Sexual Ethics in Islam (15 page)

• In part, this anecdote is a reaffirmation of basic legal norms governing sexual morality. Paternity is established by marriage or, in the case of a slave concubine, ownership. By affirming that the slave-owner was indeed the legal father of the youth borne by his female slave, the verdict rendered by the Prophet ensured the stability of this system for attributing paternity and reiterated that sexual transgressions would be severely punished.
  

  There is another level to this tale, though, found in the Prophet’s order to his wife Sawda to screen herself from the youth, despite his own verdict declaring the youth legally her brother, and therefore among those relatives in front of whom she could appear. The Prophet’s command represents an acknowledgement that this particular attribution of paternity was a legal fiction. The appearance of this story in works of jurisprudence represents an acknowledgement by the jurists that their regulations also at times create legal fictions that attempt to normalize illicit sexual activity.
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  The issue of legal fictions surrounding paternity remains a complicated issue in the present day and age, as a recent Egyptian case demonstrates. Hind al-Hinawwy bore a child, claiming that Ahmed al-Fishawy was the father and that he had married her in a widespread but largely clandestine phe- nomenon known as
  zawaj ‘urfi
  , or customary marriage.
  Zawaj ‘urfi
  is usually kept secret from parents, and remains completely outside the bureaucratic channels of the Egyptian nation-state. Nonetheless, if there are sufficient witnesses, some scholars
  

  68 sexual ethics and islam
  

  accept that it meets the minimal requirements for a valid mar- riage under those interpretations of Islamic law where a bride is not required to be represented by a guardian. Al-Hinawwy’s putative husband, a well-known actor, denied the marriage and rejected paternity of the child. The mother’s request for DNA testing to allow her to press her claim of paternity raises a crucial question with implications far beyond her individual case: if she cannot prove the marriage, is there valid paternity even if the test results point to the man she claims sired the child? In classical jurisprudence, there is no necessary relationship between bio- logical paternity and legal paternity.
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  If a child were to be from
  zina
  , no acknowledgement from either mother or biological father can establish legal paternity for the child involved. What is at stake here is not whether or not the woman could be punished for
  zina
  – Egypt does not prosecute
  zina
  , and even if it did, whether or not the man’s claim that there was no valid marriage is accepted, there are certainly grounds for a claim of mistake (
  shubha
  ) on her part which would prevent conviction for
  zina
  . Rather, the issue was whether the child’s alleged father could be forced to take paternal responsibility for the child, as the mother demanded.
  

  This case would, for a variety of reasons, likely be treated as
  shubha
  , a mistake, which conveys paternal affiliation. But the use of DNA testing to link legal paternity with biological father- hood raises a number of difficult questions that women who have hailed this case as a step for sexual parity must address. In some respects, DNA as proof of paternity is analogous to physi- ognomy used in early Muslim communities to differentiate among various claimants (in cases of women who remarried before observing proper waiting periods, etc.). However, as the case of Sawda’s half-brother shows, evidence gathered in that fashion was insufficient to override a legal claim or to establish a legal tie where none existed. Does the shift in technology with the ready availability of DNA testing alter this dynamic? And if so, is it a good thing?
  

  One consideration is that if paternity testing becomes a standard practice in cases of dispute, it would substantially alter the existing legal dynamics that set a very high bar for accusing
  

  prohibited acts and forbidden partners 69
  

  women of being unfaithful.
  27
  In the time of the Prophet and subsequent centuries, jealous and suspicious husbands had few avenues to pursue without irremediable consequences. Men who called into question their wives’ chastity, by imputing ille- gitimacy to children they bore, either had to disavow such chil- dren formally through the virtually defunct mechanism of mutual cursing (
  li‘an
  ), thus permanently ending their mar- riages, or to withhold any accusations and refrain from any defamatory speculation. If a man could order DNA testing on his child without automatically dissolving his marriage, it would change the balance of rights and duties in unexpected ways.
  

