RAPE AS A VARIANT OF FORNICATION (ZINĀ) IN ISLAMIC LAW: AN EXAMINATION OF

THE EARLY LEGAL REPORTS

Author(s): Hina Azam
Source: Journal of Law and Religion , 2012-13, Vol. 28, No. 2 (2012-13), pp. 441-466
Published by: Cambridge University Press

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 RAPE AS A VARIANT OF FORNICATION (ZINÂ) IN
ISLAMIC LAW:
AN EXAMINATION OF THE EARLY LEGAL REPORTS

Hiña Azam*

The contemporary treatment of rape in the penal codes of Mus

nations has come under increasing scrutiny over the last two decades,
several high-profile cases have arisen in which women have claim
sexual assault but been unable to bring sufficient proof of non-con
In some cases, claimants have subsequently been punished
fornication (zinâ) because their accusations were seen as constitut
confession to consensual illicit sex, while in other cases, a resulti
pregnancy has been taken as evidence of the same.1 These cases h

* Hiña Azam is an assistant professor in Islamic Studies in the Department of Mi

Eastern Studies at the University of Texas at Austin. Her scholarly interests center on
pertaining to women, gender and sexuality in Islamic ethical and legal discourses. Aside from
topic of rape in Islamic law, which is the focus of her forthcoming book, she has written on
construction of marriage, veiling and eroticism in contemporary Islamic advice literature, an
the classical prohibition of women's testimony in criminal (hudüd) suits.
1. In the 1980s, 16-year old Jehan Mina of Pakistan claimed to have been raped by
relatives and subsequently became pregnant. According to the laws then prevailing in Pak
pregnancy without evidence of coercion was seen as proof of fornication (zinà). Thus, the
was sentenced to receive the fladd punishment for zinâ, which was one hundred lashes.
sentence was later reduced to thirteen lashes because Mina was underage. For an analysis o
case, see Katherine M. Weaver, Women's Rights and Shari 'a Law: A Workable Reality?, 17
J. COMP. & INT'L L. 483 (2007).
When in 2002, Zafran Bibi accused a man of raping her, the court concluded that h
accusation constituted an admission to sex outside of marriage (zinâ), and, as she was mar
sentenced her to the capital hadd punishment of stoning. Zafran Bibi was ultimately exon
due to public pressure and the intervention of then-president Pervez Musharraf. Seth My
Sentenced to Death, Rape Victim is Freed by Pakistani Court, N.Y. TIMES, Jun. 8, 2
Pregnancy outside of marriage without evidence of coercion proved problematic for 19-ye
Fareeda, of Pakistan, as well; Fareeda was flogged and imprisoned for having committed
Dan McDougall, Fareeda's Fate: Rape, Prison and 25 Lashes, The OBSERVER, Sept. 16,
For a comprehensive review of rape (zinâ bi 'l-jabr) cases that were decided during the per
the Hudood Ordinances in Pakistan, see Moeen H. Cheema, Cases and Controversies: Preg
as Proof of Guilt Under Pakistan's Hudood Laws, 32 BROOK. J. INT'L L. 121 (2006).
A blurring of lines between zinâ and rape has led to similar verdicts in Nigeria. Whe
2000, the unmarried Bariya Magazu was found to be pregnant, she claimed that her preg
was the result of a rape by a certain man. Having no witnesses to support her claim of coerc
however, Magazu was sentenced to flogging for zinà. Her lack of eyewitness evidence against
accused led to an additional penalty of eighty lashes for false accusation (qadhj). An
Nigerian case that came to the attention of the international media is that of Safiya Hus
married resident of Sokoto who early in 2001 gave birth to a child born, according to h
sexual assault. Lacking evidence of coercion, Husaini was sentenced to death by stonin

441

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442 JOURNAL OF LAW & RELIGION [Vol. XXVIII

illustrated the particular problems that stem from defin

coercive variant of fornication, or zinà.
These cases have largely arisen in the context of national e
Islamize the legal code by bringing laws into line with perc
guidelines.2 This slew of cases has prompted journalists, hu
groups and Muslim reformers to ask whether contemporar
rape laws are really continuous with the classical Islam
tradition, or whether they may in fact represent distort
tradition. A central point of debate has been over whet
juristic discourse truly placed rape—that is, a man's unlaw
intercourse with a woman against her will3—under the categor

having consented to adultery. Aminu Abubakar, Nigeria; Safiya's Death Senten

Soul, ALL AFRICA, Dec. 13, 2001. For a review of prominent Nigerian sex crim
Weimann, Divine Law and Local Custom in Northern Nigerian Zinâ Trial
Islams 429 (2009).
2. More recent efforts at legal reform have succeeded in modifying the
Pakistan, where, due to passage of the Women's Protection Bill of 2006, rape is no
under the rubric of zinâ. For debates over the treatment of zinâ and rape in Pa
1979 Hudood Ordinances, see the following: Asifa Quraishi, Her Honor: An Isla
the Rape Laws of Pakistan from a Woman-Sensitive Perspective, in WINDOWS
(Gisela Webb ed., Syracuse Univ. Press 2000); Shahnaz Khan, Zinâ and the Mora
Pakistani Women, 75 FEMINIST REV. 75 (2003); Charles H. Kennedy, Islamizatio
Implementation of the Hudood Ordinances, 28 ASIAN SURV. 307 (1988) (arguin
that the hudud laws pertaining to zinâ were not discriminatory against women in
Imran, Legal Injustices: The Zinâ Hudood Ordinance of Pakistan and its Implicat
7 J. INT'L WOMEN'S STUD. 78 (2005). For texts of the Pakistan Penal Code a
Protection Bill, and to see modifications to Pakistani law pertaining to sex crimes,
Zinâ (Enforcement of Hudood) Ordinance, 1979 [Pakistan], Ordinance No. VII of
10, 1979, available at http://www.unhcr.org/refworld/docid/4db999952.html (
2013); see Immigration and Refugee Board of Canada, Pakistan: The Protec
(Criminal Laws Amendment) Act, 2006 and its Implementation, Dec. 3, 2007
available at http://www.unhcr.org/refworld/docid/4784def9c.html (accessed M
traditional Islamic arguments against the Protection of Women Act, see Mufti Taq
Reality of the 'Women's Protection Bill,' ISLAMIC AWAKENING, http://www.
islamicawakening.com/viewarticle.php?articleID=1292 (last visited Mar. 10, 2013).
For an excellent general analysis of contemporary application of zinâ and rape laws with a
focus on Sudan, see Abdel Salam Sidahmed, Problems in Contemporary Applications of Islamic
Criminal Sanctions: The Penalty for Adultery in Relation to Women, 28 Brit. J. MIDDLE E. STUD.
187 (2001). For a discussion of hudüd laws in Malaysia, see Mohammad Hashim Kamali,
Punishment in Islamic Law: A Critique of the Hudud Bill of Kelantan, Malaysia, 13 ARAB L. Q.
203 (1998). For problems related to prosecuting rape under the sharVah laws of Nigeria, see
Chinese J. Onyejekwe, Nigeria: The Dominance of Rape, 10 J. INT'L WOMEN'S STUD. 48 (2008).
3. In this article, I consider only non-marital coercion, as this was the standard type of
sexual violation contemplated and addressed in Islamic juristic literature. This definition of rape
as unlawful or non-marital in nature is in line with the historically dominant definition of rape in
American law and culture as a man's unlawful sexual intercourse with a woman against her will.
While non-consensual relations between persons of the same sex was criminalized in classical
Islamic juristic discourse, classical Islamic discourse always assumed the sexual right of a
husband over a wife, and as a result, the notion of "marital rape" did not arise. While American
law has moved in recent decades to defining rape without reference to either gender or partner
relationship, Muslim criminal codes generally continue to recognize the sexual right of a husband

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 441] RAPE AS A VARIANT 443

or not. Some have suggested that th

not from the religious tradition, but r
that tradition by modern sharï'a
Quraishi has argued that in classical
not as a variant of zinâ but as a type
bloodmoney (diya) was due.4 A posit
(Muslim Women Lawyers for Huma
literature as well as classical Islam
rape as entirely distinct acts.5 Th
traditionally been defined in Islamic
as a type of bodily injury (jarh) or as a
been taken up in non-academic circle
This article examines whether it is
juristic tradition always categoriz
entirely distinct acts, with a focus
period, or the first two centuries afte
analyze that formative discourse,
decisions and opinions attributed to re
generations of Muslims. These de
functioned as the grounds for what
classical schools of Islamic law (ma
early legal positions enable us to de
crimes of rape and fornication, as w
two. Through an analysis of these r
early Islamic legal authorities deve
"rape" as a punishable crime, but
coercive variant of fornication, or zin

over a wife without regard to her situational co

forcible or non-consensual sex outside of marriage
4. Quraishi, supra note 2.
5. Position Paper, ZlNA, RAPE, AND ISLAMIC L
RAPE Laws in Pakistan, (2011), available at h
study _res/islam/gender/karamah_zina.pdf.
6. In a critique of Malaysian laws on zinâ and rap
There was better understanding on the crim
jurisprudence, when rape was not classified unde
in modern legislations including in Terengga
categories of violent crimes—either hirabah
usurpation)—and was regarded by a classical ju
hirabah.
Nik Noriani Nik Badli Shah, Man Made Codifications of Hudüd Law, (2002), available
at http://www.violenceisnotourculture.org/sites/default/files/ Hudud%20_general%20SIS.pdf.

