I got a mass e-mail about this, and it seems to be making the rounds, so it struck me as worth blogging about. Telegraph (UK) reports:
Sheikh Maulana Abu Sayeed[, president of the Islamic Sharia Council,] said that sex without a wife’s consent was “not good” but could not be called rape....
In an interview with the website The Samosa, he said: “Clearly there cannot be any ‘rape’ within the marriage. Maybe ‘aggression’, maybe ‘indecent activity’.
“It is not an aggression, it is not an assault, it is not some kind of jumping on somebody’s individual right. Because when they got married, the understanding was that sexual intercourse was part of the marriage, so there cannot be anything against sex in marriage. Of course, if it happened without her desire, that is no good, that is not desirable. But that man can be disciplined and can be reprimanded.”
An Assembly of Muslim Jurists of America fatwa seems to take a similar view, though it is not as clear:
[Q:] My questions are these: Is there a such thing as marital rape in the shari`ah?
On another note, is a man permitted to FORCE his wife to have sexual intercourse with him? this is obviously when she is naashiz and unwilling to have coitus....
[A:] Fatwa ...
For a wife to abandon the bed of her husband without excuse is haram. It is one of the major sins and the angels curse her until the morning as we have been informed by the Prophet (may Allah bless him and grant him peace). She is considered nashiz (rebellious) under these circumstances. As for the issue of forcing a wife to have sex, if she refuses, this would not be called rape, even though it goes against natural instincts and destroys love and mercy, and there is a great sin upon the wife who refuses; and Allah Almighty is more exalted and more knowledgeable.
Now this view strikes me as entirely wrong; forcing someone to have sex should be seen as rape whether the person is one’s wife or anyone else. Marriage is not tantamount to selling oneself into sexual slavery, which is what the “understanding when they got married” line seems to suggest. I think we ought to condemn those people and doctrines that teach that such behavior is anything less than a very grave crime (one of the gravest of crimes).
This having been said, we also ought to recognize that our own legal system took a very similar view until very recently. As the Telegraph article points out, “Rape within marriage has been illegal in Britain since 1991.” According to LaFave’s Substantive Criminal Law treatise, “as recently as 1985 it could still be said that the [marital exemption to rape laws] existed in about thirty states.”
My sense is that virtually all states now do treat forcing one’s wife to have sex as a very serious crime, though there might be some exceptions even as to that. South Carolina law, in particular, generally defines rape to exclude sex with one’s spouse if the spouses are living together (see § 16-3-658), and then defines a separate offense for sex with one’s spouse “when accomplished through use of aggravated force, defined as the use or the threat of use of a weapon or the use or threat of use of physical force or physical violence of a high and aggravated nature” (see § 16-3-615). This latter offense seems to exclude forcing one’s wife to have sex without a weapon and without force that is less than that “of a high and aggravated nature” (and seems to implicitly reject the theory that all such force is by definition “of a high and aggravated nature”). And it provides for a lesser punishment for marital rape, though still a quite substantial punishment (10 years rather than 30 years, if I read it right). Please let me know if I’m misreading this, or if you know of other state laws that exclude some forcible rape of one’s spouse.
But in any event, whether I’m reading South Carolina correctly or not, we ought to remember that the sins of these interpretations of Islamic law today were shared by our own legal system within the past three decades. That shouldn’t keep us from condemning Islamic law on this, of course. But it should put this failing of Islamic law (again, as understood by those interpreters) in perspective. Among other things, this particular aspect of Islamic law is not much of a mark of the law’s supposed vast backwardness or inferiority (though that leaves the possibility that other aspects might be such marks). UPDATE: Saying “This legal system outrageously endorses this evil view that our own legal system outrageously endorsed until the 1980s or later” — rather than just “This legal system outrageously endorses this evil view” — helps us recognize that the system is, in this respect, mere decades rather than centuries behind us.
I should note that in certain borderline cases the law might well view consent as presumed from a preexisting relationship, especially a marriage. Sexually fondling a sleeping spouse (or lover), for instance, should be quite different from sexually fondling someone with whom one does not currently have an established sexual relationship. Likewise, whether sex with someone who is mentally incompetent — for instance, someone who is suffering from dementia — should be criminal might reasonably turn on whether there was a preexisting sexual relationship from which continuing consent could be plausibly inferred (though there might be other lines drawn as well). But that has to do with situations where consent is inferred from silence (or inferred in the absence of ability to either consent or say no), not where the other person clearly refuses to consent.