  The notion of checking for compliance with paternity would fundamentally violate the “don’t ask, don’t tell” principle that is deeply influential in Muslim ethical discussions and social practice, sometimes for better, sometimes for worse. Ebrahim Moosa, writing about the offspring of
  zina
  , makes a point that is more broadly valid: “juristic ethics discourages any such probing that may produce incriminating evidence that delegitimizes the child.”
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  Despite the discouraging of this probing, could a woman be prosecuted for
  zina
  if found to have borne a child to a man other than her husband? What about an unmarried woman? Would DNA evidence count in place of the usually required wit- nesses to the sexual act? Answers to these questions must reflect the entire range of consequences to tinkering with some portion of the system. If DNA were considered proof, then one could argue that in cases where a woman is prosecuted for
  zina
  on the basis of pregnancy, any man she names should be tested as well, and prosecuted if DNA results show his paternity. If evidence of the result, rather than the act, is all that is required, then the man is just as liable to prosecution. It could be that the acceptance of DNA evidence would be of benefit, but the full range of conse- quences must be considered, lest the unintended effects prove far worse for women than the status quo.
  

  The debate around this Egyptian case raises compelling issues beyond that of DNA testing. First, of course, is the com- plicated situation that arises from a mixed system, where classi- cal legal models and doctrines both converge and conflict with a civil judiciary. Second is the social double-standard that ascribes
  

  70 sexual ethics and islam
  

  far more severe consequences to females than to males for breaches of chastity norms, even when the legal strictures gov- erning their sexual contact outside of marriage are exactly the same. Third, although the dynamics of
  zawaj ‘urfi
  are specific to Egypt, it is but one of several flourishing types of quasi-marriage through which couples seek to legitimize their sexual unions religiously while avoiding the full burden of mutual obligations
  

• social, financial, legal, and sometimes familial – that come with fully recognized, civilly registered marriages.
  

Muslims who contract
zawaj ‘urfi
are generally seeking to engage in sex without the expenses and complications of civil marriage while avoiding the sin of commission of
zina
. In the Egyptian case, the costs are not related to getting married per se, but rather to the social expectations of what a groom of a certain class will be able to provide for his bride at the time of marriage, the most significant being “key money” – effectively, a substan- tial down payment for housing. These financial expectations are one factor leading to the delay in marriages, and thus the sense of needing interim sexual outlets. The specific circumstances are different elsewhere, but in many Muslim communities later age at marriage, due in part to the increased importance of post- secondary education, has led to new challenges for Muslims who want to adhere to accepted regulations surrounding sexual con- duct while at the same time having difficulties suppressing their sexual drives for a decade or more after puberty. Modern shifts in marriage patterns, however, are not the only significant change. Equally or more important is a broad shift in sensibilities to a view of sex as an activity that is primarily about the mutual con- sent and individual attachment of the persons involved. This perspective is particularly prevalent among Muslims living as minorities in societies such as the United States.

In her “Islamic Bill of Rights for Women in the Bed- room” (the successor to her widely circulated, and generally well received, “Islamic Bill of Rights for Women in the Mosque”), activist, author, and self-identified single mother Asra Nomani declares, as the eighth of ten items, that “Women have an Islamic right to exemption from criminalization or punishment for consensual adult intercourse.”
29
Nomani claims as an “Islamic

prohibited acts and forbidden partners 71

right”something that contradicts Qur’an,
sunnah
, and centuries of jurisprudential consensus. Yet her statement is worth con- sidering, rather than rejecting out of hand, as it illustrates important tendencies in contemporary Muslim discourse. Those who are not ‘ulama increasingly make authoritative claims about Islam. Where those who are not necessarily any better trained than Nomani make claims that their audience views as “traditional,” the claims tend to be accepted without the same level of scrutiny. Nomani’s strategic choice to argue on the basis of conformity to Islam is representative of much modern discussion, even if the specific claim she makes is in blatant opposition to scholarly and popular consensus.
30
Finally, Nomani’s underlying assumption that the consensual nature of a sexual relationship is relevant to whether it is, or should be, sub- ject to censure would not have been accepted by the classical jurists, but even those modern ‘ulama who would disdain Nomani’s characterization of the “Islamic” position on sex out- side of marriage place more stress on consent than their predeces- sors (even if it is usually consent to marriage they are considering, rather than consent to sex outside its bounds). Nomani’s state- ment crystallizes a widespread but largely inchoate sentiment among many contemporary Muslims: consent matters.
31

