The Prescribed Punishments – Zina - Fornication and Adultery

  

Demystifying Islam

 by Dr. Ali Shehata

 

Zina - Fornication and Adultery

 Zina is defined as any case where a man has sexual intercourse with a woman who is not his wife. Any other relationship between a man and a woman that falls short of true intercourse (Defined as the penis penetrating the vagina) is not in this category and does not mandate the specified punishment.

 

The prescribed punishment, though, is different depending on the marital status of the involved parties. A single person who has never been previously married receives one hundred lashes as stated by God:  

 

The [unmarried] woman or [unmarried] man found guilty of sexual intercourse, lash each one of them with a hundred lashes. {24:2}

 

If the person is married, or has previously been married, then the punishment is stoning until death. This punishment has been established by a number of hadith of the Prophet, as will be mentioned below.

 

There are specific conditions, though, that must be strictly met before either of these two punishments can be carried out, and they are as follows:  

 1. Four trustworthy witnesses must give legal testimony that they have witnessed the act of penetration take place with absolute certainty. They must be in complete agreement about all the details of the act (its place, time, circumstances, etc.). If their stories do not match, their testimony will be considered false. In this case, instead of punishment being carried out on the accused, the prescribed punishment for bearing false witness, another Hudood crime, will be carried out against the witnesses. God says:

 

Why did they not produce four witnesses? Since they did not produce witnesses, then, in the sight of God, they are the liars. {24:13}

 

Those who accuse chaste women, then do not come with four witnesses, flog them eighty lashes and never accept their testimony. They are the defiantly disobedient.  {24:4}

 

It should be obvious that anyone who commits fornication in the plain sight of four people who can see every detail of his crime is a person who is brazen and shameless. Such a wicked person has little regard for religion, or for social values, and if they are married, has no regard for the sanctity of their marriage.

 

This person is thus deserving of a severe punishment. At the same time, it must be known that there is no documented case in Muslim history where the prescribed punishment for fornication was carried out on the testimony of witnesses. In most cases, this punishment has historically been carried out at the request of the one who committed the fornication themselves in order that they may purify themselves of the sin and as a means of repentance.

 

2. There must be no cause for doubt that can defer the punishment. If any doubt is present, or any way out is found for the accused, the punishment is not to be carried out. Some things should be made clear at this point. The first is that if a person becomes weak and falls into this sin, it is preferable for him to conceal it from others and not speak about it or admit to it. Instead, he should repent, seek God’s forgiveness, and try to make up for it by doing righteous deeds. He should not despair of God’s mercy.  

 

Say, “O My servants who have transgressed against themselves [by sinning], do not despair of the mercy of God. Truly, God forgives all sins. Indeed, it is He who is the Forgiving, the Merciful.” {39:53} 

 

It should also be noted that if someone sees another Muslim commit this act, then he should conceal it from the public. God’s Messenger has said, “Whoever conceals the fault of a Muslim, God will conceal his faults.” [Muslim]

 

The idea that we should conceal our own sins and those of others is the exact opposite of what many value in Western nations. So many famous people are respected when they publicly admit their sins and seek forgiveness. We tend to be taught that people who conceal their sins are hypocrites, if they say or act otherwise. Yet in Islam, one should conceal their personal sins—with the exception of those sins that involve transgression against the rights of others—as this is seen as preserving to society. But, sometimes admitting sins in public can have the opposite effect of leading others to fall into the same sin. Hypocrisy is defined when someone persists in doing a particular sin while at the same time commanding others to avoid it.   On this subject, the great scholar and Islamic jurist, al-Shaafi’ee, stated:

 

If a person commits a sin and God conceals it for him, I prefer for him to keep it concealed and to repent, keeping the matter between himself and God. Something similar was narrated from Abu Bakr and ‘Umar (the two closest and most righteous Companions of the Prophet, and later leaders of the Muslims), that they commanded a man to conceal his sin. [Tirmithi]  So there is no need for the person who commits a punishable sin to go to the judge and confess and ask for the prescribed punishment to be carried out on him. Rather, he is encouraged to keep it to himself and to repent, keeping the matter between himself and God, may He be glorified, and to do lots of righteous deeds, for good deeds cancel out sins, and the one who repents from sin is like one who did not sin at all.

