So? He is your Husband!

Analysing the
possibility of Reconceptualising Rape
(Ightisab) as a way to further regulate
Marital Rape in Arabic Muslim States:
The case study of Egypt
Masud, M.
Published PDF deposited in Coventry University’s Repository

Original citation:
Masud, M 2022, 'So? He is your Husband! Analysing the possibility of
Reconceptualising Rape (Ightisab) as a way to further regulate Marital Rape in Arabic
Muslim States: The case study of Egypt', Jus Corpus Law Journal, pp. 23-44.

DOI [ ]
ISSN 2582-7820

Publisher: – Ayush Pandey

This is an Open Access article distributed under the terms of the Creative
Commons AttributionNon-Commercial-Share Alike 4.0 International (CC-BY-NC-SA
4.0) License, which permits
unrestricted non-commercial use, distribution, and reproduction in any medium,
provided the
original work is properly cited.
 Jus Corpus Law Journal
Open Access Law Journal – Copyright © 2022 – ISSN 2582-7820
Editor-in-Chief – Prof. (Dr.) Rhishikesh Dave; Publisher – Ayush Pandey

This is an Open Access article distributed under the terms of the Creative Commons Attribution-
Non-Commercial-Share Alike 4.0 International (CC-BY-NC-SA 4.0) License, which permits
unrestricted non-commercial use, distribution, and reproduction in any medium, provided the
original work is properly cited.

So? He is your Husband! Analysing the possibility of

Reconceptualising Rape (Ightisab) as a way to further regulate
Marital Rape in Arabic Muslim States: The case study of Egypt

Mahmoud Masuda

a
Coventry University, England, United Kingdom

Received 05 May 2022; Accepted 30 June 2022; Published 25 July 2022

__________________________________

It has been long established in states where Islam is constitutionally recognised as the governing legal system, that the husband
can coerce his wife into sexual intercourse. It is widely accepted in Islam that a wife who refuses to offer her husband sexual
gratification has sinned. However, there are situations where the wife’s refusal is followed by violence and compulsion to have
sexual intercourse. In Muslim states in general, but in Arab states in particular, reported incidents of forced domestic sexual
violence are on the increase, which is occasionally followed by reports of the complainant’s deteriorating mental health that has
occasionally led to suicide. The husband is likely to receive punishment for his act of violence, but not forced sexual intercourse.
This has led to fierce debates questioning the traditional position of Islam on (marital) rape and the consistency of its regulation
among Muslim/Arab states. This involves the factors preventing its extension to the marital home. The absence of specific
reference to rape in the primary sources of Islam (the Quran and Hadith) led to its conceptual formulation after the passing of
Prophet Muhammed PBUH. The author argues that the main issue is the early formulation, where rape was (and still)
conceptually viewed as a type of fornication (zina), which is inherently non-consensual. This has led to two arguments: firstly,
that marriage is consensual and with such consent comes an automatic right to sexual intercourse; and secondly, the fact that
rape falls within the remit of fornication (zina) means that it can only occur extra-maritally. Despite attempts to develop this
area in some Muslim/Arab countries, the conclusive view rejects treating rape as distinct from fornication (zina), thus,
preventing its extension to the marital home. This article critically examines the traditional position of Islam on (marital) rape

23
 JUS CORPUS LAW JOURNAL, VOL. 2, ISSUE 5, JULY 2022

to furnish a critical investigation of the possibility of separating rape from fornication (zina) as a viable solution to further
protect Muslim wives in the Muslim marital home. This is based on the inherent Islamic principle of the right to volition (haqq
al-iradah), which is an essential foundation of every Islamic marriage. This will involve an examination of the contemporary
definition and regulation of rape in Muslim/Arab states, Egypt for the purpose of this article, with some recommendations
based on the English definition and regulation of rape.

Keywords: muslim women protection, marital rape, fornication, islam.

INTRODUCTION: THE RESEARCH PROBLEM

This article debates that the conceptual and legal frameworks of rape (ightisab/forced sexual
intercourse) in Islam and Muslim/Arab States need to be constructed as a distinct system from
fornication (zina) and/or brigandry (hirabah/waging war against God). This is needed to
establish the possibility of extending rape’s application to the Muslim/Arabic marital home.
The increase in forced sexual intercourse incidents against women in general,1 but in the
Muslim (mainly Arab) marital home in particular, has led to debates questioning the
traditional position of Islam on marital rape and the consistency of its regulation among
Muslim/Arab states.2Muslim/Arab states follow the understanding of the early Islamic
scholars that rape (ightisab) can be viewed as a form of fornication (zina) or brigandry
(hirabah)that is only capable of occurring extra-maritally.3 This is a reflection of the majority
view among Muslims that marriage in Islam carries a contractual automatic right to sexual
intercourse. Therefore, it would be a sin for a Muslim wife to deny her husband sexual
intercourse, unless there is a valid reason, such as illness or menstruation. The author does not

1 ‘Addressing Rape As A Human Rights Violation’ (Equality Now, 3 June 2020)

<https://www.equalitynow.org/news_and_insights/addressing_rape_human_rights_violation/> accessed 04
February 2021
2 Egypt: Gang Rape Witnesses Arrested, Smeared’ (Human Rights Watch, 11 September 2020)

<https://www.hrw.org/news/2020/09/11/egypt-gang-rape-witnesses-arrested-smeared> accessed 04
February 2021; ‘Facts and Figures: Ending Violence against Women and Girls’ (UN Women, Arab States)
<https://arabstates.unwomen.org/en/what-we-do/ending-violence-against-women/facts-and-figures>
accessed 04 February 2021; ‘British woman 'arrested in Dubai after reporting rape’ (BBC News, 17 November 2016)
<https://www.bbc.com/news/uk-38013351> accessed 04 February 2021
3 Ulrike Lemmin-Woolfrey, ‘Sexual Assault in the UAE: Safety Tips for Women’ (World Nomads, 7 April 2022)

