May 16, 2010

Fornication, Adultery or Zina in Islam

How Islam Views Adultery

Name of Counsellor: Ahmad Kutty, IOL Shari`ah Researchers

Wa`alaykum As-Salamu wa Rahmatullahi wa Barakatuh.
In the Name of Allah, Most Gracious, Most Merciful.
All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.
Dear brother in Islam, we would like to thank you for the great confidence you place in us, and we implore Allah Almighty to help us serve His cause and render our work for His Sake.
Islam has taken a firm and decisive stance against Zina (fornication or adultery). Allah, the Almighty, commands in explicit and unequivocal words:
(And come not near unto adultery. Lo! it is an abomination and an evil way) (Al-Isra’ 17: 32).

Thus, Islam not only prohibits Zina, but also closes all the avenues and means leading to it. This is achieved by prohibiting every step and means leading to stimulating desires, opening ways for illicit sexual relations between men and women, and promoting indecency and obscenity.

In his response to your question, Sheikh Ahmad Kutty, a senior lecturer and Islamic scholar at the Islamic Institute of Toronto, Ontario, Canada, states:
Adultery in Islam is one of the most heinous and deadliest of sins. Its enormity can be gauged from the fact that it has often been conjoined in the Qur’an with the gravest of all sins: shirk or associating partners with Allah.

The enormity of this sin is no small measure due to its dire consequences affecting individuals, families, and societies. Among these are that it entails infidelity and erodes the trust and tranquility that are the foundations of a fulfilling family life; it dissipates one’s energies; it undermines peace at home; it corrodes the purity of one’s soul and hence destroys one’s faith; finally, it exposes the person to the wrath of Allah, thus resulting in eternal damnation.

It is no wonder then that Allah and His Messenger have sounded dire warnings against adultery in so many ways. To list only a few instances:

Allah says in the Qur’an,
(And come not near unto adultery. Lo! it is an abomination and an evil way) (Al-Isra’ 17: 32).

(And the servants of the Beneficent) are those who do not invoke another god with Allah, and who do not…commit fornication/adultery, for whoever does that shall receive the penalty; for him shall the torment be doubled on the day of resurrection, and therein he shall abide forever, disgraced, save him who repents and believes and does good works; those, Allah shall change their misdeeds into good works. And Allah is Forgiving, Compassionate) (Al-Furqan: 68-70).

The Prophet (peace and blessings be upon him) said, “Whoever guarantees me that he will guard his chastity, I will guarantee him Paradise” (Al-Bukhari).

Abu Hurayrah reports that the Messenger of Allah said, “No one commits adultery while still remaining a believer, for faith is more precious unto Allah than such an evil act!” In another version, it is stated, “When a person commits adultery he casts away from his neck the bond that ties him to Islam; if, however, he repents, Allah will accept his repentance” (Al-Bukhari, Muslim, Abu Dawud, An-Nisa’i and others).

The Prophet (peace and blessings be upon him) further said: “[Under Islamic laws in an Islamic state] It is not lawful to shed the blood of a Muslim except for one of three sins: a married person committing fornication, and in just retribution for premeditated murder, and [for sin of treason involving] a person renouncing Islam, and thus leaving the community [to join the enemy camp in order to wage war against the faithful].” (Al-Bukhari, Muslim, Abu Dawud, Tirmidhi, and An-Nasa’i)

During his ascension, the Prophet (peace and blessings be upon him) was escorted by Jibreel and shown different types of punishments meted out to those guilty of various major offenses. While recounting the various scenes shown to him, he said, “Then Jibreel took me and we passed by a group of people with terribly inflated bodies emitting worst foul smells just like that of open sewers; when I enquired who they were, he replied, ‘These are those who commit adultery!’” (Ibn Khuzaymah)

The Prophet (peace and blessings be upon him) said: “Faith is like a shirt that Allah places on those He chooses; but whoever commits adultery his shirt will be taken off from him; if he were to repent sincerely, Allah will place it back on him.” (Al-Bayhaqi)

“There are three types of sinners that Allah will not speak to on the Day of Resurrection; neither He will purify them nor will He even look at them; rather they will suffer severe punishment: an older person who commits adultery, a king or ruler who lies to his subjects, and a poor person who acts arrogantly!” (Muslim and An-Nasa’i)

“When adultery becomes rampant in a nation Allah will expose them to His chastisement.” (Abu Ya`la)

“When promiscuous behavior becomes rampant in a nation, Allah will send upon them such (strange) diseases that their own ancestors never heard of.” (At-Tabarani)

“There are seven categories of people who will be granted protection under the shade of Allah on the Day when there is no other shade;… among them is a young person who is seduced by a woman of great beauty and wealth and yet he rejected her advances saying ‘I fear Allah!’” (Al-Bukhari and Muslim)

The Prophet (peace and blessings be upon him) said, “O mankind! Beware of fornication/adultery for it entails six dire consequences: three of them relating to this world and three to the next world. As for the three that are related to this world, they are the following: it removes the glow of one’s face, brings poverty, and reduces the life-span. As for its dire consequences in the next world they are: it brings down the wrath of Allah upon the person, subjects him to terrible reckoning, and finally casts him in hell-fire” (Al-Bayhaqi).

Excerpted, with slight modifications, from:
Given the above, it is to be noted that the punishment specified for an unmarried person guilty of fornication in the Shari`ah is 100. In the very beginning of Surat An-Nur, it is stated that: (The woman and the man guilty of adultery or fornication,- flog each of them with a hundred stripes: Let not compassion move you in their case, in a matter prescribed by Allah, if ye believe in Allah and the Last Day: and let a party of the Believers witness their punishment) (An-Nur 24: 2).
As for the punishment specified in the Shari`ah for the married adulterer or adulteress, it is stoning to death. In the Kuwaiti Encyclopedia of Islamic Jurisprudence, we read the following:
Ibn Qudamah wrote: “Muslim jurists are unanimous on the fact stoning to death is a specified punishment for married adulterer and adulteress. The punishment is recorded in number of traditions and the practice of the Prophet (peace and blessings be upon him) stands as an authentic source supporting it. This is the view held by all Companions, Successors and other Muslim scholars...”

What Islam Says About Zina (Adultery) - By Sheikh Shady Al-Suleiman

SplitmoonProductions March 28, 2010 — What Islam Says about Zina (Adultery).
What are the punishments for Zina (Adultery).
Recorded March 2010 at Lakemba Mosque.

Why Islam Prohibits Fornication and Adultery

llr0cks August 13, 2008 — This video explains the beautiful wisdom of Islam prohibiting having girlfriends, fornication and adultery. It also explains a little bit on the relationship between husband and wives., speaker: Abdur-Raheem Green

Result From PreMarital Sex or Zina 

adilahmedibrahim July 26, 2007 — Ugly Evil Fornication - Hamza Yusuf
illegal, immoral evil sex

Islamic Solution to Adultery and Fornication

shar3ooob December 08, 2008

Fornicating with a non muslim woman? 
Expert: Abo Muhammed Samir Faid - 11/13/2007

As we all know, fornication is among the worst of all sins that one can commit, however what are islamic views regarding fornicating with a non muslim woman? 

There are many forms of Zina, but what we are addressing here is the highest form. This is adultery, fornication, having sexual intercourse without being married to the person.
Allah (SWT)'s order in the Quran to stay away from Zina.

"And those who invoke not any other god along with Allah, nor kill such life as Allah has forbidden, except for just cause, nor commit illegal sexual intercourse (zina) 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 Allah will change their sins into good deeds, and Allah is Oft Forgiving, Most Merciful." (al-Furqaan #25, ayat #68-70)
"And come not near to unlawful sexual intercourse. Verily, it is a faahishah (a great sin) and an evil way." (Sura Al-Israa # 17 ayah # 32)

Imaam al-Qurtubi (may Allah have mercy on him) said: The ulama said that the phrase And come not near to unlawful sexual intercourse is more eloquent than merely saying Do not commit zinaa, because the meaning is, Do not even come close to zinaa. This means not doing any deed that may get close to zinaa or lead to it, such as being alone with a member of the opposite sex, touching, looking, going to evil places, speaking in a haraam manner to a woman to whom one is not related, thinking about and planning immoral acts, and so on.

"Tell the believing men to lower their gaze (from looking at forbidden things), and protect their private parts (from Zina illegal sexual acts, etc.). That is purer for them. Verily, Allah is All-Aware of what they do.

"And tell the believing women to lower their gaze (from looking at forbidden things), and protect their private parts (from Zina illegal sexual acts, etc.) and not to show off their adornment except only that which is apparent (like palms of hands or one eye or both eyes for necessity to see the way, or outer dress like veil, gloves, head-cover, apron, etc.), and to draw their veils all over Juyubihinna (i.e. their bodies, faces, necks and bosoms, etc.) and not to reveal their adornment except to their husbands, their fathers, their husband's fathers, their sons, their husband's sons, their brothers or their brother's sons, or their sister's sons, or their (Muslim) women (i.e. their sisters in Islam), or the (female) slaves whom their right hands possess, or old male servants who lack vigour, or small children who have no sense of the shame of sex. And let them not stamp their feet so as to reveal what they hide of their adornment. And all of you beg Allah to forgive you all, O believers, that you may be successful." (Sura # 24, Ayat #30 and 31)

Hadith warning against not even coming close to Zina

"Some persons from Banu Hisham entered the house of Asma' daughter of Umays when AbuBakr also entered (and she was at that time his wife). He (AbuBakr) saw it and disapproved of it and he made a mention of that to Allah's Messenger (saaws) and said: I did not see but good only (in my wife). Thereupon Allah's Messenger (saaws) said: Verily Allah has made her immune from all this. Then Allah's Messenger (saaws) stood on the pulpit and said: After this day no man should enter the house of another person in his absence, but only when he is accompanied by one person or two persons." (Sahih Al-Bukhari Book 25, Hadith # 5403)

"Abd-Allaah ibn Masood (RAA) said: I asked the Messenger of Allah (SAW), Which sin is worst in the sight of Allah? He said, To make any rival to Allah, when He has created you. I asked, Then what? He said, To kill your child for fear that he will eat with you. I asked, Then what? He said, To commit zinaa with the wife of your neighbour." (Reported in Sahih Al-Bukhaari, Hadith #492 and In Shaih Muslim, Hadith #90).

"Rasulullah (SAW) explained: If one of you were to be stabbed in the head with a piece of iron it would be better for him than if he were to touch a woman whom it is not permissible for him to touch." (Reported by al-Tabaraani; see also Saheeh al-Jaami, 5045).

This refers to the punishment for touching, so how about worse deeds, such as embracing and kissing, and even worse kinds of illicit activity?

Rasulullah (SAW) said, "Whenever a man is alone with a woman the Devil makes a third." (Al-Tirmidhi 3118, Narrated Umar ibn al-Khattab, Tirmidhi transmitted it as authentic) note: So we should always try not to be alone with a woman who is not mahrum to us and not even go close to Zina.

Repentance from Zina

Ibn Abbaas (RAA) said: There is no major sin if one asks for forgiveness, and there is no minor sin if one persists in repeating it.

So if one wants to repent from having made the great sin of Zina he should remember these 4 things..

1) Do not despair, for Allah the Most Exalted and Glorified said in the Quran "Say: Oh my servants who have transgressed against their souls! Despair not of the mercy of Allah, for Allah forgives all sins; for He is oft-forgiving, most merciful." [Surah 39, Verse 53]

2) Let your repentance be truly from your heart, and stay away from all sources of temptations. Also, perform many good deeds, as good deeds abrogate the bad ones.

3) If you repent to Allah, you are no longer described as a fornicator (zaani). Therefore, you can marry a chaste man or woman.

4) The believer has high hope and aspiration for the best from Allah. He not only asks Allah for making his punishment easy in hellfire, but he also prays to Allah the Almighty to save him from Hell and award him with paradise for his repentance and good deeds.

A Detailed Examination
By: Dr. Ahmad Shafaat
(Chapter 4 added on July 1, 2004)

Chapter 4

The Qur`an and Pre-Qur`anic Penalties for Zina`

Both from an Islamic and scientific-historical point of view Islam is a continuation of earlier religions, especially those found in what from a Westerner’s perspective is called the Near East but which from an Easterner’s perspective could as well be called Near West.
From a scientific-historical point of view no development in history takes place in a vacuum, unrelated to what was before it or contemporary with it. From an Islamic point of view the religion of Islam is a continuation of earlier prophets’ work that in many cases was incorporated into Islam in a vastly improved form and in other cases purified from tahrif (alteration). It is therefore useful for us to keep before us what earlier religions or cultures or traditions had to say on any topic of interest. Very often such information enables us to see that the Qur`an purified and developed earlier ideas and practices so greatly as to show its origin in divine inspiration.
But in case of the penalty for zina` there is a special reason to be aware of earlier religions or traditions: as we shall see in subsequent chapters, there is evidence that at least some of the ideas in the Hadith regarding the penalty for zina` are derived from pre-Islamic sources and not from Islam as taught by the Prophet. 

Sumerian/Babylonia Law

Zina`, especially when committed with a married woman has been considered a punishable misconduct since the earliest times for which we have written records. The earliest law document of some comprehensiveness that we possess is the Code of Hammurabi. This document is not a complete codification of the Babylonian law but a collection of legal decisions of the Babylonian king Hammurabi in about the 18th century BCE – decisions that must have been partly applications of earlier legal practice, some of which was probably inherited from the Sumerian tradition.
In the Code of Hammurabi, adultery is punished with the death of both parties by drowning, but if the husband of the adulteress was willing to pardon her, then the king could pardon the adulterer. For incest the Code prescribes punishments of varying severity depending on which relative was involved. If a man committed sexual intercourse with his mother, both were burned to death; if with a stepmother, the man was disinherited; with a daughter, the man was exiled; with a daughter-in-law, he was drowned; with a son’s betrothed, he was fined and the betrothed girl took her dowry and returned to her family, with freedom to marry as she chose.
For establishing accusations of adultery not proved by evidence, the code of Hammurabi gives the law: “If the finger is pointed at the wife of a citizen on account of another man, but she has not been caught lying with another man, for her husband’s sake – she shall throw herself into the river.” If the river bore her away her guilt was established; if she remained quiet and uninjured in the water, her innocence was proved[1].
The Code of Hammurabi does not mention any punishment for sodomy, lesbian sex, or sex with animals.
Egyptian Law
In ancient Egypt, according to the Sicilian historian Diodorus Siculus (circa 90-21 BCE), whoever raped a freeborn woman was castrated. In case the woman let herself be enticed into committing adultery, then the man received a thousand stripes and the woman's nose was cut off[2].
Imprisonment may also have been a penalty for some sexual offences. According to Gen 39:14, 19-20, confirmed by Qur`an 12, when the wife of an Egyptian official who owned Joseph accused him of trying to lie with her, he was imprisoned.
Hindu Law
One of the primary concerns of the Hindu law is to preserve the purity of castes[3]. In Bhagavad Gita and Vishnu Purana adultery is condemned on the grounds that it destroys family and community order by mixing castes. In these writings, there is no mention of any legal punishment, only of divine punishment in the form of shortening of life in this world, falling in hell after death, rebirth as a creeping insect, falling in hell of the dead ancestors because of deprivation from ritualistic water and food.
But Dharma Shastra of Manu (Manusmriti) – the primary source of Hindu law (dated from 2nd century BCE to first century CE but claimed to be centuries earlier) – does prescribe detailed punishments for sexual misconduct including, of course, adultery (8:353-385). These punishments depend on the degree of intimacy, the marital status of the woman, her willingness or otherwise, and on her caste (varna) – caste is important because “mixture” of castes “destroys everything.”
In case of an unmarried woman, there is no capital punishment. If the unmarried woman is forced, the man looses two fingers and pays a fine of six hundred panas. If the woman is willing and of the same caste as the man, then he will pay a fine of 200 panas “to deter him from repeating the crime” and also “pay the nuptial fee, if her father so desires”. If the woman is willing, and is of higher caste, then the man will suffer a corporal punishment. An unmarried woman who makes advances to a man of higher caste will not be fined but rather forcefully confined to her house.
In case of a married woman, punishable offences start with talking:
“A man formerly accused of (sexual) offences, who secretly converses with another man’s wife, shall pay the lowest fine. But a man, not before accused, who converses for some cause, shall not incur any guilt, since in him there is no transgression.”
“Mendicants, singers, men who have performed the initiatory ceremony of a Vedic sacrifice, and artisans are not prohibited from speaking to married women.
Let no man converse with the wives of others after he has been forbidden; but he who converses (with them), in spite of a prohibition, shall be fined one suvarna.
This rule does not apply to the wives of actors and singers, nor (of) those who live on (the intrigues of) their own (wives); for such men send their wives (to others) or, concealing themselves, allow them to hold criminal intercourse. Yet he, who secretly converses with such women, or with female slaves kept by one (master), and with female ascetics, shall be compelled to pay a small fine.
Apparently, if the meeting involves more than conversing, it falls under the category of adulterous acts (samgrahana):
“He who addresses the wife of another man at a Tirtha, outside the village, in a forest, or at the confluence of rivers, suffers (the consequences of) adulterous acts.
“Offering presents, romping, touching her ornaments and dress, sitting with her on a bed, all are considered adulterous acts.
“If one touches a woman in a place not (to be touched) or allows (oneself to be touched), all (such acts done) with mutual consent are declared (to be) adulterous.”
For adultery the prescribed punishment in some cases is putting the man on a hot iron bed and then lighting fire all around and tearing the woman apart by dogs.
“If a wife, proud of the greatness of her relatives or (her own) excellence, violates the duty which she owes to her lord, the king shall have her torn apart by dogs in a place frequented by many. Let him have the male offender to be burnt on a red-hot iron bed; they shall put logs under it, (until) the sinner is burned (to death).”[4]
One of the cases when the above punishment is not applicable is when the man is a Brahamana, in which case he receives no corporal punishment:
Let (the king) never slay a Brahmana, though he has committed all kinds of crimes; let him banish such an offender, leaving all his property and keeping him unhurt. No greater crime is known on earth than slaying a Brahmana; a king, therefore, must not even entertain the thought of killing a Brahmana[5].
Manusmitri also prescribes punishment for Lesbian sex:
An unmarried girl who pollutes another unmarried girl must be fined two hundred (panas), pay the double of her (nuptial) fee, and receive ten lashes with a rod. But a (married) woman who pollutes an unmarried girl shall instantly have her head shaved or two fingers cut off, and be made to ride on a donkey.
If a wife was suspected of adultery but no hard evidence exists, then probably she was to be subjected to one or the other of the following three types of ordeals:
1)      The suspect is given three handfuls of water with a curse spoken on it and a sacred image dipped in it; if the suspect is innocent nothing will happen and if guilty sickness or some other calamity will follow within weeks. As we shall see, a similar ordeal is found in the Jewish law.
2)      The suspect is made to pass through fire or hold a red-hot iron while walking a certain distance; if the suspect is innocent nothing will happen, but if guilty there will be burns. This test of holding a red-hot iron was also known among the Greeks.
3)      The suspect is bound and thrown into the water. If the suspect is innocent, she will sink and will be pulled up before death occurs; otherwise the water will cast her up and she will be punished. This procedure was widely used in Europe to “try” women suspected of witchcraft.
The passing through the fire is described in such Hindu codes as that of Yajnavalkya and is used in the Ramayana by Sita to prove her innocence to her jealous husband Rama. In Manusmriti it is said: “He whom the fire does not burn or whom the water does not cast up, or whom no harm soon befalls, is to be taken as truthful in his oath.” (8:115)

