Zina

Zināʾ (زِنَاء) or zina (زِنًى or زِنًا) is an Islamic law concerning unlawful sexual relations between Muslims who are not married to one another through a Nikah. It includes extramarital sex and premarital sex, such as adultery (consensual sexual relations outside marriage), fornication (consensual sexual intercourse between two unmarried persons), and homosexuality (consensual sexual relations between same-sex partners). Traditionally, a married or unmarried Muslim male could have sex outside marriage with a non-Muslim slave, with or without her consent, and such sex was not considered zina.

In the four schools of Sunni fiqh (Islamic jurisprudence), and the two schools of Shi'a fiqh, the term zināʾ is a sin of sexual intercourse that is not allowed by Sharia (Islamic law) and classed as a hudud crime (class of Islamic punishments that are fixed for certain crimes that are considered to be "claims of God"). To prove an act of zina, a qadi (religious judge) in a sharia court relies on an unmarried woman's pregnancy, the confession in the name of Allah, or four witnesses to the actual act of penetration. The last two types of prosecutions are uncommon; most prosecuted cases of zina in the history of Islam have been pregnant unmarried women. In some schools of Islamic law, a pregnant woman accused of zina who denies sex was consensual must prove she was raped with four eyewitnesses testifying before the court. This has led to many cases where rape victims have been punished for zina. Pressing charges of zina without required eyewitnesses is considered slander (Qadhf, القذف) in Islam, itself a hudud crime.

Zina the unIslamic act, is not to be confused with 'Zina' or 'Zeina' (زينة), the woman's name. The name has a different linguistic root, a different meaning ("guest, stranger"), is pronounced differently (either Zīnah or Zaynah), and is usually spelled differently.

Islamic scriptures

Islam considers zināʾ a hudud sin, or crime against Allah. It is mentioned in Quran and in the Hadiths. From the perspective of the Qur'an, sex uncoupled with a legally binding marital tie is considered zināʾ, and is equally punishable for both women and men.

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:

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

â€" Qur'an, Sura 17 (Al-Isra), ayat 32

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,- 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."

â€" Qur'an, Sura 24 (An-Nur), ayat 2

“And those who accuse free 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.”

â€" Qur'an, Sura 24 (An-Nur), ayat 4-5

Hadith

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.

'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.

â€" 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.

â€" 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.

â€" Sunan Abu Dawood, 38:4364

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

â€" 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.
• 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;
• 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.

Homosexuality and zina

Quran forbids homosexual relationships, in Al-Nisa, Al-Araf (using the story of Lot's people), and other surahs. For example,

“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.”

â€" Qur'an, Sura 4 (Al-Nisa), ayat 16

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

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

â€" 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.

â€" Sunan Abu Dawood, 38:4448

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 homosexuality, sodomy (liwat) - zoophilia as well as any type of heterosexual sex between a man and a woman that does not involve penetration of penis into vagina. Sharia, in describing zina, differentiates between an unmarried Muslim, a married Muslim (Muhsan) and non-Muslim slave (Ma malakat aymanukum). The last two must be lethally stoned (rajm), while an unmarried Muslim must receive public lashing. Heavy petting, kissing, caressing, masturbation and any form of sexual intimacy between individuals who are not married to each other are all considered a form of zina.

There is some disagreement between Islamic scholars on the nature of zina and the kind of Sharia-required punishment for sexual acts between husband and wife such as oral sex, mutual masturbation, and they having sex when sharia forbids sex to them such as during religious fasting, hajj and when the wife is having her menstrual period. Abu Hanifah and Malik, and the two major fiqhs named after them, use the Principle of Najassah to argue irregular sex such as oral sex between husband and wife are abominable and disapproved (makruh) because it leads to impurity (Hadath-Akbar, حدث أکبر).

Accusation process and punishment

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

1. A confession by a Muslim of zināʾ. However, the person has a right to retract his/her confession; if confession is retracted, he/she is not punishable for zina (barring the presence of four male Muslim witnesses), or
2. The woman is pregnant but not married, or
3. The testimony of four reliable Muslim adult male eyewitnesses, all of whom must have witnessed the penetration at the same time.

“If any of your women are guilty of lewdness, Take the evidence of four (Reliable) witnesses from amongst you against them; and if they testify, confine them to houses until death do claim them, or Allah ordain for them some (other) way.”

