Sexual Offenses

Section 12.1    Mental Elements in Sexual Offenses

The mental element required for sexual offenses is:

1. Intention to do the prohibited conduct; or
2. The actor was aware that his actions are contrary to the prohibitions; or
3. The actor was reckless such that he foresees the possibility of violating the prohibitions and then proceeded to commit the prohibited conduct.; or
4. The actor deliberately chose not to know the factual circumstance essential in a sexual offense when given reason to believe further inquiry is necessary and then proceeded to commit the prohibited conduct.

1. Section 12.2    Consensual Illicit Sexual Behavior
   1. Illicit sexual behavior is any act that may lead to sexual intercourse between an unmarried man and a woman or sexual acts between two women or a man inserting his penis in the anus of his wife.
   2. Illicit sexual behavior includes, but is not limited to: meeting of a non-married man and woman who are eligible for marriage in a secluded place, a sexual act between a man and a woman short of Zina, a sexual act between a woman and another woman.
   3. Illicit sexual behavior is punishable by Ta’zir punishment of a fine not less than… and not exceeding … and/or imprisonment for a term not less than ….and not exceeding…

   Explanatory Notes

   Section 12.2 is a Ta’zir offence created to serve several purposes including blocking the means to sexual acts, prohibiting and punishing sexual acts not listed in other sexual offenses, decreeing punishments for sexual acts that do not qualify for the more severe Hadd punishment due to either the lack of four credible witnesses in Zina offense or the presence of doubt that precludes Hadd punishment. For example, according to Imam Abu Hanifa the insertion of a man’s penis into the anus of his wife is a punishable act under Ta’zir. It is not punishable under the offense of the Acts of the People of Lut because there is doubt that precludes the punishment of the Acts of the People of Lut arising from the fact that a man may engage in sexual intercourse with his wife.

Section 12.3    Broadcasting Sexual Acts

Intentionally, knowing or recklessly advertising, selling, publishing, distributing, making available, or broadcasting by any means sexual activities or nudity is punishable by Ta’zir punishment of a fine not less than… and not exceeding … and/or imprisonment for a term not less than ….and not exceeding….

Section 12.4    Zina   

The crime of Zina is committed when a male consensually inserts his penis into the vagina of a female who is not his wife or when a male consensually inserts his penis into the vagina of a female whom he cannot legally marry or when a male inserts his penis into the vagina of dead female.

Explanatory Notes

Imam Malak, some Shafi’i scholars and Imam Ahmed concluded that engaging in sexual intercourse with a dead woman amounts to Zina offense. Imam Malak, some Shafi’i scholars and Imam Ahmed concluded that an invalid marriage contract does not prevent punishment. However, if one of the requirements of marriage is missing, such as marriage without witnesses, scholars have disagreed on the validity of that marriage, and accordingly the punishment of Hadd is precluded because there is doubt that an offense has occurred. Post crime marriage neither excuses the offense nor precludes the punishment. The crime is also committed when one party is under the age of 18 or is mentally ill. A party to a crime who is mentally ill or under the age of 18 shall not be punished under Zina offense.  However, if a party to Zina offense has reached the age of 7 but less than 18 years, he may be subject to rehabilitation. Also, Zina offense is applicable when a male consensually inserts his penis into the vagina of a female who is too closely related to be eligible to marry him.

Section 12.5    Zina Punishment       

1. The punishment for a married offender of Zina is stoning to death.
2. The punishment for an unmarried offender of Zina is whipping numbering one hundred stripes and imprisonment for a term of one-year.

Explanatory Notes

Section 12.5.2 includes imprisonment, as a part for the punishment for an unmarried male offender of Zina, instead of the punishment of exile for a year as stated in a hadith. Many scholars have suggested that exile in our time means imprisonment.

Section 12.6    The Act of the People of Lut.    

The act of a male consensually inserting his penis into the anus of either a male or a female who is not his wife is punishable by stoning to death of all parties to the crime.

Section 12.7.   Bestiality

Sexual relations between a human and an animal that involves inserting the penis into the anus or vagina is punishable by a term of imprisonment not less than ….and not exceeding …. And/or fine not less than … and not exceeding…..            

