexual offences incorporate a moral aspect, the moral concerns do not mirror those of Islamic law and do not preclude a substantial focus on the individual victim. Further, comparison between the Jordanian and Ottoman approaches to sexual offences, combined with a generous reading of the relation between Ottoman and Islamic law, does not significantly alter the conclusion of a disconnect between the Jordanian and Islamic systems. In the area of Jordanian court practice, in line with the harmony between the
187 legislation and case law, the blackletter text of judgments does not incorporate religious notions still prevalent in broader society that conflict with the written law.
1.1 A Note on Sources and Methodology for Jordanian Law
This project uses three main sources: legislation, case law and legal commentaries. It does not consider societal barriers that may discourage victims from seeking justice, nor impediments in the justice system not contained in the written record, such as police and prosecutors who fail to take the complaint seriously. Further, as a broad initial assessment of the legal approach to sexual violence, the study is based only on a limited sample of legal material, particularly in the area of case law, as discussed below. Future projects should test the conclusions presented in this study through consideration of additional case law and commentaries, as well as add to the findings from other facets. For accurate understanding of the written sources, members of Jordan’s legal community provided some guidance on legal concepts as well as the opportunity to attend a sexual assault hearing at the Court of Cassation.
The modern legislation on sexual offences incorporated in this study is extensive. It includes copies of the Criminal Code of 1951, the original Criminal Code of 1960 and the in-force version of the 1960 Code after amendments. It also comprises the text of all amendments to the Criminal Code, which allowed me to piece together the different versions of sexual offences over the entire history of modern Jordan. Other relevant codes, such as procedural codes related to criminal law and the criminal courts, as well as the Civil Code, are also included.500
For historical legislation, this project includes Ottoman sources in translation, such as the Ottoman Penal Code of 1858 which was in force in Jordan until the adoption the Criminal Code of 1951, the older Penal Code of Sultan Sulaymān the Magnificent (d. 1566 CE/973 h), as well as relevant
500 Note that this study does not directly address youth criminal justice, which is regulated in Jordan by Qānūn al- Aḥdāth n 32 2014 (often translated as the Juvenile Law of 2014). This relatively recent law applies to youth between the ages of 12-18. Under this law, children are entitled to special protections and consideration during criminal proceedings and they cannot be sentenced to death or to life imprisonment. The criminal law commentaries included in this project do not address offences by youth and I did not come across cases involving youth offenders. As youth are liable to the same offences as adults under the Criminal Code, much of the commentary in this study would apply with some modification, particularly in the area of sentencing.
188 fatwās and court records available in academic studies on the Ottoman period.501 The project does not look directly at older European laws known to have influenced the Ottoman Code and many codes later adopted in the Middle East, such as the French Penal Code of 1810. Future studies may consider such sources, as well as additional Ottoman records available in Turkish and/or in manuscript form to test some of the historical conclusions presented in this paper.
As for case law, in the area of criminal law, the sample contains a total of 41 written decisions which comprise 40 unique judgments. The 40 unique decisions were all issued by Jordan’s highest court, the Court of Cassation, and accessed via Qisṭās, a legal research service similar to Westlaw. The remaining decision is a lower court judgment of a case included among the 40. Decisions by the Court of Cassation are the most persuasive and often the only level available on Qisṭās for sexual offences. Unlike the Canadian court system, judgments from the highest court are plentiful for sexual crimes since decisions by the Grand Criminal Court are automatically appealed or reviewed by the Court of Cassation. As the Court of Cassation usually sets out the finding of facts by the lower court and affirms its decision, reliance on the upper court decisions should provide a representative understanding of both levels of the judiciary.
The criminal cases mainly concern rape and violation of honour, the two categories in Jordanian law for serious forms of sexual assault. Lesser sexual offences like fondling are also included, but generally only when they occur in conjunction with charges for rape or violation of honour. In addition to the 41 full decisions, this study includes a small number of criminal case excerpts, such as part of a relevant written decision that does not have a citation obtained directly from a judge in Amman, as well as cases quoted in commentaries. These excerpts will be mentioned throughout this chapter as appropriate.
As for the 41 full criminal judgments at the heart of this study, the following table summarizes the key information for each case. Note that sections are given according to the Criminal Code of 1960, such that for cases from the 1950s, the equivalent section under the later Code is provided (equivalency is both simple and accurate given that the 1960 Code adopted all sexual offences from the 1951 Code nearly verbatim).
501 According to Uriel Heyd, who translated the Penal Code of Sultan Sulaymān the Magnificent, this law was enacted around 1540 and was enforced until it was gradually discarded during the 17th and 18th centuries: see Heyd (n 410) 27, 150, 155.
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Case Name Year Court Offence Section R v ʿAbd 292, 1 Rabbih 2018 Cassation Rape, violation of honour 296 2 R v Abū Dalbūḥ 2018 Cassation Violation of honour 296 3 R v al-ʿAbūs 2018 Cassation Rape 292 4 R v AF 2018 Cassation Violation of honour 296 5 R v ʿAwda 2018 Cassation Violation of honour 296 6 R v Ibrāhīm 2018 Cassation Violation of honour 299 299, 7 R v ʿIzām 2018 Cassation Violation of honour, immoral words/act 306 8 R v al-Shirmān 2018 Cassation Violation of honour 298 9 R v Shukrī 2018 Cassation Rape 292 10 R v Ṣundūqa 2018 Cassation Violation of honour 296 296, Violation of honour, fondling, immoral 305, 11 R v Ṭabīla 2018 Cassation act/words 306 12 R v Ṭashṭūsh 2018 Cassation Violation of honour 296 298, 13 R v al-Ṭiwāl 2018 Cassation Violation of honour, immoral words/act 306 14 R v al-ʿUmr 2018 Cassation Rape 292 R v ʿAbd al- 15 Karīm 2017 Cassation Rape 292 292, 16 R v ʿArīqāt 2017 Cassation Rape, violation of honour 296 293, 17 R v Manīzil 2017 Cassation Rape, violation of honour 297 Grand 293, 18 R v Manīzil 2017 Criminal Rape, violation of honour 297 Re Jurisdictional 19 Dispute 2017 Cassation Rape 292 20 R v RR 1987 Cassation Violation of honour 298 292, 21 R v ṢD 1987 Cassation Rape, violation of honour 296 22 R v SḤ 1987 Cassation Violation of honour 296 296, 23 R v ʿḤR 1986 Cassation Violation of honour, indecent act 320 293, 24 R v BJS 1985 Cassation Rape, violation of honour 297 25 R v ḤM 1985 Cassation Violation of honour 297 26 R v HMF 1985 Cassation Violation of honour 296 293, 27 R v JMʿ 1985 Cassation Rape, violation of honour 296 292, 28 R v KhʿSh 1985 Cassation Rape, violation of honour 296
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292, Rape, violation of honour, immoral 296, 29 R v ʿMB 1985 Cassation act/words 306 30 R v al-Shawwā 1966 Cassation Rape 292 31 R v al-Ḥijāzī 1959 Cassation Violation of honour ? Violation of honour (related but no 32 R v al-Khaṭīb 1959 Cassation charge under this offence) - 33 R v al-Samān 1959 Cassation Violation of honour 298 34 R v al-ʿAlī 1958 Cassation Violation of honour 296 35 R v Yāsīn 1958 Cassation Violation of honour 298 36 R v Dāwūd 1957 Cassation Fondling 305 37 R v Salwān 1957 Cassation Violation of honour 298 38 R v al-Sarādīj 1957 Cassation Violation of honour 296 39 R v ʿAjrāmī 1956 Cassation Rape 292 294, 40 R v Dawlah 1955 Cassation Rape 295 41 R v al-Qāsim 1952 Cassation Violation of honour, obiter on rape 296 Table 5: Overview of Criminal Law Cases Included in Study
Further, the breakdown by time period is shown in the following table. Note that numerous cases involve multiple charges, such that the sum of the individual offences is greater than the number of total cases for any given period.
Total Violation of Immoral Indecent Cases Rape Honour Fondling Act/Words Act 2017- 2018 19 9 16 1 3 0 1966- 1987 11 6 10 0 1 1 1950s 11 3 8 1 0 0 41 Table 6: Summary of Criminal Cases by Time Period
The three time periods correspond to different versions of the Criminal Code. The cases from the 1950s are decisions under Jordan’s first Criminal Code adopted in 1951. In contrast, the judgments from 1966-1987 are cases decided under the original text of the Criminal Code of 1960 before the passage of amendments to sexual offences. The third group of cases from 2017-2018 reflects the law post-amendments. While amendments were passed in 1988, 2011 and 2017 to sexual offences,
191 they are largely continuous, such as gradual increases to sentences, rather than three sets of radically different amendments. Due to this, as well as the significantly greater availability of recent cases on Qisṭās, the third group of cases from 2017-2018 focuses on the latter part of the amendment phase.
The 19 cases from 2017-2018 were selected largely at random from a bigger number of cases available for that period.502 Controls on randomization included ensuring the sample contained both rape and violation of honour cases (the latter being more prevalent due to the larger scope of the offence), ensuring that the written decisions contained sufficient information to understand the facts, and elimination of clearly irrelevant search results, such as financial crimes that share the term “ightiṣāb” with rape. Although a few additional cases were originally selected from the search results in Qisṭaṣ, the final number represents the total quantity of cases after eliminating some found to have insufficient relevance, such as cases that briefly mention sexual offences while the facts and decision turn on other charges. The final number allows for observation of trends and the formation of tentative conclusions based on those tendencies while keeping the total number of cases workable.
There are significantly fewer cases available for the other two time periods. This is not necessarily due to an actual lack of cases, but because the database Qisṭās has focused on the contemporary period while slowly backfilling older decisions. The cases from the 1950s represent the totality of what was available at the time that I had access to the database. The cases from 1966-1988 represent a significant portion of the cases that were available for that time period. As older written decisions are often brief and do not contain sufficient information for analysis, I went through the search results and selected decisions that contained adequate facts and reasoning to understand the case and form an opinion about it.
502 I do not recall exactly how many cases were listed on Qisṭās for that time period. At the time of performing these searches, I had anticipated returning to the program at a later date but did not have subsequent access. The official Jordanian figures on rape and violation of honour from the mid-1990s, as cited by Amira Sonbol, provide an idea of the total number of cases in Jordan per year, on the assumption that this has not changed dramatically: 1995: 41 rape cases, 192 violation of honour cases; 1996: 63 rape cases, 223 violation of honour cases; 1997: 52 rape cases, 215 violation of honour cases. See: Amira El-Azhary Sonbol, Women of Jordan: Islam, Labor, & The Law (2003 Syracuse) 187. She does not mention the source for these official figures, nor whether they constitute reported cases or cases that resulted in a final court judgment. Naturally, these figures do not include sexual offences that go unreported and unprosecuted.
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Of the 41 full criminal law decisions across the three time periods, 18 involve the offence of rape. The following chart summarizes the rape cases, and may be used as a reference while reading the main body of this chapter:
Additional Case Name Year Court Section Outcome Victim Sexual Charges Acquitted (convicted of R v ʿAbd violation of Violation of 1 Rabbih 2018 Cassation 292 honour) Female adult honour 2 R v al-ʿAbūs 2018 Cassation 292 Convicted Female adult None 3 R v Shukrī 2018 Cassation 292 Convicted Female adult None 4 R v al-ʿUmr 2018 Cassation 292 Convicted Female adult None R v ʿAbd al- Returned to lower 5 Karīm 2017 Cassation 292 court Female adult None Returned to lower 6 R v ʿArīqāt 2017 Cassation 292 court Female adult None Violation of 7 R v Manīzil 2017 Cassation 293 Convicted Female adult honour Grand Violation of 8 R v Manīzil 2017 Criminal 293 Convicted Female adult honour Re N/A - Jurisdictional jurisdictional 9 Dispute 2017 Cassation 292 matter Female adult None Convicted Violation of 10 R v ṢD 1987 Cassation 292 (attempted rape) Female adult honour Violation of 11 R v BJS 1985 Cassation 293 Convicted Female adult honour Convicted Female (age Violation of 12 R v JMʿ 1985 Cassation 293 (attempted rape) unknown) honour Violation of 13 R v KhʿSh 1985 Cassation 292 Convicted Female adult honour Violation of Convicted Female child honour, immoral 14 R v ʿMB 1985 Cassation 292 (attempted rape) (under 15) acts/words Convicted Female (age 15 R v al-Shawwā 1966 Cassation 292 (attempted rape) unknown) None Female (age 16 R v ʿAjrāmī 1956 Cassation 292 Convicted unknown) None Female child 17 R v Dawlah 1955 Cassation 294 Convicted (under 15) None N/A - rape considered in Violation of 18 R v al-Qāsim 1952 Cassation - obiter [Male] honour Table 7: Rape Cases
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Further, the following two charts summarize the 32 criminal decisions involving violation of honour. Note that percentages may not add up to 100 in the second chart for reasons such as multiple accused or outcomes constituting neither a conviction nor acquittal.
Additional Case Name Year Court Section Outcome Victim Accused Sexual Charges R v ʿAbd Female 1 Rabbih 2018 Cassation 296 Convicted adult Male Rape R v Abū Male child 2 Dalbūḥ 2018 Cassation 296 Convicted (13 y.o) Male None Female child (14 3 R v AF 2018 Cassation 296 Convicted y.o.) Male None 4 R v ʿAwda 2018 Cassation 296 Convicted Male adult Male None Male child 5 R v Ibrāhīm 2018 Cassation 299 Convicted (10 y.o.) Male None Female child (10-12 Immoral 6 R v ʿIzām 2018 Cassation 299 Convicted y.o.) Male words/act R v al- Male child Female & 7 Shirmān 2018 Cassation 298 Convicted (15 y.o.) male None Female 8 R v Ṣundūqa 2018 Cassation 296 Acquitted adult Male None Fondling, Male child immoral 9 R v Ṭabīla 2018 Cassation 296 Convicted (16 y.o.) Male words/act Male child 10 R v Ṭashṭūsh 2018 Cassation 296 Convicted (14 y.o.) Male None Acquitted (convicted of Male child immoral (teen, age Immoral 11 R v al-Ṭiwāl 2018 Cassation 298 act) unknown) Male words/act Returned to lower Female 12 R v ʿArīqāt 2017 Cassation 296 court adult Male Rape Female 13 R v Manīzil 2017 Cassation 297 Convicted adult Male Rape Grand Female 14 R v Manīzil 2017 Criminal 297 Convicted adult Male Rape Female child (age 15 R v RR 1987 Cassation 298 Convicted unknown) Male None
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Female 16 R v ṢD 1987 Cassation 296 Convicted adult Male Rape Female child (6 17 R v SḤ 1987 Cassation 296 Convicted y.o.) Male None Acquitted (convicted of indecent Male child 18 R v ʿḤR 1986 Cassation 296 act) (6 y.o.) Male None Female 19 R v BJS 1985 Cassation 297 Convicted adult Male Rape Female 20 R v ḤM 1985 Cassation 297 Convicted adult Male None Female (age 21 R v HMF 1985 Cassation 296 Convicted unknown) Male None N/A - subsumed under rape Female (age 22 R v JMʿ 1985 Cassation 296 charge unknown) Male Rape Female 23 R v KhʿSh 1985 Cassation 296 Convicted adult Male Rape Female child (under Rape, immoral 24 R v ʿMB 1985 Cassation 296 Convicted 15) Male act/words Female (age 25 R v al-Ḥijāzī 1959 Cassation ? Convicted unknown) Male None None [NB: violation of honour is a defense in this Female (age case to murder 26 R v al-Khaṭīb 1959 Cassation - N/A unknown) Male charge] Female child (11 27 R v al-Samān 1959 Cassation 298 Convicted y.o.) Male None Male (age 28 R v al-ʿAlī 1958 Cassation 296 Convicted unknown) Male None Male child 29 R v Yāsīn 1958 Cassation 298 Convicted (under 15) Male None Male child (age 30 R v Salwān 1957 Cassation 298 Convicted unknown) Male None R v al- Female (age 31 Sarādīj 1957 Cassation 296 Convicted unknown) Male None Returned to lower Male (age 32 R v al-Qāsim 1952 Cassation 296 court unknown) Male Rape in obiter Table 8: Violation of Honour Cases
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Percentage of Cases (%) Male 100 Perpetrator Female 3.1 Male Adult 3.1 Male Child 28.1 Male Age Range Unknown 6.3 Victim Female Adult 28.1 Female Child 18.8 Female Age Range Unknown 15.6 Conviction 78.1 Outcome Acquittal 9.4 Table 9: Percentage Breakdowns for Violation of Honour Cases
In addition to the criminal law cases, this study incorporates 8 recent civil judgments, including claims by victims of rape or violation of honour for damages, as well as claims against complainants for false accusation. The low number of civil claims for sexual violence will be explained in the relevant section. For cases from the Court of Appeal, there was no known further appeal to the Court of Cassation based on the information available in Qisṭās. The following table summarizes the civil cases:
Case Name Year Court Subject of Claim 1 ʿAʿA v al-Shīshānī 2018 Appeal Violation of honour 2 ʿAY v al-Khalaf 2018 Cassation Violation of honour Primarily murder, also violation of 3 Al-Khilsha v Malāwī 2018 Cassation honour 4 AN v al-Qawāsama 2017 Appeal Rape and violation of honour 5 Al-Khaṭīb v al-Shāwīsh 2017 Cassation False accusation of violation of honour Primarily murder, also violation of 6 Al-Khilsha v Malāwī 2017 Appeal honour 7 MQ v al-Zawāhira 2017 Appeal Violation of honour 8 Al-Khalāyila v NM 2009 Appeal False accusation of rape Table 10: Civil Cases
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Finally, for legal commentaries this project relies on four works: two commentaries directly on the part of the Criminal Code that includes sexual offences, one commentary that explains the broad contours of Jordanian criminal law and one Master’s dissertation from the University of Jordan that compares rape in Jordan with rape laws in other jurisdictions.503 These sources were recommended by Mohammad Alfawareh, lawyer and professor of law at the University of Jordan. Unlike the legislation and case law which span many decades, this collection of legal literature was published from 2002 to 2017 and focuses on the law during that timeframe.
Legal Framework
The Jordanian legal system places sexual offences under the heading of Attacks on Honour (al- iʿtidāʾ ʿalā al-ʿirḍ) in the Criminal Code. Further, in the Code, Attacks on Honour come under the broader headline of Crimes against Morality and Public Ethics (al-jarāʾim al-mukhilla bi’l- akhlāq wa’l-ādāb al-ʿāmma), which also includes offences pertaining to abortion and prostitution. In contrast, non-sexual assaults fall under a heading pertaining to harming others (īdhā al- ashkhāṣ).504 In the Jordanian legal conception, sexual violence is a matter of morality distinct from other forms of physical harm.
The moral framing of sexual offences in the Criminal Code immediately brings to mind the moral focus of Islamic jurisprudence in the area of sexual violations. This does not mean that the two approaches are equivalent, as will be discussed throughout this chapter. As a preliminary matter, from the text of the Code below, it is already apparent that the Jordanian system places significant emphasis on the violation against the individual victim.