Chinese Practice
In China the punishment for adultery seems to have been more secular than religious. It took various forms, including the following:
1)      Fines, with the male culprit paying more. The fine levied on the woman is paid to the husband, that inflicted on the man goes to the authorities.
2)      Castration, which at times was also the punishment for abduction, armed robbery, and treason.
3)      Taking into slavery. A woman guilty of adultery becomes her husband’s slave and could not be redeemed.
4)      A husband could be authorized to cut off his wife's hair, and lead her in that state before the mandarin, who caused her to be thrown to an elephant trained as the public executioner. Death was also the punishment for adultery among the Mongols.
In case of adultery, husbands are permitted to divorce their wives. But, if they did, they cannot take them again for a number of years.
The law in ancient China does not seem to have concerned itself too much with punishment for sexual intercourse with unmarried women.
Jewish Law

If we go by the Biblical stories, even before the time of Abraham adultery was considered in Palestine a crime for which death is a fitting divine punishment, if not a legal punishment. Abimelech, the Philistine king of Gerar recognized that sex with a married woman was a crime that God punished with death. When he “took” Sarah (Abraham's wife), God appeared to him in a dream and said " ..., Behold, you are about to die, for the woman you have taken is a married woman." (Gen 20:3)[6]. Since the king did not know that Sarah was married, he was spared on condition that he restores her to Abraham. 

It is thus not surprising that later the Jewish Torah prescribes the death penalty for adultery. The Torah, though purported to be written by Moses, did not take anything like its present form until about eight centuries after the great prophet. There is in any case evidence that the death for adultery did not become a legal punishment until centuries after Moses. Thus, in 2 Sam 11:1-12:25 we are told that one afternoon King David saw from the roof of his house a beautiful woman, Bathsheba, taking a bath. He committed adultery with her, had her husband murdered and married her, later begetting Solomon through her. Although condemned by God through the prophet Nathan for these actions, the law of the Torah is not at all mentioned. Since Bathsheba was married, both she and King David were punishable by death. Yet this punishment is not at all considered. This probably means that death became a legal punishment after King David, that is, centuries after Moses, to whom it is attributed.

The Torah in its present form prescribes in some detail punishments for various cases of zina`. Thus in case of fornication with a virgin, the Torah has this to say:
When a man seduces a virgin who is not engaged to be married, and lies with her, he shall give the bride-price for her and make her his wife. But if her father refuses to give her to him, he shall pay an amount equal to the bride-price for virgins. (Exodus 22:16-17)
If a man meets a virgin who is not engaged, and seizes her and lies with her, and they are caught in the act, the man who lay with her shall give fifty shekels of silver to the young woman's father, and she shall become his wife. Because he violated her he shall not be permitted to divorce her as long as he lives. (Deut 22:28-29)
Here a virgin is not punished, presumably because she was seduced or coerced. But a virgin who commits fornication that is discovered after marriage is to be stoned to death:
Suppose a man marries a woman, but after going in to her, he dislikes her and makes up charges against her, slandering her by saying, “I married this woman; but when I lay with her, I did not find evidence of her virginity.” … [If the charge is proved untrue] The elders of that town shall take the man and punish him; they shall fine him one hundred shekels of silver (which they shall give to the young woman's father) because he has slandered a virgin of Israel. She shall remain his wife; he shall not be permitted to divorce her as long as he lives. If, however, this charge is true, that evidence of the young woman's virginity was not found, then they shall bring the young woman out to the entrance of her father's house and the men of her town shall stone her to death, because she committed a disgraceful act in Israel by prostituting herself in her father's house. So you shall purge the evil from your midst. (Deut 22:13-14, 18-21)
Thus a virgin who has committed fornication has four ways open to her: a) she is married for life to the man who deflowered her; b) she remains unmarried; c) she is married to another man who is willing to accept the loss of her virginity; d) she is stoned to death. 
A man who has sexual intercourse with a married or engaged woman is to be put to death along with the woman, unless the woman cries for help:
If a man is caught lying with the wife of another man, both of them shall die, the man who lay with the woman as well as the woman. So you shall purge the evil from Israel. If there is a young woman, a virgin already engaged to be married, and a man meets her in the town and lies with her, you shall bring both of them to the gate of that town and stone them to death, the young woman because she did not cry for help in the town and the man because he violated his neighbor's wife. So you shall purge the evil from your midst. But if the man meets the engaged woman in the open country, and the man seizes her and lies with her, then only the man who lay with her shall die. You shall do nothing to the young woman; the young woman has not committed an offense punishable by death, because this case is like that of someone who attacks and murders a neighbor. Since he found her in the open country, the engaged woman may have cried for help, but there was no one to rescue her. (Deut 22:22-27)
If a man commits adultery with the wife of his neighbor, both the adulterer and the adulteress shall be put to death. (Lev 20:10)
Just as in the Hindu law the punishment and seriousness of the crime is determined by the caste of the individuals, so also in Jewish law, at least in its rabbinical interpretation, the punishment is determined by the race/religion of the individuals, which means by whether they were Jewish or non-Jewish. Thus the Talmud quotes and interprets Lev 20:10 as follows:
Our Rabbis taught: [And the man who commits adultery with another man's wife, even he who commits adultery with his neighbor’s wife the adulterer and the adulteress shall surely be put to death].  ‘The man’ excludes a minor; ‘who commits adultery with another man’s wife’ excludes the wife of a minor; ‘even he who commits adultery with his neighbor’s wife’ excludes the wife of a heathen; ‘shall surely be put to death’, by strangulation. (Sanhedrin 52b).
That is, a Jewish man is not executed if he commits adultery with a married Gentile woman. But the Gentile woman is executed. Talmudic Encyclopedia elaborates the point as follows:
“He who has carnal knowledge of the wife of a Gentile is not liable to the death penalty, for it is written: ‘your fellow’s wife’ rather than the alien's wife ... and although a married Gentile woman is forbidden to the Gentiles, in any case a Jew is exempted.”
“If a Jew has coitus with a Gentile woman, whether she be a child of three or an adult, whether married or unmarried, and even if he is a minor aged only nine years and one day -- because he had wilful coitus with her she must be killed, as is the case with a beast, because through her a Jew got into trouble.” (For reference to the beast, see Lev 20:15-16 quoted further below)
Fornication with a slave woman of another man is not severely punished:
If a man has sexual relations with a woman who is a slave, designated for another man but not ransomed or given her freedom, an inquiry shall be held. They shall not be put to death, since she has not been freed; but he shall bring a guilt offering for himself to the LORD, at the entrance of the tent of meeting, a ram as guilt offering. And the priest shall make atonement for him with the ram of guilt offering before the LORD for his sin that he committed; and the sin he committed shall be forgiven him. (Lev 19:20-22)
The Torah prescribes death by burning in case a priest’s daughter commits fornication or adultery:
And the daughter of any priest, if she profanes herself by playing the whore, she profanes her father: she shall be burnt with fire.  (Lev 21:9)
Later rabbis tried to make the law more benign: Thus in the Mishnah one rabbi is quoted as saying: “An incident once occurred with the daughter of a priest who committed adultery. They surrounded her with bundles of branches and burned her.” The other rabbis responded to him, “That was done because the court that performed this execution was not knowledgeable.” A comment in the Talmud explains that the burning was executed by a court of Sadducees (a Jewish group that did not believe in the oral tradition and was in this respect in opposition to the Pharisees, the forerunners of the later rabbis).
The Torah also prescribes the death penalty for some cases of incest and some unspecified punishment for sex with a menstruating woman:
The man who lies with his father's wife has uncovered his father's nakedness; both of them shall be put to death; their blood is upon them. If a man lies with his daughter-in-law, both of them shall be put to death; they have committed perversion, their blood is upon them. … If a man takes a wife and her mother also, it is depravity; they shall be burned to death, both he and they, that there may be no depravity among you. … If a man takes his sister, a daughter of his father or a daughter of his mother, and sees her nakedness and she sees his nakedness, it is a disgrace, and they shall be cut off in the sight of their people; he has uncovered his sister's nakedness, he shall be subject to punishment. If a man lies with a woman having her sickness and uncovers her nakedness, he has laid bare her flow and she has laid bare her flow of blood; both of them shall be cut off from their people. You shall not uncover the nakedness of your mother's sister or of your father's sister, for that is to lay bare one's own flesh; they shall be subject to punishment. If a man lies with his uncle's wife, he has uncovered his uncle's nakedness; they shall be subject to punishment; they shall die childless. If a man takes his brother's wife, it is impurity; he has uncovered his brother's nakedness; they shall be childless. (Lev 20:11-12, 14, 17-21)
Death is also the penalty for sodomy and sex with animals:
If a man lies with a male as with a woman, both of them have committed an abomination; they shall be put to death; their blood is upon them. (Lev 20:13)
Whoever lies with an animal shall be put to death. (Exod 22:19)
If a man has sexual relations with an animal, he shall be put to death; and you shall kill the animal. If a woman approaches any animal and has sexual relations with it, you shall kill the woman and the animal; they shall be put to death, their blood is upon them. (Lev 20:15-16)
It is interesting to note that the Old Testament nowhere mentions homosexuality among women, although in the above passage sex with animals is mentioned for both men and women. This suggests that homosexuality among women was relatively unknown in ancient times while bestiality was about as common among women as among men.
In Jewish law, adultery is proved by witnesses but even in the absence of such a proof the husband’s mere suspicion can start proceedings against the wife. In Num 5 we find a ritual (Sotah) to which the woman is subjected in case her husband gets a “spirit of jealousy” and “becomes suspicion of her faithfulness” without any hard evidence. The ritual requires the man to bring the wife to the priest along with a quantity of barley flour. The priest brings the wife before the altar along with the flour. He also has available “holy water in an earthenware vessel” mixed with the dust that has settled upon the floor of the tabernacle. He then dishevels the woman’s hair and pronounces some curses on her in case she is guilty. The curses are written and washed into the water. The priest then makes the woman drink the water, which tastes painfully bitter. As for the barley flour, it is waved in the air and a part of it is smoked on the altar as an offering to the Lord. If the woman is guilty, “her belly will swell, her thigh shall fall away, and she will become execration among her people,” which is interpreted to imply that she will die. If she is not guilty, she will be immune to these effects and will be able to bear children.
The rabbis to various degrees neutralized or toned down many of the Old Testament laws and practices and this ritual is one of them. Thus in the Babylonian Talmud it is said: “When adulterers increased, then the Sotah ritual was abolished” (Sotah 47a).
Finally, we may mention the following law:
If two men are fighting and the wife of one of them comes to rescue her husband from his assailant, and she reaches out and seizes him by his private parts, you shall cut off her hand. Show her no pity.  (Deut 25:11-12)
At first sight this law may seem strange, but within the Old Testament thought it does make some sense. It is probably assumed here that the woman damaged man’s private parts in some serious way, which will ban the man from the “congregation of Yahweh” (Deut. 23:1). The above passage is applying the law of retaliation – eye for eye, tooth for tooth … (Deut 19:21). Since the woman does not have what she has damaged in the man, she looses the hand that caused the damage.
Greek, Persian and Roman Laws
The ancient Athenians punished adultery with death. In parts of Crete, an adulterer was covered with a crown of wool in mockery of his soft nature, then publicly made to pay a heavy fine, and barred from holding any government office.
As for the Persians, their custom was to throw the adulteress down headlong into a deep well to die.
Dio the consul, the first King of the Romans, established the law that a woman found guilty of adultery be put to death by her husband or relations in whatever way they thought fit. Later, Cato allowed the husband to execute his wife if he found her guilty, without a verdict from the court.
In the 1st century BCE, Augustus legislated that man be exiled after confiscating half of his property and likewise the woman be exiled after canceling half of her dowry and confiscating 1/3 of her property. But it seems that execution for adultery was practiced under some emperors, since Tacitus in the first century CE says he found in the public records the names of three thousand who had been put to death for adultery.
Homosexuality was rather common in the pagan Graeco-Roman world. There was homosexual temple prostitution, which even some emperors such as Heliogabalus used. Some emperors tried to stop the practice, but only by punishments such as exile and increase of taxes on homosexual prostitutes.

Pre-Islamic Arab custom
We have no firm information about the pre-Islamic Arab tradition concerning penalty for zina`. But considering that cultures and traditions all around Arabia and the Jewish tradition within it prescribed the death penalty at least in some cases of zina`, it is strongly expected that the Arab custom also considered some cases of zina` punishable by death.
Some indication of the Arab custom is provided by the stoning “verse” that some later Muslim traditions  allege was once a part of the Qur`an (see Chapter 3). This “verse” is said to read:
 al-shaykh wa al-shaykhah idha zaniya fa arjimuhuma al-battatah
The old man (al-shaykh) and old woman (al-shaykhah), when they commit zina` stone them to death outright.
As noted in Ch. 3, this verse is remarkably different from anything we find in the Qur`an or even the views of the fuqaha, who do not make any distinction on the basis of age. It is also very different from the punishments prescribed in other neighboring traditions and cultures. So it is natural to think that it reflects the pre-Islamic Arab view. The idea is that in case of young persons, who on the one hand have strong sexual passions and, on the other hand, lack the maturity and wisdom to control them,  zina` may be treated somewhat lightly. But when the person is old, the crime becomes much more serious and punishable by death.
Christian Outlook
Jesus did not rise as a new law-giver but rather accepted the Old Testament laws, although he interpreted some of them more liberally. This means that he and his eyewitness Jewish disciples probably took for granted the Old Testament penal code for fornication and adultery, possibly understood in a liberal way. But Paul, the real founder of Christianity as we know it today, rejected the authority of the Jewish religious law. He apparently taught his followers that they should instead follow the law of the country in which they were living. Thus he told his followers in Rome that it was their religious duty to submit to the Roman rule and authority:

Let every person be subject to the governing authorities; for there is no authority except from God, and those authorities that exist have been instituted by God. Therefore whoever resists authority resists what God has appointed, and those who resist will incur judgment. For rulers are not a terror to good conduct, but to bad. Do you wish to have no fear of the authority? Then do what is good, and you will receive its approval; for it is God’s servant for your good. But if you do what is wrong, you should be afraid, for the authority does not bear the sword in vain! It is the servant of God to execute wrath on the wrongdoer.Gk it Therefore one must be subject, not only because of wrath but also because of conscience. For the same reason you also pay taxes, for the authorities are God’s servants, busy with this very thing. (Romans 13:1-6)

This means that Paul accepted whatever penalty the Romans deemed fit for adultery. If we go by what Luke attributes to him in the following passage in Acts, then it appears that Paul had no difficulty with the death penalty in principle and that therefore the death penalty for adultery would have been acceptable to him in case the “authorities” decreed it.