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 444 JOURNAL OF LAW & RELIGION [Vol. XXVIII

I. Method and Sources

The texts that form the basis of the analysis underta

law books or legal treatises, but rather short reports,
sentence long, that describe the legal opinions and ju
authoritative figures in the first generations of Islam
report, or athar (pl. âthâr) may be attributed to the Prop
himself (in which case it is known as a hadîth) or may
later figures—either to companions of Muhammad or
the companions (in which case the term athar suffices). M
they have reached us, are attributed to their sources
complete chains of transmission (isnâds) that serve as
the way we use citations in scholarly writing toda
students of the hadiths and âthâr distinguished between
chains and the contents, or mutün (sing, main), of r
recognized the possibility that sound content could be wr
to unreliable authorities, that fabricated content c
attributed to respected authorities, or any range
possibilities. These reports were transmitted by early
orally and in writing, through personal notes and dictati
teacher to student. Over the course of the second and third centuries of
Islam—that is, the second and third centuries AH, corresponding to the
the eighth and ninth centuries CE—these reports were collected and
standardized to varying degrees.7 It is through investigating the legal
reports found in these collections that we gain insight into the legal
decisions and juristic discourses of the formative period of Islam.
For second century AH (eighth century CE) legal reports, a key
source is the Muwatta' of Malik b. Anas (d. 179/796), the Madinan jurist
from whom the Mâlikï school took its name.8 Some of the material in
this essay comes from the Musnad of Abû Hanïfa (d. 150-767), the jurist

7. Dates in the Islamic calendar are followed by the standard abbreviation "AH" ("after
Hijra"). The Islamic calendar begins with the Emigration of Muhammad to Madina in 622. Thus,
the first century AH roughly corresponds to the seventh century CE.
8. The Muwatta ' was transmitted by a number of Malik's disciples, notably Yahya b. Yahya
al-Laythî (d. 224/839), the influential jurist of Andalusia, and Muhammad b. al-Hasan al-Shaybânï
(d. 189/804), the prolific architect of the HanafT school of jurisprudence. See MALIK B. ANAS (d.
179/796), Muwaka ' /riwàya Muhammad b. al-Hasan al-ShaybànI) (Al-Maktabat al
llmïya n.d.) [hereinafter Muwatta' (r. Muhammad)]; and see also MALIK IBN ANAS ET AL., AL
MUWAttA' (Dâr al-Gharb al-Islàmî 1997) [hereinafter Muwatta' (r.Yahya)]. A translation of
Yahyâ's recension is available as MALIK IBN ANAS, AL-MUWATTA, ('A'isha al-Tarjumana and
Ya'qub Johnson trans., Diwan Press 1982). Another translation is MALIK IBN ANAS, MUWAttA
Imam MAlik (Muhammad RahTmuddln trans., Ashraf 1980). Al-Shaybànï's recension has more
recently been translated as well as MALIK IBN ANAS & IMAM MUHAMMAD IBN AL-HASAN ASH
Shaybani, THE MUWAttA' OF Imam MuhAMMAD (Yahya Batha éd., Turâth 2004).

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 441] RAPE AS A VARIANT 445

after whom the aforementioned Han

sources from the end of the second
'Abd al-Razzâq al-San'ânî (d. 211/826
early Meccan authorities, as well as col
the influential jurist Ahmad b. Idrls al
Of the third century AH (ninth cen
b. Muhammad b. Abï Shayba's (d. 23
this study, due to its exceptional prese
concerning sexual violence, many of
have also utilized the Sahïh of Mu
258/870), the Sahïh of Muslim b. al-
Sunan of Abû Dâwud Sulaymân b. al
and, to a lesser extent, the Sunan of
279/892), each of which came to be
reliable hadïth compilations (in addi
list of sources is not exhaustive, but

9. ABU Hanifah, MUSNAD ("Abd al-Rahman

Matba'atuha 1981); also known as ABU HANIFAH,
(Muhammad ibn Mahmud Abu al-Mu'ayyad al-K
Ma'arif 1913). To call this an early source is pr
Musnad is the one compiled by al-Khwârizmî (d.
IMÀM AL-A'zam, which is a synthesis of fifteen v
secondary nature of this work does not preclude its
particularly insofar as the views of the Iraqis are al
such as the MuSannaf of Ibn Abl Shayba al-Küfí (d
10. Abd al-Razzàq ibn Hammam al-Himyari
Ayman NaSr al-Azhan eds., Dàr al-Kutub al-'Ilmî
2000]; also 'ABD AL-RAZZAQ IBN HAMMAM A
A'ZamT éd., al-Majlis al-'Ilml 1983) [hereina
abridgement, 'Abd al-Razzaq ibn Hammam
Mustafa ibn All ibn ' A wad éd., Dâr al-Jïl 1997
ShâfiTs transmissions are collected in MUHAMM
al-Fikr 1996) and MUHAMMAD IBN IDRIS ShâFIT
Mu'assasat 'Ulüm al-Qur'ân 1989.)
11. 'Abd Allàh ibn MuHammad ibn AbI Shaybah, al-Kitâb al-Musannaf fi al
aHÀDÏTH WA-AL-ÂTHÂR (Muhammad 'Abd al-Salâm Shâhîn éd., Dâr al-Kutub al-'Ilmîya 1995)
[hereinafter IBN ABÎ Shaybah, DKI 1995]; and also 'ABD ALLÂH IBN MuHammad IBN AbI
SHAYBAH, AL-KITÀB AL-MUSANNAF (al-Fârûq al-hadïth li'l-Tibà'ah wa-al-Nashr 2008)
[hereinafter IBN AbI SHAYBAH FOT].
12. MuHammad ibn Ismâ'il Bukhàrï, Matn al-BukhàrI mashkul bi-Hàshiyat al
SindI (Matba'at Dâr Ihyâ' al-kutub al-'arabîya 1981) [hereinafter BUKHARÏ MSB]; and SaHIH
AL-BukhârI, 3 vols. (Dâr al-Hadlth, n.d.) [hereinafter BUKHÀRl Sa/iih}. See also SaHIH AL
BukhârI, 9 vols. (Muhammad Matraji trans., Islamic Book Service 1995) [hereinafter BukhArI
SBE]. I have consulted the latter not for its English translation, which is highly flawed, but for the
soundness of its Arabic text. Other sources consulted are MUSLIM IBN AL-HajjâJ AL-QUSHAYRI,
SAHIH Muslim (Dâr al-Ma'rifa 1994); ABU DÂ'UD, SULAYMÂN IBN AL-ASH'ATH AL-SlJISTÀNl,
SUNAN ABI DAWUD (Muhammad Abd al-'AzIz Khâlidï éd., Dâr al-Kutub al-'Ilmïya 1996);
MuHammad ibn 'Ïsà TirmidhI, al-Jami' al-sahih, wa-huwa, Sunan al-Tirmidhi (Ahmad
Muhammad Shâkir et al. eds., Mustafa al-Bâbl al-Halabl 1937).

