Criminalizing Sexuality: Laws as Violence Against Women in Muslim Contexts
Islamic legal tradition treats any sexual contact outside a legal marriage as a crime. The main category of such crimes is zina, defined as any act of illicit sexual intercourse between a man and woman. The punishment for zina is the same for men and women: one hundred lashes for the unmarried and death by stoning for the married – though instances of these punishments are rarely documented in history.
In the early twentieth century, with the emergence of modern legal systems in the Muslim world, the provisions of classical Islamic law were increasingly confined to personal status issues. Zina penal laws, which were rarely applied in practice, had also become legally obsolete in almost all Muslim countries and communities. In the late twentieth century the resurgence of Islam as a political and spiritual force reversed the process and once obsolete penal laws were selectively revived, codified and grafted onto the criminal justice system, and, in varying forms and degrees, applied through the machinery of a modern state.
Most controversial are the revival of zina laws and the creation of new offences that criminalize consensual sexual activity and authorize violence against women. Activists have campaigned against these new laws on human rights grounds. At this end it is important to know that zina laws and the criminalization of consensual sexual activity can be challenged from within Islamic legal tradition.
Blind spots
We need to address two blind spots when approaching the issue. First, scholars who work within an Islamic framework are often gender blind and largely unaware of the importance of gender as a category of thought and analysis. They often oppose both feminism, which they understand as arguing for women’s dominance of men, and human rights, which they see as alien to Islamic tradition. Secondly, many women’s rights activists and campaigners are not well-versed in religious categories of thought and religious based arguments and find it futile and counter-productive to work within a religious framework.
In fact, approaches from Islamic studies, feminism and human rights perspectives can be mutually reinforcing, particularly in mounting an effective campaign against the revived zina laws. To explore the intersections between religion, culture and law that legitimate violence in the regulation of sexuality, contributes to the development of a contextual and integrated approach to the abolition of zina laws. I examine zina laws in the context of classical Islamic legal tradition and show how zina laws and punishments can be challenged on legal and religious grounds and also how essential elements of Islamic legal tradition are in harmony with human rights law.
Sharia versus Fiqh
It is important to recall that what we call Islamic law or Sharia Law in pre-modern times was what legal scholars today call “jurists’ law”, a matter of differing opinions and rulings (ahkam), developed independently of the state by particular jurists working within certain schools. These “laws” were applied by judges who, though they were appointed by the state, were accountable to the community and its mores, and were responsive to current social practices. Hence I prefer to talk of “Islamic legal tradition” rather than “Islamic law”. I approach this tradition from a critical feminist perspective and from within the tradition, by invoking one of its main distinctions: the distinction between sharia and fiqh. This distinction underlies the emergence of the various schools in the tradition, and the multiplicity of positions and opinions within them.
Sharia in Arabic literally means “the path or the road leading to the water”, but in Muslim belief it is God’s will as revealed to the Prophet Mohamed. As Fazlur Rahman notes, “in its religious usage, from the earliest period, it has meant “the highway of good life”, i.e. religious values, expressed functionally and in concrete terms, to direct man’s life” (Rahman, 1982, pg.100). Fiqh, jurisprudence, literally means “understanding”, and denotes the process of human endeavour to discern and extract legal rulings from the sacred texts of Islam: the Qur’an and the Sunna – the Prophet’s practice, as related in the hadith, or traditions.
Some specialists and politicians today – often with ideological intent – mistakenly equate sharia with fiqh, and present fiqh rulings as “Sharia law”, hence as divine and not open to challenge. Too often we hear statements beginning with “Islam says...” or “According to Sharia Law...”. Too rarely do those who speak in the name of Islam admit that theirs is no more than one opinion or interpretation among many. A distinction between sharia and fiqh is crucial. It enables us to separate the legal from the sacred, and to reclaim the diversity and pluralism that was part of Islamic legal tradition.