Section 12.8    Zina, Bestiality and the Act of the People of Lut – Methods of Proof

1. Witness testimonies are required for conviction either;
2. Four credible mature Muslim male witnesses must collectively testify in one court session that they witnessed the act of penetration of the penis into the vagina or the anus, if one of the defendants is a Muslim. Having less than four testimonies is an offense punishable by whipping numbering eighty stripes administered to the witnesses.
3. Four credible mature male witnesses, Muslim or Non-Muslim, must collectively testify in one court session that they witnessed the act of penetration of the penis into the vagina or the anus, if all of the defendants are non-Muslim. Having less than four testimonies is an offense punishable by whipping numbering eighty stripes administered to the witnesses.
4. Admission
5. A defendant’s non-retracted informed admission of all elements of the offense required for conviction suffices to establish guilt.
6. A defendant’s admission is not evidence of guilt against other co-defendants.
7. Evidence

Pregnancy is rebuttable evidence of Zina. A pregnant woman can rebut Zina by showing rebutting evidence such as duress or mistake.

Explanatory Notes

Section 12.8.1.a adopts the Hanafi opinion that a non-Muslim’s testimony is not admissible against Muslims.

Imams Ahmed, Abu Hanifa and Malak suggested that all four witnesses must testify that they have seen the act of penetration. If one or more of the four witnesses did not actually see the act of penetration but offered only a hearing testimony, all four witnesses will be subject to the punishment of whipping numbering eighty stripes each and their future testimonies will be inadmissible in court.

Testimony of close relatives may not by admissible in court. Testimony of a person who favors or disfavors the defendant is inadmissible in court.

Imams Malak, Ahmed and Shafi’i suggested that testimony of a husband against his wife is inadmissible in court as one of the four testimonies required for conviction.

Imam Abu Hanifa concludes that hearsay evidence is inadmissible in Zina, bestiality and the Act of the People of Lut offenses.

The court may not accept the testimony of the witnesses for various reasons such as a discrepancy between witnesses’ testimonies.

Imams Malak, Ahmed, Abu Hanifa and some of Shafi’i scholars suggested that a judge cannot be one of the four witnesses required for conviction. If a judge wishes to testify, he must recuse himself from hearing the Zina case and present himself as a witness.

A one-time admission is enough to prove guilt according to Imams Malak and Ahmed.

Imams Malak, Shafi’i and Ahmed had suggested that admission need not take place in a court session. It may take place elsewhere and later four credible witnesses could testify as to the offender’s admission in a court session.

Section 12.9    Excuses Precludes the Execution of Punishment of Zina, Bestiality and Act of the People of Lut Offenses.

1. The defendant is excused from the punishment when the offense is proved on the defendant’s admission if the defendant retracts his testimony at any stage before or during the execution of the punishment. Escaping from the execution of the punishment is evidence of retracting the testimony.
2. The defendant is excused from the punishment when the offense is proved on witnesses’ testimony, if one or more witnesses rescinds their testimony, loses his credibility, dies before the execution of the punishment resulting in less than four testimonies offered to prove the offense.
3. Any doubt arising from erroneous belief in the legality of the act, mistaken identity of a party to the crime or other factual circumstances essential in proving an offense, excuses the defendant from the punishment.
4. Any sexual act committed under duress is excusable.
5. In a Zina charge, allegation of marriage by the male, the female or both who are found engaged in sexual activities excuses the defendants from the punishment unless the allegation is rebutted beyond all doubt.
6. In a Zina charge, allegation of sexual intercourse between a male and female that involves penetration of the female’s vagina is rebutted by the existence of a hymen.
7. Ignorance of law that Zina is prohibited is not an excuse from liability unless the defendant shows that he could not have been aware of the prohibition of Zina.

Explanatory Notes

Hanafi, Hanbali and Malaki schools of thought concluded that escaping from the execution of the punishment is evidence of retracting the testimony.  See 7 Bada’i’ as-Sana’i’ fi Tartib ash-Shara’i’ at 61.

Imam Abu Hanifa concluded that punishment is not warranted if one or more witnesses lost his credibility or died before the execution of the punishment resulting in less than four testimonies to prove the offense.

Imams Abu Hanifa and Ahmed concluded that in a Zina charge, allegation of marriage by the male, the female or both who are found engaged in sexual activities excuses the defendants from the punishment unless the allegation is rebutted beyond all doubt.

Imams Abu Hanifa, shafi’i and Ahmed concluded that in a Zina charge, allegation of sexual intercourse between a male and female that involves penetration of the female’s vagina is rebutted by existence of a hymen because the existence of a hymen raises doubt sufficient to preclude punishment.

An example of ignorance of law that Zina is prohibited under Islamic law is that of a new convert to Islam who is unaware of the prohibition.