Now if I am in the wrong and have committed something for which I deserve to die, I am not trying to escape death; but if there is nothing to their charges against me, no one can turn me over to them. I appeal to the emperor. (Acts 25:11)

As for Christians who came after Paul, they, because of the fact that Jesus did not bring any new system of law and Paul nullified the Jewish religious Law, developed a somewhat flexible attitude to the capital punishment for adultery in the Old Testament. But at the same time they developed a much stricter, almost repressive sexual ethic.
The flexibility is reflected in the story in the Gospel of John of a woman caught in adultery, a story that is unhistorical not only in the sense that it never happened but also in the sense that the original writer of John never wrote it, being added to his gospel centuries after him.[7] The story does not outright reject the stoning penalty but it also does not fully accept it.
After the Roman Empire became Christian with the “conversion” of Constantine, the civil law became even more acceptable to Christians and in some matters reflected Christian religious position. Constantine (306-337 CE) himself enjoined the death penalty for adultery. Emperors Marcian (450-457) and Leo (457-474) changed this into imprisonment for life. In the time of Justinian this was modified to flogging the woman and putting her in a monastery, with the husband having the right either to get her out within two years or let her stay there for the rest of her life.
For some important Christian thinkers of the past also the death penalty for adultery was acceptable. Thus Thomas Aquinas in his Summa Theologia discusses whether a husband on his own authority kills his wife for adultery. His answer is that he cannot. But in his discussion he takes it for granted that adultery is a capital offence.

Secular law in Christian lands, accepted by the churches in the spirit of Roman 13:1-6 and Acts 25:11, has often considered adultery a punishable offence, with the punishment ranging from fine to imprisonment to death. Even today in about half the states in the USA adultery is illegal. Some members of the US Congress have called on the federal government to make it a federal offence punishable by law on the grounds that it is a violation of the marriage contract and has negative social effects.

Strictness of sexual ethic is reflected in the views of Augustine (354-430 CE), who was a primary shaper of Christian theology. Augustine taught that sex was sinful even within marriage if it was done for pleasure and not for conception. Consequently, the faithful, if they did indulge in marital sex for pleasure had to confess this “sin” before a priest and pay the church a donation.

In view of Christian outlook on normal heterosexual relations, it is hardly surprising that Christianity also strongly condemns unnatural sex. Jesus and his eyewitness Jewish disciples are only expected to accept the Old Testament view of the homosexuality. But even Paul and his associates who had “freed” themselves from the Jewish law shared that view. In Romans and 1 Corinthians, both widely accepted as authentic letters of Paul we read:
For this reason God gave them up to degrading passions. Their women exchanged natural intercourse for unnatural, and in the same way also the men, giving up natural intercourse with women, were consumed with passion for one another.  Men committed shameless acts with men and received in their own persons the due penalty for their error. (Rom 1:26-27)
Do you not know that wrongdoers will not inherit the kingdom of God? Do not be deceived! Fornicators, idolaters, adulterers, male prostitutes, sodomites …, none of these will inherit the kingdom of God. (1 Cor 6:9-10).

In 1 Timothy – attributed to Paul by tradition but actually written after Paul’s death by one of his disciples – sodomites are included among the “lawless and disobedient”, “the godless and sinful”, “the unholy and profane” (1:10). Jude, a short letter purported to be written by someone called Jude the brother of James, reminds heretics of the divine punishment that visited the people of Sodom and Gomorrah for sexual immortality and pursuit of “other flesh” (unnatural lust) (verse 7). With the possible exception of Rom 1:26, all of these references are to homosexuality among men.

The unnatural sex leads to divine punishment but since early Christianity did not have a legal system of its own, this punishment is not a punishment in law. Later, when the Roman Empire became Christian with the conversion of Constantine, there was also legal punishment for homosexuality, which became more and more severe.

In 305-6 CE the Council of Elvira forbade the giving of last rites to homosexuals who had sex with boys. In 314 CE the Council of Ancyra in Asia Minor excluded all homosexuals from receiving the sacrament. In 390 CE Gregory of Nyssa required that homosexuals go through self-mortification for 15 years as penitence. In the same year, civil law issued by Valetinian, Arcadius and Theodosius prescribed death by burning for homosexual prostitutes. This punishment was extended to all passive[8] homosexuals in 438 CE by Theodosius II. In 506 CE Rome was under the rule of the Barbarians when Alaric II, King of the Visigoths extended the punishment of death by burning to active homosexuals.
In 528 CE under the Byzantine emperor Justinian, the bishop of Rhodes named Isaiah and the bishop of Diospolis named Alexander were “examined and condemned by Victor the city prefect” for homosexual practices. He “tortured Isaiah severely and exiled him and he amputated Alexander's genitals and paraded him around.” Justinian “immediately decreed that those detected in homosexuality should have their genitals amputated”. In 538 CE Justinian declared homosexuality a crime of heresy against God as well as against civil law, quoting the story of Sodom for scriptural support. In 559 he also used Paul’s letters in his support and this time apparently prescribed castration followed by death by burning.

Sacred Prostitution

Although adultery is considered a punishable crime in many pre-Islamic traditions, some of the same traditions did not hesitate to encourage sex outside of wedlock in temples. Ancient historians Herodotus (5th century, possibly 485- 420 BCE) and Thucydides (460 – 395 BCE) mention a practice which sanctified prostitution when done within a temple cult. Thus Herodotus says: “There is one custom amongst these people [Babylonians] which is wholly shameful: every woman who is a native of the country must once in her life go and sit in the
temple of Aphrodite [Militta] and there give herself to a strange man.” 
There were also sacred male prostitutes available for homosexual intercourse. They were called dogs because of their devotion to the goddess of the temple.
Although Herodotus describes the practice as shameful, his own Greek culture also practiced it. In the century before that of Herodotus, brothels were established in Athens, the earnings from which were used to build a temple dedicated to Aphrodites Pandemo. Later, in the temple in Corinth, Greece, there were over thousand prostitutes, according to Strabo (64 BCE – 24 CE).
Sacred prostitution was also practiced in Phoenician cultures, usually in honor of the goddess Astarte or Ishtar. It was also practiced in Israel and, as we learn from the following Biblical story, Judah, the ancestor of the Jews also participated in it, although, later it was prohibited by the Torah and condemned by prophets like Hosea and Ezekiel.
Judah had three sons named Er, Onan and Shelah. Er, Judah’s first born, was married to Tamar, but he was wicked and “the Lord slew him.” According to custom, if a brother died and left no children, then his younger brother must marry the deceased’s wife and perpetuate his name. So Judah told his second son Onan to do this duty. But Onan became jealous and thinking that his seed should not be used to perpetuate someone else’s name “he spilled it on the ground" at the critical moment. As a result the Lord “slew him also”. Judah sent Tamar to her father telling her to wait as a widow till Shelah, the third son, comes of age and does his duty. But in his heart he never intended to marry Shelah to Tamar “lest peradventure he die also, as his brothers did”. In due course Shelah came of age but Judah did not marry him to Tamar, who resolved to take revenge on her father‑in‑law. Her opportunity came when she learnt that Judah was coming to her village to shear his sheep. Covered in a veil she sat in his way at the entrance of a village called Enaim and when Judah, who by now had himself become a widower, saw her, “he thought her to be a prostitute”. He came up to her and not recognizing her, proposed: “Come, let me come in unto you.” She asked a price and he promised to send her a goat kid. As a guarantee she receives “his signet, bracelet, and staff.” Then the old man “came in her, and she conceived by him.” Judah sends a friend to deliver to her the goat kid and get back his things. The friend enquires in the village: “Where is the qedsha who was at Enaim by the wayside?” (The word qedsha here with the root q-d-sh, containing the idea of holiness means holy prostitute or, as translated by NRSV, the temple prostitute.) Judas’ friend finds no trace of Tamar and returns to Judah. Three months later Judah heard that his daughter‑in‑law was “with child by whoredom.” Furious at the news, Judah shouted: “Bring her forth and let her be burnt:” The revengeful young woman simply sent him back his signet, bracelets, and staff. Recognizing these things as his own, Judah admits his fault, in not marrying his surviving son with Tamar. (Gen 38:1-26).
There were also male prostitutes (qedeshim) in Palestine, as we see from Deut 23:17-19, which prohibits the daughters and sons of Israel from being temple prostitutes and prohibits using for the temple any fee from such prostitution, including mahir kelev, “the pay of a dog”, which refers to the payment to a male prostitute.
In ancient Rome, the priestesses of the goddess Vesta initiated young boys to sex when they had their head shaved for entering priesthood. They also kept a fire lit in the temple. The use of a  perpetually lit fire has been recorded in many coastal temples, and was probably meant to guide the sailors to the temple in case they wanted to use the services of the temple prostitutes.
Until 1988, there existed in southern India a practice called devadasi. It involved marrying adolescent girls to a deity or a temple and making them practice prostitution when they reached puberty. Only members of upper castes can use the service.

The Qur`anic Light

If we now compare the penalties for zina` in the Qur`an and in the traditions before Islam, it becomes clear that the Qur`an has continuity with those earlier traditions and at the same time makes a great leap forward by reforming them, thus manifesting the divine love and wisdom that is its source. 

The continuity is reflected in the fact that almost universally pre-Islamic traditions recognize that some forms of sex such as adultery, incest, homosexuality, and bestiality are to be condemned and in some cases to be legally punished. The Qur`an confirms this universal wisdom of the pre-Islamic times.

The great leap forward is reflected in the following reforms:

1)                  Unlike Catholic Christianity, the Qur`an does not consider sexual pleasure a sin. In the Qur`anic view sexual pleasure becomes sin if it is sought out of marriage, that is, out of a solemn publicly known relationship that can ensure well being of the children.
2)                  Unlike some pagan cultures there is no place in the Qur`an for “sacred prostitution” based on the idea that such sex pleases a goddess of sex – Astate or Ishtar or Aphrodite.
3)                  Unlike almost all pre-Islamic traditions, the Qur`an makes no distinction between men and women who commit heterosexual offences, neither in the degree of sin nor in the punishment.
4)                  Almost all pre-Islamic traditions are quite lenient to a man, married or unmarried, who has sexual intercourse with an unmarried woman. The Qur`an greatly strengthens the sanctity of marriage by making all heterosexual intercourse outside of marriage equally punishable.
5)                  Unlike some pre-Islamic traditions such as Judaism and Hinduism, in the Qur`an or the views of the fuqaha the penalty of a Muslim does not depend on the caste or race or religion or social status of the person with whom zina` is committed. In the Qur`an, a Muslim’s punishment only depends on whether he or she himself/herself is free or slave and the punishment for a slave, unlike the punishment for a low caste person in Hinduism or a heathen in Judaism is not increased but decreased. In the views of most fuqaha the punishment also depends on the marital status of the Muslim who commits zina`. As for a non-Muslim the Qur`an does not give explicit guidance[9]. The fuqaha prescribe for him/her either the same punishment as a Muslim or some lesser punishment  or the punishment prescribed in his/her own legal tradition[10]
6)                  Unlike most pre-Islamic traditions, in the Qur`an the husband has no authority to execute punishment for zina` on the basis of his own judgment. If he suspects guilt on her part, he can accuse her by prescribed oaths. But the wife can avert punishment by rejecting the charge through similar oaths. She is not subjected to painful and humiliating ordeals, as the ordeal of water in Babylonian law, passing through fire in Hinduism or the ordeal of Sotah in Judaism. Her word is as good as his word. 
7)                  The Qur`anic punishment of 100 stripes is painful enough to be effective. But it does not lead to amputation or loss of life, as is the case in most pre-Islamic traditions[11].
8)                  For unnatural sex the Qur`an stresses reform with punishments like house imprisonment for women and some other forms of punishment – left for the authorities to specify – for men (see Chapter 5). As noted earlier, imprisonment is also the punishment for adultery in the code of the Christian emperor Justinian. But in the Justinian code imprisonment is for life unless the husband takes the woman back within two years. In contrast, in the Qur`an the imprisonment can end at any time and not just if the husband decides to take her back; any new circumstances with a reasonable promise of rehabilitation of the woman can secure her release.

Unfortunately, even some early Muslims did not fully appreciate the light and wisdom in the Qur`an, as will be shown in the rest of this book. While the Qur`an made a tremendous advance forward over the pre-Islamic traditions and cultures, these Muslims moved backward, trying even to pull Islam down with them by distorting and fabricating traditions about the stoning “verse”, death penalty for unnatural sex, and stories about stoning of adulterers and adulteresses done by the Prophet. What is even more unfortunate is that they managed to circulate so many of these false ahadith that in the subsequent generations most Muslims were unable to free themselves from them.

[1] Winkler, "Die Gesetze Hammurabis", Leipzig, 1902, 10.
[2] Interestingly, this led Egyptian surgeons to develop plastic surgery.
[3] The Sanskrit word for caste is varna which also means color. This supports the view that originally the caste system was developed to preserve racial purity of the Aryan invaders of fair color settling among Dravidians of much darker color.

[4] It is not clear how the rules presented so far are to be related with the following rules:

“Regarding a Sudra who has intercourse with a woman of a twice-born caste (i.e. the other three higher castes), guarded or unguarded: if she was unguarded, he loses the (offending) part and all his property; if she was guarded, everything (including his life). For intercourse with a guarded Brahmana a Vaisya shall forfeit all his property after imprisonment for a year; a Kshatriya shall be fined one thousand (panas) and be shaved with the urine (of an ass). If a Vaisya or a Kshatriya has connexion with an unguarded Brahmana, let him fine the Vaisya five hundred (panas) and the Kshatriya one thousand. But even these two, if they offend with a Brahmani (not only) guarded (but the wife of an eminent man), shall be punished like a Sudra or be burnt in a fire of dry grass.”

“If a Vaisya approaches a guarded female of the Kshatriya caste, or a Kshatriya a (guarded) Vaisya woman, they both deserve the same punishment as in the case of an unguarded Brahmana female. A Brahmana shall be compelled to pay a fine of one thousand (panas) if he has intercourse with guarded (females of) those two (castes); for (offending with) a (guarded) Sudra female a fine of one thousand (panas shall be inflicted) on a Kshatriya or a Vaisya.”

“For (intercourse with) an unguarded Kshatriya a fine of five hundred (panas shall fall) on a Vaisya; but (for the same offence) a Kshatriya shall be shaved with the urine (of a donkey) or (pay) the same fine.”

[5] The punishment for a Brahamana is prescribed as follows:
 “A Brahmana who carnally knows a guarded Brahmani against her will, shall be fined one thousand (panas); but he shall be made to pay five hundred, if he had connexion with a willing one. Shaving of the head is ordained for a Brahmana (instead of) capital punishment; but other castes shall suffer capital punishment.”
“A Brahmana who approaches unguarded female Kshatriya or Vaisya, or a female Sudra, shall be fined five hundred (panas); but (for intercourse with) a female (of the) lowest (castes), one thousand.”

[6] See also Jeremiah 29:21-23 and Genesis 38:24. In the first of these passages, Jeremiah prophesies that God will deliver certain Zedekiah, the son of Maaseiah, and Ahad, the son of Kolaiah, to the King of Babylon who will roast them to death because they were false prophets and committed adultery with their neighbors’ wives. In the second passage, Judah learns that his daughter-in-law is pregnant from whoredom and he says: “bring her out and let her be burned”.
[7] This is now recognized by almost all translations of the New Testaments.
[8] The reason the law at first was much harsher on the passive homosexual seems to be that he truly departs from his male nature. The active homosexual retains something of his natural maleness, since he performs the specifically male function of penetration. Also, passive homosexuals mostly worked as prostitutes and it was thought that if the homosexual prostitution is stopped, this will reduce homosexuality. Harsh punishment were extended later to active homosexuality probably because cruel punishment of passive homosexuals did not stop homosexuality and also because after Augustine Christians tended to view all sex in the worst possible light. 
[9] In 4:15-15 punishments are suggested for sexual offences for “your [Muslim’s] women” and for men “among you”. This suggests that the punishments are as a rule meant for those who accept Islam. In view of this and the spirit of the Qur`an generally, a non-Muslim is to be punished according to his/her own legal tradition. In modern times when some legal systems have no punishment for zina`, it would be necessary for a Muslim society to protect its values by some punishment for non-Muslim which could be the same as for Muslims.
[10] According to most fuqaha a non-Muslim resident in a Muslim land is to be punished like a Muslim, so that he or she is not to be treated more harshly than a Muslim. According to Imam Malik, the prescribed penalty for zina` is meant only for Muslims, so that for non-Muslim residents their own law will be applicable. According to a view attributed to Imam Abu Hanifah a non-Muslim never becomes muhsin, since for ihsan it is necessary to be a Muslim. Consequently, death by stoning is not applicable to a non-Muslim.
 As for a non-Muslim visiting a Muslim land, according to some fuqaha he or she is subject to the Islamic penalty, but according to others he or she is subject to the law of his own land.
[11] For stealing there is hand cutting, but stealing is not as natural an impulse as sex, except in case of serious deprivation, in which case the Qur`anic rule of necessity and some ahadith require that there should be no hand cutting.



