As many of you may well know, I am writing a rebuttal of Robert Spencer’s book The Politically Incorrect Guide to Islam (and the Crusades). In chapter five of his Islamophobook, Spencer discusses the issue of Sharia and rape. I have completed part 1 of my rebuttal, which can be found here. As I was ferociously typing up part 2, it dawned on me that my audience may be unfamiliar with the Quranic verses in question, making it difficult for some of them to properly grasp the issue–or of fully understanding part 2 of my rebuttal.

Hence, I have decided to publish this article as a sort of background piece to part 2 of my rebuttal. As such, it will not be–like my other articles–a direct refutation of Robert Spencer. However, I believe that this article will serve a two-fold purpose. First, it will, as I have discussed, provide the background necessary to properly understand part 2 of my rebuttal. Second, it will clear up misconceptions about Islam…misconceptions that Islamophobes use as a big stick to whack Muslims over the head with.

Many people erroneously think that all mainstream interpretations of Islam necessarily criminalize zinnah (fornication and adultery)–fornicators are to be lashed and adulterers stoned, no questions asked. Such a fundamentalist mentality clashes with the Western concept of freedom of choice; it is for this reason that Islamophobes argue that religious Muslims are intrinsically incompatible with Western values. However, it is important to recognize the multiplicity of Islamic understandings that exist today; I will categorize the various interpretations of the anti-zinnah laws into fundamentalist, conservative, and reformist views. Clearly, fundamentalist understandings ought not to be tolerated, but I would argue that reformist views (and perhaps conservative ones) are not completely incompatible with Western ideals…at least not any less so than Judaic and Christian views.

Background

According to the Law of Moses, as followed by the early Jewish community, the death penalty was meted out to adulterers; the Old Testament reads:

The adulterer and the adulteress shall surely be put to death. (Leviticus, 20:10)

In order to be found guilty of adultery, there had to be two witnesses of good character who testified against the adulterers:

At the testimony of two or three witnesses they must be executed. They cannot be put to death on the testimony of only one witness. (Deuteronomy, 17:6)

Jewish rabbis dealt with this seemingly harsh law by purposefully making it difficult for the “prosecution” to meet the required burden of proof to secure a conviction. They argued, for instance, that both witnesses must have (1) warned the adulterers of the graveness of their sin prior to the commission of the act, and (2) that they must have witnessed the actual act itself. Naturally, these restrictions made the enforcement of this penalty a rare event.

Muslims believe in something called “progressive revelation”: accordingly, God revealed the Old Testament to the Jews, then the New Testament to the Christians, and lastly the “Final Testament” (the Quran) to the Muslims. As such, there is–according to Islamic belief–a divine continuity in religious belief between Judaism, Christianity, and Islam; Islamic law (Sharia) is based in the Law of Moses, a continuation and “perfection” of it.

According to Islamic tradition, God–out of mercy for the people–softened the harsh Law: the Sharia al-Islam (Law of Islam) is and ought to be, they argue, an “easy law” that is milder than the Sharia al-Yahud (Law of the Jews). The Islamic texts, for example, narrate that some Jews approached the Prophet Muhammad for rulings, saying: “Let us go to this prophet, for he has been sent with an easy law.” [1] (The authenticity of the quote is irrelevant, as it is here being used only to illustrate the Muslim perception of their own law.) Consequently, reason the Muslims, God made the evidentiary requirement for the harsh anti-zinnah laws even more unattainable: the burden of proof was raised from two to four witnesses. In this manner, the people were saved from severe punishments.

The doubling of the witnesses, from two to four, took place at a time when women were often accused of fornication, adultery, and harlotry. Even if a woman could not be convicted of this charge, her reputation (and life) would be ruined. To prevent this occurrence, the Quran stipulated that not only had the burden of proof been raised to four witnesses, but if a man dared accuse a woman of sexual immorality with anything less than that, he would be punished for slander:

And those who accuse chaste women [of fornication or adultery] and then do not produce four witnesses–lash them with eighty lashes and do not accept from them testimony ever after. And those are the defiantly disobedient. (Quran, 24:4-5)

The Prophet Muhammad gave details about this verse, seemingly affirming the restrictions placed by the Jewish rabbis, namely that the four witnesses (1) had to be of good character and (2) had to have actually witnessed the act of penetration; as Imam Mawsili and other jurists worded it, the witnesses must see the penis enter the vagina like the “Kohl needle entering the Kohl bottle.” [2]

According to Islamic doctrine, Muslims of good character must not gaze on the private parts of others; as such, the two conditions placed by the Prophet Muhammad seem to negate each other. If after all the four witnesses had gazed on the private parts, then they could not possibly be considered of good character; why did they not avert their gaze? Why did they not warn the sinners to cease and desist from their sin? The burden of proof for zinnah thus became “near impossible” to meet, and in this manner, men were restrained from throwing around accusations of sexual immorality against women, for fear of being lashed for slander.

Fundamentalist Interpretation

Fundamentalist Muslims do not take into consideration mitigating texts. Instead, they see that a verse in the Quran seems to advocate punishment for zinnah (fornication and adultery), and they rush to judgment, lashing and stoning on whim. Contrary to popular misconception, fundamentalists usually lack rigorous religious education; at most, they may have attended substandard madrasahs (religious schools), but in general they are ignorant of the vast jurisprudential tradition of Islam. Most importantly, they do not engage in contextual and inter-textual analytical exegesis of the Quran. Reformist (and even conservative) Muslims argue that fundamentalists flout the very Quran that they claim to be following: by not assiduously adhering to the high evidentiary requirement prescribed by Islamic law, the fundamentalists have created a persecuting state–where citizens live in mortal fear of the heavy handed government.

Conservative Interpretation

Although on principle they agree that the anti-zinnah laws are Islamic, conservative Muslims follow the traditional Islamic view of what I call “religious obstructionism.” On the one hand classical jurists affirmed the harsh penalties for lashing and stoning, but on the other hand they set up many roadblocks and obstacles to the enforcement of such penalties, making it “near impossible” to enact them. This obstructionist approach is not unfamiliar, as it finds prominence in the Jewish rabbinical tradition. Conservative Muslims today have adopted just such an approach, arguing that the four witnesses requirement is theoretically possible but practically improbable.

Conservative Muslims agree with reformist Muslims that the fundamentalists are incorrect in their haphazard and dangerous interpretation of the law. According to the conservative Muslims, the punishments of stoning and lashing would fall into almost complete (if not complete) disuse. But it should be understood that they would block the enforcement of such penalties on a case-by-case basis, instead of the top-down approach of reformists. Furthermore, the stoppage would be based not on a principled indignation but on a micro-technical legalistic level. Dr. Khaled Abou El Fadl writes:

Muslim jurists questioned the morality of the death penalty, and also questioned whether the state should be allowed to execute its own citizens. The way Muslim jurists responded to these challenges was to seek refuge in the technicalities of the law. In other words, the juristic response was legalistic and profoundly technical. Working with the micro-details and technicalities of the law, Muslim jurists challenged the discretion of the state and made it difficult for the state to carry out the death penalty, and also made it difficult for the state to claim that it had complied with all the procedural and evidentiary requirements in its application of this ultimate punishment… The point is that the juristic response was legalistic, technical, and creative. In light of the decisive and grave consequences of the death sentence, Muslim jurists were not willing to accept it without qualifications, and they seemed to have struggled with its implications and impact. As often happens in a legalistic interpretive culture [such as the rabbinical tradition], Muslims jurists did not respond at the conceptualized or broad theory level. While they accepted the death penalty in principle, at the level of the process and implementation, they made the infliction of the death penalty difficult…The moral paradigm that inspired Muslim jurists to endeavor to avoid the death penalty is well represented in an educational message that teachers of Islamic law in the classical age often repeated and emphasized to their students. The message provided was this…It is always better to save the life of a thousand guilty persons than to unwittingly murder a single innocent person. [3]

Similar interpretations abound in the Jewish rabbinical tradition, resulting in what the Jewish Encyclopedia calls “the practical impossibility of convicting any adulteress” [4]–a phrase similar to the Islamic “near impossible.” Conservative Muslims agree that the conviction of adulterers against their will is theoretically but not practically possible.