The heading of Attacks on Honour encompasses three main groups of sexual crimes: rape and intercourse with minors (al-ightiṣāb wa muwāqaʿat al-qāṣir), violation of honour (hatk al-ʿirḍ), and seduction and violating women’s quarters (al-ighwā wa’l-tahattuk wa kharq ḥurmat al-amākin
503 Najm (n 499) [direct commentary]; Muḥammad S Namūr, Sharḥ Qānūn al-ʿUqūbāt, al-Qism al-Khaṣṣ, al-Juzʾ al- Awwal, Al-Jarāʾim al-Wāqiʿa ʿalā al-Ashkhāṣ (2015 Dār al-Thaqāfa) [direct commentary]; Niẓām T al-Majālī, Sharḥ Qānūn al-ʿUqubāt al-Qism al-ʿĀmm (Dār al-Thaqāfa 2017) [general commentary]; Birjas al-Shawwābka, ‘al-Ḥimāya al-Jazāʿiyya li’l-Majnī ʿalayh fī Jarīmat al-Ightiṣāb Wafqan li’l-Tashrīʿ al-Urdunī wa’l-Tashrīʿāt al-Murqārana’ (Master’s thesis, University of Jordan 2015). According to Mohammad Alfawareh, Namūr’s commentaries in all areas of the criminal law are particularly well-regarded. While a new edition of his commentary was published in 2019 and reflects the most recent amendments, it is not available for international shipping at the time of writing. 504 See Qānūn al-ʿUqūbāt n 16 1960 ss 333-335.
197 al-khāṣṣa bi’l-nisāʾ). These three categories will be described below to lay the framework for the remainder of this chapter. Although abduction (khaṭf) also comes under Attacks on Honour, this offence is omitted below since it does not necessarily include sexual violence (separate charges would be laid for kidnapping and for the relevant sexual offence if both occurred together).
The above framework, as well as the main aspects of the individual sexual offences, have remained intact from the inception of modern Jordanian criminal law in 1951 until present. The text below sets out the in-force version of the offences, but relevant amendments will be mentioned throughout this chapter. Further, the Arabic text of the Code is available in the Appendix.505
2.1 Rape
The offence of rape is limited to female victims and male perpetrators. The Criminal Code distinguishes between adult and child victims. Further, for children, it differentiates between coercive intercourse and situations where the child has ‘consented’ (statutory rape). Moreover, it gives special consideration to rape victims who are unable to resist due to disability, as well as cases where the perpetrator is a relative of the victim or in a position of authority. The four sections on rape (ss. 292-295) are set out below:506
Section 292 [Rape by Coercion: Adult and Child Victims]: 1. (a) Whoever has intercourse with a female other than his wife against her will, whether by coercion or threats or trick or deception, shall be punished with temporary imprisonment with labour for a period of not less than 15 years.
(b) The punishment shall be labour for 20 years if the victim had attained 15 years of age but had not yet reached 18 years of age.
2. Whoever rapes a girl who did not reach 15 years of age shall be punished by death.
Section 293 [Victims with Disability]:
505 There is no official English translation of the Jordanian Criminal Code. The English in this chapter is a mix of my own translation and a previous English translation of the Code prior to the 2011 amendments. The prior translation, which I downloaded in PDF form while writing the initial proposal for this study, does not mention the translator’s name or any other bibliographical information, and it appears that it is no longer available online. 506 In the Criminal Code of 1951, these offences correspond to ss. 286, 287, 288 and 289.
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Whoever has sexual intercourse with a female other than his wife who cannot resist due to a physical or emotional or mental impairment or disability is considered to have committed the crime in s. 292 and shall be punished with the punishment stipulated in that section.
Section 294 [Child Victims: Statutory Rape]:
1. Whoever has intercourse with a female other than his wife who has reached 15 years of age but who is under 18 years of age shall be punished by temporary imprisonment with labour for not less than 7 years.
2. If the female victim has reached 12 years of age but has not reached 15 years of age, the punishment shall be at least 15 years.
3. If the female has not reached 12 years of age, he is considered to have committed the crime mentioned in s. 292(2) of this Code and he shall be punished with the penalty mentioned there.
Section 295 [Rape by Relative/Person in Authority over Victim]:
1. (a) Whoever has sexual intercourse with a female who has reached 15 years of age but has not reached 18 years of age, and the perpetrator was an ascendant of hers, legitimate or illegitimate, or a blood relative (maḥram), or any other person entrusted to take care of her and has legal authority over such girl, shall be punished with imprisonment with labour for 20 years.
(b) The punishment shall be life imprisonment with labour if she had reached 12 years of age but had not reached 15 years of age.
(c) If the perpetrator was the girl’s guardian, that guardianship is no longer valid. 2. The same penalty from the preceding paragraph is applicable if the perpetrator is a clergy man or the director of an employment office or an employee in such an office and committed the act in an abuse of his power or using the power obtained from his position.
Although the Code only mentions intercourse, all definitions of rape in legal texts and judicial decisions restrict the offence to vaginal intercourse that involves penetration by the male’s penis.507 Thus, in one of many consistent decisions, the Court of Cassation acquitted an accused of rape since the presence of semen outside the victim’s vagina, rather than inside it, was not definitive evidence of intercourse.508 Ejaculation outside of the vagina, anal intercourse and penetration with an object come under violation of honour.
507 See for example Najm (n 499) 185; al-Shawwābka (n 503) 10. 508 R v ʿAbd Rabbih 2018/992 (Court of Cassation). Also note that the victim in this case was deceased, such that there was no testimony to vaginal penetration.
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Further, the exclusion of spouses from the definition of rape has been confirmed by the Court of Cassation as recently as 2017 and is incorporated into the mens rea for rape set out in scholarly literature.509 Specifically, the perpetrator must know that the woman is not his wife. If he thinks she is his wife or was unaware of the invalidity of the marriage contract, he is not guilty of rape. The other aspect of the mens rea, which requires that the perpetrator intend intercourse with a woman he knows is not consenting or cannot resist, will be considered in detail in the discussion on coercion and consent.
2.2 Violation of Honour
Violation of honour includes multiple non-consensual sexual acts that do not meet the definition of rape, and it includes perpetrators and victims of either gender. For example, anal intercourse with a male or female victim, oral intercourse and various forms of sexual touching come under this act. However, it excludes certain lesser sexual violations, such as some instances of sexual touching over clothes. As the Criminal Code does not delineate the boundaries of this offence, the scope comes from definitions in the case law which will be considered in detail later in this chapter.
The inclusion of both genders is not merely theoretical. Cases dealing with male and female victims routinely appear on court dockets and result in convictions. Although most perpetrators in the case law are male, one decision considered in this study concerns the conviction of a female perpetrator for violation of honour.510 However, despite the inclusion of spouses, there were no judgments involving a married couple in the sample of cases.511
The first three out of four sections on violation of honour address: violation of honour by force or threat (s. 296), victims who cannot resist due to disability (s. 297), and victims whose consent is deemed invalid due to minority (s. 298).512 S. 299 used to address certain violations by perpetrators who are blood relatives or in a position of authority over the victim, but was amended in 2011 to cover violations against minor victims under 12 years of age (previously incorporated in s. 298).
509 Re Jurisdictional Dispute 2017/1708 (Court of Cassation); Najm (n 499) 200-01. 510 R v al-Shirmān 2018/1569 (Court of Cassation). 511 For anal intercourse, there is debate in the Jordanian legal community regarding whether this act comes under violation of honour when it occurs in the spousal context: Namūr (n 503) 201. 512 In the Criminal Code of 1951, the four sections correspond to ss. 290, 291, 292 and 293.
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The harsher sentencing of relatives or persons in positions of authority now comes under the general provisions that apply to any sexual offence. The four sections currently read as follows:
Section 296 [Violation of Adult or Child by Force or Threats]: 1. Whoever violates the honour of a person by the use of force or threats shall be punished by imprisonment with labour for a period of not less than 4 years.
2. The minimum penalty shall be 5 years if the victim had reached 15 years of age but was under 18.
3. The minimum penalty shall be 7 years if the victim had reached 12 years of age but was under 15.
Section 297 [Victim with Disability]:
Whoever violates the honour of a person who cannot resist because of a physical or mental impediment, or through the use of deception or trick compels such a person to commit an indecent act, shall be punished by temporary imprisonment with labour.
Section 298 [Child Victim 12-18 Years Old, No Force or Threats]: 1. Whoever violates the honour, without the use of force or threat, of a child, male or female, who has reached 15 years of age but did not reach 18 years of age or compels him/her to commit such an act shall be punished with temporary imprisonment with labour for a period not exceeding 10 years.
2. The penalty shall be a minimum of 5 years if the victim had reached 12 years of age but was under 15 years of age.
Section 299 [Child Victim Under 12, No Force or Threats]:
Anyone who, with or without the use of force or threat, violates the honour of a child, male or female, who has not reached 12 years of age or compels him/her to commit such an act shall be punished with temporary imprisonment with labour for a minimum of 8 years.
2.3 Other Sexual Offences
The category of seduction and violating women’s quarters in the Code contains three further sexual crimes: seduction (s. 304), fondling (s. 305) and proposing or doing an immoral act (s. 306).513
513 In the Criminal Code of 1951, these offences correspond to ss. 298, 299 and 300.
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Section 304 [Seduction]: 1. Whoever seduces a virgin over 18 years of age with a promise of marriage and made her lose her virginity or caused her pregnancy shall be punished, if his act does not require a stricter penalty [under another section], with imprisonment of 6 months to 3 years in addition to compensation for loss of virginity.
2. The evidence applicable in the case of seduction through the promise of marriage is the confession of the accused before the prosecutor or the court or the existence of letters or other written papers.
3. Whoever incites a woman, whether she is married or not, to leave her home in order to follow a man not related to her or to breach her marital bond shall be punished with imprisonment of 3 months to 2 years.
Section 305 [Fondling]:
Whoever fondles the following persons shall be punished by imprisonment for a period of at least one year:
1) A person who is under 18 years of age, whether male or female; or 2) A person, male or female, who has reached 18 years of age but did not consent.
Section 306 [Proposing or Doing an Immoral Act]:
Whoever proposes an immoral act or directs immoral expressions or does immoral acts, whether by speech or action or movement or indication, whether clear or insinuated, by any means and at any time, shall be punished with imprisonment for a minimum of six months if he does this to:
1. A person who is under 18 years of age. 2. A person, male or female, over 18 years of age who did not consent.
While the case law in this project does not include seduction, it contains examples of the other two offences. According to one decision, touching a 16-year-old male’s chest under his clothes constitutes fondling.514 As such, sexual touching that falls short of violation of honour may be prosecuted under this offence. Three examples of proposing or doing immoral acts are: a man asking a 16-year-old male to suck his penis, playing pornographic films in view of a pre-teen female, and a man asking an underage male to follow him to a location so that they can have sex.515
514 R v Ṭabīla 2018/683 (Court of Cassation). 515 ibid; R v ʿIzām 2018/646 (Court of Cassation); R v al-Ṭiwāl 2018/969 (Court of Cassation).
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These examples encompass words and actions that are sexual in nature but do not include physical touching.
The Code also places the crime of a male disguising himself in female dress to enter a place reserved for females (s. 307) under the same heading as the above offences.516 Norms of modesty in Jordan, which consider a male viewing a non-related female in attire that she only wears around women or family as improper, are consistent with placing this intrusion among Attacks on Honour. On one hand, sentencing for sexual violations, including rape, violation of honour and lesser offences such as fondling, is more severe than this crime, and the courts appear indifferent to the victim’s clothing in cases of sexual violence, as will be discussed shortly. Further, this section may exist merely to enforce women’s right to be free from unwanted exposure in private settings. Nonetheless, the intermixture of crimes such as rape with this section raises questions of whether broad concepts of honour, such as proper dress and inappropriate intermingling of genders, affect the prosecution of sexual violations in a manner that is not apparent from the text of the law and court judgments.
Finally, there is one other relevant section that criminalizes indecent acts and gestures in public places. This section falls outside of the heading of Attacks on Honour but is within the broader heading of Crimes against Morality and Public Ethics:517
Section 320: 1. Whoever commits an indecent act or makes an indecent gesture in a public place or community in such a way that could be seen by any person in a public place shall be punished by imprisonment for a maximum of six months and a fine of 200 Jordanian dinars.
2. The punishment shall be doubled if the act described in paragraph (1) of this section is carried out by more than one person or if it is repeated.
This offence, which includes acts that the perpetrator performs on his own body in view of others as well as acts done publicly on another person, is used to prosecute some instances of public sexual touching that fall short of the threshold for violation of honour.518
516 S. 307 reads: Any male who is disguised in female dress and enters a place reserved for women only or which cannot be entered by other than women at the time of committing the act shall be punished by imprisonment not exceeding six months. In the Criminal Code of 1951, this is s. 301. 517 In the Criminal Code of 1951, this is s. 314. 518 R v ʿḤR 1986/42 (Court of Cassation); Namūr (n 503) 259.
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2.4 General Provisions
The Criminal Code also contains general provisions applicable to various sexual offences. The following two sections apply to rape and violation of honour:519
Section 300:
The penalty stipulated for the felonies defined in ss. 292, 293, 294, 296, 297, 298 and 299 shall be increased by adding1/3 to ½ of it if the accused is one of the persons mentioned in s. 295 [i.e. if the accused is a one of the victim’s ascendants, legitimate or illegitimate, a blood relative (maḥram), a person entrusted to take care of the victim, a clergyman, or a director in an employment office or an employee in such an office who abuses his power to commit the offence].
Section 301: 1. The penalty prescribed in the previous two matters [rape and violation of honour] of chapter 1 [Attacks on Honour] shall be increased through the addition of 1/3 to ½ of the original penalty: a) If it is committed by two or more persons to overcome the victim’s resistance or they assaulted the victim consecutively. b) If the victim is infected with a sexually transmitted disease or the female victim was a virgin and lost her virginity.
2. If one of the felonies previously mentioned resulted in: a) The death of the victim without the intention of the perpetrator to do so, the penalty shall be temporary imprisonment with labour for 15 years. b) Infecting the victim with HIV and the perpetrator knew that he had this disease, the penalty shall be life imprisonment with labour.
Further, a limitation period of 10 years applies to all crimes, including all sexual offences, under s. 338 of the Code of Criminal Procedure.520 This means that a person who was sexually abused as a child has no standing to file a complaint after reaching adulthood if more than 10 years have elapsed.
519 In the Criminal Code of 1951, these provisions correspond to ss. 294 and 295. 520 Qānūn Uṣūl al-Maḥkamāt al-Jazāʾiyya n 9 1961.
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Finally, the now-repealed s. 308 is essential for discussion of the evolution of the Jordanian legal approach to sexual violence. This section, which applied until 2017 to all offences in the chapter of Attacks on Honour (rape, violation of honour, seduction, fondling, proposing or doing an immoral act, as well as violating women’s quarters and kidnapping), provided as follows:
Section 308: 1. If a valid marriage contract is concluded between the perpetrator of one of the crimes stipulated in this section and the victim, any prosecution shall be suspended. If a judgment was issued in the case, execution of the penalty shall be suspended.
2. The public prosecution shall regain its right to reinitiate legal action and implement the penalty if, before the passage of three years from committing the misdemeanor or five years of committing the felony, such marriage ended by divorcing the woman without a legitimate cause.521
Evolution and History
In many respects, the law of sexual assault in Jordan has remained constant since the adoption of Jordan’s first Criminal Code in 1951. The morally oriented headings, as well as the content of the individual sections, were copied nearly word-for-word into the Criminal Code of 1960 which is still in force today. Despite some amendments, the current text of the sexual offences would be largely recognizable to a Jordanian lawyer from the 1950s.
However, there are certain areas where the Code has evolved in its approach to sexual violence. In recent years, the Code has begun to shift away from a heavily gendered law of sexual assault by increasing parity between the sexes within individual sections of the Code and by the repeal of one section that previously converted some offences against females from an individual violation into an issue of societal mores. Further, in sentencing the Code has gradually moved towards more robust sentences for sexual violence generally, and even more so where the victim is underage. Although there have been other minor modifications, such as the amendment of s. 306 on proposing or doing immoral acts to include insinuations in addition to explicit actions, the
521 This wording represents the section as it existed from 1951 to 2011. After amendment in 2011 until its repeal in 2017, the section only mentioned suspending the penalty rather than stopping the prosecution and only applied to victims 18 years of age or over at the time of the offence. In the Criminal Code of 1951, this section corresponds to s. 302.
205 discussion below focuses on the topics of the gendering of the law and sentencing which demonstrate the most significant change over time.
Further, the longstanding presence of Islam in Jordan raises the question of whether and how Islamic law influenced and continues to influence Jordan’s approach to sexual assault. Although on the surface contemporary Jordanian laws differ substantially from Islamic jurisprudence, as expected given the European influence on modern Middle Eastern legal systems, this does not automatically equate with no relation between the two. The final subsection in this discussion examines this relationship as it pertains to the overall moral framework for sexual violations and the substantive offences. Despite the potential for some correlation, it will be shown that there is a substantial disconnect between the two systems.
This section focuses on the text of the Jordanian Criminal Code, with court decisions mentioned only where they illustrate a matter flowing directly from the Code. Judicial attitudes towards sexual violence and judicial interpretation of the Code will be considered in the following section.
3.1 Gendered Nature of the Law
The Jordanian legal approach to sexual offences is gendered, as in Islamic jurisprudence and as is still common in some contemporary legal systems. The gendering in the Jordanian Code leads to some results that are problematic, which will be discussed below. However, the most recent amendments to sexual offences in 2017 have started to erode the gendering of sexual crimes and have eliminated some legal barriers for both male and female victims. Although the law is far from gender-neutral, and some would argue that laws on sexual crimes should not be, the latest amendments are a noticeable shift from the 1951-2017 approach and may be the beginning of further change in this area.522
The recent changes to the gendered paradigm comprise two aspects. First, the details of the individual offences now include greater gender parity, for example, by including male victims in an offence that previously only pertained to females. This increases access to justice for offences that are already recognized as transgressions against an individual victim. Second, the Code no
522 For an example of arguments for and against the gendering of rape, see Natasha McKeever, ‘Can a Woman Rape a Man and Why Does it Matter?’ (2019) 13 Criminal Law and Philosophy 599.
206 longer allows sexual offences against female victims to be resolved via moral means. Whereas the law previously permitted sexual violations against females to be reframed as violations against societal mores, which was perhaps the most substantive manifestation of the moral categorization of sexual offences, now sexual crimes against females, like males, are offences against the victim herself. The discussion below explores issues flowing from the remaining gendering in the Code, and also examines both aspects where there has been recent change.
In-force gendering is evident in the crime of rape which excludes male victims and female perpetrators entirely even when a male is subject to forced vaginal intercourse.523 This leads to a significant disparity in sentencing for male and female rapists, as the latter are sentenced under violation of honour. For example, in a recent case from 2018 where an adult woman had vaginal intercourse with a 15 year old male victim, her conviction for violation of honour resulted in a sentence of four years imprisonment.524 In contrast, a conviction for statutory rape of a 15-18 year old victim under s. 294(1) carries a minimum sentence of seven years.
