Concubinage and Consent

Abstract

In our imperfect world, rape happens frequently but nearly no one publicly defends the legitimacy of forcible or nonconsensual sex. So pervasive is deference to some notion of consent that even Daʿish supporters who uphold the permissibility of enslaving women captured in war can insist that their refusal or resistance makes sex unlawful. Apparently, one can simultaneously laud slave concubinage and anathematize rape. A surprising assertion about consent also appears in a recent monograph by a scholar of Islamic legal history who declares in passing that the Qurʾan forbids nonconsensual relationships between owners and their female slaves, claiming that “the master–slave relationship creates a status through which sexual relationsmay become licit, provided both parties consent.” She contends that “the sources” treat a master's nonconsensual sex with his female slave as “tantamount to the crime ofzinā[illicit sex] and/or rape.” Though I believe in the strongest possible terms that meaningful consent is a prerequisite for ethical sexual relationships, I am at a loss to find this stance mirrored in the premodern Muslim legal tradition, which accepted and regulated slavery, including sex between male masters and their female slaves.