<https://www.worldnomads.com/travel-safety/middle-east/united-arab-emirates/sexual-assault-in-uae>
accessed 03 May 2022

24
 MASUD: SO? HE IS YOUR HUSBAND! ANALYSING THE POSSIBILITY OF RECONCEPTUALISING RAPE….

dispute the traditional position but challenges early and contemporary developments, such as
in the Hanafi School, that permit a Muslim man to physically force his wife into sexual
intercourse as way of exercising his marital rights.4This raises a point of debate on marital
rights and duties on this matter and the role that mutual ‘right to volition’ plays in marriage.
Legally, in Muslim/Arab states a Muslim wife who complains to the enforcement authorities
about forced vaginal intercourse can lead to investigations regarding any physical injuries, but
not the intercourse.5 However, if the same is committed outside of marriage, it can lead to
fornication if consensual, or rape where a threat of harm and/or use of force was evident. Both
crimes carry severe punitive punishment, including the death penalty, subject to the personal
status of the parties. This article is briefly concerned with the level of punishment for
fornication and rape, but primarily with whether there is a clear definition of fornication and
rape in the traditional and early sources of Islam. By critically examining key definition/s, the
author will be able to debate issues that are preventing rape’sextension to the marital home.
After examining the traditional positions of Islam on (marital) rape, some of the relevant
written records and reports that were collated during the formative period by the Prophet’s
companions and jurors will be used to examine subsequent developments. This will
subsequently lead to an examination of the EgyptianPenal Code to identify possible
inconsistencies and to generate debate regarding the need for a uniform legal approach to
(marital) rape. Egypt is a host to the highest Sunni Islamic Authorities in the Middle East, Al-
Azhar University and Dar Al-Ifta’a, where judicial rulings (fatwa) are frequently sought by
Arabs/Muslims worldwide. Additionally, the data regarding the high rate of violence against
women and health surveys in Egypt are the most comprehensive and easily available. The
recommendations section will be based on a brief critical overview of the English regulation of
(marital) rape, a country that experienced similar issues and only recently extended rape to the
marital home.6

4 M. Cherif Bassiouni, ‘School of Thoughts in Islam’ (MEI@75, 24 January 2012)

<https://www.mei.edu/publications/schools-thought-islam> accessed 05 March 2021
5 Hayley Gleeson & Julia Baird, ‘I'm not his property': Abused Muslim women denied right to divorce’ (ABC, 18

April 2018) <https://www.abc.net.au/news/2018-04-18/abused-muslim-women-denied-right-to-

divorce/9632772?nw=0&r=HtmlFragment> accessed 31 October 2021
6 R v R [1991] UKHL 12

25
 JUS CORPUS LAW JOURNAL, VOL. 2, ISSUE 5, JULY 2022

LITERATURE REVIEW

Marital rape is academically underexplored primarily due to the reluctance among Muslims
(academics and jurists)not to contravene already established Islamic and/or cultural principles
and/or due to the common agreement among the majority opinion that rape is only capable of
occurring extra-maritally. For example, reflecting the majority view, Muhammed Susila states
that it would be difficult to imagine the husband being accused of raping his wife who is
religiously obliged/contracted to satisfy his sexual needs, and vice versa.7In Susila’s views, it
is better if the man [willingly] sacrifices his sexual needs by considering the religious principle
of ‘promoting good and forbidding evil’, however, he can still demand sexual gratifications if
he wishes.8In the opinion of the author, this does not directly address physical violence
considering the increasing rate of marital violence, but also directly undermines the
importance of morality in Islam which emphasises the importance of compassion and mercy
between spouses in the marital relationship:

“And one of His signs is that He created for you spouses from among yourselves so that you may find
comfort in them. And He has placed between your compassion and mercy.” 9

Additionally, the majority view regarding the permissibility of coercion seems to ignore the
fact that marriage in Islam (nikah) is fundamentally based on mutual self-volition (mutual
consent) and, thus, contrary to the teachings of the Prophet PBUH. It was reported that the
Prophet PBUH invalidated a marriage in which a man forced his daughter into. Additionally,
the Prophet stated that:

“A widow may not be married until she has been consulted, and a virgin may not be married until her
consent has been sought.”

Conversely, Muslim Women rights activists and scholars such as Reda Eldanbouki, Ahmed El-
Sabag, and HinaAzamargue that the early developments in this area were not based on any

7 Muhammed Susila, ‘Islamic Perspective on Marital Rape’ (2013) 20 (2) JMH, 329
<https://journal.umy.ac.id/index.php/jmh/article/view/271> accessed 05 May 2022
8 Ibid
9 The Qur’an, Chapter 30, Verse 21

26
 MASUD: SO? HE IS YOUR HUSBAND! ANALYSING THE POSSIBILITY OF RECONCEPTUALISING RAPE….

clear guidance from the primary sacred sources of Islam, the Qur’an and Hadith, and that
marital rape is a sinful act.10In Azam’s views, there is a clear confusion caused by treating rape
as a variant of fornication, which is preventing its extension to the marital home. Azam’s
findings are significant to this article especially when discussing the ambiguities associated
with the manner in which Muslim scholars and jurors defined and regulated rape that this
article will be utilised to assess the failure of its extension to the marital home. The only two
limitations are the complexity of sources used to provide a full chain of transmission that link
to the tradition of the Prophet and the limited access to case law that would help provide a
more critical analysis of the legal constituent of rape.