In Part I we saw that if we start by accepting rajm as truly an Islamic punishment for adultery prescribed by God and his Messenger, then there is no reasonable explanation of why the Qur`an prescribes 100 lashes for zina` without ever mentioning rajm. Most supporters of rajm say that the Qur`anic penalty is for the unmarried person and rajm is for the married one. But as we saw in Chapter 1 there is incontrovertible evidence that the Qur`an covers both cases when it talks about zina` and its punishment. Moreover, this view does not offer a reasonable explanation of why the Qur`an left out the more important married case. This leads to the conclusion that there is real conflict between the penalty of rajm and the Qur`an. Recognizing this, some supporters of rajm have resorted to other explanations – that the Qur`an was abrogated by the ahadith about rajm or that the Qur`an did prescribe the penalty but the relevant verse was removed or got lost. But these explanations were seen to be no more tenable than the one that limits the Qur`anic penalty of 100 lashes to the unmarried case.
The reason that a vast majority of Muslims came to accept rajm is that they accepted the authenticity of ahadith that talk about it. But in view of the fact that the penalty of rajm is in conflict with the Qur`an or is at least problematic in the light of the Qur`an, the authenticity of the ahadith about rajm comes under serious suspicion. This requires that at the very least we should carefully examine these ahadith for their authenticity before accepting them, if not to reject them outright because of their contradiction with the Qur`an. But such an examination has not been done by the supporters of rajm. They are simply content to make a general appeal to the argument that rajm is prescribed or assumed in a large number of ahadith found in many Hadith collections with varied asanid and that therefore these ahadith are authentic.

This general argument is based on the common but mistaken idea that a large number of traditions found in large number of books have to be substantially historical. But it is a well-known phenomenon that once an idea gets created it begins to find many different expressions with time and even begins to generate various mistaken reports of events supporting the idea. For example, once the idea of flying saucers was created it generated an increasing number of sightings of such alien objects. This large number of reports of sightings is no proof that the flying saucers come to earth from outer space on a regular basis. Another example is provided by Jesus’ crucifixion, which is mentioned in a great variety of Christian and even non-Christian traditions. These traditions are documented within decades of Jesus’ departure from this world, in contrast to the ahadith about rajm whose documentation starts no earlier than hundred years after the Holy Prophet. There are long accounts of how Jesus was arrested, how he was tried, sentenced, and flogged, and how he was taken to a place outside the city of Jerusalem and then crucified there and how his clothes were divided by the executioners and he was given vinegar to drink  and was mocked and how he finally died. There are many precise details with names of places and persons involved and with references to dates and times of the day at which various events took place. These details are far more extensive than the details provided in the ahadith about rajm that sometimes mention names of persons stoned for adultery and of places where the stoning took place. Just as the traditions about rajm are found in most Hadith books so also the traditions of Jesus’ crucifixion are found in all the canonical gospels, in most apocryphal gospels, and in many other early Christian documents. In many cases one can even provide asanid that look even better than the asanid for the traditions about rajm.  For example, the first canonical gospel, which records a detailed account of the crucifixion, is said to be written by Matthew who was an eyewitness of the events of Jesus life. The same is true about the fourth gospel which is said to be written by John, another eyewitness disciple of Jesus. The second gospel is written by Mark who is said to have learnt the gospel traditions from Peter who was an eyewitness disciple. These asanid look better than those in the ahadith about rajm because they have at most one link between a document and an eyewitness, whereas in case of ahadith about rajm we have in most cases more than two links.

Yet when you go beyond the first impression created by the ubiquity of the references to the crucifixion in the Christian writings from the earliest times and subject the various traditions to a critical and historical analysis, to make sense of them within the context of other related events, it becomes clear that the crucifixion and hence its elaborate accounts are fictional (see my book, The Mysterious Disappearance of Jesus and the Origin of Christianity). The Qur`anic rejection of the crucifixion of Jesus in fact makes it an Islamic belief that an incident reported in many ways in many different sources and accepted and commemorated by millions of people can be fictional. To hold otherwise and accept an event as historical simply because it is found in many varied reports and a great many people believe in it is, therefore, inconsistent with the Qur`an.

It is also worth noting here that the Hadith literature itself provides examples of ahadith that have come down to us in many different forms and with many different chains of transmission from numerous Companions and that are recognized by scholars to be unreliable. Thus, al-Nawawi in the Introduction of his famous collection of 40 ahadith says:

It has been related to us from ‘Ali bin Abi Talib, ‘Abd Allah bin Mas ‘ud, Mu ‘adh ibn Jabal, Abi al-Darda`, Ibn ‘Umar, Ibn ‘Abbas, Anas bin Malik, Abu Hurayrah, Abu Sa‘id al-Khudri through many lines of transmission and in varied forms that the Messenger of God said: “Whoever memorized for my ummah 40 traditions relating to their religion will be raised by God on the day resurrection in the company of jurists and scholars”. … Scholars of Hadith (huffaz) are agreed that this is a weak tradition despite its many lines of transmission. … Religious scholars are agreed on the permissibility of putting a weak hadith in practice if it concerns virtuous actions.

Thus multiplicity of reports about an incident or saying is no proof of its authenticity. So what is the criterion to decide whether a series of ahadith supporting an idea is reliable?

When we have a large number of reports repeating a theme, we need to look at each report separately. The reliability of the whole group of reports is no greater than that of the most reliable of the individual reports. Consequently, if we do not find any one tradition that can be confidently declared as reliable, the whole group cannot be declared reliable. Moreover, in case of ahadith about rajm we need to use the strictest possible standards of reliability, since, as noted several times earlier, there are strong objections to their reliability on the basis of the Qur`an and since accepting them means taking a human life by a very painful method.

In this part of the book we examine the ahadith about rajm and show that none of them meets the required standard of reliability and therefore the penalty of rajm cannot be reliably attributed to the Prophet of Islam. It should be rejected in favor of the penalty prescribed in the Book of God.

Chapter 5

Death Penalty For Homosexuality, Incest, And Bestiality

Some scholars of Shafi‘i and Maliki school of fiqh have defined zina` to include the homosexual act and/or bestiality (sex with animals). Incest, of course, is zina`, at least in the heterosexual case. We begin this part of the book with a chapter on the punishment for these acts for the following reason: The death penalty for these acts prescribed in some ahadith is rejected by a majority of scholars and the ahadith themselves can be easily seen to be fabricated. This should be helpful for those readers who find it impossible to imagine that the stories of the Prophet stoning people for zina` could have been fabricated either deliberately or as a result of a series of gross mistakes. They should be able to see at least the possibility that the stoning penalty for adultery entered Islam without any teaching from God and his Messenger just as the death penalty for the homosexual act, incest, and bestiality entered Islam without any such teaching.  
Death Penalty for Bestiality

There is nothing about the punishment for bestiality in Muwatta, Bukhari or Muslim. We find some ahadith on the subject in books of Abu Da`ud, Tirmidhi, Ibn Majah, and Ahmad and, of these muhaddithun those who do express opinions on the authenticity of ahadith they record, do not have a favorable opinion of these particular ahadith.

There is essentially one hadith prescribing death penalty for bestiality:

Abd Allah bin Muhammad al-Nufayli related to us: ‘Abd al-‘Aziz bin Muhammad related to us: ‘Amr bin Abi ‘Amr related to me from ‘Ikrimah

from Ibn ‘Abbas that the Messenger of God said: “If anyone has sexual intercourse with an animal, kill him and kill it along with him.” (‘Ikrimah) said: “I asked him (Ibn ‘Abbas): ‘Why the animal?’ He replied: ‘I think (the Prophet) disapproved of its flesh being eaten when such a thing had been done to it’[1].” Abu Da`ud said, This is not strong.  (Abu Da`ud 3871)

Narrations of this hadith with variations are also found in Tirmidhi (1374), Ibn Majah (2554), and Musnad Ahmad (2294, 2591). They all are narrated from ‘Amr bin Abi ‘Amr from ‘Ikrimah from Ibn ‘Abbas. One narration in Ahmad comes from ‘Abbad bin Mansur instead of ‘Amr bin Abi ‘Amr but in that narration the Prophet is not mentioned and the words quoted are understood to be the words Ibn ‘Abbas:

 ‘Abd al-Wahhab related to us: ‘Abbad bin Mansur informed us from ‘Ikrimah from Ibn ‘Abbas that concerning the one who has sex with an animal he said: “kill the fa`il and maf`ul bihi”. (Ahmad 2597)

But in al-Hakim a narration from the same ‘Abbad bin Mansur from ‘Ikrimah in which the saying of Ibn ‘Abbas becomes a hadith of the Prophet:

From‘Abbad bin Mansur from ‘Ikrimah from Ibn ‘Abbas that he mentioned (dhakara) the Prophet that concerning the one who has sex with an animal he said: “kill the fa`il and maf`ul bihi” (Al-Hakim, quoted from ‘Awn al-Ma‘bud 3869).

Note that this narration is the same as the one from Ahmad except for the words, “he mentioned the Prophet”. These words are awkward and vague, not clearly stating that the death penalty was prescribed by the Prophet. They are a timid attempt to turn a view attributed to Ibn ‘Abbas into a hadith.

It is even doubtful that Ibn ‘Abbas held this view, since in the following narration, Ibn ‘Abbas in fact says something completely different:
Ahmad bin Yunus related to us that Sharik, Abu al-Ahwas and Abu Bakr bin ‘Ayyash related to them from ‘Asim (bin Bahdalah Abi al-Najud) from Abu Razin from Ibn ‘Abbas who said:There is no prescribed punishment for one who has sexual intercourse with an animal.” Abu Da`ud said: “‘Ata also said so.” Al-Hakam said: “I think he should be flogged, but the number should not reach the prescribed punishment (for zina`, that is, 100 lashes)”. Al-Hasan said: “He is like al-zan.” Adu Da`ud said:This hadith of ‘Asim weakens the hadith of ‘Amr bin ‘Amr.” (Abu Da`ud 3872)
The following facts about the above narrations, when taken together, leave little doubt that the hadith prescribing the death penalty for sex with animals is a fabrication resulting from some mistake or an outright lie:
First, the hadith is narrated only on the authority of Ibn ‘Abbas (d. 68) in the first generation, only on the authority of ‘Ikrimah (d. 104) in the second generation, and then mostly from ‘Amr bin Abi ‘Amr (d. 144) in the third generation and very rarely from ‘Abbad bin Mansur (d. 152). Imams Malik, Bukhari, Muslim either did not know about it or did not trust it.
Second, narrators in the third generations, ‘Amr bin Abi ‘Amr and ‘Abbad bin Mansur, are not reliable. Abu Zur‘ah al-Razi considers ‘Amr bin Abi ‘Amr thiqah and Abu Hatim, Ibn ‘Adi and Ahmad say la bas bi hi. But al-Nasa`i considers him munkar and says he is not strong. Bukhari said that ‘Amr bin Abi ‘Amr is trustworthy but he has wrongly attributed to ‘Ikrimah several traditions. Yahya bin Ma‘in and al-‘Ajli also called him thiqah but rejected the ahadith he narrated from ‘Ikrimah from Ibn ‘Abbas. The views of scholars about ‘Abbad bin Mansur are even more negative. Thus he is described as da‘if al-hadith by Abu Hatim, laysa bi shay` by Yahya bin Ma‘in, layyin by al-Razi and munkar al-hadith, qadri, mudallis by Ahmad.

Third, in one narration in Musnad Ahmad, also from ‘Ikrimah from Ibn ‘Abbas, the “hadith” is found as a saying of Ibn ‘Abbas and NOT a saying of the Holy Prophet. So there is a distinct possibility that an opinion of Ibn ‘Abbas was attributed to the Prophet by a later transmitter such as ‘Amr bin Abi ‘Amr.
Fourth, it is doubtful that Ibn ‘Abbas believed in the death penalty for bestiality, since in another tradition Ibn ‘Abbas himself says clearly, “there is no prescribed punishment for sex with an animal”.
Fifth, as noted in ‘Awn al-Ma‘bud, the four Sunni schools of fiqh are unanimous that death is not prescribed for one who commits sexual intercourse with an animal, but may be given some other punishment (yu‘azzar wa la yuqtal). Such an agreement among the fuqaha` would have been difficult to develop if they generally knew and accepted a hadith, in which the  Prophet ordered to kill the one who has sex with an animal.
Although, in view of the above considerations, there can be little doubt the hadith in question is a false hadith, yet some later scholars accept the hadith and then try to reconcile it with the opinion of the fuqaha`. Thus some say that killing is mentioned in the hadith only as a threat not meant to be carried out. Some say that the killing of the man is only a threat but killing of the animal is to be carried out in actuality. In contrast to such artificial explanations of later scholars, Abu Da`ud and Tirmidhi themselves show better sense. Abu Da`ud, facing the obvious, declares: the tradition of ‘Asim (in which it is denied that there is any prescribed punishment for sex with animals) weakens the tradition of ‘Amr bin Abi ‘Amr (in which the death penalty is prescribed). Tirmidhi also shows reservation about the hadith by noting: “We do not find this hadith except from ‘Amr bin ‘Amr and he from ‘Ikrimah and he from Ibn ‘Abbas and he from the Prophet.”
It is necessary that when the weakness of a hadith reaches the level shown above we should have the courage to call it a false hadith, something that many scholars do not do. The authentic teaching of Islam, meant to guide humanity for all times to come, could not have been transmitted in this weak way. If we do not declare such ahadith as false then this means that we cannot free ourselves from the errors and lies of some Muslims in the past and therefore cannot faithfully interpret and implement what God and his Messenger have taught us. This in turn means that we cannot move forward as a civilization.

The real source of the death penalty for bestiality
We have shown above that the death penalty for bestiality does not come from God and his Messenger. So where does it come from? The most likely answer is that the penalty was borrowed from the Jewish tradition. Compare the “hadith” discussed above and what the Bible says. The “hadith” says:
“If anyone has sexual intercourse with an animal, kill him and kill it along with him.” (Abu Da`ud)
In the Bible we read:
If a man has sexual relations with an animal, he shall be put to death; and you shall kill the animal. (Lev 20:5)
The parallel is striking and, in view of the fact that the hadith is not authentic, strongly suggests that some Muslims took the penalty from the Biblical tradition and shamelessly attributed it to the Prophet of Islam.
Some scholars, such as Dr. Israr in our times, opine that a law found in earlier revelations remains valid in the Islamic Shari‘ah unless it is expressly modified and they use this principle to justify rajm for adultery. But it is easy to see that this opinion is incorrect:
The principle that Muslims are bound by the earlier laws unless they are abrogated or modified by the Islamic sources clearly has far reaching consequences for the practice of Islam. It is therefore expected to be stated clearly in the Qur`an or at least in some demonstrably authentic ahadith and we also expect scholars to generally accept it. But we find no statement of the principle in the Qur`an and the authentic ahadith. And the fact that the scholars have generally rejected the death penalty for bestiality despite the fact that this penalty is explicitly stated in the Torah and even in some ahadith shows that the scholars do not accept the principle. 

Death Penalty for Incest

Incest of course is zina`, at least in the heterosexual case, and if any perpetrator of the crime is married, then he or she deserves the death penalty according to the supporters of rajm. But there is a hadith that goes further and prescribes the death penalty for incest regardless of the marital status. This hadith is found in Tirmidhi, Musnad Ahmad and Ibn Majah.

Muhammad bin Rafi‘ related to us: Ibn Abi Fudayk related to us from Ibrahim bin Isma’il ibn Abi Habibah from Da`ud bin al-Husayn from ‘Ikrimah

from Ibn ‘Abbas from the Prophet who said: “If anyone calls another (Muslim)‘O Jew!’ strike him 20 times; if anyone calls him ‘O eunuch!’, strike him 20 times; and whoever has sex with a mahram, kill him.”

