Zina

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This article is about adultery in Islam. For extramarital affairs in general, see Adultery.
For other uses, see Zina (disambiguation).
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Zināʾ (زِنَاء) or zina (زِنًى or زِنًا) is an Islamic legal term referring to unlawful sexual intercourse.[1] According to traditional jurisprudence, zina can include adultery (of married parties), fornication (of unmarried parties), prostitution, bestiality, and rape.[1] Classification of homosexual intercourse as zina differs according to legal school.[2] The Quran disapproved of the promiscuity prevailing in Arabia at the time, and several verses refer to unlawful sexual intercourse, including one that prescribes the punishment of 100 lashes for fornicators.[2] Four witnesses are required to prove the offense.[2] Zina thus belong to the class of hadd (pl. hudud) crimes which have Quranically specified punishments.[2]

Although stoning for zina is not mentioned in the Quran, all schools of traditional jurisprudence agreed on the basis of hadith that it is to be punished by stoning if the offender is muhsan (adult, free, Muslim, and having been married), with some extending this punishment to certain other cases and milder punishment prescribed in other scenarios.[2][1] The offenders must have acted of their own free will.[2] According to traditional jurisprudence, zina must be proved by testimony of four eyewitnesses to the actual act of penetration, or a confession repeated four times and not retracted later.[2][1] The Maliki legal school also allows an unmarried woman's pregnancy to be used as evidence, but the punishment can be averted by a number of legal "semblances" (shubuhat), such as existence of an invalid marriage contract.[2] These requirements made zina virtually impossible to prove in practice.[1] Rape was traditionally prosecuted under different legal categories which used normal evidentiary rules.[3] Making an accusation of zina without presenting the required eyewitnesses is called qadhf (القذف), which is itself a hadd crime.[4][5]

Aside from "a few rare and isolated" instances from the pre-modern era and several recent cases, there is no historical record of stoning for zina being legally carried out.[1][6] Zina became a more pressing issue in modern times, as Islamist movements and governments employed polemics against public immorality.[1] During the Algerian Civil War, Islamist insurgents assassinated women suspected of loose morals, the Taliban have executed suspected adultresses using machine guns, and zina has been used as justification for honor killings.[1] After sharia-based criminal laws were widely replaced by European-inspired statutes in the modern era, in recent decades several countries passed legal reforms that incorporated elements of hudud laws into their legal codes.[7] Iran witnessed several highly publicized stonings for zina in the aftermath the Islamic revolution.[1] In Nigeria local courts have passed several stoning sentences, all of which were overturned on appeal or left unenforced.[8] 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.[1][3] Although these laws were amended in 2006, they still blur the legal distinction between rape and consensual sex.[6] According to human rights organizations, stoning for zina has also been carried out in Saudi Arabia.[2]

Islamic scriptures[edit]

Muslim scholars have historically considered zināʾ a hudud sin, or crime against God.[9] It is mentioned in both Quran and in the Hadiths.[citation needed]

Qur'an[edit]

The Qur'an deals with zināʾ in several places. First is the Qur'anic general rule that commands Muslims not to commit zināʾ:

"Nor come nigh to fornication/adultery: for it is a shameful (deed) and an evil, opening the road (to other evils)."

— Qur'an, Sura 17 (Al-Isra), ayat 32[10]

Most of the rules related to zināʾ, fornication/adultery, and false accusations from a husband to his wife or from members of the community to chaste women, can be found in Surat an-Nur (the Light). The sura starts by giving very specific rules about punishment for zināʾ:

"The woman and the man guilty of fornication/adultery,- flog each of them with a hundred stripes: Let not compassion move you in their case, in a matter prescribed by Allah, if ye believe in Allah and the Last Day: and let a party of the Believers witness their punishment."

— Qur'an, Sura 24 (An-Nur), ayat 2[11]

"And those who accuse chaste women then do not bring four witnesses, flog them, (giving) eighty stripes, and do not admit any evidence from them ever; and these it is that are the transgressors. Except those who repent after this and act aright, for surely Allah is Forgiving, Merciful."

— Qur'an, Sura 24 (An-Nur), ayat 4-5[12]

Hadith[edit]

In Hadiths, the books most trusted in Islam after Quran, the definitions of Zina have been described as all the forms of sexual intercourse, penetrative or non-penetrative, outside lawful marriage.[13]

Abu Huraira reported Allah's Apostle as saying: “Allah has decreed for every son of Adam his share of zina, which he will inevitably commit. The zina of the eyes is looking, the zina of the tongue is speaking, one may wish and desire, and the private parts confirm that or deny it.”

