"Hanafi texts extend the ruling on loss of support for physical absence to also uphold its converse:physical presence in the marital home suffices for support...A wife who remained in her husbands home but refused him sexually retained her claim to maintenance. Sexual refusal did not constitute nushuz, because it did not, in this view, make her sexually unavailable as long as she remained physically resent, he could have sexual access to her even aginst her will. Where the wife had legitimate grounds for sexual refusal, the situation was more complex. Abu Hanifa and his disciples disagreed as to what constituted legitimate grounds and, moreover, what the line was between enforceable rules and ethical guidelines. When a wife refused sex in order to claim an unpaid dower, Abu Hanifa supported her actions even after consummation. In this case, he held that "it is not lawful, and he sins [if he forces her]." According to Abu Yusuf and Muhammad al-Shaybani, who did not grant her the right to withhold herself for nonpayment of dower after consumation, the husbands forcing her "is lawful and he does not sin." A variant manuscript reads, "It is lawful and he sns," making a distinction between the legality and morality of the husbands actions...Still, while forcible intercourse might or might not be sinful if the wife had the moral high ground because of unpaid dower, if an unpaid dower was not at issue then the husbands right "to have sex with her against her will" went unquestioned. In this case, they agreed: "It is lawful, because she is a wrongdoer (zalima)." The wifes reproachable behavior justifies the husbands actions. Al-Khassaf, who reports these views, did not even raise the possibility that forced intercourse in these circumstances might be a sin."
Kecia Ali is an American scholar of Islam who focuses on the study of Islamic jurisprudence, ethics, women and gender, and biography. She is currently a professor of religion at Boston University. She previously worked with Brandeis University's Feminist Sexual Ethics Project, presided over the Society for the Study of Muslim Ethics and was a research associate and postdoctoral fellow at Brandeis
"The permissibility of sex with the captive women was taken for granted by all the men involved, including the Prophet himself. (There is no indication of what the captured women thought, or the wives of the men involved.) Not only do the Prophet and the soldiers ignore the question of the women’s consent or lack thereof, but so does Algosaibi, focusing solely on contraception in his discussion of this hadith."
"Even if he marries off his own slave and no longer has lawful access to her, his having sex with her is a lesser transgression than zina¯. The jurists’ occasional affirmations that a married female slave whose owner nonetheless has sex with her is not to be punished is the closest any of these texts comes to considering the relevance of an enslaved woman’s consent. Notably, the issue emerges only because she is married to another man, a marriage for which jurists uniformly agree that her consent would have been unnecessary"
"A surprising assertion about consent also appears in a recent monograph by a scholar of Islamic legal history who declares in passing that the Quran forbids nonconsensual relationships between owners and their female slaves, claiming that “the master–slave relationship creates a status through which sexual relations may 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 of zina [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."
"A man’s intercourse with a female slave might constitute zina¯ only if she belongs to someone else."
"The silence of the Hanafis can be explained easily: a wifes sexual refusal is irrelevant if not accompanied by her deartre from the conjugal hime, because the hsband is permitted to have sex with her without her consent. Non-Hanafis do not penalize a husband for forcing sex on his wife, but neither do they explicitly authorize it in the way that al-Khassaf does. For all, marital rape is an oxymoron; rape (ightisab) is a property crime that by definition cannot be committed by a husband."
"These questions arise urgently when one considers that classical Islamic law accepts both slavery as an institution and the sexual use of female slaves, whereas the overwhelming majority of Muslims today completely reject all forms of slavery... Yet quite a number of late twentieth-century and early twenty-first-century Muslim authors and laypeople gloss over the existence of slavery, and especially concubinage, in Muslim history and texts... Given that the vast majority of contemporary Muslims reject slavery, many have chosen to ignore the issue. Rather than reiterate the classical religious permission for slavery and slave concubinage, even to oppose it, they seem to believe that a moderate or progressive agenda is better served by emphasizing the contemporary agreement that slavery, and especially concubinage, is forbidden as completely outside the bounds of Muslim sexual morality. Although a few authors deny the validity of slave concubinage outright, asserting that “those jurists of Islamic law who laid down the rule that a master may have [a] sexual relationship with his female slave without marriage are totally mistaken,” most simply ignore what prevailed as the consensus for over a millennium."