AIM, STRUCTURE, AND METHODOLOGY

This article aims to provide a novel contribution by generating a debate that can lead to further
research. The first part will critically examine the significance of the ‘right to volition’ and the
position of the traditional sources of Islam (the Qur’an and Hadith) and the key developments
that followed from the passing of the Prophet PBUH on the meaning of fornication and rape,
and the issues preventing its extension to the marital home. This will help to address the
conceptual overlap and the threats associated with treating rape as a category of fornication
(including the four witnesses requirements); including the issues associated with treating rape
as a type of Brigandry as a way to avoid the four witnesses requirement. This will lead to an
examination of the Egyptian Penal code’s use of the Islamic early definition of rape and the
issues this has generated. Consequently, a brief critical assessment of the definition and
regulation of rape under English law, in comparison with the legal framework of (marital)
rape in Egypt, will lead to possible recommendations that would hopefully provide a platform
for further regional development and research. Pursuant to these aims, this article will be
based on the legal and comparative analysis approach of the early sources of Islam and its
principles, and their comparison to the regulation of marital rape in Egypt and England. The
legal analysis approach will be of particular importance when the author briefly examines the

10Hina Azam, ‘Rape as a Variant of Fornication (Zina) in Islamic Law: An Examination of the Early Legal
Reports’ (2012) 28 Journal of Law and Religion,
<https://www.academia.edu/1626358/Rape_as_a_Variant_of_Fornication_Zin%C4%81_in_Islamic_Law_draft_
> accessed 03 May 2022

27
 JUS CORPUS LAW JOURNAL, VOL. 2, ISSUE 5, JULY 2022

language of the traditional texts of Islam and the subsequent written sources of Islamic
scholars. Although the Qur’an does not directly mention rape, it provides a general account of
the prohibition and punishment of fornication. The traditions of the Prophet PBUH on the
other hand complement the Qur’an by offering some explanations regarding the regulation of
fornication in Islam, including forced extramarital fornication. This will lead to a brief critical
overview of the regulation of rape in Egypt and England as previously mentioned.

On the other hand, to recommend an acceptable solution to the contemporary Islamic legal
framework on the meaning of rape and its extension to the marital home, a comparative
analysis approach is essential. This involves a comparative analysis between the early meaning
and requirements of rape in Islam, in comparison to its regulation in Egypt and England. This
will assist the author to hopefully generate debate and inspire change to marital rape
regulation in the Muslim/Arab conjugal home; to hopefully offer women higher marital
protection against sexual violence.11Any recommendations will be based on the view that
through ijtihad (independent legal reasoning)12 that early Islamic scholars utilised to offer
necessary solutions to emerging concerns that the Qur’an and hadith were silent or unclear
about, similar to the issue of marital rape today. Therefore, the excretion of mental energy to
propose possible solutions can be justified on these grounds. Although the author is not a
qualified Islamic jurist (mujtahid),13 this novel contribution can at least be used to generate
debate and lead to further research, and, hopefully, be considered by a qualified Islamic/Arab
jurist to further develop this area. Additionally, ijtihad is a primary tool to refute secular
presumptions that Islam is an incomparable,14 immutable, and inflexible theological system.15

11 Mark Van Hoecke, 'Methodology of Comparative Legal Research’ (Boom Juridischtijdschriften, 12 April 2015)
<https://www.bjutijdschriften.nl/tijdschrift/lawandmethod/2015/12/RENM-D-14-00001> accessed 09
December 2021
12 Wael B. Hallaq, ‘Was the Gate of Ijtihad Closed?’ (1984) 16 (1) International Journal of Middle East Studies

<https://www.jstor.org/stable/162939> accessed 09 December 2021

13 Tariq Ramadan, ‘The Conditions (Shurut) of Ijtihad’ (Tariq Ramadan, 11 February 2016)

<https://tariqramadan.com/english/the-conditions-shurut-of-ijtihad/> accessed 20 December 2021

14 Abu Amina Elias, ‘Lessons from the journey of Mu’adh ibn Jabal to Yemen’ (Faith in Allah, 22 January 2014)

<https://abuaminaelias.com/lessons-from-the-journey-of-muadh-ibn-jabal-to-yemen/> accessed 20 December

2021
15 Markus Dressler & Arvind Mandair, Secularism and Religion-Making (1st edition, Oxford University Press 2011) 5

28
 MASUD: SO? HE IS YOUR HUSBAND! ANALYSING THE POSSIBILITY OF RECONCEPTUALISING RAPE….

PART I

THE ‘RIGHT TO SELF-EVOLUTION

Generally, the prohibition of coercion in the Qur’an appears to endorse women’s right to self-
volition. Islam emerged and combated the tradition of sex slaves that were dominant then:

“Do not force your maids to harlotry if they desire chastity, in order that you may gain in the goods of
this life."16

The importance of a non-coercive approach to other aspects such as marriage or apostasy

further bolsters the importance of the right to self-volition in Islam:

“O believers, it is not permissible to you to inherit women against their wills."17And,

“Except those who are coerced (to commit apostasy) while their hearts are firm in the faith.”18

In a matrimonial context, from the moment marriage is proposed, the Islamic underpinning
principle of self-volition entitles the female to accept or reject the marriage proposal, which
would otherwise render it invalid. The companion of the Prophet Abu Hurairah reported the
Prophet (PBUH) stating that:

“A woman who has been previously married should not be married until her express consent is sought
nor should a virgin be married without her (express or implied (through silence)) consent.”

