Sexual Ethics in Islam (14 page)

4

Prohibited Acts and Forbidden Partners: Illicit Sex in Islamic Jurisprudence

Women have an Islamic right to exemption from criminalization or pun- ishment for consensual adult intercourse.

Asra Nomani, “Islamic Bill of Rights for Women in the Bedroom,” 2005
1

The woman who commits
zina
and the man who commits
zina
, lash each of them one hundred lashes.

Do not let pity deter you in a matter ordered by God, if you believe in God and the Last Day

Qur’an, Surah 24, verse 2

Sex is, paradoxically, both the most private, intimate act humans can undertake and a profoundly social activity. All societies and cultures regulate sexual activity among their members. Certain pairings are permissible, while others are not; some acts are approved, while others are disallowed. Muslims are not alone in making distinctions between what is lawful and unlawful, what is proper and improper. Nor have Muslim societies historically been unique (or uniform) in imposing consequences, including physical chastisement, on those who break the rules. However, although the particular configuration of licit and illicit sexual activities developed by classical Muslim thinkers from prescrip- tions in the Qur’an and
sunnah
shares certain elements with other cultures and traditions, it differs in crucial ways – in particular, in punishing men and women equally for failure to heed the limits.

The Qur’an speaks in scathing terms of sex outside lawful bounds – with a spouse or with what one’s “right hands possess” – as corruption and sin, and repeatedly refers to chastity (literally, protecting one’s genitals) as a virtue for both males and

prohibited acts and forbidden partners 57

females.
2
Zina
, sex between a man and a woman who is neither his wife nor his slave, was the most serious of the sexual trangres- sions described in the Qur’an and treated in the Prophet’s
sunnah
. One critical component of
zina
as elaborated by Muslim thinkers is its consensual nature, although some thinkers catego- rized regular
zina
along with “
zina
by force” (
bi’l-jabr
). The free consent of two individuals to engage in sexual relations was not sufficient or even necessarily relevant to whether sex between them was licit and socially acceptable. Like ancient Near Eastern and Mediterranean codes, Muslim source texts and developed Islamic law held the view that the individual status of and legal relationship between two parties determined whether sex was licit. Were the individuals free or enslaved; married, previously married, or never married; were they male or female?

The particular configuration of lawful and unlawful acts formulated by premodern Muslim jurists does not match cur- rent laws or practices in Muslim-majority societies or among Muslims living in the West. That classical scheme, in keeping with common practice in the region at the time, accepted (non- consensual) sex with enslaved females, as well as the marriage (without consent) of male and female minors by fathers; laws today forbid both slavery and marriage of minors (although the definition of minority varies greatly).
3
The view “that consent makes a difference to whether some sexual activity is seen as immoral or not”
4
is widely shared. Most Muslims who espouse the view that consent matters do not phrase their views as categorically as American Muslim writer Asra Nomani does in stating that “consensual adult sex” should not be punishable. Rather, consent is often seen as necessary but not sufficient for sex to be lawful. Classical Muslim views about consent and its relationship, or lack thereof, to lawfulness were unremarkable in the context of broader Near Eastern and Mediterranean late antiquity, where even free women could be treated as sexual property in some sense, and familial participation in the marital arrangements of family members, especially girls, was expected. At the same time, a variety of semi-marital arrangements, including slave concubinage and temporary liaisons, were some- times permissible, allowing some more fluid unions.

58 sexual ethics and islam

Over a thousand years later, legal concubinage no longer exists in the Muslim world, polygamy has been legally restricted in many places, and nation-state bureaucracies have become involved in marriage licensing and registration. At the same time, alternate marriage and marriage-like practices are emerging or re-emerging in various places in the Muslim- majority world. These include
mut‘a
, a form of time-limited marriage approved by Shi‘i law but occasionally engaged in by Sunnis in the West;
zawaj al-misyar
, “marriage in transit,” a type of union which conveys more limited spousal claims than usual and has found approval from some Saudi muftis; and
zawaj ‘urfi
, “customary marriage,” as practiced particularly in Egypt. This last, a religious marriage not registered in accordance with civil law, is similar in numerous respects to the practice common in some European immigrant and African-American commun- ities of marrying in only religious ceremonies without seeking civil recognition. The rise in these informal marriage practices, as well as what is likely to be a rising incidence of sex outside of marriage, is attributable in part to a large and increasing gap between sexual maturity, beginning at puberty, and social matur- ity, the age at which it is socially reasonable to get married. This does not mean that illicit sex (premarital intercourse, extramar- ital liaisons, etc.) was unknown in the past or is not practiced in Muslim majority societies today, often without discovery or punishment.
5