â€" Qur'an, Sura 4 (Al-Nisa), ayat 15

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.

Confession and four witness-based prosecutions of zina are rare. Most cases of prosecutions are when the woman becomes pregnant, or when she has been raped, seeks justice and the sharia authorities charge her for zina, instead of duly investigating the rapist.

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.

Pregnancy of an unmarried woman is regarded as evidence of zina. Maliki school of Islamic jurisprudence considers pregnancy as sufficient and automatic evidence. 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. These alternate fiqhs of Sunni Islam consider pregnancy of a never married woman as evidence of her committing the crime of zina. The position of modern Islamic scholars, however, varies from country to country. For example, in Malaysia which officially follows the non-Maliki Shafi'i fiqh, Section 23(2) through 23(4) of the Syariah (Sharia) Criminal Offences (Federal Territories) Act 1997 state,

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.

â€" Islamic Laws of Malaysia

The Malikis do not require Ihsan for the imposition of stoning. According to the Hanafis, homosexual intercourse can only be punished on the strength of tazir. 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, which is defended as punishment ordained by God.

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 â€" 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.

See also

• Islamic sexual jurisprudence
• Sex and the law
• Nikah urfi
• Nikah mut‘ah
• Rajm
• Namus
• Ma malakat aymanukum and sex

References

• DeLong-Bas, Natana J. (2004). Wahhabi Islam: From Revival and Reform to Global Jihad (First ed.). New York: Oxford University Press, USA. ISBN 0-19-516991-3. 

Further reading

• Calder, Norman, Colin Imber, and R. Gleave. Islamic Jurisprudence in the Classical Era. Cambridge, U.K.: Cambridge UP, 2010.
• Johnson, Toni, and Lauren Vriens, "Islam: Governing Under Sharia.", Council on Foreign Relations. Council on Foreign Relations, Inc., 24 Oct. 2011. Web. 19 Nov. 2011.
• Karamah: Muslim Women Lawyers for Human Rights, "Zina, Rape, and Islamic Law: An Islamic Legal Analysis of the Rape Laws in Pakistan." 26 Nov. 2011.
• Khan, Shahnaz. "Locating The Feminist Voice: The Debate On The Zina Ordinance." Feminist Studies 30.3 (2004): 660-685. Academic Search Complete. Web. 28 Nov. 2011.
• McAuliffe, Jane Dammen. The Cambridge Companion to the Qurʼān. Cambridge, UK: Cambridge UP, 2006
• Peters, R. "Zinā or Zināʾ (a.)." Encyclopaedia of Islam, Second Edition. Edited by: P. Bearman;, Th. Bianquis;, C.E. Bosworth;, E. van Donzel; and W.P. Heinrichs. Brill, 2011. Brill Online. UNIVERSITY OF TEXAS AT AUSTIN. 17 November 2011
• Peters, R. "The Islamization of criminal law: A comparative analysis", in WI, xxxiv (1994), 246-74.
• Quraishi, Asifa. "Islamic Legal Analysis of Zina Punishment of Bariya Ibrahim Magazu, Zamfara, Nigeria." Muslim Women's League. Muslim Women's League, 20 Jan. 2001

External links

• Zina prosecution in Katsina State, Northern Nigeria Proceedings and Judgments in the Amina Lawal Case (2002)
• Sharia Law
• False Accusation Under Islamic Law
• Articles and Opinions: American Muslims need to speak out against violations of Islamic Shariah law (Asma Society)
• Understanding Islamic Law: From Classical to Contemporary - Zina Chapter, p. 43, at Google Books, Hisham M. Ramadan
• Afghanistan: Surge in Women Jailed for ‘Moral Crimes’ Zina in Afghanistan, Human Rights Watch (May 21 2013)
• Yet another case of stoning; Sudan women continue to be caught up in the chaos Zina victims, Sudan Tribune (2012)
• MAURITANIA: Justice not working for rape victims Zina in Mauritania, IRIN Africa, United Nations
• Mukhtar Mai - history of a rape case, Pakistan, BBC News
• Fate of another royal found guilty of adultery Zina in Saudi Arabia, The Independent (2009), UK
• Zina, Evidence and Stoning Punishment The Independent (September 2013)