Chaminda Jayanetti speaks to the president of Britain’s main Islamic law court about rape within marriage.
It is hardly the most obviously controversial of statements:
The husband undertake not to abuse his wife/child(ren) verbally, emotionally, physically, or sexually.
This statement is from the London-based Muslim Institute’s Muslim Marriage Contract, published in 2008 as an attempt to modernise the contract governing many Islamic marriages in Britain. But few within the British Muslim establishment were impressed. Britain’s main Islamic sharia court, the Islamic Sharia Council, produced a swift rebuttal of the contract, including the statement on sexual abuse (page 6 here).
Sheikh Maulana Abu Sayeed is the president of the Islamic Sharia Council. A softly spoken elderly man with the manner of a kindly grandfather, he is far removed from a firebrand radical Islamic preacher – indeed, he is nothing of the sort.
But sitting in a small office at the al-Tawhid Mosque in East London, where the Council’s sessions had been relocated while its nearby headquarters were renovated (the Council has now moved back), I asked Sheikh Sayeed whether he considered non-consensual marital sex to be rape.
“No,” he replied. “Clearly there cannot be any ‘rape’ within the marriage. Maybe ‘aggression’, maybe ‘indecent activity’.”
He said it was “not Islamic” to classify non-consensual marital sex as rape and prosecute offenders, adding that “to make it exactly as the Western culture demands is as if we are compromising Islamic religion with secular non-Islamic values.”
The Islamic Sharia Council handles very few cases of alleged marital rape – Sheikh Sayeed said there had only been two or three such cases since the Council was founded in 1982. It is therefore unlikely that the Council’s views on this issue, or those of Sheikh Sayeed himself, directly impact upon a significant number of marital rape victims.
Sheikh Sayeed made his opposition to non-consensual marital sex absolutely clear – “of course it is bad, one should not jump on his wife as and when he desires” – but he said that it was wrong to prosecute it as rape:
“It is not an aggression, it is not an assault, it is not some kind of jumping on somebody’s individual right. Because when they got married, the understanding was that sexual intercourse was part of the marriage, so there cannot be anything against sex in marriage. Of course, if it happened without her desire, that is no good, that is not desirable. But that man can be disciplined and can be reprimanded.”
Rather than pursuing miscreants through the criminal justice system, Sheikh Sayeed felt the sharia court was better placed to handle such cases by policing offenders by “Islamic means”. He explained the Council’s approach:
“If such a man comes to us, to ask him not to repeat the same, ask forgiveness from his wife, ask forgiveness from Allah as well, and make a new contract that he would never do it, otherwise his wife will have the liberty to finish the marriage unilaterally. This sort of relief is available.”
By contrast, he said the prosecution of marital rape was due to misguided Western values: “Why it is happening in this society is because they have got this idea of so-called equality, equal rights. And they are misusing these equal rights in every single aspect of human conduct. That’s why. It is one aggression against another, and that is bigger aggression against minor one.
I asked Sheikh Sayeed what he considered to be the “bigger aggression”.
“To call it rape. Rape is a criminal offence in this country; man will end up in prison for three, five years or more.”
So the non-consensual sex is the minor aggression, and calling it rape is the major aggression?
Why is calling it rape a major aggression?
“Because within the marriage contract it is inherent there that man will have sexual intercourse with his wife. Of course, if he does something against her wish or in a bad time etc, then he is not fulfilling the etiquettes, not that he is breaching any code of sharia – he is not coming to that point. He may be disciplined, and he may be made to ask forgiveness. That should be enough.”
Sheikh Sayeed said he would not immediately advise a wife who claimed her husband had raped her to go to the police. “Not in the beginning, unless we establish that it really happened. Because in most of the cases, wives, as they have been advised by their solicitors that one of the four reasons for which a wife can get a divorce is rape, so they are encouraged to say things like this that may not be the true picture of the situation.”
I asked if this meant he felt some women were falsely alleging rape.
“Yes, yes, in the most cases. A lady who came to us with this sort of idea, after some time, after a few months, she said it was only to expedite the procedure of divorce.
On this occasion, the Council had already granted the wife a divorce. “We were talking to both sides – one side is in denial, and the wife has been insisting. But later she has given up her claim and then admitted that it was only to expedite the procedure of divorce.”
While this specific case may have been a false allegation, it is not at all representative of alleged rape cases nationally. Research indicates that only eight percent of rape cases reported to the police are classified as false allegations (page 63 of this PDF file).
While nearly 60 percent of rape cases that reach court end in a conviction, a huge proportion of alleged rape incidents never reach court due to problems securing evidence or victims being unwilling to endure the added emotional trauma of a court case. As a result, only around six percent of rape incidents reported to the police end in a conviction, while the previous government estimated that 75-95 percent of all rapes were never even reported to the police at all.
“If nothing helps,” said Sheikh Sayeed, “at the end she may call the police if it is genuine, and unless she can prove from DNA and other tests, she cannot succeed there.” On that point, the statistics bear him out.