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does Islam equate sex and rape? (Read 78915 times)

freediver

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Re: does Islam equate sex and rape?
Reply #210 - Aug 24^th, 2013 at 12:45pm

Quote:

"Islam" is an all encompassing term, it is not specific enough to refer only to the koran and hadith. You were not referring to islamic doctrine when you made your stupid marital rape case claim - you said "in all islam's history"

Here you go Gandalf:

There is not a single known case, in all of Islam's history, of someone being convicted under Islamic law of raping a woman he was permitted to have sex with (ie a slave or wife).

Do you agree with it now?

How about the rest:

There is not one verse in the Koran or hadith specifically forbidding rape in this context. There is not one verse in the Koran that even distinguishes rape and consensual sex in this context. There are plenty of verses that imply it is only natural for a Muslim man to chop of a non-Muslim man's head then have sex with his wife shortly after. Again, none of these verses even mention consent. All the other principles support the view that rape is indeed legal in these contexts - eg sex is a man's right and a woman's duty.

The one verse you have given as evidence of rape being forbidden in other contexts does not even use the word rape to describe the crime that was committed or the crime that was punished. The man was stoned to death for having sexual intercourse. The fact that the woman was raped appears to be inconsequential.

Other than not punishing the victim, there is nothing at all in Islamic law that recognises the consent of the woman involved as having any relevance at all.

All good?

Quote:

Right. You just don't have any evidence that was the case.

Yes I do. It is what the verse says. What other evidence could there be?

Quote:

And in spite the fact that the entire hadith is all about describing a woman who was assaulted, and the punishment that is specific to that context

But you were just insisting that it applies in all contexts. You can't have it both ways Gandalf. You cannot argue it is a general rule to be applied in all cases of rape - including the context where Islam specifically permits sex and where orthodox doctrine says rape is not a punishable offence - then when it is convenient argue the exact opposite, that it is specific to the context given.

At least, not if you want people to take you seriously as arguing honestly and in good faith.

People who can't distinguish between etymology and entomology bug me in ways I cannot put into words.

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polite_gandalf

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Re: does Islam equate sex and rape?
Reply #211 - Aug 24^th, 2013 at 5:01pm

freediver wrote on Aug 24^th, 2013 at 12:45pm:

There is not a single known case, in all of Islam's history, of someone being convicted under Islamic law of raping a woman he was permitted to have sex with (ie a slave or wife).

OK, next task for you FD - define "islamic law". Maybe if we keep deconstructing this for another 10 pages you might finally understand what a ridiculous and meaningless idea this is. But I'd doubt it.

Its just such a dumb thing to say - that in the entire 1400 years of its existence, not a single islamic court has ever passed sentence on a man for assaulting his wife in the form of forced sex. And no, I'm not going to go attempting to dig up something that was likely never even documented. Its possible that it has never happened, but its extremely unlikely.

freediver wrote on Aug 24^th, 2013 at 12:45pm:

There is not one verse in the Koran that even distinguishes rape and consensual sex in this context.

no, there's just a hadith that forbids rape in all contexts.

freediver wrote on Aug 24^th, 2013 at 12:45pm:

The one verse you have given as evidence of rape being forbidden in other contexts does not even use the word rape

If you really believe that a description of a man being sentenced for assaulting, overpowering and forcing a woman to have sex with him does not apply to rape because such a description leaves out the word "rape", then good for you. Its not logical or rational though.

Imagine a law in a hypothetical non-muslim society that stated something along the lines of "if a woman is taken by force by a man and assaulted, and forced to have sex with him - he shall be given x sentence". Presumably in FD world, a person being convicted on such a charge can legitimately argue "oh but your honour! - I cannot be convicted of rape, because the wording of that law doesn't mention the word rape!". "Very well, douchebag, you are hereby convicted of assaulting a woman and forcing her to have sex with you". "Thank You your honour, thats better".

How does that work for you FD? Is it ok for a person to be convicted of overpowering and forcing her to have sex with him against her will - as long as the word "rape" isn't mentioned in the charge?

freediver wrote on Aug 24^th, 2013 at 12:45pm:

there is nothing at all in Islamic law that recognises the consent of the woman involved as having any relevance at all.

Apart from the whole assault and taking her by force thing.

freediver wrote on Aug 24^th, 2013 at 12:45pm:

Yes I do. It is what the verse says. What other evidence could there be?

