The hadiths explain the rape of a free or servile woman as zina. [30] The Qur`an deals with zinaʾ in several places. The first is the general rule of the Qur`an, which commands Muslims not to commit Zina: scholars agree that the rapist should be subjected to Hadd punishment if there is clear evidence against him that he deserves Hadd punishment, or if he admits it. Otherwise, he should be punished (i.e. if there is no evidence that the hadd sentence for Zina can be carried out against him because he does not confess, and there are not four witnesses, then the judge can punish him and set a sentence that deters him and others like him). There is no punishment for the woman if it is true that he forced and restrained her, which can be proven by his screams and cries for help. Most of the rules concerning fornication, adultery, and false accusations from a husband to his wife, or from community members to chaste women, are found in Surah an-Nur (the Light). Surah begins with very specific rules for the punishment of Zina: Zena is generally defined by Islamic law as illicit sexual intercourse, that is, sexual intercourse between people who are not married to each other. This includes sex outside marriage and sex before marriage. Zena falls under the Islamic sexual jurisprudence of fiqh, which is an extension of the Sharia code of conduct given in the Qur`an. In all four Sunni schools of practice and two Shia schools of practice, the term zina means voluntary sexual intercourse between a man and a woman who are not married to each other, whether one or both are married to other people or not. It does not distinguish between the terms “adultery” and “fornication”, contrary to widespread usage in most Western languages. Islamic law prescribes punishments for Muslim and non-Muslim men and women for the act of Zina as interpreted from the Qur`an and hadiths.
In principle, this is extremely difficult to prove, because four respectable witnesses are needed for actual penetration. Some schools of Islamic jurisprudence (fiqh) have created the principle of shubha (doubt). According to this principle, if there is doubt as to the illegality of the sexual act, the offender should not receive the hadd sentence, but could receive a less severe sentence at the discretion of the judge. [23] The lawyers had different views on what constituted a legitimate “doubt” for these purposes. A typical example is a man having sex with his wife or son`s slave. This is Zina – a man can only legitimately have sex with his own slave. But a man might plausibly believe that he had property rights over his wife or son`s property, and therefore think that sex with their slaves was legal. Ḥanafī jurists in the Ottoman Empire used the concept of doubt to exempt prostitution from the Hadd penalty. Their reasoning was that, since legal sex is legitimized in part by payment (the dowry that the wife`s husband pays upon marriage, or the purchase price of a slave), a man might plausibly believe that prostitution, which also includes payment for sexual access, was legal. [65] It is important to note that this principle did not mean that such acts were treated as lawful: they remained crimes and could be punished, but they were not punishable by 100 lashes or stoning. Go to any women`s prison in the West African country of Mauritania and you will find female inmates whose only offence is to have been raped. Some are children.
Often pregnant and unable to prove coercion, they are labeled criminals for having sex outside of marriage. The reasons for this are related to cultures that systematically ignore women`s testimony and a set of Islamic laws, known as zina, that are applied to varying degrees in the Muslim world. Abu Huraira reported that the Messenger of Allah said: “Allah has designated for each son of Adam his share of Zina, which he will inevitably commit. The zina of the eyes looks, the zina of the tongue speaks, one can desire and desire, and the genitals confirm or deny it. In the four schools of Sunni fiqh (Islamic jurisprudence) and the two schools of Shia fiqh, the term zināʾ is a sin of sexual intercourse that is not permitted by Sharia (Islamic law) and is classified as a Hudud crime (a class of Islamic punishments established for certain crimes considered “claims of God”). [6] To prove an act of Zina, a cadi (religious judge) in a Sharia court relies on the pregnancy of an unmarried woman, confession in the name of Allah, or four witnesses to the actual act of penetration. The last two types of prosecutions are rare. Most cases of Zina in the history of Islam have been of unmarried pregnant women.
[7] [8] In some Islamic law schools, a pregnant woman accused of zina and denying that the sex was consensual must prove that she was raped, with four eyewitnesses testifying in court. This has led to many cases where rape victims have been punished for Zina. [9] [10] The indictment of Zina without required eyewitnesses is considered defamation (Qadhf, القذف) in Islam, itself a Hudud crime. [11] [12] Zina in its broad sense and legal meaning are both haram (forbidden). However, committing Zina (the legal sense) carries a severe legal punishment, while committing something that brings you closer to Zina is considered a wrong deed for which one is accountable before Allah, and it does not qualify for any particular corporal punishment stipulated in Islamic law. The Islamic definition of Zina differs from the commonly used definition of “adultery” in English. The meaning also differs in terms of gender according to traditional Islamic jurisprudence. If a pregnant woman confesses that her baby was born from an illegal relationship, she will be condemned by the Islamic courts. In cases where there are no witnesses and no confessions, the woman is punished not only because of the pregnancy. Women can get pregnant without having illegal sex.A woman can be raped or coerced. In this case, she is the victim and not the perpetrator of a crime. Therefore, she cannot be punished or even accused of wrongdoing solely because of her pregnancy. [57] [58] [59] The hadiths consider homosexuality zina,[37] and male homosexuality punishable by death. [ref. For example, Abu Dawud,[33] [not precise enough to verify][38][page needed] Ibn `Abbas (may Allah be pleased with both of them) said: I have never heard a better definition of minor errors [al-Najm 53:32] than that which Abu Hurayrah (may Allah be pleased with him) said of the Prophet (peace and blessings of Allah be upon him): Allah ordained his share of Zina for every son of Adam, And there is no escaping it. The Zina of the eye is a look that Zina speaks with the tongue, and the Zina of the spirit desires and hopes; Then the private party acts accordingly or not. (Narrated by al-Bukhari, 11/26; Muslim, 4/2046). The jurists (may Allah have mercy on them) have explained that Zina`s basic act carrying the penalty is illegal sexual intercourse, where the two circumcised parts [i.e.
genitals] come together and there is penetration of the tip of the penis because it is real penetration (which carries the hadd or prescribed punishment). Sometimes laws are enshrined in state law. Sometimes they are applied by the community or even by the family in the form of honour killings. In Iran, Zina was codified particularly brutally after the 1979 revolution, with detailed descriptions of how men and women should be punished for zina offenses. In Pakistan, the laws were introduced in 1979 as part of the country`s re-Islamization by military ruler Zia-ul-Haq. Extramarital sex was considered a crime against the state. According to a local lawyer, Zafar Iqbal Kalanauri, thousands of Pakistani rape victims ended up in prison. Islamic law defines two categories of legal sexual relations: between husband and wife, and between a man and his concubine. All other sexual relations are considered zināʾ (fornication), including adultery and homosexuality, according to Islamic law and exegesis of the Qur`an. It is clear from Lot`s story that the Qur`an considers sodomy to be a monstrous sin. Death by stoning for the people of Sodom and Gomorrah is similar to the penalty of stoning for illegal heterosexual intercourse.
