Fornication In Islam
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''Zināʾ'' () or ''zinā'' ( or ) is an Islamic legal term referring to unlawful sexual intercourse. According to traditional jurisprudence, ''zina'' can include
adultery Adultery is extramarital sex that is considered objectionable on social, religious, moral, or legal grounds. Although the sexual activities that constitute adultery vary, as well as the social, religious, and legal consequences, the concept ...
,
fornication Fornication generally refers to consensual sexual intercourse between two people who are not married to each other. When a married person has consensual sexual relations with one or more partners whom they are not married to, it is called adu ...
,
prostitution Prostitution is a type of sex work that involves engaging in sexual activity in exchange for payment. The definition of "sexual activity" varies, and is often defined as an activity requiring physical contact (e.g., sexual intercourse, no ...
,
sodomy Sodomy (), also called buggery in British English, principally refers to either anal sex (but occasionally also oral sex) between people, or any Human sexual activity, sexual activity between a human and another animal (Zoophilia, bestiality). I ...
,
incest Incest ( ) is sexual intercourse, sex between kinship, close relatives, for example a brother, sister, or parent. This typically includes sexual activity between people in consanguinity (blood relations), and sometimes those related by lineag ...
, and bestiality. ''Zina'' must be proved by testimony of four Muslim eyewitnesses to the actual act of penetration, confession repeated four times and not retracted later. The offenders must have acted of their own free will. Rapists could be prosecuted under different legal categories which used normal evidentiary rules.A. Quraishi (1999), Her honour: an Islamic critique of the rape provisions in Pakistan's ordinance on ''zina'', ''Islamic studies'', Vol. 38, No. 3, pp. 403–431 Accusing ''zina'' without presenting the required eyewitnesses is called ''qadhf'' (), which is itself a ''
hudud ''Hudud'' is an Arabic word meaning "borders, boundaries, limits". The word is applied in classical Islamic literature to punishments (ranging from public lashing, public stoning to death, amputation of hands, crucifixion, depending on the c ...
'' offense. There are very few recorded examples of the stoning penalty for ''zinā'' being implemented legally. Before
legal reform Law reform or legal reform is the process of examining existing laws, and advocating and implementing change in a legal system, usually with the aim of enhancing justice or efficiency. Intimately related are law reform bodies or law commissions ...
was introduced in several countries during the 20th century, the procedural requirements for proving the offense of ''zinā'' to the standard necessary to impose the stoning penalty were effectively impossible to meet. ''Zina'' became a more pressing issue in modern times, as Islamist movements and governments employed polemics against public immorality. In recent decades, several countries passed legal reforms that incorporated elements of hudud laws into their legal codes, and many modern Islamists have also disregarded the condition of strict evidence requirements. In Nigeria, local courts have passed several stoning sentences, all of which were overturned on appeal or left unenforced. In Pakistan, the
Hudood Ordinances The Hudud Ordinances are laws in Pakistan enacted in 1979 as part of the Islamization of Pakistan by Muhammad Zia-ul-Haq, the sixth president of Pakistan. It replaced parts of the British-era Pakistan Penal Code, adding new criminal offences o ...
of 1979 subsumed prosecution of rape under the category of ''zina'', making rape extremely difficult to prove and exposing the victims to jail sentences for admitting illicit intercourse forced upon them, although these laws were amended in 2006, and again in 2016. According to human rights organizations, stoning to death for ''zina'' has also been carried out in Saudi Arabia. ''Zina'' and rape are two different crimes under Islamic Law. Ordinances like the
Hudood Ordinances The Hudud Ordinances are laws in Pakistan enacted in 1979 as part of the Islamization of Pakistan by Muhammad Zia-ul-Haq, the sixth president of Pakistan. It replaced parts of the British-era Pakistan Penal Code, adding new criminal offences o ...
are not Islamic, in terms of rape and ''zina''.


Islamic scriptures

Muslim scholars have historically considered ''zinā'' a ''
hudud ''Hudud'' is an Arabic word meaning "borders, boundaries, limits". The word is applied in classical Islamic literature to punishments (ranging from public lashing, public stoning to death, amputation of hands, crucifixion, depending on the c ...
'' sin, or crime against God. It is mentioned in both Quran and in the
Hadith Hadith is the Arabic word for a 'report' or an 'account f an event and refers to the Islamic oral tradition of anecdotes containing the purported words, actions, and the silent approvals of the Islamic prophet Muhammad or his immediate circle ...
s.


Introduction and definition

The Quran deals with ''zina''ʾ in several places. First is the Qur'anic general rule that commands
Muslims Muslims () are people who adhere to Islam, a Monotheism, monotheistic religion belonging to the Abrahamic religions, Abrahamic tradition. They consider the Quran, the foundational religious text of Islam, to be the verbatim word of the God ...
not to commit ''zina'': In the
Hadith Hadith is the Arabic word for a 'report' or an 'account f an event and refers to the Islamic oral tradition of anecdotes containing the purported words, actions, and the silent approvals of the Islamic prophet Muhammad or his immediate circle ...
s, the definitions of ''zina'' have been described as all the forms of
sexual intercourse Sexual intercourse (also coitus or copulation) is a sexual activity typically involving the insertion of the Erection, erect male Human penis, penis inside the female vagina and followed by Pelvic thrust, thrusting motions for sexual pleasure ...
, penetrative or non-penetrative, outside of marriage.