The above narration is from Trmidhi. The narrations in Ahmad and Ibn Majah are:

Abu al-Qasim bin Abi al-zinad related to us saying: (Ibrahim bin Isma’il) ibn Abi Habibah informed me from Da`ud bin al-Husayn from ‘Ikrimah

from Ibn ‘Abbas who said: The Messenger of God said: Kill the one who commits the action of the people of Lut and the one to whom it is done and (kill) the animal and the one who has sex with that animal; and whoever has sex with a mahram, kill him. (Ahmad 2591)

‘Abd al-Rahman bin Ibrahim al-Dimashqi related to us: Ibn Abi Fudayk related to us from Ibrahim bin Isma’il ibn Abi Habibah from Da`ud bin al-Husayn from ‘Ikrimah

from Ibn ‘Abbas who said: The Messenger of God said: Whoever has sex with a mahram, kill him and whoever has sex with an animal kill him and kill the animal. (Ibn Majah  2554)

There seems to be greater support among scholars for the death penalty in case of incest than in case of bestiality. But this is not because the hadith in case of incest is more reliable. Indeed, for the following reasons the above hadith is even weaker than the one concerning sex with animals:

First, while the hadith in case of bestiality has only one narrator for the first two generations of transmitters and at most two in the third generation, the above hadith has only one narrator for the first four generations. Only Ibn ‘Abbas is said to narrate it from the Prophet, only ‘Ikrimah is said to narrate it from Ibn ‘Abbas, only Da`ud bin Husayn from ‘Ikrimah, and only Ibrahim bin Isma‘il from Da`ud. Since Ibrahim bin Isma‘il died around 165, we are obliged to conclude that for about one and a half century after the departure of the Prophet from this world the knowledge of this hadith remained limited to one or a very few persons. Moreover, since Malik, Bukhari, Muslim, Abu Da`ud, and probably also al-Nasa`i were either ignorant of this hadith or they did not consider it reliable, the hadith remained unknown or under suspicion for another century or so.

Second, one link in the isnad, Ibrahim bin Isma‘il, is far less reliable than any in the hadith about sex with animals. Yahya bin Ma‘in, Tirmidhi, and al-Nasa`i consider him da‘if while Bukhari and Abu Hatim consider him munkar al-hadith. Hardly, any scholar has something positive to say about him.

We can conclude with complete confidence that the hadith in question is a fabrication resulting from a mistake or a lie against the blessed Prophet. We must forcefully and categorically reject this hadith – and for that matter other similarly weak ahadith. For, otherwise, we would for ever remain mental hostages to the errors and lies of some irresponsible people in earlier times and will not be able to obey God and his Messenger as we should.

The execution of a man who married his father’s wife

Commenting on the hadith discussed above, Tirmidhi says:

“We do not know of this hadith except through this chain (wajh) and Ibrahim bin Isma'il is considered weak in hadith. It has been narrated from the Prophet through a different chain by al-Bara` ibn ‘Azib and Qurrah ibn Iyas al-Muzanni that a man married the wife of his father and the Prophet ordered his execution. This is the basis of actual action among our associates. They said: ‘Whoever knowingly has sex with a mahram deserves the death penalty.’ Ahmad said: ‘Whoever married his mother is to be killed.’ Ishaq said: ‘Whoever has sex with a mahram is to be killed.’ (Tirmidhi 1382)

That is, scholars who support the death penalty for incest do so not on the basis of the hadith of Ibn ‘Abbas, which is considered weak, but on the basis of the tradition of the execution by the Prophet of a man who married his father’s wife (after his father died or divorced the wife). This tradition is examined more fully in Appendix I to this chapter. Here we note the following:

First, it is not justified to deduce the death penalty for incest generally from the execution for marrying the wife of one’s father after his death. Such a marriage, which was practiced before Islam, would not simply be a violation of the law of God but a rebellion against it.

The Holy Qur`an has commanded:

 “Do not marry women whom your fathers married except what has already passed. It was indeed a shameful, hateful, and evil way.” (4:22)

Marriage is by its very nature a public matter: it is a declaration by a man and a woman that they are entering in a sexual relationship. In the face of the above law of God it would be an intolerable act of defiance. The man who was reportedly executed for such a marriage must have clearly contracted the marriage after the commandment had come, since the Holy Qur`an explicitly exempts “what has already passed”. There is the possibility that the knowledge of the law did not reach the man. But we can safely assume that in such a case he would not have been executed before he was given a chance to repent and undo what he had done. Thus the man must have rejected the law itself and not simply violated it out of some weakness. We can compare his case to those “Muslims” who soon after the death of the Prophet refused to pay zakah in defiance of the clear commandments of God.

That the man was executed, if at all, as a rebel is further supported by the manner of execution: beheading. In a narration in Tirmidhi the Prophet is alleged to have commanded that the man’s head be brought to him. In ancient times this type of treatment was done to the rebels and not to perpetrators of sexual offences. Although the detail about the head of the culprit is not found in any other narration of the story and is certainly secondary, it nevertheless shows that some transmitters understood the execution as a case of death for a rebel.

Second, even for rebellion or apostasy the death penalty is not to be taken for granted, since even for the worst rebels the Qur`an (5:33) mentions the death penalty only as one of several possibilities starting from exile. And even these punishments are not “prescribed” like the punishments for zina` or stealing but are simply said to be fitting.

Third, it is not certain that the execution took place in the time of the Prophet. It would be more understandable if it took place after the time of the Prophet, say in the time of Sayyidna Abu Bakr, because in that time some insincere and recent converts took advantage of the death of the Prophet and rebelled against Islam in various ways.

We therefore conclude that the death penalty for incest is not prescribed by God and his Messenger.

The real source of the death penalty for incest

As in the case of bestiality, so also for incest the real source of the death penalty is not God or his Messenger but the Jewish law, not all of which is from God or from the Prophet Musa:

The man who lies with his father's wife has uncovered his father's nakedness; both of them shall be put to death; their blood is upon them. If a man lies with his daughter-in-law, both of them shall be put to death; they have committed perversion, their blood is upon them. If a man takes a wife and her mother also, it is depravity; they shall be burned to death, both he and they, that there may be no depravity among you. If a man takes his sister, a daughter of his father or a daughter of his mother, and sees her nakedness, and she sees his nakedness, it is a disgrace, and they shall be cut off in the sight of their people; he has uncovered his sister's nakedness, he shall be subject to punishment. (Lev 20:11-12, 14, 17)

Death Penalty for the Homosexual act

The pattern of attributing to the Holy Prophet death penalties borrowed from the Torah that he never himself prescribed continues in case of the homosexual act. Unlike the death penalty for incest and bestiality, for the homosexual act we do find the penalty mentioned in a relatively early book – Muwatta. But this early mention is found only as an opinion of Ibn Shihab, and not as a prophetic hadith or as a word of a Companion:

Malik related to me that he asked Ibn Shihab about someone who committed the homosexual act (‘amal qawm lut, the deed of the people of Lut). Ibn Shihab said, "He is to be stoned, whether or not he is married (muhsan)." (Muwatta 41/11, reproduced in Ahmad 1297)

Here Ibn Shihab does not indicate whether the opinion he is expressing is his own or it comes from something that the Prophet or a Companion said. This recalls what Rabi‘ah used to say to Ibn Shihab:

Rabi‘ah would say to Ibn Shihab: When you narrate something according to your own opinion, always inform the people that this is your own view. And when you narrate something from the Prophet, always inform them that it is from the Prophet so that they do not consider it to be your opinion. (Khatib al-Baghdadi, Al-Faqih wa al-Mutafaqqih, vol. 1, Lahore: Dar al-Ahya al-Sunnah, p. 148).

One possible, if not probable, reason that Ibn Shihab is not quoting any saying of the Prophet or a Companion on the question raised by Malik is that he does not know any such saying. The same can be said even with greater confidence about Malik, since had he known a hadith or a saying of a Companion, which he considered authentic, he would not have asked Ibn Shihab about the matter or, at least recorded this hadith or saying instead of, or in addition to the word of Ibn Shihab. But in his Muwatta he does not quote anyone except Ibn Shihab.

Bukhari and Muslim also do not contain any hadith or saying on the matter. But in later books the legal opinion expressed in Muwatta by Ibn Shihab becomes an opinion of a Companion, none other than the ubiquitous Ibn ‘Abbas who like Abu Hurayrah became in the tradition a convenient spokesman of every kind of opinion:

Ishaq bin Ibrahim bin Rahawayh related to us: ‘Abd al-Razzaq related to us: Ibn Jurayj informed us: Ibn Khuthaym informed me saying:

I heard Sa‘id ibn Jubayr and Mujahid relate from Ibn ‘Abbas in the matter of an unmarried person (al-bikr) who is caught in the homosexual act (al-lutiyyah). He said: “He is to be stoned”. (Abu Da`ud 3870).

Here it is understood that a married person who is guilty of the homosexual act is to be stoned.  The question is what is to be done with a person who is unmarried. By answering that he is to stoned, Ibn ‘Abbas is saying exactly what Ibn Shihab opined.

In later books a view similar to that of Ibn Shihab is found as a hadith of the Holy Prophet. Most preferred narration of this hadith is from ‘Abd al-‘Aziz bin Muhammad from ‘Amr bin Abi ‘Amr from ‘Ikrimah from Ibn ‘Abbas and its contents read:

The Messenger of God said: “If you find anyone doing as the people of Lut did, kill the one who does it, and the one to whom it is done.” [2] (Abu Da`ud 3869, Tirmidhi 1376, Ibn Majah 2551)

Since the narration in Abu Da`ud 3870 does not attribute the death penalty for the homosexual act to the Prophet but only to Ibn ‘Abbas, it is quite possible that the tradition originally was not marfu‘ (attributed to the Prophet) but became so only at a later time. Earlier we noted a similar situation in case of a hadith from ‘Abbad bin Mansur about bestiality. In one narration (Ahmad 2597) the death penalty for this misdeed is attributed to Ibn ‘Abbas while in another narration, reported in al-Hakim, it becomes a hadith. This evidence strongly suggests that death penalties for sexual crimes were not originally based on the words of the Prophet but of some Companions. We can even go further: since the death penalty at least for the homosexual act was not known to al-Zuhri or Imam Malik as a hadith or even as an opinion of a Companion but as an opinion of some fuqaha` among the Successors, it is quite possible that even its attribution to a Companion such as Ibn ‘Abbas is not historical. Certainly, in case of bestiality we have seen evidence showing that Ibn ‘Abbas did not think that there was any prescribed penalty.

It is also worth noting that all the ahadith about the death penalty for deviant sex, i.e. sex with animals, a mahram, or a member of one’s own gender come from the same very small group of transmitters in the first four generations: Ibn ‘Abbas, ‘Ikrimah, Da`ud bin al-Husayn, ‘Amr bin Abi ‘Amr, Ibrahim bin Isma‘il etc. If the Prophet prescribed the death penalty for all these crimes, it is strange that its knowledge in all three cases remained limited to a few Hadith students for about one and a half century.  

The reliability of the hadith prescribing the death penalty for the homosexual act is further called into question by the fact that scholars in all ages have shown ignorance or reservation about it. We have already noted that in the first century al-Zuhri shows no knowledge of it, as also Imam Malik in the second century, even though both were clearly interested in the question of punishment for the homosexual act, since they talked about it.  Bukhari and Muslim in the third century did not know the hadith or did not accept it, since they do not include it in their collections. In addition to Malik other early fuqaha` also probably did not know or did not accept any hadith on the subject. Thus Abu Hanifah or early Hanafi fuqaha` turned not to any hadith but to Qur`an 4:16 for guidance about the penalty for the homosexual act. Al-Sindi in his commentary on Ibn Majah notes:

“The famous view of Abu Hanifah is that [the one who engages in the homosexual act] is disciplined (yu`addab) but there is no hadd for him. His followers have argued this on the basis of the word of the Most High: ‘And the two (alladhan) among you, who commit it (fahishah), punish (`adhu) them both. And if the two repent and do good, leave them alone’.”

It is unlikely that Abu Hanifah arrived at the position that the homosexual act requires only discipline and no prescribed death penalty if he knew and accepted the hadith with the clear words of the Prophet: “kill the one who does it and the one with whom it is done”. Hence the hadith either did not exist in the time of Abu Hanifah (d. 150) or it was unknown/unacceptable to him.  Later scholars of his school, of course, knew about the hadith but still a majority of them maintained that there is no prescribed death penalty for the homosexual act, which means that they did not take the hadith seriously enough. Some of them, it seems, accepted the hadith and attributed to Abu Hanifah a view incorporating the hadith. Thus Thana Allah Panipati in commenting on Qur`an 4:15-16 mentions another view attributed to Abu Hanifah[3]: if a person persists in homosexual acts, he can be killed.[4]

Shafi‘i also does not seem to have used this hadith. According to Sharh al-Sunnah there are two views attributed to him. According to one view, considered the most authentic by some[5], the punishment of one who performs the homosexual act is the punishment for zina`[6] -- rajm if the man is married and 100 stripes if unmarried. For the one with whom it is performed the punishment is 100 stripes and exile for a year whether or not he is married. This view is not based on any hadith, since no hadith supports the distinctions made by Shafi‘i on the basis of married or unmarried or on the basis of being a fa‘il or maf‘ul bi hi. This view represents ijtihad done by Shafi‘i without the use of any hadith. But later another view was attributed to Shafi‘i, according to which both partners in the homosexual act are to be stoned. But even this view shows no knowledge of a hadith on the subject, since it is supported not on the basis of a hadith of the Prophet but an action of ‘Ali, the fourth khalifah. Muhammad bin ‘Abd al-Rahman Mubarakpuri, in his commentary on Tirmidhi (Tuhfah al-`Ahwadhi bi Sharh Jami‘ Tirmidhi) says:

Al-Bayhaqi records about ‘Ali that he stoned a Luti. Shafi‘i said that it is on this basis we hold that the a Luti is to be stoned whether married or unmarried.

It is natural to think that this second view was attributed to Shafi‘i after some ahadith and traditions about the Companions appeared and became known and gained some acceptability.

Tirmidhi includes the hadith in his collection but shows reservation about it in the following words:

Abu ‘Isa [al-Tirmidhi] said: It is through this line (wajh) that this hadith is known and Muhammad bin Ishaq reported this hadith from 'Amr bin Abi 'Amr, in which he said "he who does the act of the people of Lut is cursed" but did not mention killing and in that hadith it was also said that he who has sex with an animal is cursed. This hadith has also been reported from 'Asim bin 'Umar from Suhayl bin Abi Salih from his father from Abu Hurayrah from the Prophet who said, “Kill the one who performs the act and the one on whom it is performed”. Abu ‘Isa [al-Tirmidhi] said: the isnad of this hadith is a matter of contention; we do not know anyone who reported it from Suhayl bin Abi Salih except ‘Asim bin ‘Umar al-‘Umari and 'Asim bin 'Umar is considered weak in hadith before his hifz. And people of  knowledge have differed regarding the penalty for one who does the homosexual act. Some of them said that he is to be stoned regardless of whether or not he is married. This is the view of Malik and Shafi‘i and Ahmad and Ishaq. And some people of knowledge among the fuqaha` of the Successors, including al-Hasan al-Basri and Ibrahim al-Nakh‘i and ‘Ata bin Abi Rabah said the hadd for a luti is hadd of zan and that is the view of Thawri and the scholars of Kufa.

Al-Sindi in his commentary on Ibn Majah interprets Tirmidhi’s comments to mean that he “has considered this hadith weak”.

We have discussed above the most preferred hadith about death penalty for the homosexual act and shown that this hadith is falsely attributed to the Prophet. There are some other ahadith on the subject but they do not talk about the death penalty and/or are even weaker[7].

A story about ‘Ali

That the Prophet never prescribed any death penalty for the homosexual act is also assumed in a story about ‘Ali by Al-Bayhaqi (d. 458):

Ibn Abu al-Dunya from ‘Abd al-‘Aziz ibn Abi Hazim from Da`ud ibn Bakr from Muhammad ibn al-Munkadir:
Khalid ibn al-Walid wrote to Abu Bakr concerning a man with whom other men had sexual intercourse. Thereupon, Abu Bakr gathered the Companions of the Prophet and sought their opinion. `Ali was the strictest of all, saying, 'Only one nation disobeyed God by committing such sin and you know how God dealt with them. I see that we should burn the man with fire.’ The Companions unanimously agreed on this.” (Al-Bayhaqi, Shu`ab al-Iman).
This incident is also mentioned by al-Waqidi under the subject of apostasy at the end of the section on the apostasy of Banu Salim. The story clearly assumes that the Prophet never prescribed any penalty for the homosexual act, since none of the Companions gathered by Abu Bakr quotes any hadith during the consultation.