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 446 JOURNAL OF LAW & RELIGION [Vol. XXVIII

spectrum of Sunn! approaches to sexual violence that eme

the formative period.13

II. Rape as a Variant of Zinâ

The central argument of this essay is that by the

formative period of Islamic law, a consensus had emerg
violence, or what we call "rape," was to be categorized a
unlawful sex, or zinâ. Put another way, the basic definiti
had emerged by the end of the formative period did n
between consensual and coercive forms of unlawful sex. We know this
from the fact that where the legal reports include examples of non
consensual relations, they either use the term zinâ, prescribe penalties
widely associated with zinâ, or use the term hadd—a category of
particularly grievous sins that in post-Qur'anic discourse was specified
to include zinâ, among other acts. There is little to no suggestion
anywhere in this body of reports that the term zinâ was reserved for only
consensual relations, or that rape was relegated to any other legal
category, such as brigandry (hirâba) or injury (Jarh). Rather, the early
authorities seem to have agreed that zinâ comprises any illicit
cohabitation between a man and a woman, without regard to volition.
In addition to arriving at a fairly uniform definition of zinâ,
formative era authorities also came to agree that zinâ itself belonged to a
particular category of crimes, known as hudûd. An important concept in
classical Islamic law, the category of hudûd (lit. "limits," sing, hadd)
refers to crimes whose penalties are scripturally defined, precisely
determined, and corporal in nature. Furthermore, the hudûd
punishments are understood in classical jurisprudence as being
fulfillments of God's rights, rather than the rights of any human victim;
they are neither satisfiable through monetary compensations (that is,
fines), nor waivable by the victim, both of which are features of
interpersonal violations.14 Although the legal reports (âthâr) suggest
that there were differences of opinion over what the corporal punishment

13. Initial or supplementary searches for materials were sometimes done electronically, using
online full-text resources such as the Shamila database (www.islamport.com) or
www.ar.wikisource.com, and are cited accordingly.
14. On the nature and function of the hudUd in medieval Islamic law, see Rudolph PETERS
& Wael B. Hallaq, Crime and Punishment in Islamic Law: Theory and Practice from
the Sixteenth TO the Twenty-first Century (Cambridge Univ. Press 2005); Fazlur Rahman,
The Concept of Hadd in Islamic Law, 4 ISLAMIC STUD. 237 (1965); CHRISTIAN ROBERT LANGE,
Justice, Punishment and the Medieval Muslim Imagination (Cambridge Univ. Press
2008); Anver M. Emon, Huqüq Allah and Huqü al-'Ibàd: A Legal Heuristic for a Natural Rights
Regime, 13 ISLAMIC L. & SOC'Y 325 (2006).

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 441] RAPE AS A VARIANT 447

for zinâ should be in different cases

any dispute regarding zinâ''s fundamen
in those sources.15 The formative
crime is critical to our analysis of the
the use of the term "tyxddP in refe
allows us to conclude that rape was c

A. Qur'anic Passages Relevant to D

Violence

In defining zinâ, legal authorities of the formative period would

presumably have taken the Qur'an as one of their references. Thus, a
review of Qur'anic passages is an appropriate starting point. Such a
review reveals that the Qur'an does not posit a definition of zinâ, but
rather, specifies what it is not. That is, the Qur'an explains the contexts
in which sexual intercourse is permissible; sexual relations that do not
occur within those parameters are presented as illicit or unlawful. The
Qur'an17 distinguishes lawful from unlawful relations by distinguishing
those who are "without blame" from those who transgress: "And those
who protect their private parts except from their spouses or those whom
their right hands possess, such are without blame. And whosoever
desires beyond that, such are transgressors ('âdûn)." (Q 23:5-7)
The gravity and abhorrent nature of sexual transgression are
established through the command to shun it and through equating zinâ
with other negative terms, particularly jâhisha, or "shameful deed":
"Nor come nigh to fornication (zinâ): For it is a shameful deed (jahisha)
and an evil road." (Q 17:32) Zinâ is presented in Qur'an 60:12 as an act
that believing women should eschew: "O Prophet! When believing
women come to you to take the oath of fealty to you . . . that they will
not commit zinâ . . . then receive their oath ..." Taken in combination,
the verses concerning sexual relations indicate that lawful relations are
only those that occur in marriage or in concubinage ("right hand

15. Burton has provided an illuminating overview of the hadlths outlining the punishment, or
hadd, for zinâ. He contends that Prophetic reports on the subject serve to reconcile the
contradictions between the Qur'anic penalty for zinâ, which is limited to flogging, and the legal
practice of the early community, which included stoning. His exploration of the hadd for zinâ is
part of his larger argument that the legal hadtth are essentially exegetical in purpose. Burton's
essay does not seek to examine the definition of zinâ as such. John Burton, The Origin of the
Islamic Penalty for Adultery, 26 TRANS. GLASG. UNIV. ORIENT. SOC. 16 (1978).
16. That is, if zinâ is a hadd, and if rape is called a hadd (and provokes a hadd punishment),
then rape must be a type oîzinâ.
17. References to the Qur'an are translated by the author but are based upon the translations
of Yusuf Ali, The Holy Qur'an: Text Translation and Commentary (Amana Corp.
1989).

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448 JOURNAL OF LAW & RELIGION [Vol. XXVIII

possession").
The Qur'an also decrees penalties for parties to zinà. The earliest
Qur'anic text outlining punishment of sex crimes—here also termed
"'fahisha"—is found in Qur'an 4:15, and mandates lifelong confinement
for women: "If any of your women commit lewdness (fahisha). . .
confine them to houses until death claims them, or until God makes
another way for them." The punishment of confinement, however, was
considered to have been surpassed by the later revelation of Qur'an 24:2,
in which a corporal punishment of flogging is laid out for both male and
female participants in zinâ: "The fornicatress (.zàniya) and the fornicator
(zànî), flog each of them with a hundred stripes, and do not let
compassion for them overtake you in [a matter of] God's religion. . ."
This command to flog perpetrators with a hundred stripes is modified
somewhat in Qur'an 4:25, where a reduced zinà punishment is
designated for slave women: "[I]f they commit sin {fahisha), then upon
them is half the punishment of that which is upon free women
(/muhsanàt)." Thus, with the preceding two verses, the basic Qur'anic
punishment for zinà is laid out: a hundred strokes for all except slave
women, who receive fifty.18
As the distinguishing element in rape is an absence of consent, we
may ask if the Qur'an addresses sexual volition in any way. As it turns
out, the Qur'an does address the issue of female volition in
sexual/conjugal matters, although in relatively weak or limited ways.
One relevant verse is Qur'an 24:32, in which Muslims are commanded
not to coerce slavewomen to commit bighà ', or harlotry, for the sake of
material gain. Although harlotry is distinct from sexual violence, and
although the verse does not speak to sexual volition or coercion within
the master-slavewoman relationship, the verse does attribute some value
to female sexual volition. Termino logically, this verse is also helpful in
that it establishes use of the verb akraha (to coerce) in relation to
cohabitation: "And force not (là tukrihü) your maids (fatayàtikum) to
harlotry (bighà ') if they desire chastity (tahassun) in order that you may
gain in the goods of this life. And if anyone coerces them, then Allah is,
in view of their coercion, oft-forgiving, most merciful."
Particularly important in this text is that the coerced woman is
forgiven for her participation in unlawful sex, and so the juristic doctrine
that one is not morally accountable for sex acts performed against one's
will may reasonably be seen as stemming in part from this verse.

18. This half-punishment for female slaves was expanded in classical Sunni jurisprudence to
apply to male slaves as well.

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 441] RAPE AS A VARIANT 449

Although the hadîth authorities' glos

primarily regarded this verse as a
exploiting one's slavewomen, they als
in any such exploitation was her coerci
A condemnation of coercion in sex
found at Qur'an 4:19, in which the i
prohibited: "O you who believe, it is
women against their wills (kurhan)."
likely strengthened by another that di
stance of faith and any externally-com
a person is described as "one who is c
content in faith (wa qalbuhu mutm
Taken together, these verses assert
women's volition in matters of sexu
culpability of those who are forced to
One of the objectives of this essay is
definition of rape as a variant of zinâ r
itself as a hadd crime. This identification of zinâ as a hadd crime in turn
depended on the evolution of the notion of hadd as a legal category.20
Classical jurists generally present the hudüd (plural of hadd) as
scripturally fixed punishments for a scripturally delineated grouping of
particularly grievous sins, giving the impression that the term hadd
originates in the Qur'an, and that it is there used in a primarily legal
sense. However, it is not the case that the five to seven sins agreed upon
by the classical Islamic legal tradition as constituting hadd crimes—theft
(sariqa), fornication (zinâ), slander (qadhf), alcohol consumption (sharb
khamr), banditry (hiraba), and according to some, apostasy (ridda) and
homicide (qisâs)—are specified as such in the Qur'an. Rather, the
classical legal notion of hadd seems to have been the outcome of a
juristic process that occurred in the formative period of Islamic law.

19. A report describing the revelational context of this verse is found in SaHIH MUSLIM,
supra note 12, at 8:24 (K. al-TafsIr #244):
Abü Bakr b. Abî Shayba and Abü Kurayb, in Abü Kurayb's wording—Abï Mu'àwiya—
al-A'mash—Abü Sufyân—Jâbir (b. 'Abd Allah):
'Abd Allah b. Ubayy b. Salûl used to say to his slavewoman (jàriya): Go and earn
something [through prostitution]. So Allah, great and mighty, sent down [this verse].
MUSLIM provides a second hadith on this topic at the same location:
Abü Kâmil al-Jahdarl—Abü 'Awâna—al-A'mash—Abî Sufyân—Jâbir:
Abd Allah b. Ubayy b. Salûl had a slavewoman (jàriya), Musaika, and another,
Umaima. He used to force them to zinâ. So they complained about that to the Prophet,
and then God sent down [the verse],
20. The disparity between the Qur'anic usage of the term hudüd and its usage in the at heir and
later juristic works has been discussed or alluded to by several scholars: LANGE, supra note 14;
Kamali, supra note 2; Rahman, supra note 14.

