Introduction

This chapter will begin by highlighting the salient features of the discourse on “rape” and sexual offences in medieval Islamic legal texts with the aim of highlighting the expansiveness of “rape” as a legal concept. Accordingly, the chapter will be divided into several parts. First, I will offer an introduction to the topic and delineate the methodology used in this chapter. Then I will outline the different kinds of “rape” legally recognized as criminal offences and part three will deal with the different forms of justice suggested for these crimes. Finally, the last part will conclude by exploring the implications of the expansiveness of medieval Islamic legal condemnations of sexual violence.

The term “rape” is used in this study in the broad sense recently defined by Pillay as a “physical invasion of a sexual nature committed in circumstances which are coercive.” This definition was chosen for various reasons. First, it does not follow previous definitions of rape, often based on an assumed and inadequate binary of violence or consent. Defining rape as a crime of violence has been criticized for privileging violent sexual assaults, especially stranger rapes, and proof thereof; this focus can obfuscate the more widespread acquaintance rapes that do not resort to the violent suppression of the victim's will. Furthermore, definitions of rape that locate the wrongfulness of rape in the negation of the victim's consent often shift the focus of rape investigation onto the nature of consent or dissent, the victim, her demeanour, sexual history and so on, rather than the perpetrator. Pillay's definition makes coercion the base for the wrongness of rape. This definition includes myriad sexual acts under the rubric of sexual violation without tying such sexual “invasion” to a particular gender, in terms of the victims or the perpetrators. The medieval primary sources explored in this study are similarly capacious in terms of the conception and definition of sexual violence. Consequently, I use the term “rape” in the broadest sense possible to indicate a wide spectrum of sexual offences.

Medieval and premodern Islamic legal texts interested themselves in sexual offences involving violence, coercion, threats, or seduction. Indeed, rape was portrayed as complex and differentiated, and defied a single monolithic definition.