<pre>Sexual Violence in Jurisprudence (5): Elimination of Virginity with Sex Toys?
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There are many motives for cases of sexual violence. There are at least 14 motives that were successfully recorded, namely: (1) rape, (2) sexual harassment, (3) sexual exploitation, (4) sexual torture, (5) sexual slavery, (6) intimidation, threats and attempted rape , (7) forced prostitution, (8) forced pregnancy, (9) coercion of abortion, (10) forced marriage, (11) trafficking of women for sexual purposes, (12) sexual control such as coercion and discrimination of women through rules, (13 ) inhumane and nuanced sexual punishment and (14) sexual nuance practices that endanger women.

From the umpteenth motives of violence that tend to get a lot of emphasis in the study of jurisprudence is still limited to categories (1) rape, (2) prostitution, (3) forced marriage, and (4) adultery (adultery).

Scholars still don't have much in the study of sexual control, forced pregnancy, sexual slavery, and so on. Including what has not been widely conveyed in general is the conception of the elimination of virginity and sexual exploitation and how fiqh addresses this problem. Countless previous Islamic jurisprudence texts have examined the problem as mentioned last, but the teachings still revolve around academic texts.

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In this article the author tries to discuss aspects of fiqh in cases of virginity disappearance as part of the theme of sexual violence. As is widely known through the mass media that this case is the most prevalent. Not only in the private sphere, but in the public sphere it is not free from the same case. The focus of this study is on aspects of virginity loss due to sexual abuse in the realm of privacy, namely by husbands.

The purpose of losing virginity in this paper is loss which is not caused by acts of rape which tend to be nuanced as a result of the relationship between people on the basis of coercion or intimidation. What is meant by the removal of virginity in this paper is the result of inserting a device other than a vital tool into the sex organs of a victim of abuse. Included in the category of tools here are fingers, sex toys or other objects that can result in the loss of virginity of the victim. Is there a text of jurisprudence talking about this? Here is the explanation!

The scholars of Hanafiyah, Syafi'iyah and Hanabilah agreed that the most valid qaul ( ashah ) for the case of husband's virginity disappearance by road other than intercourse, is okay ( there are no fines or ta'zir ).

ووجهه عند الحنفية: أنه لا فرق بين آلة وآلة في هذه الإزالة. وورد في أحكام الصغار في الجنايات: أن الزوج لو أزال عذرتها بالأصبع لا يضمن, ويعزر, ومقتضاه أنه مكروه فقط. وقال الحنابلة: إنه أتلف ما يستحق إتلافه بالعقد, فلا يضمن بغيره. وأما الشافعية فقالوا: إن الإزالة من استحقاق الزوج. والقول الثاني لهم: إن أزال بغير ذكر فأرش. وقال المالكية : إذا أزال الزّوج بكارة زوجته بأصبعه تعمّداً ، يلزمه حكومة عدلٍ (أرش) يقدّره القاضي ، وإزالة البكارة بالأصبع حرام ، ويؤدّب الزّوج عليه

Artiny a: “The basis of this opinion according to the Hanafiyah group is: There really is no difference between using this tool (the vital tool) and the instrument (sex toys] and the like) in the matter of eliminating wife's virginity. However, in the chapter Al-Shighar jinayat, it is stated that the husband who removes his wife's virginity with fingers, for him there is no cover. He only has the right to dita'zir because the law of the removal of virginity in addition to mediating jima 'is makruh only. Hanabilah argued: The husband had damaged himself what had become his right to be damaged by a contract, therefore there was no responsibility for him. Syafiiyah believes that eliminating virginity is the right of the husband. However, the second qaul of each of these schools mentions that: It is true that eliminating virginity without dzakar must apply arsyun (ransom). The same opinion is with the Tsani qaul from Malikiyah who states that if a husband removes his wife's virginity by using his fingers intentionally, then he must accept the law in the name of justice (compensation / ransom) determined by the judge. Eliminating virginity with fingers is haram so that the husband who does it must be forced to do so [[MinistryofWaqfandIslamicAffairs al-Mausû'ah al-Fiqhiyyah Kuwait: Wazâratu al-Auqâf wa al-Shuûn al -Islâmiyah, tt .: Juz 8, page: 181]

Considering there are differences of opinion among ulama related to the removal of wife's virginity with sex tools, fingers, and the like, which opinion is determined according to the benefit side deemed necessary. If a more serious decision is to use the qaul tsani (second opinion other than al-ashah then the law applies as follows:

First, if the act of removing virginity is without a wife's consent so that the violence committed by the husband against his wife and wife did not accept this, so he could apply for compensation / fines ( arsyun ) to the husband whose amount was determined by the judge. Second, the form of ta'zir (if done by the husband) the maximum for a husband who commits the above is prison or equal with the intention of deterring him ( ta'dib ) and things this level is determined by the judge.