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450 JOURNAL OF LAW & RELIGION [Vol. XXVIII

This argument is bolstered by examining the differenc

the use of the term "hudüd" in the legal reports on zinâ versu
the Qur'an. In contrast to the fairly precise definitions of h
that we see in later juristic formulations, the Qur'anic use of "
quite general, simply signifying divinely-prescribed limit
boundaries, that one must not transgress. One who crosses
boundaries is described as a wrongdoer: "And whosoever t
the boundaries of God (hudüd), such are wrongdoers (zá
2:229) Also, those who transgress the hudüd of God are
entering hellfire: "One who disobeys God and His mess
transgresses His boundaries, will [enter] into everlastin
4:14) Although readers are sternly warned not to cross the
for fear of otherworldly punishment, no worldly chastisment
for crossing them.
Beyond the above general warnings not to cross the hud
the word hudüd also occurs in specific reference to a gamut
conjugal relations during Ramadan, divorce procedures, and
that have no clear underlying thematic connection. The sing
is not found in the Qur'an at all. One searches in vain for
linking the act of zinâ with the hudüd Allah, and conversely, t
context of which the term hudüd appears do not end up in
list of hadd crimes. The only verse that comes close to nam
acts later agreed upon as being hadd crimes is Qur'an 60:1
theft (sariqa), sexual transgression {zinâ) and false accusati
are condemned, but in which the term hadd is not used. Eve
two crimes of consuming alcohol {sharb al-khamr) and
{hirâba) are omitted, and the term used for false accusation
differs from that which came to be conventionally utilized
discourse ("qadhf ).21
What can we gain from this review of Qur'anic verses c
licit and illicit sex, the role of sexual volition, and the term hu
despite the fact that the idea of the "limits set by God" {h
surfaces at several points in the Qur'an, and though the act
identified as a shameful deed (Jahisha) meriting th
punishment, the act of zinâ is nowhere specified as an
crossing the hudüd. Second, in establishing a distinction bet
and unlawful sex, the Qur'an does not suggest that volitio
critical to a sex act's lawfulness. Zinâ is simply any cohabi

21. For a complete list of verses in which words derived from the root h-d-
Muhammad Fuâd Abd al-Bâqî, al-Mujam al-Mufahras li-Alfâ? al-Qur'ân
BI-HASHIYAT AL-MUSHAF AL-SHARIF (Dâr al-Fikr 1994).

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 441] RAPE AS A VARIANT 451

occurs outside the bonds of marria

possession"). Third, although it ou
individual will and the right of a pe
free of compulsion to zinâ or distast
cannot be said to address directly w
forward any coherent doctrine on sex
legal doctrines concerning sexual violen
from the Qur'an, they were largel
processes that occurred during the fo
whose traces can be seen in the leg
remainder of this essay is to examine t

B. Zinâ and Rape in the Lega

The thesis of this article, again, is th
defined zinâ as including both consen
sex. The most direct way to demons
authorities used the term "zinâ," alo
punishments associated with zinâ (flo
volitional contexts. Below, I first pre
illicit sex23 and then present reports tr
eye to highlighting terminology and
presentation below is not exhaustive:
dicta we find on consensual and coerc
multiple chains of transmission (isn
variations in wording (main), this essay
of all these variations. The purpose, rat
early Islamic legal discourse, for whi
dominant version and commonly sh
reports.
Leaving aside problems of evidentiary or substantive ambiguity
(shubha) that could complicate sentencing, we will see below that the
texts consistently indicate what came to be agreed upon as the
punishment for those who willingly engage in unlawful sex: flogging of
a hundred lashes (and sometimes exile) for the unmarried free person

22. That the Qur'ân recognizes the humanity and limited moral agency of slaves is put
forward by Brockopp, who writes that in the Qur'an "[the] position of slaves as spiritual equals of
free Muslims is not explicitly stated, though several verses may be construed as supporting such
an equality." Jonathan Brockopp, Early MAlik! Law: Ibn 'Abd Al-Hakam and His
Major Compendium of Jurisprudence 131-32 (Brill 2000). Brockopp cites Qur'anic
references to slaves' beliefs (Q 2:22, 4:25,4:92), their desire for emancipation (Q 24:33), and their
feelings about being forced into prostitution (also 24:33) to support his point.
23. That is, cases in which neither coercion nor resistance is implied or claimed.

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452 JOURNAL OF LA W & RELIGION [Vol. XXVIII

(bikr), lapidation for the previously-married free person (m

thayyib), and a reduced flogging of fifty lashes for slaves. C
and coercive contexts are distinguished, in these reports, onl
receives the zinâ punishment: In consensual cases, both part
receive the punishment, while in coercive cases, the punishment
averted from the one coerced and applied only to the willin
There is no additional or distinct corporal punishment assig
man who sexually coerces a woman, as compared to one
consensual relations with her.
In the Sunn! collections of legal reports detailing consens
between free persons, we find four prominent Prophetic rulings
Prophetic dicta.24 The first Prophetic judgment is commonly re
as the story of the Ghâmidlya (i.e. the GhâmidI woman), and
account of a pregnant thayyib (previously-married) wo
confesses to fornication.25 The Prophet tries to avoid ta
confession, but when she insists, he tells her to wait until
delivered her child and a wetnurse has been found for it. After these
have transpired, she is put to death. The report uses the word zinâ to
identify her act, and the penalty of stoning is specified.26
A second Prophetic judgment concerning consensual relations,
commonly referred to as the case of the Juhanlya (the Juhanï woman), is
described as follows: A woman has illicit sex and becomes pregnant.
She comes to the Prophet to confess, and asks to be punished. He
instructs her to wait until she has delivered her child, and after that,
commands that she be stoned. This report, like the case of the
Ghàmidïya, also refers to her act as one of zinâ, and also specifies
stoning. Furthermore, she is given as referring to her crime and the
appropriate punishment as the haddr1

24. Unless the text specifically indicates that a party is of slave status—through the use of
terms such as ama, 'abdjâriya, or the like—or the context strongly points to slave status, I have
assumed that the text is referring to free persons. This is consonant with the juristic usage,
wherein freedom is the assumed personal-subject status of individuals and enslavement is
exceptional.
25. Islamic jurisprudence has, from its inception, distinguished between two sexual status
categories. The first is that of bikr, often translated as "virgin" or "unmarried person," which
denotes one who has presumably not ever engaged in sexual relations, or who at the very least has
not consummated a lawful union. The second is thayyib, often translated as "matron" when in
reference to a woman, but which more precisely denotes one who has consummated a lawful
union. The term thayyib denotes not only those who are currently in a lawful union, but those
who have ever been in one, thus the term "previously-married" in this case.
26. MUSLIM B. AL-Hajjaj, AL-JAMI' AL-SAHIH, 8 vols. 5:119-20 (K. al-hudüd) (Dar al
Ma'rifa).
27. Id. at 5:121.

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 441] RAPE AS A VARIANT 453

A third widely reported case is the

AslamT. In the version found in Mal
future caliph Abü Bakr (d. 13/634)
urges him to keep the matter to himse
remains unsettled, and so confesses to a
Khattâb. 'Umar gives him the same advice, leaving Mâ'iz still
unsatisfied. Finally, he goes to confess to the Prophet, who seeks to
avoids him multiple times. Unable to shake the confessor, the Prophet
questions his family as to his mental health. His sanity confirmed, the
Prophet asks about his marital status, and they say he is previously
married, or thayyib. At that point, the Prophet commands that Mâ'iz be
stoned.28 This report uses the term zinâ to refer to the illicit sex act, and
links the status of the man as thayyib with the stoning punishment. The
Prophet's inquiry about the man's mental condition reflects the principle
of the "pen" of moral and legal judgment "being lifted" from one who is
mentally incapacitated.
The last of our Prophetic narratives relates a story commonly
known as that of the 'aslf, or "servant." We are told of two men who
come quarreling to the Prophet. The son of one man, who was working
in the home of the other, committed zinâ with the other's wife. The
father of the servant says that he has already given a large ransom to the
offended husband to spare his son from being stoned, but had since then
learned that this would not expiate his son's sin. Rather, he has been
been told, his son should be flogged one hundred lashes and exiled for
one year, and the woman—being a free married woman (muhsana)—
should be stoned. The two are now in disagreement over who needs to
be punished and how, as well as over what is to be done with the
ransom. The Prophet rules that the ransom is to be returned to the father
of the youth, that the youth is indeed to be flogged one hundred lashes
and exiled for one year, and that the wife is to be stoned if she confesses.
She does confess, and so is punished accordingly.29 This report seems to
reflect a conflict, actual or metaphorical, between pre-existing cultural
remedies for sexual affronts, and emergent Islamic legal doctrines. The
report emphasizes that the old system, in which a sexual usurper would
financially compensate a woman's husband, father or owner for
illegitimate sexual use, had now been replaced by a new system in
which the debt was due not to any human being, but to God.
In addition to these narratives, the àthàr collections also contain

28. Malik ibn Anas, al-Muwaka (Muassasat al-Risala 1993); Muslim, supra note 25, at
2:16.
29. MUSLIM, supra note 25, at 5:121.