Zina laws in the context of the Islamic legal tradition
Classical fiqh divides crimes into three categories according to punishment: hudud, qisas, ta‘zir. Hudud (singular hadd: limit, restriction, prohibition) are crimes with mandatory and fixed punishments derived from textual sources, the Qur’an or Sunna. Hudud crimes comprise five offences. Two are offences against sexual morality: illicit sex (zina) and unfounded allegation of zina (qadhf). The others are offences against private property and public order: theft (sariqa), highway robbery (qat’ al-tariq hiraba), and drinking wine (shurb al-khamr); some schools also include rebellion (baghi), and some include apostasy (ridda).
The jurists defined these offences as violations of God’s limits (hudud Allah), i.e. violation of public interest. Hudud assume the central place in the call for “return to sharia” by Islamists, who consider them crimes against religion, though not every such crime or punishment has a textual basis. They are the main focus of international criticism, since they entail forms of punishment, such as lashing and cutting off limbs, which were common in the past but have been abandoned by modern justice systems that consider them cruel and inhumane – and are defined in international human rights law as torture.
Schools and jurists differ as to the definition, elements, evidentiary requirements, legal defences, exonerating conditions and penalties applicable to each of these three categories of crime, and to each crime within each category. The boundaries between the sacred and the legal are particularly hazy with respect to hudud crimes, which are considered to have a religious dimension because of their textual basis. This is certainly the case with zina, which is treated at times as a sin to be punished in the hereafter, rather than as a crime. There is room for repentance and God’s forgiveness. The objective is not punishment but rather self-reformation and the shunning of evil ways.
Yet there is a certain consensus in fiqh on the definition of zina, and the rulings are clear. Zina is defined as sexual intercourse between a man and women outside a valid marriage (nikah), the semblance (shubha) of marriage, or lawful ownership of a slave woman (milk yamin). Zina can be established by confession or by the testimony of four eyewitnesses, who must have witnessed the actual act of penetration, and must concur in their accounts. The punishment is the same for men and women, but offenders are divided into two classes: muhsin, defined as free men and women, of full age and understanding, who have been in a position to enjoy lawful wedlock; and non-muhsin, who do not fulfil these conditions. The penalty for the first class is death by stoning, and for the second, one hundred lashes. But only the lashes have a Qur’anic basis; the punishment of stoning is based only on the Sunna.
No Juristic Consensus
The juristic consensus ends here. Concerning the conditions required for a valid confession and for testimonial evidence, there are significant differences among schools and among jurists within each school. These differences, based on arguments supported by reference to textual sources, have important practical and legal consequences. For instance, while Hanafi, Hanbali and Shi’a jurists require the confession to be uttered four separate times, Maliki and Shaf‘i jurists consider one confession as sufficient to establish the offence. Only the Maliki fiqh allows an unmarried woman’s pregnancy to be used as evidence for zina, unless there is evidence of rape or compulsion; in other schools, pregnancy does not automatically constitute proof and zina must be established by confession or the testimony of eye-witnesses. Yet again, in Maliki fiqh, the majority opinion, the duration of pregnancy can be as long as seven years, which clearly suggests the humanitarian concern of Maliki jurists to protect women against the charge of zina, and children against the stigma of illegitimacy. These jurists, like their counterparts in other schools, did their best to make conviction for zina impossible.
A closer examination of classical jurists’ rulings on zina confirms that they did their utmost to prevent conviction, and provided women with protection against accusations by their husbands and the community. In this, they relied on Qur’anic verses and the Prophet’s example in condemning the violation of privacy and honour of individuals, in particular those of women, and leaving the door open for repentance.
These verses define requirements for valid evidence of zina in such a stringent way that in practice establishment and conviction of an offence are almost impossible. An uncorroborated accusation (qadhf) is itself defined as a hadd crime, punishable by 80 lashes (Qur’an, Surah an-Nur 24: 23). If the wife is pregnant and her husband suspects her of zina but has no proof, all he can do, in order to avoid the hadd offence of qadhf, is to deny paternity and divorce her by the procedure of li‘an, mutual cursing by swearing oaths; if the wife swears an oath of denial, she is exonerated from the charge of zina (Surah an-Nur 24: 6-7). Further, a confession of zina can be retracted at any time; and the doctrine of shubha (doubt, ambiguity) prevents conviction for zina in cases where one party presumes the sexual intercourse to be licit, for example when a man sleeps with a woman he believes to be his wife or a slave, or when a woman has sex with a man she presumes to be her husband.