The crime of seduction (s. 304), which includes seducing a virgin to lose her virginity through a promise of marriage and seducing a non-virgin woman, is another example of in-force gendering with problematic implications.525 This offence focuses solely on female virginity and sexual purity. In contrast, seducing a male virgin or non-virgin has never been an offence in Jordan.526 The section appears to indicate that virginity, sexual purity and fidelity are more important for females, that females are more easily seduced than males, or both. The perpetrator can be of either gender based on the general wording of the Code, although it is unclear if seduction by males and females is equally prosecuted. It is also unclear from this sample of cases how much the offence is prosecuted at all, as none of the judgments contain this offence.
Similarly, the general provision in s. 301, which sets out aggravating factors for sentencing in rape and violation of honour cases, includes loss of virginity among the factors but explicitly limits it to female victims. In doing so, the law positions assaults on female virgins as more serious than
523 There is one situation where a woman can be found guilty of rape. This occurs when a woman acts as an accomplice to a male rapist, for example, by holding down the female victim while the man penetrates her: Namūr (n 503) 199. 524 R v ʿAwda 2018/1263 (Court of Cassation). 525 In the 1951 Code, seduction of a non-virgin is not included. This was added in 1960 and is still in force today, albeit with amendments to the penalty and to the age of the victim. 526 It is possible that this act could be prosecuted under the offence of proposing an immoral act (s. 306). However, I am not aware of whether this has ever been done in Jordan.
207 assaults on male virgins, even where both are subject to the same act of aggression. Even if females are more often the victims of penetrative sexual violence, the text of the law seems to place undue emphasis on a piece of skin rather than the overall circumstances of the crime, potentially resulting in skewed sentences based on a single characteristic present in some female victims.
In contrast, the offence of fondling (s. 305), which used to follow the same pattern of gendering, was amended in 2017. This is an example of an amendment to the details of an individual offence to increase gender parity. While fondling of minors has always included both genders, fondling of adults without consent used to be limited to females. This previously precluded prosecution of the offence where the victim was an adult male, as if the legislator could not envision males falling victim to this act. However, the amended section includes both genders on equal terms. Adult male fondling victims now have the same access to justice under this section, and in theory the perpetrator is equally subject to the law. In practice, whether sentences will be equal for crimes committed against male and female victims is unknown since the Code only sets a minimum (the most recent criminal cases in this project from 2018 involve crimes committed before the amendment due to times to trial and to appeal/review).
Similarly, the offence of proposing or doing an immoral act (s. 306) has become gender neutral. Originally, this section only included minors of either gender but was extended to cover adult women in 2011. The gender-imbalanced text adopted in 2011 indicates how recent the current shift is. As of the 2017 amendments, the offence now includes immoral acts directed to male and female victims of all ages, again levelling the playing field for male victims and allowing conviction of perpetrators regardless of the victim’s gender.
However, the most significant shift away from a heavily gendered law is the repeal of s. 308 of the Criminal Code. From 1951 until 2017, s. 308 stopped the prosecution or suspended the perpetrator’s sentence for any sexual offence under the heading of Attacks on Honour (rape, violation of honour and lesser offences such as fondling) if the perpetrator married his victim. This allowed sexual violations against females to be reframed as violations against societal mores. As such, this amendment is a shift towards gender equality, as well as a shift towards fully conceptualizing sexual violence as a violation against an individual rather than a moral transgression.
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In her research on honour killing in Jordan, Catherine Warrick makes various observations that aptly describe the Jordanian approach to sexual violence prior to the repeal of s. 308. For example, she notes that criminal codes in the Arab world are markedly gendered, meaning that the definition and penalties for certain crimes reflect socially sanctioned notions of appropriate sex roles.527 In these gendered elements of the criminal law, instead of seeking justice for the victim, the state seeks social order by using the victim as a means for resolving social conflict.528 In the case of s. 308:
The law has permitted such a resolution out of recognition of the cultural value placed upon female virginity at marriage. […] The marriage loophole…is clearly a means by which to rectify a social problem (the social standing of a raped woman and her family) rather than to punish a crime. […] The problem of the social existence of a raped [or violated] woman is settled by having the rape[/violation of honour] victim disappear, to be replaced by a wife.529
The repeal of this section modifies the overall conception of sexual violence. Instead of seeking, or accepting, the disappearance of female victims to appease social attitudes towards female victims of sexual violence, the state now pursues justice for victims of any gender. The repeal cannot prevent individuals from resolving sexual offences via marriage outside of the criminal justice system; however, the legal approach now treats victims as victims full stop and places the continued prosecution and sentencing for sexual crimes on par with other offences, that is, without official regard for the victim’s gender.
In other words, the repeal of this section positions rape and other sexual offences as crimes against individual victims rather than moral transgressions that can be remedied by repentance, as in Islamic jurisprudence, or by marriage, as per the former Jordanian solution. These alternate remedies have the effect of causing the victim to disappear, instead focusing on the contravention of divine laws or social mores. Although the Jordanian approach previously allowed recognition of the violation against an individual victim, it provided a means to bypass that in favour of a moral resolution. Now, despite maintaining sexual violence under the heading of Attacks on Honour, the unwavering focus of the law is the transgression against the woman.
527 Warrick (n 409) 318. 528 ibid 319. 529 ibid 320-22.
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Overall, the repeal of s. 308 facilitates access to justice for female victims while the amendments discussed earlier increase access for male victims of sexual violence. Short of an overhaul of the entire framework for sexual offences, additional amendments within the existing structure could build on the current momentum to address some of the remaining inequities, such as the disparity in sentencing for cases of coercive vaginal penetration involving male victims.
3.2 Sentencing
There are two general tendencies in this area. First, the sentences for sexual crimes against both adult and child victims, including victims with disabilities, display an upward trend across the decades. Second, the legislator has paid particular attention to minor victims by increasing the age of majority while adding further age-based gradations for sentencing. Although some sections have been unaffected by these tendencies, they have remained constant rather than been subject to decreases. While there is a risk that higher sentences may make judges more hesitant to convict, the case law does not display such reluctance. Further, although the changes may better protect underage victims from non-consensual sexual acts, they create incoherencies regarding consensual acts with some minors.
The focus on the characteristics of the victim, such as age and disability, in the original sentencing scheme and subsequent amendments corresponds with a conception of sexual violence as an offence against a unique individual. Certain traits found in that individual make the act more egregious, leading to higher sentences. This contrasts with the near exclusive moral focus of Islamic jurisprudence where the core issue is the illicit sex act. There, the human victim is nearly absent from legal discourse except where she needs to be excused from punishment for involuntary participation in zinā, or in select monetary claims (dower or permanent injury).
As for the general upward trend in sentencing, it is widespread in the four sections for rape. For example, the sentence for rape by coercion under s. 292 was increased from a minimum of 5 years, applicable from 1951 to 1988, to 10 years in 1988 and to 15 years in 2011. Further, the same section now stipulates the death penalty where the victim is under 15 years of age compared to a minimum sentence of 7 years prior to 1988. Moreover, whereas the punishment for rape of a disabled female under s. 293 was formerly imprisonment without a minimum sentence, this was
210 increased to 10 years in 1988 and made equivalent to the rape of able-bodied females (15 years for adult victims, more for minors) in 2011. Increased sentencing also applies to lesser offences such as fondling (s. 305) where the original maximum sentence of one year was amended in both 2011 and 2017 and is now a minimum of one year.
Despite these increases, the conviction rate in recent rape cases in the sample remains high. The rape decisions from 2017-18 contain 4 convictions by the Grand Criminal Court upheld by the Court of Cassation and 1 acquittal by the Grand Criminal Court upheld by the Court of Cassation. In the case that resulted in an acquittal, the verdict is strongly supported by the evidence, as presented in the written judgment. Medical evidence taken from the deceased victim’s body indicating that semen was present outside, not inside, her vagina, in combination with the unavailability of witness testimony due to victim’s death and private location of the crime, resulted in an acquittal for rape and conviction for violation of honour since the evidence could not establish penetration.530
An additional two rape cases from this time period resulted in one conviction and one acquittal by the Grand Criminal Court, but both were returned for reconsideration to the lower court by the Court of Cassation due to failure to discuss key evidence in the written decision.531 These two cases are exceptions to the usual unity between the higher and lower court regarding rape and violation of honour verdicts in the sample. While the issues with the lower court judgments could indicate judicial meddling in the outcomes, it is notable that the verdicts went two separate ways. Further, the Court of Cassation refused to allow either to stand, regardless of whether the evidence not explicitly included in the lower court’s written decision was in the accused’s favour, as in R v ʿAbd al-Karīm, or potentially detrimental to the accused, as in R v ʿArīqāt.
In contrast, sentencing for violation of honour has mostly remained constant. For example, the minimum penalties of 4 years for violation of an adult and 7 years for violation of a minor under 15 years of age in s. 296 have not changed from 1951 to present. However, given the range of acts covered by violation of honour, as well as the use of minimums which grants the courts discretion to increase the sentence based on the facts, there is less reason for the legislator to amend these sentences compared to more narrowly defined offences such as rape and fondling.
530 R v ʿAbd Rabbih (n 508). The accused in this case was also convicted of murder. 531 R v ʿAbd al-Karīm 2017/1464 (Court of Cassation) [conviction]; R v ʿArīqāt 2017/1597 (Court of Cassation) [acquittal].
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However, it is problematic that s. 297, which stipulates imprisonment with no minimum for violating the honour of persons with disabilities, has remained unchanged since 1951. Failure to amend this section means that violation of honour of disabled victims carries a lesser minimum penalty than the violation of able-bodied persons. This perverse situation and the lack of legislative action contrasts with the increased sentencing for sexual offences generally as well as the current parity for the rape of disabled and able-bodied victims. It is also at odds with amendments to the section on disability under rape that made the wording more robust to better protect victims with various types of disabilities.532
Although Jordanian criminal law has deemed children incapable of consent to sexual acts since its inception in 1951, the age of consent was previously 15 years of age.533 However, this has been amended to 18 years of age over time. For example, amendments in 1988 introduced 18 as the age of majority in s. 294 for rape whereas s. 298 on violation of honour was brought in line with this standard in 2011 and the age of consent for immoral acts under s. 306 was only amended in 2017. All sexual offences are now consistent on this age.
In tandem with raising the age of consent, the Code has introduced additional penalty gradations based on the age of the victim. For example, whereas rape under s. 292 originally had two gradations depending on whether the victim was above or below 15 years of age, since 2011 there are three gradations of increasingly severe sentences for crimes against victims over 18, from 15- 18 and under 15 years old. Simultaneously in 2011, the legislator amended various sections under violation of honour to include similar age-based gradations.
Although the increased age of consent and the higher and more finely gradated sentences based on the victim’s age account for the relative severity of offences against children who do not fully understand the nature of sexual acts, who may be more trusting of the perpetrator, and who may be less able to resist, there are also drawbacks to the legislator’s approach. First, the absolute invalidity of consent under 18 years of age produces illogical results in certain cases. Arguably, many young adults in their mid to late teens have enough maturity and understanding of sexual acts to offer informed consent. Further, whereas an 18-year-old’s consensual sexual activity with another 18-year-old is not caught by these offences, the same act is punishable if his partner is 17
532 An amendment in 1988 added the word impairment (ḍaʿf) to the existing word disability (ʿajz) and added mental (ʿaqlī) disability to the existing list of physical (jasadī) and psychological (nafsī) disabilities. 533 Although this generally holds true, the original text of s. 299 treated anyone under 18 as a minor.
212 years old. The current law could benefit from greater nuance, such as close in age exemptions and a lower age of consent where the accused is not in a position of authority over the victim.534 At present, the law does not protect certain minors but instead interferes with their freely given consent.
Moreover, the current age of consent for sexual activity in the Criminal Code is at odds with Jordanian family law which allows girls 15 years of age and over to consent to marriage, provided a judge approves the union.535 Ironically, once in the marriage, she is obliged to fulfill her husband’s sexual requests and he cannot be charged with rape for having intercourse with her against her wishes. It is possible that the age of 18 in the Criminal Code is intended to discourage sexual activity outside of marriage among minors, although this inference is tentative. As the offence of rape is independent from fornication/adultery in the Code, as will be discussed later, any attempt to limit sexual activity outside of marriage by consenting parties under rape and violation of honour seems to be a misuse of these offences.
Finally, it is unclear on the face of the sexual offences, case law and commentaries whether the above trends relate to changing perceptions of sexual violence over time by the legislator, and perhaps broader Jordanian society. For example, there may be a desire for increased deterrence from recognition of the harm that rape causes its victims. However, it is possible that these trends are common to many areas of Jordanian criminal law, perhaps to stem crime generally in Jordanian society. Whether or not they are incidental to larger issues, these developments represent a noticeable change in one facet of Jordan’s laws regulating sexual crimes.
3.3 Role of Islamic Law
Direct comparison of traditional works of jurisprudence (fiqh and fatwā collections) with Jordanian laws reveals a disconnect between the Jordanian and Islamic approaches to sexual offences.
534 For the Canadian approach to the close in age exemption as well as a more nuanced approach to the age of consent that could potentially serve as a model for Jordanian law, see: ‘Statutory Rape in Canada’ (Lakin Afolabi Law, 14 November 2018)
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Despite sharing a moral framework, the content and scope of that framework differ substantially. Further, although there are certain broad overlaps in substantive laws, the number of shared doctrines is minimal, and the commonalities are not necessarily a result of direct borrowing from Islamic law. However, in some tertiary issues, Islamic jurisprudence does impact Jordanian cases of sexual violence, such as settling relevant disputes over marriage or divorce. Further, there is some possibility of influence related to compensation for loss of virginity.
In addition, comparing the Jordanian and Ottoman approaches to sexual offences does not significantly alter the conclusion of a disconnect between Jordanian and Islamic law. The following discussion first considers Jordanian law directly in relation to Islamic jurisprudence. It then turns to the issue of Ottoman law, examining its relationship to the Jordanian approach as well as its status in relation to Islamic law.
3.3.1 Direct Comparison of Jordanian and Islamic Law
As preceded, the Jordanian Criminal Code places sexual offences under the category of Attacks on Honour which comes under the broader heading of Crimes against Morality and Public Ethics. This contrasts with non-sexual assaults which fall under a heading pertaining to harming others (īdhā al-ashkhāṣ). Further, the moral framework impacted the prosecution of sexual offences under the now-repealed s. 308.
However, the content of morality in Jordan, as previously manifested in s. 308, relates to societal mores concerning the social status of women, not divine claims against parties to illicit intercourse. Although it somewhat resembles the ancillary issue of preserving the social good raised by some Muslim jurists in the context of zinā, the latter involves legal concepts of paternity whereas the woman’s social status accounts for societal taboos. Further, even when s. 308 was in force, the transformation of rape into a moral transgression was not a necessary outcome, as the law provided the option of proceeding with the prosecution.
Aside from s. 308, the text of the sexual offences in the Code primarily concerns violations against individuals. Further effects of the moral framing on the content of the offences are at best tentative inferences, such as the potential link between morality and spousal immunity for rape based on the
214 husband’s divinely sanctioned right to have sex with his wife (marriage contracts are according to religious law in Jordan).536
A significant manifestation of the victim-centred approach in Jordan is that rape is an independent offence unlike Islamic jurisprudence which considers it a form of zinā. As such, the victim may lodge a complaint, resulting in prosecution for the violation against her. Since the offence does not concern transgression of a divine limit, there is no legal concept of privacy shielding rapists from prosecution, no prospect of slander charges (with one caveat that will be discussed later in this chapter), and no concept of the victim being a participant in a crime rather than an injured party.
Although adultery/fornication is an offence in Jordan, the details of that crime vary significantly from Islamic jurisprudence and it has little relation to rape.537 For example, the Jordanian version of adultery/fornication bars prosecution of extramarital intercourse unless the husband, wife or the unmarried female’s guardian files a complaint within three months of hearing of the alleged incident. This means that the police and the courts cannot unilaterally bring adultery/fornication charges in the context of an acquittal for rape or at any other time.
Moreover, whereas rape comes under the heading of Attacks on Honour in the Criminal Code, adultery/fornication falls under the separate heading of Crimes Against the Family (al-junaḥ al- mukhilla bi ādāb al-usra). Regarding this categorization, Namūr mentions that the offence of adultery/fornication relates to the protection of the family unit rather than the pursuit of virtue in and of itself, which is why only specific family members can file a complaint.538 Further, in contrast to Muslim jurists, the goal of criminalizing extra-marital intercourse is to protect the sanctity of marriage, not to prevent the mixing of lineage.539
Rape and adultery come together in only one judgment considered in this study.540 In that case, the husband filed a complaint against his wife for adultery after discovering her affair with her
536 Abolishment of spousal immunity has only occurred in recent decades in many jurisdictions. Various forms of spousal immunity still exist across the United States. Given how widespread this issue is, it is possible that spousal immunity is not a direct result of the moral framing of rape, even though this may have an impact. For some discussion of spousal immunity in various jurisdictions, see Temkin (n 5) 74-86. 537 See Qānūn al-ʿUqūbāt n 16 1960 ss 282-284. 538 Namūr (n 503) 267, 272. 539 ibid 269. 540 R v ʿArīqāt (n 531).
215 employer. Facing the possibility of criminal charges for adultery, the wife claimed that she had been raped. The written decision concerns her lover’s acquittal for rape since she had consented. Although it is unknown whether she was tried for adultery in a subsequent proceeding, either way the rape trial is distinct from the potential adultery trial. Further, a rape claim by a flirtatious wife differs from Islamic jurisprudence where the victim of coerced intercourse is prima facie guilty of zinā unless he or she successfully raises a defense of coercion.
The conception of rape as an independent crime also means that attempted rape is prosecuted under the rape sections in the Criminal Code but with a reduction in sentence based on s. 20. In contrast, the twinning of coerced and consensual illicit intercourse under the ḥudūd in Islamic jurisprudence does not permit successful prosecution of the offence absent stringent conditions, much less the attempted crime. The latter could potentially be prosecuted in the Islamic system under the separate category of discretionary punishments.
As for the details of the individual sexual offences, the Jordanian offence of rape overlaps with the Islamic doctrines examined in part one of this dissertation in two aspects, namely the exclusion of wives from the definition of rape, as mentioned above, and the requirement of vaginal intercourse. The vaginal penetration requirement is common to many legal traditions such that its existence in Jordanian law is not automatically a result of direct Islamic influence. Further, while commentaries cite the Islamic marriage contract as the reason for the exclusion of spouses from rape since it grants the husband the right to sexual pleasure (istimtāʿ) whenever he asks for it, it is unclear whether this is an anachronistic justification for a rape law influenced by European sources or whether Islamic jurisprudence is the original source for the rule.541
Apart from this, the Jordanian approach diverges significantly from Islamic jurisprudence. For example, in Jordan rape is restricted to female victims. This is more reminiscent of the historical approach in various Western legal traditions, including Canada, than Islamic law which grudgingly allows male victims, albeit with substantial restrictions. Further, matters of sentencing and evidence are at odds with Islamic law. For example, the Jordanian Code imposes imprisonment with labour rather than the fixed penalties of lashing and stoning, and it incorporates a range of sentences based on factors like the victim’s age and whether the perpetrator was in a position of authority over the victim. Acceptable evidence includes medical tests, other forms of
541 Najm (n 499) 187; Namūr (n 503) 200.
216 circumstantial evidence, and the testimony the victim, accused and witnesses without any apparent concern for their number or gender.542
Where the validity of the marriage contract between the accused and the complainant is disputed, Islamic jurisprudence takes on a limited role in rape proceedings. This is not due to a general integration of Islamic law and the law of sexual violence; rather, it is because matters of marriage, divorce and inheritance remain under religious jurisdiction in modern Jordan. Thus, in its consideration of a rape complaint by a woman who was in a questionable marriage contract with the accused (i.e. the validity of the contract was disputed), the Court of Cassation indicated that if the Islamic marriage contract was valid, there was no rape under the Criminal Code.543 Further, a blood (maḥram) relationship between the perpetrator and victim is among the aggravating factors for rape (ss. 295, 300), and Islamic law sets the scope of such relationships.
