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
This sounds like the same school of jurisprudence which resulted in the murder of Asha Ibrahim Dhuhulow by people working in the name of this author’s God.
All those words boil down to one saying YOU CAN’T TAKE THE KITTY CAT WITHOUT PERMISSION PERIOD, and you should face whatever consequences follow.
Beautifully put tony. No-one I guarantee …. can better your summing up!!!
O’ to be Guyanese!!!!
rite on, tony.
no permission
no purr
wife or girfriend or whoever
PERMISSION REQUIRED!
Vidyaratha, what do you mean by the above ? Weren’t you the one calling for religious tolerance etc. some time ago? Or should one only be tolerant of hindus ? It is as if I respond to a letter about hindu ideas of womanhood (Lakshmi, Sita etc) with a comment about caste rape and bride burning. Pull yourself together.
Bakr: Do not get warm under the collar. You have stated your understanding according to Muslim Law.? But who are there to insure that what is written is followed? Futhermore this is a State legal matter, which the State will handle with serious input from religious and civic organisations. Let good judgement prevail.
One tends to defend one’s religious beliefs, as we understand them and we try to adhere to these beliefs as best as we can, but these are not Laws of the Land. There is a great difference here. Even when the Law is passed and all agree with it, we wil later find that there are some things which will not be to our liking. So be it. Maasha Allah.
Social laws are not cast in stone…so, laws such as stoning to death…chopping off of hands etc have to give way to more civilized methods of punishment…when the Holy Prophet…allowed his followers to have more than one wife it was out of his concern for the welfare of widows and to prevent society from becoming loose…not permission for men to satisfy their lust…however,today where in some societies men outnumber women, some men still point to this law to justify their sinful desires…Moses’ law was an eye for an eye…is this possible today.?….he forced everybody to rest one day and called it the sabbath,he even had a poor man stoned to death for violating that law…can the world be shut down for one day?…so we see that laws that govern society have to be re-visited from time to time…to make sure that they do not strangle the society they seek to protect..
I do not support any laws that try to circumvent stated laws.The law of the land is the supreme law. It is law for all.No religious law, whatever, should be allowed to override the laws of the land. You cannot have things both ways.The practice of acomodating other laws, will defeat the purpose of actually having laws of the land.
I wonder what marriage vows look like in other religions. If there aren’t any like there is in the Christian religion then one has to ask what is presumed in a marriage. Is there anything like when two persons marry they have a contractual obligation to meet the sexual needs of each other? Should refusal at any time to meet those needs tantamounts to a breach of contract and therefore grounds for divorce? I have to agree with Tony (tony), whether married or not, any act of sexually imposing oneself upon another person is rape, period! The muslim jurisprudence referred to above is basically androcentric at the same time it presumes that marriage makes the woman a property of the man.
Christianity is not a religion per se, just followers of Christ. Proper Catholic (Which is Christian), normally try to stay out of a husband and wife beds. Should a problem arise in your marital life, you may surely find counseling at your church if you choose to seek it, but in general religion should be teaching you compassion, understanding and love, which are the characteristics of God, nothing else. If your religion makes too often mention of negative deeds, you may get confuse whether it is been condoned or condemned.
I think it would do the world a great favor if all religions taught to put God in your hearts and leave the law in the hands of the judge.
State laws emphasise the contract while religion emphasises the covenant. None of these make reference to the any obligation with respect to meeting the sexual needs of partners. Marriage vows give no sexual rights to either partner. Sex is something that arises out of a relationship and a voluntary giving of one self to the other. Any imposition is rape of the other person.
Again the whole idea that a woman cannot rape a man is utter rubbish. It is a limited definition of rape. Rape is not just physical, even then can’t a woman impale herself on a man against his will? And don’t argue that arousal of the man shows consent, that shows a lack of understanding of the male body.
Madan,
Some laws are eternal, some are conditional. Laws dealing with punishment for offences such as chopping off of hands usually insist on some conditions being met. Fineman may have been alive today if his hand was chopped off early. He may have learnt his lesson. As for polygamy- do not be afraid. It is not obligatory. But neither is it only permitted in the exceptional circumstances of war etc. The true believers living in the eternal and sublime peace of paradise after death will ALL be polygamous. It is the ideal human marital system. Don’t bother with what Vidyaratha says. He has another agenda.
Cesar
There is “state law” but it is never free from cultural and religious influences. What we are trying to do in Guyana is to modify the whole body of Judeo Christian inspired law we inherited. We function like a christian creole society. Mind you, there are many countries where several legal systems co-exist. The British in Indian and the Muslims in every country where there were religious minorities permitted group-specific laws for some matters. In India today Muslim law co exists, for some matters with “state law.”
Marlon comes from a different time and space. Of course, contrary to what he or she has written, marriage between consenting persons gives sexual rights. And, under muslim law, failure to provide or deliberate denial of these services is grounds for divorce. No need to rape. Get another. By no stretch of the imagination is woman considered a man’s property in Islam. Read the literature. As to woman raping man, this is a question of definitions. “Impalement” is not even necessary.
Read your own quote for Sir Mathew Hale and try to fathom the adroncentrism in his opinion. He speaks of a husband’s rights, not that of the wife’s. He speaks of the wife’s obligation which comes with marriage to meet her husband’s sexual needs. Is this a marriage between two humans or a business transaction? Sorry, you are to steeped in an archaic world that you cannot understand the subtle sexism and misogynism that pervade many of the state and religious laws we tend to hold as eternal and immutable. It takes a particular conservative posturing to not realize that taking scriptural texts out of context is just a pretext for abuse of numerous forms including the second class treatment of women.
You have to realize a number of things here. Laws are not made for birds of prey to perch. So called modifying certain laws will set a dangerous precedent. Look at what is happening to the marriage laws over here in the USA. Gays and lesbians are trying to rewrite laws. You cannot have things both ways. It is either one or the other.We must not show a promise of that talent. If certain religions want to abide by their religious laws, whatever they are doing, must not affect , add, or detract, from the laws of the land.
Marlon got you going .
Brother Bakr,
I totally agree with you when you say that some laws are eternal and some are conditional….Laws that govern our relationship with the divine are eternal…ideas about salvation,ways of reaching God ,praying,charity,karma,etc …are eternal…however the conditional laws are only good for that situation at a particular time,it may or may not be useful when the situation has changed…take a curfew for example…when the danger is passed,it would be silly to still have it…the difficulty is to distinguish the eternal from the social..
not difficulty,
impossibility