In fiqh, shubah refers to a mistake that leads a man to have intercourse with a woman unlawful to him. There are mistakes of contract = shubhat aqd and mistakes of act = shubhat fil. It is written that Abu Hanifah extended the meaning of the latter to include situations such as when a man hires a woman for some work and then fornicates with her... the two will not be penalized for fornication because of his ignorance that his hiring does not include this act.
Bakhtiar continues writing, if she is working in a business establishment or a factory and the proprietor of such establishment copulates with her believing this to be one of the benefits which accrue to him as a result of hiring her, the act will not be termed fornication, but will be considered a mistake.
WHAT!!! In the West we have all heard of unethical businessmen who disgustingly take advantage of female employees. It is sexual harassment, and the woman can sue for damages. We dont call it a mistake; we call it illegal and immoral. If the man claims it was a mistake, we all know he is lying and is just trying to avoid punishment.
A mistake is when you carelessly do something, e.g., wash a red blouse with white shirts, dial a wrong telephone number, take someones umbrella because it looks the same as yours, etc. It is impossible to see how a manager at McDonalds thinks that when he hires Khadija that the contract includes arriving at work on time, taking customers orders, making a Big Mac, and copulating with the manager. GET REAL!!!! That isnt a mistake. Either the manager is an utter idiot or utterly immoral, but in no way is having sex with Khadija a slip up, a foible, an oversight, a confusion, a faux pas, a peccadillo, or a mistake.
My Muslim friends tell me that Allah through the Prophet Muhammad elevated women. Sure, no longer do Muslims bury unwanted daughters in the sand. No, they let them grow up so male Hanafi employers can mistakenly copulate with them because the poor testosterone poisoned male just cant remember the terms of the employment contract.
On a more serious note, the most disgusting part of this entire issue is the assumption beneath it. Muslims jurists claim that men cant help it; it is their nature. It is their nature to be sexual predators. Acting upon that ridiculous assumption, the jurists can claim that out of love for women and in the desire to protect them from Y-chromosome predators women should stay in the home away from those dangerous men who might attack her.
This argument is just another form of naturalistic fallacyarguing that what is is what ought to be. Because some men sexually prowl does not mean this is what they ought to do, nor does it demonstrate that such is mans nature. Operating out of this false assumption, male jurists limit the freedom of Muslim women because the religion defines men in such a disgusting way that it fails to hold men responsible for their actions.
The structure of the argument is simple and erroneous. An unproved assumption is accepted as fact (men cannot control their sexuality; that is their nature). They then posit that society would be chaotic and dangerous if there were no safeguards for the sexually crazed males. Since there are only males and females in society, females must be isolated for their protection. Therefore, females must lose freedoms because of an unproved assumption. Moreover, although the deficiency is attributed to the males, females are called the weaker sex. In fact, it would seem that the poor women carrying the moral responsibility for the out of control males are in fact the stronger sex. But then again, the mind is an amazing thing. The same mind that attributes such a disgusting nature to males can in the next sentence hold that women are the weaker sex.
Islam cannot come from God. Only men would devise a system that permits accidental fornication without calling it sin. Only men would define their nature in such a way that women must be denied freedom and then this repression be called the straight path.
Islam is completely and totally a religion devised by men for men. Oh, of course, I know the Muslim strategy here. They grab some Western female convert to Islam and have her write her storythe I was a repressed liberated Western white girl who discovered the gem of Islam and when I covered my body I found true liberation and peace of mind and soul. That proves absolutely nothing. When Muslim women convert to Christianity, that does not prove that Christianity is superior or right. People convert for all kinds of reasons. It is the content of the propositions in the religions that determines rightness and wrongnessnot I found the truth stories.
Islam is a religion made by men for menthat some women experience this man-made religion as liberating means nothing. There are men who are rational; there are women who are rational; there are men who are irrational; there are women who are irrational.
Despite what Islam teaches about women and despite Abu Hanifas disgusting doctrine of accidental fornication, when the Taliban was overthrown in some key cities in Afghanistan, the women threw off their covering (they must not have experienced it as liberating), men shaved their beards (they must not have thought it drew them closer to the example of Muhammad), men wore shorts to play soccer (and no sex crazed fans ravaged them), and music was played everywhere (and no one saw angels flying out of Afghanistan). Many people had grown tired of this man-made religion. It is not fornication as defined by Abu Hanifa that is the mistake; Islam is the mistake.
 Bakhtiar, Laleh, Encyclopedia of Islamic Law: A Compendium of the Major Schools. (ABC International Group). 1996. ["Fornication by Mistake" is covered in section 10.6.3.2. NB: According to Bakhtiar her book is based on two main Arabic sources, viz., al-Fiqh alal madhdhab al-arbaah and al-Fiqh alal madhdhab al-khamsa]
Series: Second Thoughts On Common Islamic Assumptions
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