Reformist Interpretation

Reformist Muslims go one step further, and approach the issue from a more theoretical standpoint. They focus more on the higher ethical objectives of the Islamic law (maqasid al-Sharia), from which they derive the Islamic jurisprudence (fiqh). Reformist Muslims argue that the “near impossible” evidentiary requirement indicates that the anti-zinnah laws are meant not as laws of enforcement but of symbolic deterrence. They believe that the Sharia was designed in such a way as to promote a more detached government with a very limited scope of powers; accordingly, reformists argue that the personal sexual lives of its citizens do not fall under the jurisdiction of the ideal Islamic state. What goes on in the privacy of one’s own bedroom between two consenting adults by cover of night is not the business of the state. As the Prophet Muhammad declared:

All of my community will be fine except for those who commit sin openly. Part of committing sin openly is when a man does something at night and God conceals it, but in the morning he says, “O So-and-so, last night I did such and such.” His Lord had covered his sin all night, but in the morning he removed the cover of God. [5]

A similar narration exists from the second Caliph of Islam:

A man came to the Prophet and said: “O Apostle of God! I have mingled with a woman in the outskirts of Medina…So, here am I, judge me according to what you decide.” Umar bin Khattab replied: “God had kept your secret! Why then didn’t you?” [6]

This indicates that the Islamic government’s role is primarily only in matters of the public square, not in the bedrooms of its citizens. Meddling in the personal affairs of citizenry is both unnecessary and inappropriate. Islam values the privacy of citizens, and forbids the government from spying on its citizens; it is for this reason that many Muslim Americans strongly believe in the fourth amendment and other such “privacy laws” enshrined in the American legal system. Certainly, reason these Muslims, a government ought not to meddle in a citizen’s personal sex life. According to Islam, the privacy of a person’s home must be respected by all others and is inviolable, such that even peeking through windows to see inside is forbidden, even for the Caliph (leader) of the Muslims:

The secrecy of the private life is untouchable. The Qur’an decisively prohibits spying into and disclosing the secrets and private lives of people, and orders keeping secret any detect and sinful act which one has seen in a person: O you believe! Avoid much suspicion, for some suspicion is a grave sin (liable to God’s punishment); and do not spy (on one another) (Qur’an 49:12). Neither can a Muslim government spy on people to see whether they are committing a sin or crime unless there is decisive proof that they are committing something against the public peace. Likewise, spying into homes, opening and reading letters that belong to others, and listening to the conversations of other people are all wrong. The second caliph of Islam, Umar ibn al-Khattab, was once walking on the streets of Medina, the capital, at night. Suddenly he heard noise coming from one of the houses, a noise indicating that somebody was drunk and singing loudly. Umar climbed over the wall, entered the house, and witnessed a very disappointing situation. He complained of the situation to the man inside, and said, “Did you think that God would allow you to hide this fault of yours?” The man replied, “O Caliph of the Muslims, stop and don’t rush. I committed one sin in the eyes of God; however, you have made three mistakes here. First of all, God says, Do not spy on one another (Qur’an 49:12), but you spied on me. Second, God says, Come to dwellings (in the normal way) by their doors (Qur’an 2:189), but you climbed over my wall, and finally God says, O you who believe! Do not enter dwellings other than your own until you have ascertained the permission of their residents and have greeted them with peace (Qur’an 24:27), but you entered my house without getting my permission and you did not greet me with peace.” Umar was very upset with himself and replied, “If I forgive you, will you forgive me?” The man said, “Yes.” Then Umar said, “I forgive you,” and left the house. [7]

While the reformist Muslims affirm the judicial obstructionism of the conservatives, they bolster it by giving it a principled and conceptual basis. This top-down understanding then is that private sins are between an individual and God; although such sins carry a heavenly punishment, they are generally not punished in this worldly life. Of course, God’s heavenly punishment is stricter, which is why believers are commanded to cease and desist from their sins, and to repent sincerely. “And God is Most Forgiving, Most Merciful.”

What’s the Point?

All of this discussion invariably leads a non-believer to ask: what’s the point of a law and a prescribed punishment if its enforcement is “near impossible”? Wouldn’t it simply have been easier and more intuitive to have no such law to begin with? Perhaps. But the faithful believe that God acts in mysterious ways, the true reasons known only to Him.

Nonetheless, contemporary Muslims speculate that God prescribed a punishment that could not realistically be enforced for four reasons: (1) It is a legacy inherited from the Law of Moses, i.e. Sharia al-Yahud (Law of the Jews). In other words, the punishment for adultery used to be much easier to carry out and was indeed done so. This was for the people who came before Ummatul Muhammad (nation of Muhammad); it is understood by Muslims that the Law as prescribed to Bani Israel was decidedly much stricter. Even Moses implored God to have more mercy on the community of Muhammad, fearful that the strict Law would break their backs. Therefore, the harsh punishment legislated by the Old Law was made impotent by creating such a high evidentiary burden that it became impossible to fulfill. Such a belief is consistent with the Islamic doctrine of progressive revelation.

To reiterate, the answer to “wouldn’t it be simpler to not have such a law to begin with?” is that the law was inherited from previous nations. Muslims believe that the Islamic community was honored by inheriting the Abrahamic law and tradition; therefore, although the Law could be tweaked, it ought not to be abandoned or replaced altogether. Rather, it was–according to an Islamic understanding–modified and “perfected” with mercy. The anti-zinnah laws are based then in Abrahamic precedence, and are therefore affirmed but in a merciful and lenient way. This explains why Muslims do not simply do away with the anti-zinnah laws altogether. They honor the Abrahamic tradition but without the enforcement of harsh penalties for fornication and adultery, which have become symbolic in nature.

(2) The second reason is that the Sharia is making a moral point by associating in the mind of the believer an extremely harsh punishment with fornication and adultery, thereby making clear the gravity of the sin. In Islamic quarters it is argued that contemporary society has made both fornication and adultery socially acceptable. The Islamic law, on the other hand, equates these sins with lashing and death, even if these punishments are not generally enforced.

Dr. Khaled Abou El Fadl writes:

Obviously, in Islamic law the crime of fornication or adultery is hard, if not impossible, to prove. So why have the punishment at all? There are two competing values here. Illicit sexual relations must be condemned. At the same time, people should mind their own business, and spying or slandering cannot be tolerated. The solution was to make the moral point that fornication and adultery are terrible crimes, and only if they could be proven would they be punished severely. Nevertheless, the issue is generally between a person and God. [8]

(3) Furthermore, in the largely illiterate societies of the past, it is likely that only the Islamic jurists were cognizant of the “judicial obstructionism” that saves believers from punishment. As such, the law served as a deterrence, even if it were not in reality enforced. This is similar to a parent threatening a child with an extremely harsh punishment simply as a scare tactic, knowing full well that he/she would never actually enforce it. The threatening of punishment is thus a mercy in a way, as it causes a person to correct his/her conduct which will benefit him/her both in this life and the next.

