Article

Zina laws in different countries

Islamic law prescribes severe punishments for men and women for the act of Zina. Premarital sex may be punished by up to 100 lashes, while adultery is punished by Rajm (stoning), according to some interpretations of the Islamic law. Punishing by stoning is not mentioned in the Quran, and is based solely upon hadith.

Several requirements must be met, before this sort of punishment may take place.
Sayyid Abul Ala Maududi describes the following conditions traditonally held for the punishment to take place:

• The accused must possess common sense. The accused must not have been in an intoxicated state of mind while the act was committed.
• The accused must be an adult having well surpassed the age of puberty.
• The accused, before the accusation, must be known as a practising Muslim.
• The accused must have committed adultery of his/her own free will.
• There must be four witnesses (or pieces of evidence) to support the accusation (of sexual penetration).

Additional fulfillment of the following requirements is necessary for an execution:

• The accused must be free and not a slave.
• The accused must be married (according to Islamic Law), and must enjoy normal sexual relations with his/her spouse (and therefore have a legitimate means of satisfying his/her sexual desires) prior to committing adultery.
• The accused (woman) must not be pregnant or be responsible for breast feeding a child.

The punishment of adultery by stoning is quite controversial. Many fundamentalist organizations call for a more modern interpretation of the Islam, whilst others argue that stoning has not once been mentioned in the Quran, and is evident only from the hadith.[1]

Hadith

There are two hadith that outline the practise of execution as a punishment for adutlery:

Imran b. Husain reported that a woman from Juhaina came to Allah's Apostle (the Prophet Muhammad) and she had become pregnant because of adultery. She said: I am pregnant as a result of Zina. Allah's Apostle said: "Go back, and come to me after the birth of the child". After giving birth, the woman came back to Allah's Apostle, saying: "please purify me now". Next, Allah's Apostle said, "Go and suckle you child, and come after the period of suckling is over." She came after the period of weaning and brought a piece of bread with her. She fed the child the piece of bread and said, "Oh Allah's Apostle, the child has been weaned." At that Allah's Apostle pronounced judgment about her and she was stoned to death.
Reported by many companions that Ma'iz went before Allah's Apostle (the Prophet Muhammad) in the Mosque and said, "I have committed adultery, please purify me." Allah'sApostle truned his face away from him and said "Woe to you, go back and pray to Allah for forgiveness." But the boy again came in front of Allah's Apostle and repeated his deisre for purification. The act was repeated three times, until Abu Bakr, sitting close by, told the Ma'iz to leave, as the fourth repition of the plea would get him stoned. But the man persisted. Allah's Apostle then turned to him and said "you might have kissed or caressed her or you might have looked at her with lust (and so assumed that you committed Zina)". Ma'iz replied in the negative. Allah's Apostle said "did you lie in bed with her?" Ma'iz replied in the affirmative. He then asked, "did you have sexual intercourse?" Ma'iz replied in the affirmative. Then Allah's Apostle got quite uncomfortable, and asked "Did your male organ disappear in the female part?" Ma'iz replied in the affirmative. He then asked, once more, whether Ma'iz knew what Zina means. Ma'iz replied "yes, I have committed the same act a husband commits with his wife." Allah's Apostle asked if he was married, and he replied "yes". Allah's Apostle asked if he took any wine, and Ma'iz again replied in the negative. Allah's Apostle then sent for an inquiry from the neighbors of Ma'iz, whether or not Ma'iz suffered from insanity. The replies all came in the negative. Allah's Apostle then said, "had you kept it a secret, it would have been better for you." Allah's Apostle then ordered Ma'iz to be stoned to death. During the stoning, Ma'iz cried out, "O people, take me back to the Holy Prophet, the people of my clan deluded me." When this was reported to Allah's Apostle, he replied "Why did you not let him off, he might have repented, and Allah may have accepted it."

In all traditions, stoning only occurred after the one of the adulterers voluntary came to the Prophet Muhammad and bore witness against him/herself.

Adultery is generally defined as consensual sexual intercourse by a married person with someone other than his or her lawful spouse. In many jurisdictions, an unmarried person who is sexually involved with a married person is also considered an adulterer. The common synonym for adultery is infidelity as well as unfaithfulness or in colloquial speech, cheating. It was also known in earlier times by the legalistic term "alienation of affection".[1]

The sexual partner of a person committing adultery is often referred to in legal documents (especially divorce proceedings) as a co-respondent, while the person whose spouse has been unfaithful is often labeled a cuckold; originally, the latter term was applied only to males, but in more recent times women have been characterized in this way too.

A marriage in which both spouses agree that it is acceptable to have sexual relationships with other people is termed open marriage and the resulting sexual relationships, though still adulterous, are not treated as such by the spouses. Sometimes only one party in an open marriage will opt to have other sexual relationships, in which case the one who does not do so is referred to as a wittol, sometimes called a "contented cuckold".

There have been other varieties of adultery; in Hawaii before the arrival of Christians, twenty-three different kinds were recognized.

Historically adultery has been subject to severe sanctions including the death penalty and has been grounds for divorce under fault-based divorce laws. In some places the method for punishing adultery was traditionally stoning to death.

In the original Napoleonic Code, a man could ask to be divorced from his wife if she committed adultery, but the adultery of the husband was not a sufficient motive unless he had kept his concubine in the family home.

In many jurisdictions (e.g, Austria, Korea, Switzerland, Taiwan), adultery is still illegal, but enforcement of the laws is often uneven. In places where adultery laws are actually enforced, wives are often punished more harshly than husbands, in some cases being considered guilty of adultery even when they have been raped. This has been alleged to happen in Nigeria [2] and Pakistan [3] (see Hudood Ordinance, "Honor killings" in "Best Practices").

In the United States, laws vary from state to state. For example, in Pennsylvania, adultery is technically punishable by 2 years of imprisonment or 18 months of treatment for insanity (for history, see Hamowy). That being said, such statutes are typically considered blue laws, and are rarely, if ever, enforced. In the U.S. Military, adultery is a court-martialable offense only if it was "to the prejudice of good order and discipline" or "of a nature to bring discredit upon the armed forces" [4]. This has been applied to cases where both partners were members of the military (and particularly where one is in command of the other), or one partner and the other's spouse. The enforceability of criminal sanctions for adultery is very questionable in light of Supreme Court decisions since 1965 relating to privacy and sexual intimacy, and particularly in light of Lawrence v. Texas, which apparently recognized a broad constitutional right of sexual intimacy for consenting adults.

In Canadian law, adultery is defined under the Divorce Act. Though the written definition sets it as extramarital relations with someone of the opposite sex, the recent change in the definition of marriage gave grounds for a British Columbia judge to strike that definition down. In a 2005 case of a woman filing for divorce, her husband had cheated on her with another man, which the judge felt was equal reasoning to dissolve the union.