Sheikh Maulana Abu Sayeed, president of the Islamic Sharia Council in Britain says that under Sharia law, there can be no rape in marriage “because sexual intercourse is part of the marriage”. That is clearly a repulsive view, because as much as sex may be part of a relationship or a marriage, the idea that one side can take it with force against his/her partner’s will is beyond what most couples would agree on. Surely this view will be refuted by other scholars of the Sharia, demonstrating what an ambiguous and unreliable set of “laws” the Sharia constitutes. (This will be the subject of another blog, and maybe one day of a more scholarly article.)
I wold however like to draw your attention to three other points:
1. Contrary to what the amount and volume of the debate about the influx of Sharia law in Britain would suggest, the Islamic Sharia Council is no court and does not have any legal authority. If couples approach this council, they do so voluntarily. The Sharia Council has no authority to force anybody to subject himself or herself to its proceedings.
2. Even the Sharia Council itself does not purport to have any authority regarding criminal law, although the question of rape within a marriage can admittedly become relevant in a divorce proceeding (over which the Sharia Council claims to have some kind of Islamic authority).
3. But most interestingly, especially from a comparative and historical aspect, is when other legal systems which we believe to be civilised, modern and respectful of women’s rights made rape within marriage a crime: In Britain, this was the case in 1991, in the United States between 1975 and 1993 (in the US, both criminal and family law is largely state law and can thus be different in some or all of the 50 states), Canada followed suit in 1992, Ireland in 1990, Germany embarrassingly late in 1997.
Interestingly, another country criminalised marital rape and based the relevant Supreme Court decision on religious law as well (Jewish, not Muslim in that case): Israel in 1980.
I am not saying that we should refrain from criticising Sharia advocates for their interpretation of Islamic law, but we have to be prepared to face some questions about why it took us so long to take the right steps. And as predominantly Muslim countries like Turkey (2005), Malaysia (2007) and Tunisia (2008) have made marital rape a crime, this might actually be one issue where the approximation of what could be seen as the consensus of Muslim thought is far less behind than in some other legal areas. Let us not forget that some non-Muslim countries like the Bahamas, Mongolia or Zambia still do not view rape of a wife by her husband as a crime.