Nomani’s view on non-marital intercourse (note that it seems to be irrelevant, from her perspective, whether the parties involved are married to other individuals) reflects a broader social shift. Thus, commenting on an article that appeared on Muslim WakeUp, one self-identified American Muslim wrote:

Many Muslims at the mosque I attend believe that sex out- side of marriage is wrong. Many Muslims don’t even date (not in the American way at least) in order to avoid pre- marital sex. Personally, I wouldn’t be so quick to say sex outside of marriage is wrong, for two reasons. First, other than marriage, there was one other sexual relationship that was allowed in Islamic Law, and that’s slave concubinage. Second, although I, personally, believe that one night stands and casual sex are wrong (not to mention rape), what about sex in committed relationships that aren’t

72 sexual ethics and islam

marriages? Is that
haram
? I’m sure that slave concubinage would disgust a lot of Americans, given that slave owners were allowed to have sex with their slaves with or without their consent. But if this is allowed in Islamic Law, how could sex by mutual consent in committed relationships in which both the man and the woman love and respect each other, but are not married, be
haram
? That question repre- sents my struggle. I’m not arguing that such a relationship is
halal
. My honest answer to that question is I don’t know whether it’s
halal
or
haram
. But I do suggest not being so quick to call it
haram
. Perhaps it’s a question that requires a fatwa.
32

This statement from a convert reflects a combination of defer- ence to jurisprudence combined with an assessment of how its rules (such as slave concubinage) diverge from his or her per- sonal beliefs. The author accepts the basic validity of concepts such as
haram
and
halal
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and seems to respect legal authority when she suggests that “a fatwa” might be required. At the same time she is unaware that there is a very clear established answer to whether “sex by mutual consent in committed relationships in which both the man and the woman love and respect each other but are not married” is absolutely unlawful. What this author does not do is suggest that, in light of new perspectives (e.g., finding slave concubinage disgusting), the question of lawful and permitted should be re-evaluated.

Conclusion

It is obvious that the classical model of Islamic sexual ethics no longer applies in several critical respects. Yet in order to begin to think about how a more viable and equitable ethics of sex might be developed, Muslims must grapple actively with the centrality of sex and sexuality to communal life. In the U.S. and Europe especially, but not exclusively (as the Egyptian
zawaj ‘urfi
case demonstrates), Muslims are facing a crisis of sexual morality. One alternative is to push for complete adherence to classical

prohibited acts and forbidden partners 73

normative standards of relating to members of the opposite sex.
34
Some communities and families manage to enforce a sem- blance of segregation, but it is unlikely to succeed on a large scale. Even in the medieval Muslim world, strict observance of gender segregation was practiced exclusively by an elite. Today, in societies such as Saudi Arabia, strict gender segregation is under siege; in the U.S. or the U.K. it exists only on the fringes of the Muslim populace. Gender segregation, of course, does not by itself prohibit all illicit sex, and gender mixing, despite some alarmist projections, does not mean that illicit sex will transpire. More than the shifting practice, it seems to me that there is a divide at the level of ideas and ideals between contemporary conventional wisdom among Muslims, especially those living in the West, and classical formulations of sexual ethics. The fear, of course, is that discarding the established legal rules for conduct will leave Muslims without any guidance. Is there a way to move past patriarchal and sexist limitations of both traditional and contemporary double-standards while acknowledging that there are, and need to be, boundaries to sexual relationships?