This post is only for those above 18; hence, if you are under this age, kindly have enough courtesy to close the page right-away, this is not for you.

In this post, I shall start tackling a very complicated part of the Islamic penal code. I shall explain the crime, the circumstances that must exist for proving it, and in the next post with Allah’s will, I shall discuss the punishment according to two scholarly views.

Allah says in the Qur’an: “The woman and man who fornicate, flog each one of them with a hundred stripes. Let no pity for them withhold you from obeying Allah, if you truly believe in Allah and the Last Day, and let their punishment be witnessed by a group of believers. The male fornicator only [likes to] marry a fornicating or a pagan woman, and the female fornicator only [likes to] marry a fornicating or a pagan man, the (preference of such spouses) has been forbidden on the believers. Those who defame chaste women, and cannot bring forth four witnesses, shall be given eighty stripes. Do not accept their testimony ever after, for they are transgressors.” [The Qur’an (24:2-3)].

If a free, sane, adult person have illicit sexual intercourse with another who is not his or her lawful spouse, they both have committed fornication and deserve the prescribed punishment. The crime is established as soon as the male’s penis glans has totally disappeared inside the female. Of course no punishment is applied on those who are forced or raped but only on the one who commits this crime with his or her own free will.

Fornication could only be proven through one of the following two means:

1. The person who has committed such a crime confesses four times in front of the judge and mentions clearly the glans’s total entrance into the female. The confession of the male or the female does not condemn the other party involved, it’s only against him or herself. Naming the other party involved should not even be requested.
2. If four known, sane, just, free men testify to have seen with their own eyes clearly and without any doubt the total intromission of a male’s penis into the female’s vagina. Their testimony is not accepted except if they all testify in front of the same judging council – on the same hearing – one at a time aside the others. Every witness must describe the incident with its details (i.e. like the date of the incident, the exact time, the exact place where it occurred and its description, the full description of the two partners and the place, the assumed position, etc…) If only three testified and the fourth didn’t, or the details mentioned by anyone of them was different from the others, then their testimony is refused and they are accused of defamation and perjury. Each one of them is sentenced to receive 80 stripes and their testimony is never accepted in court again. This was the 4^th crime in our list.

It should be clarified here that spying on others is forbidden in Islam. Allah says in the Qur’an: “Believers, avoid suspicion, some suspicions are sinful– and do not spy on one another or backbite: would any of you like to eat the flesh of his dead brother? No, you would hate it. So be mindful of Allah. Verily, Allah is ever relenting, most merciful.” [The Qur’an (49:12)]

About this Prophet Muhammad said: “Beware of suspicion for it is the most false of all tales, don’t ever spy or hunt for other people’s secrets, don’t ever hate one another, and always be like brothers.” [Recorded by Bukhari and Muslim]

One should think: “what are the odds of proving the crime under discussion without spying? Actually, this was never recorded to have happened anywhere, or anytime, in the Islamic history. It’s almost impossible to occur unless the fornicators were making a porn movie, or practicing illicit sex in a public place. Muslim scholars commented about this saying that the tougher the punishment, the harder is the evidence required for proving the crime.

Hence, from the tough hard means placed by Allah for proving this crime, one may understand how painful it is for any person living in a pure chaste community to be scandalized with such a crime. But if the crime was proven against any person without any doubts, then the punishment must be applied without any delay to protect the community from the consequences of having this abominable deed spreading among its citizens. Fornication results in so many crimes, like marital betrayal, honor killings, distorted family lineages, false ancestry cases, incest and unlawful marriages, etc… By all means, this is the worst crime among all those mentioned before.

All Muslim scholars agree that if a person fornicates, and no one knew of his or her crime, this person should repent silently and keep the crime a secret. He should not confess of what he has done unless a bigger crime was about to result from this sin. For example: If a married man committed adultery with a married woman, thereafter she became pregnant from him and gave birth to a girl. If it happens in the future that this girl falls in love with that man’s son and they were about to get married, the man and the woman must confess their crime, or else the boy will marry his sister.

When a companion named Ma’ez went to confess that he committed adultery, Abu-Bakr and ‘Omar advised him to keep silent and repent secretly, may Allah forgive him. Another companion told him that he should go and confess to the prophet. When he went to Prophet Muhammad and confessed, the prophet said to his companion: “If you kept it a secret and advised him to repent silently it would have been better for you.” From this Muslim scholars agreed that if Allah kept your crime hidden from people’s eyes, you should repent secretly and ask Allah for His forgiveness.

Bukhari and Muslim recorded that a man once came to the prophet in the mosque and said: “O messenger, I have committed a crime that deserves punishment.” The prophet didn’t ask him about his crime and got up to lead the prayers. When the prayer was over, the man approached the prophet and repeated what he said the first time. The prophet said: “Didn’t you just pray with us?” The man said: “Yes.” So the prophet said: “Then Allah has forgiven your sin.”

The prophet also said: “The one who repents from his sins is like him who never sinned before.” [Recorded by Ibn Mājah]

And when he was told that Ma’ez tried to escape when they started stoning him, the prophet said: “You should have let him go, may Allah accept his repentance.” [Recorded by Abu-Dāwud and others]

From all of the previous, Muslim scholars deduced that the person who commits a crime, and Allah protects him or her against getting caught, then he or she must repent secretly and should not speak of that crime unless this was the only way to prevent a bigger crime from happening as explained earlier.

As recorded in the Sunnah books, the punishment of unmarried fornicators is 100 stripes of medium strength that are neither damaging nor painless, and they must be distributed on all of the body except: the head, the face, the belly, the chest and the groin area, these must be avoided. The man is flogged in a standing position, wearing only short trousers to hide his private parts (i.e. from the navel to the knees), and the woman is flogged while sitting and wearing all of her clothes and veil, but without the inside stuffing that may cause the punishment to be ineffective. The punishment is not applied on weak or ill convicts until they heal completely and regain their strength, or on a pregnant woman until she delivers her baby and regains her strength. The tool used in flogging is either a whip of intermediate length and power, or a palm branch stripped of its leaves and thorns, it’s like a long stick. The person applying the punishment should also be of intermediate strength. He must not raise his hand above his shoulder and must not let his armpit be seen. ‘Ali Ibn Abi-Taleb said: “Stripes of intermediate strength, and a whip of intermediate effect.”

There is consensus among all Muslim scholars on the previous punishment for fornicators if they were unmarried. But when it comes to married persons who commit adultery, Muslim scholars were split into 2 teams, the first stated that the punishment in such case is stoning to death, and the second denied stoning and said that flogging is the punishment for all cases. Let’s indulge into their debate so that we may understand this controversial issue. To Be Continued…

For more understanding of the penal code in Islam, read my previous posts:
Islamic Penal Code Part I   &   Islamic Penal Code Part II

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Written By: Ehab Shawky