 

Additionally, Islam has made the home absolutely sacred. It is not allowed to enter someone else’s home, except with the permission of its people. Spying on others without just cause is likewise prohibited in the Quran.

 

Also, if a person confesses to this sin of his own free will, it is necessary to determine if he is of sound mind and in possession of all of his faculties. It must also be certain that he is under no compulsion or coercion.

 

Furthermore, he has the opportunity to retract his confession and he is encouraged to do so. If he retracts his statement, the punishment will not be carried out. This is what the Prophet did with the companion Ma’iz when he confessed to committing adultery. God’s Messenger turned away from him four times, but Ma’iz, overwhelmed by his guilt and feelings of regret, insisted …

 

Sulaiman ibn Buraida reported on the authority of his father that Ma’iz ibn Malik came to God's Messenger and said to him, “Messenger of God, purify me,” whereupon the Prophet said, “Woe to you, go back, ask forgiveness of God and turn to Him in repentance.” He went back a small distance, then he returned and said, “God's Messenger, purify me,” whereupon God's Messenger said, “Woe to you, go back and ask forgiveness of God and turn to Him in repentance.” He went back a small distance again, then he returned yet again and said, “God's Messenger, purify me.” God's Messenger said as he had said before. 

 

When it was the fourth time, God's Messenger said, “From what am I to purify you?” He replied, “From adultery.” God's Messenger asked the others if he was mad. He was informed that he was not mad. He inquired, “Is he intoxicated?” A person stood up and smelt his breath, but noticed no smell of wine. Thereupon God's Messenger said, “Have you committed adultery?” He said, “Yes.” He then made judgment over him and he was stoned to death. 

 

The people then became divided into two groups about this man Ma'iz. One group said, “He has been destroyed, for his sins had encompassed him,” whereas the other group said, “There is no repentance more excellent than the repentance of Ma'iz, for he came to God's Messenger and placing his hand in [the Prophet's] hand said, ‘Kill me with stones.’” 

 

This controversy about Ma'iz continued for two or three days. Then God's Messenger came to his Companions as they were sitting. He greeted them with the salutation of peace and then sat down and said, “Ask forgiveness for Ma'iz ibn Malik.” They said, “May God forgive Ma'iz ibn Malik.” Thereupon God's Messenger said, “[Ma'iz] has made such a great repentance that if it were to be divided among an entire community of people, it would have been enough for all of them (to be forgiven).” 

 

Then a woman from a tribe called Ghamid came to the Prophet and said, “Messenger of God, purify me,” whereupon he said, “Woe to you! Go back and beg forgiveness from God and turn to Him in repentance.”

 

She then said, “I think that you intend to send me back as you sent back Ma'iz ibn Malik.” The Prophet then said, “What has happened to you?” She said that she had become pregnant as a result of adultery. Upon this, the Prophet said, “Have you really committed this sin?” She said, “Yes.”  The Prophet then said to her, “You will not be punished until you deliver your child.” One of the Muslims then became responsible for her care until she delivered her child. Her guardian then came to God's Messenger and said that the woman from Ghamid had given birth to her child. The Prophet then instructed, “In that case, we shall leave her infant with her to suckle him.” One of the Muslims then got up and said, “God's Messenger, let the responsibility of his suckling be upon me.” She was then stoned to death. [Muslim]

 

This woman went on to become very famous for her righteousness and her tremendous repentance as is illustrated in  the following authentic narration:  

 

Abu Nujayd 'Imran ibn al-Husayn reported that a woman came to the Messenger of God who was pregnant as a result of fornication. She said, “O Messenger of God, I have committed a forbidden act, so carry out the punishment on me.” The Prophet of God summoned her guardian and said, "Treat her well. When she gives birth, bring her back to me." He did that and the Prophet of God commanded that she be stoned. Then the Prophet led the other Muslims in funeral prayer over her. Upon this, Umar said to him, “Do you pray over her, Messenger of God, when she committed adultery?” He replied, "She repented with such a sincere repentance that if it were to be divided out among seventy of the people of the city of Madinah, it would suffice them all. Can you think of anything better than her offering herself to God, the Mighty and Majestic?” [Muslim]  

 

The Wisdom behind the Prescribed Punishment for Fornication and Adultery

 If we review all the punishments in the Shari’ah, we see that they all have two qualities:

 

1. Several requirements that must be met before a punishment can be carried out, thus preventing miscarriage of justice, or the conviction and punishment of a person for a crime they did not commit. This safeguards the life of the accused and guarantees them that no punishment will be carried out until every excuse is exhausted and every reason for discarding the punishment is considered.