Many unhistorical traditions have some historical incident that lies behind them, which they radically transform. But there are some traditions that represent stories created entirely from imagination. The above tradition is an example. There is absolutely no historical basis for this story. This is because:

n      If all the Companions sat down and decided on any matter of law, it is impossible that we would not read about this decision in any of the books such as Muwatta, Bukhari, Muslim, Abu Da`ud, Tirmidhi, al-Nasa`i, Ibn Majah, Musnad Ahmad. It is also impossible that so many fuqaha will go against this ijma‘ of the Companions and suggest other types of punishments such as stoning, or 100 lashes, or exile etc.
n       The burning of the people of Lut is not mentioned in the Qur`an, which mentions rain of stones of baked clay  (11:82; see also 7:84, 15:74, 27:58, 29:34, 51:33, 54:34). Burning is implied in the Bible, since the Bible says that God sent sulphur and fire on the people of Lot (Gen 19:24).
n       The story is at odds with other traditions in which some Companions allegedly suggest penalties different from the one on which they supposedly agreed in the above story. We have already referred to the tradition that ‘Ali stoned a man guilty of the homosexual act. It is strange that after suggesting to the other Companions, and obtaining agreement from them for, burning the culprit in accordance with what God did to the people of Lut, ‘Ali himself applies the penalty of stoning!  No wonder scholars do not take any of the two traditions about ‘Ali seriously. None of the commentaries – ‘Awn al-Ma‘bud, Tuhfah al-`Ahwadhi etc mention the story in which the Companions agree on death by burning. As for the tradition that ‘Ali stoned a Luti, Tuhfah al-`Ahwadhi alone mentions it only to dismiss it with a brief comment: “As for the stoning by 'Ali of a Luti, it is his action”. 

Other Proposed Penalties

Ibn Abi Shaybah (d. 235?) in his Musannaf and al-Bayhaqi record the saying of Ibn ‘Abbas that a person guilty of the homosexual act should be thrown down from the highest building in town and then showered with stones (Panipati). ‘Awn al-Ma‘bud mentions similar penalties but without attributing it to Ibn ‘Abbas: “It has been said of the manner of their execution that it is by demolishing a building over them or throwing them from a high  place (shahiq) as it was done to the people of Lut.” These penalties are based on the Qur`anic statement that the town of Lut was demolished and rained with stones made of baked clay, so that some of the sinners died under the rubble of demolished buildings and others by falling from height and those who survived succumbed to the raining stones. This leads to the punishments of throwing the culprits from a high building – further suggested by the fact that for “demolishing” the Qur`an uses the expression “made its high its low” -- or demolishing buildings over them and if they survive showering them with stones. These penalties provide examples of how some fuqaha used unsound logic to arrive at their rules that some Muslims regard as will of God. It is clearly an unsound procedure to devise penal codes from the way God punished past nations. Muslim fiqh is full of rules of this type and there is a need to re-examine the whole process by which fiqh was built in the past and to thus rebuild it on a foundation more faithful to the Qur`an, the authentic Sunnah, and reason.

Ibn Zubayr is reported to have said that the two culprits should be locked up in a place full of very obnoxious smell till they die. (Panipati). This comes from Qur`an 4:15 with the addition that the place of imprisonment be filled with a bad odor, probably to reflect the fact that the culprits prefer to have sex involving the anus, which is full of refuse and bad smell.

All this diversity of punishments proposed shows that imagination of some irresponsible early Muslims rather than inspiration from God is at play in these traditions.

The real source of the death penalty for the homosexual act

The situation now becomes clear: Sometimes towards the end of the first century Muslims began to think about the punishment for the homosexual act. Some used analogy, comparing it with zina`. This ijtihad led to the view that a Luti is to be given 100 lashes or to the view that he is to be stoned if married and given 100 lashes if unmarried. But some fuqaha` made a distinction between zina` and homosexual act. These fuqaha` either turned to the Qur`an (4:15-16) or to the Bible for a penalty. The Qur`an suggested a penalty other than death such as harsh beating or imprisonment (see below). But the Bible suggests the death penalty:

If a man lies with a male as with a woman, both of them have committed an abomination; they shall be put to death; their blood is upon them.  (Lev 20:13)

The Bible is very keen to prescribe the death penalty. This is partly because the Biblical law represents an altered form of the laws originally given by God or the Prophet Musa and partly because the laws of Torah were sometimes given in response to the hardness of the hearts of the children of Israel (Qur`an 6:146, Ezekiel 20:24-26) and are therefore specially harsh. The Qur`an, on the other hand, is meant to be a mercy for all nations and for all times (21:107, 33:40). It rarely prescribes the death penalty. Even for such crimes as sedition, robbing, killing, death is only one of several possible penalties. However, some earlier Muslims did not rise to a better understanding of the Qur`an and so they brought from the Torah in its altered form death penalty for all kinds of sexual misconduct.

Notice that the Biblical passage cited above makes no distinction between married or unmarried persons or between the one who does the homosexual act and to whom it is done. This is exactly what the “hadith” says: “If you find anyone doing as the people of Lut did, kill the one who does it (fa‘il), and the one to whom it is done (maf‘ul bi hi).” Also, notice that this hadith just like the Biblical verse does not specify the actual manner of death.

Even before the Biblical law became a “hadith” it probably influenced fuqaha` and there were speculations about the manner of execution. Some used a limited analogy with zina` and arrived at stoning, which, in the case of zina` was itself borrowed from non-Muslim sources, as we shall argue in future chapters. Others turned to the story of Lut and conceived penalties similar to those suffered by the people of Lut either in the Qur`an or in the Bible.

That some Muslims were in touch with non-Muslim traditions and under their influence fabricated traditions is shown more clearly by the story, discussed earlier, of how Abu Bakr convened a meeting of all the Companions and how the Companions unanimously decided upon a suggestion of ‘Ali that the homosexuals be burnt alive like the people of Sodom and Gomorrah. As we noted earlier, the Qur`an does not mention fire or burning in connection with the people of Lut, but the Bible does. Not only this but even the use of the Biblical story to arrive at the punishment of death by burning had been made some centuries earlier. In 390 CE the punishment of burning alive had been decreed for homosexuals by the Christian emperors, first for homosexual prostitutes and then by 559 CE for all homosexuals.

The Qur`anic Penalty for the Homosexual Act

We earlier encountered the view of some Hanafi scholars that Qur`an 4:15-16 gives a penalty for the homosexual act. The majority of scholars have come to reject this view, but the view has been held from very early times, as we see from the following comment in Ibn Kathir’s tafsir:

“Then [in 4:16, God] said that if this lewd deed is done by two men among them, punish them, i.e. scold them verbally and beat them. This order also stayed in force until God abrogated it by lashes and stoning. ‘Ikrimah, ‘Ata`, Hasan, ‘Abd Allah bin Kathir say that this (verse) also refers to a man and a woman. Al-Suddi says that it refers to young unmarried men. Mujahid also says that this verse is about the homosexual act. The Prophet said that if you find some persons doing the deed of the people of Lut, kill them both.”

Abu Muslim Isfahani also believed that the verses are about unnatural sex. In recent times the view is held by Yusuf ‘Ali, Thana Allah Panipati, and Muhammad Asad, the last two saying that the passage includes both heterosexual and homosexual misconduct. We now argue that this view is substantially correct and that the two verses are talking about unnatural sex including homosexuality.

 The verses read:

Those among your women, who commit fahishah, provide against them four witnesses from among you. Then if they testify, confine them to the houses till death takes them or God provides for them a way out. And the two (alladhan) among you who commit it (fahishah), punish (`adhu) them both. And if the two repent and do good, leave them alone. Surely, God is most accepting of repentance and most merciful.

As is well-known fahishah is a very general concept. It refers to every kind of lewdness, indecency etc in speech or action. In particular, it refers to illicit or deviant sexual conduct of every kind. Fornication and adultery is fahishah (4:25), marriage with the wife of one’s father is fahishah (4:22) as also the homosexual act (29:28). In every verse the context clarifies what is meant. In 4:25, which is talking about slave women committing fahishah after marriage, the reference is to adultery.

The word can also include: 1) bestiality; 2) a man and a woman, not married to each other, baring themselves naked, touching, or kissing even if they do not culminate the sexual act by penetration; 3) publicly displaying one’s naked body as in a striptease show or pornographic movies.

The following arguments strongly suggest that in 4:15-16 fahishah includes the homosexual act.

First, although it is sometimes assumed that these two verses were revealed before -- and are abrogated by -- the punishment for zina` prescribed in 24:2, this is by no means the soundest view. There is no evidence for this in the Qur`an and the Hadith. In fact, both the Qur`an and the Hadith point in the opposite direction.

Thus there is no hadith stating that the promise in 4:15-16 of God providing another way was fulfilled when God revealed 24:2 or that 4:15-16 is abrogated by 24:2. To the contrary, the following hadith clearly implies that the promise of God providing “another way” was fulfilled not by 24:2 but by the hadith:

From ‘Ubadah bin al-Samit: The Messenger of God said: ‘Take it from me, take it from me, God has provided a way: for bikr with bikr flogging with a hundred stripes and banishment for one year; for al-thayyab with al-thayyabah, flogging with a hundred stripes and [death by] stoning.’”

Here the words, “God has provided a way” refer to similar words in 4:15 with the clear implication that the punishment in 4:15 is replaced by the one given in this hadith[8].

As for the evidence within the Qur`an, it suggests that 4:15-16 was revealed after 24:2. Note that the whole section 4:15–28 forms a unity, in which 4:25 was probably revealed after 24:2. To elaborate the point, the fourteen verses in the section are connected by the fact that they deal with various forms of fahishah: verses 15-16 deal with some form of fahishah that we may for the moment leave unspecified; verses 17-18 elaborate the meaning of repentance mentioned in verse 16; verses 19-21 exhort against getting any money back from wives except in case they are guilty of manifest fahishah; verses 22-24 talk about relatives such as the wife of one’s father with whom marriage would be fahishah; verse 25 deals with marriage with slaves and punishment of a slave woman if she commits fahishah (adultery) after marriage; and 26-28 form the conclusion of the section. Because the whole section is such a connected piece, it is quite natural to assume that the section was revealed as a unity. Now 4:25 was very probably revealed after 24:2, since it says that for adultery slave women receive half of the penalty for free women and only the punishment in 24:2 can be halved. It thus seems probable that the whole section 4:15-28, and in particular the verses 15-16 that interest us here were revealed after 24:2. This means that 15-16 either abrogate the punishment for zina` in 24:2, for which there is no basis, or these two verses are talking about a form of fahishah that is not covered by 24:2. This could only be such unnatural sex as the homosexual act, sex with animals etc. This makes the chronology of the verses much more understandable: the Qur`an first dealt with the more common case of natural but illicit sex in 24:2. At a later time it turned to other, less common, cases of unnatural sex in 4:15-16.

Second, although alladhan can be used for a couple consisting of a man and a woman or two men or two women, its most natural reference is to two men. It is noteworthy that the Qur`an uses this word only in 4:16. Elsewhere, when it talks about fahishah it either uses the singular or the general plural, even if the fahishah involves two persons (see 4:19, 25, 24:2, 65:1). This alone shows that something different is intended in 4:16. But the structure of the verses provides a further much more compelling reason that in 4:16 alladhan refers to two men. If 4:15-16 concerned the heterosexual zina`, then we should expect the verses to read something like:

As for those of your women who commit fahishah … confine them in the houses … And as for those of you (men) who are guilty of it, punish them (in some other way) ….


If any two of you commit fahishah, …, confine the woman in the house and punish the man (in some other way).

But instead of such a construction, 4:15 tells us that the punishment for women who commit fahishah is indefinite imprisonment while 4:16 talks about the punishment of “the two of you” who are guilty of it. If we take alladhan as a man and a woman, then we once again have a reference to the punishment for women, even though this matter was already dealt with in verse 15. If we interpret this to mean that the guilty women not only are sentenced to indefinite imprisonment but also receive the punishment that men receive, then this is not consistent with the spirit of the Qur`an, which regards zina` by women and men with equal seriousness and in 24:2 prescribes equivalent punishment.

In an attempt to solve this difficulty  some scholars suggest that verse 15 is about married women and verse 16 is about unmarried man and unmarried woman. But, apart from the fact that the verses provide no basis for such a suggestion, this will leave out the important case of zina` by married men altogether. Another suggestion, even more artificial, is that verse 16 was revealed earlier and is abrogated by verse 15, so that first the penalty for heterosexual zina` was idha` (understood as scolding and beating) as mentioned in verse 16 and this was then changed in 15 to imprisonment and then in 24:2 to flogging. This suggestion does not explain why in verse 15 only women are mentioned. Moreover, the suggestion overuses the concept of abrogation to a point that God begins to appear like someone who does not know what punishment he should prescribe. The best and natural way to understand the verses is thus to take 15 as talking about women and 16 as talking about two men, which would mean that verse 16 is referring  to the homosexual act among two men. 

Some writers do admit that verse 16 is about homosexual fahishah, but they interpret verse 15 as talking about heterosexual fahishah. This view is understandable, since if we read the verse by itself, it sounds very much like some other verses where heterosexual fahishah is mentioned, e.g., 4:25: “and after they have been taken in wedlock, if they commit fahishah, their punishment is half that of free women”. But a closer look shows the view not to be very probable. For:

1)      Notice that verse 16 says, “Those two of you who commit it”. Here “it” can only refer to the fahishah mentioned in 15, suggesting that the two verses are to be interpreted in the light of each other and that homosexuality mentioned in verse 16 is included in the fahishah by women mentioned in verse 15. That the two verses are closely related and need to be interpreted in the light of each other is also shown by the fact that verse 15 specifies that women guilty of fahishah are to be imprisoned after they are proved guilty by the testimony of four witnesses. But in verse 16 no witnesses are mentioned in connection with two men. This does not mean that two men can be punished without proper evidence. It only means that in interpreting verse 16 we have to take for granted the rule of evidence mentioned in verse 15.
2)      We earlier argued that 24:2 was revealed before the verses under consideration. If we take verse 15 as referring to natural but illicit sex, then we have to once again say that the flogging prescribed in 24:2 is abrogated by house imprisonment in verse 15, which has never been suggested by anyone.
3)      If we take verse 16 as referring to unnatural sex committed by men and verse 15 to illicit natural sex, then this leaves out the case of unnatural sex committed by women. 

One may ask that if the verses are talking about homosexuality and other unnatural forms of sex, why this is not made clearer? The answer is that at the time of revelation the meaning was quite clear. The Qur`an had already prescribed punishment for zina`. Then this verse comes down, separately talking about those women who commit fahishah and the two men who commit “it”. Everyone would understand what is meant. Later readers can also easily get that meaning, as many have done, if they make due effort to reflect on the Qur`an.

We now explain the two verses word by word.

“Those” (allati). This is general feminine plural. One question that may be raised against the view that verses 15-16 talk about unnatural sex is why, in contrast to men in verse 16, in case of women the plural allati (those women) and not allatan (those two women) is used. But this type of question arises regardless of how we interpret the verses. Thus if we interpret them as referring to heterosexual fahishah, we can ask why the second verse did not use alladhina instead of alladhan, in parallel to verse 15? But the view favored here  --- verses 15-16 talk about fahishah that is not covered in 24:2 under the term zina`, actually does provide an explanation for the use of allati in connection with women and alladhan in connection with men. For, it appears that homosexuality has never been as common among women as among men. Research shows that in our times homosexuality among men is far more common than women. Some estimates make it ten times more common among men than among women[9]. That the situation was somewhat similar in earlier times is shown by the fact that while the Torah prohibits homosexual act among males it does not even mention it among women. Consider the following passages again:

If a man has sexual relations with an animal, he shall be put to death; and you shall kill the animal. If a woman approaches any animal and has sexual relations with it, you shall kill the woman and the animal; they shall be put to death, their blood is upon them. (Lev 20:15-16)
Here in connection with sex with animals both men and women are mentioned in two parallel passages. But in the law about homosexuality we read only:
If a man lies with a male as with a woman, both of them have committed an abomination; they shall be put to death; their blood is upon them. (Lev 20:13)
This law is not followed with a similar law for women, neither here nor anywhere else in the Old Testament. Likewise in the New Testament[10], in the laws issued by the Christian Byzantine emperors, and in the Hadith[11] we find rarely any reference to homosexuality among women.

It may be that reason for the scarcity of references to homosexuality among women is partly that sex in ancient cultures was associated closely with genital penetration and this was not possible among women. But still if homosexuality had been common among women we should expect it to receive much greater mention in the legal and religious traditions of the past than it actually did.  

Keeping the above facts in mind, we can now explain why feminine allatan is not used in verse 15 while its masculine equivalent alladhan is used in verse 16. In case of men, apart from fornication and adultery covered in 24:2, homosexuality is the most common form of fahishah and so it is the focus in verse 16. Other forms of fahishah such as bestiality can be dealt with by analogy. In case of women, neither homosexuality nor probably any other one type of fahishah, other than heterosexual zina`, is particularly common and consequently no particular type receives a special focus; fahishah is left in its general form covering homosexuality, bestiality and even other acts like striptease shows. To refer to fahishah in this general sense, the use of allatan (“those two women”) is not suitable. Hence the general plural allati (those women) is used... This is somewhat similar to the reference to four witnesses in verse 15 in case of women while there is no such reference in case of men in verse 16, where it is left understood. This is because women are much more adversely affected by accusations of sexual indecency than men, and therefore the rules of evidence are mentioned in case of women (see also 24:4, 13, which also mention witnesses only in connection with women) and left understood for men. Similarly, homosexuality is much more common among men than among women and so it is mentioned especially for men while for women it is left understood.