Adultery and fornication


Quran

Stoning punishment, a form of capital punishment for adultery, is not mentioned in the canonical text of the Quran. Most of the rules related to fornication, adultery and false accusations from a husband to his wife or from members of the community to chaste women can be found in Surah an-Nur (the Light). The
surah A ''surah'' (; ; ) is an Arabic word meaning 'chapter' in the Quran. There are 114 ''suwar'' in the Quran, each divided into ayah, verses (). The ''suwar'' are of unequal length; the shortest ''surah'' (al-Kawthar) has only three verses, while ...
starts by giving very specific rules about punishment for ''zina'': According to
Jonathan A.C. Brown Jonathan Andrew Cleveland Brown, born August 7, 1977, is a university academic and American scholar of Islamic studies. Since 2012, he has served as an associate professor at Georgetown University's Edmund A. Walsh School of Foreign Service. He h ...
, Surah an-Nisa verse 4:25 prescribes punishment for a female slave guilty of a sexual offense as half of the punishment of a free woman:


Hadith

The public lashing punishment for fornication and adultery are also prescribed in
Hadith Hadith is the Arabic word for a 'report' or an 'account f an event and refers to the Islamic oral tradition of anecdotes containing the purported words, actions, and the silent approvals of the Islamic prophet Muhammad or his immediate circle ...
s, the books most trusted in Islam after Quran, particularly in ''Kitab Al-Hudud''.Z. Mir-Hosseini (2011), Criminalizing sexuality: zina laws as violence against women in Muslim contexts, SUR-Int'l Journal on Human Rights, 8(15), pp. 7–33
Hadith Sahih al Bukhari () is the first hadith collection of the Six Books of Sunni Islam. Compiled by Islamic scholar al-Bukhari () in the format, the work is valued by Sunni Muslims, alongside , as the most authentic after the Qur'an. Al-Bukhari organized the book ...
, another authentic source of sunnah, has several entries which refer to death by
stoning Stoning, or lapidation, is a method of capital punishment where a group throws stones at a person until the subject dies from blunt trauma. It has been attested as a form of punishment for grave misdeeds since ancient times. Stoning appears t ...
. For example, Other
hadith Hadith is the Arabic word for a 'report' or an 'account f an event and refers to the Islamic oral tradition of anecdotes containing the purported words, actions, and the silent approvals of the Islamic prophet Muhammad or his immediate circle ...
collections on ''zina'' between men and woman include: * The stoning (
Rajm In Islam, stoning ()E. Ann Black, Hossein Esmaeili and Nadirsyah Hosen (2014), Modern Perspectives on Islamic Law, , pp. 222-223Rudolph Peters, Crime and Punishment in Islamic Law, Cambridge University Press, , pp. 37 is the '' Hudud'' punishme ...
) of a Jewish man and woman for having committed illegal sexual intercourse. *
Abu Hurairah Abū Hurayra ʿAbd al-Raḥmān ibn Ṣakhr al-Dawsī al-Zahrānī (; –679), commonly known as Abū Hurayra (; ), was a companion of the Islamic prophet Muhammad and considered the most prolific hadith narrator. Born in al-Jabur, Arabia to ...
states that the Prophet, in a case of intercourse between a young man and a married woman, sentenced the woman to
stoning Stoning, or lapidation, is a method of capital punishment where a group throws stones at a person until the subject dies from blunt trauma. It has been attested as a form of punishment for grave misdeeds since ancient times. Stoning appears t ...
Understanding Islamic Law
By Raj Bhala, LexisNexis, May 24, 2011
and the young man to
flogging Flagellation (Latin , 'whip'), flogging or whipping is the act of beating the human body with special implements such as whips, rods, switches, the cat o' nine tails, the sjambok, the knout, etc. Typically, flogging has been imposed ...
and
banishment Exile or banishment is primarily penal expulsion from one's native country, and secondarily expatriation or prolonged absence from one's homeland under either the compulsion of circumstance or the rigors of some high purpose. Usually persons ...
for a year. (Sahih Muslim 17:4209)


Rape

Rape has been defined as ''zina al-jabr'' (forceful illicit sex) in the traditional Islamic texts. Few
hadiths Hadith is the Arabic word for a 'report' or an 'account f an event and refers to the Islamic oral tradition of anecdotes containing the purported words, actions, and the silent approvals of the Islamic prophet Muhammad or his immediate circle ...
have been found regarding rape in the time of Muhammad. The most popular transmitted hadith given below indicates the ordinance of stoning for the rapist but no punishment and no requirement of four eyewitnesses for the rape victim. The hadiths declare rape of a free or slave woman as ''zina''.


