Is there earthly punishment for zina when it is done in private? (continued from previous thread .. please address this issue on this post rather than veering off of the topic of Nesrine’s email)
YUSUFALI: The woman and the man guilty of adultery or fornication,- 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.
There it is. Seems simple enough, right? Sure, in isolation but now let’s take a look at the verses immediately following:
024.003 Let no man guilty of adultery or fornication marry and but a woman similarly guilty, or an Unbeliever: nor let any but such a man or an Unbeliever marry such a woman: to the Believers such a thing is forbidden.
024.004 And those who launch a charge against chaste women, and produce not four witnesses (to support their allegations),- flog them with eighty stripes; and reject their evidence ever after: for such men are wicked transgressors;-
What we have within these consecutive verses is a prescribed punishment for the act of zina (adultery or fornication), rules on who is permitted to marry such offenders, the conditions which are to be met in order to prove zina and the punishment for false witness in cases where the charges are brought and the evidence is not sufficient.
Simply put, in order for a person to be guilty of zina, four witnesses must actually witness the act being committed and according to traditional Islamic jurisprudence the conditions of witnessing this act are stringent, to say the least:
Where a zinna had been established by testimonial evidence, the jurists were unanimous that four trustworthy [male] eye-witnesses were required to make a valid charge. The Quranic verse (Q24:4) states: “Those who make a charge [of adultery] against chaste women and do not bring four witnesses, scourge them with eighty stripes, and do not accept any testimony of theirs ever’. The ‘ulama’ were also agreed that the four witnesses should testify unanimously and explicitly that they have actually seen the ‘act of penetration’ between the two culprits “just as the collyrium needle enters into the container; or the rope enters into the well’.” The jurists furthermore agreed that the witnesses should give their evidence in person, orally, and should corroborate each other’s testimony with regard to time, place and all essential details. source: Sidahmed, A. S. (2001) Problems in Contemporary Applications of Islamic Criminal Sanctions – The Penalty for Adultery in Relation to Women
Only one school of thought, the Maliki school, adds another acceptable form of evidence of guilt and that evidence is pregnancy. In the case of an unmarried woman or a woman whose husband is knowingly sterile, her pregnancy would be viewed as proof of zina. However, the rest of the today’s four remaining schools of thought disagree with pregnancy as proof of zina as the Quran clearly states that there must be four present witnesses at the time of the act and further state that the pregnancy is merely circumstantial, that there are other possibilities of becomming pregnant without penetration and that a woman should not be under the strain of having to prove rape.
As has been shown in the above excerpt, four credible actual witnesses must, without a doubt, observe penetration in order for guilt to be established. They indeed must also be able to, without a doubt, identify the accused. In cases where hudud punishments are to be applied there is no room for doubt and it is better to err in dismissing a charge than to err in a faulty punishment.
One example of such a case (as pointed out by this anti-feminist article, stress on conservative acceptance of conditions):
Abu Bakrah3 – Allah be well-pleased with him – was convinced by his own eyes that the man and woman in question were guilty of fornication and he refused to pray behind that man, wrote to the Commander of the Believers, went to see him, and then bore witness against that man according to his conscience along with three other witnesses as the Law demands. But because the fourth witness retracted his testimony or was found unacceptable, the conviction fell through and the witnesses whipped and declared unreliable, as the Law also demands. After the whipping, Abu Bakrah still said, “I spoke the truth and the man did do what I said.” `Umar motioned to whip him again but `Ali said, “If you do, then have the other one stoned!” i.e. the testimonials would now amount to four.
Before we move on, let’s take into account some Western laws on lewdity. In some areas, if you are charged with public indecency your name will appear in the local newspapers before you are even proved guilty. There are many, many laws throughout the United States that you may not be aware of, for instance – you may believe that you are committing an act of sex within the privacy of your own bedroom or your hotel room but if your curtains were not closed, your hotel room door was not locked and per chance your neighbor witnesses this act – you may have commited a public indecency crime. Let’s not forget our former President Bill Clinton or the recent politicians and public bathroom incidents.
If you’re a man in Oklahoma, and you tell a virgin female you want to marry her, then you two commit fornication, you had better not change your mind about the marriage, Bub, or else you’ve committed a felony. You could go to jail for five years. Luckily, if you change your mind back again, and make an honest woman of her, all is forgiven.
Idaho, Indiana, North Carolina, Oklahoma and Texas are all conservative “red states.” Massachusetts, on the other hand, is the ultimate “blue state,” the state Bush accused of being full of “liberals” as if the state were a breeding ground for godless subversives. But it’s got some doozy sex laws. Adultery could get you three years in state prison. Sell a dildo, do five years. (I’ve previously mentioned anti-vibrator laws in Texas.) The state even has a catch-all statute for any “unnatural and lascivious act with another person.” The law doesn’t say just what is unnatural or lascivious.