The verse does not say that the man was being punished for having sex outside marriage, you're just making that up. It does however say "He said to the man who had attacked her, 'Condemn him'". Think about it FD - a sentence was passed on the man who attacked her. Thats a funny way of saying "you are being punished for having unlawful sex" There is not even any mention of the man's relationship to the woman - he could have been her husband ffs - or his slave. It doesn't say because *ALL* scenarios of rape - err sorry "forced sex" are applicable.

freediver wrote on Aug 24^th, 2013 at 12:45pm:

But you were just insisting that it applies in all contexts. You can't have it both ways Gandalf.

Reading comprehension again FD. The context of rape - all rape. *NOT* the context of sex outside marriage.

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Outlawing the enemy's uniform - hijab, islamic beard - is not depriving one's own people of their freedoms.

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freediver

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Re: does Islam equate sex and rape?
Reply #212 - Aug 24^th, 2013 at 6:34pm

Quote:

That is not what I am saying. What I am saying is that it only applies to rape in the context of sex that is forbidden in Islam.

Quote:

Imagine a law in a hypothetical non-muslim society that stated something along the lines of "if a woman is taken by force by a man and assaulted, and forced to have sex with him - he shall be given x sentence".

Can you tell the difference between a precedent and a statute? What you are describing is a statute. The example you gave is a precedent. A precedent always comes with context.

Quote:

Presumably in FD world, a person being convicted on such a charge can legitimately argue "oh but your honour! - I cannot be convicted of rape, because the wording of that law doesn't mention the word rape!". "Very well, douchebag, you are hereby convicted of assaulting a woman and forcing her to have sex with you". "Thank You your honour, thats better".

How about "you are hereby convicted of having sexual itnercourse?" I know it is absurd, but it is Islamic law that is absurd, not my interpretation of it.

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Apart from the whole assault and taking her by force thing.

Wrong Gandalf. Not even that recognises the consent of the woman involved as having any relevance.

Quote:

The verse does not say that the man was being punished for having sex outside marriage, you're just making that up.

You are just making up the bit about him being punished for the rape rather than the sex. Let's take another look at what the hadith actually says:

He (the Prophet) said to her: Go away, for Allah has forgiven you. But he told the man some good words (AbuDawud said: meaning the man who was seized), and of the man who had had intercourse with her, he said: Stone him to death.

Just to be clear, I am not saying this hadith resolves the issue one way or the other. You are. You are reading into it something that is not actually there. It is your evidence, not mine.

Quote:

Thats a funny way of saying "you are being punished for having unlawful sex"

Here it is again for you Gandalf:

He (the Prophet) said to her: Go away, for Allah has forgiven you. But he told the man some good words (AbuDawud said: meaning the man who was seized), and of the man who had had intercourse with her, he said: Stone him to death.

Do you agree that the punishment handed out could be identical to the appropriate Islamic punishment for consensual sex in the same context?

Quote:

There is not even any mention of the man's relationship to the woman - he could have been her husband ffs - or his slave.

Do you really think that is likely? Here it is again for you Gandalf:

When a woman went out in the time of the Prophet (peace_be_upon_him) for prayer, a man attacked her and overpowered (raped) her.

Does that really sound like a husband attacking his wife? Who in their right mind would interpret it that way?

Quote:

It doesn't say because *ALL* scenarios of rape - err sorry "forced sex" are applicable.

Sounds like circular reasoning to me Gandalf. Rape is forbidden in all contexts, therefor you can interpret this hadith as banning rape in all contexts, therefor rape is banned in all contexts, based on this one piece of evidence.

People who can't distinguish between etymology and entomology bug me in ways I cannot put into words.

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Baronvonrort

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Re: does Islam equate sex and rape?
Reply #213 - Aug 24^th, 2013 at 6:59pm

polite_gandalf wrote on Aug 24^th, 2013 at 5:01pm:

The man was convicted because he confessed to zina, there is no way he could be convicted on the word of 1 woman, if he denied it how could it be proven?
www.sunnah.com/bukhari/52/22
Why is the word of a woman equal to half that of a man,is this the type of rights Islam gave women?