(4) Following the third point, it is understood by contemporary Muslims that the law is one of deterrence, not of enforcement. As the conservative Islamic scholar Muhammad ibn Adam al-Kawthari writes:

One should always keep in mind the objective and spirit of Shariah concerning the various legal punishments. The idea is not to enforce the punishment and make people suffer; rather the objective is to prevent harm, corruption and immorality in the society. Thus, legal punishments act as deterrents more than actually get people punished… An example of this which comes to mind is that we see speed cameras being placed on many roads and streets (especially here in the UK!) in order to deter people from speeding in their vehicles. The idea behind these speed cameras is not to catch people speeding, rather to prevent people from speeding and causing accidents. If the aim was to catch people speeding, there would be no warning signs indicating that a camera is present. However, we see that whenever a speed camera is placed, many warnings are given that beware this road has a speed camera . Many of the times, the camera is not even in operation, hence, the idea is to stop people speeding rather than catch and punish them. The same is with the various legal punishments prescribed by Shariah, in that they are prescribed to prevent people from committing unlawful actions and corrupting the society, yet the rules and conditions for a legal punishment to be enforced are so stringent that very rarely would an individual be punished. The legal punishment is considered a deterrent, but if an individual did involve him/herself in some unlawful activity, the objective now is not to get the individual punished rather to save him/her from the punishment. [9]

The Sharia’s Objective of Averting Corporal Punishments

The punishment of fornicators and adulterers is historically rooted in the Judeo-Christian tradition that Muslims follow. Yet, Muslims believe that the Sharia al-Islam was tweaked in such a way as to lean heavily towards the accused, thereby saving them from corporal punishments. (This is not unlike the rabbinical tradition, which similarly mitigates the Law.) In fact, Islamic authorities are commanded to find a “doubt” so that the accused can be acquitted. Muhammad ibn Adam al-Kawthari quotes the Prophet Muhammad to this effect:

The Imam should try his best to avoid the legal punishment… This (trying to avert a legal punishment) has been explicitly mentioned in one Hadith. Sayyida Aisha narrates that the Messenger of Allah said: “Keep the Muslims away from punishments as much as possible. If there is any way out for an offender to escape punishment, acquit him. It is better for a judge to make an error in acquittal than in conviction.” (Sunan Tirmidhi, no: 1424) [10]

Contemporary Muslims understand the command to find “any way out” to be a duty of the Islamic authorities.

Deterring Witnesses from Coming Forward

When four witnesses come forward, they are warned by the authorities that if their testimonies do not hold up, they will each be lashed eighty times. This creates a great deterrent to any witnesses coming forward, for they know full well that the authorities will seek to acquit the accused based on any possible doubt. For example, how is it that they could have gazed on the private parts of two having sexual relations? Why did they not turn away? Why did they not warn the sinners? Why were they spying on the two? And so on and so forth.

The jurisprudential practice is to “generate” a doubt such that the defendant is acquitted and the accusers punished. This knowledge deters accusers from stepping forward; rather, they should hide the sin of their fellow believer, as it is of no business of theirs. The accusers are deterred from coming forward for fear that one of the four of them would rescind his testimony, thereby condemning the rest to lashes.

It is for this reason that there exists in the lifetime of the Prophet Muhammad no single case of someone being convicted of fornication or adultery based on the testimony of four witnesses. Reformist (and even conservative) Muslims point to this as a strong proof that the intent of the Sharia was to deter accusers from stepping forward, barring this route to conviction and punishment.

Both reformist and conservative Muslims understand that it is impossible for the witnesses to see the penis clearly inserted into the vagina, because even “if you were among the four thighs you would never be able to give this testimony.” In other words, not even the thighs of the two who are fornicating can properly witness the vaginal penetration, so how can anyone else do that? The conservative “Wahhabi” [11] cleric Ibn Uthaymeen declared:

[The four witnesses] should describe zina in clear terms, such as saying: “I saw his penis in her vagina”. There is no alternative to that. If they say: “We saw him on top of her and they were naked”, that is not acceptable. Even if they say “We saw him doing with her what a man does with his wife,” that is not sufficient as testimony. They must say “We bear witness that his penis was in her vagina.” And this is very difficult, as the man said who was testified against at the time of ‘Umar: “If you were among the (four) thighs you would never be able to give this testimony.” Hence Shaykh al-Islam Ibn Taymiyah mentioned that at his time no case of zina was proven by means of testimony from the time of the Prophet (peace and blessings of Allaah be upon him) until the time of Ibn Taymiyah. If no case was proven from that time until the other, then we do not know of any case that was proven by testimony up till our own times, because it is very difficult. [12]

So it is understood amongst both reformist and conservative Muslims that the “near impossible” requirement of four witnesses has never been fulfilled up until this day. The ultraconservative site, Islam-qa, says:

This strictness with regard to testimony about zina serves only to achieve the purpose aimed at by sharee’ah, which is to conceal people and not spread immorality, and to make societies avoid accusations against people’s honour and aspersions on their lineages. Al-Qurtubi (may Allaah have mercy on him) said in al-Jaami’ li Ahkaam al-Qur’aan (5/83): Allaah has stated that testimony in a case of zina must be given by four people, so as to make it hard for those who are testifying to such a thing, and to conceal people. [13]

Photographic Images and DNA



It should be noted that conservative and reformist Muslim scholars agree that the four witnesses must have witnessed the actual act itself. Photographic images or video footage are not admissible, not only because these can be doctored but because such an allowance would eliminate the Sharia’s objective of making the enforcement of these penalties “near impossible.” This becomes clear by the fact that the jurists of today even forbid DNA proof to convict a person of fornication or adultery; the ultra-conservative Islamic cleric Muhammad Salih al-Munajjid declared that “zinaa…cannot be proven by DNA testing or by use of cameras and videos.” [14]

Self-Confession

In place of four witnesses, a person may confess four times to the sin. Yet this too has many stringent requirements:

The confession must be uncoerced. From an Islamic legal perspective, confessions under duress are inadmissible. The authorities are legally obligated to investigate each case and ensure that the confessor was not pressured into coming forward by family or friends. If there is any doubt whatsoever about this, the confession is to be rejected.

The confessor must be an adult of sane mind who confesses on four different occasions, knowing full well the consequences of such a confession. For example, the fourth Caliph of Islam came upon an insane woman who had confessed to adultery and was about to be stoned; he quickly brought a halt to the punishment and declared:

Do you know that there are three people whose actions are not recorded [against them]: a lunatic till he (or she) is restored to reason, a sleeper until he (or she) awakens, and a boy (or girl) until he (or she) becomes baligh (mature)…Why [then] is it that this woman is being stoned? [15]

It should be noted that there is no religious requirement for a Muslim to come forward to confess his/her sin. In fact, he/she is encouraged to hide it and not reveal it; this is in accordance to the two hadiths which I have already quoted (and other textual proofs as well):

All of my community will be fine except for those who commit sin openly. Part of committing sin openly is when a man does something at night and God conceals it, but in the morning he says, “O So-and-so, last night I did such and such.” His Lord had covered his sin all night, but in the morning he removed the cover of God. [16]

And:

A man came to the Prophet and said: “O Apostle of God! I have mingled with a woman in the outskirts of Medina…So, here am I, judge me according to what you decide.” Umar bin Khattab replied: “God had kept your secret! Why then didn’t you?” [17]

In fact, the Islamic judge is religiously commanded to dissuade the confessor from going through with the confession. The confessor is encouraged to simply repent from the sin, as “God is Most Forgiving.” Muslims believe that sins can be expiated simply by prayer and the commission of good deeds. Seeking corporal punishment is not necessary to attain penance; in fact, it is highly discouraged.