 

2. They are intense and harsh in nature which indicates how much God disapproves of the associated crime. Matters like fornication may seem to a number of people to be trivial in nature, or “no big deal,” yet in the eyes of the Almighty who sees the big picture and the impact such activities have on society as a whole, they are detrimental to both the individual and society. 

 

This “harshness” of the prescribed punishments guarantees two things. First, it preserves the general security of society and reduces crime. The potential murderer who knows that he will be killed, the potential thief who knows that he will lose his hand, and the potential adulterer who knows that he will be stoned, or given a hundred lashes, will think twice before going out and committing the crime. 

 

If, on the other hand, a criminal knows that punishment and imprisonment is not consistent, nor is it swift, then it can not serve as an effective deterrent. In such a case, he is far less likely to respect the punishment, and will not be discouraged from committing the crime. The general rule that can be deduced from this is—the more the benefits of the crime outweigh the costs of punishment, the less effective the law will be.

 

When examining the sins of fornication and adultery closer, we see that they uphold the principles mentioned above. The condition for establishing it—four reliable witnesses—is a very strict one, and the punishment is decisive.

 

If we look at the application of this punishment, we find many aspects of the wisdom:

 

a) It preserves general peace and security in the society, because one of the most common motives for murder in many societies today is the rage associated with a finding your spouse in bed with another* —legally classified as a crime of passion.** Applying the punishment against fornication causes a decrease in murders related to crimes of passion, which in turn, reduces the frequency of murder, thus having a direct, positive effect on public safety.

* US Department of Justice, Bureau of Justice publication, Homicide Trends in the United States, 1980-2008, reports that intimate homicides of white women between 1980 and 2008 averaged 44% of all white female homicides. Intimate homicides of black women averaged 43% of all homicides of black females. 

** Khazan, O. (2017, Jul 20). Nearly Half of All Murdered Women Are Killed by Romantic Partners. Retrieved from:

https://www.theatlantic.com/health/archive/2017/07/homicideswomen/534306/

 

b) It protects the family. The family enjoys a special status in Islam. Extramarital sex is proven to be destructive to the family*  and undermines its integrity.** The severe punishment for zina (fornication/adultery) has the effect of reducing its occurrence, which has a direct and positive effect on the healthy continuation of marriages, the security and stability of children, and effectively discourages the idea of “looking for adventure” through adulterous liaisons. 

* Brooks, A. (1989, Mar 9). Experts Find Extramarital Affairs Have a Profound Impact on Children. Retrieved from: https://www.nytimes.com/1989/03/09/us/health-psychology-experts-findextramarital-affairs-have-profound-impact.html

** Charny, IW and Parnass, S. (1995). The Impact of Extramarital Relationships on the Continuation of Marriages. J Sex Marital Therapy. Retrieved from: https://www.ncbi.nlm.nih.gov/pubmed/7643421

 

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The Prescribed Punishments – Hudood Laws

 

 

Demystifying Islam

 by Dr. Ali Shehata

 

The Prescribed Punishments – Hudood Laws

 Crimes that fall under this category are defined as legally prohibited acts for which God has commanded a specific, predetermined punishment. These punishments have certain distinguishing features that set them apart from others. Among them are the following:

 

1. These punishments can neither be increased, nor decreased.

2. These punishments cannot be pardoned or waived by the judge, the political establishment or the victim after their related crimes have been brought to the attention of the judiciary. It is possible for the victim to pardon the criminal if the crime was only personal in nature (only affected the victim and without societal ramifications, like theft from the victim’s store for example), and only before it is brought before the court. The Prophet Muhammad stated, “Forgive one another in matters of prescribed punishment for if the matter reaches me [and is confirmed] then the punishment must then be carried out.” [Abu Dawood and Nasaa’ee]

3. These punishments are the “right of God,” meaning that the legal right involved is of a general nature where the greater welfare of society is considered.