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454 JOURNAL OF LAW & RELIGION [Vol. XXVIII

short references to Prophetic judgments and declarations, tran

his Companions, explicitly connecting the act of unlawful s
corporal punishment and the term hadd. The companion Zay
al-Juhanl (d. 78/697) reports that he heard the Prophet order
stripes and a yearlong exile for one who commits zina and is n
(previously married).30 The companion Abü Hurayra (
remembers that the Prophet sentenced non-muhsan perpetrato
to the same, and uses the term "hadcF to refer to the pena
Hurayra also transmits a Prophetic declaration regarding zina c
by a slavewoman, in which he commands flogging her for the
three times, and then selling her if she does not desist.32
dictum, the Prophet declares that the taking of life is only leg
three cases, one of which is zinâ by a thayyib,33
The àîhàr compilations also contain many reports c
Prophetic authorities that describe the crime of zinâ, that
categorization as a hadd act and that delineate its punishmen
stoning, or exile). Among the Prophetic Companions, 'U
Khattàb (d. 23/644) is reported to have imposed the hadd on a m
free woman pretending to be his slavewoman.34 Another C
'All b. Abl Tàlib (d. 40/661), imposed the hadd on a man w
with a slavewoman from the state's one-fifth share (khums).35
The classification of zina and its specific punishments u
hudüd is further attested in myriad decisions and opinions att
authoritative figures from the generations immediately suc
Companions of Muhammad, who are collectively known as
"Successors," and whose judgments and opinions form the bases for the
classical SunnI schools of jurisprudence. The late Successor
Muhammad b. Shihàb al-Zuhrl (d. 124/742) dictated the exile of the
non-muhsan who commits zina.36 The Umayyad caliph 'Umar b. 'Abd
al-'Azïz (d. 101/720) and the influential jurist al-Hasan al-Basrl (d.
110/728) are reported to have imposed the hadd punishments on slaves

30. BUKHARI, SaHIH, 7 vols. (K. al-Hudüd #6443) (Dàr Ibn Kathïr 1993) [hereinafter DIK
1993],
31. Id. at #6444.
32. MUSLIM, supra note 25, at 5:123-4.
33. BUKHÀRI, MSB, supra note 12, at 4:187 (K. al-Diyât); BUKHÂRl, SBE, supra note 12, at
9:14 (K. al-Qasâma #6878). Slightly different versions are also given in MUSLIM, supra note 25,
at 5:106 (K. al-Qasâma).
34. IBN ABl SHAYBA, MUSANNAF 9:280 (K. al-Hudüd #28906) (Abü Muhammad Usâma éd.,
al-Fârûq al-Hadïtha li'l-Tabâ 'a wa'l-Nashr 2007).
35. Ibn AbI SHAYBA, FHT, supra note 11, at 9:310 #29107.
36. BUKHÀRI, MSB, supra note 12, at 4:181 (K. al-Hudüd wa'l-Muhâribln); BUKHÀRI, SBE
8:564 #6831-2.

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 441] RAPE AS A VARIANT 455

once they had reached puberty.37 Al-

has sex with his wife's slavewoman should receive the hadd
punishment.38 The Kufan Ibrahim al-Nakha'T (d.ca. 96/717) opine
a married slavegirl who engages in a shameful deed (fahisha) d
receive the hadd unless she has reached puberty.39 Al-Zuhrl asse
similar position.40 The Successor Sa'Id b. al-Musayyab (d. 94
declared that a woman who remarries during her waiting period
divorce ( 'idda) is to receive the hadd, as sexual intimacy on he
would be unlawful.41 The Kufan Sufyân al-Thawn (d. 161/778)
that a married woman who committed zinâ with her husband's male
slave should receive the hadd punishment.42
The number of reports addressing zinâ and the particularities of its
punishment is very high, and cannot all be brought forward here.
Rather, the purpose of citing the above reports is to highlight those that
specifically designate unlawful consensual cohabitation as zinâ, and that
also refer to its punishment as a type of hadd. These reports present a
consistent picture of a coalescing Sunni legal approach to consensual sex
outside the bonds of marriage or concubinage: First, the punishments of
stoning for previously-married (thayyib or muhsan) free parties, and
flogging (with exile) for unmarried (bikr) or slave parties, are imposed
fairly uniformly. Second, the term hadd is associated both with the act
of zinâ as well as its penalty. Once established, this basic approach to
consensual zinâ continued to prevail into classical jurisprudence;
adjustments and disagreements appeared only with regard to non-core
issues, such as consensual relations with minors, same-sex relations or
the imposition of exile on slaves.
Now let us compare these findings with reports detailing coercive
or non-consensual sex to see how much continuity or discontinuity we
find in the areas of terminology and sentencing. We will begin with the
sole available Prophetic narrative on this topic, which describes the rape
of a free woman: A woman once went out to attend prayer. On the way,
a man encountered her, "satisfied his need" upon her and ran off. She

37. IBN ABÏ SHAYBA, FHT, supra note 11, at 9:253 (K. al-Hudüd #28723). The use of hadd
here, it should be noted, does not explicitly refer only to zinâ, and may well include theft, which is
also addressed in surrounding material.
38. Id. at 9:312 (K. al-Hudüd #29118). This was a highly contested issue, with some saying
that he should be spared the hadd for zinâ on the grounds that he might have mistakenly thought
he had an ownership right in her. Both sides take for granted that the zinâ falls under the category
of hudüd crimes.
39. Id. at 9:254 (K. al-Hudüd #28730).
40. Id. at 9:254 (K. al-Hudüd #28731).
41. Id. at 9:315 (K. al-Hudüd #29130).
42. "ABD al-Razzaq, MUSANNAF 7:349 (K. TâbT al-Jalaq #13442).

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456 JOURNAL OF LAW & RELIGION [Vol. XXVIII

hailed passersby until a group listened and went in search o

They found him and brought him to her, and she confirmed t
the same person. They all went to the Prophet, who commande
accused be stoned. At that point, another man came fo
confessed that there had been a mistake, and that in fact, he w
perpetrator. The Prophet then released the first man and c
that the second be stoned. The woman received no penalty.43
The first caliph Abu Bakr is also presented in the legal
passing judgment on rape cases. In one case, a man hosted a
one of his guests coerced his sister. The case was raised to
who flogged and exiled the perpetrator, but did not beat the v
other report, a man came to Abü Bakr confessing that he had
zinâ with a slavewoman and impregnated her; the ruler flog
hadd and banished him for a year, but did not punish the slave
The second caliph, 'Umar b. al-Khattâb (d. 23/644)
several relevant cases. In one case, a man sexually coerce
and injured her in the process.46 The caliph flogged him in fu
the hadd, and also sentenced him to pay damages to the wom
injury.47 In another case, a pregnant woman was brought t
one of his governors, followed by a mob accusing her of
questioning, she said that she was attacked while asleep one
courtyard. 'Umar averted the hadd from her based on
volition.48 In yet another report, 'Umar was apprised o
impregnated through an act of zinâ. When she came to hi
him that she had been assaulted while praying in her home one
Upon hearing this, he released her.49 In another case, 'Umar av
hadd from a woman who consented to sex under duress—she was
traveling alone and was thirsty, and traded sex for drink.50 Finally, in a

43. Found in multiple variants; this version taken from ABU DÂWUD, 3:138 (K. al-Hudüd,
#4379).
44. IBN ABl SHAYBA, DKI 1995, supra note 10, at 5:501 (K. al-Hudüd #28413).
45. BAYHAQl, AL-SUNAN AL-KubrA, 8:223 (K. al-Hudüd #16752) (Muhammad 'Abd al
Qàdir ' Atâ' éd., Maktabat Dâr al-Bâz).
46. The injury here is referred to as ifdâ ', or perineal tearing.
47. IBN ABÎ SHAYBA, DKI 1995, supra note 10, at 5:450 (K. al-Diyât #27887).
48. Found in multiple isnâd and matn variants. See "ABD AL-RAZZÂQ, MI, supra note 10, at
7:409 (B. al-bikr wa'l-thayyib tustakrahân #13666); IBN ABÍ SHAYBA, DKI, supra note 10, 1995,
at 5:507-8 (K al-Hudüd #28491-2); BAYHAQl, AL-SUNAN AL-KUBRÀ, 10 vols. 8:235-6 (Da'iratul
Ma'ârif 1925) [hereinafter DM 1925],
49. 'ABD AL-RAZZÂQ, MI, supra note 10, at 7:409 #13664; DKI, supra note 10, 1995, at
5:507 (K. al-Hudüd #28486).
50. The fullest version of this report is found in ABO HanIfa, JAmT MasAnID (K. al-Hudüd
2:212-13) (Matba'at Majlis Da'irat al-Ma'arif 1915). Shorter versions are provided by'ABD AL
RazzAQ, MI, supra note 10, at 7:407 (B. al-hadd fï'1-darûra) and by BayhaqI, DM, supra note
47, at 8:236 (ch. on coercive zinâ/man zanâ bi imra 'a mustakrahatari).