View of scholars

If a confession or the four witnesses required to prove a ''hadd'' crime are not available, but rape can be proved by other means, the rapist is sentenced under the '' ta'zir'' system of judicial discretion. According to the eleventh-century Maliki jurist
Ibn 'Abd al-Barr Yūsuf ibn ʿAbd Allāh ibn Muḥammad ibn ʿAbd al-Barr, Abū ʿUmar al-Namarī al-Andalusī al-Qurṭubī al-Mālikī, commonly known as Ibn ʿAbd al-Barr ()
:


Homosexuality

Islamic teachings (in the ''
hadith Hadith is the Arabic word for a 'report' or an 'account f an event and refers to the Islamic oral tradition of anecdotes containing the purported words, actions, and the silent approvals of the Islamic prophet Muhammad or his immediate circle ...
'' tradition) presume same-sex attraction, extol abstention and (in the
Qur'an The Quran, also romanized Qur'an or Koran, is the central religious text of Islam, believed by Muslims to be a revelation directly from God ('' Allāh''). It is organized in 114 chapters (, ) which consist of individual verses ('). Besides ...
Camilla Adang (2003), Ibn Hazam on Homosexuality, Al Qantara, Vol. 25, No. 1, p. 531) condemn consummation. There are no reports relating to homosexuality in the best known and authentic hadith collections of ''
Sahih al-Bukhari () is the first hadith collection of the Six Books of Sunni Islam. Compiled by Islamic scholar al-Bukhari () in the format, the work is valued by Sunni Muslims, alongside , as the most authentic after the Qur'an. Al-Bukhari organized the bo ...
'' and ''
Sahih Muslim () is the second hadith collection of the Six Books of Sunni Islam. Compiled by Islamic scholar Muslim ibn al-Ḥajjāj () in the format, the work is valued by Sunnis, alongside , as the most important source for Islamic religion after the Q ...
'', other canonical collections record a number of condemnations of the "act of the people of Lut" (male-to-male
anal intercourse Anal sex or anal intercourse principally means the insertion and thrusting of the erect penis into a person's anus, or anus and rectum, for sexual pleasure.Sepages 270–271for anal sex information, anpage 118for information about the clitoris ...
). Some Quranic verses are used to propose a prohibition of homosexual activities, including:Stephen O. Murray and Will Roscoe (1997), Islamic Homosexualities: Culture, History, and Literature, , New York University Press, pp. 88–94 In another verse, the statement of the prophet Lot has also been pointed out, Some scholars indicate this verse as the prescribed punishment for homosexuality in the Quran: However, there are different interpretations of the last verse where the Quran refers to as "two among you". Pakistani scholar
Javed Ahmed Ghamidi Javed Ahmad Ghamidi (born 7 April 1952) is a Pakistani Islamic scholar and philosopher who is the founder of Al-Mawrid Institute of Islamic Sciences and its sister organisation ''Danish Sara''. He is regarded as one of the most influential and ...
sees it as a reference to premarital sexual relationships between men and women. In his opinion, the preceding Ayat of Sura Nisa deals with prostitutes of the time. He believes these rulings were temporary and were abrogated later when a functioning state was established and society was ready for permanent rulings, which came in Sura Nur, Ayat 2 and 3, prescribing flogging as a punishment for adultery. He does not see stoning as a prescribed punishment, even for married men, and considers the Hadiths quoted supporting that view to be dealing with either rape or prostitution, where the strictest punishment under Islam for spreading "fasad fil ardh", meaning corruption in the land, referring to egregious acts of defiance to the rule of law was carried out. Maliki, Shafi'i and Hanbali jurists insist that anal sex between men is a
hudud ''Hudud'' is an Arabic word meaning "borders, boundaries, limits". The word is applied in classical Islamic literature to punishments (ranging from public lashing, public stoning to death, amputation of hands, crucifixion, depending on the c ...
crime punished with death, however Hanafi jurists argue that the act is immoral and forbidden but does not qualify as a
hudud ''Hudud'' is an Arabic word meaning "borders, boundaries, limits". The word is applied in classical Islamic literature to punishments (ranging from public lashing, public stoning to death, amputation of hands, crucifixion, depending on the c ...
violation. The Hadiths consider homosexuality as ''zina''. For example, Abu Dawud state,Mohamed S. El-Awa (1993), Punishment In Islamic Law, American Trust Publications, The discourse on homosexuality in Islam is primarily concerned with activities between men. There are, however, a few hadith mentioning homosexual behavior in women; The jurists are agreed that "there is no hadd punishment for lesbianism, because it is not zina. Rather a ta’zeer punishment must be imposed, because it is a sin..'". Although punishment for lesbianism is rarely mentioned in the histories,
al-Tabari Abū Jaʿfar Muḥammad ibn Jarīr ibn Yazīd al-Ṭabarī (; 839–923 CE / 224–310 AH), commonly known as al-Ṭabarī (), was a Sunni Muslim scholar, polymath, historian, exegete, jurist, and theologian from Amol, Tabaristan, present- ...
records an example of the casual execution of a pair of lesbian slavegirls in the
harem A harem is a domestic space that is reserved for the women of the house in a Muslim family. A harem may house a man's wife or wives, their pre-pubescent male children, unmarried daughters, female domestic Domestic worker, servants, and other un ...
of
al-Hadi Abū Muḥammad Mūsā ibn al-Mahdī al-Hādī (; 26 April 764 CE 14 September 786 CE) better known by his laqab al-Hādī () was the fourth Arab Abbasid caliph who succeeded his father al-Mahdi and ruled from 169 AH (785 CE) until his death in 1 ...
, in a collection of highly critical anecdotes pertaining to that Caliph's actions as ruler. Some jurists viewed sexual intercourse as possible only for an individual who possesses a
phallus A phallus (: phalli or phalluses) is a penis (especially when erect), an object that resembles a penis, or a mimetic image of an erect penis. In art history, a figure with an erect penis is described as ''ithyphallic''. Any object that symbo ...
; hence those definitions of sexual intercourse that rely on the entry of as little as the corona of the phallus into a partner's orifice. Since women do not possess a phallus and cannot have intercourse with one another, they are, in this interpretation, physically incapable of committing ''zina''.