At first glance, violation of honour is closer to Islamic jurisprudence than the Jordanian notion of rape. Although the term “violation of honour” does not exist in Islamic legal texts, many actions associated with violation of honour would come under discretionary punishment in Islamic law, which does not carry a narrow definition or strict conditions like coerced zinā.544 While the inclusion of anal intercourse departs from the Mālikī and Shāfiʿī view that this act is zinā, the Ḥanafīs consider it a discretionary crime, though they single it out with particular disgust and harsh punishments unlike the Jordanian legislator.
However, some aspects of violation of honour, such as the inability of persons under 18 to consent, are not found in traditional Islamic jurisprudence. Further, for adults, Jordanian law does not consider that there was any crime unless one of the parties did not consent unlike Islamic law which deems any sexual act outside of a licit relationship an offence. As such, the traditional Islamic conception of sexual acts deserving of punishment is broader than in Jordan.
542 See for example: R v al-ʿAbūs (n 496). In this case, the Court of Cassation convicted a man who had abducted a Bengali cleaning woman and raped her in a secluded location based on the strength of the medical evidence, the victim’s testimony and the police investigation. 543 Re Jurisdictional Dispute (n 509). 544 Although the two Arabic words that make up the term “violation of honour”, i.e. hatk and ʿirḍ, are common in texts of Islamic jurisprudence, they almost never occur together. In the many texts considered in this project, I found only two places where these words come together: al-Gharnāṭī (n 263) vol 3 292; Ibn Nujaym, al-Baḥr al-Rāʾiq (n 39) vol 1 8. Neither uses the term in relation to a specific sexual offence. For example, al-Gharnāṭī mentions it in relation to a person who breaks his fast.
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Finally, the requirement of compensation for loss of virginity under seduction (s. 304) may be a remnant of Islamic law although the link is not certain. Unlike Islamic jurisprudence which requires compensation for the removal of the hymen in a variety of situations, the Jordanian Code limits it to seduction by a promise of marriage established by specific evidence where the victim is at least 18 years of age (formerly 15 from 1951-2011). Further, the form of compensation in Jordan, namely pecuniary and general damages (aḍrār māddiyya and maʿnawiyya), contrasts with the dower granted by Ḥanafī jurists in such situations; however, it is not as far removed from the compensation granted by Shāfiʿī and Mālikī jurists on the basis of physical injury.
Overall, direct comparison of the sources of Islamic law from part 1 of this dissertation with Jordanian legislation indicates that any relationship between the two is minimal. However, whether or not this initial conclusion is challenged by links between Jordanian laws and Ottoman legal sources will be considered below.
3.3.2 Ottoman Links
The existence of a connection between the Ottoman and Jordanian legislation on sexual offences is undeniable. The Jordanian offences contain multiple borrowings from Ottoman laws. Naturally, some aspects of the Jordanian laws appear to have non-Ottoman origins, such as the special consideration given to disabled victims and the existence of an independent offence of fondling. The similarities between the Ottoman and Jordanian codes raise the question of whether there are also links between Ottoman and Islamic law in the area of sexual violation. An affirmative answer could indicate a greater relationship between Jordanian and Islamic law than what appears on the surface.
This discussion has several aspects. The beginning of this subsection examines Jordanian borrowings from Ottoman laws. Following this, it turns to the issue of whether the Ottoman legislation on sexual offences represents a type of Islamic law, which would open the door to claiming a link between Jordanian law and Islamic sources in matters where the Jordanian legislator took from the Ottomans. However, the strength of any resulting Jordanian-Islamic law relationship also requires investigation of Ottoman court practice. As such, the final part of this subsection explores the contradictions between the Jordanian approach to sexual offences and
218 earlier Ottoman court practice and fatwās, as well as the later constraints on religion in Ottoman courts which formed the basis for the emergence of modern secular criminal law systems.
The Jordanian Criminal Code of 1951 incorporates several aspects of the Ottoman Penal Code of 1858 that was in force in Jordan until 1951. As explained previously, the in-force Criminal Code of 1960 is a near carbon copy of the Criminal Code of 1951 in the area of sexual offences and has remained relatively steady over time, such that these borrowings from the Ottoman Penal Code are still visible today. Although archival copies of legislative debates and other relevant historical records would be beneficial to confirm these links, the similarities in wording between the Ottoman and Jordanian codes and the continuity in time and jurisdiction make it unlikely that the similarities are attributable to chance. A selection of the apparent borrowings will be illustrated below.545
One example is the singling out of certain persons in authority over the victim, such as educators, directors of employment offices and employees who abuse their power over a subordinate, for increased punishment for sexual offences in ss. 295 and 300 of the Jordanian Criminal Code (ss. 289 and 294 of the 1951 Code). This resembles s. 199 of the Ottoman Penal Code of 1858:
If the commission of the abominable act by force takes place on the part of the instructors or guardians of the victims over whom they have authority or on the part of their salaried servants punishment of temporary imprisonment with hard labour for not less than five years is awarded.546
The stipulation of five years in this section is an increase over temporary imprisonment with hard labour without any minimum in s. 198 for perpetrators who do not come under these categories.
Also among the direct borrowings is the requirement of compensation for loss of virginity for seduction in s. 304 (s. 298 in the 1951 Code) in the Jordanian legislation. Although seduction of non-virgins was added in 1960, the portion of s. 304 dealing with seduction of virgins, in force from 1951 until present, closely mirrors s. 200 of the Ottoman Penal Code of 1858:
The person who seduces a virgin who has attained the age of puberty saying that he will take her as a wife and does away with her virginity and afterwards refuses to take her as a wife is, after compensation has been recovered from him for loss of virginity, imprisoned
545 There are several more examples. Among them, the age of 15 is the dividing age between majority and minority for sexual offences in the Ottoman Code and in the Criminal Code of 1951. Further, the Jordanian offence of proposing an immoral act in s. 306 resembles the offence in s. 201 of the Ottoman Code. 546 Ottoman Penal Code (Bucknill and Utidjian translation 1913) 1858 s 199. I have adjusted the English translation slightly based on the footnotes provided by the translators for the sake of readability and ease of comparison.
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for one week to six months; but the issuing of this sentence depends on either the male’s confessing and admitting the seduction by promise of marriage or the girl’s side proving it.547
Despite some differences, such as the omission of written documentary evidence in the Ottoman version, the similarities are striking. The resemblance is especially clear in the original wording of the Jordanian Criminal Code of 1951, as it mentions up to six months imprisonment, the same maximum used in the Ottoman Code. Although compensation for loss of virginity was discussed above in relation to Islamic jurisprudence, the more direct source for this section appears to be Ottoman law.
More general Jordanian borrowings include the use of imprisonment and fines, as well as the term “violation of honour (hatk al-ʿirḍ)”. As for imprisonment and fines, which contrast with the punishments of stoning and lashes found in works of Islamic jurisprudence, these were introduced for consensual adultery and fornication as well as for rape in the criminal laws enacted by Sulaymān the Magnificent circa 1540 and are also present, albeit in modified form, in the Ottoman Penal Code of 1858.548 Although the Jordanian Criminal Code, which imposes imprisonment for rape and violation of honour and fines for a few lesser sexual offences, may have been influenced in part by other modern legal systems in the choice of penalties, the use of these punishments in the Ottoman approach is still important for reasons that will be explained shortly.
Regarding violation of honour, a term not encountered in Islamic jurisprudence, according to Başak Tuğ, the Turkish equivalent of this term, hetk-i irz, which denotes sexual assault against females, is one of the most frequently encountered terms in 18th century Ottoman petitions and legal registers and was also used in 19th century codifications of the law.549 She further indicates that the proliferation of this term was tightly interwoven with notions of banditry and an attempt by the imperial power to position itself as the protector of the community to quell emerging provincial powers via the use of certain terminology. Although the Ottoman concerns over sovereignty and power do not carry over to modern Jordan, it appears that the Jordanian legislator may have borrowed the term itself and the base meaning of sexual assault.
547 ibid s 200. 548 For a translation of the criminal laws enacted by Sulaymān the Magnificent, see Heyd (n 410). 549 Başak Tuğ, Politics of Honor in Ottoman Anatolia: Sexual Violence and Socio-Legal Surveillance in the Eighteenth Century (Brill 2017) 149-50.
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The answer to whether these borrowings increase the relationship between Jordanian and Islamic law hinges on whether the Ottoman approach to sexual offences can be considered part of the Islamic legal system. This issue has been taken up in academic scholarship in the related area of prostitution, which is also a form of illicit sex. In that area, several studies demonstrate that prostitutes in areas under Ottoman rule were subject to punishments such as expulsion from their neighbourhood or imprisonment based on low standards of evidence.550 The Islamic laws of zinā, including the high evidentiary standards and harsh punishments, were not applied. One interpretation considers the Ottoman legal approach to prostitution as extraneous to Islamic law. Thus, Elyse Semerdjian argues that judges would use secondary concepts found in Islamic jurisprudence (specifically, istiḥsān and istiṣlāḥ) to circumvent the Islamic laws of zinā in order to rule based on custom.551
In contrast, James Baldwin considers that view “unsatisfactory, because it suggests that Ottoman courts were able simply to ignore the prescriptions of Islamic law, harking back to the [debunked] notion of an ossified sharīʿa…”552 Further, reliance on the set punishments as the only applicable aspect of Islamic law shows a narrow understanding of prostitution. Whereas the crime of zinā focuses on illicit intercourse, prostitution encompasses many legal and moral issues beyond the mere sex act, such as procuring, coercion, treatment of slaves, public decency and neighbourhood security.553 The Ottoman legal treatment of prostitution, including court practice and fatwās, was concerned with the multi-faceted nature of the act and forms part and parcel of Islamic law which extends beyond books of jurisprudence.
However, even if we accept Baldwin’s arguments regarding prostitution, it is difficult to extend this view fully to rape. The problem does not lie in the Ottoman laws considered earlier, but rather in the differences between rape and prostitution, Ottoman court practice and fatwās in rape cases, and the increasing secularization of the Ottoman legal system in the nineteenth century.
As for the Ottoman laws on sexual offences that preceded, Baldwin interprets the system of fines for zinā in the laws enacted by Sulaymān the Magnificent as a codified form of discretionary
550 Baldwin (n 14); Semerdjian, (n 14); Fariba Zarinebaf, Crime and Punishment in Istanbul, 1700-1800 (University of California 2011). 551 Semerdjian (n 14) 94. 552 Baldwin (n 14) 120. 553 ibid.
221 punishment applicable to cases where the near-impossible standards of zinā are not met. Essentially, the “innovation was that this discretion was centralized: taken from the individual judge and given to the senior jurists who drafted it [the laws].” While some may argue that codification is inherently inconsistent with Islamic jurisprudence, for those who accept a broader approach, Baldwin’s reasoning can also be applied to the use of fines and imprisonment for sexual offences in the Ottoman Penal Code of 1858 upon which the Jordanian legislator drew.
The reasoning still holds even though it is known that the Ottoman Penal Code of 1858 was influenced by the French Penal Code of 1810. Discretionary criminal law is not set by religious texts and there is no requirement that the Muslim judge or legislator independently create discretionary offences and punishments rather than borrow from other jurisdictions. Thus, Kent Schull, who considers Ottoman criminal law during the reforms of the nineteenth century, notes that the selective adaptation of Western laws into the Ottoman system, including the Ottoman Penal Code of 1858, does not negate the Islamic nature of Ottoman criminal law.554
However, whereas Baldwin argues convincingly that Ottoman judges and jurists were cognizant of the many issues beyond sex that surround prostitution, such as neighbourhood security, and responded to these issues in their legal approach, this is less clear for rape. Although modern discourse sees rape as more than a sexual aggression, it cannot be assumed that historical societies ascribed to this viewpoint. A first indication that Ottomans did not adopt a multi-faceted view of rape occurs in the criminal laws considered above. Unlike offences regarding prostitution in Ottoman criminal codes, which come under a variety of sections such as “mutual beating and abuse” and “drinking, theft, robbery and other offences”, rape comes solely under the chapter on sexual offences.555
The Ottoman fatwās and court cases are even more problematic. For example, Semerdjian translates a fatwā by the Ottoman chief mufti Ebu’s Suʿud as follows:
Question: If Zeyd without being married to Hind takes her by force, what should happen to Zeyd?
554 Kent Schull, ‘Comparative Criminal Justice in the Era of Modernity: A Template for Inquiry and the Ottoman Empire as Case Study’ (2014) 15(4) Turkish Studies 629. 555 These headings are from the Criminal Code of Sulaymān the Magnificent, but the same principle applies to the Ottoman Penal Code of 1858. See Baldwin (n 14) 134.
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Answer: If he is a muhsan (a married Muslim), he will be killed.556
This fatwā imposes the familiar punishment for zinā found in Islamic jurisprudence, thus conceptualizing rape as a from of zinā. In contrast, in a fatwā on prostitution, the same mufti treats prostitution as a form of disorderly behaviour contrary to public order rather a sexual offence.557 Assuming these two fatwās are representative, within this genre of Ottoman legal writing, the considerations that remove prostitution from the realm of zinā do not apply to rape.
Similarly, Semerdjian’s study includes a small number of rape cases from the Islamic court in Ottoman Aleppo. Among these, a rapist confessed in court to kidnapping a female named Warda and committing zinā with her by force. On the basis of his confession, he was given the ḥadd punishment.558 Further, all rape cases in the court records contain the phrase “he did zinā with me forcefully (zanā bī kurhan)”, as expected from Islamic jurisprudence.559 Moreover, with the exception of the above conviction by confession and one other case that will be mentioned below, the remaining rape cases were dismissed for lack of evidence, which is consistent with the high standard of evidence expected in zinā cases.560
However, in one case, the judge gave the accused discretionary punishment on the basis of seven witnesses who testified to hearing the complainant’s screams and an additional fifteen witnesses who testified to the bad character of the accused.561 Although this is at odds with Islamic doctrines on coerced zinā, it is possible that the prosecution focused on the concurrent charges of theft and non-sexual assault, such that there is no contradiction. Nonetheless, a separate study of Ottoman provincial court records in Aintab in the sixteenth century indicates that judges admitted circumstantial and hearsay evidence in rape trials despite their technical classification under zinā.562 Further, it appears that the complainant herself could initiate rape proceedings in court.563
556 Semerdjian (n 14) 50. Technically, muḥṣan refers to a person who has consummated a valid marriage contract, regardless of whether he or she is still married. 557 Baldwin (n 14) 133. 558 Semerdjian (n 14) 149. She mentions that it is unclear if the ḥadd took the form expected in Islamic jurisprudence (stoning or lashes). 559 ibid 145-56. Semerdjian’s rendering of the phrase is “zina bi kurhan”. I am assuming from context that this should be “zanā” instead of “zinā”. Both are spelled the same in unvocalized Arabic script. 560 ibid. 561 ibid 150. 562 Leslie Pierce, Morality Tales: Law and Gender in the Ottoman Court of Aintab (University of California 2003) 355. 563 ibid 131-32; Semerdjian (n 14) 155. Semerdjian also mentions that some women claiming rape would choose not to prosecute their alleged attacker. It appears that there were social reasons that caused certain pregnant women to register a rape complaint.
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Thus, there are at least some deviations from the strict protocol found in works of Islamic jurisprudence. Nonetheless, on the whole Ottoman courts seem to broadly adhere to the concept of rape as zinā unlike prostitution.
The above court cases and fatwās predate the nineteenth century. The subsequent Ottoman reforms of the court system, which resulted in a centralized system for the administration of justice, raise additional considerations. As shown by Ruth Miller, although religious figures still had significant roles in the administration of justice, their authority was curtailed by situating them within a central, secular system that required them to rule in accordance with state law.564 As a result, even cases of sexual violation that Islamic jurisprudence places under the set crimes had to be resolved in accordance with the Code.
While the new system may have been culturally authentic rather than a simplistic form of Westernization, as maintained by Schull, and although it may have resulted in a legal system worthy of study on its own merits, as asserted by Miller, its Islamic nature is debatable.565 Despite Schull’s insistence that Ottoman criminal law following these reforms is Islamic, that label seems to result from his desire to recognize the role of Ottoman cultural and religious influences within modernization and relies on broad notions of continuity with Islamic law, such as the existence of an article at the beginning of the Ottoman Penal Code of 1858 that invokes religion, rather than substantive continuity in legal theory or doctrines.566
However, if Islamic law requires the recognition of certain doctrines set out by Muslim jurists, the Ottoman penal system of the nineteenth century clearly abandoned those laws in the area of sexual violation. Centralization and secularization required that judges refrain from invoking the religious doctrines accepted by their counterparts during earlier Ottoman eras that were now outside the bounds of the written law. That written law, encompassed in the Ottoman Penal Code of 1858, was at most a codified form of discretionary offences and excluded the ḥudūd mandated by Muslim jurists.
564 Ruth A Miller, ‘Apostates and Bandits: Religious and Secular Interaction in the Administration of Late Ottoman Criminal Law’ (2003) 97 Studia Islamica 176, 178. 565 Ruth A Miller, ‘The Legal History of the Ottoman Empire’ (2008) 6(1) History Compass 286-96; Schull, ‘Comparative Criminal Justice’ (n 554) 625. 566 Schull, ‘Comparative Criminal Justice’ (n 554) 629; Kent Schull, Prisons in the Late Ottoman Empire (2014 Edinburgh) 27, 196.
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Taken together, consideration of the various facets of the Ottoman legal system relevant to sexual offences supports the theory of a disconnect between Jordanian and Islamic law. As for the codified Ottoman criminal laws where there is clear borrowing in the Jordanian legislation, on a narrow reading, they are secular state laws rather than a form of Islamic law. However, on a broader reading that considers the Ottoman Penal Code of 1858 a codification of discretionary punishment, through its select borrowings from this Code, the Jordanian legislation maintains a generic link to Islamic law. Essentially, Jordan’s Criminal Code contains some elements that represent the way discretionary offences were dealt with during part of the Ottoman era.
However, the extent of any connection to Islamic law is tempered by the fact that Jordanian law rejects the classification of rape as zinā found in Ottoman court practice and fatwās, thus breaking away from an area where earlier Ottoman law demonstrates continuity with Islamic jurisprudence. Moreover, court practice during later Ottoman times was based solely on state-sanctioned law that did not incorporate standard Islamic legal notions regarding sexual offences. The integration of religious and secular court systems under Ottoman state control set the stage for “a new and totalizing criminal law system in Turkey”, and so too does the criminal law system in Jordan seem to have built upon these developments to move further from Islamic law rather than maintain links in any substantive sense.567
Having inherited the trend of secularization and state control from the Ottomans, it is apt that Jordanian criminal law does not attempt to claim Islamic legitimacy. Overall, the sources considered indicate a clear trajectory from the early Ottoman approach to sexual violation, which incorporated fiqh and fatwās to some extent, to the later consolidation of power by the Ottoman state to Jordanian law. However, while that trajectory includes Islamic law, its role was significantly circumscribed over time, such that the link between the Jordanian and Islamic approaches to sexual violations is tenuous.