In Sahih al-Bukhari (#6439), for example, it is narrated that a man confessed the sin of adultery to the Prophet Muhammad. However, the latter kept turning his face away from the confessor, wishing not to hear it. Such was the reluctance of the Prophet Muhammad when it came to enforcing such harsh punishments. Commenting on this narration, Muhammad ibn Adam al-Kawthari writes:

The above incident shows the importance of trying to avert a legal punishment as much as possible. The man came and confessed to the Messenger of Allah (Allah bless him & give him peace) that he had committed unlawful sexual intercourse, yet the Messenger of Allah ignored him, in order that he may change his mind. [18]

It is narrated that the Prophet Muhammad would turn away from confessors, not wanting to hear what they had to say:

A man of the tribe of Aslam came to the Prophet and testified four times against himself that he had had illicit intercourse with a woman, while all the time the Prophet was turning away from him. [19]

In another instance, a man by the name of Maiz ibn Malik confessed to the Prophet Muhammad that he committed zinnah. The Prophet replied by saying: “Probably you have only kissed, or touched, or looked at her.” This was the Prophet’s attempt to save the person from punishment, as only vaginal penetration is punishable; anything less than that–including kissing, fondling, masturbation of oneself or of one’s partner, and even anal and oral sex–is not punishable by the hadud (Islamic corporal punishments).

Based on this, the Islamic judge is instructed to dismiss the confession by saying “probably you have only kissed, or touched, or looked at her.” Muhammad ibn Adam al-Kawthari writes:

This famous incident of Ma’iz ibn Malik also gives the same message, in that the Imam (leader) should try his best to avoid the legal punishment. This is the reason why it is recommended to say to the one who confesses committing fornication that “You may only have touched, you may only have kissed, are you sure you had sex, think again properly of what you are saying and think of the consequences of your confession,” and other such things. [20]

Reformist Muslims argue that there is as such no room for the hanging judge in Islam; rather, Islamic judges ought to be merciful, generally leaning towards acquittal, at least in cases where the sin is against God and not a fellow human being. The confessor is encouraged not to confess, or if he has already done so, to rescind his confession. Maiz confessed to the sin of zinnah and told the Prophet Muhammad: “Purify me,” by which he meant to carry out corporal punishment and thus attain penance. Yet, the Prophet Muhammad told Maiz not to seek the punishment but instead to simply pray to God for forgiveness; the Prophet said to Maiz:

Woe to you! Go back and ask God for forgiveness and repent to Him. [21]

In fact, it is highly encouraged (mustahhab) in Islam not to self-confess the sin of fornication and adultery, in order that these harsh punishments not be implemented. When Maiz insisted that he be punished, the Prophet Muhammad told a third person:

If you had covered him with your garment, it would have been better for you. [22]

Muslims believe that God covers up a person’s sins in the same way that clothing covers up a person’s nude and embarrassing parts. Islam instructs believers to utilize this merciful garment of God, and they are thus encouraged not to “reveal what God has concealed.” Thus, the Prophet’s disciples looked down upon self-confession, even saying about the one who confessed to zinnah:

Look at this man whose fault was concealed by God but who would not leave the matter alone, so that he was stoned like a dog. [23]

The Prophet’s disciples had a dislike for self-confession, saying:

We, the Companions of the Apostle of God, used to talk mutually: “Would it have been that al-Ghamidiyyah and Maiz ibn Malik had but withdrawn [their confession] after their confession…[we] would not have pursued them (for punishment).” [24]

The ultraconservative Saudi scholar Salih al-Munajjid quotes various classical scholars that confirm the view that repentance is better than confession:

Question: Will the zaani (fornicator) who repents be forgiven even if the hadd punishment is not carried out on him? I would like to know if a person commits fornication and he truely repents towards Allah would he be forgiven in the hereafter if the hadd of hundred lashes is not carried out on him in this world. Can only repentance expiate him from this sin or unless and untill the hadd is not carried out on him he can never be forgiven and will be punished in the hereafter. Please answer in accordance with Quran and sunnah. I will be very grateful. Answer: Praise be to Allaah. The carrying out of the hadd punishment for a sin for which that punishment has been prescribed is an expiation for that sin. Sincere repentance from sin is also an expiation for sin, and “the one who repents from sin is like the one who did not sin.” And Allaah will turn his bad deeds into good deeds. If he is sincere in his repentance, and prays a great deal for forgiveness, then he does not have to confess so that the hadd punishment may be carried out on him. Rather repentance is sufficient, in sha Allaah. Allaah says (interpretation of the meaning): And those who invoke not any other ilaah (god) along with Allaah, nor kill such person as Allaah has forbidden, except for just cause, nor commit illegal sexual intercourse–and whoever does this shall receive the punishment. The torment will be doubled to him on the Day of Resurrection, and he will abide therein in disgrace; Except those who repent and believe…and do righteous deeds; for those, Allaah will change their sins into good deeds, and Allaah is Oft-Forgiving, Most Merciful. And whosoever repents and does righteous good deeds; then verily, he repents towards Allaah with true repentance. [al-Furqaan 25:68-71]

… In Saheeh Muslim (1695) it says that when Maa’iz came to the Prophet (peace and blessings of Allaah be upon him) and confessed that he had committed zina and said, “Purify me (i.e., carry out the hadd punishment on me)”, he said to him, “Woe to you, go back and ask Allaah for forgiveness and repent to Him.”

[Imam] Al- Nawawi said: This hadeeth indicates that the burden of sin is lifted from one who repents from major sins, and this is according to the consensus of the Muslims. [Imam] Al-Haafiz Ibn Hajar said: From this case – i.e. the case of Maa’iz when he confessed zina – it may be understood that it is mustahabb [highly recommended] for the one whose case is similar to repent to Allaah and to conceal himself and not mention his sin to anyone… This was affirmed by al-Shaafa’i who said: I prefer for the one who has committed a sin and been concealed by Allaah to conceal it himself and to repent. Fath al-Baari, 12/124, 125 And it was narrated from ‘Abd-Allaah ibn ‘Umar (may Allaah be pleased with him) that the Messenger of Allaah (peace and blessings of Allaah be upon him) said: “Avoid these sins that Allaah has forbidden, but whoever does any of them, let him conceal himself with the concealment of Allaah and repent to Allaah, for whoever tells us of what he has done, we will carry out (the punishment prescribed in) the Book of Allaah on him [and we do not desire that].” It was also narrated by al-Haakim in al-Mustadrak ‘ala al-Saheehayn (4/425) and by al-Bayhaqi (8/330); classed as saheeh by al-Albaani in Saheeh al-Jaami’, 149. [25]

And he writes elsewhere:

Repentance that is a matter between a person and his Lord is better for him than confessing his sin before a qaadi (judge) so that the hadd punishment may be carried out on him. In Saheeh Muslim (1695) it is narrated that when Maa’iz came to the Messenger of Allaah (peace and blessings of Allaah be upon him) and said, “Purify me,” he said, “Woe to you! Go back and pray to Allaah for forgiveness and repent to Him.” Al-Haafiz Ibn Hajar said: It may be understood from this case – the case of Maa’iz when he confessed to having committed zina – that it is mustahabb for the one who falls into a similar sin to repent to Allaah and conceal his sin and not mention it to anyone, as Abu Bakr and ‘Umar said to Maa’iz. Whoever discovers anything of that nature should conceal it according to what we have mentioned; he should not expose it or refer the matter to the ruler, as the Prophet (peace and blessings of Allaah be upon him) said in this story: “If you had concealed it with your garment it would have been better for you.” Hence al-Shaafa’i (may Allaah be pleased with him) said: “If a person commits a sin and Allaah conceals it for him, I prefer for him to conceal it too and to repent,” and he quoted as evidence the story of Maa’iz with Abu Bakr and ‘Umar. Fath al-Baari, 12/124, 125 [26]