The rising age of marriage for both male and female Muslims in numerous societies means that alternate forms of sexual liaisons are gaining ground de facto, notwithstanding the continuing importance of female virginity in many commun- ities. Yet there is a general unwillingness on the part of many Muslims to confront the existence of sex outside of marriage. This reluctance is due in part to a well-integrated principle of comportment that forbids broadcasting one’s own sins and requires covering up sins of others. It does not allow for serious consideration of how Muslims’ sexual practices have shifted, how modern notions about the importance of consent makes a flat prohibition on all non-marital sex seem less sure to some Western Muslims, and how practical matters such as the

prohibited acts and forbidden partners 59

intersections between religious and civil marriage are to be addressed in modern nation-states, especially those where Muslims are a minority.

As a prelude to discussing contemporary Muslim think- ing on non-marital sex, this chapter will address the classical definitions of licit and illicit behavior, and the rewards and punishments associated with each. The regulatory attention of the classical jurists was not limited to illicit activities but also encompassed even lawful sexual activity, such as between spouses.
6
In notable contrast to the hyper-attention on the imposition of penalties for illicit sex in some Muslim contexts today, where the enforcement of
hadd
punishments stands as a symbol of Islamic authenticity, the response of premodern jurists to unlawful sex was generally pragmatic regulation rather than dogmatic insistence on punishment for offenders. It is clear from both what is explicit and what remains unarticulated in their texts that various types of unlawful sexual activity have always been practiced in Muslim societies. Jurists and judges accepted
hadd
punishments in principle, but – at least in part because the rules of evidence made proving a charge of
zina
no small matter – frequently assumed that instances of illicit sex would go unpunished by human authorities.

Just because
zina
went unpunished did not mean, though, that there were no earthly legal consequences to intercourse outside of marriage. The effects of
zina
were regu- lated as part of the jurists’ broader treatment of Muslims’ sexual behavior, and the legal effects of lawful and unlawful sexual encounters often overlapped. The view that any sexual act merits either “payment or punishment” explains both the requirement of marriage, with dower (or purchase, in the case of a female slave), and the possibility of transmuting punish- ment by treating an impermissible sexual act as a mistake, for which the woman involved would receive compensation in the amount of her fair dower. Such “mistakes” also allow for the imputation of paternity, which illicit relations do not. The boundary (
hadd
) between lawful and unlawful remains unchal- lenged, but in practice, specific acts are not always so neatly categorized.

60 sexual ethics and islam

Protecting chastity: the classical texts

According to Qur’anic passages, hadith narratives, and the works of jurists and exegetes, lawful sex – that is, approved acts between partners who are legally permitted to one another – is good, healthy, and praiseworthy as a divinely approved form of pleasure. Unlawful sex – where the partners are forbidden to one another or, to a lesser extent, the specific acts engaged in are dis- approved
7
– is reprehensible, the cause of social chaos and personal sin, and deserving of earthly punishment as well as divinely wrought chastisement in the hereafter. Several hadith, found in
Sahih Muslim
among other sources, illustrate both the naturalness of sexual desire and the importance of its satisfac- tion only within licit contexts. Muslim presents these accounts of the Prophet’s words and deeds under the heading “He who sees a woman, and his heart is affected, should come to his wife, and should have intercourse with her.” The accounts, reported by Jabir b. ‘Abdullah, state that Muhammad “saw a woman, and so he came to his wife, Zainab, as she was tanning a leather and had sexual intercourse with her.” In the most detailed report, the Prophet subsequently advises his Companions that “When a woman fascinates any one of you and she captivates his heart, he should go to his wife and have an intercourse with her, for it would repel what he feels.”
8