I prefer to live in a society where the woman does not need 4 male witnesses for a conviction if the attacker denies the charges,i prefer more modern laws that reflect reality.
www.islamqa.com/en/88051

Leftists and the Ayatollahs have a lot in common when it comes to criticism of Islam, they don't tolerate it.

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polite_gandalf

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Re: does Islam equate sex and rape?
Reply #214 - Aug 24^th, 2013 at 7:22pm

freediver wrote on Aug 24^th, 2013 at 6:34pm:

Can you tell the difference between a precedent and a statute? What you are describing is a statute. The example you gave is a precedent. A precedent always comes with context.

Perhaps I haven't explained this clearly enough: in islam, precedents are statutes (in so far as islamic doctrine can be considered a legal document). The precedent set by the prophet in his rulngs are considered statutary in islamic law. I suspect this might be where the confusion is coming from - normally in a legal system you have a set of statutes that are supposed to cover everything. Precedent (how a previous court has ruled on a given statute) is used for guiding a court on how to rule on that statute the next time it happens. In islam, what you might term 'statutary' law - namely whats stated in the quran - is not exhaustive, and "precedent" - which is rulings by the prophet on issues not specifically dealt with in the quran - is used to fill in the gaps. They are therefore themselves statutary.

This is why I talk about this ruling in 'statutary' talk, and thats why it makes perfect sense to me that it is (deliberately) non-specific about the type of rape involved - so as to say that ALL rape is forbidden.

A resident Islam critic who claims to represent western values said:
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Outlawing the enemy's uniform - hijab, islamic beard - is not depriving one's own people of their freedoms.

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freediver

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Re: does Islam equate sex and rape?
Reply #215 - Aug 24^th, 2013 at 7:54pm

Gandalf, by insisting that a precedent must be interpretted as broadly as possible, you are turning the principle of halal being default on it's head. It would be no different to insisting that beef is haram because the prophet forbade pig. It relies on you completely ignoring the line that Islam consistently draws between sex with wives and slaves and sex with other women. You have no valid reason to insist the hadith also applies to raping your wife or sex slave, just as you have no valid reason for insisting that a ban on bacon should be applied to beef. It is nothing short of delusional to insist that the guy who was punished might have been the husband or owner of the victim, therefor the precedent must be interpretted in all possible contexts, no matter how little sense it makes.

There is nothing in your explanation of how precedents work in Islamic law that differentiates them from modern concepts of a precedent.

Also, you are still relying on circular reasoning, by insisting that this hadith must apply to rape in all contexts because Islam forbids rape in all contexts, but also using the hadith as the evidence that Islam forbids rape in all contexts.

« Last Edit: Aug 24^th, 2013 at 8:08pm by freediver »

People who can't distinguish between etymology and entomology bug me in ways I cannot put into words.

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polite_gandalf

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Re: does Islam equate sex and rape?
Reply #216 - Aug 24^th, 2013 at 8:51pm

freediver wrote on Aug 24^th, 2013 at 7:54pm:

you are turning the principle of halal being default on it's head. It would be no different to insisting that beef is haram because the prophet forbade pig.

Try again FD. It is specifically stated that you can eat anything except pork (and some other stuff):

Quote:

do not find in that which has been revealed to me anything forbidden for an eater to eat of except that it be what has died of itself, or blood poured forth, or flesh of swine

Presumably this is comparable because the hadith, or some other command from islamic text says "take any woman by force except in the case of it being 'unlawful' sex" right? Tongue

got any more brilliant analogies?

freediver wrote on Aug 24^th, 2013 at 7:54pm:

There is nothing in your explanation of how precedents work in Islamic law that differentiates them from modern concepts of a precedent.

Precedent in common law refers to a past ruling that was based on something (ie a statute). The "precedent" of the prophet's rulings is often a completely new rule that is not based on anything already defined. Or in other words, precedent itself can be statutary.

freediver wrote on Aug 24^th, 2013 at 7:54pm:

Also, you are still relying on circular reasoning, by insisting that this hadith must apply to rape in all contexts because Islam forbids rape in all contexts

Where did you get that from? I've only ever argued that the ruling that rape is forbidden in all contexts originates from this hadith. That is not circular reasoning.

A resident Islam critic who claims to represent western values said:
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Outlawing the enemy's uniform - hijab, islamic beard - is not depriving one's own people of their freedoms.