The fatwa site SunniPath.com issued the following religious verdict:

Question: I committed zina … What should I do? …I know that according to the Shariah, I should face lashings…So what should I do in order to make amends with Allah Ta’ala? Answer: In the Name of Allah, Most Merciful and Compassionate Conceal Your Sin It is recommended for the one who commits zina to conceal his mistake and not tell anyone about it. Rather, he or she should turn to Allah in sincere repentance. It is not necessary or recommended to confess at an Islamic court and face the hadd punishment, and if someone did confess, it would be recommended for them to withdraw their confession and not be punished (Tuhfat al-Muhtaj + Hashiyat Abd al-Hamid, 9.113). The Shafi’is have many proofs for their position. Among them is that when Ma’iz came to the Prophet (Allah bless him and give him peace) and asked him to purify him, the Prophet (Allah bless him and give him peace) said to him, “Allah have mercy on you! Go away and ask Allah’s forgiveness!” Ma’iz then left but soon returned and asked again to be purified, and the Prophet (Allah bless him and give him peace) repeated what he had said. The same thing then happened a third time, and it was only after the fourth time that the Prophet (Allah bless him and give him peace) asked Ma iz some further Questions and ordered him to be punished (related by Muslim + others). When the hadd punishment was enforced on him, Ma’iz tried to run away but those stoning him chased him down and forcibly enforced the punishment on him. When the Prophet (Allah bless him and give him peace) heard about this, he disapproved and said, “Why didn’t you let him go? Perhaps he would have made repentance and Allah would have accepted his repentance.” (Abu Dawud) Ibn Hajar notes in his Tuhfa that all of the offers made by the Messenger of Allah and his subsequent disapproval of his companions actions indicate that it is superior for one not to confess to committing zina, and that even if one did, it is recommended to withdraw one s confession. Otherwise, the Prophet’s (Allah bless him and give him peace) offers would be meaningless (Tuhfat al-Muhtaj, 9.113). Another proof is that it is a sign of Allah’s mercy that He has concealed one’s sin from the sight of others, and the Shari’ah does not approve that one cast off this concealment despite Allah s having given it to one. al-Khatib al-Shirbini explains in his commentary on the Minhaj: It is sunna for the one who commits zina and anyone else who commits any act of disobedience to conceal his sin from others. This is because of the hadith, “Whoever commits any of these awful sins (qadhurat), let him conceal himself with the concealment of Allah, for verily, whoever exposes his action to us (man abda lana safhatahu), we will impose the hadd punishment upon him.” (related by Hakim and Bayhaqi with a strong (qawiyy) chain of transmission). Exposing one’s sin, then, in order to be punished by a hadd punishment or a discretionary punishment (tazir) goes against the recommended way… Allah Loves to Forgive Allah Most High told us in the Qur an: “Say, O my servants who have wronged themselves: despair not of Allah’s mercy; surely Allah forgives all sins; surely, He is Most Merciful and Compassionate.” (39:53) Commentators tell us that this verse is the most hope-inspiring verse in the Quran (arja ayatin fi kitabi llah). Reading this verse should cause every believer to rejoice. No matter how great the sin, the door of repentance is always open. Allah loves to forgive. The Prophet (Allah bless him and give him peace) told us in a famous hadith that if we did not sin, Allah would create other people who would sin so that He could forgive them. He also told us that the one who repents from a sin is like the one who has no sin. May Allah envelop us all with His mercy and forgiveness and gather us together in Paradise. [27]

In fact, a Muslim is obligated to think good of God, and know that His Mercy overcomes His retribution. Therefore, a believer should not only repent from such sins, but feel confident that his/her repentance was accepted by God; failure to do so is a sign of disbelief in God and His Mercy, for God has already said: “O My slaves, you commit sin night and day, and I forgive all sins, so ask Me for forgiveness.” [28]

Some people erroneously believe that God will not or cannot forgive some sins, or that that they have sinned so much that the doors of repentance have been closed. The redemptive Islamic faith, however, rejects such notions as being akin to doubting God’s Mercy. God says in the Quran:

O My slaves who have transgressed against themselves (by sinning)! Despair not of the Mercy of God, for verily God forgives all sins. Truly, He is Oft-Forgiving, Most Merciful. (Quran, 39:53-54)

And God says further:

O son of Adam, so long as you call upon Me and put your hope in Me, I will forgive you for what you have done, and I shall not mind. O son of Adam, if your sins were to reach the clouds of the sky, and were you to ask Me for forgiveness, I will forgive you and I shall not mind. O son of Adam, if you were to come to Me with sins nearly the size of the earth…then I would bring you forgiveness… [29]

The Prophet Muhammad declared:

The one who repents from his sin is like the one who did not sin in the first place. [30]

Not only is the Islamic authority to dissuade the believer from confessing his sins, but he should also leave the opportunity open for the confessor to withdraw his confession, any time before or even during the enactment of the punishment. As Muhammad ibn Adam al-Kawthari writes:

If the confessor takes back his words before the punishment is enforced or during the punishment, he/she will be released and set free. (See: al-Ikhtiyar li talil al-Mukhtar, 2/311-316 and other major Hanafi Fiqh references) [31]

In one narration, a man confesses to adultery and insists upon the punishment for himself. Yet, when the first stone was thrown at him, he reconsidered his ill-fated decision. The Prophet Muhammad chastised his disciples for not letting the man go at this point:

While [the man] was being stoned he felt the effect of the stones and could not bear it and fled. But Abdullah ibn Unais [chased] him…and killed him. They then went to the Prophet and reported it to him. [The Prophet] said: “Why did you not leave him alone? Perhaps he might have repented and been forgiven by God.” [32]

It seems then that it is preferable to simply seek repentance and forgiveness instead of justice and punishment. The Prophet Muhammad and his disciples discouraged self-confession, arguing that people ought to hide their sins and seek repentance from God alone.

The Call for a Moratorium on Corporal Punishments

Reformist Muslims argue that there would hardly be people today who would seek the punishment upon themselves, especially when they know that religiously it is preferable not do that. The atmosphere of the ideal Islamic state, they reason, should be one of forgiveness, not of persecution. If the Prophet Muhammad detested punishing people based on their own self-confession, then how misguided are those fundamentalists who are known to drag unwilling women to be stoned against their will?

Many reformist Muslims have responded positively to Dr. Tariq Ramadan’s International Call for Moratorium on Corporal Punishment, Stoning and the Death Penalty in the Islamic World, commonly referred to by the less cumbersome name The Call for a Moratorium. Ramadan, the leading reformist Muslim scholar of the world, argues that the manner in which various fundamentalists are implementing the hadud (corporal punishments) is so radically incorrect that there ought to be a complete moratorium on all such punishments until stringent and up-to-date standards are set.

In the meantime, Ramadan has called for a dialogue in the Islamic world in order to properly understand the matter, and to stop fundamentalist interpretations from spreading. Whilst some conservative Muslims have reacted cautiously to Ramadan’s wording, they do agree with him that the fundamentalists are implementing the law in an incorrect fashion.