— Sahih al-Bukhari, 8:77:609,Sahih Muslim, 33:6421

The public lashing and public lethal stoning punishment for zina are also prescribed in Hadiths, the books most trusted in Islam after Quran, particularly in Kitab Al-Hudud.[14][15][not specific enough to verify]

'Ubada b. as-Samit reported: Allah's Messenger as saying: Receive teaching from me, receive teaching from me. Allah has ordained a way for those women. When an unmarried male commits adultery with an unmarried female, they should receive one hundred lashes and banishment for one year. And in case of married male committing adultery with a married female, they shall receive one hundred lashes and be stoned to death.

— Sahih Muslim, 17:4191

Allah's Messenger awarded the punishment of stoning to death to the married adulterer and adulteress and, after him, we also awarded the punishment of stoning, I am afraid that with the lapse of time, the people may forget it and may say: We do not find the punishment of stoning in the Book of Allah, and thus go astray by abandoning this duty prescribed by Allah. Stoning is a duty laid down in Allah's Book for married men and women who commit adultery when proof is established, or if there is pregnancy, or a confession.

— Sahih Muslim, 17:4194

Ma'iz came to the Prophet and admitted having committed adultery four times in his presence so he ordered him to be stoned to death, but said to Huzzal: If you had covered him with your garment, it would have been better for you.

— Sunan Abu Dawood, 38:4364

Hadith Sahih al Bukhari, another authentic source of sunnah, has several entries which refer to death by stoning.[16] For example,

Narrated 'Aisha: 'Utba bin Abi Waqqas said to his brother Sa'd bin Abi Waqqas, "The son of the slave girl of Zam'a is from me, so take him into your custody." So in the year of Conquest of Mecca, Sa'd took him and said. (This is) my brother's son whom my brother has asked me to take into my custody." 'Abd bin Zam'a got up before him and said, (He is) my brother and the son of the slave girl of my father, and was born on my father's bed." So they both submitted their case before Allah's Apostle. Sa'd said, "O Allah's Apostle! This boy is the son of my brother and he entrusted him to me." 'Abd bin Zam'a said, "This boy is my brother and the son of the slave girl of my father, and was born on the bed of my father." Allah's Apostle said, "The boy is for you, O 'Abd bin Zam'a!" Then Allah's Apostle further said, "The child is for the owner of the bed, and the stone is for the adulterer," He then said to Sauda bint Zam'a, "Veil (screen) yourself before him," when he saw the child's resemblance to 'Utba. The boy did not see her again till he met Allah.

— Sahih al-Bukhari, 9:89:293

Other hadith collections on zina between men and woman include:

  • The stoning (Rajm) of a Jewish man and woman for having committed illegal sexual intercourse.[17]
  • Abu Hurairah states that the Prophet, in a case of intercourse between a young man and a married woman, sentenced the woman to stoning[18] and the young man to flogging and banishment for a year;
  • Umar al-Khattab asserts that there was a revelation to the effect that those who are muhsan (i.e. an adult, free, Muslim who has previously enjoyed legitimate sexual relations in matrimony regardless of whether the marriage still exists) and have unlawful intercourse are to be punished with stoning.

Rape and zina[edit]

Few hadiths have been found regarding rape in the time of Muhammad. The most popular transmitted hadith given below indicates the order of stoning for the rapist and no punishment for the raped.[19][20]

When a woman went out in the time of the Prophet for prayer, a man attacked her and overpowered (raped) her. She shouted and he went off, and when a man came by, she said: That (man) did such and such to me. And when a company of the emigrants came by, she said: That man did such and such to me. They went and seized the man whom they thought had had intercourse with her and brought him to her. She said: Yes, this is he. Then they brought him to the Messenger of Allah. When he (the Prophet) was about to pass sentence, the man who (actually) had assaulted her stood up and said: Messenger of Allah, I am the man who did it to her. He (the Prophet) said to her: Go away, for Allah has forgiven you. But he told the man some good words (AbuDawud said: meaning the man who was seized), and of the man who had had intercourse with her, he said: Stone him to death. He also said: He has repented to such an extent that if the people of Medina had repented similarly, it would have been accepted from them.

— Jami` at-Tirmidhi, 17:37, Sunan Abu Dawood, 38:4366

The hadiths declare rape of a free or slave woman as zina.[21]

View of scholars[edit]

Malik related to me from Nafi that a slave was in charge of the slaves in the khumus and he forced a slave-girl among those slaves against her will and had intercourse with her. Umar ibn al-Khattab had him flogged and banished him, and he did not flog the slave-girl because the slave had forced her.