From this account and other similar narrations scholars have deduced that a man is not to blame for becoming aroused by a woman to whom he has no lawful sexual access – provided he does not deliberately seek out such stimulus; another relevant piece of advice attributed to the Prophet states, translated freely, “The first look is free, but the second one will cost you.”
9
Seeking satisfaction due to that arousal is not only permissible, but rec- ommended: a man in that situation should follow the Prophet’s example and return home to have intercourse with his wife. The Prophet is also reported to have said that a man will be rewarded by God for acting thus. When questioned by an incredulous companion as to why God would reward him for such a pleasur- able activity, the Prophet responded by asking whether God would punish him for satisfying his desire unlawfully. Just as the

prohibited acts and forbidden partners 61

illicit satisfaction of desire is punishable, Muhammad explained, so the lawful satisfaction of desire is rewarded. Female desire, it must be noted, makes no appearance in these traditions, which presume both the wife’s availability and her acquiescence, not to mention her interchangeability: desire sparked by one woman could be easily satisfied with another.

Islamic definitions of lawful and unlawful sexual activ- ity shared a double-standard governing male and female sexual behavior with other ancient legal systems (Greek, Roman, and biblical). A Muslim male could have more than one licit partner

• up to four wives and an unlimited number of slave concubines (and for Shi‘i men, an unlimited number of
  mut‘a
  , or tempo- rary, wives) – while a Muslim female could only be sexually lawful to one man at a time, either her husband or, in the case of an unmarried female slave, her master. However, the scope of partners available to men under Islamic law was also restricted in a much more significant way than was the case in these other legal systems. Most obviously, male partners, entirely legal under Greek and Roman (though not biblical) law where the males in question were slaves or social inferiors, were prohibited under Islamic law.
  10
  

  Muslim rules governing sex between men and women were also more stringent in key respects than those of other ancient societies, which tended to punish men for sexual contact only with virgin or married women whose sexuality was under the control of a father or husband. Under ancient Greek law, “The only officially forbidden fruit was the wife of another citizen.”
  11
  Roman law likewise made a distinction for married men between being unfaithful and committing adultery; the more serious offense of adultery involved another man’s wife.
  12
  Under rabbinic law, moral constraints governed the behavior of divorced or widowed women, but only offenses by or involving virgin, betrothed, or married women were punishable.
  13
  For a Muslim man, by contrast, any consensual sex with a woman who was neither his wife nor his
  own
  female slave constituted
  zina
  , the form of illicit sexual activity with which the classical Muslim jurists were most concerned. (There seems to have been some early tolerance for the lending of female slaves, but it was
  

  62 sexual ethics and islam
  

  ultimately not permitted by the established legal tradition.) Although a Muslim male’s partners may have been numerically unlimited in theory, for non-elite men, without the resources to own slaves or marry a second wife, monogamy would have been the norm rather than the exception.
  

  Despite the double standard with regard to the number of lawful partners men and women could have, as well as how much say they had in the initiation, continuation, and termin- ation of those legal ties, there was no difference with regard to punishment for sex outside those ties. The Qur’an specifies one hundred lashes each for both the male and female participants in
  zina
  , if free, with half as many for enslaved offenders.
  14
  According to precedent attributed to the Prophet Muhammad, only enslaved or never-married offenders are to be lashed; free offenders who are or have been married
  15
  are subject to the harsher penalty of lapidation, stoning to death – a biblical punishment for a different sexual offense.
  16
  Islamic law links the more severe punishment of stoning to marital status rather than gender. Thus, if a never-married woman committed
  zina
  with a married or previously married man, she would be flogged and he would be stoned. The reverse would be the case if the woman was or had been married and the man was a bachelor. The jurists applied these criteria unfailingly, never suggesting that women should be subjected to harsher punishment than men for the same offense, or that a man’s offense was lessened if the woman he bedded was not someone else’s wife or betrothed.
  