“among your women” (min nisa`i kum). Here “your” (general masculine plural) could refer to Muslim men or the whole Muslim community. “Your women” can cover both married and unmarried women (see 2:45, 2:187, 3:61 etc). 

“commit fahishah”. The word translated as “commit” in both verses is in the present tense (ya`tina and ya`tiyani). Although this is not always the case (see 4:19) but this tense often suggests a repeated action. Contrast this with 4:25, which talks of adultery, where the verb is in the past tense (atayna), suggesting a one-time action.

“provide against them four witnesses from among you”. As noted above, this rule is implicitly understood for the case of men in verse 16. Once again the verse uses “among you”. If the address is to the believing men, then this means that witnesses are men. If “you” refers to the whole Muslim community, then the witnesses can be men and/or women. Even in the first case it is possible that the emphasis is not on the gender of the witnesses but on their being believers. That is, the meaning is not that the witnesses should be men but that they should be believers.

“Then if they testify, confine them to the houses”. “The house” could be the house of the guilty woman, her family’s house, or her husband’s house, if the husband does not divorce her. It could also be a place belonging to the community, a kind of prison where the woman can live as in a house. If the imprisonment takes place in the house of the woman or her relations, then the Islamic government should supervise it. Firstly, it should ensure that due confinement does take place and, secondly, to provide every possible type of help needed for reform.

In this verse the punishment in case of women is specified while for men, as we shall see, it is left open. This is probably for the protection of women because when the punishment has been specified, the authorities cannot make it harsher. 

till death takes them or God provides for them a way out”. Women may engage in fahishah because they cannot get married as a result of some defect from which they suffer or because their marriage for some other reason is delayed far beyond the age of their sexual maturity or because of a deviation in their sexual urges. The purpose of imprisonment is to eliminate opportunities for fahishah and at the same time provide opportunity for reflection under the influence of suitable education and training. This imprisonment is to continue till death unless “God provides for them a way out” before that. These words are often understood to mean that “unless God reveals a different type of punishment” which he did in Qur`an 24:2 or in the hadith of ‘Ubadah bin al-Samit. But this interpretation is not at all satisfactory. First, as noted earlier it is far from clear why 24:2 should be considered later than 4:15. Second, “God providing a way out” is something positive rather than another form of punishment. Third, there is no reason why God could not have given the best punishment in verse 15 instead of first giving a different punishment, presumably not so good, and promising to give a better one at a later time. Fourth, for women imprisonment seems to be the best punishment for unnatural sex.

The meaning of “till God provides for them a way out” is simply that God changes the circumstances so that the causes of the bad ways are removed. For example, if the deviant sexual behavior was caused by difficulty in finding a marriage partner, such a partner may become available at some point. The imprisonment will then end, if there is a real possibility of reform. If the behavior was due to deviation in sexual urges, imprisonment after a certain period may lead to reform and it may be possible to resume normal marital relationship. Again the imprisonment will end at that time. Both eventualities are far from being easy and so the change of circumstances is described as “God providing a way out”, although admittedly even easy things come from God.

Thus the words “till God provides for them a way out” are meant to make us look forward to the possibility of reform and healing rather than focus on punishment. Those who take the words as a promise for another, different, type of punishment are focusing too much on punishment, which is not the focus in these verses. This will also become clear when we comment on the next verse.

As noted in Ch. 4, imprisonment is also the punishment for adultery in the code of the Christian emperor Justinian. But the Qur`anic punishment, apart from the fact that it is not for adultery but for unnatural sex, differs from the Justinian code in the following important way: In the Justinian code the husband can get the woman out of confinement within two years; if he does not, then she remains in confinement for life. In contrast, in the Qur`an the imprisonment can end at any time and not just if the husband decides to take her back; any circumstances with a reasonable promise of rehabilitation of the woman and healing of the social, moral, and spiritual wounds caused by the crime can secure her release.

“And the two (alladhan) among you who commit it” (fahishah). As noted earlier this refers to two men in a homosexual relationship. This is the third time kum is used in the two verses. Once again we can take the word as an address to the male believers or to all believers. If it refers to male believers, then this would make it all the more necessary to take the reference to two men and to a homosexual relation between them. Some commentators take the reference here to all believers while in the phrase “four among you” in verse 15 they limit the reference to male believers.

One implication of the repeated use of kum is that the punishments prescribed are meant for Muslims only. Non-Muslim residents in Muslim lands are not subject to it. They should as a rule[12] be punished according to their own traditions, a principle that can be applied to penalties for other crimes.

“punish (`adhu) them both”. `adhiya means to inflict mental or physical pain by one’s comments or actions (3:195, 7:129, 9:61, 29:10, 33:53, 69, 61:5). Hence here it can mean both verbal and non-verbal forms of punishment such as scolding, condemnation of the offence with reference to its disgusting nature, beating, flogging, social boycott, exile, and even imprisonment[13]. Since men generally have certain responsibilities that require going out, their punishment is not specified as imprisonment but neither can that punishment be excluded from idha`. If, for example, there is a danger that the man may molest young boys, imprisonment may be the only suitable punishment.

For men, imprisonment can be in the house as in verse 15, or, in some cases, in a more restrictive jail. The Qur`an does not prohibit the jail system but it also does not talk about it. As a rule, therefore, jails are not something that should be common in a Muslim land. The jail system costs too much to the society and, also, in jails criminals mix with criminals and therefore are not exposed to the kind of influences that are helpful for their reform.

The punishment cannot consist of amputation, since it does not fit with what is said next.

So (fa) if the two repent and do good, leave them alone”.

Fa can mean “so”, “thus”, “then,” “but then”. The word can suggest here that the purpose of punishment is to lead to repentance and reform. The whole statement corresponds to the words “until God provides for them a way out” in the previous verse. The punishment, mental as well as physical, should stop when the guilty person shows clear signs of reform. This cessation of punishment has some important implications: First, the punishment should be of such a nature that can be stopped. This excludes amputation. Second, there should be no stigma attached with the person after he has been reformed by repentance, since such stigmatization causes mental anguish which needs to stop. Third, if an act of unnatural sex was committed sometimes in the past, but the person has since reformed, there will be no punishment of that single act.  This is because the focus in the verses is on reform, which is not only clear from the above words but also from the fact that the next two verses (4:17-18) continue the theme of repentance.

This emphasis on repentance and reform suggests that the Qur`an rejects the view that homosexual behavior is something with which a person is born and, therefore, he or she can do nothing to change it.

Surely, God is most accepting of repentance and most merciful”. This reminds us that the merciful God is ever willing to turn to his servants in forgiveness if they duly repent. Therefore, we, too, should show acceptance and compassion after the guilty persons have duly repented.

In summary: 24:2 and 4:15-16 should be read together and not as one abrogating the other. The first passage, 24;2, gives the punishment for zina` understood as natural sex between a man and a woman not married to each other: a maximum of 100 lashes. The second passage, 4:15-16, prescribes the punishment for other forms of fahishah including homosexuality: house confinement in case of women and any type of effective punishment for men. This punishment is aimed at reform of the culprit and should cease as soon as clear signs of reform are visible.  

This is that simple, clear teaching given by God that some Muslims in earlier times changed by turning to sources other than his word, importing death penalty for every type of fahishah, and giving their views the authority of the Prophet by fabricating ahadith. And unfortunately many Muslims in later generations followed them in their errors. May the Most Gracious One bring us all closer to his word and the authentic sunnah of his Messenger and have the courage to reject the errors or lies of some earlier Muslims.



In this Appendix we consider in some detail a tradition from which some fuqaha have erroneously derived the death penalty for incest.

This tradition comes to us from two main transmitters: Mutarrif and ‘Adi, from each there being several different narrations.

Narrations from Mutarrif

Musaddad related to us: Khalid bin ‘Abd Allah related to us: Mutarrif related to us from Abu al-Jahm from al-Bara` bin ‘Azib who said: While I was wandering in search of my camels that had strayed, some riders or horse riders came carrying a standard. The Bedouins began to go round me because of my position with the Prophet. They came to a domed structure (qubbah), took out a man from it, and struck his neck. I asked about him. They told me that he had married his father’s wife. (Abu Da`ud 3864)

This narration says nothing to suggest that the execution was done in the time of the Prophet and by his order. It leaves open the possibility that the incident took place in the time of one of the khulafa`. The detail that the riders showed deference to the young Companion al-Bara` also suggests a time after the Prophet. But in other narrations the connection between the Holy Prophet and the execution becomes closer. Thus in a narration in Musnad Ahmad (17867), also narrated by Mutarrif from Abu al-Jahm from al-Bara` it is stated that the incident took place in “the time of the Prophet”. In another narration, again from Mutarrif from Abu al-Jahm from al-Bara`, the connection becomes even closer in that the Prophet is said to order the execution:

‘Uthman bin Muhammad related to us (‘Abd Allah said: and I also heard ‘Uthman say) Jarir bin ‘Abd al-Hamid related to us from Mutarrif from Abu al-Jahm from al-Bara` bin ‘Azib that the Prophet sent (people) to a man who married his father’s wife that he be executed. (Ahmad 17877)

We may also note here the following narration, which seemingly provides greater justification for the death penalty for incest generally:

Aswad bin ‘Amir related to us: Abu Bakr related to us from Mutarrif who said: They came to a qubbah, took out from it a man and killed him. He said: I asked: What is this? They said: This is a man who had sexual intercourse (dakhala) with his wife’s mother and so the Messenger of God sent (people) and they killed him. (Ahmad 17868)

One may argue that here the story is talking about sexual intercourse and not marriage with a relative. But this narration is highly unreliable. Its isnad is incomplete, since it ends with Mutarrif (d. 141). It is not included in any of the other eight books in the Hadith Encylopedia. And in contradiction to other narrations it mentions wife’s mother and not the wife of the father. Moreover, even in this narration the reference to marriage cannot be excluded, since the word dakhala can refer to consummation of marriage.

 Narrations from ‘Adi

In none of the narrations attributed to Mutarrif there is any identification of any of the men who executed the man. But in ‘Adi’s narrations an uncle of al-Bara` is said to carry the standard:

‘Abd Allah bin Ja‘far related to us: ‘Ubayd Allah bin ‘Amr related to us from Zayd from ‘Adi bin Thabit from Yazid bin al-Bara` from his father who said: I met my paternal uncle when he had a standard. So I asked him: Where do you intend to go? He said: The Messenger of God has sent me to a man who married his father’s wife and he has commanded me to strike his neck and take his property. (Darimi  2141; also found with the same isnad and almost exactly the same wording in Nasa`i 3280 and Abu Da`ud 3865)

The above narration is related from ‘Adi through Yazid, the son of al-Bara` from al-Bara`. But Nasa`i (3279) and Tirmidhi (1282) have narrations that are quoted by ‘Adi directly from al-Bara` and not through Yazid. Tirmidhi, who describes the hadith as hasan gharib, notes that there is also a narration quoted by Yazid not from his father but his maternal uncle. These facts show that the transmitters of the hadith before ‘Adi are uncertain.

The reader will note several contradictions in the contents of the various narrations. In one of Mutarrif’s narrations al-Bara` witnesses the execution while he was out looking for his camels and then asks about it from men responsible for the execution with no mention of any uncle of his. But in ‘Adi’s narrations the situation is quite different: al-Bara` himself is not a witness. He simply meets his uncle with a banner and asks where he is going. He thus learns about the execution before it takes place. There is no implication that he actually accompanied his uncle and witnessed the execution. There are further contradictions about the identity of the uncle. In some versions he is the paternal uncle, in others maternal uncle. Ibn Majah refers to a narration in which his name is Hushaym. But the version in Tirmidhi gives the name as Abu Burdah bin Niyar. It is probable that Mutarrif’s main narration found in both Abu Da`ud and Ahmad is the more original one and the reference to the uncle is secondary. Had the uncle of al-Bara` been the leader of the party entrusted with the task of executing the man, it is difficult to understand why this detail is missing in Mutarrif’s narrations. On the other hand, it is possible to explain the introduction of the uncle. Some narrators had a tendency to give their relatives more prominent place in their narrations than they actually had. It is thus possible that al-Bara`’s son Yazid introduced his father’s uncle in the story.

Mutarrif’s version in Abu Da`ud recommends itself also because there is no attempt here to prove a point of Shari‘ah. No action, decision, or statement is attributed to the Prophet or to any other authority of Islamic Shari‘ah such as a khalifah or a prominent Companion. An incident is being narrated as al-Bara` (d. 72) saw it when he was very young without understanding more than what the executioners told him. This also explains why the tradition did not find a place in any earlier book such as Muwatta, Bukhari, or Muslim: lacking any mention of any authority for the reported execution the tradition could not establish any rule of Shari‘ah. Only after the execution had been described as ordered by the Prophet did the tradition gain authority and began to be included in the Hadith collections.

In conclusion: The story of the execution of a man who married his father’s wife may be substantially authentic in the form related from Mutarrif in Abu Da`ud. But it proves nothing about the punishment for incest. For: 1) the story in its original form is silent about when and by whose order the execution took place; 2) even if the execution was ordered by the Prophet, the punishment was probably for continuing the practice of marrying the wife of one’s deceased father in defiance of an explicit command of God. It cannot be extended to incest generally. Thus the death penalty for incest is a view of some early Muslims falsely attributed to the Holy Prophet.

Appendix II


As we noted earlier, the Bible prescribes the death penalty for the homosexual act. This prescription is found in the part of the Bible called the Torah (or Pentateuch), which has considerable authority for most Jews. The Torah is also recognized by Christians, but following Paul, Christians believe that most of its laws were abrogated with the death of Jesus. Christians, therefore, do not feel bound by the law prescribing the death penalty for the homosexual act. This does not mean that they can consider homosexuality acceptable, since the specifically Christian part of the Bible – the New Testament -- even the part written by Paul himself (Rom 1:26-27, 1 Cor 6:9-10) condemns homosexuality as a sin.

Thus we can say that both the Jewish and Christian scriptures reject homosexuality. Despite this, Jews and Christians are divided about it, some considering it an acceptable form of behavior while others rejecting it. As a result, a debate has been going on among them. This Appendix outlines the way the Bible is used in this debate.

Broadly speaking, there are three ways, in which Jews and Christians use the Bible:

1)      The whole of the Bible is the word of God and is to be taken literally except when it is clearly meant to be taken in a symbolic or allegorical way. This point of view, usually described as “fundamentalism”, has integrity. But it is not practical, since on the basis of the Bible it is not possible to develop a coherent and workable system for a functioning society, much less for a progressive, prospering society.
2)      There is a lip service to the belief that the Bible is a word of God but its teachings are accepted very selectively. The selection is done on the basis of personal inclinations and the degree of popularity of a position. This approach, which may be call “convenient conservatism”, lacks integrity but is practical.
3)      The Bible is viewed as a human product of the circumstances under which its various books were written. Its teachings are not given any literal authority, even when they are obviously intended to be taken literally. This position, which may be called “radical liberalism”, is in some cases based on intellectual integrity. However, when a person holds this position and still insists to be a Jew or a Christian, then it borders on deception or misuse of language. This is especially true in case of Christians, since the term “Jew” can refer as much to race as to beliefs and practices.

The Jewish and Christian attitude towards homosexuality depends on the way the Bible is used. “Fundamentalists” reject it as a sin. “Radical liberals” generally consider it as an acceptable behavior, or at least do not consider it sinful. “Conveniently conservatives” are divided on the issue: some accept it and some reject it. Below I reproduce an open letter by a “radical liberal”, John Shelby Spong, to a “conveniently conservative”, George Will. The letter is a response to an article by Will in which he rejects homosexuality.

Will appeals to the Biblical passages condemning homosexuality and to the centuries of Church tradition consistent with that condemnation. Spong correctly points out that Christians like Will have departed from the Bible and Church tradition in so many ways that there is no reason for them to stick to the Bible and Church tradition in the matter of homosexuality. With equal justification the fundamentalists and conveniently conservatives can argue that Spong and other radical liberals have departed from the Bible and Church tradition in so many more ways and so much more radically than a vast majority of Christians that they should not call themselves Christians. The only proper thing for them to do is to have the honesty and courage to declare that they are no longer Christians. Yet Spong insists on calling himself a Christian, allows himself the title of a bishop and even dresses like one.

