Is consent necessary for sexual relations with a concubine?

Question

Is consent before sex needed in sexual slavery and does the sex slave woman have to give her consent in the case of her master wants to marry her?

Answer 1

It can be ethically desirable to seek the slave's approval but her consent is not legally required.

The Quran gives a parable of a slave as follows:

عبدا مملوكا لا يقدر على شيء

a slave owned (by someone), who has no power over anything

^{— Quran 16:75}

This implies that a slave does not have any agency. Slaves are enslaved without their consent. They are bought and sold without their consent. They are made to perform labor without their consent. Their earnings are taken by their owners without their consent. Hence their consent is not of consequence in any matter - and there is no reason to assume that sexual intercourse is any different.

Sexual intercourse is a way in which a master gains a lawful benefit from his slave - hence it is analogous to other means of obtaining benefit like sale or labor. Consent is not required in those means so it also does not matter here.

Verses like 4:3, 4:24, 23:6, 33:50 give a categorical permission to have sexual relations with concubines, there is no other verses or hadith which imposes the condition of consent - hence it can be deduced that consent is irrelevant.

Scholars have noted that it is obligatory on a concubine to submit to her master:

ويجب على المملوكة أن تمكن سيدها من نفسها للاستمتاع، ويحرم عليها الامتناع من ذلك لأنه منع حق

It is wajib on a female slave to provide herself to her master for sexual intimacy and it is haram for her to stop him from it - because it is his right

^{— Mawsoo’ah al-Fiqhiyyah}

An act being obligatory (and refraining from it being haram) means that the person does not have a choice to refrain from it. Lack of choice means that her consent is not relevant.

A master can punish a slave for her refusal to have intimacy:

وكذلك الأمة ليس لها أن تمتنع من تلبية رغبة سيدها إلا من عذر ، فإن فعلت كانت عاصية ، وله أن يؤدبها بما يراه مناسباً وأذن الشرع به

It is not permissible for a concubine to deny intimacy to her master without a valid excuse, if she does this then she is disobedient sinner. And it will be permissible for her master to discipline her in a way which he think appropriate and is permissible in shariah

^{— islamqa}

فإذا امتنعت الزوجة أو ملك اليمين عن المعاشرة بلا عذر شرعي، فحينئذ يجوز للزوج أو السيد إجبارها على ذلك

If a concubine prevents her master from having intimacy without a valid excuse then it is permitted for her master to force her to do it

^{— islamweb}

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A master has sexual relations with her concubine without requiring 'marriage'. Indeed he can not himself 'marry' his concubine, unless he frees her first. However he can give his female slave in marriage to someone else. In this case he does not need to obtain her permission - because giving her in marriage serves an interest (keeping her chaste) and also has personal benefits for the master (such as receiving dowry).

وللسيد أن يجبر الأمة على التزويج بمن شاء السيد، واستثنى الحنابلة أن يكون الزوج معيبا بعيب يرد به في النكاح فلا يجبرها عليه

A master can force his slave to marry whomever he wishes, however the Hanbalis have made an exception when the groom has a defect

^{— Mawsoo’ah al-Fiqhiyyah}

Answer 2

Good question, not getting consent and doing it against their wills can cause significant harm to their mental well being, in Islam you must treat slaves in good way not like that.

You Can't even Slap slave, Let Alone Raping Them

You are not allowed to inflict physical harm on slave, let alone raping them

I came to Ibn 'Umar as he had granted freedom to a stave. He (the narrator further) said: He took hold of a wood or something like it from the earth and said:(freedom of a slave) has not the reward evert equal to it, but the fact that I heard Allah's Messenger (way peace be upon him) say: He who slaps his slave or beats him, the expiation for it is that he should set him free.

Source : https://sunnah.com/muslim:1657a

That being said, you can verbally order them around but if they resist it you can't use physical aggression to force them into it and later Rape them, it's similar to the hadith about angels cursing a wide who reject sex but the husband can't force himself on her if she refuses, the punishment is between her and God not her husband physically forcing her, same thing for here, raping them is contradicting several ahadiths and verses severely and goes against how it's commanded of Muslims to treat them well, he needs to take set of order and cannot immediately force himself upon her.

Major Shafi'i scholar al-Haleemi (d. 403) said when commenting on Q. 4:36 which speaks of kindness to slaves:

"If she disliked being touched or intercourse, then he shouldn't touch her or have intercourse with her without her permission."

al-Minhaj fi Shu'ab al-Iman 3/267

Answer 3

And [also prohibited to you are all] married women except those your right hands possess. [This is] the decree of Allah upon you. And lawful to you are [all others] beyond these, [provided] that you seek them [in marriage] with [gifts from] your property, desiring chastity, not unlawful sexual intercourse. So for whatever you enjoy [of marriage] from them, give them their due compensation as an obligation. And there is no blame upon you for what you mutually agree to beyond the obligation. Indeed, Allah is ever Knowing and Wise. Quran 4:24

So the main point is the gift(mahr) is accepted by the woman in presence of 2 witness before any sexual relation can take place. If the gift is not acceptable to the girl, no sexual relation can take place and what happens is rape and it is punishable in Islam.

Main point to note is the above verse is continuation of verse where the women who are forbidden is listed. So it includes captive woman also who can be married.