Sexual Violence and the Courts
The text of the Criminal Code does not exist in a vacuum; rather, it is applied to real-life cases. The attitude of Jordanian courts, as the institution charged with interpreting and applying the law,
567 Miller, ‘Apostates and Bandits’ (n 564) 178.
225 plays an important role in the legal approach to sexual violence. For example, significant penalties for sexual offences are of little practical use if judges frequently circumvent them through disregard for the law or exploiting legal loopholes. Although the attitude of judges, prosecutors and other actors in the legal system in matters off the record, such as encouraging complainants to drop their allegations, is important for a holistic view of how sexual assault victims and perpetrators experience the legal system, this discussion focuses on the text of written decisions.
Analysis of the sample of cases in this study indicates that the courts apply the text of the Criminal Code faithfully without apparent recourse to contrary societal mores in deciding whether to convict or acquit. Further, judges engage in judicial interpretation only when needed and within reasonable boundaries that do not conflict with the text of the Code. However, in the area of sentencing, there is some question over whether the low sentences for sexual offences are attributable solely to an issue with the Code itself, or whether judges actively seek decreased sentences. There is also some evidence that courts are willing to entertain baseless charges of calumny against rape complainants, discouraging victims from accessing the justice system.
4.1 The Code Versus Social Norms
Despite the Code’s permissiveness towards sexual intimacy outside of marriage between consenting adults, mainstream Jordanian society frowns on all forms of illicit relations. Societal pressure is higher on women who are expected to adhere to certain standards of behavior and modesty.568 However, despite these and other social mores at odds with aspects of the sexual offences in the Code, judges appear to implement the text of the Code faithfully and refrain from personal opinions on such matters, even in obiter. In doing so, the courts are respecting the principle that there is no crime and punishment except where set out by the Code, such that it is not appropriate for judges to rule based on general morals, religion or other factors like the perceived danger of the conduct.569 Further, they are upholding a view of sexual violence as an offence against an individual victim that is not contingent on societal or religious norms regarding sexual intimacy.
568 See for example Saba Abbas, ‘“My Veil Makes Me Beautiful”: Paradoxes of Zeena and Concealment in Amman’ (2015) 11(2) Journal of Middle East Women’s Studies 154-55; Sonbol (n 502) 100, 127. 569 Regarding this principle, see for example al-Majālī (n 503) 110.
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Moral statements regarding women found to have consented to intercourse are completely absent from written judgments. In one such case, the unmarried female complainant and the male accused would travel together alone, and the complainant would send him pictures and videos of herself naked. Fearing exposure, the complainant filed a rape complaint so that police would seize the digital files. Acquitting the accused, the judgment sets out the facts and the finding of consent in a straightforward manner without commenting further on the parties’ shameful behavior by general societal standards, and without any suggestion that they should be punished for fornication.570
Similarly, a woman’s consent to engage in sexual acts in an empty hospital room during an overnight visit to her sick friend with two male hospital employees whom she knew did not lead the judges to condemn her in their written reasons, despite the scandalous nature of this conduct from a societal standpoint. The decision is not concerned with the transgression of appropriate sexual bounds, but only with her false claim of force that was contradicted by security camera footage.571
Conversely, a non-consenting woman’s ‘inappropriate’ behaviour does not preclude conviction of the male aggressor nor invite judicial condemnation of her conduct.572 Thus, the case of a female complainant who met with an unrelated man in a café then went home with the man’s friend who raped her resulted in a conviction for rape without moral commentary on the woman’s actions.573 Further, in a 1991 judgment cited by al-Shawwābka, the Court of Cassation states, “the victim’s bad character does not impact the accused’s liability for sexually assaulting her if she did not consent. The legislator’s goal of criminalizing this act is protecting women from assault, not correcting her character. (Inna sūʾ sulūk al-majnī ʿalayhā lā yuḥūl dūn tajarrum al-muttaham ʿan al-taʿaddī ʿalayhā jinsiyyan khilāfan li raghbatihā wa inna hadaf al-musharriʿ min tajrīm mithl hādhā al-fiʿl huwa ḥimāyat al-unthā min al-taʿaddī ʿalayhā wa laysa taqwīm sulūkihā)”574 This differs substantially from usurpation in Mālikī law where the success of the claim depends largely on the perceived character of both the perpetrator and victim.
570 R v Shukrī 2018/205 (Court of Cassation). 571 R v Ṣundūqa 2018/692 (Court of Cassation). 572 Nonetheless, Namūr notes that a victim’s poor morals can be evidence of consent: Namūr (n 503) 202. This issue was not raised in any of the cases in this study. 573 R v al-ʿUmr 2018/283 (Court of Cassation). 574 Al-Shawwābka (n 503) 16. The case he cites is 1991/107 (Court of Cassation) [names of parties not mentioned].
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The refusal to allow inappropriate behavior to influence the outcome also extends to situations where the victim consumed alcohol or drugs. Thus, the Court of Cassation mentions explicitly in a judgment that drugs taken voluntarily by the victim, making him or her unaware, do not relieve the perpetrator of liability for the crime.575 This is despite the generally negative view of those who take drugs or consume alcohol or other intoxicants in broader society.
Finally, despite the continuing existence of traditional patriarchal family units, written decisions do not display any hesitancy to hold male family figures accountable for the rape of relatives or to increase their sentences under s. 300 of the Criminal Code which considers certain blood relations an aggravating factor.576 For example, two 1980s decisions from the Court of Cassation, which affirmed the judgments of the Grand Criminal Court, hold a father and uncle liable for the attempted rape and violation of honour of their daughter and niece respectively.577 Similarly, in a more recent case from 2018, judges convicted a brother of violating the honour of his 14 year old sister.578
4.2 Judicial Interpretation: The Scope of Violation of Honour
Although the Criminal Code sets out the offence of violation of honour, it does not define this term. This task has been left to the courts, offering a glimpse into how Jordanian judges interpret the law. As will be demonstrated below, Jordan’s highest court takes a restrained approach to interpreting violation of honour that does not infringe on the legislative scheme for sexual offences. Further, other than coercion and consent which will be discussed later, the scope of violation of honour is the only example of significant interpretation of the Code by the courts in sexual crimes. Generally, judges apply the text of the Code, which is usually clear on the main details of sexual offences, rather than try to interpret away or read into the provisions.
575 R v ʿḤR (n 518). There is no pinpoint for this citation, as the decision on Qisṭās is a single page re-typed document without paragraph numbers, breaks or original page numbering. This decision concerns violation of honour. From discussions with a Jordanian lawyer, I am also aware of a recent rape case where the court convicted the accused for raping a drunk woman without any commentary suggesting that the woman was in the wrong. Unfortunately, I was unable to obtain the text of this judgment. 576 Regarding patriarchy in Jordan, see for example Sonbol (n 502) 7, 27, 88. 577 R v ṢD 1987/136 (Court of Cassation); R v ʿMB 1985/152 (Court of Cassation). 578 R v AF 2018/1437 (Court of Cassation). It is possible that the tendency to convict in such cases is evidence of class-based bias by judges rather than a desire to simply apply the law, i.e. a belief that backwards lower class people need to be modernized and taught what is acceptable. The judgments do not contain information about the social status of the accused.
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In addition to illustrating an approach to judicial interpretation that follows a plain reading of the text, the court’s explanation of violation of honour is a further example of consistency in the law of sexual offences over time, discussed earlier with respect to the text of the Code. Although the Court of Cassation has been commenting explicitly on the meaning of violation of honour since the 1950s, the case law demonstrates stability in the core definition of this offence over time despite some disagreement over the lower boundary. Moreover, judicial interpretation of this offence is a further example of the disconnect between Jordanian and Islamic law, as the sources the court draws upon exclude Islamic jurisprudence except in one secondary matter.
One of the longest discussions of the meaning of violation of honour occurs in a case from 1952, soon after the enactment of Jordan’s first Criminal Code, in which the male perpetrator had put a rod into the male victim’s anus.579 After stating that rape only applies to vaginal intercourse with a female and that non-natural sex acts with a male or the remainder of a female’s body come under violation of honour, the court further considers the scope of this offence:
As for violation of honour, the Code does not define it like it does for rape. Therefore, to derive the legal meaning, it is necessary to look to the linguistic and technical meanings of the term “violation of honour”, as well as the legal intent of this term. Linguistically, the word “violation (hatk)” means exposure or uncovering of immoral conduct and “honour (ʿirḍ)” refers to what people guard of their own selves or of their private parts (ʿawra). Based on this, violation of honour refers to anything that infringes on any part of the victim’s body that is a customarily considered part of the private parts (sawʾāt) and which violates his sense of decency.
The main legal issue that caused the legislator to punish this act is ensuring safety which people depend upon to protect their honour from any tangible act that infringes on it. Based on the linguistic and technical meanings, violation of honour includes intercourse with a woman in a manner contrary to nature, as well as anal intercourse with a male and every other assault on honour that wrongfully infringes on (yastaṭīl ilā) the private parts, regardless of whether the victim is male or female.
Ammā jarīmat hatk al-ʿirḍ fa inna al-qānūn lam yaḍaʿ lahā taʿrīfan kamā faʿala fī jarīmat al-ightiṣāb wa li hādhā lā budda li ajl taḥdīd madlūlihā min tawaḍḍuḥ maʿnā ʿibārat hatk al-ʿirḍ al-lughawī wa’l-iṣṭilāḥī wa istinbāṭ al-fikra al-qānūniyya al-asāsiyya allatī yaqūm ʿalayhā hādhā al-fiʿl. Fa kalimat hatk fī al-lugha taʿnī faḍḥ aw kashf al-masāwiʾ wa al- ʿirḍ yuṭlaq ʿalā mā yaṣūnuhu al-insān min nafsihi kamā yuṭlaq ʿalā makān al-ʿawra min
579 R v al-Qāsim 1952/18 (Court of Cassation). The judges’ focus on defining the meaning of violation of honour in the Criminal Code of 1951 is somewhat bizarre. Although the accused’s act would come under violation of honour in this Code, the crime took place before the Code came into force, such that the case was ultimately decided based on the Ottoman Penal Code. Unfortunately, the Court of Cassation sent the case back to the lower court to rule in accordance with that law, such that one of the last Ottoman law-based judgments on a sexual offence is not contained in the available text.
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al-jasad. Wa hatk al-ʿirḍ bi’l-nisbat li dhālika yaʿnī kull fiʿl fīhi misās bi ayyi juzʾ min jism al-majnī ʿalayhi mimmā yadkhul ʿurfan fī ḥukm al-sawʾāt wa yakhdish al-ḥayāʾ al-ʿirḍī.
Wa’l-fikra al-qānūniyya al-asāsiyya allatī daʿat al-shāriʿ li’l-muʿāqaba ʿalā hādhā al-fiʿl hiya ḥimāyat al-manāʿa al-adabiyya allatī yaṣūn bihā al-insān ʿirḍahu ʿan ayyi fiʿl māddī yukhill bi’l-ḥayāʾ al-ʿirdī. Wa ʿalā hādhā al-asās al-lughawī wa’l-iṣṭilāḥī yuʿtabar hatkan li’l-ʿirḍ al-ittiṣāl al-jinsī maʿa imraʾa khilāf al-ṭabīʿa wa kadhā al-liwāṭ bi’l-dhakar wa kull iʿtidāʿ ākhar yaqaʿ ʿalā al-ʿirḍ bi’l-dhāt wa yastaṭīl ilā al-ʿawrāt sawāʾ a kāna al- majnī ʿalayhi dhakaran aw unthā.580
The judges also add that it is not necessary that the perpetrator intend to satisfy his carnal desires; rather, it is sufficient that he intends to attack a part of the body associated with modesty/chastity (mawḍiʿ al-ʿiffa), setting a wide scope for the mens rea.581 Therefore, violation of honour excludes accidental touching but includes purposeful incursions on a male or female’s genitals, other than vaginal intercourse with a female victim which is rape.582 Further, the decision also references the consensus of legal opinion (fiqh) and case law (qaḍāʾ) to support the above-cited analysis, indicating where the courts turn when the Code is silent on a matter. Islamic law, though likely influencing concepts such as modesty (as discussed below), is not mentioned as a primary source.
Theoretically, the court could have set different boundaries. For example, although the text of the Code limits rape to female victims, it does not stipulate vaginal intercourse, such that the judges could have placed anal intercourse with females under that offence rather than violation of honour. However, the court’s paradigm is reasonable. Further, proposed legislative amendments in 2010 to violation of honour indicate that the legislature and the courts agree on the dividing line between rape and violation of honour, as well as the inclusion of both male and female victims in the latter offence.583 Although there is a large time gap between the 1952 judgment and 2010, there is no
580 ibid. This is on the first page of the judgment available on Qisṭās, which is a re-typed PDF rather than a scanned copy of the original decision. The re-typed version mentions “ḥukm al-sawāt” instead of “ḥukm al-sawʾāt”. The omission of the hamza is likely a typographical error. 581 ibid. This is on page 2 of the copy available on Qisṭās. 582 The scope excludes acts that the perpetrator does on his own body in view of others, as confirmed by Namūr (n 503) 233. 583 Qānūn Muʾaqqat Muʿaddil li Qānūn al-ʿUqūbāt n 12 2010. The proposed amendment sought to introduce increased penalties for 1) unnatural intercourse with a female and homosexual intercourse between males; and 2) the husband’s act of anal intercourse with his wife. This would have created a multi-tiered sentencing scheme for violation of honour, with anal intercourse subject to new, harsher penalties, itself subdivided based on whether the perpetrator was the victim’s husband, and lesser violations subject to the penalties already stipulated in the Code. Although the proposed amendment did not pass, it was most likely due to objections over the new sentencing scheme rather than the inclusion of these acts under violation of honour. Note that this law was “temporary” (muʾaqqat) due to its timing in relation to elections. The final version of the law was passed in 2011.
230 indication in any of the sources that this matter was ever a power struggle between courts and the legislature or legal scholars.
Unlike the division between rape and violation of honour, the above interpretation does not clearly set the boundary between violation of honour and lesser offences such as fondling. Among the cases in this study, this issue is taken up by a decision from 1986.584 In that case, the accused taxi driver was alone with the six-year-old victim in his taxi when he placed the child’s hand over his clothed penis. In ruling that this act constituted an indecent act under s. 320 rather than violation of honour, the court held that a key element of violation of honour is the perpetrator uncovering part of the victim’s body that constitutes his/her private parts (ʿawra) according to custom (ʿurf).585 Circumstances that do not include uncovering the private parts only come under violation of honour when they are exceptionally lewd. Neither these facts, nor a previous decision cited by the court where the perpetrator placed the victim’s hand on his clothed anus, constituted violation of honour.
In setting this lower boundary of violation of honour, the decision mentions legal opinions (fiqh) and judgments (qaḍāʾ) from Egypt, Syria, Lebanon and Jordan. This provides further confirmation of the sources considered by Jordanian courts when matters are left undefined in legislation, none of which includes Islamic law.586 Further, the court’s use of custom to define private parts appears to omit Islamic jurisprudence. While the customary definition of this concept in Jordan overlaps with Islamic law to a large extent, the determining factor remains custom. However, in a separate case of violation of honour which likewise considers the concept of private parts, the judges reference Islamic jurisprudence explicitly, such that it appears that Islamic law plays some role in
584 R v ʿḤR (n 518). 585 The court convicted for an indecent act rather than fondling due to the public nature of the act. The sexual violation took place below window level in the taxi, making it difficult for others to see the perpetrator’s action. However, according to Namūr, an act is public if done in a place where people can see it even if nobody actually saw it: Namūr (n 503) 261. Further, he mentions that where an act can alternately be prosecuted as an indecent act or fondling, it will be prosecuted as the former which carries the possibility of a higher sentence: ibid 260. Following the amendments in 2017 (post-dating the publication of Namūr’s book), fondling carries a higher possible sentence than indecent acts, so perhaps the courts will inverse this tendency. Also note that indecent acts (s. 320) incorporate obscene gestures and actions a person does on his/her own body in public. The overlap with fondling for certain acts done to another person seems to be incidental, and I do not think it is evidence of a general private/public dichotomy for sexual offences. 586 It is likely that Islamic law has also influenced criminal legislation and judgments from these countries in tertiary matters, just as they are present in the Jordanian context in issues such as the meaning of “private parts”. However, in looking to these countries, the court is looking to the civil law traditions of nearby jurisdictions with similar legal histories, not to Islamic law in any substantive sense.
231 this secondary issue in the courts, whether implicitly through overlap with custom or explicitly by direct reference, depending on the panel of judges:
That is because the accused’s actions…infringed on a part of the victim’s body, her breast, that is considered among the private parts according to custom, Islamic jurisprudence and the community…
Dhālika anna afʿālahu…istaṭālat ilā juzʾ min jasadihā (thadyihā) alladhī yadkhul fī mafhūm al-ʿawra wafqa taqālīd al-mujtamaʿ wa maʿa mā yatalāʾam maʿa mafhūm al- ʿawrāt min al-nāḥiya al-sharʿiyya wa‘l-ijtimāʿiyya…587
Although the basic concept that violation of honour requires wrongful interference with the victim’s private parts (al-istiṭāla ilā ʿawratihi) is repeated in many cases from the 1950s through present times, the remaining judgments in this sample do not comment in detail on the lower boundary separating violation of honour from lesser sexual offences.588 However, the boundary may be inferred from the findings of facts and outcomes of various cases.
There appears to be unanimity in the case law that uncovering the victim’s private parts constitutes violation of honour rather than a lesser offence. For example, a perpetrator placing his hands on the female victim’s breasts and vaginal area constituted violation of honour.589 In another case, the accused locking his 14 year old victim in his house, touching the victim’s anus, hugging him and biting his neck constituted violation of honour.590 Further, luring a 22 year old male victim on Facebook then beating and threatening him until he took off his clothes so that the perpetrators could take pictures of him naked also resulted in a conviction for violation of honour.591
However, the jurisprudence is not uniform on violations that do not include exposing the victim’s private parts. Although the 1986 case above considers that such incidents only constitute violation of honour where they are exceptionally lewd, the other two cases in this sample concerning violations over clothes implicitly contradict this. In the first case, from 2018, the court ruled that forcing the victim’s mouth to touch the accused’s erect but clothed penis followed by the accused
587 Citation unknown. This case is most likely from the Court of Cassation, although it is possible that it is from the Grand Criminal Court. I only have the last page of the decision (page 4), which was given to me by a colleague of Judge ʿAmmār al-Ḥanīfāt at the Grand Criminal Court in Amman, Jordan. He gave it to me as an example of an area where Islamic law plays a role in sexual offences in Jordanian courts. 588 See for example: R v ʿIzām (n 515); R v Salwān 1957/24 (Court of Cassation); R v ṢD (n 577). This is also mentioned in Namūr’s discussion of violation of honour: Namūr (n 503) 226. 589 R v KhʿSh 1985/127 (Court of Cassation). 590 R v Ṭashṭūsh 2018/276 (Court of Cassation). 591 R v ʿAwda (n 524).