In addition to the importance of consent, the foundation of marriage in Islam is also

fundamentally underpinned by merciful and compassionate treatment:

“O mankind, fear your Lord, who created you from one soul and created from it its mate and dispersed
from both of them many men and women. And fear Allah, through whom you ask one another, and the
wombs. Indeed, Allah is ever, over you, an Observer.”19

16 The Qur’an, Chapter 24, verse 33

17 The Qur’an, Chapter 4, verse 19
18 The Qur’an, Chapter 16, verse 106
19 The Quran, Chapter 4, Verse 1

29
 JUS CORPUS LAW JOURNAL, VOL. 2, ISSUE 5, JULY 2022

The Qur’an further enunciates that the merciful and compassionate treatment extends to the
sexual relationship between the man and his wife:

“Your wives are as a tilth unto you; so approach your tilth when or how ye will, but do some good act
for your souls beforehand, and fear Allah.”20

This was further reinforced by the Prophet PBUH when he observed that:

“One of the signs of unkindness is a man who engages in a sexual act with his wife without humour and
kisses. No one should directly fall on his wife as one buffalo does to another”. 21

Based on the above evidence, it can be argued that a man who forces his wife into sexual
intercourse, with or without excuse, contravenes the founding compassion and mercy
principles that Allah and the Prophet approach to women’s right to self-volition. Furthermore,
considering the physical and mental well-being of the wife who is subjected to such
derogatory treatment and violence, has been reported to often lead to destroying the
matrimonial home and invariably to the victim’s severe mental deterioration, murder, or
sometimes suicide.22 The author agrees that there is a religious sin for a wife to refuse sex
without a valid excuse, but for one to argue that it is acceptable in Islam for a man to use his
sexual gratifications to justify sexual violence against his wife’s will while disregarding her
mental and physical wellbeing, is immoral, should be criminalised and, based on the above
evidence, non-Islamic. All Schools of Jurisprudence are silent about this (except the
HanafiSchool that explicitly permits forced sexual intercourse) which in the view of Ali, such
silence implies that consent is automatic and, therefore, irrelevant to discuss. According to
Azam, Classical and formative Islam treated marital rape that causes severe tearing as an
injury that entitled the wife to damages.23These risks further support the need to criminalise

20 The Qur’an, Chapter 2, Verse 223

21 ‘Does marital rape exist in Islam?’ (Dar Al-Ifta Al-Missriyyah) <https://www.dar-
alifta.org/Foreign/ViewFatwa.aspx?ID=6033> accessed 04 April 2022
22 Dalia Ghanem, Covid-19 has exacerbated Algeria’s femicide problem’ (The Africa Report, 19 March 2021)

<https://www.theafricareport.com/73396/covid-19-has-exacerbated-algerias-femicide-problem/> accessed 04
March 2021
23 Hina Azam, Sexual Violation in Islamic Law: Substance, Evidence, and Procedure (Cambridge University Press 2015)

20

30
 MASUD: SO? HE IS YOUR HUSBAND! ANALYSING THE POSSIBILITY OF RECONCEPTUALISING RAPE….

marital rape for being contrary to the merciful, compassionate, and moral principles of Islam
that undermine the importance of the matrimonial right to self-volition/consent. However, to
debate the possibility of criminalising marital rape by creating an independent rape
framework, firstly, critically analysing the general position of rape in Islam is needed. This
includes the assessment of rape as a type of fornication and brigandry and the issues that each
represents.

RAPE AS A CATEGORY OF FORNICATION (ZINA) OR BRIGANDRY (HIRABAH)

With the absence of a specific definition for fornication in the Qur’an and Hadith, the
establishment of zina during the classical period of Islam required the confession of the
accused or the concurrent eyewitness testimony of four adult males of sound memory and
mind that penetration occurred.24Towards the end of the formative period of Islam, any
established definition of fornication (consensual or otherwise) was inspired by general sexual
intercourse verses in the Qur’an.25 Although there is no explicit mention in the Qur’an of the
meaning of fornication, there is an account of what is considered permissible sexual
intercourse, accompanied by a general description of sexual activities that fall outside of such
permissibility:

"And those who protect their private parts except their spouses or those whom their right hands possess,
such are without blame."26

And,

“Nor come nigh to fornication (Zina): For it is a fahishah (a shameful conduct) and an evil road." 27

The reference to spouses infers that any extramarital sexual intercourse is considered
fornication and that permissible sexual intercourse is reserved for the parties of the marriage

24 The Qur’an, Chapter 5, verse 15

25 Hina Azam (n 23) 447
26 The Qur’an, Chapter 23, verses 5-7
27 The Qur’an, Chapter 17, verse 32

31
 JUS CORPUS LAW JOURNAL, VOL. 2, ISSUE 5, JULY 2022

agreement. Based on these verses, the previously discussed notion of ‘automatic consent’ can
be argued to be impliedly found.

Similarly, in the context of rape, neither the Qur’an nor the Hadith specifically provided any
definition for rape. However, after the passing of the Prophet PBUH, the Prophet’s Successors
(Caliphs) dealt with allegations of extramarital forced sexual intercourse in the same manner as
fornication, while, in the context of marital forced sexual intercourse, awarding monetary
compensation if the forced intercourse resulted in serious sexual injury (perineal tearing).28
However, subsequent Islamic scholars, through the doctrine of ‘independent legal reasoning
(ijtihad), developed a framework that dealt specifically with extramarital rape. Islamic scholars
defined rape as:

“A forced penile sexual penetration by a man of a woman’s [vagina] who is not his wife.”

The key elements that can be immediately identified from this definition are that, despite such
development, the juristic approach requires a penile penetration of a specific orifice (the
vagina of a female) and who is not the perpetrator’s wife. This raises key points of discussion
that the offence does not apply to male victims, the penetration does not apply to orifices other
than the vagina and the offence can only occur extramaritally. Therefore, generally, when early
Islamic jurists attempted to investigate an allegation of forced fornication, they often
commence their inquiry by establishing the genders of the parties, their marital status, and the
presence of four witnesses or a confession. Therefore, As noted by Azam, the formative era of
Islam established that any extramarital vaginal sexual intercourse is a variant of fornication,
regardless of whether it was consensual or through force/violence, 29supported by early
Islamic legal reports that any non-consensual extramarital intercourse (forced fornication)is a
grievous sin that crosses to the criminal category of God’s boundaries(hudud).