  Though these
  hadd
  punishments are clearly spelled out, the imposition of either penalty for
  zina
  requires stringent proof, generally either by witnesses or confession. The Qur’an requires the testimony of four eyewitnesses
  17
  whom the jurists specify must be adult, male, Muslim, and able to testify to having seen the actual act of penetration; describing what the testimony must include, they use analogies such as a key going into a lock, or a pen dipping into an inkpot. Harsh punishment is to be meted out to those who accuse a woman of unlawful intercourse but cannot produce three additional witnesses to her crime. Such accusers become themselves guilty of the
  hadd
  crime of slander (
  qadhf
  ) and are liable to flogging – eighty lashes, according to Surah 24,
  

  prohibited acts and forbidden partners 63
  

  verse 4, almost as severe as what is specified for the crime of
  zina
  itself. Confession can also prove a charge of
  zina
  . Although the Qur’an does not mention this form of proof, a number of
  hadith
  report the Prophet punishing offenders on the basis of their own confessions – which, tradition makes clear, he discouraged them from making.
  18
  For the most part, the tradition literature and the jurists’ writings demonstrate a real aversion to both accusation – at least some of which can be attributed to the Qur’anic punish- ment for unsupported charges – and confession.
  

  Proof by witnessing or confession is equally applicable to men and women accused of
  zina
  , but one doctrine places women disproportionately in jeopardy of punishment. The dominant opinion of the Maliki school of legal thought is that pregnancy in a woman who is not currently married (or in her waiting period from divorce or widowhood) is
  prima facie
  evi- dence of
  zina
  . This view is not shared by the other legal schools, which hold that pregnancy does not provide the necessary degree of certainty that an unlawful act was committed. Even among the Malikis, the impact of the view that pregnancy is proof of
  zina
  was muted by the acceptance of a lengthy gestation period, up to four or five years, during which a pregnancy could be attributed to a previous husband. In fact, jurists and judges in premodern Muslim societies used a variety of legal maneuvers and excuses to thwart application of
  hadd
  penalties, even where the parties acknowledged having intercourse outside of a valid marriage. Because of the seriousness of
  hadd
  crimes and the severity of the penalties, it became an important legal principle that in cases of doubt,
  hadd
  punishments were to be dropped in favor of milder discretionary punishments. Two statements attributed to the Prophet favor this dropping of the
  hadd
  :“Avoid punishments so long as there is room for avoiding them” and “Keep the Muslims away from punishments wherever possible. If there is any way out for an offender to escape punishment acquit him. It is better for a judge to err in acquittal than in con- viction.”
  19
  

  The jurists’ strict attention to seemingly unattainable evidentiary standards also firmly placed responsibility for judgment and punishment for
  zina
  squarely in the hands of the
  

  64 sexual ethics and islam
  

  public authority, rather than making it a matter for private ret- ribution.
  20
  Numerous hadith found in both Bukhari and Muslim make clear that even if a man were to find his wife with another man, he could not take the law into his own hands, but rather would have to bring three additional witnesses to her act before the public authority could judge her offense. What about the case of a husband who witnesses his wife’s adultery but cannot substantiate his claim with the necessary additional wit- nesses? In such a situation, the most he can do is deny paternity of a child his wife is carrying or has delivered, by proceeding with a series of mutual oaths, set forth in the verses directly following those on punishment for
  zina
  .
  21
  In the Qur’anic pro- cedure known as
  li‘an
  , he can disavow the paternity of his wife’s child without being subject to the usual, nearly impossible to satisfy, requirements of proof for
  zina.
  However, she can defend herself against his accusations by taking four oaths that she is not guilty; then, their marriage will be dissolved and she will not be liable to punishment, but she will have sole care of the child – just as if it had been born from
  zina
  . Although a child born of
  zina
  is not himself or herself guilty of any wrongdoing, the exist- ence of such a child is threatening to the stability of the system governing kinship and social interaction.
  

  Marital intercourse is the paradigmatic sexual act in Islamic law. Its lawful nature does not exempt it from legal scrutiny; if anything, the opposite is the case. Sex within marriage has a variety of financial, social, and ritual consequences that require jurisprudential regulation. The first act of sexual inter- course in marriage obliges the husband to pay the wife her full dower, removes her opportunity to have the marriage dissolved on the basis of his impotence, creates kin prohibitions – that is, barriers which prevent each spouse from marrying certain close relatives of the other in the future, and obliges the wife to observe a waiting period if she is widowed or divorced. Every act of marital intercourse in which penetration occurs requires each spouse to complete a major ablution (
  ghusl
  ) to re-establish ritual purity before he or she can pray. This list does not exhaust the legal consequences of marital sex, but it provides a starting point for considering how illicit sex compares in its legal effects.
  22
  