232 exposing himself to the victim constituted violation of honour.592 In the other, also from 2018, touching the victim’s anus over his clothes constituted violation of honour.593 Neither decision mentions exceptional lewdness, nor do the situations seem to merit this description. Further, Namūr’s commentary, which cites additional decisions not included in the sample for this project, mentions that there is no requirement of uncovering the victim’s private parts; rather, what distinguishes violation of honour from lesser sexual offences is the gravity (jasāma) of the act.594
It is possible that the principle from the 1986 case was relaxed over time or that this conception was never fully implemented by the court. Although many aspects of violation of honour are clear, such as the basic idea of an infringement on the private parts and the boundary between rape and violation of honour, the threshold between violation of honour and lesser offences is somewhat ambiguous. Despite the advantages of flexibility given that sexual violations over clothes can vary in severity, it may be preferable for the courts or the legislator to better delineate the dividing line between violation of honour and lesser offences to provide more certainty in the law. Once the act is assigned to an appropriate offence in the Code, judges can use the flexibility already built into the sentencing provisions to account for its relative gravity.
4.3 Sentencing
Although the text of the written decisions indicates that judges do not rely on extraneous social factors or use judicial interpretation to avoid the plain meaning of the Criminal Code, the final sentences in the cases do not match what would be expected from the sentences outlined in the Code for the various sexual offences. This is due to two factors. First, there is a tendency among judges to impose the minimum sentence.595 Second, complainants inevitably relinquish their personal right (ḥaqq shakhṣī), which is considered a mitigating factor in sentencing. In combination, these two factors generally result in sentences for rape and violation of honour of at
592 R v Ṭabīla (n 514). 593 R v al-Ṭiwāl (n 515). 594 Namūr (n 503) 228-30. 595 I am not sure whether judges also tend to apply the minimum sentence for non-sexual offences. The same tendency across other offences would suggest that minimum sentences are not indicative of judges treating sexual offenders lightly. Either way, the main issue here is not the application of the minimum in isolation, but the combination of the minimum with dropping the personal right, as explained in the body of the text.
233 most half of what would be expected from an initial reading of the individual sexual offences in Criminal Code.596 The two factors will be examined in turn below.
However, before proceeding it should be noted that relinquishing one’s personal right was abolished in 2017 for cases under the jurisdiction of the Grand Criminal Court, including sexual offences. Since the criminal cases in this study were commenced before the change, even though the Court of Cassation decisions may date from 2018, the new rule is not reflected in the judgments. Nonetheless, the results provide insight into a longstanding historical issue in the legal approach to sexual assault in Jordan. The recent change is also further evidence that there is not complete inertia in this area of the law despite overall continuity.
Where a fixed sentence exists, judges apply it faithfully. Thus, in the sample, convictions for rape under s. 292(1) all result in sentences of 15 years, prior to reductions for the relinquishment of the personal right.597 However, convictions for violation of honour, where the Code stipulates minimums, rarely result in sentences above the lower limit. Of the 15 cases of violation of honour in the sample resulting in convictions under relevant sections of the Code, the minimum sentence was imposed in 12 of them before mitigating or aggravating factors. A higher sentence was imposed in only 3 cases.598
In these cases of violation of honour, judges only imposed sentences above the minimum for anal intercourse or particularly egregious sexual violations. For example, in a case where the perpetrator lured a 13 year old boy to his home, stripped off his clothes, tied him up and had anal intercourse with him, the judge sentenced him to 9 years, 2 years beyond the minimum for violation of a minor under s. 296(3).599 Similarly, an aggressor who forced a 10 year old boy into a bathroom stall in the mosque, took of the victim’s pants and underwear, had anal intercourse with him and
596 There is not enough data from the cases to comment on this issue for other sexual offences such as fondling. Most cases with lesser sexual offences also include charges for violation of honour. The final sentence in such cases is based on the offence that carries the highest sentence, i.e. violation of honour. 597 Although s. 292(1) mentions 15 years as the minimum, based on s. 20 of the Criminal Code, when the maximum sentence is unspecified it is 15 years. Therefore rape under s. 292(1) carries a fixed sentence of 15 years. Al- Shawwābka mentions that it would have been more logical for the legislator to simply mention 15 years in this section, omitting the word minimum: al-Shawwābka (n 503) 45. 598 Note that the sample includes additional convictions for violation of honour beyond the 15 mentioned here. There are a few convictions for violation of honour under ss. 297 and 298(1) where the Code stipulates a maximum rather than a minimum, as well as cases where the sentence for violation of honour is unclear due to it being subsumed under more serious charges such as rape or murder. 599 R v Abū Dalbūḥ 2018/1271 (Court of Cassation).
234 sucked the boy’s penis was sentenced to 10 years under s. 299, 2 years above the minimum.600 Moreover, the sentence was above the minimum for a father who would repeatedly perform sexual acts short of penetration with his daughter since she was 6 years old until she could no longer endure the abuse and shot him when he attempted to force her onto his bed.601
In contrast, a brother who would lower his 14-year-old sister’s pants and underwear while she was sleeping and place his penis on her anus received the minimum sentence of 7 years for violation of honour of a minor under s. 296(3).602 Similarly, a perpetrator pulling a 14-year old male victim into his house, locking him inside, hugging him, biting him on his neck and genitals and touching his anus also resulted in the minimum sentence under s. 296(3).603 The imposition of the minimum sentence in these decisions creates an odd equivalency between lesser violations of honour, such as briefly touching the victim’s genital area, and the more serious violations in these two cases. On the other hand, given that the minimum sentences are not negligible, perhaps it is appropriate that judges only exceed them in the vilest scenarios.
Although the use of the Code minimums in most cases may not be a significant issue in isolation, combined with the victim’s relinquishment of his/her personal right, the final sentence is often disproportionately low. Prior to amendment of the legislation governing the Grand Criminal Court in 2017, victims in all cases before this court, including sexual offences, murder and kidnapping, would be asked to claim or renounce their right to civil compensation for damages resulting from the crime during the investigation and/or at trial.604 Under s. 100 of the Criminal Code, renunciation of this right was considered a mitigating factor in sentencing, decreasing the sentence by 50%.
Victims of sexual crimes inevitably relinquished this right. Every victim in the case law sample who was legally capable of relinquishing his/her personal right did so, resulting in jail terms of
600 R v Ibrāhīm 2018/1702 (Court of Cassation). 601 R v SḤ 1987/149 (Court of Cassation). The final sentence was 15 years based on s. 296 and the multiplier under s. 300 due to the blood relationship between the perpetrator and victim. Although the judgment does not specify the base sentence or the multiplier, it is clear from the text of the Code applicable in 1987 that the base sentence was at least 10 years, 3 years above the minimum. This case would proceed under s. 299 under the current text of the Code. 602 R v AF (n 578). This was increased by 1/3 under s. 300 since the blood relationship was an aggravating factor, resulting in a final sentence of 9 years and 4 months. 603 R v Ṭashṭūsh (n 590). 604 Qānūn Maḥkamat al-Jināyāt al-Kubrā n 19 1986. Mohamad Alfawareh from the Law School at the University of Jordan kindly clarified many aspects regarding the personal right.
235 half of the minimum or fixed sentence stipulated in individual sections.605 Only minor victims, which the law prevented from relinquishing their right, did not do so; however, none of these victims claimed their right, resulting in the full sentence but no financial compensation. This is not a quirk of this sample, as a group of five judges at the Grand Criminal Court in Amman could only recall a single case between them where the victim of a sexual offence had claimed this right.606
Therefore, in a case where the perpetrator lured the victim to his home, locked her in a room, threatened to kill her and overcame her resistance to rape her, his sentence of 15 years for rape under s. 292(1) was decreased to 7.5 years due to the victim’s renunciation of her personal right.607 Similarly, in a case where the perpetrator touched the victim’s breasts and vaginal area after his attempted rape was foiled by the victim’s significant resistance, the victim’s relinquishment of her personal right resulted in a two-year sentence instead of the minimum four for violation of honour under s. 296(1).608 There are countless similar examples from the 1950s to just before present.609
It is unclear from the written sources in this study whether the renunciation of the personal right by victims of sexual violence was attributable to societal mores that made it shameful for victims to assert their right, despite the legal option to do so, or whether judges or other members of the legal system actively encouraged renunciation.610 Encouragement by the judiciary would indicate a partially dismissive attitude towards victims of sexual violence through the heavy-handed use of another section of the Code to bypass the standard sentences for sexual offences and a strong influence of cultural notions extraneous to the law in contrast to what appears in the written record.
On the other hand, if the principal reason for relinquishment was cultural, the law’s former willingness to allow decreased sentences was reflective of broader societal values, yet arguably
605 The only possible exception is R v al-ʿAbūs (n 496), the rape case involving the Bengali cleaning woman mentioned in the introduction. The final sentence is 15 years, which indicates that she did not drop her personal right. However, as the rape occurred in 2017, it is possible that the crime was committed after the abolishment of the old scheme. Even if this is incorrect, it does not appear that she claimed her right, such that there was neither a decreased sentence nor financial compensation. 606 I met with these judges on March 18, 2019 at the Grand Criminal Court in Amman. Those present included Judge Ammār al-Ḥanīfāt, Judge Jihād Bayk and three others whose names I do not have. Unfortunately, I was unable to obtain a copy of the case where the victim claimed the personal right. 607 R v al-ʿUmr (n 573). 608 R v KhʿSh (n 589). 609 For example, R v ʿAwda (n 524); R v Salwān (n 588). 610 Although the cause of relinquishment is not apparent from the text of the written decisions, members of the bar in Jordan confirmed the existence of both of the explanations mentioned here.
236 contrary to justice, especially in situations of serious sexual violence. It also indicates the existence of moral considerations that decreased the sentence and discouraged the victim from seeking financial reparation despite the fact that the offences in the Code primarily endorse a view of rape and violation of honour as violations against an individual when read in isolation. As in the moral framework in Islamic jurisprudence and the now repealed morally oriented s. 308 in the Jordanian Code, the victim disappears, though here primarily in the area of civil liability.
These issues should be taken up by further by research that considers influences in the legal system outside of the written record. Moreover, examination of the latest criminal cases in a future project would reveal whether the recent abolishment of this rule has resulted in the same number of convictions for sexual violence but with stiffer sentences, or whether it has led to new issues, such as greater hesitancy to convict or the creation of new loopholes to avoid the effect of the change. However, this study does include recent civil claims for sexual violation brought after the amendment, which will be examined later. The existence of these civil cases indicates that the recent change has paved the way for some victims to claim compensation, an occurrence that was almost unheard of through 2017.
4.4 Using the Law to Silence Victims?
There is some indication in the case law that the courts allow inappropriate calumny proceedings following an acquittal for a sexual offence, which would discourage victims of sexual violence from filing a complaint. The evidence comes from one judgment, so it is possible that this case is an anomaly.611
Although Jordanian complainants do not risk punishment for slander (qadhf) as in Islamic jurisprudence, they may be exposed to charges for calumny (iftirāʾ) if the accused is acquitted. Theoretically, calumny requires evidence of fabrication in the form of intentional lying (taʿammud al-kadhib) and fabricating evidence (ikhtilāq al-adilla).612 However, in a case from 2009,
611 Based on conversations with Jordanian lawyers and judges, I believe that this case is most likely representative of a real problem. For example, one lawyer mentioned that she always warns complainants that if they choose to press charges, any inconsistencies in their story over time may lead to calumny proceedings. 612 Al-Khalāyila v NM 2009/54094 (Court of Appeal). This is mentioned on page 3 of the re-typed version of the judgment available on Qisṭās.
237 following the accused’s acquittal for rape and violation of honour, the complainant faced both civil and criminal proceedings for calumny despite the absence of evidence indicating that she had lied.613 The Court of First Instance, in a decision upheld on appeal, acquitted the woman of the criminal charge. As for the civil claim, the Court of First Instance dismissed the case against the complainant without ordering the plaintiff to pay costs whereas the Court of Appeal added a costs award in favour of the complainant.
Although the Court of Appeal emphasized in its decision that insufficient evidence for a conviction for rape or violation of honour is not equivalent to the absence of evidence, it is unclear why prosecutors and the lower court were prepared to entertain the case at all. Moreover, it is disturbing that the prosecutor appealed the acquittal on the criminal charge. If this happens with any frequency, the effect on rape victims who do not possess incontrovertible evidence would be chilling. It would also indicate that despite the lack of outside influence on rape trials from other perspectives, such as the victim’s clothing or use of drugs, the law is being misused in other ways by the legal community to deter reporting and punish victims who come forward.
Unlike the calumny charges stemming from an unsuccessful rape complaint, I did not encounter any frivolous criminal or civil proceedings against a complainant for an unproven charge of violation of honour. Although there was a civil case for damages resulting from a false accusation of violation of honour, in that case the accusation was patently false such that the proceedings were warranted. Specifically, the defendants had filed an intentionally false complaint and lied during the investigation, resulting in significant lost income from time spent in detention and reputational harm to the accused.614
Coercion and Consent
The Criminal Code defines the offence of rape as intercourse with a female (other than the wife) “against her will, whether by coercion or threats or trick or deception”. Similarly, the Code punishes violation of honour that takes place “by the use of force or threats”. This raises the question of what constitutes coercion, threats, trick, deception and force in Jordanian law, i.e. what
613 ibid. 614 Al-Khaṭīb v al-Shāwīsh 2017/4767 (Court of Cassation).
238 nullifies consent and turns an otherwise permissible sexual act into a crime.615 While details apply, overall the Jordanian approach sets a standard that requires physical resistance in cases of coercion by physical force, but accepts a large range of threats, deceptive situations and lack of awareness as nullifying volition.
Although coercion and consent is a distinct topic, it ties into other themes such as the connection between Jordanian and Islamic law, the evolution of sexual offences over time, and the role of the courts in interpreting the law. These issues, as they relate to volition, will be discussed throughout this section. Moreover, it should be noted that issues of consent apply to victims of any age. Although the law deems minors incapable of consent, their volition as a matter of fact is still relevant and is ascertained on the same standards that govern adult victims. If an underage victim was willing, the act is a statutory offence, whereas a violation against a minor using coercion, threats, trick, deception or force results in prosecution under the same section governing the violation against adults with an increased sentence due to the victim’s age.616
Further, unlike Islamic jurisprudence where the topic of coercion involves significant discussion of third-party coercion of males, in the Jordanian context the focus is the female victim of rape or the direct victim of either gender for violation of honour. This is because the Jordanian legal system considers rape independent of adultery/fornication and does not criminalize other consensual sexual acts, obviating the need to discuss liability for illicit intercourse or any other consensual act. Jordanian law simply holds that third-party coercion precludes the mens rea for sexual offences.617 As such, the discussion below only considers the female victim of rape and the direct victim of either gender for violation of honour.
615 The offences of fondling (s. 305) and proposing or doing an immoral act (s. 306) also mention the victim’s volition. However, the meaning of consent for these sections is not considered in this section, as it is not discussed in the commentaries or in the case law examined for this project. 616 For example, if a minor willingly engages in intercourse, the offence will be prosecuted under s. 294. In contrast, intercourse with a non-consenting minor is prosecuted under s. 292 which is the same section that governs rape of adults. The sentence under s. 294 is more lenient unless the victim is under 15. Similarly, if a minor willingly engages in a sexual act that comes under violation of honour, the offence will be prosecuted under s. 298 whereas the same act with a minor by force or threat comes under s. 296. 617 Namūr (n 503) 218.
239
5.1 Consent in Rape Cases
In rape, the issue of volition is mentioned in the text of the Criminal Code and in the mens rea set out in commentaries. The latter stipulates that the male intend intercourse with a female victim whom he knows is not consenting. As for the Code, it requires that the act of intercourse be against the female’s will. The wording of the Criminal Code regarding consent was amended in 1988, such that it is helpful to set out both versions below.
From 1951 until 1988, the relevant portion of s. 292 read as follows:
Whoever has sexual intercourse with a female by coercion (ikrāh), other than his wife, shall be punished by temporary imprisonment with hard labour for a period of at least 5 years.
Further, from 1951 until 1988, s. 293 provided as follows:
Whoever has intercourse with a female, other than his wife, who could not resist due to a physical or emotional impairment, or due to his use of deception (khidāʿ), shall be punished by temporary imprisonment with hard labour.
Since 1988, the relevant portion of s. 292 reads as follows:
Whoever has intercourse with a female, other than his wife, against her will (bi ghayr riḍāhā), whether by coercion (ikrāh), threat (tahdīd), trick (ḥīla) or deception (khidāʿ), shall be punished with temporary imprisonment for a period not less than 15 years [10 years from 1988-2011].
Further, s. 293 is now restricted to intercourse with females who cannot resist due to disability. The portion of this section that used to deal with deception has been incorporated into s. 292. This has streamlined consent under one section and disabilities under a separate section. Moreover, the addition of two nullifiers of consent, namely threats and tricks, broadens the scope of involuntariness in the legislation, facilitating the prosecution of certain acts.
As the Criminal Code does not define the concepts of coercion, threats, trick and deception, it is necessary to examine the commentaries and case law. The commentaries in this study, published from 2002 onward, only define these concepts from a contemporary perspective. However, older notions of consent may be inferred from the case law. Although judicial decisions do not always discuss issues of volition explicitly, inferences are possible from the facts of the case and the
240 outcome. The discussion below first considers coercion and threats, followed by the remaining categories of trick and deception.
Commentaries divide coercion (ikrāh) for rape into two types: tangible (māddī) and intangible (maʿnawī).618 Tangible coercion involves the use of physical force on the victim’s body by the rapist or a third party to overcome the victim’s resistance. Force applied to another person or on an object, such as breaking a door, does not constitute coercion. In contrast, intangible coercion is the use of threats to obtain the victim’s compliance, such as threats of bodily harm, of harm to her reputation, to a loved one, her property, or threats to expose a secret such that the victim feels that she has no choice but to submit to intercourse.619 Accordingly, commentaries consider threats a branch of coercion whereas the Criminal Code treats coercion and threats as two separate categories that vitiate consent. However, the difference in categorization does not seem to impact the substance of these notions.
The scope of intangible coercion is significantly broader than Islamic jurisprudence which requires threats of death or severe bodily harm, or for Ḥanafīs beating, jail or enchainment. The difference is not surprising given that Islamic law considers the underlying act of intercourse a crime whereas Jordanian law does not (absent a formal complaint by the spouse or guardian for consensual intercourse). The inapplicability of divine boundaries means that the victim does not need to resist being implicated in a sinful act. Rather, in Jordanian law, a man who uses threats to obtain sex is worthy of punishment for rape, not adultery/fornication, and the woman who succumbs to his threats is a victim of a violation against her person who has not broken an underlying law.
Despite the relatively generous scope of threats, tangible coercion includes the problematic requirement of overcoming the victim’s resistance. This likely excludes situations such as the victim freezing out of fear when she realizes the intent of the aggressor. Unfortunately, none of the cases contain facts that clarify the lower limit of physical coercion in the view of the courts. However, the fact that Jordanian legal scholars and judges uniformly look for acts that nullify consent, rather than require that the man proactively obtain consent or have reason to believe the woman is consenting, is further indication that they would exclude the aforementioned scenario from rape, as consent would be presumed.