— Sahih al-Bukhari, 1:85:81,[22]Al-Muwatta, 41 3.15

Malik related to me from Ibn Shihab that gave a judgment that the rapist had to pay the raped woman her bride-price. Yahya said that he heard Malik say, "What is done in our community about the man who rapes a woman, virgin or non-virgin, if she is free, is that he must pay the bride-price of the like of her. If she is a slave, he must pay what he has diminished of her worth. The hadd-punishment in such cases is applied to the rapist, and there is no punishment applied to the raped woman. If the rapist is a slave, that is against his master unless he wishes to surrender him."

— Al-Muwatta, 36 16.14

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.[23] According to the eleventh-century Maliki jurist Ibn 'Abd al-Barr:[23]

The scholars are unanimously agreed that the rapist is to be subjected to the hadd punishment if there is clear evidence against him that he deserves the hadd punishment, or if he admits to that. Otherwise, he is to be punished (i.e., if there is no proof that the hadd punishment for zina may be carried out against him because he does not confess, and there are not four witnesses, then the judge may punish him and stipulate a punishment that will deter him and others like him). There is no punishment for the woman if it is true that he forced her and overpowered her, which may be proven by her screaming and shouting for help.

— Al-Istidhkaar, 7/146

Homosexuality and zina[edit]

Islamic teachings (in the hadith tradition[24]) presume same-sex attraction, extol abstention and (in the Qur'an[25][24]) condemn consummation. Quran forbids homosexual relationships, in Al-Nisa, Al-Araf ( (verses 7:80-84, 11:69-83, 29:28-35 of the Qur'an using the story of Lot's people), and other surahs. For example,[25][24][26]

We also sent Lot: He said to his people: "Do ye commit lewdness such as no people in creation (ever) committed before you? For ye practice your lusts on men in preference to women: ye are indeed a people transgressing beyond bounds."

— Quran 7:80–81

In another verse, the statement of prophet lot has been also pointed out,

Do you approach males among the worlds And leave what your Lord has created for you as mates? But you are a people transgressing.

— Quran 26:165–166, trans. Sahih International

Some scholars indicate this verse as the prescribed punishment for homosexuality in the Quran:

"If two (men) among you are guilty of lewdness, punish them both. If they repent and amend, Leave them alone; for Allah is Oft-returning, Most Merciful."

— Qur'an, Sura 4 (Al-Nisa), ayat 16[27]

However, there are different interpretations of the last verse where who 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 arz", meaning mischief in the land, referring to egregious acts of defiance to the rule of law was carried out.[citation needed]

The Hadiths consider homosexuality as zina, to be punished with death. For example, Abu Dawud states,[24][not specific enough to verify][28][page needed]

Narrated Abdullah ibn Abbas: The Prophet said: If you find anyone doing as Lot's people did,[29] kill the one who does it, and the one to whom it is done.

— Sunan Abu Dawood, 38:4447

Narrated Abdullah ibn Abbas: If a man who is not married is seized committing sodomy, he will be stoned to death.

— Sunan Abu Dawood, 38:4448

The discourse on homosexuality in Islam is primarily concerned with activities between men. There are, however, a few hadith mentioning homosexual behavior in women;[citation needed]The fuqaha' 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..'".[30] 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.[31] Some jurists viewed sexual intercourse as possible only for an individual who possesses a phallus;[32] hence those definitions of sexual intercourse that rely on the entry of as little of the corona of the phallus into a partner's orifice.[32] Since women do not possess a phallus and cannot have intercourse with one another, they are, in this interpretation, physically incapable of committing zinā.[32]

Inclusions of the zināʾ definition[edit]

Zināʾ encompasses extramarital sex (between a married Muslim man and a married Muslim woman who are not married to one another), and premarital sex (between unmarried Muslim man and unmarried Muslim woman). In Islamic history, zina also included sex between Muslim man with a non-Muslim female slave, when the slave was not owned by that Muslim man.[33]

Zina also includes rape, homosexuality, sodomy (anal sex or liwat), incest,[34] zoophilia[35] as well as any type of heterosexual sex between a man and a woman outside marriage that does not involve penetration of penis into vagina (non-penetrative sex).[13] Sharia, in describing zina, differentiates between an unmarried Muslim, a married Muslim (Muhsan) and a slave (Ma malakat aymanukum). The second one must be lethally stoned (rajm), while an unmarried Muslim and a slave must receive public lashing, and for a slave, the lashing count is half of an unmarried Muslim.[25][36]

Accusation process and punishment[edit]

Islam requires evidence before a man or a woman can be punished for zināʾ. These are:[33][page needed][14][37]

