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
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.