618 Najm (n 499) 193; Namūr (n 503) 208; al-Shawwābka (n 503) 31. 619 Najm (n 499) 195; Namūr (n 503) 211.
241
In the case law, three older decisions resulting in convictions for attempted rape provide some insight into the meaning of coercion under the former wording of s. 292. In the first, the accused grabbed the victim and fought with her to have sex. However, the victim resisted, called for help and used a trick to get rid of her attacker.620 In the second, the accused tried to overcome the victim’s resistance but ran away when the victim’s daughter saw him and screamed.621 In the last, the accused threw the victim on the floor and attempted to remove her clothes while she resisted.622 The common element in all three cases is the perpetrator’s use of significant force to overcome the victim’s resistance. Thus, physical force to overcome resistance constituted coercion under the previous version of the section just as it constitutes coercion today. However, these cases do not clarify to what extent women were expected to resist, nor do they provide any information on related notions such as threat.
The recent cases resulting in rape convictions contain force mixed with threats, which precludes isolating the element of force to determine the standard of resistance. For example, in one case mentioned earlier, the accused drove his victim to a secluded area where he forced her into the trunk of his vehicle. He then took off her clothes, put an unsheathed razor to her neck, flipped her onto her back, got on top of her and had sex with her, all while she was crying.623 The victim thus faced a threat from the razor together with the perpetrator’s use of physical force. In another case, the accused locked his victim in a room, touched her shoulder despite her resistance, put her hand over her mouth, threatened her with death, took off her pants and underwear and had intercourse with her.”624 Again, the death threat is intertwined with the physical actions of locking the victim in a confined space and covering her mouth.
However, the reactions of the victims in these cases confirm that minimal or no physical resistance is required in face of threats, as expected from the discussion of threat in commentaries which does not require resistance unlike tangible coercion. Thus, the courts take a wide view of threats in line with the legal literature rather than impose a narrow standard. This is consistent with the reasonable interpretative tendency of the courts in determining the scope of violation of honour.
620 R v al-Shawwā 1966/116 (Court of Cassation). 621 R v ṢD (n 577). 622 R v KhʿSh (n 589). 623 R v al-ʿAbūs (n 496). 624 R v al-ʿUmr (n 573).
242
Further, several recent cases address acts that do not constitute coercion or threats. Although they do not contain difficult facts that would delineate the precise limits of coercion, they reinforce the broad boundaries of consent. In one case, the complainant and accused would travel together to places such as Dubai and China and would engage in consensual intercourse. However, after sharing pictures and videos of herself naked, despite the absence of threats by the accused to share the images, the complainant feared exposure and filed a rape complaint so that the electronic material would be seized. Acquitting the accused, the court found that the intercourse took place with the consent (riḍā) of the complaint, who was an adult, without force (ʿunf) or threat.625 In another case, fear of repercussions from pregnancy and childbirth out of wedlock did not constitute a threat nor retroactively vitiate the complainant’s consent to intercourse.626 Therefore, the existence of socially ruinous material provided freely by the complainant or potential social repercussions from a consensual act do not constitute a threat within the meaning of s. 292.
There is comparatively little material on deception and trick compared to coercion and threat. The legal literature, which considers these terms in tandem with little differentiation between them, mentions that they incorporate situations where the woman would not have agreed to intercourse had she not been led into error.627 This includes scenarios such as pretending to be the victim’s husband, a man not informing his ex-wife that he has irrevocably divorced her, and a doctor having intercourse with a woman while purportedly examining her.628 These situations are reminiscent of some aspects of doubt (shubha) in Islamic jurisprudence. However, unlike Islamic legal texts which focus on the man’s belief, Jordanian discussions of deception and trick focus on the female’s perception since rape is a crime against the woman rather than an excuse from an illicit act.
There is only one relevant case on tricks and deception in the sample, which is a jurisdictional dispute between the Grand Criminal Court and the Court of First Instance over a potential rape case. In ruling on the matter, the Court of Cassation stated that if it is established that the marriage contract between the complainant and (potential) accused was forged, the act of intercourse would come under s. 292 considering that it took place by trickery (taḥāyul).629 The court’s reasoning is
625 R v Shukrī (n 570). 626 R v ʿAbd al-Karīm (n 531). 627 Namūr (n 503) 212. 628 ibid 212-14. 629 Re Jurisdictional Dispute (n 509).
243 in harmony with the commentaries which place pretending to be the woman’s husband under tricks and deception, and it provides an example of how this can occur in practice.
5.2 Consent in Violation of Honour Cases
S. 296, which relates to violation of honour against non-consenting majors and minors, as well as s. 299 which concerns violation of honour against minors under 12, mention force (ʿunf) and threat (tahdīd). In contrast to rape, this terminology has been consistent from the inception of the first Criminal Code in 1951 until today. The terms coercion (ikrāh), trick (ḥīla) and deception (khidāʿ) are not used. Most of the discussion below will focus on force rather than threat, as this is the main issue in the case law. However, Namūr’s commentary notes that the concept of threat in violation of honour is equivalent to intangible coercion in rape.630
A judgment from 1986 delineates the notion of force:
This is because the element of force in the crime of violation of honour is fulfilled every time the act took place without the victim’s consent, whether because the accused employed force or threat or other means to control the victim in a manner that negates his consent and overcomes his resistance, or simply by surprising the victim or by taking advantage of an opportunity when the victim is unaware due to insanity, handicap, drugs, sleep or any other reason.
Dhālika li anna rukn al-ʿunf fī jināyat hatk al-ʿirḍ yakūn mutawaffiran kullamā kāna al- fiʿl al-mukawwin li hādhihi al-jināya qad waqaʿa bi ghayr riḍāʾ al-majnī ʿalayhi sawāʾ bi istiʿmāl al-muttaham fī sabīl tanfīdh maqṣidihi wasāʾil al-quwwa aw al-tahdīd aw ghayr dhālika mimmā yuʾaththir fī al-majnī ʿalayhi fa yaʿdum al-irāda wa yafquduhu al- muqāwama aw bi mujarrad mubāghatat al-majnī ʿalayhi aw bi intihāzihi furṣat fuqdān shuʿūrihi immā li junūn aw ʿāha aw li ghaybūba nāshiʾa ʿan ʿaqāqīr mukhaddira aw li ayyi sabab ākhar ka istighrāq fī al-nawm.631
This concept of force, which includes physical force to overcome resistance, threat, catching the victim by surprise or taking advantage of a person who is unaware of his or her surroundings for any reason, is extensive. The phrase “or other means to control the victim” likely covers situations that come under trick and deception for rape, such as a man who pretends to be the woman’s
630 Namūr (n 503) 240. Najm’s commentary, which contains minimal discussion on violation of honour, does not mention threats. 631 R v ʿḤR (n 518). This quote is taken from the re-typed judgment on Qisṭās which is one page only and does not include paragraph numbers or breaks.
244 husband, an inference which is confirmed by Namūr’s criminal law commentary.632 Similar to the legal literature on rape where threat is a branch of coercion, this definition subsumes threat under the broader heading of force even though they are separate elements in the Criminal Code.
The facts of the above case concern a perpetrator who approached an unsuspecting victim and put the victim’s hand on the perpetrator’s penis, resulting in a conviction for violation of honour under s. 296. This confirms the plain meaning of the court’s theoretical discussion, i.e. where there is an element of surprise or catching the victim unaware, no significant physical force needs to be applied on the victim’s body for a conviction. The wide scope of “force” outlined by the court is favourable to victims. Further, it demonstrates an ambitious interpretation of voluntariness not observed in the rape cases, though it is possible that the relatively clear-cut factual scenarios for rape in this sample do not lend themselves to this type of explicit commentary and generous reading by judges.
The issue of surprise recurs in the 2018 case of a child predator who attempted to lure an underage teenage victim via Facebook.633 After informing his family, the victim’s father decided to catch the predator and therefore arranged for the unsuspecting perpetrator to meet the victim. The predator touched the victim’s anus over his clothes before the father and brother had him arrested. At trial, the perpetrator was acquitted of violation of honour under s. 296 on the basis that his actions were reasonably foreseeable to the victim and instead convicted of violation of honour of a minor under s. 298 without force or threat. Despite reaching the opposite result, the reasoning is consistent with the concept of surprise in the previously cited judgment.
Another 2018 decision demonstrates the related concept of taking advantage of an opportunity when the victim is unaware, also included in the meaning of force in the definition above.634 In that case, a brother sexually abused his 14-year-old sister by pulling down her pants and underwear while she slept and placing his penis on her anus. The court convicted him of violation of honour by force or threat under s. 296. Although the judges could have used s. 297, which concerns
632 Namūr (n 503) 240, 243. He does not comment specifically on the definition from this case but mentions generally that anything that nullifies volition for rape also nullifies volition for violation of honour. He also mentions a case where a man was found guilty of violation of honour for sexually touching a woman while pretending to use jinn (spirits) to cure her of barrenness. 633 R v al-Ṭiwāl (n 515). 634 R v AF (n 578).
245 violation of honour of minors without force or threat, they implicitly accepted that violating an unconscious victim without physical coercion comes within the meaning of “force” in s. 296.
Nonetheless, there is case from 2018 that provides a narrower definition of force:
Judgments from the Court of Cassation have confirmed that the meaning of force in this section is that force emanating from the perpetrator which accompanies the lewd act that causes the victim to take part in and submit to the sexual act against his will. The meaning of this is that the perpetrator does acts of a forceful nature to obtain the victim’s compliance against his will so that he can do lewd acts. In contrast, when the act took place voluntarily, this does not constitute the crime of violation of honour punishable by s. 296(1) of the Criminal Code.
Akkada al-ijtihād al-qaḍāʾī li maḥkamat al-tamyīz anna mafhūm al-ʿunf al-maqṣūd bi mūjab hādhā al-naṣṣ huwa al-ʿunf alladhī yurāfiq al-fiʿl al-fāḥish bi ḥaythu yukhḍiʿ al- ḍaḥiyya li’l-mumārasāt al-jinsiyya min qibal al-fāʿil wa yadhʿan lahā dūn irādatihi. Wa maʿnā hādhā an taṣdur ʿan al-fāʿil aʿmāl ṭābiʿuhā al-ʿunf min ajl ikhḍāʿ al-ḍaḥiyya wa kasr irādatihā bi ḥaythu yatamakkan min itmām afʿālihi al-fāḥisha. Wa bi khilāf dhālika wa ḥīn yakūn al-fiʿl qad tamma bi irādat al-shakhṣ fa lā nakūn bi ṣadad jarīmat hatk al- ʿirḍ al-muʿāqab ʿalayhā bi’l-mādda 296(1) ʿuqūbāt.635
Unlike the preceding definition, this conception only includes physical force to overcome the victim’s resistance and does not include catching the victim by surprise or taking advantage of situations when he or she is mentally unaware. However, given the inclusion of surprise and catching the victim unaware in many other cases, including cases from the same time period as this narrower definition, it is probable that the court is commenting on the type of force relevant to the factual situation at hand rather than restricting the meaning to exclude surprise and mental incapacity in other cases. This is further supported by the contemporary commentaries which include surprise and lack of awareness within the meaning of force.636
As for the use of physical force to overcome the victim’s resistance, many judgments provide practical illustrations. Among these is a case where the accused threw his female victim on the floor, hit her and tried to remove her clothes while she resisted and screamed then put his hands on her breasts and vaginal area.637 In another case, the perpetrator prevented the male victim from escaping then grabbed him and forced his mouth to touch the accused’s clothed but erect penis.638
635 R v Ṣundūqa (n 571) page 6. 636 Namūr (n 503) 240, 243. 637 R v KhʿSh (n 589). 638 R v Ṭabīla (n 514).
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As with rape, the twinning of physical force with resistance seems to impute voluntariness to victims who fail to resist despite not wishing to engage in the sexual act. Unfortunately, there are no cases in the sample that include a claim of non-consent by a victim who did not physically resist and whose circumstances do not fall under surprise or lack of mental awareness. On the other hand, the broad judicial interpretation of the concept of force in violation of honour opens the possibility of a nuanced interpretation of physical force and resistance in relevant fact situations and/or to an evolution in the law to account for situations where lack of resistance does not truly equal consent.
Civil Compensation
The civil claims for compensation are all from recent times. As stated above, until 2017 victims would be asked to claim or relinquish their personal right to compensation within the criminal trial, and all victims would routinely relinquish their claims unless they were minors. Further, underage victims who could not legally relinquish their right would nonetheless abstain from claiming it. However, since 2017 victims of sexual offences wait until the end of the criminal trial after which they may choose to bring separate civil proceedings for compensation.
I was able to locate four civil claims for damages for sexual offences since 2017, one related to rape and violation of honour, and the other three related to violation of honour only.639 While it is likely that some civil claims that were not appealed beyond the Court of First Instance did not appear in the search results in Qisṭās, the overall paucity of results indicates that claims for damages from sexual violence were still quite rare following the change. Nonetheless, that these four cases exist at all is a small yet noticeable change from preceding years.
These cases provide insight into the initial approach of Jordanian courts to financial compensation for victims of sexual crimes. So far, judges are willing to rule in the victim’s favour and to grant
639 I also found a fifth case which concerns a claim by the victim’s relatives. The victim died after the defendant violated her honour then suffocated her while trying to hide his crime. However, the claim appears to relate primarily to the victim’s death rather than violation of honour. See: al-Khilsha v Malāwī 2018/1391(Court of Cassation). Also note that I had access to Qisṭās towards the end of 2018. As such, I do not know whether the number of civil claims increased in 2019-2020.
247 relatively generous awards. The discussion below will begin with the damage award for the combined rape and violation of honour case followed by the three claims for violation of honour.
6.1 Claim for Rape and Violation of Honour Combined
The decision in this case is from the Court of Appeal.640 According to the court’s finding of facts, the plaintiff, who was studying medicine, lived in a dormitory for female students. She chose this residence after being assured of its safety and its use of monitoring services. One night, she awoke to find a man in her room. As the man attacked her, her screams woke other members of the residence who gathered outside her room along with the guard and dormitory supervisor. However, the latter two sent the residents away and delayed calling the police. During the intervening half hour before the police arrived, the intruder raped the plaintiff, beat her and performed other sexual acts. In the criminal trial, the assailant was convicted of rape and violation of honour.
In the civil proceedings, the plaintiff sued the attacker as well as several people associated with the residence, including the owner, the guard and the supervisor. At trial, the judge granted judgment against the attacker in the sum of 250,000 Jordanian Dinars (JD) (approximately $500,000 CAD) while dismissing the case against the remaining defendants. However, the Court of Appeal allowed the plaintiff’s appeal and granted damages of 250,000 JD against the defendants jointly on the basis that they all deviated from the standard of a reasonable person under s. 256 of the Civil Code. The judgment does not specify the heads of damages.
The Court of Appeal focuses its discussion on the owner of the dorm, explicitly looking for deeper pockets to fulfill the damage award. The judges consider this important since the attacker is in jail and likely does not have money to fulfill the civil judgment. However, the owner’s liability appears to rest on tenuous legal ground. For example, although the judgment mentions that the owner failed to take all measures for the protection of travellers or patrons incumbent on him under a law governing hotels and tourist buildings, the infringements are not specified. Instead of explaining this key finding, the judgment immediately turns to the issue of deep pockets. Further, while the decision later states that the owner did not fulfill his duty to guard, it does not address
640 AN v al-Qawāsama 2017/37400 (Court of Appeal).
248 the fact that there was a guard onsite (it is also unclear if this is related to the previously mentioned law governing hotels or a separate obligation).
While it is possible that there are further arguments supporting the court’s decision that are not included in the written judgment, the text gives the impression that the judges are grasping at pretexts to hold the owner liable so that the victim can access deep pockets.641 If this is accurate, this case is the only example of judges significantly pushing the boundaries of the law to reach a result that they feel is morally justified yet legally questionable. Further, the award of 250,000 JD, awarded at trial and upheld on appeal, is extraordinarily high relative to the cost of living in Jordan. The generous award at both levels, as well as the Court of Appeal’s concern for the plaintiff’s ability to recover and apparent willingness to stretch the limits of the law to facilitate this, bode well for victims of sexual crimes. Nonetheless, the particularly egregious circumstances of this case dictate caution in generalizing this result to other sexual violations.642
6.2 Claims for Violation of Honour
The three civil claims for violation of honour include one case from the Court of Cassation, which contains minimal information in the written judgment, and two more detailed decisions from the Court of Appeal. The Court of Cassation judgment resulted in an award of 7100 JD (approximately $14,000 CAD).643 The short written decision mentions lost income as well as reputational damage suffered by the plaintiff after news of the incident spread around town.
One of the cases from the Court of Appeal is a claim for damages by the seven-year-old victim’s mother and father.644 The defendant was found guilty of violation of honour during prior criminal
641 Perhaps the owner could be held vicariously liable for the shortcomings of his staff who failed to call the police immediately. This argument is not present in the judgment and I am not sure how vicarious liability works in Jordan. Instead, the judgment addresses the opposite issue, i.e. the liability of the staff due to their being under the owner’s authority. Further study of the Jordanian principles of joint tort liability and the strict liability of property owners would also be helpful to place this decision in its broader context and could change the tentative conclusions presented here. In addition, as written Jordanian judgments do not typically contain as much detail as written Canadian court decisions, it is impossible to determine with certainty whether the owner specifically represented that his building was secure and the defendants’ version of why the guard did not break down the door or take other action. 642 There is also some question of whether the plaintiff’s status as a medical student may have influenced the award, particularly as it can indicate an upper-class background or family connections. However, this cannot be confirmed from the content of the written judgment. 643 ʿAY v al-Khalaf 2018/1602 (Court of Cassation). 644 ʿAʿA v al-Shīshānī 2018/35508 (Court of Appeal).
249 proceedings although the details of the crime are not set out. The claim for compensation rests on several grounds: first, the attack greatly affected the son, as he became withdrawn, his grades fell and his social status suffered since friends, relatives and neighbours all knew of the incident. Second, the mother was admitted to hospital following a nervous breakdown. Third, the father had to close his store and sell it to attend court, pay legal fees, and due to the reputational damage from neighbours finding out about the incident. While the decision mentions that the parents sought 3000 JD (roughly $6000 CAD) in pecuniary and general damages (aḍrār māddiyya and maʿnawiyya) and it is clear that some amount was awarded, the sum is not mentioned.
In the second Court of Appeal decision, the defendants blocked the male victim’s vehicle then beat him, threatened him with weapons and violated his honour.645 The defendants were convicted of violation of honour in the criminal proceedings. At the civil trial, the judges awarded the victim damages of 5000 JD against each of the four defendants, resulting in a total award of 20,000 JD (approximately $40,000 CAD) for pecuniary and general damages. Unfortunately, the basis for this award is not mentioned in detail. The judgment only states that news of the attack spread, i.e. there was reputational damage, and the total award was determined by expert evidence.
Reputation is a key element in all three cases. This common basis for damages indicates that reputational harm is likely a typical result of sexual violation in the Jordanian context. The desire to retain one’s reputation in the eyes of family members, friends and the broader community by hiding the assault or minimizing the attention it receives may also be a deterrent from pressing criminal charges and/or proceeding with a claim for civil compensation, particularly where the crime was committed in a private setting. Nonetheless, as seen above, the court is willing to entertain claims for both pecuniary and non-pecuniary damages on multiple grounds. In doing so, the court is treating violation of honour as an offence resulting in multi-faceted harm against an individual victim.