Scholars suggest that the Qur’anic penalty – one hundred lashes for men and women – was intended to reinforce a single form of marriage and to forbid other forms of union and promiscuity. This is evident in the verse that follows: “Let no man guilty of adultery or fornication marriage any but a woman similarly guilty, or an Unbeliever: Nor let any but such a woman or an unbeliever marry such a man. To the Believers such a thing is forbidden” (Surah an-Nur 24: 3). Likewise, the penalty for male and female slaves is half of that of a free person, which means that in no way did the Qur’an envisage death as a penalty for zina.
When referring to the Qur’an
The Qur’an clearly disapproves of the prevalent sexual and moral codes among the Arabs, and introduces measures to reform them; it forbids the prostitution of female slaves (Surah an-Nur 24: 33); speaks of sex outside marriage as a sin to be punished in the Hereafter (Surah al-Isra’ 17: 32; Surah al-Furqan 25: 68- 71); and modifies existing practices to promote chastity and a standardized form of marriage. Eight verses (Surah an-Nur 24: 2-9) deal with the law-like issue of illicit sexual relations and form the basis of fiqh rulings on zina. These verses introduce new sanctions to safeguard marriage, subject men and women to the same punishment for extra-marital relations, and protect women in the face of accusations against their chastity. Two verses prescribe punishment for illicit sexual relations. The first reads as follows: “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” (Surah an-Nisa 4: 15).
The verse does not use the term zina but fahisha (lewdness), which most commentators understood as implying adultery and fornication. However, Yusuf Ali, one of the notable translators of the Qur’an, in a note states that fahisha “refers to unnatural crime between women, analogous to unnatural crime between men” (Yusuf Ali, 1999, pg.189), the subject of the next verse (Surah an-Nisa 4: 16), which states: “no punishment is specified for the man, as would be the case when a man was involved in the crime.” It has also been argued that fahisha in Surah an-Nur 4: 15 denotes a sexual act in public and prostitution, not private consensual sex, whether it is heterosexual or not. The verse endorses the existing punishment for fahisha – of which only women, it appears, could be accused. They should be confined to the home for the rest of their lives, or humiliated by having to appear in public covered in animal dung. But the verse, while not abolishing this penalty, requires the evidence of four witnesses, and perhaps more importantly, promises women a way out. In any case, jurists agree that the punishment was superseded by Surah an-Nur 24: 2, which reads: “The woman and the man guilty of adultery or fornication (al-zaniah wa al-zani) – flog each of them with a hundred stripes.”
It seems clear that not only the Qur’anic verses but also the jurists, with their intricate rules for proof of zina, aimed to reform existing practices in the direction of justice, as understood at the time. But both the spirit of the verses and the rules of the jurists lose their force for justice when classical fiqh rulings are codified and grafted onto a unified legal system, and implemented by the coercive machinery of a modern nation state. Hence it is not enough to take the classical zina rulings at face value, as some do. Defenders of current zina laws often hide behind the reassurance that they are impossible to enforce in practice; they ignore how they are actually used, and that it is women and the poor who are most often the victims.
A Critique from Within
Islamists and traditional Muslim scholars claim that the classical fiqh rulings are immutable and divinely ordained. It is not my intention here to enter a discussion on the theological validity of such a claim, or whether such a patriarchal reading of the Qur’an is justified. The legal logic of classical fiqh rulings must, of course, be understood in their own context. We must not approach them anachronistically. We should suspend judgment when dealing with past tradition. But this does not mean that we have to accept this tradition blindly or that we cannot deal with it critically.