Anal sex

All Sunni Muslim jurists agree that anal sex is haram (prohibited), based on the hadith of Muhammad. In contrast, according to Twelver Shia Muslim jurists, anal sex is considered
makruh In Islamic terminology, something which is makruh or makrooh (, transliteration, transliterated: ''makrooh'' or ''makrūh'') is "disliked", literally "detestable" or "abominable". This is one of the Ahkam, five categories (''al-ahkam al-khamsa'') ...
(strongly disliked) but is permissible with the consent of the wife. Many scholars point to the story of Lot in the Quran as an example of sodomy being an egregious sin. However, multiple others hold the view that the destruction of Sodom and Gomorrah was not specifically due to the sodomy practiced in those towns but as a combination of multiple transgressions. The death by stoning for people of Sodom and Gomorrah is similar to the stoning punishment stipulated for illegal heterosexual sex. There is no punishment for a man who sodomizes a woman because it is not tied to procreation. However, other jurists insist that any act of lust in which the result is the injection of semen into another person constitutes sexual intercourse. Sodomy often falls under that same category as sex between an unmarried man and woman engaging in sexual acts. Male-male intercourse is referred to as ''liwat'' while female-female intercourse is referred to as ''sihaq''. Both are considered reprehensible acts, but there is no consensus on punishment for either. Some jurists define ''zināʾ'' exclusively as the act of unlawful vaginal penetration, hence categorizing and punishing anal penetration in different ways. Other jurists included both vaginal and anal penetration within the definition of ''zināʾ'' and hence extended the punishment of the one to the other. Religious discourse has mostly focused on such sexual acts, which are unambiguously condemned. The Quran refers explicitly to male-male sexual relations only in the context of the story of Lot, but labels the Sodomites's actions (universally understood in the later tradition as anal intercourse) an "abomination" (female-female relations are not addressed). Reported pronouncements by Muhammad (''hadith'') reinforce the interdiction on male-male sodomy, although there are no reports of his ever adjudicating an actual case of such an offence; he is also quoted as condemning cross-gender behaviour for both sexes and banishing them from local places, but it is unclear to what extent this is to be understood as involving sexual relations. Several early caliphs, confronted with cases of sodomy between males, are said to have had both partners executed by a variety of means. While taking such precedents into account, medieval jurists were unable to achieve a consensus on this issue; some legal schools prescribed capital punishment for sodomy, but others opted only for a relatively mild discretionary punishment. There was general agreement, however, that other homosexual acts (including any between females) were lesser offences, subject only to discretionary punishment.


Incest

Hadith forbids incestuous relationship (''zinā bi'l-mahārim''), sexual intercourse between someone who is
mahram In Islam, a () is a family member with whom marriage would be considered permanently unlawful (''haram''). A woman does not need to wear hijab around her mahram or spouse, and an adult male mahram or husband may escort a woman on a journey, a ...
and prescribes execution as punishment.


