Dear Editor,
According to the broadest definitions now current, marital rape occurs when the violator exacts submission whilst the victim is subject to physical violence, but also to the threat of violence, or submits in fear, under threat, in a state of sleep, or under the influence of medication or disabling drugs, and is therefore in a condition where consent is withheld or cannot be freely given.
In other words one cannot beat one’s wife or be beaten by one’s wife when the objective of the thrashing is to extract sexual favours. Nor can one be seen by neighbours sharpening a cutlass which, climbing the steps to the bedroom one places with a menacing look at the foot of the conjugal bed as a preliminary. Nor can one arrange to get her drunk. Nor can she, by threatening to hide your bottle of rum or denounce your ‘runnings’ induce such fear in you as to render you weak to her ministrations. Nor can you, at four in the morning fling yourself upon the victim finding herself in a state of sleep and therefore incapable of consent. At first glance therefore, the accusation of marital rape is the new minefield which Guyanese men find spread before them. And unless we know exactly what is expected of us, post-marital celibacy may be the only sure protection.
It is possible to approach the consultations on ‘marital rape’ with the conceptual categories of a timeless and immutable legislation, the Quran and the Shariah or Muslim law, and to turn away surprised, even dejected by the confusion that the proposed legislation engenders.
The Quran is explicit about the behaviour expected of the married couple. In the Chapter Ar Room it is stated “And among his [Allah’s] signs is this: that he created for you mates from among yourselves that you should live in tranquillity with them, and he has put love and compassion in your hearts.” Marriage, then, should be love, harmony, peace, mercy, charity, respect.
That we should fall short of these high ideals is expected of the human condition. That cruelties of all sorts, deprivation of natural rights, physical verbal and mental abuse, selfishness, recalcitrance and stubbornness, betrayals, and so on will attend the marital state is a condition on which romance novels and television drama find a sure and constant source of narrative and plot. That some will sexually impose themselves − to show power, to express a need for reassurance, to utter a heartfelt desire for love, to humiliate, to punish, to avenge themselves − is also to be expected. So there will be degradation of the relationship in many areas. But at what point can we look at the accused and decide that he is guilty of rape?
There is no case law in the history of Islamic jurisprudence that establishes a precedent for the trial of men or women for ‘marital rape.’ The Muslim position prohibits force, threat and cruelty in the intimate rapport between the sexes. But rape cannot, in the opinion of the majority of scholars, occur within a marriage.
The Muslim position is closer to the opinion of Sir Matthew Hale, Chief Justice of what is now the United Kingdom, who wrote centuries ago, “The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself in kind unto the husband which she cannot retract.” It was generally held that wives cannot rape men since the act of rape required and implied penetration.
There is, therefore, by this construction, no such thing as ‘marital rape.’ It is a contradiction in terms. And the Islamic opinions generally present the question in two ways:
1. The husband should not, except in case of physical indisposition, or mental and psychological inability, deny his wife sexual access to himself. Nor should the wife deny the husband such access except in similar cases
2. Neither men nor women have the right to arbitrarily or unreasonably deny sexual access to a spouse.
Sheikh Muhammad al Harooti of the North American Fiqh Council says that “a man should never force his wife nor should she refuse him from hatred, arrogance or denial.”
In the case where a woman refuses herself to her husband, the declarations of the Prophet Muhammad (on whom be peace) as reported in the collection of Bukhari and Muslim make it clear that the husband has no right to impose himself. The hadith states, “When a man calls on his wife for sexual intimacy and she refuses and he spends the night in anger, then the angels curse her until the morning.” Two things are clear here. The wife should not unreasonably and arbitrarily refuse since a prime function of marriage is to share intimacy with the spouse. And the man is not to beat or threaten her into submission.
If he does so should he then be considered guilty of rape? In the opinion of the Turkish High Court a year ago, he cannot and should not be considered so guilty. Rape is not simply forcing someone to have sex. It is forcing someone with whom one does not currently share rights to a legal sexual relationship. Rape in Islam is generally a capital offence. Your wife leaps from the marriage bed and lights out for the police station and the next thing you know they behead you and she gets the convenience store, kids, bank account and the coveted role of victim.
One American researcher states that as much as 15% of married women are being raped. At least in the United States you may only get years or life.
Yours faithfully,
Abu Bakr