Therefore, viewing rape as a category of fornication means that both offences can only occur
extramaritally, while the lack of consent is what distinguishes both offences. However, besides
consent, treating rape as a form of fornication requires the same standard of proof (four male

28 Hina Azam (n 23) 61-133

29 Ibid, 446

32
 MASUD: SO? HE IS YOUR HUSBAND! ANALYSING THE POSSIBILITY OF RECONCEPTUALISING RAPE….

witnesses or the perpetrator’s confession) and could generate the same level of punishment
(flogging, or lapidation) that has blurred the line between rape and fornication. 30An additional
concern of such a position is that, if a female victim fails to present the highly burdensome
four witnesses to the penetration or secure the perpetrator’s confession, she is likely to be
convicted of fornication and receive the prescribed punishment of flogging or lapidation,
subject to her personal status.31

As a way of reducing the four witnesses' requirement to two or a confession, an alternative

interpretation that views extramarital forced sexual intercourse as hirabah has been widely
used. In Arabic linguistics, hirabah is derived from the word harb, (which means piracy,
brigandry, or warfare) which allows an individual to bring a claim for a physical attack against
another person. Although the Qur’an only, generally, alludes to what hirabah is, the early
books of Islamic jurisprudence, expanded on what it ought to include. In Fiqh Al-Sunnah,
hirabah was defined as:

“A single person or group of people causing public disruption, killing, forcibly taking property or
money, attacking women (including rape), killing cattle, or disrupting agriculture.”

Despite the absence of specific mention of rape, Islamic scholars, through ijtihad,32 conceded
that it falls within Chapter 5, Verse 33 of the Qur’an:

“Indeed, the penalty for those who wage war against Allah and His Messenger and strive upon earth [to
cause] corruption.”33

It must be noted here that, although extramarital forced sexual intercourse can lead to severe
punishment if it is regarded as brigandry or fornication, the nature of punishment is not the
focus of this article but the conceptual approach that is preventing its separation from these
concepts.

30 M. Cherif Bassiouni (n 4)
31 Chris McGreal, ‘Unwed mother given 100 lashes in Nigeria’ (The Guardian, 23 January 2001)
<https://www.theguardian.com/world/2001/jan/23/chrismcgreal> accessed 13 April 2022
32 Wael B. Hallaq (n 12)
33The Qur’an Chapter 5, Verse 33

33
 JUS CORPUS LAW JOURNAL, VOL. 2, ISSUE 5, JULY 2022

While hirabah reduces the four witnesses requirement to two, it certainly creates significant
concerns. Firstly, it undermines the need for a clear conceptual and legal definition of rape and
can be argued to disparage the victims and their right to make an accusation without the fear
of being prosecuted. Secondly, while relaying on hirabah to complain about rape may prevent
the risk of fornication accusation, if the victim fails to furnish sufficient evidence to the attack
allegations (two eyewitnesses to the penetration), she is likely to be convicted of slander (qathf)
and face the possibility of flogging and/or imprisonment.34Therefore, considering the
advancement in technology, establishing a separate framework for rape that provides less
stringent evidence such as medical evidence of penetration and cross-examination of the
perpetrator’s intention is needed because even if marital rape extends to the marital home, it
would be impossible for the wife to have any eyewitnesses to forced intercourse that is likely
to occur within the confines of the bedroom.

With the Islamic view in mind, a useful step would be to provide a brief critical analysis of the
Egyptian implementation of (and development of) the classical position that would help
identify the need for further development.

PART II

MARITAL RAPE IN EGYPT

According to a 2018 survey conducted by the Women’s Centre for Guidance and Legal
Awareness in Egypt, out of 56% of domestic abuse cases, 10% of married women have at some
stage experienced marital rape. Despite the high figure, the Centre believes that this is an
underrepresentation of the actual scale due to the victims’ fear of their husbands’ retaliation
and the negative social perception they would receive.35 According to the Centre’s Director,
Reda Eldanbouki, the figure is on the increase. When the Centre requested a specific answer
about the position of forced marital intercourse, scholar within Al-Azhar University Ahmed
El-Sabag, while referring to the mercy and compassionate verses cited above, stated that
marital rape is a sin in Islam, a step that was supported by Dar Al-Ifta’a (the House of Islamic

34 The Qur’an, Al-Qur’an, Chapter 24, Verse(s) 4-5

35 Does marital rape exist in Islam? (n 21)

34
 MASUD: SO? HE IS YOUR HUSBAND! ANALYSING THE POSSIBILITY OF RECONCEPTUALISING RAPE….

judgments) in Egypt.36Conversely, while the Egyptian National Strategy for Combating

Violence against Women recognised sexual domestic violence against women as a stumbling
political, economic and social block, it failed to criminalise marital rape. Therefore, marital
rape does not exist in Egypt.

Article 26737 of the Egyptian Penal Code states:

“Whoever has intercourse with a female without her consent shall be punished by death sentence or life
sentence. The offender shall be punished by death sentence if the victim is below complete eighteen
calendar years old or if the offender is one of the victim’s ancestors or if he is one of those responsible for
raising or observing her or if he has power over her or if he is a hired servant of the victim or of any of
the foregoing or if the crime is perpetrated by several offenders.”

This definition reflects the Islamic understanding of rate that only applies to women other
than the wife and only applies to the vagina. Article 26938 allows the wife to bring criminal
charges for indecency (not rape), even if consensual, where the husband penetrates an orifice
other than the vagina. This seems to contravene the World Health Organisation’s (WHO)
definition of rape, an organisation that Egypt is a party.39Additionally, Egypt is a party to the
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and
falls under the UN Human Rights Training and Documentation Centre for South-West Asia
and the Arab Region. In a statement addressed to Egypt, Michelle Bachelet, UN High
Commissioner for Human Rights cited CEDAW while emphasising the urgency of protecting
Egyptian wives against marital sexual violence, whom he described to have been profoundly
harmed by such practices.40Therefore, the Commissioner requested that Egypt criminalises
marital rape.

