After Sheikh Maulana Abu Sayeed, the president of Britain's oldest Islamic sharia court, told The Samosa that marital rape is not a crime, Tehmina Kazi looks at the debate within Britain's Muslim communities.

In a climate where at least 75 percent of rape crimes are never reported, and where data suggests that nearly one in four women worldwide may experience sexual violence by an intimate partner in their lifetime, one would hope that more community leaders would condemn this kind of abuse in the strongest terms possible.

This is why the recent remarks of Islamic Sharia Council president Sheikh Maulana Abu Sayeed struck a real blow to women’s rights groups and law enforcement professionals alike. During an interview with The Samosa, Sheikh Sayeed said: “Clearly there cannot be any rape within the marriage. Maybe aggression, maybe indecent activity. 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.”

Sheikh Sayeed added that women who claim to have been raped by their husbands should not immediately go to the police: “Not in the beginning, unless we establish that it really happened. Because in most of the cases, wives 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.”

Contrary to Sheikh Sayeed’s assertion, research suggests that the rate of false allegations of rape is no higher than those of other crimes. While it is encouraging that he has at least condemned non-consensual sex within marriage, it should be regarded as what it is: rape, and not merely “aggression” or “indecent activity”.

Sheikh Sayeed’s comments are reminiscent of a mentality which perceives wives as recipients of their husband’s carnal desires, rather than autonomous sexual agents. This is actually very different from the position in Islamic law, which protects a woman’s right to sexual enjoyment within marriage, to the extent that a woman can divorce her husband on the grounds that he is not satisfying her in the bedroom.

Further, there is a famous saying (Hadith) of the Prophet Mohammed: "The believers who show the most perfect faith are those who have the best character, and the best of you are those who are best to their wives."

There is already a considerable difference of opinion on marital law among different Islamic scholars. The Muslim Institute – then directed by British Muslims for Secular Democracy trustee Dr Ghayasuddin Siddiqui – launched a new Muslim Marriage Contract in 2008. The document was carefully researched and negotiated over a four-year period, following extensive consultation with scholars such as Mufti Barkatullah and marital law expert Cassandra Balchin. It required husbands to waive their right to polygamy (allowed under Islamic law), did not require a marriage guardian (wali) for the bride, and also made delegation of the right of divorce to the wife (talaq-i-tafweed) automatic.

The new contract reflected changes in the roles of Muslim men and women, including women’s financial autonomy and career achievements outside the home. Disappointingly, the Muslim Council of Britain withdrew their support from the initiative, saying they “would like to start again, create a wider consensus and deliver real change based on traditional scholarship and community buy-in.”

If by “traditional scholarship” they mean assertions like “there is no such thing as rape within marriage,” then I for one would refuse to give such views any bearing on the construction of a vital document that would affect the lives of so many people.

As for “community buy-in”, it is true that initiatives like the Muslim Marriage Contract need a strong support base among diverse Muslim communities. However, this is more likely to happen if they receive public endorsements from as many different Muslim organisations as possible, particularly those who say they have a mandate. If any stakeholder were to turn down a project that aimed to discourage cousin marriages in Bradford, for example, they would not get very far if they said: “This project does not have the support of the majority of the local Muslim community; therefore, we must withdraw our backing.”

It is clearly counter-productive for women to report marital rape cases to sharia councils. Firstly, there is usually no real punishment for the offender and insubstantial recourse for the victim. While conviction rates for rape in the British criminal justice system have never been reflective of reality (the national average was 5.3 percent, or 1 in 20 reported cases, as of 2005), these vary widely from area to area, from 13.8 percent in Northamptonshire to just 1.6 percent in Suffolk. Also, the British criminal justice system is far ahead in terms of taking marital rape as seriously as any other kind of rape, criminalising it in 1991.

Secondly, reporting sexual violence to sharia councils unnecessarily broadens their remit from civil law matters to criminal law ones. Like their counterparts in the Jewish Beth Din courts, sharia councils have been settling civil law disputes for many years, and a clause in the Arbitration Act 1996 enables them to enforce their rulings through the mainstream courts.

However, there is a strong need for regulation in this area, as the outcomes are often arbitrary and can fall short of any conception of justice (whether Islamic or secular). When sharia councils have dabbled in criminal law issues, the results are often questionable. In six cases of domestic violence presided over by a sharia tribunal in Nuneaton, the judges ordered the husbands to take anger management classes and mentoring from community elders. In each case, the women subsequently withdrew the complaints they had lodged with the police, who stopped their investigations.

Thirdly, this could result in strong social pressures upon Muslim women to approach sharia councils with these issues, as opposed to the existing statutory and third sector framework (which includes campaign group Southall Black Sisters, who have been offering information, casework support, advice and practical help to rape and sexual abuse victims for over 30 years).

The one positive development that has arisen from the airing of Sheikh Sayeed’s views is the fact that such a sensitive issue is being discussed, and hopefully this means a push for greater transparency surrounding the reporting – and conviction rates – of sexual violence crimes.

Tehmina Kazi is director of British Muslims for Secular Democracy