Fundamentalist Interpretations as a Backlash

Dr. Tariq Ramadan notes that the recent resurgence of fundamentalist interpretations can be traced to a reactionary feeling in the post-colonial Islamic world; enforcing such punishments evokes a negative response in the West, and because many in the Muslim world associate the West with colonialism and “neo-colonialism”, this reaction seems to validate their Islamic identity. In other words, the logic is: the West is bad, the West does not like these punishments, and therefore these punishments are good. This has more to do with identity politics than religious theology. Writes Ramadan:

On the question of hudûd [corporal punishments], one sometimes sees popular support hoping or exacting a literal and immediate application because the latter [supposedly] would guarantee henceforth the “Islamic” character of a society…When one studies this phenomenon, two types of reasoning generally motivate these claims: 1. The literal and immediate application of the hudûd legally and socially provides a visible reference to Islam. The legislation, by its harshness, gives the feeling of fidelity to the Qur’anic injunctions that demands rigorous respect of the text… 2. The opposition and condemnations by the West supplies, paradoxically, the popular feeling of fidelity to the Islamic teachings; a reasoning that is antithetical, simple and simplistic. The intense opposition of the West is sufficient proof of the authentic Islamic character of the literal application of hudûd. Some will persuade themselves by asserting that the West has long since lost its moral references and became so permissive that the harshness of the Islamic penal code which punishes behaviors judged immoral, is by antithesis, the true and only alternative “to Western decadence”. These formalistic and binary reasoning are fundamentally dangerous for they claim and grant an Islamic quality to a legislation, not in what it promotes, protects and applies justice to, but more so because it sanctions harsh and visible punishment to certain behaviors and in stark contrast and opposition to the Western laws, which are perceived as morally permissive and without a reference to religion[3]. One sees today that communities or Muslim people satisfy themselves with this type of legitimacy to back a government or a party that calls for an application of the sharî’a narrowly understood as a literal and immediate application of corporal punishment, stoning and the death penalty. When this type of popular passion takes hold, it is the first sign of a will to respond to various forms of frustration and humiliation by asserting an identity that perceives itself as Islamic (and anti-Western). Such an identity is not based on the comprehension of the objectives of the Islamic teachings (al maqâsid) or the different interpretations and conditions relating to the application of the hudûd…[but rather] a binary reasoning (less West is more Islam). [33]

The more the West pushes to remove such laws that are deemed Islamic, the more the people feel threatened by Western domination; they push back harder by calling for even stricter interpretation and implementation. Such fundamentalist understandings have particular appeal in war-ravaged areas such as Afghanistan and Somalia. The U.S.’s heavy handed policies in the Islamic world, coupled with a bombardment of traditional Islamic society with Western culture, has created a reactionary backlash. Instead of valuing the nuances and richness of Islamic jurisprudence, many Westerners denigrate all of Islam, thereby alienating the very population they are trying to influence.

But there is hope: reformist Muslims are forcing the Islamic world to have the much needed debate. Even in the ultraconservative country of Saudi Arabia, for example, reformists who challenge the status quo are emerging. The movement will be gradual in nature, and one cannot simply expect a reformation overnight. Yet, the process has begun and is gaining momentum.

Pregnancy as a Proof

Pregnancy has been mentioned by some jurists as a proof for fornication in the case of an unmarried woman. Yet, this requires some elaboration. The pregnancy alone cannot be used to justify her punishment; the woman can simply deny the act of fornication. She may for instance have engaged in illicit sexual conduct short of vaginal penetration, which may inadvertently have led to pregnancy. For example, the man could have ejaculated near her thighs and some semen may have entered the vagina that way. (Remember: the legal punishment only applies to those cases where there is vaginal penetration; if a person confesses to sexual conduct short of vaginal penetration, there is no hadd punishment.)

Furthermore, the woman may have been raped, had sex whilst she was temporarily insane, or been asleep whilst a man ejaculated in her. These excuses may seem extraordinary, but that’s the point: any doubt whatsoever should be enough to acquit the defendant, which is the goal of the Islamic court. SunniPath.com, a fatwa site, answers the following question:

Question: Is pregnancy considered sufficient evidence for the enactment of the hadd punishment for adultery? Answer: In the Name of Allah, Most Merciful and Compassionate No. The Prophet (Allah bless him and give him peace) commanded us in a famous hadith to ward off the hadd punishments with doubts [shubuhat]. Many punishments prescribed by Islamic Law often seem very harsh, but people forget that these punishments are only applied when certain very stringent conditions are met… It is mentioned in Bughyat al-Mustarshidin that an unmarried woman who gets pregnant and does not confess to have committed fornication [zina] does not deserve the hadd punishment, since she could have been accidentally had intercourse with [wat ul-shubha], she could have been asleep, she could have been insane (and hence not responsible for her actions) when the intercourse happened, or she could have been coerced, all of which are doubts [shubuhat] that make the hadd punishment inapplicable to her. [Bughyat al-Mustarshidin, 249] [34]

Salman al-Oudah, a Saudi cleric, posted the following fatwa on his website:

Question: Can a single woman be accused and convicted of fornication on the strength of her falling pregnant? Answered by Sheikh Sulaymân al-`Îsâ, professor at al-Imâm University in Riyadh …The woman will not receive punishment just because of pregnancy. Women can fall pregnant without committing illegal sexual intercourse. A woman could be raped or coerced. In this case, she is a victim and not the perpetrator of a crime. Therefore, she cannot be punished or even accused of misconduct merely on the strength of her falling pregnant. This opinion is held by many people of knowledge. Ibn Qudâmah said in his book al-Mughnî: If a woman becomes pregnant without having a husband or a master, she may not be punished and, instead, she should be asked about it, if she claimed that she was coerced into it or that she committed adultery under dubious circumstances, or if she simply does not confess adultery then she will not be punished. This is the saying of Abu Hanîfah and al-Shâfi`î, because she may be pregnant as a result of a forceful intercourse or dubious circumstances. Punishment will be abandoned in case suspicion exists. It is well known that a woman could become pregnant without engaging in true intercourse. The woman may become pregnant if sperm is manually inserted into her vagina. This would explain how a virgin becomes pregnant. [35]

Although theoretically the punishment could be implemented based on pregnancy, practically it is never so, because there is always an element of doubt which wards off punishment.

Al-Li’an

The fourth (and last) means of a conviction is through the process of li’an. After the Prophet Muhammad enacted such stringent laws barring men from accusing women of fornication and adultery, some of the husbands complained, asking what to do if they entered the home to find another man in their bed. Should a husband who catches his wife red-handed be barred from testifying against her simply because he cannot fulfill the “near impossible” four witnesses requirement? While it may be true that a stranger has no business meddling in the private affairs of a woman, isn’t the husband a special case because he is directly affected by her infidelity?

These concerns were brought to the Prophet Muhammad, and the verses of Al-Li’an were then revealed. I discussed this in part 1 of my rebuttal:

Both the Quran and the Bible deal with the case of a husband accusing his wife of adultery. The Quran declares that if a wife denies the charges, then she is exonerated by the law–her testimony is accepted over that of her husband’s, and any worldly punishment is waived. The Quran declares: As for those who accuse their wives but have no witnesses except themselves: let the testimony of one of them be four testimonies, swearing by God that he is of those who speaks the truth; And the fifth oath should be invoking the curse of God on himself if he is of those who lie. But it shall avert the punishment from her if she bears witness/testifies before God four times that the thing he says is indeed false, and if she takes an oath a fifth time that the wrath of God be upon her if he speaks the truth. (Quran, 24:6-9) This is the Islamic law of Al-Li’an. The Bible, on the other hand, has the Law of Jealousy: if a husband suspects his wife of adultery, then he is to bring her to the priest. The priest will then dump dust and ink into a container of water, and force her to drink the dirtied water. If she gets sick from it (or dies), it proves the allegation that she was adulterous; if she does not fall sick, then she is exonerated. Furthermore, the woman is to drink this water in a state of public humiliation: her head is to be uncovered (a sign of shame back then) and she is forced to stand at the east gate of the temple in sight of the people, so that she might serve as a reminder against lewdness. (All this even before she drinks the contaminated water.)

