Thread by @PenAbdull

Thread: Sexual consent, marriage, and concubines in Islam

A well-written treatise by Abu Amina Elias

In the name of Allah, the Gracious, the Merciful

Consent in lawful sexual relations (that is, a valid marriage) is an important moral consideration in Islam. After all, marriage should be based upon love & mercy, as stated in the Quran, & part of a healthy sexual relationship is the mutual pleasure experienced by both parties.

The concept of ‘consent,’ however, has been transformed by modern developed secular liberal societies into not only a moral consideration, but the primary legal requirement that makes sex lawful.

They no longer require a valid marriage contract for sex to be deemed lawful and, in many places, adultery is no longer a crime.

This transformation has not only contributed to the proliferation of sexual promiscuity and an epidemic of sexually-transmitted diseases, but also to legal confusion as ‘consent’ is often subjective and is difficult to define and establish as a matter of law.

Consent may or may not be stated outright in any sexual encounter, it may be implicitly understood by one party and not another, it may be withdrawn after the fact upon reflection, or it may be lied about.

Matters become all the more confusing when the consumption of alcohol is involved, placing liberal policy-makers in the difficult position of reconciling the legal protection afforded to extramarital sex and alcohol use with the vagueness of consent.

Historically, Muslims considered sex to be lawful in only two cases: marriage&concubinage. These boundaries are clearly defined&more objective as a legal basis than consent. Therefore, the discussion of consent as a matter of law is less relevant to Muslims who adhere to Islam

By confining sex to marriage and avoiding alcohol, Muslims are secure from the legal and moral anarchy that the sexual revolution has unleashed.

That said, consent as a moral consideration is not an irrelevant discussion. Early jurists did, in fact, prohibit a man on moral grounds from coercing his wife or concubine into sexual relations, as one of the purposes of lawful sexual relations is mutual pleasure.

Likewise, if a wife is by herself with him or a servant girl of his with whom he has sexual relations, he is commanded to fear Allah Almighty and to not strike her during intercourse…As for sexual intercourse, its purpose is pleasure&no one may be forced into it. al-Umm 5/203

Some academics&anti-Muslim activists accuse Muslims of sanctioning ‘rape’ via concubinage, on the basis that modern notions of consent were absent,

but to do so is to inaccurately transpose a very modern legal discussion, in a very modern libertine social context, onto a pre-modern society for whom these issues were not considered important.

Yet Islam, even in its earliest stages, had legal mechanisms to protect women from sexual violence without the need for enshrining consent into law.

The principle of ‘no harm’ provided women with protection from male abusers ever since the Prophet (ṣ) decreed it, and it serves as a universal principle from which modern laws can be derived to confront uniquely modern abuses.

Unlike consent, which modern societies still struggle to properly define, the prohibition of harm is an objective and comprehensive category that effectively outlaws rape and sexual assault and any future forms these violent crimes may take.

The Prophet (SAW) said: Do not cause harm or return harm. Whoever harms others, then Allah will harm him. Whoever is harsh with others, then Allah will be harsh with him.

al-Sunan al-Kubrá 11070,

It is unlawful for a Muslim man to harm his wife or his concubine, either physically or emotionally, particularly during sexual intercourse. Whoever harms another person, except in order to repel or prevent a greater harm, Allah will inflict him with harm equivalent to his sin...

As such, acts of sexual violence and assault, or ‘rape,’ are unlawful in Islam as these are obviously harmful and unnecessary acts.

This legal mechanism, and not consent in itself, was the route through which sex crimes, committed in otherwise lawful sexual relationships like marriage, were forbidden by Islam.

An-Nawawi: “If it is possible to have intercourse with her without harming her, then he may do that. If it is not possible for him to have intercourse with her except by harming her, then he does not have permission to have intercourse with her.

Al-Majmū’ Sharḥ al-Muhadhab 16

For marriage, every potential wife has the right to accept or deny a marriage proposal. The marriage contract is itself a clearly defined legal statement of consent.

If a wife refuses sex with her husband without a good reason, and it causes him to spend the night angry with her, she is subject to moral condemnation by the angels but no sanction is given for him to force himself upon her.

In sum, Islam has prohibited all forms of sexual violence against women, even if the sexual relationship has a lawful basis.

It can be inferred from the Quran and Sunnah that consent was and is an important moral consideration in a healthy and lawful sexual relationship, as was understood by Al-Shafi’i and others

Consent, as a primary legal requirement, is a distinctly modern phenomenon born out of liberal societies’ abandonment of marriage as the defining pre-condition for lawful sexual intercourse.

Transposing this new cultural conception of consent onto pre-modern societies and legal texts has led some writers, including some wayward Muslims, to inaccurately claim that sexual violence is approved by Islam.