Maryland appears to outlaw just about everything except the missionary position between married men and women. The law prescribes 10 years for “any unnatural or perverted sexual practice” like, say, oral sex. Not only that, but, says the law, the state can indict you without naming the particular act it’s accusing you of committing or even the manner in which you committed it. source
Chances are that the burden of proof is not going to require four witnesses to this crime. Chances are that even if you are found innocent of the charge that the publication of your name could affect the rest of your life. Chances are that even if you are found innocent of the charge, the plaintif will not be reprimanded. I am not saying that any of this makes the abuse of the zina verses, as I will later address, tolerable or justified, rather I’m asking for a little objectivity to the matter by addressing issues that exist within our own society. Most of these laws are considered to be absurd by many within our own society and they are rarely enforced, but I would imagine that most of us would still agree that there do need to be reasonable public decency laws in place.
Before taking our original question back into consideration, there are two other issues that need to be addressed and those are: Islamic governance and an individual’s right to privacy. For now, we’ll view juristic views and not the practices of “Islamic” countries at large.
Islam advocates a limited government in which the individual enjoys considerable autonomy. Islam does not advocate a totalitarian government as many aspects of civilian life remain outside the domain of law and government. Muslim jurists have thus distinguished the religious (dini) from juridical (qada’i) obligations and maintained that only the latter are enforceable before the courts. Most of the religious aspects of the individual’s life in society are private and non-justiceable. Even some of the religious duties such as prayer, fasting, the hajj, and almost all of what is classified as recommendable, reprehensible and permissible (mandūb, makruh, mubāh) are not legally enforceable. Government normally plays an administrative and regulatory role in regard to ‘ibadat and should not, without compelling reason, impinge on people’s freedom in respect of mubah, mandub, and makruh. The private and civil rights of the individual are also immune, by the express injunctions of Sharīa, against encroachment by others, including the state. No government agency, nor even the Sharīa courts, has powers to grant discretionary changes in the private rights and properties of individuals, without the consent of the person concerned. Judicial decisions must be based on lawful evidence; free of compulsion and espionage, and the ground of those decisions must also be clearly stated. Trial procedures of Sharia courts and the substance of the Sharia law of evidence are, as such, positivist and civilian in character and do not show significant variation with their parallel procedures in the civil courts. source: Civilian & Democratic Dimensions of Governance in Islam by Professor Mohammad Hashim Kamali, Ph.D.
Hence, within an Islamic government, the government is not allowed to encroach on the private lives of its citizens. It is not allowed to regulate how and whether individuals are practicing their faith or regulate actions which are religiously considered to be neutral, not recommended, and highly discouraged. Additionally, judicial decisions must be based on lawful evidence that is not obtained through coersion or espionage.
Within the very chapter of the Quran that discusses zina we have these verses immediately following:
24.19 Those who love (to see) scandal published broadcast among the Believers, will have a grievous Penalty in this life and in the Hereafter: Allah knows, and ye know not.
24.27 O ye who believe! enter not houses other than your own, until ye have asked permission and saluted those in them: that is best for you, in order that ye may heed (what is seemly).
1. What if people (the fundamentalists) actively look for such incidents?
2. The witnesses don’t need to be physically present. What if a sharia based government has installed spy cams all over the place? (I guess Muhammad missed this one eh!)
3. What if the two rent a motel room with a faulty door latch and our group of zealous five troops right in by mistake?
4. What if two unmarried people invite five (staunchly fundamentalist) friends over for the weekend and the friends hear what is going on and discover the two having sex in their own bedroom?
etc etc… There are millions of possibilities.
More importantly, unless you assume that the “defendant” fornicators are also liars, your entire thesis breaks down.
Examples 1, 2 and 4 can automatically be discarded since entry into a private area needs to have permission. Example 3, while having some merit would still require the zealous five to be able to unmistakably identify the so-called offenders and next actually require them to go prying into their personal lives and since encroachment is forbidden the encroachment would make their testimony invalid. As for my assumption that the “defendants” would need to be “liars”, quite the contrary – it is not up to the defendants to prove either guilt or innocence, it is up to the accusors to do such and I expect no statements at all by the defendants.