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 441] RAPE AS A VARIANT 457

widely reported ruling, 'Umar was co

of the war spoils who coerced a f
banished the perpetrator, but did n
specifies that 'Umar spared her because
Similar judgments and opinion o
governing authorities among the Su
'Umar b. 'Abd al-'AzTz (d. 101/720) r
slave who coerced a woman. He im
provided her with a monetary com
110/728) ruled similarly in a case
woman; he imposed the hadd upon th
woman a monetary compensation.53
Legal opinions on the topic of r
thinking: Men who coerce women to
while the hadd is averted from the women in these cases due to their
lack of consent. The Meccan jurist 'Atà' b. Abl Rabâh (d. 114/732)
opined that the hadd is imposed on the sexual coercer; the BaSran al
Hasan al-BaSri and Ibn Shihâb al-Zuhrl of Madina (d. 124/742)
concurred.54 Ibrahim al-Nakha'I of Küfa (d.ca. 96/717) similarly
imposed the hadd zinâ on the assailant alone.55 Al-Zuhn, al-Sha'bl (d.
110/728) and al-Hasan declared simply, "There is no hadd on the
coerced woman (al-mustakraha)."56 Qatàda b. Di'àma of Basra (d.
117/735) confirmed the averting of the hadd from her.57 One of the
strongest opinions to this effect is attributed to Sufyân al-Thawrl (d.
161/778), who proclaimed, "The hadd is averted from [the woman
claiming rape], even if she is pregnant [out of wedlock]."58
The myriad reports, judgments and opinions that we have reviewed
provide a consistent picture of early Islamic legal thinking on the topics
of zinâ and rape. Our review of the texts suggests, first, that Islamic
juristic discourse in the formative period saw the consolidation of a

51. MÀLIK, MUWAttA 594 (K. al-Hudüd #1507) (on hadd zinâ); this is also found in other
recensions of Malik, as well as in Abd al-Razzâq's MUSANNAF and Ibn Abï Shayba's
MUSANNAF, in Bukhârï's SaHIH, and in BayhaqI's AL-SUNAN AL-KUBRÀ.
52. Ibn AbI SHAYBA,'dKI 1995, supra note 10, at 5:501 (K. al-Hudüd #28414).
53. Id. at 5:501 (K. al-Hudüd #28417).
54. BayhaqI, DM 1925, supra note 47, at 8:236.
55. Abu'l-Mu'ayyad Muhammad, JAmi' al-MasAnId: MajmO'a al-AHàdîth wa'l
ÂTHÂR 2 vols (al-Maktaba al-Islamïya 1976).
56. IBN AbÎ SHAYBA, DKI 1995, supra note 10, at 5:501 (K. al-Hudüd #28415-6).
57. "ABD AL-RazzâQ, DKI 2000, supra note 10, at 7:327-9 (K. al-Talaq #13728); 'ABD AL
RaZZÂQ, MI, supra note 10, at 7:408 (#13656).
58. 'ABD AL-RAZZÂQ, DKI 2000, supra note 10, at 7:409 (# 13660); 'ABD AL-RAZZÀQ, MI,
supra note 10, at 7:327-9 (#13732).

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458 JOURNAL OF LAW & RELIGION [Vol. XXVIII

discrete crime of sexual violation parallel to our conceptio

Second, we find that in this discourse, rape is essentially
coercive—or more specifically, non-consensual—variant of
crime of unlawful sex, or zinà, which itself was defined wit
to volition. The subsumption of rape under zinà is supported by
that the term zinà is used in legal reports to refer to both con
coercive acts, and that perpetrators of coercive zinà are d
uniformly subject to the punishment for zinà—that is,
punishment consisting of either flogging (with or withou
lapidation. The juristic conceptualization of rape as a coerciv
zinà is further supported by explicit references in these legal r
the emerging category of the hudüd as a particular type of
which zinà was placed.
Furthermore, despite searching throughout these àthàr col
I have found no references to sexual violation that replace t
designation of the act as zinà with a different designation
advocate a punishment other than the zinà punishment.59
penalties are sometimes imposed, such as fines for injury, defl
depreciation of sexual property (in both slave and free wo
these are distinct from the corporal hadd zinà assigned fo
itself. Lastly, the sequence of events in these reports is il
The victims in these reports are often presented as being l
hadd zinà until the fact or claim of their non-consent is broug
Once their non-consent is revealed, the looming hadd zinà is av
they are spared.60 Indeed, the negative framing of the w

59. That is, assuming that there are no mitigating factors, such as the minority
of one of the parties, or the possibility of doubt (shubha).
60. The legal doctrine by which the zinâ punishment was to be averted from rap
in turn intertwined with two legal maxims that emerged in the formative period: T
what is done due to coercion, error, or forgetfulness is forgiven by God. This max
in a variety of wordings, the most common being "God has overlooked from m
[three things:] that which they do in error, in forgetfulness, and that which they a
(Tajâwaza 'an/li ummatïal-khata' wa'l-nisyân wa mâ'stukrihû 'alay-hi). Alternate
"overlooked" include "put away from" (wada 'a 'an) and "forgiven" ( ufiya). It i
Prophetic (marfu') saying via Abu Dharr al-Ghifan in the collections of Ibn Màj
via Ibn Abbas in the collections of al-Bayhaql, al-Tabarânï, and al-Tabrïzî (who
due to its many transmissions); via Ibn 'Umar and 'Uqbah b. 'Âmir in the work of I
and generally by Ibn 'Abd al-Barr. Ibn Raiab in his Jámi' al-'Ulüm wa'l-Hikam, w
as hadlth # 39.
The overall point to be gained from these sources is that while the precise
transmission chains for this maxim were highly contested, the substance and
considered sound by early juristic and narrating authorities. See Ibn Rajab,
WA'L-Hikam 796-809 (Dàr Ibn Kathïr 2008); IBN KathIr, TafsIR 1:737 (Dàr Ta
wa'1-Tawzî' 1999); NOr al-DÏn 'Ali ibn ABÏ Bakr HaythamI, Bughyat al-r
Majma' AL-ZAWÂTD WA-MANBA' AL-FAWÀ'ID 6:378-9 (Dàr al-Fikr 1992)
NÀSir-ad-DIn al-AlbânÏ, Mukhtasar as-Shamà'il al-MuHammadIya #231

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 441] RAPE AS A VARIANT 459

culpability in these reports is a critic

legal discourse conceived of rape a
conceived positively, as a special crime
rather framed as an act of zinâ in whic
punishment due to lack of volition.
A major ramification of categoriz
zinâ was that the hadd punishment for
it was clear that zinâ had occurred. Z
have occurred if two criteria were met
genital intercourse, and the act had to
context—that is, outside of marriage
zinâ, there could not truly be rape, an
could not be imposed. This conceptual s
reports describing forcible penetration
a report describing a decision by al-H
Abï Tàlib, a jealous wife manually
slavegirl, and then accuses her of zin
but for slander,61 not for coercive z

al-Islâmïya 1985); YUSUF IBN 'ABD ALLÀH IBN

MADHÀHIB FUQAHA 'AL-AMSÂR WA-'U-LAMA
MuwaTTa' min ma'ân-I al-ra'y wa-al-àthâr #
BayhaqI, al-Sunan al-Sughrâ, 3:231 (#4414-5);
#6284 (al-Maktaba al-Islàmî 1985); IBN AbI H
SUNAN 6:300-1 (Mawqi' Wizârat al-Awâf al-Misr
Mawsû'a al-Shámila, at www.islamport.com, an
consulted as necessary.
The second maxim that was central to the doc
averted from victims of sexual violence was th
responsibility. This maxim is most commonly found
from three: from the sleeper until he wakes, from t
until he comes to his senses" (Rufi a al-qalam 'an t
al-Saghir halla yakbur wa 'an al-majnün hattà ya'
been narrated as a Prophetic saying (marju') via
TirmidhT and al-Nasà'i; via Yazïd b. Hárün in A
'Abbâs in Dàraqutnî. Other isnàd variants can also
version via al-Hasan al-BaSn.
The key point of debate in the technical literature is over whether this maxim is Prophetic
(i.e. marju' or even mursal) or Companionate (i.e. mawqûj). Dàraqutnî lends greater credibility to
the Companionate {mawqûj) version going back to 'AIT and "Umar and transmitted by al-A'mash.
See DÂRAQUtNÏ, AL-lLAL 3:72-3, 3:192 (Riyâdh: Dar Jayyiba 1985); al-MIZZÎ, Tuhfat AL
AshrAf, # 10067 and # 15935, at islamport.com; IBN MÀJAH, Sunan 6:297-9 (Mawqi' Wizârat
al-Awqàf al-Misrïya).
61. See 'ABD AL-RAZZÂQ, DKI 2000, supra note 10, at 7:330-1 (K. al-Talàq #13743), where
it is clarified that the hadd here is for slander, not zinâ:
Abd al-Razzàq—al-Thawrî—ManSür—Ibrâhïm, and also Abü Abd al-Karîm and
Mughîra—Ibrâhïm: A man had a slavewoman (jàriya). His wife feared that he would
marry her, so she deflowered her {iftaddat-ha) with her finger, with [the help of] some
other women holding her. Then the case was taken to 'AIT, who commanded al-Hasan to