How much is the ransom that must be paid by the husband due to the act of virginity removal with the sex tool?

In the book Al-Mausu'ah al-Fiqhiyyah j. 181-182, mentioned several provisions of the scholars of the four schools, among others as follows:

وباقيه إن قبض بعضه ،زالة البكارة بأصبعٍ ونحوه لا يكون إلاّ في خلوةٍ. وقال المالكي ة: لو فعل الزوج ما ذكر لزمه أرش البكارة التي أزالها بأصبعه, مع نصف صداقها. وقال الشافعية والحنابلة: يحكم لها بنصف صداقها, لمفهوم قوله تعالى: {وإن طلقتموهن من قبل أن تمسوهن وقد فرضتم لهن فريضة فنصف ما فرضتم} إذ المراد بالمس: الجماع, ولا يستقر المهر باستمتاع وإزالة بكارة بلا آلة, فإن طلقها وجب لها الشطر دون أرش البكارة, وعلل الحنابلة زيادة على الآية بأن هذه مطلقة قبل المسيس والخلوة, فلم يكن لها سوى نصف الصّداق المسمّى ، ولأنّه أتلف ما يستحقّ إتلافه بالعقد ، فلا يضمنه بغيره

Meaning: “Ulama hanafiyah has ndapat that if the husband has removed his wife's virginity without the occurrence of jima, then he mentalaq before taking care of him, then the right for the wife is all the dowry that has been given by her husband, even if the dowry is still just mentioned so that it has not been submitted beforehand partially surrendered so that there are remaining unpaid (then he is entitled to the remainder). The reason for this is the case of the removal of virginity with a finger or similar device is carried out in the conditions of khalwah [seclusion / privacy]

The Malikiyah argues: if the husband does as it is, then it is obligatory for him to ransom virginity due to finger added with half of the dowry given. Syafiiyah and Hanabilah argued: It was decided that the wife's right was to receive half of her dowry based on the word of Allah SWT: وإن طلّقتموهنّ من قبل أن تمسّوهنّ وقد فرضضةً فنصف ما فرضتم (if you divorce it, then for your part the required part over you, which is half of what you have given as dowry). Understanding of diction “touching” is watching. Thus, the compulsory dowry must be paid only because of istimta ' or removal of virginity by means of equipment, so that if the husband divorces his wife in a condition of virgin loss due to the husband's finger, the husband is only obliged to pay half the dowry and not ransom

The Hanabilah added its argument that the elimination of virginity is absolutely valid before the occurrence of intercourse (jima ') and seclusion (khalwah) so that there is no other right that can be given to the wife who is in lieu of the promised half. More than that, the husband has the right to damage what is his right to damage the cause of the contract, so for him there is no other insurance right besides the half of the dowry. “[Ministry of Waqf and Islamic Affairs, [al-Mausû'ah al-Fiqhiyyah] Kuwait: Wazrār al-Auqâf wa al-Shuûn al-Islâmiyah, t .: juz 8, pages 181-182]

The conclusion that can be drawn from this statement is that the ulama have set the minimum ransom status as follows :

1. According to Malikiyah: the husband is obliged to pay half the dowry plus the ransom of virginity due to the sex toys used [199006]

2. Hanafiyah, Syafiiyah and Hanabilah only require half the dowry

Because there is a possibility that the husband also enforces sexual violence to his wife using sex aids that are not desired by his wife, resulting in inner suffering for the wife, then a more serious step in this matter is to determine the ranking of sanctions to the husband as a result of the actions he did as referred to in the above case is obligatory to pay a ransom ( arsyun ). This action can be grouped into article jariimah which is to injure the victim with an object / tool so as to cause physical injury in the form of virginity which should be given in a way that is halal again good. Allah SWT said:

وعاشروهن بالمعروف

Meaning: “Gather your wife in a way that is ma'ruf.”

Wallâhu a'lam bish shawâb

Ustadz Muhammad Syamsudin Caregiver of PP Hasan Jufri Putri, P. Bawean, East Java and Chair of the Perumus Bahtsul Masail Qanuniyah Team NU 2019 National Conference, one of which highlighted the Bill on the Elimination of Sexual Violence

. Islam

This Article was Published On: NU Online

Translated by Google Translate

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