36 Nehal Samir, ‘Hiding in plain sight: Marital rape still not criminalised in Egypt’ (Daily News, 14 January 2021)
<https://dailynewsegypt.com/2021/01/14/hiding-in-plain-sight-marital-rape-still-not-criminalised-in-egypt/>
accessed 27 April 2022
37 Egyptian Penal Code, 1937, art.267
38 Egyptian Penal Code, 1937, art.269
39‘Violence against women’ (World Health Organisation, 9 March 2021) <https://www.who.int/news-room/fact-

sheets/detail/violence-against-women> accessed 28 April 2022

40 Convention on the Elimination of All Forms of Discrimination Against Women, 1979, art.2

35
 JUS CORPUS LAW JOURNAL, VOL. 2, ISSUE 5, JULY 2022

In terms of the standard of proof of rape, the Egyptian Penal Code requires that, firstly, the
perpetrator committed the act of vaginal penetration without the consent of the victim (the
actus reus).

Full penetration has to occur although ejaculation is irrelevant. The lack of consent can be
established through physical or material coercion, including deceit or loss of consciousness.
Secondly, the perpetrator intended to commit rape while knowing that consent was not given
(the men's rea). The burden of proof falls on the victim to demonstrate using forensic evidence
(within 72 hours of the alleged rape occurring) that she resisted, because verbally alleging that
she did not consent is insufficient, unless eyewitnesses are present, or a confession is made by
the perpetrator, issues that can be addressed by examining the English Model of rape.
Although this article does not intend to engage in a detailed analysis of rape under English
law, it aims to provide a recommendations section that is based on an overview of how the
issues identified above are addressed in English law.

THE ENGLISH LAW ON (MARITAL) RAPE

150 years before its criminalisation in 1991, the prevalent position of marital rape in England
was influenced by Sir Matthew Hale’s statement:

"But the husband cannot be guilty of rape committed by himself upon his lawful wife, for by their
mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband
which she cannot retract"41

Sir Hale’s statement clearly resembled the problematic definition adopted in early Islam and
by Muslim/Arab States today, which is based on automatic consent that prevents its extension
to the marital home. However, the landmark decision of R v R,42criminalised marital rape
under English law, regardless of the social status of the parties, married or unmarried,
cohabiting or not, “rape is rape”. It is important to firstly, critically examine rape in English

41 R v R [1991] 4 All ER 481

42 Ibid

36
 MASUD: SO? HE IS YOUR HUSBAND! ANALYSING THE POSSIBILITY OF RECONCEPTUALISING RAPE….

law, followed by assessing key changes that can contribute towards its reconceptualisation
and extension to the Muslim/Arab marital home.

S1 of the Sexual Offences Act 2003 (SOA hereafter), defines rape as “where person A
penetrated the vagina, anus or mouth of person B with his penis.”43 Extending the conduct to
include the anus and mouth is a direct result of the justification provided by the Home Office
in the ‘Setting the Boundaries’ report 2000. The SOA adds that the lack of consent on B’s part
and the lack of reasonable belief on A’s part are essential.44 This is not to be confused with
incidents were proving the lack of consent is not a requirement, especially when dealing with
minors or where rape is found to be automatic (as will be explained below). 45 S2 expounds that
courts are required to consider all circumstances when determining A’s reasonable belief;
including any steps A has taken to determine that B has consented to the sexual activity by
virtue of s1(1)(a).46 Among the number of principal changes the SOA made,47 it extended the
scope of the men's rea to include the defendant’s reasonable belief that the alleged victim
consented, overruling the genuine and honest belief test emphasised in DPP v Morgan that was
argued to set a high evidential threshold.48

In comparison with the Egyptian definition of rape, S1 of the SOA and the decision of R v R
extend rape to the marital home and to orifices other than the vagina. Additionally, rather than
leaving the matter to be proved by explicit evidence, as will be illustrated below, a thorough
assessment of the perpetrator’s mental awareness of the victim’s consent and how consent is
established, play a major part. The next section will provide a brief critical overview of the
requirements of rape under English criminal law.

43 Sexual Offences Act, 2003, s 1 (1)(a)

44 Sexual Offences Act, 2003, s 1 (1) (b) and (c)
45 Sexual Offences Act, 2003, Chapter 6
46 Sexual Offences Act, 2003, s 2
47 Sexual Offenses Act, 1956, s 1(2)
48 DPP v Morgan [1976] AC 182 (HL)

37
 JUS CORPUS LAW JOURNAL, VOL. 2, ISSUE 5, JULY 2022

THE REQUIREMENTS OF RAPE UNDER ENGLISH CRIMINAL LAW

Similar to the Egyptian criminal requirements, rape in English law requires the presence of
two elements, the actus reus, and the mens rea. The actus reus is the occurrence of the criminal
act, while the mens rea is the perpetrator’s criminal intent. S1(1) SOA 2003 provides that Rape is
where:

(1) A person (A) commits an offence if:

(a) A intentionally penetrates the vagina, anus, or mouth of B with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) Step c is to be determined by having regard to all the circumstances, including any steps A
has taken to ascertain whether B consented.

1. The actus reus

The guilty act under English law consists of establishing penetration and lack of consent.