There is however one other acceptable proof of guilt that does not require any witnesses and that evidence is admission. One may choose to admit to the act of zina in order to aquire an earthly punishment. In such case, only the one admitting to the act is guilty of zina, it may be as an act of repentance (although repentence should be private – between the sinner and god – there is no go-between) in which case the party may be looking for an earthly punishment as opposed to punishment in the afterlife. However, one admission of guilt does not consitute guilt on the other party involved in the act. The other party, unless all other evidence is present, should not even be named or the admitting party would be commiting another sin. It should also be noted that admission of guilt is reversable even in the midst of delivering punishment.
Zina, itself, is a sin punishable by God. While the Quran does prescribe a punishment for the act of zina the strict requirements in regards to proving zina through credible eyewitness testimony, which in essence means that the eyewitnessing of the event must, as well, have happened per Islamic guidelines of entering a private residence. Islamically speaking, witch hunts won’t be happening and acts committed privately can not be given the prescribed punishment.
Hence, through these verses the act of zina becomes punishable as an earthly offense when the act is committed outside of the private sphere and enters the public realm which may occur through others witnessing the event or through admission. Once the act becomes a public issue the matter must be addressed and dealt with in order to preserve societal norms. Furthermore, it is neither suggested nor required to verbally administer an admission of guilt before a human being as a sign of repentence. Repentence is between the individual and God:
If someone has committed a sin in his or her private domain, there is no need to confess it before anyone, or to any authority, including a judge or the government; the preference is to repent and keep it unpublicized. In the Sharia, intruding into a person’s private domain, searching and probing into it, and disseminating such information is itself a sin, and in addition to worldly penalties, it is subject to divine punishment (see, for example, Najafi, n.d.: 660). Therefore, the rights of the individual in his or her private sphere are guaranteed to a higher degree in an Islamic society than in a secular one. source
The combination of the strict requirements for proving zina, the preference for repentence and keeping the matter unpublicized make the matter of zina as one of preserving societal norms which include set values and morals. Let me refer back to verse 24.19 (above) as well as to hadith (from wiki):
Reported by many companions that Ma’iz went before Muhammad in the Mosque and said, “I have committed adultery, please purify me.” (In another report, Muhammad asked Ma’iz that the reports he heard about him are correct or not) Muhammad turned his face away from him and said “Woe to you, go back and pray to Allah for forgiveness.” But the boy again came in front of Muhammad and repeated his desire for purification. The act was repeated three times, until Abu Bakr, sitting close by, told the Ma’iz to leave, as the fourth repetition of the plea would get him stoned. But the man persisted. Muhammad then turned to him and said “you might have kissed or caressed her or you might have looked at her with lust (and so assumed that you committed Zina)”. Ma’iz replied in the negative. Allah’s Apostle said “did you lie in bed with her?” Ma’iz replied in the affirmative. He then asked, “did you have sexual intercourse?” Ma’iz replied in the affirmative. Then Muhammad got quite uncomfortable, and asked “Did your male organ disappear in the female part?” Ma’iz replied in the affirmative. He then asked, once more, whether Ma’iz knew what Zina means. Ma’iz replied “yes, I have committed the same act a husband commits with his wife.” Muhammad asked if he was married, and he replied “yes”. Muhammad asked if he took any wine, and Ma’iz again replied in the negative. Muhammad then sent for an inquiry from the neighbors of Ma’iz, whether or not Ma’iz suffered from insanity. The replies all came in the negative. Muhammad then said, “had you kept it a secret, it would have been better for you.” Muhammad then ordered Ma’iz to be stoned to death. During the stoning, Ma’iz cried out, “O people, take me back to the Holy Prophet, the people of my clan deluded me.” When this was reported to Muhammad, he replied “Why did you not let him off, he might have repented, and Allah may have accepted it.”
While this very hadith stresses the preference for repentence, unfortunately, it is also this very hadith in which we find the justifications behind stonings. Note that nowhere in the Quran does it state stoning as a punishment for zina. Yet, somehow people find ways of unleashing their wrath upon others who don’t conform. Again, quoting Kemali, modern jurists are finding stoning to be a punishment not fitting:
Ali Mansur, the author of Nizam al-Tajrim wal-‘Iqab fil-Islam, a former President of the Constitutional Court of Egypt and Chairman of the Committee on the Harmonisation of Shari’a and Law wrote that: “Muhammad Abu Zahrah, who is one of the leading ulema of Shari’a this century has sent to me in writing his opinion on the subject of stoning where he concluded that the evidence for this punishment was doubtful and it was therefore preferable not to apply it”. Mansur added that Abu Zahrah expressed his views in a conference in the Moroccan city of bar al-Bayda on the 22nd of Rabi al-Awwal 1392 H, corresponding to 6 May 1972. Abu Zahrah’s views on this issue have also to a large extent appeared in his own book (published earlier in 1959) which may be summarised as follows:
(1) There is no disagreement among the jurists and ulema of the four leading madhahib that the punishment of flogging for zina, prescribed in the Qur’an, applies to unmarried men and women who are referred to in the Qur’an as ghayr muhsan. The majority (jumhur) of jurists have added that a male fornicator is also liable to banishment, that is removal from society, or imprisonment, for a year so that he is not ostracised for what he has done and that in the course of time people may forget about it. Imam Malik has held that banishment should not apply to women convicted of zina for fear obviously of immorality and corruption.