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460 JOURNAL OF LAW & RELIGION [Vol. XXVIII

though it clearly resulted in defloration, did not meet the crit

being set in place by the authorities of the formative era, an
punishment could not be imposed. Furthermore, we do not
formative-era reports or the texts of the later, classical juris
the notion of what we would call "marital rape": Because a
to be illicit—that is, zinâ—for its perpetrator to be held li
punishable coercion within the conjugal bond lay outside
imagination. The exclusions of non-genital violence a
coercion together underscore the extent to which the cate
and rape were intertwined in early Islamic legal discourse.

Conclusion

We began this article with a brief look at problems raise

Islamic law contexts where rape is categorized as a type o
zinâ, as well as contemporary arguments that this categorization
discontinuous with the Islamic legal tradition. The objective of t
article has not been to analyze contemporary efforts at legal reform
rather to examine the foundational doctrines in the Islamic law of
which enables us to assess these arguments. Thus, we might end
asking about the relevance of our findings for contemporary discussi
about the place of rape in Islamic law.
First, our findings problematize the argument that treating rape
variant of zinâ necessarily constitutes a divergence from the Isl

judge between them. [The latter] said: 'I opine that she should be flogged the hadd fo
her slander of the other (li-qadhfi-hâ ïyâ-hà), and that she be fined the dower amount fo
the deflowering .. .
62. 'ABD AL-RAZZÀQ, DKI 2000, supra note 10, at 7:330-1 (K. al-Talâq #13744)
identity of "al-Hasan" in this report is unclear. Although we often find al-Hasan al-BaSrl nar
'All's judgments and opinions in the legal àthâr, direct contact between them has no
substantiated by hadith critics and biographers. Biographical works indicated that t
overlapped by approximately eighteen years: Al-Hasan was born in 21/643 and died in 11
and 'All died in 40/661. The two shared residence in the environs of Madina until 35/656
al-Hasan was approximately fourteen years old, but 'All did not yet hold any political or
position at that early age. 'All left Madina for Küfa in 35/656, so the two were not in
proximity during 'All's ascendancy (35/656-40/661). In any case, al-Hasan would still hav
fairly young during 'All's rule, and may not have had much freedom of movement, as he wa
into slavery. Furthermore, we don't know al-Hasan to have served 'All in Küfa during his
Rather, Hasan left Madina in 38/658 or so to go to Sîstân, where he taught and served as se
to Ibn Ziyâd al-Hârithï (d. 53/673). By the time al-Hasan left Sîstân in 51/671, 'All was a
deceased. See SULEIMAN ALJ MOURAD, Early ISLAM BETWEEN MYTH AND HISTOR
Hasan AL-BasRI (Brill 2006). All of this makes it unlikely that al-Hasan al-Basn and
actually ever shared injudicial work. An alternative 'al-Hasan' in this narrative could be
son, whom the fourth caliph at times put in charge of military and administrative tasks. For
overview of the latter al-Hasan's biography, see Wilferd Madelung, Hasan B. 'AIT B. Abl
Encyclopaedia Iranica (mar. 20, 2012), available at
http://www.iranicaonline.org/articles/hasan-b-ali.

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 441 ] RAPE ASA VARIANT 461

legal tradition, since the identificati

established in that tradition. Second, this conclusion forces a
reconsideration of strategies of Islamic reform: If defining rape as a
variant of zinâ is regarded as fundamentally detrimental to women, and
if such a definition is anchored in the founding discourses of Islamic
law, then a return to that discourse seems a problematic strategy for
more gender-egalitarian laws in the area of sex crimes.
It appears that religiously grounded reformists are then left with
two basic options: One is to argue that it is not the definition of rape that
is the source of gender inequalities in contemporary Muslim legal
systems, but rather uneven application of the law.63 The other option is
to find a way to decouple the concept of zinâ from rape, and to redefine
rape in a way that can persuasively be presented as continuous with
Islamic ethico-legal discourse. In either case, the centrality of the notion
of zinâ to the definition of rape in the founding texts and discourses of
Islamic law must be recognized and addressed.

63. Charles H. Kennedy has argued that the implementation of the Hudood Ordinances did
not have "a significantly adverse impact on the [legal] status of women in Pakistan," although he
acknowledges that it has been detrimental to women at a social level, as it becomes a means of
exerting social control. See KENNEDY, supra note 2. See also Charles H. Kennedy, Islamization
and Legal Reform in Pakistan, 1979-1989, 63 PAC. AFF. 62 (1990); and, more recently, CHARLES
H. Kennedy, Islamization of Laws and Economy: Case Studies on Pakistan (Inst. Pol'y
Studies 1996). Muhammad Taqi Uthmani has argued not only that the subsumption of rape ("zinâ
bi'l-jabr") in Pakistani law did not create a legal environment prejudicial to women, but also that
to remove rape from the category of zinâ harms victims by lessening the penalty for perpetrators.
Gender injustice in the course of applying the zinà laws is due, he argues, to corruption within law
enforcement and the court system, not to flaws in the laws themselves. See Uthmani, supra note
2. See also Muhammad Taqi Usmani, The Islamization of Laws in Pakistan: The Case of Hudud
Ordinances, 96 MUSLIM WORLD 287 (Apr. 2006).

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462 JOURNAL OF LAW & RELIGION [Vol. XXVIII

APPENDIX

Methodological Concerns

Questions about the usefulness of legal reports as historical

for tracing Islamic juristic developments have sparked consid
debate. Because I am using legal reports found in compilation
second to third centuries AH (eighth to ninth centuries CE) as
for legal trends of the first two centuries, I will briefly address s
this debate. The central question is this: Do reports found in th
compilations accurately reflect the legal decisions and opinions
named authorities, who may have lived a century or more earl
central question is typically broken down into three subsidiary po
concern. The first concerns dating the emergence of the trans
chains, or isnâds, as a method of citing sources. The second p
inquiry is the facticity of these chains, that is, their reliabil
historical sources about the figures named in the chains. The third
of discussion is the authenticity of the contents of legal repor
facticity of the transmission chains aside. Much contemp
scholarship in the field of hadlih studies suggests that the com
under consideration here serve as plausibly reliable sources for
and opinions of the late first to early second centuries AH (se
eighth century CE), and as more certain sources for juristic doctri
the second (eighth) century and later.
The first issue to consider is the dating of the isnâd citation s
Although transmission chains {isnâds) are routinely found atta
the words and deeds of Muhammad, his Companions and th
generations of Successors after him, some contemporary schol
held that transmissions chains emerged well after the Prophet
Companions, and thus do not accurately document the process b
particular legal or religious content was communicated. Ignác G
is one of the earliest Islamicists to have held this position.64 John
has also argued for a later dating, on the grounds that the lin
specific doctrines were not normally seen as important until th
and third centuries.65 More recently, however, an earlier birth
the isnâds has been forwarded by G.H.A. Juynboll, who conclu

64. On the lateness of hadîth, both in terms of content and lineage, Goldziher wr
hadith will not serve as a document for the history of the infancy of Islam, but r
reflection of the tendencies which appeared in the community during the maturer s
development." IGNÁC GOLDZIHER, MUSLIM STUDIES (C.R. Barber & S.M. Stem tr
Allen & Unwin 1971).
65. John Burton, An introduction to the HadIth xii (Edinburgh Univ. Press