Masturbation

Islamic scripture does not specifically mention masturbation. Like most people before the morals of the
Age of Enlightenment The Age of Enlightenment (also the Age of Reason and the Enlightenment) was a Europe, European Intellect, intellectual and Philosophy, philosophical movement active from the late 17th to early 19th century. Chiefly valuing knowledge gained th ...
, pre-modern Islam faced masturbation mostly with indifference.Anchassi, O. (2022). The Churning in the Flogging of ʿUmayra: Or, Towards a History of Masturbation in Premodern Islamic Law. Studi Magrebini, 20(2), 213-246. https://doi.org/10.1163/2590034x-20220075 A few ''hadiths'' underline this view.
Muhammad Muhammad (8 June 632 CE) was an Arab religious and political leader and the founder of Islam. Muhammad in Islam, According to Islam, he was a prophet who was divinely inspired to preach and confirm the tawhid, monotheistic teachings of A ...
is reported to have said that "it is your fluid, or your member, so do whatever you like, as it were." There are a few ''
hadith Hadith is the Arabic word for a 'report' or an 'account f an event and refers to the Islamic oral tradition of anecdotes containing the purported words, actions, and the silent approvals of the Islamic prophet Muhammad or his immediate circle ...
s'' demonizing masturbation but these are classified as unreliable. To prohibit masturbation, scholars (ulama) of ''fiqh'' (Islamic jurisprudence) may have invoked the Qur'anic proclamation (Quran 23:1-6) that Muslims must protect their sexual organs, except from their legal spouses (''azwājihim'') or what their right hands own. The Mālikīs jurists follow suit and seem to categorically prohibit masturbation.
Jonathan A.C. Brown Jonathan Andrew Cleveland Brown, born August 7, 1977, is a university academic and American scholar of Islamic studies. Since 2012, he has served as an associate professor at Georgetown University's Edmund A. Walsh School of Foreign Service. He h ...
(2014), Misquoting Muhammad, OneWorld Publications, p.93
Abū Bakr b. al-ʿArabī goes as far as to demonize this practise, stating that it was introduced by '' šayṭān'' (devil). Imam
al-Shafi'i Al-Shafi'i (; ;767–820 CE) was a Muslim scholar, jurist, muhaddith, traditionist, theologian, ascetic, and eponym of the Shafi'i school of Sunni Islamic jurisprudence. He is known to be the first to write a book upon the principles ...
states that male masturbation (''istimmā'') runs afoul of the Qur'anic proclamation (Quran 23:1-6) that Muslims must protect their sexual organs, except from their legal spouses (''azwājihim'') or what their right hands own. The
Shafi'i school The Shafi'i school or Shafi'i Madhhab () or Shafi'i is one of the four major schools of fiqh (Islamic jurisprudence), belonging to the Ahl al-Hadith tradition within Sunni Islam. It was founded by the Muslim scholar, jurist, and traditionis ...
agree with the Mālikīs, and some of them consider masturbation a lesser form of ''zinā''. The founder
al-Shafi'i Al-Shafi'i (; ;767–820 CE) was a Muslim scholar, jurist, muhaddith, traditionist, theologian, ascetic, and eponym of the Shafi'i school of Sunni Islamic jurisprudence. He is known to be the first to write a book upon the principles ...
argued that this encourages men to neglect their wives and may cause the termination of family lineage. The Ḥanafīs have mixed opinions. Most of them are rather critical about, but generally allow for unmarried people and even obligatory if the alternative is illicit sex. Similarly, diverse are opinions among the Ḥanbalīs.
Ibn Taimiyya Ibn Taymiyya (; 22 January 1263 – 26 September 1328)Ibn Taymiyya, Taqi al-Din Ahmad, The Oxford Dictionary of Islam. http://www.oxfordreference.com/view/10.1093/acref/9780195125580.001.0001/acref-9780195125580-e-959 was a Sunni Muslim scholar ...
's statement, a proto-Salaf Hanbalite scholar, states that the consensus of early and later jurists (salafan wa-ḫalafan) was to categorically prohibit masturbation, is clearly an overstatement. Due to a lack of concern about masturbation from Quran and ''hadiths'', Ḥanbalīs generally disliked (''makrūh''), but did not forbid masturbation. However, if one couldn't find a spouse, one would be encouraged to masturbate. Those who didn't adhere to any of these four major schools are often going into more detail. Ibn Ḥazm explains that "a woman who rubs something against herself (without inserting it) until she climaxes is not guilty of sin; the same is true of a man who masturbates. No scholar, he points out, disagrees that it is perfectly lawful for a person to touch their sex organ (specifying the use of the left hand for men), and since no scriptural text explicitly prohibits masturbation, it must be lawful". However, he adds that it is not appropriate for civilized people to do this.


Bestiality

According to hadith, bestiality is defined under ''zina'' and its punishment is execution of the accused man or woman along with the animal.


Inclusions in the definition

Technically, ''zina'' only refers to the act of penetration, while non-penetrative sex acts outside of marriage were censured by Muhammad as that which can lead to ''zina''. According to Sharia, the punishment for ''zina'' varies according to whether the offender is ''muhsan'' (adult, free, Muslim and married at least once) or not ''muhsan'' (i.e. a minor, a slave, a non-Muslim or never married). A person only qualifies as ''muhsan'' if he or she meets all of the criteria. The punishment for an offender who is ''muhsan'' is stoning. (''
rajm In Islam, stoning ()E. Ann Black, Hossein Esmaeili and Nadirsyah Hosen (2014), Modern Perspectives on Islamic Law, , pp. 222-223Rudolph Peters, Crime and Punishment in Islamic Law, Cambridge University Press, , pp. 37 is the '' Hudud'' punishme ...
''); the punishment for an offender who is not ''muhsan'' is 100 lashes.