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freediver

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Re: does Islam equate sex and rape?
Reply #217 - Aug 24^th, 2013 at 9:35pm

Quote:

Try again FD. It is specifically stated that you can eat anything except pork (and some other stuff):

So the fact that it is specifically permitted differentiates it from that principle you mentioned of halal being default?

Quote:

Precedent in common law refers to a past ruling that was based on something (ie a statute).

Wrong. it can be the interpretation of a statute. It can also be something completely new for which there is no relevant statute. Modern common law is no different in principle to what you described about hadiths.

Quote:

The "precedent" of the prophet's rulings is often a completely new rule that is not based on anything already defined. Or in other words, precedent itself can be statutary.

You are still missing the point. The nature of a precedent is that it applies to the context given. The example you gave is not a general prohibition on rape in all contexts. It is not a guide for punishment on rape in all contexts, which is why the orthodox Islamic view is that spousal rape is not a punishable offence. Muhammed did not say that rape should always be punished with death by stoning. That would be a statute.

Quote:

Where did you get that from? I've only ever argued that the ruling that rape is forbidden in all contexts originates from this hadith. That is not circular reasoning.

I have pointed it out to you in every single post since you made the claim.

People who can't distinguish between etymology and entomology bug me in ways I cannot put into words.

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polite_gandalf

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Re: does Islam equate sex and rape?
Reply #218 - Aug 25^th, 2013 at 11:09am

freediver wrote on Aug 24^th, 2013 at 9:35pm:

So the fact that it is specifically permitted differentiates it from that principle you mentioned of halal being default?

No.

freediver wrote on Aug 24^th, 2013 at 9:35pm:

The nature of a precedent is that it applies to the context given. The example you gave is not a general prohibition on rape in all contexts.

You are describing common law precedent, not islamic law precedent - which as I already explained is not comparable. You were wrong to label it as "precedent" (as in common law terminology) in the first place. In fact islamic law can use the equivalent of common law precedent, but that is very different to the precedent of the prophet - which is identical to statutary law.

What this means is that often the precedent or "example" ('sunna') of the prophet is applied broadly, even if the original example was more specific. This applies to the rape case, and certainly islamic jurists are in no doubt that rape - all rape is a crime in its own right, and not merely a sub-category of adultery:

Quote:

It is incorrect to say that rape is merely a subcategory of adultery or fornication. In the well-known Islamic legal book, "Fiqh-us-Sunnah," rape is included in a definition of hiraba (terrorism or crimes of violence): "A single person or group of people causing public disruption, killing, forcibly taking property or money, attacking or raping women, killing cattle, or disrupting agriculture."

http://islam.about.com/od/crime/f/rape.htm

Thus rape is listed under the category 'crimes of violence'. That didn't come out of thin air - that came from the ruling against the violent rape of a woman in the previously quoted hadith.

A resident Islam critic who claims to represent western values said:
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Outlawing the enemy's uniform - hijab, islamic beard - is not depriving one's own people of their freedoms.

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freediver

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Re: does Islam equate sex and rape?
Reply #219 - Aug 25^th, 2013 at 7:03pm

Quote:

You are describing common law precedent, not islamic law precedent - which as I already explained is not comparable.

You attempted to explain that it was not comparable, but the description you gave could apply equally well to modern common law. It is not a legal principle so much as common sense. I have attempted to explain this to you with the bacon sandwich example, but as usual you completely missed the point. You appear to be inventing a principle that any precedent set by Muhammed must be interpretted as broadly as possible, without regard for common sense or counter-examples. This is not the same thing as saying that Muhammed's precedents cannot be altered.

Quote:

You were wrong to label it as "precedent" (as in common law terminology) in the first place. In fact islamic law can use the equivalent of common law precedent, but that is very different to the precedent of the prophet - which is identical to statutary law.

It cannot be identical to statutory law. It is simply not possible, because of the fundamental limitations inherent in the nature of a precedent.

Quote:

What this means is that often the precedent or "example" ('sunna') of the prophet is applied broadly, even if the original example was more specific.

So, not always? That is, only in the absence of anything else to go by?

Quote:

This applies to the rape case, and certainly islamic jurists are in no doubt that rape - all rape is a crime in its own right, and not merely a sub-category of adultery:

Yet the example you gave is clearly not a case of spousal rape or the rape of slaves. All that it is saying is that it is not a subcategory of adultery. The explanation does not claim that it should have a different punishment to adultery or should apply to cases where consensual sex is permitted.

