On Rape
From Silvers
This class explores rape as a breach of consent from the perspective of both American and Islamic law. Joan McGregor's book Is it Rape will form the basis of my discussion regarding American Law. Kecia Ali's Sexual Ethics and Islam will form the basis for my discussion in Islamic Law. Islamic law does not provid women with the right to consent. Sexual consent for women in Islamic law can be characterized as a negative consent by means of silent acquiescence or positive consent through the sale of her right to refuse sex at the time of marriage by means of the dowry. Lay Muslims and Islamic legal specialists alike have been looking to American law for legal strategies to resolve inequities in their own legal tradition. While I do not have the training or authority to propose any legal strategies in Islamic law, I would like to explore the possibilities of a more robust notion of consent in an Islamic context by reflecting on the development of this notion in American Law as a resource for myself and others.
Contents |
What is Rape from the Perspective of Consent
From American Law
Is It Rape?
- Joan McGregor's book, "Is It Rape? On Acquaintance Rape and Taking Women's Consent Seriously, gives a legal history of the notion of consent from pervious cases to present cases; it considers how American law might develop a more robust legal notion of consent. McGregor comments on the fluidity of the notion of consent in the public and private realm. The following chapter summaries from her book highlight the major concerns and are accompanied by my own questions and comments.
From Islamic Law
- Islamic Law ([1]and [2])is the divine will as interpreted by authoritative legal scholars. Legal scholars discover the divine will by means of Islamic jurisprudence (fiqh). In both the Sunni and the Shia context, jurists rely on long-established methods of interpretation (usul al-fiqh) of the Qur'an and Hadith to render general and particular rulings in the different legal branches (furu`), i.e., family law, contract law, capital law, or matters of worship. Like American law, possible rulings are considered through legal precedent. In other words, any ruling addressing contemporary concerns is necessarily rooted in past legal assumptions and thus guarantees a sense of continuity and authority leading back to the Prophet through generations of legal scholars.
Sexual Ethics & Islam
Kecia Ali examines the legal history of rulings on gender and sexuality in her book Sexual Ethics and Islam: Feminist Reflections on Qur'an, Hadith, and Jurisprudence. Ali brings to light the typically sexist legal assumptions of the past to ask whether new legal rulings on gender matters can be just if the legal precedents upon which these rulings were established are unjust. Ali addresses the legal nature of consent in several related chapters. The following chapter summaries from her book highlight the major points and are accompanied by my own questions and comments.
Reading:
Related Articles by Kecia Ali in her Website
Sexual Ethic and Islam, Feminist Reflections on Qur'an, Hadith, and Jurisprudence
Where do I Go from Here?
- As a secular scholar of Islamic Intellectual History, my goal is to explore the meanings of sexual consent, specifically female consent, in American and Islamic Law. As a female American Muslim scholar of Islamic Intellectual History, I'd like to share what I have learned with other interested Muslims in an accessible manner. Neither of these roles qualifies me to propose legal solutions for Muslims here or abroad. Rather, I hope that these pages will be taken as a contribution to the ongoing conversation on gender injustice in Islam.
- Personally, I was especially concerned how the relative lack of female consent in Islamic law affects my own life and that of my Muslim sisters. I am an American Muslim woman committed to the Islamic legal tradition. Through this project, I was able to examine my rights as a woman within American and Islamic law particularly in the context of marriage.
- I would like to continue my research to examine whether there are possibly a biologically specific male behaviors that infringe on female consent. Is there a biological root for gendered notions of consent?
Resources
An Introduction to Behavioral Endocrinology will help develop and examine the neuroendocrinological hormonal affects on the behavior of both genders.
Inside the Gender Jihad: Women's Reform in Islam Amina Wadud's writing will provide personal experience into the world of Gender reform for the Islamic sexual ethic.
Bibliography
- Ali, Kecia. Sexual Ethics and Islam: Feminist reflection on Qur’an, Hadith, and Jurisprudence. Oxford, England: One World Publication: 2006.
- McGregor, Joan. Is it rape? On acquaintance rape and taking women’s consent seriously. Burlington, VT: Ashgate Publication: 2005.
- Mernissi, Fatima. The Veil and the Male Elite: A Feminist Interpretation of Women's Rights in Islam. Perseus Press, 1992.
- Wertheimer Alan. What Is Consent? And Is It Important? BUFFALO CRIMINAL LAW REVIEW; 2000, Vol. 3:557-583.
- Harris Lucy R. Towards a Consent Standard in the Law of Rape. The University of Chicago Law Review, Vol. 43, No. 3. (Spring, 1976), pp. 613-645.
- Joffe M., C. W. Christian, J. M. Lavelle, A. R. De Jong, J. Loiselle, and L. Brenner. Forensic Evidence Findings in Prepubertal Victims of Sexual Assault. Pediatrics 2000 (updated April 10, 2007);106;100-104
- Temkin, Jennifer. Medical Evidence in Rape Cases: A Continuing Problem for Criminal Justice. The Modern Law Review, Vol. 61, No. 6. (Nov., 1998), pp. 821-848.
(Still Updating)
Resources on Rape
The Federal Government Source for Women’s Health Information
Women’s Organization Against Rape
The Rape, Abuse & Incest National Network, Nation's Largest Anti-sexual Assault Organization
Resources on Islamic Ethics
British Broadcasting Company's reportings on Islam