The Bible declares:

The Test for an Unfaithful Wife

Then the LORD said to Moses, “Speak to the Israelites and say to them: ‘If a man’s wife goes astray and is unfaithful to him by sleeping with another man, and this is hidden from her husband and her impurity is undetected since there is no witness against her and she has not been caught in the act, and if feelings of jealousy come over her husband and he suspects his wife and she is impure or if he is jealous and suspects her even though she is not impure–then he is to take his wife to the priest… The priest shall bring her and have her stand before the LORD. Then he shall take some holy water in a clay jar and put some dust from the tabernacle floor into the water.…Then the priest shall put the woman under oath and say to her, “If no other man has slept with you and you have not gone astray and become impure while married to your husband, may this bitter water that brings a curse not harm you. But if you have gone astray while married to your husband and you have defiled yourself by sleeping with a man other than your husband”–here the priest is to put the woman under this curse of the oath–”may the LORD cause your people to curse and denounce you when he causes your thigh to waste away and your abdomen to swell. May this water that brings a curse enter your body so that your abdomen swells and your thigh wastes away. ” Then the woman is to say, “Amen. So be it.” The priest is to write these curses on a scroll and then wash them off into the bitter water. He shall have the woman drink the bitter water that brings a curse, and this water will enter her and cause bitter suffering…He is to have the woman drink the water. If she has defiled herself and been unfaithful to her husband, then when she is made to drink the water that brings a curse, it will go into her and cause bitter suffering; her abdomen will swell and her thigh waste away, and she will become accursed among her people. If, however, the woman has not defiled herself and is free from impurity, she will be cleared of guilt and will be able to have children. This, then, is the law of jealousy when a woman goes astray and defiles herself while married to her husband, or when feelings of jealousy come over a man because he suspects his wife. The priest is to have her stand before the LORD and is to apply this entire law to her [i.e. death by stoning]. The husband will be innocent of any wrongdoing, but the woman will bear the consequences of her sin.’” (Numbers 5:11-31)

Matthew Henry, the eminent seventeenth and eighteenth century commentator on the Bible, explained these verses:

We have here the law concerning the solemn trial of a wife whose husband was jealous of her. I. What was the case supposed: 1. That a man had some reason to suspect his wife to have committed adultery, 2. It is supposed to be a sin which great care is taken by the sinners to conceal, which there is no witness of… 3. The spirit of jealousy is supposed to come upon the husband…then he may compel her to drink the bitter water. But the law here does not tie him to that particular method of proving the just cause of his suspicion; it might be otherwise proved. In case it could be proved that she had committed adultery, she was to be put to death (Lev. 20:10); but, if it was uncertain, then this law took place. Hence, (1.) Let all wives be admonished not to give any the least occasion for the suspicion of their chastity; it is not enough that they abstain from the evil of uncleanness, but they must abstain from all appearance of it, from every thing that looks like it, or leads to it, or may give the least umbrage to jealousy; for how great a matter may a little fire kindle! (2.) Let all husbands be admonished not to entertain any causeless or unjust suspicions of their wives… II. The process of the trial must be thus: (1.) Her husband must bring her to the priest, with the witnesses that could prove the ground of his suspicion, and desire that she might be put upon her trial. The Jews say that the priest was first to endeavour to persuade her to confess the truth…If she confessed, saying, “I am defiled,” she was not put to death, but was divorced and lost her dowry; if she said, “I am pure,” then they proceeded. … (3.) The priest was to prepare the water of jealousy…it must be [in] an earthen vessel, because the coarser and plainer every thing was the more agreeable it was to the occasion. Dust must be put into the water, to signify the reproach she lay under, and the shame she ought to take to herself, putting her mouth in the dust; but dust from the floor of the tabernacle… (4.) The woman was to be set before the Lord, at the east gate of the temple-court (say the Jews), and her head was to be uncovered, in token of her sorrowful condition; and there she stood for a spectacle to the world, that other women might learn not to do after her lewdness, Eze. 23:48… (5.) The priest was to adjure her to tell the truth, and to denounce the curse of God against her if she were guilty, and to declare what would be the effect of her drinking the water of jealousy, v. 19-22. He must assure her that, if she were innocent, the water would do her no harm, v. 19. None need fear the curse of the law if they have not broken the commands of the law. But, if she were guilty, this water would be poison to her, it would make her belly to swell and her thigh to rot, and she should be a curse or abomination among her people, v. 21, 22… (6.) The priest was to write this curse in a scrip or scroll of parchment, verbatim-word for word, as he had expressed it, and then to wipe or scrape out what he had written into the water (v. 23), to signify that it was that curse which impregnated the water, and gave it its strength to effect what was intended. It signified that, if she were innocent, the curse should be blotted out and never appear against her, as it is written, Isa. 43:25, I am he that blotteth out thy transgression, and Ps. 51:9, Blot out my iniquities; but that, if she were guilty, the curse, as it was written, being infused into the water, would enter into her bowels with the water, even like oil into her bones (Ps. 109:18)… (7.) The woman must then drink the water (v. 24); it is called the bitter water… … (9.) …If the suspected woman was really guilty, the water she drank would be poison to her (v. 27), her belly would swell and her thigh rot by a vile disease for vile deserts, and she would mourn at the last when her flesh and body were consumed, Prov. 5:11. Bishop Patrick says, from some of the Jewish writers, that the effect of these waters appeared immediately, she grew pale, and her eyes ready to start out of her head…

A special law for husbands exists in both Christianity and Islam. Under Islamic law, the woman can avert the punishment simply by swearing to God that her husband is lying. Even if she herself is lying when she does that, she can repent after that. The Islamic exegist Ibn Kathir comments on the verses of Al-Li’an:

“But she shall avert the punishment” meaning, the prescribed punishment…Then God mentions His grace and kindness to His creation in that He has prescribed for them a way out of their difficulties. God says: “And had it not been for the grace of God and His mercy on you” meaning, many of your affairs would have been too difficult for you, “And that God is the One Who forgives and accepts repentance,” means, from His servants, even if that comes after they have sworn a confirmed oath. [36]

Although it will be counted as a sin against her for lying, she may be able to achieve penance by seeking forgiveness and correcting her ways. Again, when it comes to convicting people of zinnah, the emphasis is always on acquittal.

The reasons for revelation of these Quranic verses revolved around husbands who walked in on their wives having sex with stranger men. They complained to the Prophet Muhammad, and then a problem arose. Should these husbands be lashed for claiming that their wives had committed adultery? After all, they hadn’t fulfilled the “near impossible” requirement of providing four witnesses. Remember: the purpose of this requirement was to deter men from accusing women of being unchaste, because they should mind their own business; but could anyone doubt the fact that a wife’s disloyalty is a husband’s business? So the question arose: did a husband have to provide four witnesses if he walked in on his wife having an affair with another man?

One of the Prophet’s disciples, a man by the name of Saad ibn Ubadah, said:

By God, O Messenger of God, I know that it [the verse requiring four witnesses] is true and is from God, but I am surprised. If I found some wicked man lying down with my wife, should I not disturb him until I have brought four witnesses? By God, he would have finished what he was doing before I could bring them!