  prohibited acts and forbidden partners 65
  

  Zina
  differs in two crucial ways from lawful marital intercourse, aside from the issue of punishment. First, an obli- gation to pay dower never results from consensual unions out- side of marriage. Second, any offspring of
  zina
  have no legal father. These twin issues of dower and paternal affiliation are the primary consequences of lawful sex between married partners (and exist, in modified form, in liaisons between owners and their concubines as well). There is one area, on the other hand, where it is uniformly agreed that
  zina
  does not differ from lawful marital sex: intercourse between forbidden partners makes ablutions necessary just as it does between spouses. When it comes to determining the other legal consequences of
  zina
  , however, the jurists disagree among themselves. Yet despite this disagreement, it is striking that they attend primarily to deter- mining where and whether parallels between
  zina
  and marital intercourse exist, debating extensively over whether, for example, kin prohibitions are created by an illicit sexual encounter as they would be by marriage.
  

  In making arguments about this issue, by and large the jurists do not discuss punishment at all, merely the question of whether kin prohibitions are established. To take one hypothet- ical case: does a man’s wife become forbidden to him because he committed
  zina
  with her mother (as she would become if he consummated a marriage with her mother, even accidentally)? Since the man is married and thus, by juristic consensus, liable to be stoned to death for his offense, the issue of whether his wife becomes forbidden to him should be irrelevant. It does not matter if a man sentenced to death may or may not have inter- course with his wife, since carrying out the
  hadd
  punishment renders the issue moot. However, the ways in which jurists of all legal schools discussed this issue demonstrates that the
  hadd
  penalty was not their primary concern; in fact, the query essen- tially presupposes that the
  hadd
  will not be applied. Only if this is assumed does the question of whether the man may continue a marital relationship with his wife have any importance. This brief example shows that the jurists persisted in applying the traditional legal consequences of marital intercourse to illicit sexual acts as often as possible, in an attempt to encompass them
  

  66 sexual ethics and islam
  

  legally, and reduce their power to cause social havoc. Even when they decided that the same consequences did not apply, it was with these ordinary effects of unlawful sex that they largely con- cerned themselves, rather than with punishing offenders.
  

  It is tempting for someone who wants to minimize the importance of
  hadd
  punishments to emphasize the jurists’ matter-of-fact treatment of illicit sexual acts, but their detail- oriented attention to the banal consequences of otherwise forbidden sexual encounters should not be mistaken for tacit approval of those acts. The jurists’ approach to dealing with sexual transgressions does not mean they did not, at other times, condemn them in the strongest possible terms. The pragmatic regulation of sex did not exist only with regard to acts that some liberals might find tolerable today, such as consensual sex between unmarried adults. Rather, the same pragmatic approach extended to acts agreed to be horrific, including rape. The jurists were not giving a wink-and-a-nod approval to rape when they discussed whether a raped female needed to perform ablution after forced intercourse (the rapist, all agreed, had to do so before he could pray).
  23
  While the rape may have been both horrifying and deserving of punishment, the jurists had a particular concern and objective and were not distracted from it. This pragmatic, technical, legalistic approach to the issues in question does, at times, seem to lose sight of the big picture. However, it is also helpful to keep in mind the jurists’ assump- tion that whatever sexual sin individuals might have committed, they will continue to live, and pray, as Muslims.
  

  Paternity, legal fictions, and non-marital sex in contemporary Muslim thought
  

  A widely cited account set during the Prophet’s lifetime illum- inates the continual tension between punishment and regu- lation as responses to unlawful sexual activity. In this narrative, two different men assert that a particular youth, born to a female slave, is of their own lineage. The son of the slave-woman’s owner affirms that the young man is his brother, “born on his
  

  prohibited acts and forbidden partners 67
  

  [father’s] bed,” the result of a legitimate union between owner and slave. The man who asserts this is the brother of the Prophet’s wife Sawda, the slave-owner in question was her father. Another man declares that his own brother, since deceased, claimed paternity of the youth, the result of an illicit affair with the slave. The Prophet, so the story goes, attributed paternity to the slave-owner, Sawda’s father, famously stating: “The child belongs to the bed, and the adulterer (
  ‘ahir
  ) is to be stoned.”
  24
  However, apparently noticing a family resemblance between the other claimant and the young man, the Prophet told Sawda to screen herself from the youth.