Accusation process and punishment

Islamic law requires evidence before a man or a woman can be punished for ''zina''. These are:Kecia Ali (2006), ''Sexual Ethics and Islam'', , Chapter 4 #A Muslim confesses to ''zina'' four separate times. However, if the confessor takes back his words before the punishment is enforced or during the punishment, he/she will be released and set free. The confessor is, in fact, encouraged to take back their confession. #Four free adult male Muslim witnesses of proven integrity. They must testify that they observed the couple engaged in unlawful sexual intercourse without any doubt or ambiguity. They are able to say that they saw their private parts meet "like the Kohl needle entering the Kohl bottle." # Unlike witnesses in most other circumstances, they are neither legally nor morally obliged to testify, and in fact legal texts state that it is morally better if they don't. # If any of the witnesses take back their testimony before the actual punishment is enforced, then the punishment will be abandoned, and the witnesses will be punished for the crime of false accusation. # The witnesses must give their testimony at the earliest opportunity. # If the offense is punished by stoning to death, the witnesses must throw the stones. If a pregnant woman confesses that her baby was born from an illegal relationship, then she will be subject to conviction in the Islamic courts. In cases where there are no witnesses and no confession, then the woman will not receive punishment just because of pregnancy. Women can fall pregnant without committing illegal sexual intercourse. A woman could be raped or coerced. In this case, she is a victim and not the perpetrator of a crime. Therefore, she cannot be punished or even accused of misconduct merely on the strength of her falling pregnant. The four witnesses' requirement for ''zina'' is revealed by Quranic verses 24:11 through 24:13 and various hadiths. The testimony of women and non-Muslims is not admitted in cases of ''zina'' or in other ''hadd'' crimes. Any witness to or victim of non-consensual sexual intercourse, who accuses a Muslim of ''zina'', but fails to produce four adult, pious male eyewitnesses before a sharia court, commits the crime of false accusation (''Qadhf'', القذف), punishable with eighty lashes in public. These requirements made ''zina'' virtually impossible to prove in practice. Hence, there are very few recorded examples of stoning for ''zina'' being legally carried out. In the 623-year history of the Ottoman Empire, the best-documented and most well-known pre-modern Islamic legal system, there is only one recorded example of the stoning punishment being applied for ''zina'', when a Muslim woman and her Jewish lover were convicted of ''zina'' in 1680 and sentenced to death, the woman by stoning and the man by beheading. This was a miscarriage of justice according to the standards of Islamic law: adequate evidence was not produced, and the correct penalty for non-Muslims was 100 lashes rather than death. Some schools of Islamic jurisprudence (
fiqh ''Fiqh'' (; ) is the term for Islamic jurisprudence.Fiqh
Encyclopædia Britannica
''Fiqh'' is of ...
) created the principle of '' shubha'' (doubt). According to this principle, if there is room for doubt in the perpetrator's mind about whether the sexual act was illegal, he or she should not receive the hadd penalty but could receive a less severe punishment at the discretion of the judge. Jurists had varying opinions on what counted as legitimate "doubt" for this purposes. A typical example is a man who has sex with his wife's or his son's slave. This is ''zina'' - a man can lawfully have sex only with his own slave. But a man might plausibly believe that he had ownership rights over his wife's or his son's property, and so think that having sex with their slaves was legal. The Ḥanafī jurists of the Ottoman Empire applied the concept of doubt to exempt prostitution from the hadd penalty. Their rationale was that since legal sex is legitimized, in part, by payment (the dower paid by the husband to the wife upon marriage or the purchase price of a slave), a man might plausibly believe that prostitution, which also involves a payment in return for sexual access, was legal. This principle did not mean that such acts were treated as legal: they remained offenses, and could be punished, but they were not liable for the hadd penalty of 100 lashes or stoning.


Sunni practice

People who are not ''muhsan'' (i.e. a slave, a minor, never married) are punished for ''zina'' with one hundred lashes in public.
Maliki The Maliki school or Malikism is one of the four major madhhab, schools of Islamic jurisprudence within Sunni Islam. It was founded by Malik ibn Anas () in the 8th century. In contrast to the Ahl al-Hadith and Ahl al-Ra'y schools of thought, the ...
school of Islamic jurisprudence considers pregnancy as sufficient and automatic evidence, unless there is evidence of rape. Other Sunni schools of jurisprudence rely on early Islamic scholars who state that a fetus can "sleep and stop developing for 5 years in a womb", and thus a woman who was previously married but now divorced may not have committed ''zina'' even if she delivers a baby years after her divorce. They also argue that the woman may have been forced or coerced (see section above, 'Accusation process and punishment'). The position of modern Islamic scholars varies from country to country. For example, in
Malaysia Malaysia is a country in Southeast Asia. Featuring the Tanjung Piai, southernmost point of continental Eurasia, it is a federation, federal constitutional monarchy consisting of States and federal territories of Malaysia, 13 states and thre ...
which officially follows the
Shafi'i The Shafi'i school or Shafi'i Madhhab () or Shafi'i is one of the four major schools of fiqh (Islamic jurisprudence), belonging to the Ahl al-Hadith tradition within Sunni Islam. It was founded by the Muslim scholar, jurist, and traditionis ...
fiqh, Section 23(2) through 23(4) of the Syariah (
Sharia Sharia, Sharī'ah, Shari'a, or Shariah () is a body of religious law that forms a part of the Islamic tradition based on Islamic holy books, scriptures of Islam, particularly the Quran, Qur'an and hadith. In Islamic terminology ''sharīʿah'' ...
) Criminal Offences (Federal Territories) Act 1997 state, Minimal proof for ''zina'' is still the testimony of four male eyewitnesses, even in the case of homosexual intercourse. Prosecution of extramarital pregnancy as ''zina'', as well as prosecution of rape victims for the crime of ''zina'', have been the source of worldwide controversy in recent years.Pakistan
, Human Rights Watch (January 2005).
Afghanistan - Moral Crimes
, Human Rights Watch (March 26, 2012); "Some women and girls have been convicted of zina, sex outside of marriage, after being raped or forced into prostitution. Zina is a crime under Afghan law, punishable by up to 15 years in prison."


