Laws of Religion

Laws of Islam Concerning Women and Men

 

Forbidden Sexual Acts

 

From Islamic Jurisprudence (fiqh/sharia^§):  The Distinguished Jurist’s Primer of Ibn Rushd, the Risala of al-Shafi‛i and Reliance of the Traveller

 

 

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Contents

 

General principles concerning unlawful sexual intercourse (jurisprudence/fiqh/sharia)

 

Convicting someone of unlawful sexual intercourse (jurisprudence/fiqh/sharia)

 

Punishment of married people for unlawful sexual intercourse (jurisprudence/fiqh/sharia)

 

Punishment of unmarried people for unlawful sexual intercourse (jurisprudence/fiqh/sharia)

 

Slaves and punishment for unlawful sexual intercourse (jurisprudence/fiqh/sharia)

 

Other aspects of unlawful sexual intercourse (jurisprudence/fiqh/sharia)

 

 

General principles concerning unlawful sexual intercourse (jurisprudence/fiqh/sharia). The scholars^** agree that a man is permitted to have sexual intercourse with his wife (recognizing that there are cases in which the marriage is of uncertain legality) or with his slave (a concubine).[1] Al-Shafiʽi says that if a slave is, unknown to him, his sister it is lawful for a man to have intercourse with her until he learns that she is his sister.[2]

 

Reliance of the Traveller says that parents are required to teach their children that at puberty they will become morally responsible for their actions and they must not commit unlawful sexual intercourse (zina^*) or other unlawful actions such as sodomy, theft, consuming alcohol, lying and slander. It is obligatory for a Muslim to have this knowledge.[3] There is no punishment for a person who commits unlawful sexual intercourse and claims that he did not know that it was unlawful, but only if that person grew up in a remote wilderness area or only recently became a Muslim.[4]

 

Imam Dhahabi, an important 13th-14th century Shafi‛i scholar quoted in the English translation of Reliance of the Traveller, says that unlawful sexual intercourse is an enormity^§§.[5] A man who suspects his wife of having sexual intercourse with someone else but takes no action against her also commits an enormity.[6]

 

Convicting someone of unlawful sexual intercourse (jurisprudence/fiqh/sharia). The scholars^** agree that conviction for unlawful sexual intercourse (zina) may be based on a confession or on the testimony of witnesses.[7] Both al-Shafiʽi and Malik say that a single confession suffices for conviction, but Abu Hanifa holds that four confessions at four different times are required.[8] It is agreed that a retraction of the confession reverses the conviction, though al-Shafiʽi says that only repentance removes liability for punishment.[9]

 

For conviction by witnesses, four legally competent witnesses must all give consistent detailed accounts of what they saw of the sex organs making contact during the unlawful sexual intercourse (zina).[10]

 

A claim of rape by a pregnant woman can prevent her punishment for unlawful sexual intercourse. While al-Shafiʽi and Abu Hanifa say that the woman does not have to prove she was raped to avoid such punishment, Malik says that the burden of proof is on her. Such proof could be by showing signs on her body that she was forced or, if she was a virgin, by complaining about the rape while she is still bleeding.[11]

 

 

Punishment of married people for unlawful sexual intercourse (jurisprudence/fiqh/sharia).  The scholars^** agree that the punishment for unlawful sexual intercourse depends upon who the transgressor is. It is generally agreed that the punishment for unlawful sex for a free married Muslim past the age of puberty who has had sexual intercourse within the marriage is death by stoning. Abu Hanifa says that both the partners in the act of unlawful sexual intercourse must be free (not slaves) to invoke death by stoning on either of them.[12] Stoning to death also applies to married non-Muslim adults according to al-Shafiʽi and the Shafiʽi school.[13] Reliance of the Traveller (Shafiʽi school) says that stoning to death for unlawful sexual intercourse applies only when the person is capable of remaining chaste, meaning that he or she has had sexual intercourse with their spouse in a legally valid marriage and is a free, sane person past the age of puberty. The only restriction on when a person may be stoned to death is that a pregnant woman must first give birth and her child be sufficiently nourished by the milk of another woman before the stoning can be done.[14]

 

If the conviction was by confession, the imam will begin the stoning; if it was by testimony of witnesses, then the witnesses will begin the stoning, followed by the imam.[15] Al-Shafiʽi says that the tradition (sunna) of Muhammad requiring stoning of married people guilty of zina is not abrogated by the Qur’an verses calling for lashes rather than stoning (cited previously).[16] While al-Shafiʽi says that a woman is to be put in a pit for stoning, Malik and Abu Hanifa disagree. They all agree that a man is not put in a pit for stoning.[17]

 

 

Punishment of unmarried people for unlawful sexual intercourse (jurisprudence/fiqh/sharia). For a free person who was never married, the punishment for unlawful sexual intercourse is 100 lashes. Malik and al-Shafiʽi add exile to the punishment of lashes; Abu Hanifa does not.[18]

 

According to Reliance of the Traveller, a person who commits unlawful sexual intercourse and who is considered incapable of remaining chaste (not having had sexual intercourse within a valid marriage while sane and past puberty) is subjected to 100 lashes and exiled to 50 miles away for one year.[19]

 