  1. 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.[38][39][40]
  2. Four adult males who are held to be righteous and were never known to neglect a religious obligation or indulge in sin testifying that they all simultaneously 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.[38]
  3. If the four witnesses take back their testimony before the actual punishment is enforced, then the punishment will be abandoned, and they (witnesses) will be punished for the crime of false accusation.[38]
  4. The witnesses are not allowed to delay their testimony from the time of the incident to the time of testifying. If they delayed testifying in the courts, the punishment will not be enforced, unless they were very distant from the Imam hence the delay was due to them travelling to the Imam.[38]

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.[40][41][42]

The four witnesses requirement for zina, that applies in case of an accusation against man or woman, is also revealed by Quranic verses 24:11 through 24:13 and various hadiths.[43][44] Some Islamic scholars state that the requirement of four male eyewitnesses was to address zina in public. There is disagreement between Islamic scholars on whether female eyewitnesses are acceptable witnesses in cases of zina (for other crimes, sharia considers two female witnesses equal the witness of one male).[45] In Sunni fiqhs of Islam, female Muslims, child and non-Muslim witnesses of zina are not acceptable.

Any uninvolved Muslim witness, or victim of non-consensual sexual intercourse, who accuses a Muslim of zina, but fails to produce four adult, pious male eyewitnesses (Tazikyah-al-shuhood) before a sharia court, commits the crime of false accusation (Qadhf, القذف), punishable with eighty lashes in public.[46][47]

These requirements made zina virtually impossible to prove in practice.[1] Aside from "a few rare and isolated" instances from the pre-modern era and several recent cases, there is no historical record of stoning for zina being legally carried out.[1][6]

Some fiqhs (schools of Islamic jurisprudence) created the principle of shubha (doubt), wherein there would be no zina charges if a Muslim man claims he believed he was having sex with a woman he was married to or with a woman he owned as a slave.[14]

Sunni practice[edit]

All Sunni schools of jurisprudence agree that zināʾ is to be punished with lethal stoning if the offender is a married Muslim (muhsan). The punishment for zina by a muhsan is a hundred lashes followed by stoning to death in public. Persons who are not muhsan (unmarried Muslim) are punished for zina with one hundred lashes in public, but their life is spared.[28][page needed][48]

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 that 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.[49] The 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 which officially follows the Shafi'i fiqh, Section 23(2) through 23(4) of the Syariah (Sharia) Criminal Offences (Federal Territories) Act 1997 state,[50]

Section 23(2) - Any woman who performs sexual intercourse with a man who is not her lawful husband shall be guilty of an offence and shall on conviction be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof.

Section 23(3) - The fact that a woman is pregnant out of wedlock as a result of sexual intercourse performed with her consent shall be prima facie evidence of the commission of an offence under subsection (2) by that woman.

Section 23(4) - For the purpose of subsection (3), any woman who gives birth to a fully developed child within a period of six qamariah months from the date of her marriage shall be deemed to have been pregnant out of wedlock.
— Islamic Laws of Malaysia[51]

Minimal proof for zināʾ is still the testimony of four male eyewitnesses, even in the case of homosexual intercourse.[citation needed]

Prosecution of extramarital pregnancy as zināʾ, as well as prosecution of rape victims for the crime of zina, have been the source of worldwide controversy in recent years.[52][53]

Shi'a practice[edit]

Again, minimal proof for zināʾ 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 (kadhf). 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.[25]

Human rights controversy[edit]

Muslim-majority regions with zina laws against consensual premarital and extramarital sex.[54][55][page needed]

The zināʾ and rape laws of countries under Sharia law are the subjects of a global human rights debate.[56][57]

Hundreds of women in Afghan jails are victims of rape or domestic violence.[53] 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.[58]

In Pakistan, over 200,000 zina cases against women, under its Hudood laws, were under process at various levels in Pakistan's legal system in 2005.[52] In addition to thousands of women in prison awaiting trial for zina-related charges, there has been a severe reluctance to even report rape because the victim fears of being charged with zina.[59][not specific enough to verify]

Iran has prosecuted many cases of zina, and enforced public stoning to death of those accused between 2001 and 2010.[60][61]

Zina laws are one of many items of reform and secularization debate with respect to Islam.[62][63] In early 20th century, under the influence of colonial era, many penal laws and criminal justice systems were reformed away from Sharia in Muslim-majority parts of the world. In contrast, in the second half of 20th century, after respective independence, governments from Pakistan to Morocco, Malaysia to Iran have reverted to Sharia with traditional interpretations of Islam’s sacred texts. Zina and hudud laws have been re-enacted and enforced.[64]

Contemporary human right activists refer 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.[65][66]

In contrast to human rights activists, Islamic scholars and Islamist political parties consider 'universal human rights' arguments as imposition 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 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 has become the Islamist rallying platforms during political campaigns.[67][68]

See also[edit]

References[edit]

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Further reading[edit]

External links[edit]

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