Shi'a practice

Again, minimal proof for ''zina'' is the testimony of four male eyewitnesses. The Shi'is, however, also allow the testimony of women if there is ''at least one male witness'', testifying together with ''six women''. All witnesses must have seen the act in its most intimate details, i.e. the penetration (like "a stick disappearing in a kohl container," as the fiqh books specify). If their testimonies do not satisfy the requirements, they can be sentenced to eighty lashes for unfounded accusation of fornication (). If the accused freely admits the offense, the confession must be repeated ''four'' times, just as in Sunni practice. Pregnancy of a single woman is also sufficient evidence of her having committed ''zina''.


Human rights controversy

The ''zina'' and rape laws of countries under
Sharia law Sharia, Sharī'ah, Shari'a, or Shariah () is a body of religious law that forms a part of the Islamic tradition based on scriptures of Islam, particularly the Qur'an and hadith. In Islamic terminology ''sharīʿah'' refers to immutable, inta ...
are the subjects of a global human rights debate. Hundreds of women in Afghan jails are victims of rape or domestic violence. This has been criticized as leading to "hundreds of incidents where a woman subjected to rape, or gang rape, was eventually accused of zināʾ" and incarcerated. Iran has prosecuted many cases of ''zina'', and enforced public stoning to death of those accused between 2001 and 2010. ''Zina'' laws are one of many items of reform and secularization debate with respect to Islam. In the early 20th century, under the influence of the colonial era, many penal laws and criminal justice systems were reformed away from Sharia in Muslim-majority parts of the world. By contrast, in the second half of the 20th century, after respective independence, a number of governments including Pakistan, Malaysia and Iran have reverted to Sharia with traditional interpretations of Islam's sacred texts. ''Zina'' and hudud laws have been re-enacted and enforced. Contemporary human rights activists refer to this as a new phase in the politics of gender in Islam, the battle between forces of traditionalism and modernism in the Muslim world, and the use of religious texts of Islam through state laws to sanction and practice gender-based violence. In contrast to human rights activists, Islamic scholars and Islamist political parties consider 'universal human rights' arguments as impositions of a non-Muslim culture on Muslim people, a disrespect of customary cultural practices and sexual codes that are central to Islam. ''Zina'' laws come under hudud seen as a crime against Allah; the Islamists refer to this pressure and proposals to reform ''zina'' and other laws as contrary to Islam. Attempts by international human rights to reform religious laws and codes of Islam have become the Islamist rallying platforms during political campaigns.K. ALI (2003), Progressive Muslims and Islamic Jurisprudence: The Necessity for Critical Engagement with Marriage and Divorce Law, In: SAFI, O. (Ed.). Progressive Muslims: On Justice, Gender, and Pluralism, Oxford: Oneworld, pp. 163–189


In popular culture

* '' The Stoning of Soraya M.'' A 2008
Persian Persian may refer to: * People and things from Iran, historically called ''Persia'' in the English language ** Persians, the majority ethnic group in Iran, not to be conflated with the Iranic peoples ** Persian language, an Iranian language of the ...
-language American drama film adapted from
French French may refer to: * Something of, from, or related to France ** French language, which originated in France ** French people, a nation and ethnic group ** French cuisine, cooking traditions and practices Arts and media * The French (band), ...
-
Iran Iran, officially the Islamic Republic of Iran (IRI) and also known as Persia, is a country in West Asia. It borders Iraq to the west, Turkey, Azerbaijan, and Armenia to the northwest, the Caspian Sea to the north, Turkmenistan to the nort ...
ian journalist Freidoune Sahebjam's 1990 book ''La Femme Lapidée'', regarding to a mistaken-punishment of a false ''zina'' accusation.