(2) As for the punishment of stoning for a married person, Abu Zahrah refers to the relevant ahadith. But then he notes that all of these ahadith are Ahad and the mere fact that there are several of them does not elevate them to the rank of mutawatir. Only the mutawatir inspires conviction and precludes the possibility of lying and doubt in the transmission of Hadith.
(3) Abu Zahrah draws attention to the Hadith recorded in Sahth al-Bukhari that one of the Followers (tabi’un) asked a mujtahid among the Companions whether the Surah al-Nur, which prescribed the punishment of flogging, was revealed before the ahadith on stoning or whether these latter came after Surah al-Nur. The Companion answered that he did not know. The person who asked the question was al-Shaybani and the Companion was Abd Allah Ibn Abi Awfa. The ulema of Hadith have, however, attempted to resolve the doubt raised in this report by saying that the ahadith of rajm came after the revelation of Surah al-Nur and therefore abrogated the latter. which is why ‘Umar al-Khattab acted on the ruling of these ahadith.
(4) At this point Abu Zahrah relates the views of the Kharijites, some Shi’ah and Mu.’tazillah to the effect that there is no other punishment for zina other than flogging. They have further argued that stoning is the most severe of all punishments, it should therefore be proven by decisive evidence, that is either the Qur’an or Hadith mutawatir, and all the ahadith or rajm fall short of mutawatir. Added to this is the doubt expressed by a Companion as to whether the stoning of Wiz and al-Ghamidiyah preceded or succeeded the Qur’anic text in Surah al-Nur. Rajm as a punishment thus collapses on the basis of the rule that doubts invalidate the hudud.
Ali Mansur added that another prominent jurist, Professor Mustafa al-Zarqa, was present at the same conference and heard Abu Zahrah’s views on the subject of rajm: He too (al-Zarqa) sent his opinion in writing to me to the effect that stoning as a punishment in zina should not be enforced, not because of the doubt in the authenticity of Hadith but because it is quite possible that stoning was imposed as a ta’zir punishment. AI-Zarqa then added that this was also the opinion of Shaykh Mahmud Shaltut. The text of al-Zarqa’s letter contained the following:
In my view there is a distinct possibility that the Prophet s.a.w. ordered rajm, in the related incidents by way not of hadd but of ta’zir punishment. . For he saw under the circumstances that only a strong and decisive stand on this issue could curb the rampant immorality and corruption of the time of ignorance. The lawful government and the ulu al-amr are within their rights to introduce ta’zir punishment in their efforts to combat criminality and to secure benefit for the community. It is likely that the Prophet s.a.w. also exercised his authority in this way and introduced rajm as a ta’zir punishment.
Our review of the evidence in the ahadith tends to confirm al-Zarqa’s observation. For a period of time when there was no definitive ruling on a fixed punishment for zina, that is prior to the revelation of Surah al-Nur in the year 4 or 5 Hijrah, it would appear that rajm was not a hadd punishment. If there were instances of its application around that time it was clearly on a discretionary basis. Supposing that the Prophet employed rajm in those years by recourse to the ruling of the Torah, that by itself would not render it into a hadd punishment either and it would still be reasonable to think that it was applied on a discretionary basis until the revelation of Surah al-Nur. Whether the Qur’anic hadd was subsequently and partially abrogated or specified in a certain way and how this was done, whether by the Qur’an itself or by the Sunnah, and in what chronological order, are among the widely debated questions, and the answers they have received are not totally devoid of uncertainty and doubt. source
Moreso, modern scholars are questioning the punishments in regards to had cases more and more these days. Many prominent scholars are looking at ways of reform, stressing repentence and taking into consideration today’s societal norms. Maududi for example doesn’t believe that the zina punishments should apply in a world in which marriage is not made easy and in which sexual excitement is rampant. Tariq Ramadan has a moratorium for corporal punishment in regards to hudud crimes in the Muslim world.
As for me? Where do I stand on flogging? Well, this radical Muslim feminist is offended she’s even asked the question.