An Open Letter from Bishop John Shelby Spong to Political Columnist George F. Will of the Washington Post
Dear George:
You have a huge platform through television, Newsweek and the Washington Post to be a major influence in shaping public opinion. I find myself impressed by your insights into the world of baseball and a bit less impressed by your right-of-center political musings. I am, however, absolutely amazed at the profoundly uninformed positions you have recently offered the public on the questions that are currently the content of ecclesiastical debate in our churches. You seem to have no understanding of what it means to seek to bind together an ancient faith with the insights of our contemporary world.
I appreciate the fact that you are a fellow Episcopalian and, as such, are vitally interested in the issue of the consecration of the Rt. Rev. Gene Robinson to be the Bishop of New Hampshire. The fact that this event was covered by the media of the world indicates that it was regarded as a significant moment of history, a turning point in the life of the Christian Church. Indeed, I believe it was the enabling vote at the General Convention of the Episcopal Church that allowed this consecration to go forward that opened our church decisively to the full inclusion of homosexual people. It also struck a mighty blow at cultural homophobia. As such it has inaugurated a great consciousness-raising and welcome discussion that has now reached far beyond the boundaries of the Episcopal Church. That is a major accomplishment for a relatively small church.
Yet you, George, in your Washington Post column, have characterized this debate as one that pits the "cultural trendiness" of the Northern Hemisphere nations against the "doctrinal clarity" of the Southern Hemisphere nations. I regard that analysis as breathtakingly naive and suggest that it is revelatory of nothing more than your own deep and abiding prejudice. For you to speak publicly about this issue, when you are as poorly informed as your words reveal you to be, calls either your competence or your integrity, perhaps both, into question. Because you added a gratuitous comment about me by name in your Newsweek column (November 10, 2003), I think it appropriate that I respond to you in an equally public way.
You pose the issues of this debate as between modernism in religion and the true faith of antiquity. You suggest that two thousand years of Church teaching about sexuality and family are being imaginatively construed in "a certain interpretive trajectory." You quote approvingly a Fairfax, Virginia, Episcopal priest who, referring to the debate at the National Episcopal General Convention last summer, said, "When the plain teaching of the Bible was referenced, eyes rolled, and with expressions of polite exasperation, we were told that it was time to move on. The Bible simply had not kept up." You appear to be saying that those who quote the Bible, as if it provides the last word on moral issues, are to be commended.
Well, George, perhaps you need to understand why it is that people who quote the Bible to under gird their own inability to embrace reality might need to be enlightened.
The Bible was quoted to support the divine right of Kings when the Magna Carta made its appearance in 1215. History has demonstrated that the Bible was wrong on that issue and today no king rules on this planet by divine right. People have embraced democracy. You might think that represents "cultural trendiness," but I believe it represents an emerging consciousness that the writers of the Bible, bound to their time in history, could never have contemplated.
In the 17th century the Church, acting out of what you call "doctrinal clarity," imprisoned Galileo and almost executed him because his study of the motion of "heavenly bodies" led him to the conclusion that the earth was not the center of the universe and that indeed the earth rotated around the sun. The "fathers of the Church" in their attack on Galileo quoted a verse from the book of Joshua, in which the sun was made to stand still in the sky to enable Joshua to kill more of his enemies, as sure proof that the sun rotated around the earth. I think eyes should roll in a space age when this "clear teaching of the Bible" is referenced.
In the 19th century, Charles Darwin challenged the "clear teaching of the Bible" in the story of creation. But no matter how many passages of scripture have been quoted since The Origin of Species was published in 1859, our modern world is quite sure that it is Darwin rather than the Bible that is closer to the truth. That is unless you now want to regard DNA evidence as a bit more of your "cultural trendiness."
We could go on and show how "doctrinal clarity" led the Church to participate in, and to justify with biblical quotations, the institution of slavery as well as slavery's two bastard stepchildren, segregation and apartheid. Are you not aware that even the popes in history have been slaveholders? Is our present integrated society, which has opened the door to people like Colin Powell to serve in an office that was previously denied to any African-American, just another example of "cultural trendiness?" Women in this country were certainly treated up until relatively modern times with what you call "doctrinal clarity." The Ten Commandments defined the woman as property that, along with the ox and the ass, was not to be coveted. With full biblical encouragement, the Church in the Middle Ages regarded women as anything but equal, and even today the Southern Baptist Church, has directed women to be subject to their husbands. The word "obey" required of the woman alone, was not taken out of the Episcopal marriage ceremony until 1928. Women could not enter our universities in any significant numbers before the 20th century. Women did not receive the power of the vote in the United States until 1920 and even that was accomplished against the opposition of the Bible quoters. The Supreme Court of the United States ruled in 1876 that a woman could not practice law in the State of Illinois because "God has designed her for the more domestic role." Is that what you are now calling "progressive cultural aggression" which you suggest is challenging "the conservatism of institutions?" I consider it a step into enlightenment.
Shall we examine the way children were employed in the sweatshops of the 19th century or abused in the boarding schools of England with official church sanctions until Charles Dickens began to raise the secular consciousness of his nation?
You note approvingly in your column, that when dissident Episcopalians met recently in the town of Plano, Texas to nurse the wounds of their defeat at the General Convention, that they received a letter of support from the Pope and Cardinal Ratzinger. Would you have our church in this 21st century approve the incredible negativity that emanates from the Roman Catholic Church about women? Do you think that this Church, which has spawned a veritable culture of abuse and cover up, is qualified to lecture anyone on issues of either morality or "doctrinal clarity?"
You see, George, the battle over the full acceptance of homosexual people in both Church and society is like all of these other movements. It pits an old and dying definition, supported by appeals to scripture, against an emerging new consciousness. Slavery was sustained as long as African people could be defined as subhuman, childlike and without sufficient intelligence to be full citizens of this land. Slavery and segregation collapsed when that definition was mortally wounded by a new consciousness informed by new data. Are you suggesting that this was the result of "cultural trendiness?"
The same thing happened in the feminist movement. The breaking of the traditional female stereotype began when women challenged the male-imposed definition of what it means to be a woman. Women insisted on the right to define themselves. This new definition led women not only into education and the workplace but also into positions in the cabinet of the President of the United States in 1933, and into the House of Representatives, the Senate, the governors' mansions and the Supreme Court as the 20th century unfolded. Certainly we will elect our first woman president in this century. This is not "cultural trendiness," George, this is the direct result of a new consciousness that neither you nor anyone else will ever turn around.
The battle for the full inclusion of homosexual persons in both the Church and the social order is the result of a similar new consciousness attacking an old and inadequate definition. Homosexual people were once defined, with biblical under girding, as sinful people. It was assumed by this negative definition that gay and lesbian people either chose to be homosexual, as an act of moral depravity, or that they were mentally ill and could not help themselves. That definition has simply been rendered inoperative by new knowledge. Most educated people today accept the fact that sexual orientation, whether heterosexual or homosexual, is something over which people have no control. Human beings simply awaken to it, they do not choose it. Homosexual orientation is also now generally recognized as consisting of a stable percentage of the population at all times and in all places. This means that it cannot be externally caused as assumed by the old definition. The scientifically documented presence of homosexuality in the animal kingdom argues against it being classified as "unnatural," unless you attribute to animals the ability to make moral choices. These are the factors that have created the emerging new consensus, and if they are correct, as more and more scholars now believe, then homosexuality must be seen as being in the same category as race, gender or even left-handedness. They are the "givens" not the choices of the individuals. To discriminate against a person on the basis of something the person is must be seen as nothing more than prejudicial ignorance that leads to the willful destruction of another's humanity. That makes it an overt act of bigotry. To quote the Bible to render bigotry acceptable is neither new nor is it any more convincing in this situation than it has been when used earlier in our history to justify other evils.
For you to suggest further that nations of the Third World, where such things as polygamy, female circumcision and second class status for women are still widely practiced, ought to be listened to and respected when they speak out of the context of a discredited and dying definition of homosexuality is bizarre. What our church has done, George, is nothing less than to challenge the ignorance and prejudice that has allowed people like you and me to participate in the oppression of countless numbers of people throughout history, whose only "sin" was that they were born with a sexual orientation different from the majority.
Our Church has done an audacious thing. We will not now tremble at our own audacity. This is rather a cause for rejoicing that another in a long list of human prejudices has begun to fall. The fact that we have justified our destructive behavior in the past with quotations from the Bible does not excuse our negativity. This is not "cultural trendiness," George, nor is it a denial of "doctrinal clarity." Maybe it is time for you to examine these issues more thoroughly before you place your uninformed biases into the public arena.
John Shelby Spong

[1] Shams al-Haqq ‘Azimabadi in his commentary, ‘Awn al-Ma‘bud Sharh Sunan Abu Da`ud mentions another reason for killing the animal: fear that the animal may give birth to a creature half-human and half-beast. This reason, of course, applies only when it is a man who engages in sex with a female animal.

[2] Abu Da`ud adds the following comment to the hadith:

A similar tradition has been transmitted by Sulayman bin Bilal from ‘Amr bin Abi ‘Amr. And ‘Abbad bin Mansur transmitted it from ‘Ikrimah from Ibn ‘Abbas; he took it to the Prophet (rafa‘ahu). And Ibn Jurayj transmitted it from Ibrahim from Da`ud bin al-Husayn from ‘Ikrimah from Ibn ‘Abbas; he took it to the Prophet (rafa‘ahu).

When Abu Da`ud describes the narrations as “similar” this is to be understood loosely in a general sense of “dealing with a similar subject”. For, there seems to be no hadith from Sulayman bin Bilal from ‘Amr bin Abi ‘Amr prescribing the death penalty for the homosexual act.  Ahmad 2765 is narrated from these two transmitters, but that hadith only says that those who do the deed of the people of Lut are cursed. It does not prescribe any death penalty. Also, Abu Da`ud mentions the hadith of ‘Abbad bin Mansur, but it seems that from this narrator there is no hadith about the homosexual act. According to ‘Awn al-Ma‘bud, the hadith of ‘Abbad bin Mansur from ‘Ikrimah from Ibn ‘Abbas is found in al-Hakim and Ahmad (2597). But both of these narrations concern “the one who has sex with an animal” and not homosexuality, although the two narrations have the words, “kill the fa`il and maf`ul bi hi”, that are similar to the words in the hadith about homosexuality.

“Ibrahim is either Ibrahim bin Isma‘il bin Abi Habibah as in Ibn Majah and Daraqutni or Ibrahim ibn  Muhammad bin Abi Yahya as with 'Abd al-Razzaq. Both of them transmit from Da`ud bin al-Husayn” (‘Awn al-Ma‘bud). But he is probably Ibrahim bin Isma‘il since he is the Ibrahim mentioned in almost all the ahadith about deviant sexual conduct.

With exactly the isnad – from Ibn Jurayj from Ibrahim -- the hadith does not seem to be quoted in any book. But, according to ‘Awn al-Ma‘bud, in Ibn Majah and al-Daraqutni there is a hadith from Ibn Abi Fudayk – not Ibn Jurayj --from Ibrahim bin Isma'il from Da`ud bin al-Husayn from 'Ikrimah from 'Abbas. In that hadith, however, only the death penalty for sex with an animal or a mahram is mentioned; there is no mention of the homosexual act.

Abu Da`ud uses the word rafa‘ahu in connection with two of the narrations to which he refers. The word suggests that the narrations did not actually quote the Prophet by using words like qala rasul allah (the Messenger of God said). It is pointed out in ‘Awn al-Ma‘bud that the narration from Ibn Abi Fudayk recorded by Ibn Majah and al-Daraqutni quotes the Prophet explicitly with the words qala rasul and suggests that rafa‘ahu and qala rasul have the same force. But we have no basis to think that the narration of Ibn Abi Fudayk is the same as that of Ibn Jurayj. Moreover, it is quite possible that Ibn Abi Fudayk introduced qala rasul in an attempt to make rafa‘ahu more explicit.

[3] We often find several different views attributed to the great Imams of the past. This shows that in ancient times people attributed to authorities views that they themselves did not express.

[4] Panipati finds support for this view in the fact that the hadith prescribing death for the homosexual act uses ya‘mal and not ‘amila. But the words in the hadith are man wajadtumuhu ya‘mal and in this construction ya‘mal does not have the connotation of repetition.

[5] For example by Thana Allah Panipati, who also mentions a third view of Shafi‘i: putting the culprit to sword.

[6] The view that the homosexual act is like zina` at one point gave rise to a “hadith”: "When a man has sex with a man, they are zaniyan." The following comment from Mubarakpuri’s commentary on Tirmidhi is enough to show that this hadith is a fabrication: “Al-Bayhaqi recorded it from the hadith of Abu Musa and in its isnad there is Muhammad bin 'Abd al-Rahman whom Abu Hatim considered a liar. And al-Bayhaqi said he does not know him and the hadith is rejected with this isnad. Abu al-Fath al-Azdi reported it in al-Du'afa` (considering Muhammad bin ‘Abd al-Rahman as da‘if). Al-Tabarani in his al-Kabir reports it by a different chain from Abu Musa and in that there is Bishr bin al-Mufaddal al-Bajli and he is majhul. Abu Da`ud al-Tayalisi also reported it from him in his Musnad.”

[7] Other ahadith include the following:

i)                     A hadith from Jabir reported in Tirmidhi (1377) and Ibn Majah (2553), in which the Prophet allegedly says: “I fear the most regarding my ummah the action of the people of Lut”. This hadith does not talk about any penalty for the homosexual act.

ii)                   A hadith brought out from Abu Hurayrah by al-Hakim reporting that the Prophet said: "Kill the fa‘il and maf‘ul (one who performs, i.e. the homosexual act and the one on whom it is performed) whether the two are married or unmarried.” (Tuhfah al-`Ahwadhi bi Sharh Jami‘ Tirmidhi). In Ibn Majah (2553) the narration is: “Concerning the one who does the deed of the people of Lut the Prophet said: Stone the one above (al-‘ala) and the one below (al-asfal). Stone them both together.”

As noted by Tirmidhi the hadith attributed to Abu Hurayrah comes only from ‘Asim bin ‘Umar from Suhayl from Abu Salih from Abu Hurayrah and this ‘Asim is considered weak. Ahmad and Yahya bin Ma‘in consider him da‘if while Bukhari and Muslim say he is munkar al-hadith. This means that the hadith of Abu Hurayrah is to be rejected as a fabrication of ‘Asim who not only changed the wording of the more well-known version from Ibn ‘Abbas but also invented the isnad reaching Abu Hurayrah and the Prophet.

iii)                  Ahmad 2765, which only says that those who do the deed of the people of Lut are cursed. It does not prescribe any death penalty

iv)                 Abu al-Qasim bin Abi al-Zinad related to us saying: (Ibrahim bin Isma‘il) ibn Abi Habibah informed me from Da`ud bin al-Husayn from ‘Ikrimah from Ibn ‘Abbas who said: The Messenger of God said: Kill the one who commits the action of the people of Lut and the one to whom it is done and (kill) the animal and the one who has sex with that animal; and whoever has sex with a mahram, kill him. (Ahmad 2591)

In this narration the transmitter Ibn Abi Habibah is unreliable. Also, another narration from the same Ibn Abi Habibah from Da`ud from ‘Ikrimah from Ibn ‘Abbas (Ibn Majah 2554) does not mention the homosexual act.

                "When a man mounts another man, the throne of God shakes." 

This “hadith” is sometimes heard but I have not been able to locate its source. The fact that it is rare and the fact that it insults the throne of God -- for it cannot be so unstable that man’s sinful act can shake it – is enough to conclude that the hadith is a fabrication.

[8] This does not mean that we can accept what this hadith, rejected by some scholars, is saying, since, as noted earlier in Ch. 2, a Qur`anic verse cannot be abrogated by a hadith.

[9] Anne Moir & David Jessel, Brain Sex, Carol Publishing Group, 1991

[10] Homosexuality among men is mentioned and condemned in Rom 1:27, 1Cor 6:9, Jude 7, 1Tim 1:10. The only possible reference to homosexuality among women may be in Rom 1:26:
For this reason God gave them up to degrading passions. Their women exchanged natural intercourse for unnatural, and in the same way also the men, giving up natural intercourse with women, were consumed with passion for one another.  Men committed shameless acts with men and received in their own persons the due penalty for their error.
Here the reference to male homosexuality is quite clear while in case of women only a general reference to unnatural intercourse is made, which may, as in the Old Testament, refer to bestiality.
[11] None of the six so-called canonical books and other famous books such as Muwatta, Darimi, and Ahmad contains any mention of lesbian practice. The only “hadith” I have seen about Lesbian sex is the following for which I cannot locate the source: "Sihaq of women ((lesbian sex)) is zina` among them.”

[12] “As a rule” because there are cases when Muslims may be forced to impose some penalties on non-Muslim residents. For example, some actions such as drinking, homosexual act, or illicit heterosexual relation may not be a crime for some non-Muslims and they may not have any punishments for them. In such cases, leaving some citizens free to do those acts while punishing Muslims for them may have very negative consequences.

[13] All these forms of punishments are Qur`anic in the sense that they are mentioned in the Qur`an in various contexts. Beating is mentioned in 4:34, flogging in 24:2, exile in 5:33, imprisonment in 4:15, and social boycott is understood in 9:118, according to traditions.

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