 Penetration

Similar to the Egyptian requirement, the SOA states that penetration requires the use of a
penis, whether natural or surgically constructed.49 According to the SOA, penetration is a
“continuing act from entry to withdrawal.”50Similar to the Egyptian model, this seems to
affirm that rape occurs regardless of whether ejaculation is reached as was stated in R v
Schaub.51 In addition, the wide approach of the Act to defining ‘the vagina’ renders the vulva
(the outer of the vagina) part of the vagina,52 thus, arguably, making any slight penetration

49 Sexual Offenses Act, 2003, s 79(3)

50 Sexual Offenses Act, 2003, s 79(2)
51 R v Schaub [1994] Crim LR 531. See also Kaitamaki v The Queen [1985] AC 147; See also R v Leaver [2006] EWCA

Crim 2988
52 Sexual Offenses Act, 2003, s 79(9)

38
 MASUD: SO? HE IS YOUR HUSBAND! ANALYSING THE POSSIBILITY OF RECONCEPTUALISING RAPE….

sufficient, regardless of whether the hymen was perforated or not, 53whereas, under Egyptian
criminal law, full penetration is essential. Under English law, although the complainant might
expressly consent to the penetration, once this is withdrawn, penetration must stop in a
reasonable time, the length of which is determined by the jury,54an issue Egyptian law does
not address. Therefore, under the English rape definition, any penetration of the vagina, anus,
or mouth satisfied the actus reus,55 whereas, under Egyptian and Islamic law, only vaginal
penetration would constitute rape, where the penetration of other orifices, including in marital
relationships or where the victim is a male, is considered an act of indecency instead. In
addition to establishing penetration, the guilty act requires the presence of the lack of consent.

 Lack of consent

The statutory definition of consent

Lack of consent is the main element of rape; without it, penile penetration would be viewed as
an “explicit expression of intimacy” rather than criminal.56This part is largely similar to the
Egyptian lack of consent, especially where consent is negated through physical and/or mental
coercion, unconsciousness, and/or deceit. However, establishing a lack of consent under
Egyptian law is heavily based on the complainant’s ability to produce evidence of harm or,
similar to the traditional position of Islam, through witnesses or confession. A more structured
approach can be found underSection(s) 74, 75, and 76 of the SOA, which define consent based
on a different set of circumstances. Whether a hierarchical approach was the intention of the
drafters, this area is better approached in a reversed order: the applicability of s76, the
applicability of s75, or, if neither applies, the applicability of s74. When alluding to ss76 and 75,
they are better understood by virtue of two presumptions, evidential and conclusive.

53 R v Hughes (1841) 9 C & P 752; See also R v Lines (1844) 1 C & K 393
54 Sexual Offenses Act, 2003, s 79(2)
55 Michael Jefferson, Criminal Law (12th ed. 2015) 492
56 David Ormerod, Smith and Hogan Criminal Law (13th ed. 2013) 743

39
 JUS CORPUS LAW JOURNAL, VOL. 2, ISSUE 5, JULY 2022

S76 SOA 2003 – Conclusive presumptions.

For this section to apply, the accused has to perform an act under s77,57 while one of the
circumstances under s76(2) occurred, then it would be automatically presumed that the
complainant conclusively did not consent and that the accused did not believe that consent
was given.58 Tadros expounded that penetration alone suffices without proving consent,
rendering this presumption irrebuttable.59The inclusion of deception (as to the nature of the
act)60 and inducement (through impersonation/fraud)61 into s76 can be used to justify the
seriousness of the test which ignored the need for consent.62It must be noted that the actions of
the accused must be intentional, regardless of whether the complainant formed his/her own
mistaken belief as to the nature accused’s conduct; regardless of whether the accused had
known of the complainant’s mistaken belief.63

S75 SOA 2003 – Evidential presumptions.

In situations where there is no evidence that s 76 is applicable, s 75 is then examined. Similar to

the operation of s 76, an act from s 77 is required, in addition to one of the circumstances under
s 75(2),64where the defendant knew that one of the circumstances existed.65Unlike S76, the
accused can rebut the lack of consent by providing sufficient evidence that he reasonably
believed that the complainant consented.66 Again, this can be countered by sufficient evidence
that the accused reasonably believe that there was no consent.67 It must, however, be noted
that the circumstances listed under s 75(2)(a)-(f) are not strict pre-requisites for establishing
lack of consent, but presumptions upon which consent and belief can be construed. S75 should

57 Sexual Offenses Act, 2003, s 77

58 Sexual Offenses Act, 2003, s 76(2)
59 Victor Tadros, ‘Rape Without Consent’ (2006) 26 (3) Oxford Journal of Legal Studies, 515–543

<https://www.jstor.org/stable/3877007> accessed 04 May 2022

60 R v Flattery (1887) 2 QBD 410; See also, R v Williams [1923] 1 KB 340; See also, R v Linekar [1995] 3 All ER 69
61 Sexual Offenses Act, 2003, s 76(2) (a); See also, R v Elbekkay [1995] Crim LR 163
62 David Ormerod (n 56) 730-731
63 Rebecca Williams, Deception, Mistake and Vitiation of the Victim's Consent’ (2008) 124 Law Quarterly Review,

132
64 Sexual Offenses Act, 2003, s 75(2) (a)
65 R v Saik [2006] UKHL 18
66 David Ormerod (n 56) 726
67 Ibid

40
 MASUD: SO? HE IS YOUR HUSBAND! ANALYSING THE POSSIBILITY OF RECONCEPTUALISING RAPE….

not be relied on if there was clear evidence of consent, 68which then becomes a matter to be
resolved by reference to s 74 instead.

