What punishment is given to a person who has intercourse with a captive woman?

The Details of the Question

- According to Ahl as-Sunnah, it is prohibited to rape captives, as far as I know.
- If a mujahid had intercourse with a captive before the booty was divided in Islam, that is, before the captives were distributed as concubines, what would be the punishment in the Islamic law?
(I will be glad if you mention the source)

The Answer

Dear Brother / Sister,

Yes, a soldier who rapes a captive woman can be sentenced to flogging or death penalty.

Today, there is no slavery and concubinage; captive men and women are only captives and are treated as captives.

When the decrees and practices about slaves and concubines, which were the property of believers during the periods of concubinage, are examined in terms of their purposes and the measures taken, it is understood that all of the slaves were aimed to be freed over time. Until that result was achieved, the Muslims were asked to treat them as people entrusted to them (to give them the same food as they eat, the same clothes as they wear and not to torture, oppress, insult or beat them…).

In some periods in the history of Muslims, the Islamic rules of war were violated, though a little, and the red lines in the treatment of captives (slaves and concubines) were not respected. The goal of freeing the slaves over time was also neglected; therefore, enslavement and slavery continued for a long time. There is no obstacle for the Islamic state to accept the rules related to prisoners of war in terms of human rights in international conventions and practices. For this reason, slavery and concubinage ended in Islamic countries as well.

The decrees given about the issue mentioned in the question during the periods of concubinage are as follows:

According to Hanafi and Shafi’i madhhabs, hadd (penalty) of fornication is not applied to a person who has sexual intercourse with a captive woman, but the penalty of tazir is given because it is not clear to whom the concubine in question belongs since the distribution of the booty has not been made yet. However, in general, the mujahid in question also has a right related to that concubine. In accordance with the order of the hadith, “If there is doubt, do not apply the penalties” (Munawi, Faydul-Qadir 1,227); the hadd penalty should not be applied.

However, since what he has committed is a sin, a tazir penalty that the judge deems appropriate is given.

Tazir penalty is the penalty that the judge deems appropriate, such as harsh words, imprisonment, flogging and death, depending on the state of the offender and the nature of the crime.

Accordingly, a person who rapes a captive woman can also be given death penalty under the penalty of tazir.

According to Imam Malik and Abu Thawr, the punishment of HADD is applied to a person who rapes a captive woman because the crime of rape is committed though he knows that it is haram. (see Ibn Qudama, al-Mughni, 9/324)

Note:

The Islamic state may enact a law that the soldier who rapes a captive woman will be punished with hadd penalty or directly with death penalty, and it may punish the perpetrator of this crime with hadd penalty or execute him.

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