See also

*
Islamic criminal jurisprudence Islamic criminal law () is criminal law in accordance with Sharia. Strictly speaking, Islamic law does not have a distinct corpus of "criminal law". Islamic law divides crimes into three different categories depending on the offense – '' Hud ...
*
Islamic family jurisprudence Islamic family jurisprudence (, ) or Islamic family law or Muslim Family Law is the fiqh of laws and regulations related to maintaining of Muslim family, which are taken from Quran, hadith, fatwas of Muslim jurists and ijma of the Muslims. It co ...
*
Islamic sexual jurisprudence Sexuality in Islam contains a wide range of views and laws, which are largely predicated on the Quran, and the sayings attributed to Muhammad (''hadith'') and the rulings of religious leaders (''fatwa'') confining sexual intercourse to relation ...
*
Modesty in Islam Haya (, roughly corresponding to "bashfulness", "decency", "modesty", "shyness") is an Arabic word that means "natural or inherent, shyness and a sense of modesty". In Islamic terminology, it is mainly used in the context of modesty. Haya enco ...
*
Namus The National Missing and Unidentified Persons System (NamUs) is a national clearinghouse and resource center for missing, unidentified, and unclaimed person cases throughout the United States. NamUs is funded and administered by the National Inst ...
*
Nikah mut‘ah ''Nikah mut'ah'' , "pleasure marriage"; temporary marriageNikah urfi * Ma malakat aymanukum and sex *
Rajm In Islam, stoning ()E. Ann Black, Hossein Esmaeili and Nadirsyah Hosen (2014), Modern Perspectives on Islamic Law, , pp. 222-223Rudolph Peters, Crime and Punishment in Islamic Law, Cambridge University Press, , pp. 37 is the '' Hudud'' punishme ...
*
Islamic views on sin Sin is an important concept in Islamic ethics that Muslims view as being anything that goes against the commands of God or breaching the laws and norms laid down by religion. Islam teaches that sin is an act and not a state of being. The Quran ...
*
Taqwa ''Taqwa'' ( '' / '') is an Islamic term for being conscious and cognizant of God, of truth, "piety, fear of God." It is often found in the Quran. Those who practice ''taqwa'' — in the words of Ibn Abbas, "believers who avoid shirk with All ...
*
Repentance in Islam ''Tawba'' () is the Islamic concept of repenting to God due to performing any sins and misdeeds. It is a direct matter between a person and God, so there is no intercession. There is no original sin in Islam. It is the act of leaving what Go ...
*
Sex and the law Sex and the law deals with the regulation by law of human sexual activity. Sex laws vary from one place or jurisdiction to another, and have varied over time. Unlawful sexual acts are called sex crimes. Some laws regarding sexual activity are ...
*
Concubinage in Islam In classical Islamic law, a concubine was an unmarried slave-woman with whom her master engaged in sexual relations. Concubinage was widely accepted by Muslim scholars until the abolition of slavery in the 20th-century. Most modern Muslims, both ...


References


Further reading

* Calder, Norman, Colin Imber, and R. Gleave. ''Islamic Jurisprudence in the Classical Era''. Cambridge, U.K.: Cambridge UP, 2010. * Johnson, Toni, and Lauren Vriens
"Islam: Governing Under Sharia."
Council on Foreign Relations. Council on Foreign Relations, Inc., 24 Oct. 2011. Web. 19 Nov. 2011. * Karamah: Muslim Women Lawyers for Human Rights
"Zina, Rape, and Islamic Law: An Islamic Legal Analysis of the Rape Laws in Pakistan."
26 Nov. 2011. * Khan, Shahnaz. "Locating The Feminist Voice: The Debate On The Zina Ordinance." Feminist Studies 30.3 (2004): 660–685. Academic Search Complete. Web. 28 Nov. 2011. * McAuliffe, Jane Dammen
The Cambridge Companion to the Qurʼān
Cambridge, UK: Cambridge UP, 2006 * Peters, R
"Zinā or Zināʾ (a.)"
''Encyclopaedia of Islam'', Second Edition. Edited by: P. Bearman;, Th. Bianquis;, C.E. Bosworth;, E. van Donzel; and W. P. Heinrichs. Brill, 2011. Brill Online. University of Texas at Austin. 17 November 2011 * Peters, R. (November 1994). "The Islamization of Criminal Law: A Comparative Analysis". ''Die Welt des Islams''. Vol. 34 (New Series), Issue 2. 246–74. . * Quraishi, Asifa (20 January 2001)

Muslim Women's League.


External links


Zina prosecution in Katsina State, Northern Nigeria
Proceedings and Judgments in the Amina Lawal Case (2002)
Sharia Law


(Asma Society) * , Hisham M. Ramadan * ttps://www.hrw.org/news/2013/05/21/afghanistan-surge-women-jailed-moral-crimes Afghanistan: Surge in Women Jailed for 'Moral Crimes'Zina in Afghanistan, Human Rights Watch (May 21, 2013)
Mukhtar Mai – history of a rape case
Pakistan, BBC News

Zina in Saudi Arabia, The Independent (2009), UK {{The major sins in Islam Adultery in law Arabic words and phrases in Sharia Islamic criminal jurisprudence Sexual abstinence and religion Sexuality in Islam Sharia legal terminology Sin in Islam Women's rights in Islam