And later, a man by the name of Hilal ibn Umayyah walked in on his wife having sex with a stranger man. He lamented to the Prophet Muhammad:

O Messenger of God, I came to my wife at night and found a man with her, and I saw with my own eyes and heard with my own ears.

The Prophet wanted to punish Hilal, for accusing a woman of being unchaste. Accusing a woman of fornication or adultery is considered a grave crime in Islam, which is the entire reason behind the four witnesses requirement. The Prophet Muhammad replied:

[Bring forth] evidence or the punishment on your back.

A group of the Muslims commented on the situation, saying:

We were being tested by what Saad bin Ubadah said, and now the Messenger of God will punish Hilal bin Umayyah and declare his testimony before people to be unacceptable.

Hilal responded:

By God, I hope that God will make for me a way out from this problem. O Messenger of God, I see how upset you are by what I have said, but God knows that I am telling the truth.

It was at that point that God revealed the verses of Al-Li’an to the Prophet Muhammad, as follows:

And for those who accuse their wives but have no witnesses except themselves, let the testimony of one of them be four testimonies by God. (Quran, 24:6)

In that way, Hilal was saved from punishment, and the Prophet Muhammad said:

Rejoice, O Hilal, for God has made a way out for you.

The wife denied Hilal’s claim and said:

He is lying.

She swore four times and then a fifth time that she was innocent. According to the verses of Al-Li’an, the wife’s testimony trumps that of the husband’s. The Prophet Muhammad declared the two forever divorced, but neither party was to receive any worldly punishment.

The woman became pregnant and gave birth to a child who looked nothing like her husband; in fact, the child looked exactly like the man that Hilal accused of having the affair with his wife. From this, the Prophet Muhammad knew that the woman was guilty, but he declared:

Were it not for the Book of God, I would deal with her. [37]

In other words, the Quran constrained the people from punishing an adulterous woman, even when there was ample proof against her. (This is also the reason that jurists today reject photographic evidence or DNA proof.) Reformist Muslims criticize fundamentalists for convicting women based on spurious evidence, whereas the Prophet Muhammad didn’t do that even when he had rock solid proof.

Non-Muslims

It should be noted that the hadud (corporal punishments) of the Sharia are only applicable to Muslims. In the classical era, the Islamic state did not enforce such laws upon non-Muslims. Rather, the non-Muslims were free to rule themselves according to their own religious scriptures, in accordance to the practice of the Prophet Muhammad. I discussed this in more detail here.

As for Muslims living in non-Muslim lands, it is understood by Islamic jurisprudence that there is no hadud applicable there, even upon Muslims. The hadud is to be enforced only in the lands of Islam, under the auspices of the Imam or Caliph of the Muslims. The fatwa site SunniPath.com says:

Hadd punishments are the province of the Imam of the Muslims, and are irrelevant for Muslims living in the West. [38]

Conclusion

There are four ways to secure a conviction for fornication and adultery: (1) four witnesses, (2) self-confession, (3) pregnancy, and (4) Al-Li’an. Yet, Muslims believe that all four routes have been virtually closed off by the Mercy of God. (1) The requirement of four witnesses is “near impossible” to fulfill: according to Islamic clerics, not a single case exists in the entire history of Islam in which it was fulfilled. (2) As for self-confession, the Islamic tradition strongly recommends believers not to confess their sins or seek legal punishments; rather, they should repent to God in private and bask in His Mercy. (3) As for pregnancy, it is not sufficient proof in and of itself; if an unmarried pregnant woman denies that she committed fornication, this is enough to save her from punishment. (4) As for Al-Li’an, the wife’s testimony trumps the husband’s, and saves her from any punishment, even if she is really guilty.

The general rule, argue reformist Muslims, is that the government should mind its own business and not interfere in the private lives of its citizens. As for the sexual escapades of its citizens, this does not fall under the jurisdiction of the Islamic state. Rather, argue these Muslims, the authorities ought to educate the citizenry about the sinful nature of fornication and adultery, its ill effects on society, and the benefits of chastity. Ultimately, it is better for people to abstain from sins based on their own moral compass than from the heavy hand of government. It is for this reason that sexual sins remain unpunished in this world, according to reformist (and even conservative) Muslims.

When it comes to consensual sex between two consenting adults, there is no Islamic legal punishment that is enforced. Robert Spencer has used this fact to claim that the Sharia takes a similar stance towards rape. His argument is that the Islamic law requires four witnesses to prove rape, a “near impossible” requirement. I shall refute his claim in my next article.

Footnotes

refer back to article 1. Sunan Abu Dawud, Book 38, #4435

refer back to article 2. al-Ikhtiyar li talil al-Mukhtar, 2/312-313

refer back to article 3. Khaled Abou El Fadl, The Death Penalty, Mercy, and Islam: A Call for Retrospection

refer back to article 4. http://www.jewishencyclopedia.com/view.jsp?artid=865&letter=A

refer back to article 5. Sahih al-Bukhari, Sahih al-Muslim

refer back to article 6. Sahih al-Muslim

refer back to article 7. http://www.fountainmagazine.com/article.php?ARTICLEID=1039

refer back to article 8. http://www.scholarofthehouse.org/islamicsexlaws.html

refer back to article 9. http://qa.sunnipath.com/issue_view.asp?HD=1&ID=4208&CATE=42

refer back to article 10. Ibid.

refer back to article 11. I have used the term “Wahhabi” here simply because the readers may be unfamiliar with the proper term “Salafi”.

refer back to article 12. al-Sharh al-Mumti’ (6/157)

refer back to article 13. http://islamqa.com/en/ref/88051/pregnancy%20proof

refer back to article 14. http://www.islam-qa.com/en/ref/6926

refer back to article 15. Sunan Abu Dawud, Book 38, #4387

refer back to article 16. Sahih al-Bukhari, Sahih al-Muslim

refer back to article 17. Sahih al-Muslim

refer back to article 18. http://qa.sunnipath.com/issue_view.asp?HD=1&ID=4208&CATE=42

refer back to article 19. Sunan Abu Dawud, Book 38, #4414

refer back to article 20. http://qa.sunnipath.com/issue_view.asp?HD=1&ID=4208&CATE=42

refer back to article 21. Sahih Muslim, #1695

refer back to article 22. Sunan Abu Dawud

refer back to article 23. Sunan Abu Dawud, Book 38, #4414

refer back to article 24. Sunan Abu Dawud, Book 38, #4420

refer back to article 25. http://www.islamqa.com/en/ref/27113/confession

refer back to article 26. http://www.islamqa.com/en/ref/23485

refer back to article 27. http://qa.sunnipath.com/issue_view.asp?HD=3&ID=1549&CATE=389

refer back to article 28. Sahih Muslim, #2577

refer back to article 29. Sahih al-Jami, #4338

refer back to article 30. Sahih al-Jami, #3008

refer back to article 31. http://qa.sunnipath.com/issue_view.asp?HD=1&ID=4208&CATE=42

refer back to article 32. Sunan Abu Dawud, Book 38, #4405

refer back to article 33. http://www.tariqramadan.com/spip.php?article264

refer back to article 34. http://qa.sunnipath.com/issue_view.asp?HD=3&ID=1550&CATE=389

refer back to article 35. http://islamtoday.com/show_detail_section.cfm?q_id=158&main_cat_id=6

refer back to article 36. Tafsir ibn Kathir, commentary on chapter 24

refer back to article 37. Ibid.; all quotes from the above story are taken from Tafsir ibn Kathir

refer back to article 38. http://qa.sunnipath.com/issue_view.asp?HD=3&ID=1550&CATE=389