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 441] RAPE AS A VARIANT 463

transmission chains likely began

contents in the late first century A
generation or two after the Companion
show that one's legal doctrines posse
Lucas similarly suggests that isnads lik
40/660, when political turmoil caus
became standards according to whic
measured.67 That Juynboll and Luca
frame for the emergence and attach
radically different approaches to is
plausibility of their estimated date ran
grants the systematic use of isnáds by
(seventh century CE).68 Given the ab
seems reasonable that the conscious
parcels of content began to gain mo
second century AH (eighth century CE
A second point of contention has
the chains in accurately identifying
general position held by Goldziher,
were fabricated on a wide scale, is prob
continually read against the texts, and
dismiss the best source of information we have about the transmission of
legal ideas and practices in the formative period of Islam.69 It is equally

66. Specifically, Juynboll has argued for standardization of the isnàds during the lifetime of
the Successor al-Zuhn (d. 124/742). G.H.A. JUYNBOLL, STUDIES ON THE ORIGINS AND USES OF
ISLAMIC HadITH (Variorum 1996).
67. Lucas writes,
The logical starting place for the isnad is during the lifetime of the scholars .. . al-Zuhn,
Ayyûb al-Sakhtiyânl, al-A"mash, and 'Amr b. Dinar, some of whose pupils requested
that they identify their sources for certain reports. These pupils were of the generation of
Shu'ba and Sufyán al-Thawfi.... If my hypotheses are correct, the birthdate of the
isnàd would fall, at the latest, around the year 100/718, during the heyday of the
generation who passed away between 120-150/738-767.
Scott C. Lucas, Constructive critics, Hadith literature and the articulation of
SUNNI ISLAM: THE LEGACY OF THE GENERATION OF IBN Sa'D, IBN MA'TN AND IBN HANBAL 347
48 (Brill 2004).
68. At the same time, Motzki reminds us that the earliest written and extant reference to a
particular isnâd is not the same as its date of emergence. See Harald Motzki, Dating Muslim
traditions: A Survey, 52 ARABICA 204, 240-41 (2005). See also HadITH: ORIGINS AND
DEVELOPMENTS xliii (Harald Motzki ed., Ashgate/Variorum 2004).
69. Burton writes that "unease remains about acquiescing wholeheartedly in the suggestion
that devout and pious men, conscious of the sacred nature of the source materials with which they
worked, would engage in a policy of widespread deception and fraud ..." Burton, supra note 64,
at xvii. He also rejects two of Goldziher's grounds for the wholesale-fabrication thesis, which are
substantive variations and the ascription of conflicting statements to the same authorities. While
disagreements certainly show up in the hadith literature, Burton contends that they simply point to

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464 JOURNAL OF LAW & RELIGION [Vol. XXVIII

problematic to accept the historical reliability of the isnàd

which even by the classical standards of Muslim historians
critics were often artificially constructed and did not originat
third generation or afterward.70 Motzki has persuasively ar
intermediate position, arguing against Juynboll that the comm
the isnâds were likely real figures who functioned as the first
systematizers and disseminators of material that they had gath
earlier authorities.71 Motzki's detailed scholarship strengthe
that the isnâds may be historically reliable sources for authori
back to the late first century AH (seventh century CE) or so.
The foregoing discussion has implications for our third
which is the authenticity of the contents of the legal reports.
who is quite skeptical of acts and words attributed to Compani
Prophet, is willing to concede the veracity of doctrinal conten
to juristic figures among later Successor generations.72 Bur
willing to accept the authenticity of content attributed to the
just before al-Zuhrl, such as the "Seven Jurists" of Madina.

legal disagreements among the early Muslims. See id. at x-xi.

70. For reviews of the traditional Muslim perspective on the history of hadit
and the discipline of isnâd criticism, see the following: MUHAMMAD ZUBAYR
Literature: Its Origin, Development and Special Features (Abdal Hakim Murad éd.,
Islamic Texts Soc'y 1993); MOHAMMAD HASHIM Kamali, A TEXTBOOK OF HadIth STUDIES:
Authenticity, Compilation, Classification and Criticism of HadIth (Islamic Found.
2005); Jonathan Brown, Hadith: Muhammad's Legacy in the Medieval and Modern
WORLD (Oneworld 2009); and the many works by Muhammad Mustafa Azaml.
71. "The early common links (the generation of the Companions excluded) were the first
major collectors and professional disseminators of knowledge in general, and of traditions about
individuals of the first Islamic century in particular." Motzki, Dating Muslim Traditions, supra
note 68, at 227-28; see also his "Introduction," at xl. His position on the untenability of
widespread fabrication of isnáds is based on analyzing various lines of transmission ending in
'Abd al-Razzaq's MuSannaf along a number of variables. He concludes,
It seems very improbable that a forger arranging materials in a specific order and
labeling them falsely would have produced such highly divergent collections . . . The
investigation of the transmission structures of 'Abd al-Razzàq's MuSannaf leads,
therefore, to the conclusion that the materials he places under the names of his four main
authorities are genuine sources, not the result of fictitious attributions which he has
invented himself.
Hadith, supra note 68.
72. Writes Juynboll,
1 hold that, in essence, the historicity of the masses of aqwàl [i.e. legal opinions]
preserved in the sources... is maintainable.... In all, everything points to the
feasibility of the assumption that what we have in the way of aqwàl... may in fact be
historically ascribable to the first/seventh century personalities under whose names this
category of transmitted material is preserved ... [TJhese personalities were known for
their fiqh and [their] lives neatly tally with the birth date of the isnâd...
JUYNBOLL, supra note 66, at 300-01. Juynboll gives Sa'Id b. al-Musayyab (d. 94/713) as an
example of a personality whose aqwàl stand a good chance of being authentic. See id. at 288-90.
73. See BURTON, supra note 65, at 131. On the idea that the content of hadith might go back
even to the time of the Companions, he writes:

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441] RAPE AS A VARIANT 465

work also leads to the conclusion that t

accurately reflect the teachings of the
there seems to be a general academ
accuracy of legal reports in preser
Successor generations.
The accuracy of the reports in p
opinions of the Companions and of the
more contested among contemporar
either side are highly nuanced and of
the authority of the Prophet in his tim
knowledge transmission, the plausib
consciousness among early Muslims,
transmission due to political and oth
factor that seems to support the authen
the Companions and even the Proph
Muslim approaches to knowledge tra
knowledge seems to have been reg
lineage. Religious knowledge, in part
constructed afresh by individuals in s
that which was passed down from g
teachers to pupils. This idealization of
of the concept of sunna, while loyalt
doctrine was expressed in the notion
valued the preservation of lineages an
accepted practice would likely have
substantive continuities with their pred
to minimize juristic or judicial innov
thereof.76 This ideal of maintaining c

Many of the hadiths can be shown to spring fr

exegeses. Were that argument accepted, then part
reach back to the first attempts to understand
preserve some materials on the thinking of Musli
Prophet, then very soon after, in what might be c
Id. at 181.
74. Harald Motzki, The Origns of Islamic J
Classical Schools (Brill 2002).
75. An excellent overview of the central debates
Juynbolliana, Gradualism, the Big Bang, and Hadit
Am. Oriental Soc'y 413 (2010).
76. Burton emphasizes the way in which each ge
achievements of previous generations, such that the
Shâfi'T represent legacies far more than innovation
for ziná represent for Burton "a structure of law
Prophet and had been inherited by the generation
note 65, at 88.

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466 JOURNAL OF LAW & RELIGION [Vol. XXVIII

lends weight to the idea that the opinions and decisions o

authorities were substantively harmonious with the precedents
Companions or perhaps even the Prophet, even if the isnâ
always accurately identify the sources or transmitter
precedents, or if the wording cannot be precisely traced to
incident or pronouncement.77
For the purpose of this inquiry, it is not necessary to s
these trends undeniably or even likely go back to the Compani
Prophet himself—that is, that the first parts of the isnâds are
certain. We only need to ascertain that the legal reports at
reflect substantive trends in Islamic juristic discourse
practice of the first two centuries or so of Islam. Recent sc
hadïth studies, reviewed here, suggests that this is so, and tha
the legal reports, we can speak with some certainty a
discourses of the formative period.

Jonathan Brown's conceptualization of the goals of hadith transmission is inst

Rather than regarding the goal of transmission as solely historiographical, he
transmitters also regarded their activity as devotional, a means by which one c
oneself into the lines of a received tradition. Jonathan Brown, The can
BUKHÂRI AND MUSLIM: THE FORMATION AND FUNCTION OF THE SUNNl HADITH
(Brill 2007). See generally id. at ch. 3.
77. A parallel approach has been taken by Jonathan Brockopp in his studies
presented in the MukhtaSar of Ibn 'Abd al-Hakam. Brockopp posits arcs of doctrin
during the formative period of Islamic law—that is, between 10/632 and 150/
comparison between Qur'ânic legislation and the doctrines found in late 2nd/8th
century legal sources. JONATHAN E. BROCKOPP, EARLY MÀLIKI law: Ibn 'Abd
His Major Compendium of Jurisprudence (Brill 2000).

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