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ecclesiastical divorce and divorce issued by an Ottoman court, the difference
between them with regard to child custody comes down to whether or not the
woman bore any responsibility for the breakdown of the marriage. This is because
in ecclesiastical divorces the mother was awarded custody of the children only
when she was not at fault, whereas under Islamic law she was awarded temporary
custody regardless of where the fault lay. In predominantly Orthodox local
communities, however, customary law was an especially important factor, and
it emerges from Maurer’s account of the practices that the issue may have been
handled in different ways. It must also be borne in mind that we do not know
how many couples with children went to the kadı for their divorce. It has been
suggested that the couples who applied to the ecclesiastical court for a consensual
divorce were childless;55 we cannot know if this was also the case with the couples
who went to the kadı, unless it is specifically mentioned in the court documents.
What is striking about these cases (apart from the emotional aspect) is, first of
all, the women’s awareness of the provisions of Shari‘a which relate to them, as
also the lucid assertion of their rights arising out of that awareness. Familiarity
with Shari‘a is also evident in an interesting child-custody case: in the kaza of
Samos in 1635, a non-Muslim father successfully claimed custody of his daughter
from his former mother-in-law on the grounds that the girl was approaching the
age of 11–12 and was on the verge of being able to experience carnal pleasure
[ hadd-i şehvet]. A fetva attached to the record supported his claim, and the girl
was eventually handed over to her father by decision of the Ottoman court.56 This
is an important case because it illustrates the strict application of the provisions
of Islamic law in an almost totally non-Muslim environment: the transfer of the
hakk-ı hizane from the non-Muslim ex-wife to her mother because the former
had been remarried, and the handing over of the girl to her father as soon as
she went beyond hizane and showed signs of physical maturity. It then became
his responsibility to safeguard her honour and protect her chastity. Both Islamic
law and the customary law of the Orthodox communities regarded the father as
the most suitable person to represent an adolescent girl’s interests, safeguard her
honor, and secure her a good marriage. In the aforementioned document, the
father not only accepted responsibility for safeguarding his daughter’s honor, but
initiated the process of assuming it himself, taking pains to obtain the relevant
fetva and demonstrating that he knew the details of the Shari‘a that concerned
him.57
The charges of sexual assault and physical violence brought by women, as
also the intervention of local representatives of the central government in cases
of extramarital pregnancy and prostitution, are extremely revealing of attitudes to
female sexuality in the seventeenth and eighteenth centuries.
I shall begin with accusations brought before the Ottoman court by women
charging that they had been raped or otherwise assaulted by a man. The cases are
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very few in number, but they lend themselves to a qualitative analysis because
it is remarkable that non-Muslim women should publicize, especially in an
Ottoman court, cases of sexual and/or other physical assault. In 1661 the Ottoman
court of the kaza of Samos heard a charge brought by a Christian woman that a
Christian man had sexually assaulted her in a rural location near a monastery on
the island and had gotten her pregnant. She asked that Islamic law be applied. The
accused was acquitted because the plaintiff was unable to prove her accusation,
and because he swore his innocence under oath. A part in his acquittal must have
been played by the plaintiff’s admission during the process that she had not
resisted the assault.58 Twenty years later, again in the Samos court, a non-Muslim
woman accused a non-Muslim man of having had unlawful sexual intercourse
with her in her home, as a result of which she had become pregnant. The accused
denied the charge, pleading ignorance, and the plaintiff’s evidence was deemed
inadequate [ âciz]. Male witnesses were then summoned, both from the woman’s
village and from the nearby town of Karlovasi, and gave evidence that acquitted
the accused.59 In 1752, two Christian women brought charges before the Ottoman
court in Crete against a Muslim man from their village, one accusing him of
sexually assaulting her young son and then striking him with such force that the
boy died of his injuries a few days later; the other of trying to abduct and kill her.