 

The crimes that fall under the jurisdiction of the fixed punishments are: theft, false witness, fornication/adultery, apostasy, the use of intoxicants (drugs or alcohol), highway robbery and terrorism (which includes rape). A detailed discussion of all of these crimes and their fixed punishments is well beyond the scope of this introductory book. Yet, due to the frequent questions, and misconceptions, that have often surrounded the prescribed punishments for theft, adultery and rape; these three topics will be discussed below. 

 

Theft

 

Theft is defined in Shari’ah as secretly taking the wealth of another party from its secure location with the intention of assuming possession of it. Thus it is a predatory act, well premeditated, and hence, must be distinguished from petty theft.

 

There are conditions that must be met before an act of theft mandates carrying out the specified Islamic punishment, which is to have the hand amputated. These conditions are:  

 

1. The stolen property must be completely taken into the thief’s possession after being removed from a secured location from the premises of the victim.

2. The stolen property must be movable.

3. The stolen property must be something that people generally ascribe value to and should not be something that people customarily overlook. This particular requirement is one which is commonly abused by overzealous so-called “Shari'ah” councils in certain rural and uneducated parts of the world who will wrongly punish someone for stealing something with a nominal value.

 

If these conditions are met in the absence of any doubt, or necessity due to extreme poverty (which would then prevent carrying out the punishment), it becomes mandatory to amputate the hand of the thief from the wrist joint if the crime is brought to the attention of the judiciary*. This is based on God’s words:

 

The thieves, male and female, amputate their hand. {5:38}

* Forgiveness is a major theme permeating all aspects of Islam, so should the victim of a robbery or theft choose to forgive the thief before any charges are pressed (before the crime is brought to the attention of the judiciary), then the punishment would not be carried out.

 

Discussion of the Severity of Punishment for Theft

 

The common reaction in westernized societies today is that the cutting off of the hand is “cruel and unusual” or “barbaric”. Consider the following perspective though. In western culture, the thief’s hand is not cut off, but instead the thief is “cut off” from society itself. This occurs initially with the thief being sentenced to prison, perhaps for a long time, where they often struggle with multiple fears—rape, solitary confinement, beatings and so forth. Afterwards, they are also cut off by social stigma and the loss of civil liberties. The western punishment may in fact be more “cruel and unusual,” since the thief will have a criminal record that will follow him throughout his lifetime endeavors be they jobs, marriage, the loss of the right to vote in certain states or even restricted travel in other cases—despite having served their time for the crime.

 

In contrast, the Shari’ah punishment instantly clears the thief of his sin, both before God and before society. The Prophet pbuh  instructed his followers to accept back into society, in all respects, those people who had received their punishment and to allow them to continue to play a positive role in the community. A person’s record shouldn’t follow him around and people should not condemn him afterwards, upon the order of the Prophet who forbade condemnation of the criminal. In fact, they are in some cases praised for their courage to purify themselves of their sin in this world despite the difficulty of the ordeal.   

 

'Umar bin Al-Khattab narrated: “During the lifetime of the Prophet, there was a man called Abdullah and he used to make God’s Messenger laugh. The Prophet lashed him because of drinking alcohol. And one-day he was brought to the Prophet on the same charge and was lashed again. On that, a man among the people said, ‘May God curse him! How frequently he has been brought to the Prophet on such a charge!’ Upon hearing this, the Prophet said, ‘Do not curse him, for by God, I know that he loves God and His Messenger.’” [Bukhari]

 

Abu Huraira narrated: “A drunk was brought to the Prophet and he ordered him to be lashed. When that drunk had left, a man said, ‘What is wrong with him? May God disgrace him!’ God’s Messenger then said, ‘Do not help Satan against your Muslim brother (with such words).’” [Bukhari]

 

Ubada ibn as-Saamit narrated: “I gave the pledge of allegiance to the Prophet with a group of people, and he said to us, ‘I take your pledge that you will not worship anything besides God, you will not steal, you will not kill your children, you will not slander others, or spread false statements about them, and you will not disobey me in anything good. Whoever among you fulfills the obligations of this pledge, his reward is with God. And whosoever commits any of the above crimes and receives his legal punishment in this world, that will be his expiation and purification. But if God screens his sin, it will be up to God to either punish or forgive him according to His wish.’ Abu Abdullah then added, ‘If a thief, or any person upon whom any legal punishment has been carried out, repents after his hand has been cut off, then his legal testimony well be accepted.’” [Bukhari]

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