Although the violation of honour awards are not negligible by local standards, they are far below the award in the rape case. While the facts of the latter case were particularly egregious, the gap between that award of 250,000 JD (approx. $500,000 CAD) and 20,000 JD (approx. $40,000 CAD) in the case of violation of honour where the male victim was beaten, threated with weapon and violated by a gang of men nonetheless seems overly large. As more civil cases for sexual
645 MQ v al-Zawāhira 2017/17276 (Court of Appeal).
250 violation come before the courts in the coming years, it would be worthwhile exploring whether judges tend to downplay violation of honour compared to rape, even when the violation is serious, or whether there is a gender bias that results in lesser awards for male victims.
Summary
Although Jordan’s legislative framework considers rape, violation of honour and other sexual offences as crimes against honour, the impact of the moral framing has decreased in recent years, such that the legislation, case law and commentaries mainly treat sexual violations as offences against individuals. As such, rape is separate from adultery and fornication, sentencing corresponds in part to the characteristics of the individual victim, and victims may bring civil claims under various heads of pecuniary and non-pecuniary damages.
While Jordan is a Muslim-majority country, the sources in this project indicate that there is a substantial disconnect between the Jordanian and Islamic legal treatment of sexual offences. This is evident in their broad approaches, as Jordanian law emphasizes the individual victim in sexual violations whereas Muslim jurists focus on the divine transgression. The disconnect is also apparent in the details of the law. Further, preliminary consideration of Ottoman sources does not significantly alter the conclusion of a disjuncture. Although Islamic concepts are not completely absent from sexual offence trials in Jordan, consideration is limited to tertiary matters, such as the meaning of “relative” (maḥram) under aggravating factors for sentencing.
Further, the Jordanian legislator and the courts appear to work in harmony in the area of sexual offences. Within the written record considered in this project, there is little evidence of judges bypassing the Code in favour of extraneous social or religious considerations, with the potential exception of over-eagerness to entertain calumny charges and possible inappropriate pressure on victims to abandon their personal right prior to amendment. However, the recent civil claims, all of which resulted in non-negligible damage awards, indicate receptiveness towards victims. Further, recent evolutions to the law itself, such as decreased gendered distinctions, also appear favourable to victims. Nonetheless, areas for improvement remain, such as addressing the lower boundary of coercion for rape and violation of honour that likely excludes some situations of non- consent.
251
Although the conclusions regarding Jordan are tentative, this initial overview of the Jordanian legal approach to sexual violation is a substantial step toward understanding the current state of the law on sexual violence in the Muslim world and how it relates to and/or differs from Islamic jurisprudence. Future studies can test the initial conclusions presented here through consideration of additional sources, as well as examine the situation in other contemporary Muslim-majority jurisdictions.
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Conclusion
Popular discourse about Islamic law often lacks nuance. On one hand, gross generalizations of Islam as backward, barbaric and misogynist are apparent in online comment sections and certain other forms of media. On the other hand – despite being significantly less problematic than the first group – Muslim discourse often paints a romantic notion of pre-modern doctrines and propagates the idea that contemporary problems can be solved simply by applying those laws today.
However, neither viewpoint accurately captures Muslim jurists’ approach to sexual violence. Contrary to the romantic belief, the doctrines in Islamic jurisprudence heavily conflict with commonly accepted standards today. Allowing rapists to escape prosecution, silencing the victim by threatening slander and the general inaccessibility of financial compensation are among such issues. However, proponents of gross generalizations fail to recognize that these laws stem from a particular context. By placing aside a Canadian twenty-first century lens of non-consensual sexual acts as an affront against an individual and viewing sexual transgressions as an impingement on divine boundaries, the doctrines can be understood as a coherent system intended to uphold shared expectations of earlier communities.
While the framing of illicit sex as a religious transgression that does not harm an involuntary participant rationalizes the rules, it also dictates caution in implementing these doctrines in a society with a completely different view of the nature of sexual crimes. Despite the possibility of modifying certain issues to conform to contemporary ideas while remaining faithful to the moral worldview of the pre-modern jurists, such as amendments to the gendered rules that place higher burdens on male victims, maintaining the overall framework that considers rape primarily as illicit sex that transgresses against God’s prohibition on zinā would make it difficult to fully reconcile historical and present-day expectations.
Moreover, although alternate rape doctrines align more closely with modern expectations, neither the outcomes nor the theory underpinning them are fully coherent with a conception of sexual violence as a crime against an individual person. Property notions focus on a limited transgression against the woman’s ownership of her sexual organs while banditry re-introduces notions of divine rights. In their original context, these concepts are novel interpretations of the law that benefit the
253 victim. However, in a modern Muslim society that upholds broad notions of harm against an individual victim, the historical approaches are wanting. Absent secularization, the most sensible choice appears to be novel legal reasoning (ijtihād) on sexual offences, as well as the scope of compensation in Islamic tort law, to produce outcomes consistent with the general principles of Islamic jurisprudence and present-day understandings of sexual violation.
For its part, Jordan has adopted a secular approach to sexual violence that bears little relationship to Islamic jurisprudence. Despite maintaining a moral element, societal expectations that may be distinct from religion, such as resolving the crime through marriage, inform this aspect. Further, evolutions in the law, particularly the repeal of s. 308 and the separation of criminal trials from civil claims for damages for sexual offences, have decreased the moral slant of the law in the legislation and courts, while increasing the emphasis on sexual violence as an offence against an individual. The continued evolution of sexual offences in Jordan, not just in substantive doctrines but also in framing, will be an area to watch in coming years.
The case law sample from Jordan includes victims that are male and female, a medical student and domestic workers, children and adults, and people attacked by strangers as well as victims violated by relatives they thought they could trust. Unfortunately, sexual violence is widespread and requires efforts both inside and outside of the legal system to address it. While there is no perfect solution, this dissertation highlights the need to choose a legal framework that is responsive to the needs of the society and justice for victims, and to structure legal doctrines, such as the scope of coercion, to adequately respond to these issues. In the context of a modern Muslim society responding to sexual violence, just as important as the prohibition on zinā, mentioned only a few times in scripture, is upholding the oft-recurring commands of justice and fairness (ʿadl/qisṭ) towards all.
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Al-Suyūṭī ʿA, al-Ḥāwī li’l Fatāwā (Dār al-Fikr 2004) d) Islamic Law – Miscellaneous:
Al-Bayhaqī A, al-Sunan al-Kubrā (M ʿAṭā ed, Dār al-Kutub al-ʿIlmiyya 2003) e) Jordanian Legislation:
Qānūn al-Aḥdāth n 32 2014
258
Al-Qānūn al-Madanī n 43 1976
Qānūn Maḥkamat al-Jināyāt al-Kubrā n 19 1986
Qānūn Muʿaddil li Qānūn al-ʿUqūbāt n 27 2017
Qānūn Muʿaddil li Qānūn al-ʿUqūbāt n 8 2011
Qānūn Muʿaddil li Qānūn al-ʿUqūbāt n 86 2001
Qānūn Muʿaddil li Qānūn al-ʿUqūbāt n 9 1988
Qānūn Muʿaddil li Qānūn al-ʿUqūbāt n 15 1971
Qānūn Muʾaqqat Muʿaddil li Qānūn al-ʿUqūbāt n 12 2010
Qānūn al-ʿUqūbāt n 85 1951
Qānūn al-ʿUqūbāt n 16 1960
Qānūn Uṣūl al-Maḥkamāt al-Jazāʾiyya n 9 1961 f) Jordanian Case Law:
Note: Jordanian convention omits the parties in case law citations. The parties have been added for ease of reference; however, the vocalization of some names is approximate. In some cases, only initials are available, or initials have been substituted to protect the identity of the complainant.
Criminal Cases:
R v ʿAbd al-Karīm 2017/1464 (Court of Cassation)
R v ʿAbd Rabbih 2018/992 (Court of Cassation)
R v Abū Dalbūḥ 2018/1271 (Court of Cassation)
R v al-ʿAbūs 2018/716 (Court of Cassation)
R v AF 2018/1437 (Court of Cassation)
R v ʿAjrāmī 1956/101 (Court of Cassation)
R v al-ʿAlī 1958/67 (Court of Cassation)
R v ʿArīqāt 2017/1597 (Court of Cassation)
R v ʿAwda 2018/1263 (Court of Cassation)
259
R v BJS 1985/124 (Court of Cassation)
R v Dawlah 1955/2 (Court of Cassation)
R v Dāwūd 1957/81 (Court of Cassation)
R v al-Ḥijāzī 1959/69 (Court of Cassation)
R v ḤM 1985/138 (Court of Cassation)
R v HMF 1985/81 (Court of Cassation)
R v ʿḤR 1986/42 (Court of Cassation)
R v Ibrāhīm 2018/1702 (Court of Cassation)
R v ʿIzām 2018/646 (Court of Cassation)
R v JMʿ 1985/230 (Court of Cassation)
R v al-Khaṭīb 1959/28 (Court of Cassation)
R v KhʿSh 1985/127 (Court of Cassation)
R v Manīzil 2017/1491 (Court of Cassation)
R v Manīzil 2017/344 (Grand Criminal Court)
R v ʿMB 1985/152 (Court of Cassation)
R v al-Qāsim 1952/18 (Court of Cassation)
R v RR 1987/177 (Court of Cassation)
R v Salwān 1957/24 (Court of Cassation)
R v al-Samān 1959/47 (Court of Cassation)
R v al-Sarādīj 1957/73 (Court of Cassation)
R v ṢD 1987/136 (Court of Cassation)
R v SḤ 1987/149 (Court of Cassation)
R v al-Shawwā 1966/116 (Court of Cassation)
R v al-Shirmān 2018/1569 (Court of Cassation)
260
R v Shukrī 2018/205 (Court of Cassation)
R v Ṣundūqa 2018/692 (Court of Cassation)
R v Ṭabīla 2018/683 (Court of Cassation)
R v Ṭashṭūsh 2018/276 (Court of Cassation)
R v al-Ṭiwāl 2018/969 (Court of Cassation)
R v al-ʿUmr 2018/283 (Court of Cassation)
R v Yāsīn 1958/63 (Court of Cassation)
Jurisdictional Matters:
Re Jurisdictional Dispute 2017/1708 (Court of Cassation)
Civil Cases:
ʿAʿA v al-Shīshānī 2018/35508 (Court of Appeal)
AN v al-Qawāsama 2017/37400 (Court of Appeal)
ʿAY v al-Khalaf 2018/1602 (Court of Cassation)
Al-Khalāyila v NM 2009/54094 (Court of Appeal)
Al-Khaṭīb v al-Shāwīsh 2017/4767 (Court of Cassation)
Al-Khilsha v Malāwī 2018/1391 (Court of Cassation)
Al-Khilsha v Malāwī 2017/12792 (Court of Appeal)
MQ v al-Zawāhira 2017/17276 (Court of Appeal) g) Miscellaneous Legislation:
Criminal Code RSC 1985 c C-46 [Canada]
Criminal Code Act 1899 [Queensland, Australia]
Ottoman Penal Code 1858 (Bucknill and Utidjian translation 1913)
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Appendix: Arabic Text of the Jordanian Criminal Code
Below is the in-force Arabic text of the relevant portions of Jordan’s Criminal Code:
الباب السابع في الجارئم المخمة باالخالق واآلداب العامة الفصل االول في االعتداء على العرض
1. االغتصاب ومواقعة القاصر
المادة 292
1. أ. من واقع انثى )غير زوجه( بغير رضاها سواء باالكراه او التهديد او بالحيلة او بالخداع عوقب باالشغال المؤقتة مدة ال تقل عن خمس عشرة سنة.
ب. وتكون العقوبة األشغال عشرين سنة إذا كانت المجني عليها قد أكملت الخامسة عشرة ولم تكمل الثامنة عشرة من عمرها.
2. كل شخص اقدم على اغتصاب فتاة لم تتم الخامسة عشرة من عمرها يعاقب باالعدام.
المادة 293
من واقع انثى ) غير زوجه ( ال تستطيع المقاومة بسبب ضعف او عجز جسدي او نفسي او عقلي يعد مرتكبا للجرم المنصوص عليه في المادة ) 292 ( من هذا القانون ويعاقب بالعقوبة المنصوص عليها فيها.
المادة 294
1. من واقع انثى )غير زوجه( اكملت الخامسة عشرة ولم تكمل الثامنة عشرة من عمرها عوقب باالشغال المؤقتة مدة ال تقل عن سبع سنوات.
2. وإذا أكملت المجني عليها الثانية عشرة ولم تكمل الخامسة عشرة من عمرها فيكون الحد األدنى للعقوبة خمس عشرة سنة.
3. وإذا لم تكن المجني عليها قد أكملت الثانية عشرة من عمرها فيعد مرتكبا للجرم المنصوص عليه في الفقرة )2( من المادة )292( من هذا القانون ويعاقب بالعقوبة المنصوص عليها فيها.
269
المادة 295
1. أ. من واقع انثى اكملت الخامسة عشرة ولم تكمل الثامنة عشرة من عمرها وكان الجاني احد اصولها سواء كان شرعيا او غير شرعي أو واقعها احد محارمها او من كان موكال بتربيتها او رعايتها او له سلطة شرعية او قانونية عليها عوقب باالشغال عشرين سنة.
ب. وتكون العقوبة األشغال المؤبدة إذا أكملت المجني عليها الثانية عشرة ولم تكمل الخامسة عشرة من عمرها.
ج. إذا كان للجاني والية على المجني عليها، فيحرم من هذه الوالية.
2. ويقضي بالعقوبة ذاتها المقررة في الفقرة السابقة اذا كان الفاعل رجل دين او مدير مكتب استخدام او عامال فيه فارتكب الفعل مسيئا استعمال السلطة أو التسهيالت التي يستمدها من هذه السلطة.
2. هتك العرض
المادة 296
1. كل من هتك بالعنف او التهديد عرض إنسان عوقب باألشغال مدة ال تنقص عن أربع سنوات.
2. ويكون الحد األدنى للعقوبة خمس سنوات إذا كان المجني عليه قد أكمل الخامسة عشرة ولم يكمل الثامنة عشرة من عمره.
3. ويكون الحد األدنى للعقوبة سبع سنوات إذا كان المجني عليه قد أكمل الثانية عشرة ولم يكمل الخامسة عشرة من عمره.
المادة 297
يعاقب باالشغال المؤقتة من هتك عرض انسان ال يستطيع المقاومة بسبب عجز جسدي او نقص نفسي او بسبب ما استعمل نحوه من ضروب الخداع اوحمله على ارتكابه.
المادة 298
1. كل من هتك بغير عنف او تهديد عرض ولد – ذكرا كان او انثى – أكمل الخامسة عشرة ولم يكمل الثامنة عشرة من عمره او حمله على ارتكاب فعل هتك العرض يعاقب باالشغال المؤقتة مدة ال تزيد على عشر سنوات .
2. ويكون الحد األدنى للعقوبة خمس سنوات إذا كان المجني عليه قد أكمل الثانية عشرة ولم يكمل الخامسة عشرة من عمره .
المادة 299
كل من هتك بعنف أو تهديد أو بدونهما عرض ولد – ذكرا كان أو أنثى – لم يكمل الثانية عشرة من عمره أو حمله على ارتكاب فعل هتك العرض يعاقب باألشغال المؤقتة مدة ال تقل عن ثماني سنوات .
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أحكام شاملة
المادة 300
تشدد عقوبة الجنايات المنصوص عليها في المواد )292 و 293 و 294 و 296 و 297 و 298 و 299( بحيث يضاف اليها من ثلثها الى نصفها اذا كان المتهم احد االشخاص المشار اليهم في المادة )295) .
المادة 301
1. تشدد عقوبة الجنايات المنصوص عليها في النبذتين السابقتين من الفصل األول هذا ، بحيث يضاف اليها من ثلثها إلى نصفها:
أ. اذا اقترفها شخصان او اكثر في التغلب على مقاومة المعتدى عليه او تعاقبوا على إجراء الفحش به.
ب. إذا أصيب المعتدى عليه بمرض جنسي او كانت المعتدى عليها بكرا فأزيلت بكارتها .
2. اذا أدت احدى الجنايات السابق ذكرها الى:
أ. موت المعتدى عليه ولم يكن الفاعل قد اراد هذه النتيجة فتكون العقوبة األشغال المؤقتة مدة خمس عشرة سنة.
ب. اصابة المعتدى عليه بمرض نقص المناعة المكتسب ومع علم الفاعل باصابته بهذا المرض فتكون العقوبة األشغال المؤبدة.
3. الخطف
[…]
4. االغواء والتهتك وخرق حرمة االماكن الخاصة بالنساء
المادة 304
1. كل من خدع بكرا تجاوزت الثامنة عشرة من عمرها بوعد الزواج ففض بكارتها أو تسبب في حملها عوقب – اذا كان فعله ال يستوجب عقوبة اشد – بالحبس من ستة اشهر الى ثالث سنوات ويلزم بضمان بكارتها .
2. االدلة التي تقبل وتكون حجة على المشتكى عليه في الخداع بوعد الزواج هي اعترافه لدى المدعي العام او في المحكمة او أن يصدر عنه وثائق قاطعة أو مراسالت تثبت ذلك .
3. كل من حرض امرأة سواء أكان لها زوج أم لم يكن على ترك بيتها لتلحق برجل غريب عنها او أفسدها عن زوجها الخالل الرابطة الزوجية يعاقب بالحبس مدة ال تقل عن ثالثة أشهر وال تزيد على سنتين.
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المادة 305
يعاقب بالحبس مدة ال تقل عن سنة كل من داعب بصورة منافية للحياء:
1. شخصا لم يكمل الثامنة عشرة من عمره ذكرا كان أو أنثى.
2. شخصا ذكرا كان او انثى اكمل الثامنة عشرة من عمره دون رضا .
المادة 306
يعاقب بالحبس مدة ال تقل عن ستة اشهر كل من عرض فعال منافيا للحياء أو وجه اي عبارات او قام بحركات غير اخالقية على وجه مناف للحياء بالقول او الفعل او الحركة او االشارة تصريحا أو تلميحا باي وسيلة كانت متى وقع االعتداء على :
1. شخص لم يكمل الثامنة عشرة من عمره.
2. شخص ذكر كان أو انثى اكمل الثامنة عشرة من عمره دون رضا .
المادة 307
كل رجل تنكر بزي امرأة فدخل مكانا خاصا بالنساء او امحظور دخوله وقت الفعل لغير النساء ، عوقب بالحبس مدة ال تزيد على ستة اشهر.
أحكام شاملة
المادة 308
ملغاة
الفصل الثاني
في الحض عمى الفجور والتعرض لالخالق واآلداب العامة
[…]
المادة 320
1. يعاقب بالحبس مدة ال تزيد على سنة وبغرامة مقدارها مائتا دينار كل من فعل فعال منافيا للحياء او ابدى اشارة منافية للحياء في مكان عام او في مجتمع عام او بصورة يمكن معها لمن كان في مكان عام ان يراه.
2. تضاعف العقوبة اذا اقترف الفعل المنصوص عليه في الفقرة ) 1( من هذه المادة من اكثر من شخص أو في حالة التكرار.
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