Malik says that lashes are to be applied only on or near the back, while al-Shafiʽi and Abu Hanifa say lashes are applied everywhere on the body except the genitals and the head or face.[20]

 

According to Ibn Rushd, Malik, al-Shafiʽi and Abu Hanifa agree that males are to be stripped of all their clothes before being lashed for unlawful sexual intercourse.[21] However, Reliance of the Traveller (Shafiʽi school) says that a person being lashed is not to be undressed. Reliance of the Traveller also specifies that the lashes are not to be hard and are to be spread out in different places, avoiding vital areas and the face. The lash is to be neither new nor old; if the person is emaciated or sick and not likely to recover, then the lashing is done with a single date palm frond. Lashing is not to be done when it is very hot or very cold, when a person is sick and likely to recover, or when a woman is pregnant or has recently delivered a child and has not yet recovered from the pains of childbirth.[22]

 

 

Slaves and punishment for unlawful sexual intercourse (jurisprudence/fiqh/sharia). In general, it is agreed that the punishment for slaves for unlawful sexual intercourse is 50 lashes.[23]

 

The scholars disagree about whether punishment is applied to a fighter who has sexual intercourse with a female captive taken as booty in war.[24]

 

Full punishment for unlawful sexual intercourse (zina) applies to a person who has such intercourse with someone else’s slave without the permission of the slave’s owner. Malik says that permission of the female slaves owner eliminates any punishment while others say that in such cases punishment is at the discretion of the judge.[25] It is not permitted to loan one’s female slave to another person for the purpose of sexual gratification.[26] Most scholars, including Malik, say that having sexual intercourse with one’s wife’s slave results in the full punishment for zina.[27] There is no punishment for having sex with the slave of a person’s son or daughter, but the person who does this must pay the purchase price for the slave since he has rendered her prohibited to the son for sexual intercourse.[28]

 

 

Other aspects of unlawful sexual intercourse (jurisprudence/fiqh/sharia). Malik, al-Shafiʽi and the Shafiʽi school say that a rapist (who is not the husband or the owner of the female) must pay the woman he raped the amount of her bridal payment (mahr) in addition to being punished according to the law.[29] However, if the intercourse was voluntary on the part of the woman, no mahr is to be paid.[30] Abu Hanifa holds that such payment to the woman is not to be made even in a case of rape; only the legal punishment applies.[31]

 

Most say that there is full punishment for having sex with an employee, though Abu Hanifa says that sex with an employee results in no punishment.[32]

 

When a man has confined a woman, though there is no legal marriage, there is no punishment for sexual intercourse unless they are so closely related such that marriage between them would be prohibited.[33]

 

 

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^*Zina, unlawful sexual intercourse, includes both adultery involving a married person and sexual intercourse between two people who are not married to anyone (though sexual intercourse with one’s female slave is permitted and so is not zina.)

 

^**Islamic scholars disagree on certain points of law based on different methodologies used in deriving the law from the Qur’an and the traditions (sunna) concerning the life of Muhammad and his closest companions, particularly as expressed in the compiled hadiths. There are four major schools of jurisprudence in Sunni Islam: the Maliki, the Hanafi, the Shafi‛i and the Hanbali. These names are derived from the individual scholars considered to have been the founders of each school: Malik, Abu Hanifa, al-Shafi‛i and Ahmad ibn Hanbal, respectively. The source texts we have used to prepare our summaries of Islamic jurisprudence contain the legal views of these different founders and schools, as described at Source Texts Used for Laws of Islam.

 

^§The specific derived laws of fiqh summarized here are often referred to by the more general term sharia law.

 

^§§Enormity:  In Keller’s English translation of Reliance of the Traveller, Imam Dhahabi (an important 13^th-14^th century Shafi‛i scholar) is quoted as listing certain sins as “enormities,” meaning that there is a threat of punishment after death mentioned in the Qur’an or hadiths, a legal penalty is prescribed or the transgressor is accursed by Allah (God) or Muhammad.[34] These “enormities” are the most serious sins and, according to the Qur’an[35]; if they are avoided then a person will be caused by Allah to enter an honorable gate (meaning reward in Paradise after death). According to Imam Dhahabi, committing an “enormity” without knowing that it is unlawful eliminates the guilt, except for denying those religious tenets that are universally known by Muslims.[36]

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Abbreviations used in footnotes:

QR:   Qur’an, with surahs (chapters) and ayahs (verses) numbered as in most modern translations, including those found here, here and here.

DJP:  The Distinguished Jurist’s Primer, by Ibn Rushd, translated by Imran Ahsan Khan Nyazee, published by Garnet Publishing Ltd, Reading, UK. Volume 1, 1994. Volume 2, 1996. Full text online and download for Volume 1 are here and here and for Volume 2 are here and here.

RT:    Reliance of the Traveller: A Classic Manual of Islamic Sacred Law by Ahmad ibn Naqib al-Misri, translated by Nuh Ha Mim Keller, revised edition 1994, published by Amana Publications, Beltsville, Maryland, USA.  Reliance of the Traveller can be found here and here.

SR:    al-Shafi‛i’s Risala: Treatise on the Foundations of Islamic Jurisprudence, translated by Majid Khadduri, Second Edition, published by The Islamic Texts Society.

●  The sources cited are described on the page Source Texts Used for Laws of Islam.