Although she had managed to escape, he had been threatening to kill her if she
did not “yield to his desires.” Both women asked that he be punished according
to Islamic law. The accused denied the charges, but eight Muslim witnesses from
the women’s village—several of them converts to Islam―appeared and stated
that the accused was a murderer and an adulterer. A fetva was read out in court
from the müfti of Hanya giving an affirmative reply to the question of whether
Islamic law prescribed the execution of such a person, and the court’s permission
to impose the death penalty was therefore sought.60 A year later, a Christian told
the court about her litigation against the garrison commander [ dizdar] of Ierapetra
in Crete, who had spread the rumour that she had been raped by brigands and,
being no longer a virgin, was now engaged in prostitution. He had subsequently
raped her, slandered her, and assaulted her, occasioning such injuries that she now
found it very difficult to walk. The woman had initially pressed charges against
the garrison commander seeking compensation for her two injured legs, but she
now stated that she had reached a settlement with him for fifty ğuruş, which she
had received, and that if she ever pressed further charges against the garrison
commander in the event of her becoming unable to move, her claim was not to
be heard.61
The one factor common to all these cases is that they mention the offence
of unlawful sexual intercourse [ zina], directly or indirectly. In the last case, the
offence of zina was not the subject of the action after the settlement had been
reached either. The most clear-cut cases are the first two, in which non-Muslim
women demanded the application of Ottoman criminal law also with regard to the
offence of unlawful sexual intercourse—unlawful in that there was no question of
the proprietorial status that, under Islamic law, occurs in the context of marriage
laiou, Christian Women in an ottoman World
255
and slave ownership.62 Neither Islamic nor secular law [ kanun] recognized the
concept of rape, taking the view that both partners participate in the sexual act and
therefore the victim of rape is (theoretically) as guilty as the perpetrator. The only
case in which only the rapist was punished was when zina had been committed
upon a mentally ill person or a minor.63 However, there are certain fetva s which
tacitly acknowledged the non-consent of
a woman;64 it can therefore be supposed
that despite the above-mentioned attitude on the part of both Islamic and secular
law, the women victims probably escaped punishment in the actual enforcement
of the law. So what were these non-Muslims hoping to achieve by bringing such
charges before the court?
In Islamic law, zina (unlawful sexual intercourse with or without consent) was
considered an offence against God and carried a hadd punishment, which ranged
from execution by stoning for a married Muslim [ muhsan/ a], to a hundred lashes
for an unmarried Muslim (and fifty for a slave).65 However, all four Muslim legal
schools gradually changed their attitudes toward this particular offence. This
change was based on the tradition that Omar, the second Muslim caliph, had
resolved cases of rape either by offering the woman the opportunity to marry
her assailant and, if she refused, making him dower her in compensation, or by
flogging and then banishing the rapist with no payment of a dowry if the woman
had not been a virgin. The apparent tendency to replace the hadd punishment with
the payment of compensation to the woman was based upon the view that there
had been a violation of the right of ownership, and compensation—which was
likened to a dowry—in actual fact constituted an ex post facto recognition (albeit
on a single occasion) of the rapist’s right of ownership over his victim’s sexual
parts.66 The concept of compensation in relation to a tendency to avoid harsh
hadd punishment was also reflected in secular law, which, while recognising zina
as a criminal offence, punished it with a fine in an amount that depended on
the financial, personal, and civil status of the guilty party―that is, on his or her
financial means and on whether or not he or she was a Muslim, a free person,
married, a virgin, and a minor.67 It should be noted that the kadı could also sentence
the perpetrator to a flogging [ tazir] as well as a fine.68
It is clear from the foregoing that if a woman who brought a charge of rape
managed to sustain her accusation by producing credible witnesses, she stood
a good chance of receiving compensation, unless she insisted on a sentence of
corporal punishment. The question is: How easy was it for a woman to prove that
she had been raped? In the two cases from Samos, the plaintiffs failed to convince
the court. Although they were allowed to present their evidence first, the court
deemed it “inadequate”; the records do not indicate what form the evidence had
taken. In the 1661 case, the oath of the accused was considered the most important
proof of his innocence,69 and some part in this must have been played by the fact
that the unlawful act of sexual intercourse had taken place outside the plaintiff’s
home, that is, outside her absolutely private space. In the 1681 case, the rape had
been committed in the woman’s home, and this may be why it was not enough
for the accused simply to swear to his innocence—he also had to present the
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court with five male witnesses to confirm it.70 One factor common to both cases
is that the plaintiffs were pregnant, as a result, they asserted, of the unlawful act
of sexual intercourse. Thus, their appeal to the Ottoman court may be explained
as an attempt to secure financial compensation, if they were vindicated, and as
a deliberate declaration of paternity even if the man denied it. These women
had nothing left to lose, for they were already (or soon would be) at odds with
their social environment. Being well aware that their vindication in court was a
very difficult matter, and laying themselves open to a countercharge of slander
regarding a sexual offence [ kazf],71 their appeal to the judge may well have been
connected with a desire to make known the person who was morally reponsible
for the condition in which they now found themselves, to expose him within their
immediate social environment, and thus to achieve at least moral condemnation
of him since a criminal conviction was so difficult.72 One is also struck by the
fact that charges had not been brought for six-and-a-half months in the 1661 case,
and that the 1681 case had also been slow in coming to court—though it is not
stated how many months pregnant the plaintiff was. The delay would have told
against the women, who thus forfeited much of the force of their case in the eyes
of the court.73 One presumes that it was due to their need to delay publicizing their
problem or to try to procure an out-of-court acknowledgement of paternity.