S 74 SOA 2003

S74 requires the presence of freedom, capacity, and choice of the complainant for the evident
consent to be valid. First, the prosecution must consider whether the complainant had the
freedom and capacity to make the choice to engage in the alleged sexual activity. 69 The greater
the pressure the less freedom the complainant had. However, as stated by Ormerod, whether
this applies to non-physical pressure, such as employment dismissal, is another
difficulty.70Second, the prosecution will question whether the complainant, at the time of the
sexual activity, was free from any constraints.71The use of the word choice in determining
consent presumes the presence of options available to the complainant, and their freedom to
select one.72However, although there might have been freedom and choice, the prosecution
still needs to determine that the complainant had the capacity to engage in the alleged sexual
activity. Despite ambiguities associated with defining capacity, “it is regarded as integral to
the concept of choice,”73which is directly related to the mental capability of the victim when
choosing to perform a certain sexual activity.

In R v Cooper,74 the House of Lords enunciated that a lack of capacity that is out of irrational
fear is not the same as a lack of capacity to choose. Therefore, understanding the nature of the
information received by the complainant and being able to use the information to make a
balanced choice are now both important in determining the presence of the defendant’s guilty
act.75 Once the actus reus is established, the court then attempts to establish the men's rea.

68 R v White [2010] EWCA Crim 1929

69 Sexual Offences Act, 2003
70 David Ormerod (n 56) 720
71 R v McFall [1994] Crim LR 226
72 Victor Tadros (n 59); See also R v Konzani [2005] EWCA Crim 706; See also R v B [2006] EWCA Crim 2945; See

also, R (on the application of F) v DPP [2013] EWHC 945

73 R v Bree [2007] EWCA Crim 256, para 25
74 R v Cooper [2009] 1 WLR 42, at para 24
75 R v Bree [2007] EWCA Crim 256, para 25

41
 JUS CORPUS LAW JOURNAL, VOL. 2, ISSUE 5, JULY 2022

 The men rea

Under s1(1) SOA 2003, the establishment of the mens rea requires the prosecution to prove A’s
intentional penetration of B’s vagina, anus, or mouth; and A lacked a reasonable belief that B
consented. Following constant development, the applicable test today comprises elements of
subjectivity (A’s true belief) and objectivity (the jury’s reasonable belief whether A’s belief was
reasonable).

INTENTIONAL PENETRATION

Proving that sexual penetration was [intentional] requires that the defendant intentionally
(based on his reasonable belief) penetrates an orifice other than the one B consented to. If the
defendant unintentionally does so, there would not be rape.76

Reasonable belief in consent, by having regard to all the circumstances, including any steps
A has taken

Deciding the reasonableness of the suspect’s belief will depend on assessing all surrounding
circumstances including the age and mental status of the complainant. Under the SOA 2003, a
suspect can defend his position by stating the steps he took to convince himself that the
complainant consented to the sexual activity at the alleged time.77In addition to the
defendant’s attestation that they subjectively believed that the complainant had consented,
they need to objectively convince the jury that a reasonable person would have held the same
belief. The use of ‘all circumstances’ allows the jury to consider the “mental capacity or other
factors that might have affected A’s ability to understand the nature of his conduct.”

FINDINGS AND RECOMMENDATIONS: CONCLUDING REMARKS

Based on the above discussion, it can be argued that the failure to extend rape to the marital
home in Muslim/Arab states is a direct result of the non-mention of rape in the Qur’an and
hadith, which led to its conceptualisation shortly after the passing of the Prophet PBUH. The
76 R v K [2008] EWCA Crim 397; See also, R v Heard [2007] EWCA crim 125; See also, R v Grewal [2010] EWCA
Crim 2448
77 R v Bahadour [2005] EWCA Crim 396

42
 MASUD: SO? HE IS YOUR HUSBAND! ANALYSING THE POSSIBILITY OF RECONCEPTUALISING RAPE….

early concept of rape that only applies to extramarital, vaginal, and sexual intercourse, is the
concept that has formed the legal foundation of rape in Muslim/Arab states today. The
treatment of rape as a form of fornication/brigandry and their witnesses’ requirements has
rendered establishing rape as an independent concept more challenging, preventing its
extension to the marital home. From the brief examination of rape in Egypt, some milestone
efforts can be identified, such as including deceit and loss of conciseness when regulating rape,
the support from the religious authorities to criminalise marital rape, the presence of the actus
reus, and the mens rea, the legal definition for penetration and the irrelevance of ejaculation for
rape to occur.

However, the issues that require addressing are that; the legal definition of rape does not
extend to the marital relationship, it does not extend to parts other than the vagina, it only
applies to female victims, and full penetration is required because it is unclear how the vagina
is defined, and, finally, that the burden of proof falls on the victim to demonstrate that rape
has occurred. Even if marital rape extends to the marital home, it would still be unclear how a
wife could prove a lack of consent due to the explicit evidence requirement. Conceptually, the
general adopted the definition in Islamic law needs to while stressing the underpinning
principles of mercy and compassion as essential for a coherent family structure, remove the
words “except his wife” to include both genders while adding the words “anus and mouth”.

Legally, based on the English model, the author proposes the following recommendations:

 The discussed Egyptian Penal Code needs to add the husband to the list of guardians
when defining rape. In terms of evidential requirements, a clearer approach to the actus
reus and mens rea is needed. Penetration needs to extend to other orifices while negating
full penetration by extending the meaning of ‘vagina’ to include the vulva.
 The lack of consent is a strong aspect of the Egyptian model, but the fact that the burden
of proof is left to the victim to establish, suggests that a clearer assessment of the
freedom, choice, and capacity of the victim would shift some of the burdens onto the
accused, especially where consent is somehow given. Situations, where intentional

43
 JUS CORPUS LAW JOURNAL, VOL. 2, ISSUE 5, JULY 2022

penetration is accompanied by force, coercion, or deceit, are adequately addressed

under Egyptian law.
 In terms of the men's rea, a clearer approach would be to depart from a fully subjective
approach that only considers the mental capacity of the accused and what they really
believed, toward a test that adds an objective burden on the accused to convince a
reasonable person that they would have held similar belief to the accused if they were
in their situation.

44