Quote:

Thus rape is listed under the category 'crimes of violence'. That didn't come out of thin air - that came from the ruling against the violent rape of a woman in the previously quoted hadith.

You seem to have forgotten what we are discussing Gandalf. Either that or you are resorting to some kind of circular reasoning again.

People who can't distinguish between etymology and entomology bug me in ways I cannot put into words.

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polite_gandalf

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Re: does Islam equate sex and rape?
Reply #220 - Aug 25^th, 2013 at 11:05pm

freediver wrote on Aug 25^th, 2013 at 7:03pm:

You attempted to explain that it was not comparable, but the description you gave could apply equally well to modern common law.

So what? As I keep trying to say, modern common law is not comparable, so stop trying to link islamic law to common law.

freediver wrote on Aug 25^th, 2013 at 7:03pm:

I have attempted to explain this to you with the bacon sandwich example, but as usual you completely missed the point.

Yes apparently I missed your point on that - something about arguing that the quranic verse that bans bacon can somehow mean beef is also banned - even though the very same verse specifically says it is allowed. You'll have to explain that again to me FD. Tongue

freediver wrote on Aug 25^th, 2013 at 7:03pm:

You appear to be inventing a principle that any precedent set by Muhammed must be interpretted as broadly as possible

No, I thought I explained, but apparently not clearly enough. Islamic law comes from two sources - the quran and example of the prophet (sunnah). You first turn to the quran, and you can also look at any sunnah that reinforces the quranic ruling. However if a particular issue is not covered in the quran, you then turn to the sunnah. So basically, the hadeeth are in two categories 1. that reinforce a quranic ruling, and 2. that are statutary in their own right.

freediver wrote on Aug 25^th, 2013 at 7:03pm:

It cannot be identical to statutory law. It is simply not possible, because of the fundamental limitations inherent in the nature of a precedent.

Again you fail to understand the unique nature of islamic law in using Muhammad's example as statutary law. Put simply, law derived from hadeeth can absolutely be generalised from its specific context to apply universally. And this has happened - in the writing of islamic fiqh by scholars - where (for example), rape is categorised under the crime of violent crime/terrorism. If your argument was right, then rape would necessarily be a sub-category of zinna (fornication/adultery) - right? Again, it is incorrect and misleading to call it "precedent".

freediver wrote on Aug 25^th, 2013 at 7:03pm:

Yet the example you gave is clearly not a case of spousal rape or the rape of slaves.

It is not clear at all. What characterises the account most is its lack of any specificity. It literally could have been anyone - even his slave or his wife. Thus my point that it is deliberately non-specific so that it can be applied universally.

freediver wrote on Aug 25^th, 2013 at 7:03pm:

You seem to have forgotten what we are discussing Gandalf. Either that or you are resorting to some kind of circular reasoning again.

No. Unless pointing out to you that the official islamic books of fiqh describe rape in the exact way you are attempting to claim it is not - is somehow forgetting what we are discussing.

A resident Islam critic who claims to represent western values said:
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Outlawing the enemy's uniform - hijab, islamic beard - is not depriving one's own people of their freedoms.

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freediver

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Re: does Islam equate sex and rape?
Reply #221 - Aug 26^th, 2013 at 8:47pm

Quote:

So what? As I keep trying to say, modern common law is not comparable, so stop trying to link islamic law to common law.

Can you explain how it is different without making them appear identical? So far every attempt you have made to explain the difference has shown them to be the same.

Quote:

Doesn't this contradict the principle of not making illegal that which God has permitted, and of halal being the default? Common sense dictates that you still have to draw the line somewhere - hence my example of the bacon sandwich.

Quote:

If your argument was right, then rape would necessarily be a sub-category of zinna (fornication/adultery) - right?

No. I don't really care how you categorise it.

People who can't distinguish between etymology and entomology bug me in ways I cannot put into words.

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polite_gandalf Gold Member Offline Australian Politics Posts: 20027 Canberra Gender:	Re: does Islam equate sex and rape? Reply #222 - Aug 27^th, 2013 at 12:32am freediver wrote on Aug 26^th, 2013 at 8:47pm: No. I don't really care how you categorise it. Yeah you do. Thats the whole point of this discussion.
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freediver

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Re: does Islam equate sex and rape?
Reply #223 - Aug 27^th, 2013 at 8:32am

Was spousal rape, the rape of slaves and the rape of women captured in battle common on the Arabian peninsula prior to Muhammed's conquest?