Things took a different course in the 1752 case. Here, the two women helped
each other in their bid to punish the man accused of the rape of a child, and the
attempted abduction and murder of one of the plaintiffs. They also had the support
of public opinion, as reflected in the statements of their Muslim fellow-villagers.
Lastly, what is striking in the 1753 case is the fact that the plaintiff did not charge
the garrison commander of Ieratpetra with rape, but with physical assault which
injured her legs. It was easier for her to have him convicted of assault, since
she was able to show the court her injuries and possibly to produce witnesses
to confirm what she said, thus forcing him to reach a settlement. By contrast, it
would have been very difficult to prove that she had been raped, and she would
have risked a counter-accusation of kazf.
Another interesting case is the charge of rape brought by a Christian woman
of Kos against a Christian man in 1764. She took him to “civil court” ( sic—here
meaning the Ottoman court) and he, in order to avoid a criminal conviction,
entered into a temporary marriage with her and then divorced her and gave her
the kebin, the post facto payment for the use of a woman’s sexual parts according
to the tradition of Omar.74
Why did these non-Muslim women turn to the Ottoman court rather than
the local communal court? The answer here is clearer than in the case of non-
Muslims who registered their marriages or divorces. The point at issue was a
criminal offence, the trying of which came under the jurisdiction of the Ottoman
court. Surviving Greek documents from Naxos and Paros concerning cases of
rape or extramarital sexual intercourse (together with paternity cases) state that
the case had been heard by the representative of the kapudan paşa (admiral of the
Ottoman Fleet) under whose authority most of the Aegean islands came, and in
laiou, Christian Women in an ottoman World
257
the presence of the local notables. The notables tried cases mainly on the basis of
customary law, and, at least in those instances mentioned in the extant documents,
their decision was endorsed by the presence of the representative of the central
government and was therefore immediately enforceable.75
It should be noted that in communal courts, the thinking that governed the
trying of cases like these varied according to local customs. For instance on Naxos
in the early nineteenth century, a woman who had had sexual intercourse with a
man who subsequently did not marry her could demand financial compensation
for her “ruined virginity” (also known as the “m
aidenhead price”), and child
support if the act of extramarital intercourse resulted in the birth of a child. On
the other hand, under the customary law of Syros (1695), a woman who consented
to her own “ruin” was held up to public scorn and banished,76 while in the case
of rape the woman could reach a financial settlement or the perpetrator would be
sentenced to lifelong penal servitude in the galleys of the Ottoman fleet. In the
latter case, the community leaders handed the guilty party over to the Ottoman
authorities, who requested that the sentence be carried out.77
Although the available archival material furnishes very few cases of a charge
of zina being brought by a woman, there are many more documents describing
interventions by the local Ottoman authorities in cases of adultery and the birth of
children out of wedlock. For instance in 1676, the zabit in the kaza of Samos asked
the judge to question a monk about a case of which he had been told—namely that
twenty-one years earlier the monk had had unlawful sexual intercourse with a nun
who had become pregnant and, in her attempt to procure an abortion, had died.
Likewise in 1648, Halil Beg of the village of Muzur in the kaza of Veria asked
that a zimmi woman from the same village be summoned to the court of Veria
and questioned about her pregnancy. She replied that she had been raped by one
Mehmed Çelebi on whose çiftlik she lived, and that as a result she was now in her
fifth month of pregnancy.78 Similar interventions are mentioned on Cyprus, where,
in the mid-seventeenth century, the sipahi of a village accused a Christian woman
of having had unlawful sexual relations with one of her fellow villagers.79 Three
buyuruldu s of the second half of the eighteenth century reveal the unsolicited
intervention of the muhassil of the island in cases of adultery.80 On Crete too, in
the mid-seventeenth century, the voyvoda of Rethymno summoned an unmarried
Christian to court to explain the circumstances of her pregnancy, and intervened
in a case of an unmarried non-Muslim couple who were cohabiting.81
The official representatives of the central government had the self-appointed
right to bring before court those offences that transgressed the law of God, such
as zina and the related crime of prostitution.82 On many occasions, however, such