In our time and in our context we also need to ask: How far does such a conception of sexuality and gender rights reflect the principle of justice that is inherent in the very notion of sharia as a path to follow? Why and how did classical jurists define these rulings so that women are under men’s authority, and women’s sexuality is men’s property? What are the ethical and rational foundations for such notions of gender rights and sexuality? These questions become even more crucial if we accept – as I do – that the classical jurists sincerely believed both that their findings were derived from the sacred sources of Islam and that they reflected the justice that is an indisputable part of the sharia, as they understood it.
There are two sets of related answers. The first set is ideological and political, and has to do with the strong patriarchal ethos that informed the classical jurists’ readings of the sacred texts and their exclusion of women from production of religious knowledge. The further we move from the era of the Prophet, the more we find that women are marginalized and lose their political clout: their voice in the production of religious knowledge is silenced; their presence in public space is curtailed; their critical faculties are so far denigrated as to make their concerns irrelevant to law-making processes. Women had been among the main transmitters of the hadith traditions, but by the time the fiqh schools were consolidated, over a century after the Prophet’s death, they had reduced women to sexual beings and placed them under men’s authority. This was justified by a certain reading of Islam’s sacred texts, and achieved through a set of legal constructs: zina as a hadd crime, with mandatory and fixed punishments; marriage as a contract by which a man acquires control over a woman’s sexuality; and women’s bodies as ‘awra, shameful.
The second set of answers is more theoretical, and concerns the ways in which patriarchal social norms, existing marriage practices and gender ideologies were sanctified, and then turned into fixed entities in fiqh. In brief, the genesis of gender inequality in Islamic legal tradition lies in an inner contradiction between the ideals of the sharia and the patriarchal structures in which these ideals unfolded and were translated into legal norms. Islam’s call for freedom, justice and equality was submerged in the patriarchal norms and practices of seventh century Arab society and culture and the formative years of Islamic law.
Death by stoning (rajm) takes its textual justification not from the Qur’an but from the Sunna. Jurists of all schools rely on three hadith to build their legal arguments for stoning. This has been contested both by invoking arguments from classical fiqh theory, such as the textual primacy of Qur’an over hadith, and the fact that the authenticity of these hadith has been questioned, as well as on human rights grounds. For example, some have argued that stoning was a common form of execution at the time of the Prophet, and that it came into Islamic legal tradition as punishment for zina from Jewish tradition.
Moreover, the Qur’an neither mandates stoning as punishment for adultery, nor speaks of any punishment for consensual sexual relations in private. As Asifa Quraishi rightly argues, zina as defined by classical jurists must be seen as a crime of public indecency rather than private sexual conduct. In her words, “While the Qur’an condemns extramarital sex as evil, it authorizes the Muslim legal system to prosecute someone for committing this crime only when the act is performed so openly that four people see them without invading their privacy”.
Defining crimes according to punishment is itself a juristic development. The expression hudud Allah, limits prescribed by God, appears fourteen times in the Qur’an. Nowhere is it used in the sense of punishment, fixed or otherwise, nor it is stated specifically what these limits are. As Fazlur Rahman notes, in two verses (Surah al-Baqarah 2: 229-30) the term appears six times in relation to divorce, demanding that men either retain or release their wives bil-ma‘ruf, i.e in accordance with “good custom”; each time, the term carries a slightly different meaning, but neither here nor elsewhere is it used in the sense of punishment. In his words: “These facts should compel us to pause and think how little concerned the Qur’an is about the purely legal side and how much more and primarily with setting the moral tone of the Community. The legal side has undoubtedly to be done justice to and an adequate law has to be developed. But it is left to the Community to formulate this law in the light and moral spirit of the Qur’an which itself shows little tendency to lay down hard and fast laws. And doubly mistaken are those who claim to take the law of God into their own hands and seek to implement it literally”.
This paper, first published in 2010, is part of a cross-country study of adultery laws commissioned by Women Living under Muslim Laws (WLUML) in connection with the Women’s Reclaiming and Redefining Cultures Programme (WRRC) Global Campaign to Stop Killing and Stoning Women (SKSW). Read the fully referenced version here.
From Women in Islam Issue 1 (2014)