Comparative Criminal Law and Enforcement: Islam

Islamic law denotes five "Qur'anic offenses," which are regarded as offenses directly against Allah and which compel a specific punishment. Theoretically, these offenses find their source in the Qur'an, although many aspects are post-Qur'anic developments.

Unlawful intercourse (z_ina). Unlawful intercourse consists in having sexual relations with any person not one's lawful spouse or concubine. Thus, if a man marries and has intercourse with a woman not legally capable of becoming his wife, such as a near relative, a fifth wife while four are still living, or a girl below the age of puberty, he violates the prohibition against unlawful intercourse. Necrophilia is included in the prohibition. There is, however, no prohibition against concubinage. Zina should not be confused with the Western notion of adultery as a violation of the marital contract between two persons. In Islam, adultery is not a legal basis for divorce.

The punishment for zina is either death by stoning or lashes. Some Hanbali jurists require flogging and stoning for the offender. The penalty of death by stoning is not in the Qur'an but was inflicted as punishment by the first caliphs who succeeded Muhammad. According to some scholars, stoning was adopted from Mosaic law and was incorporated into Islamic law by a later tradition in which Muhammad was said to have approved the practice. Stoning can only be inflicted on one who has been convicted of unlawful intercourse, is not a minor, is mentally competent, is free, and has already had lawful sexual intercourse in marriage. For all others, the punishment is one hundred lashes, or fifty lashes if the convicted person is a slave. In some cases, banishment is added as a penalty.

As with most hadd offenses, an action for zina must normally be brought against an accused within one month of the offense. The proof must affirmatively show not only that unlawful intercourse took place but also that the act was voluntary. Islamic law requires either the testimony of four eyewitnesses, instead of the normal two, or the confession of the accused. Some jurists require that the confession must be repeated four times. The pregnancy of an unmarried woman can be sufficient proof against her.

The witnesses must be competent adult male Muslims. Non-Muslims may testify in cases in which a non-Muslim is charged with zina. The witnesses must testify that they all saw the same act of unlawful intercourse at the same time. The magistrate who receives their testimony is charged with examining the witnesses assiduously, for they must not only testify to the fact of intercourse, but also to its unlawfulness—that is, they must testify that the parties were not married to each other and that the act was voluntary.

Many jurists hold that it is meritorious for witnesses to refrain from coming forward so that the accused can settle the offenses privately with God. An additional incentive for silence lies in the fact that if the accusation is dismissed, those who testified are subject to the hadd punishment for false accusation of adultery (kadhf ). Even if the case is dismissed for a technical reason, such as the minority of one of the witnesses, all the other witnesses can be charged with false accusation of adultery. If one is convicted by testimony, the four witnesses must be present at the execution and must throw the first stones. Otherwise, the death penalty is not carried out.

Alternatively, one can be convicted of zina by a personal confession. Again, however, the offender is encouraged to be silent and to turn to God privately for forgiveness. If he does confess, a retraction at any time will void the confession and the sentence. The magistrate should give the self-accused every opportunity for retraction. Some opinions hold that if the convicted person attempts to escape from his place of execution, it will be presumed that it is a retraction of his confession and the sentence may no longer be carried out. If one is convicted of multiple counts of adultery, the hadd—whether by stoning or lashes—is satisfied by a single punishment. Any person who is not liable for the hadd punishment for zina because of any of the limitations listed above may still be prosecuted under the criminal law of discretionary punishment, or ta'zir.