Zina
Zināʾ or zinā is an Islamic legal term referring to unlawful sexual intercourse. According to traditional jurisprudence, zina can include adultery, fornication, prostitution, sodomy, incest, 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. Accusing zina without presenting the required eyewitnesses is called qadhf, which is itself a hudud offense.
There are very few recorded examples of the stoning penalty for zinā being implemented legally. Before legal reform 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 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. Ordinances like the Hudud Ordinances are not Islamic, in terms of rape and zina.
Islamic scriptures
Muslim scholars have historically considered zinā a hudud sin, or crime against God. It is mentioned in both Quran and in the Hadiths.Introduction and definition
The Quran deals with zinaʾ in several places. First is the Qur'anic general rule that commands Muslims not to commit zina:In the Hadiths, the definitions of zina have been described as all the forms of sexual intercourse, penetrative or non-penetrative, outside of marriage.
However, sex between a man and his female slave was not defined as extramarital sex; a man having the right to sexual intercourse with his own female slave.
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 surah starts by giving very specific rules about punishment for zina:According to Jonathan A.C. Brown, 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 Hadiths, the books most trusted in Islam after Quran, particularly in Kitab Al-Hudud.Hadith Sahih al Bukhari, another authentic source of sunnah, has several entries which refer to death by stoning. For example,
Other hadith collections on zina between men and woman include:
- The stoning of a Jewish man and woman for having committed illegal sexual intercourse.
- Abu Hurairah states that the Prophet, in a case of intercourse between a young man and a married woman, sentenced the woman to stoning and the young man to flogging and banishment for a year.
Rape
Rape has been defined as zina al-jabr in the traditional Islamic texts. Few hadiths 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.
However, despite the power imbalance between a master and his slave, making it impossible for a slave to give true consent, sex between a man and his female slave was not define as rape nor as zina; a man having the right to sexual intercourse with his own female slave.
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:Homosexuality
Islamic teachings presume same-sex attraction, extol abstention and condemn consummation.There are no reports relating to homosexuality in the best known and authentic hadith collections of Sahih al-Bukhari and Sahih Muslim, other canonical collections record a number of condemnations of the "act of the people of Lut". Some Quranic verses are used to propose a prohibition of homosexual activities, including:
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 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 crime punished with death, however Hanafi jurists argue that the act is immoral and forbidden but does not qualify as a hudud violation.
The Hadiths consider homosexuality as zina. For example, Abu Dawud state,
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 records an example of the casual execution of a pair of lesbian slavegirls in the harem of al-Hadi, 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; 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, based on the hadith of Muhammad. In contrast, according to Twelver Shia Muslim jurists, anal sex is considered makruh 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 an "abomination". Reported pronouncements by Muhammad 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 were lesser offences, subject only to discretionary punishment.
Incest
Hadith forbids incestuous relationship, sexual intercourse between someone who is seen as your mahram and prescribes execution as punishment.Masturbation
Islamic scripture does not specifically mention masturbation. Like most people before the morals of the Age of Enlightenment, pre-modern Islam faced masturbation mostly with indifference. A few hadiths underline this view. Muhammad 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 hadiths demonizing masturbation but these are classified as unreliable.To prohibit masturbation, scholars of fiqh may have invoked the Qur'anic proclamation that Muslims must protect their sexual organs, except from their legal spouses or what their right hands own. The Mālikīs jurists follow suit and seem to categorically prohibit masturbation. Abū Bakr b. al-ʿArabī goes as far as to demonize this practise, stating that it was introduced by šayṭān. Imam al-Shafi'i states that male masturbation runs afoul of the Qur'anic proclamation that Muslims must protect their sexual organs, except from their legal spouses or what their right hands own. The Shafi'i school agree with the Mālikīs, and some of them consider masturbation a lesser form of zinā. The founder al-Shafi'i 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's statement, a proto-Salaf Hanbalite scholar, states that the consensus of early and later jurists was to categorically prohibit masturbation, is clearly an overstatement. Due to a lack of concern about masturbation from Quran and hadiths, Ḥanbalīs generally disliked, 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 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, 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 the hadith, bestiality is defined under zina and its punishment is execution of the accused person 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 or not muhsan. 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. ; 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:- 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.
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, 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 created the principle of shubha. 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, 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 are punished for zina with one hundred lashes in public.Maliki 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. The position of modern Islamic scholars varies from country to country. For example, in Malaysia which officially follows the Shafi'i fiqh, Section 23 through 23 of the Syariah Criminal Offences 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.
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. 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 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.