Can you elaborate on the two apparently contradictory principles that halal is default and you should not forbid what God has permitted, and that law derived from hadeeth can absolutely be generalised from its specific context to apply universally?

Also, would you mind quoting some verses that actually use the Arabic term for rape in the original? The one you used earlier as evidence does not appear to.

People who can't distinguish between etymology and entomology bug me in ways I cannot put into words.

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polite_gandalf

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Re: does Islam equate sex and rape?
Reply #224 - Aug 27^th, 2013 at 1:36pm

freediver wrote on Aug 27^th, 2013 at 8:32am:

Was spousal rape, the rape of slaves and the rape of women captured in battle common on the Arabian peninsula prior to Muhammed's conquest?

Probably. Why?

freediver wrote on Aug 27^th, 2013 at 8:32am:

Can you elaborate on the two apparently contradictory principles that halal is default and you should not forbid what God has permitted, and that law derived from hadeeth can absolutely be generalised from its specific context to apply universally?

There is no contradiction- apparent or otherwise. A similar situation would be you claiming that alcohol is permitted at (say) weddings - because while alcohol is stated as forbidden in a general sense, it doesn't actually say its forbidden at weddings. Would you accept the argument that alcohol is acceptable at weddings, at a business meeting, in the evening - or literally any other specific scenario you can think of simply because each specific scenario is not spelled out in islamic text? This is the point I can't seem to get through to you: the (deliberate) lack of specificity regarding the rape hadith means that it could equally apply to a woman's husband or slave owner as any other scenario. It is the act of taking a woman by force that is being condemned, everything about the hadith (the account of a non-descript woman being taken by force by a non-descript man) indicates that it is a universal outlawing of rape.

And as I said, it is not me who has "leaped to the conclusion" that this applies to rape - it is the orthodox islamic jurists who have concluded that rape falls under the category of unlawful violence (hirabah):

Quote:

The inclusion of rape within the purview of hirabah has had support throughout Islamic history.

The medieval Zahiri jurist Ibn Hazm defined hirabah as,

‘One who puts people in fear on the road, whether or not with a weapon, at night or day, in urban areas or in open spaces, in the palace of a caliph or a mosque, with or without accomplices, in the desert or in the village, in a large or small city, with one or more people… making people fear that they’ll be killed, or have money taken, or be raped (hatk al ‘arad)… whether the attackers are one or many.'[3]

It had significant support from the Maliki jurists.

Al-Dasuqi, for example, a Maliki jurist, held that if a person forced a woman to have sex, his actions would be deemed committing hiraba. In addition, the Maliki judge Ibn 'Arabi, relates a story in which a group was attacked and a woman in their party raped. Responding to the argument that the crime did not constitute hiraba because no money was taken and no weapons used, Ibn 'Arabi replied indignantly that "hirabah with the private parts" is much worse than hiraba involving the taking of money, and that anyone would rather be subjected to the latter than the former.[3]

http://en.wikipedia.org/wiki/Hirabah#Rape

freediver wrote on Aug 27^th, 2013 at 8:32am:

Also, would you mind quoting some verses that actually use the Arabic term for rape in the original? The one you used earlier as evidence does not appear to.

You're just being ridiculous. Again, explain to me how a description of a man grabbing a woman and forcing her to have sex with him is not an adequate description of rape?

Anyway, here you go:

Quote:

Malik related to me from Ibn Shihab that Abd al-Malik ibn Marwan gave a judgment that the rapist had to pay the raped woman her bride-price. Yahya said that he heard Malik say, "What is done in our community about the man who rapes a woman, virgin or non-virgin, if she is free, is that he must pay the bride-price of the like of her. If she is a slave, he must pay what he has diminished of her worth. The hadd-punishment in such cases is applied to the rapist, and there is no punishment applied to the raped woman. If the rapist is a slave, that is against his master unless he wishes to surrender him." (Book #36, Hadith #36.16.14)

A resident Islam critic who claims to represent western values said:
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Outlawing the enemy's uniform - hijab, islamic beard - is not depriving one's own people of their freedoms.

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