Zina

Islamic scriptures

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

Qur'an

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

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:

Hadith

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.

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.

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:

Rape and zina

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.

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:

Homosexuality and zina

Islamic teachings (in the hadith tradition) presume same-sex attraction, extol abstention and (in the Qur'an) 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,

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."

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.

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

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.

The Hadiths consider homosexuality as zina, to be punished with death. For example, Abu Dawud states,

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 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..'". 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 of 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 zinā.

Inclusions of the zināʾ definition

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.

Zina also includes rape, homosexuality, sodomy (anal sex or liwat), incest, zoophilia 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). 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.

Accusation process and punishment

Islam requires evidence before a man or a woman can be punished for zināʾ. These are:

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.
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.
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.
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.

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, 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. 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). 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.

These requirements made zina virtually impossible to prove in practice. 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.

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.

Sunni practice

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.

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. 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,

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

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.

Shi'a practice

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.

Human rights controversy

The zināʾ 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.

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. 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.

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 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.

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.

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.