Islamic Legal Analysis of the Zina Punishment

Islamic Legal Analysis of the Zina Punishment Awarded to Bariya Ibrahim Magazu, in Zamfara, Nigeria.
By Asifa Quraishi,  - January 20, 2001

Question Presented:

Is zina the proper sharia punishment for an unmarried pregnant girl, who claims that the pregnancy resulted from unwanted sexual relations with three men in an arrangement made by her father as payment for his debt?

Short Answer:

The majority shari'a opinion is that pregnancy is not admissible as proof of zina because it is merely circumstantial evidence. These jurists reject the element of doubt introduced into prosecutions based upon circumstantial evidence, especially for zina, where the Quran specifically demands four eyewitnesses to such charges. This majority position is the most compelling one and therefore, the zina conviction against Bariya Ibrahim Magazu, being based only upon the circumstantial evidence of her pregnancy, should be overturned.

Even under the minority Islamic legal school (Maliki) which allows pregnancy as proof of zina, this proof is negated where there is evidence of coercion, where there is any element of doubt, or where there is mitigating evidence against punishment of the particular defendant at hand. In this case, there is evidence of coercion and doubt, as well as mitigation. Therefore, the zina charge against Bariya Ibrahim Magazu should not stand.

Analysis:

The crime of zina (consensual extra-marital intercourse) is a hadd (God-specified) crime established in the Quran. In Surah al-Nur, the Quran specifically requires four eyewitnesses to prove the crime of zina. (See Surah 24, verses 2-4). The issue at the heart of this case is whether other forms of proof (short of a confession), suffice for this hadd punishment. Namely, is pregnancy of an unmarried woman itself proof of zina in the absence of four eyewitnesses?

The majority of the classical schools of Islamic law hold that unmarried pregnancy, being only circumstantial evidence, is not admissible as proof of zina.

The majority of the major Islamic schools of law take the Quranic verses on zina as establishing an exclusive method of proof of the crime - that is, it must be by eyewitness testimony (or confession) only. Anything else is merely circumstantial evidence and not admissible in a hadd prosecution. Thus, unmarried pregnancy, being neither eyewitness testimony nor confession, is not admissible as proof in a zina case. This is the position of the Hanafi, Shafi'i and Hanbali schools of law. (See Muhammad Ibn Quddamah Al-Maqdisi, Al-Mughni 'Ala Mukhtasar al-Kharaqi, Vol. 8, p. 129, 145 (1994); see also Ma'amoun M. Salama, General Principles of Criminal Evidence in Islamic Jurisprudence, in The Islamic Criminal Justice System, p.110 (M. Cherif Bassiouni, ed. 1982)).

The majority position is based on the text and spirit of the Quranic verses on zina and minimizes the introduction of doubt into these prosecutions, in accordance with fundamental principles of Islamic hadd jurisprudence.

The majority opinion is based on the view that the Quranic verses describing evidence in hadd cases establish an exclusive evidentiary standard. Thus, this view takes seriously the Quranic condemnation of anyone who charges a woman with zina and does not bring four eyewitnesses in support of this charge. (See Quran 24:4) The Quran's specific demand for witnesses means that this is the only acceptable means of proof of this hadd in the eyes of God. Based on this reasoning, the Hanafi, Shafi'i and Hanbali schools of law do not accept any presumptions or circumstantial evidence such as pregnancy as evidence in any hadd cases because they contradict the Quranic demand for testimonial evidence. (See Salama, p. 110-13.)

The majority position rejecting pregnancy as evidence in zina cases is also based upon the fundamental shar'i principle that hadd punishments are not to be carried out if there is any element of doubt. (See Tirmidhi hadith: "idra'u al-hududa bi'shubhat" ("drop the hudud in all cases of doubt").). Because circumstantial evidence always entails an element of doubt, the majority view avoids it in hadd prosecutions. After all, just as being drunk does not necessarily mean that one voluntarily consumed alcohol, similarly, the state of being pregnant does not alone mean that one engaged voluntarily in consensual extra-marital intercourse. The classical Muslim scholars acknowledge that one might become pregnant through other means - for example, unknowing intercourse while asleep, a mistaken belief of one's marital status, or worse, coercion to have intercourse against one's will. (See al-Maqdisi, al-Mughni, vol. 8.) With modern medical advances, this cautionary approach of the shari'a is commendable, for we now know that one might become pregnant through artificial insemination where there is no intercourse at all. The existence of all of these possibilities introduces an element of doubt into any prosecution for zina which relies on unmarried pregnancy as evidence. It is for this reason that the majority of schools of Islamic law wisely reject pregnancy as evidence of zina.

Finally, the majority position also reinforces the Quranic protection of women in these verses, an important recurring theme in Islam. (See Asifa Quraishi, Her Honour: An Islamic Critique of the Rape Provisions in Pakistan's Ordinance on Zina, Islamic Studies Occasional Paper #38 (1999) (Islamic Research Institute, International Islamic University, Islamabad, Pakistan), attached). Pregnancy, of course, only applies to women. Yet the Quranic verses specifically assert the need to protect women against charges of zina with anything short of four eyewitnesses. If pregnancy is allowed as proof, the woman-affirming spirit of the Quranic verses is lost.

There is a minority view which allows circumstantial evidence (such as pregnancy) in hadd cases, but it should not be applied if other circumstantial evidence probative of truth is excluded.

A minority of Muslim jurists have held that certain types of circumstantial evidence is allowable in hadd cases. These scholars reason that the Quranic references to hadd evidence indicate a general form of proof of anything manifesting the truth, and is not limited only to the testimony of witnesses. (See Salama p. 110-11, 120-21.) Imam Malik and reportedly Imam Ahmad Ibn Hanbal held this view. In zina cases, these jurists also look to the reported statement of Umar ibn al-Khattab that "adultery is public when pregnancy appears or confession is made." (See Abu Da'ud, Sunan, vol. 3. No. 4404.) Thus, the Maliki school of law admits a variety of types of non-eyewitness evidence in hadd cases, such as pregnancy in zina cases (see ad-Dardir, ash-Sharh as-Saghir (Hashiya "Bulghat a-Saliq" by Ahmad as-Sawi), Vol. 4, p. 454), the smell of wine and vomiting in prosecutions for alcohol consumption, and hearsay. (See Salama, p. 115, 121.)

Thus, those jurists who allow circumstantial evidence such as pregnancy in hadd cases do so with an eye to allowing any strong non-eyewitness evidence which tends toward the truth. In the case at hand, therefore, even if the court followed the minority Maliki view allowing circumstantial pregnancy evidence as proof of zina, then other circumstantial evidence of truth should also be allowed, especially evidence that the intercourse was not consensual (thus negating an essential element of the crime of zina).

The majority position is the most compelling one and should be followed in this case.

The majority position disallowing circumstantial evidence of pregnancy in zina cases is the most compelling one when viewed in the spirit of the Quranic verses condemning any accusations of women without four eyewitnesses and the importance of avoiding doubt in hadd punishmentss. Moreover, it has been said that Nigeria's own Sokoto caliphate history of taking the best approaches from all of Shari'a was an inspired approach. This history should also inform the application of the newly-enacted hadd criminal codes in Nigeria. Nigerian courts should take the most compelling and Islamically careful opinions in carrying out the punishments required by God. Therefore, pregnancy should not be considered admissible proof of the charges against Bariya Ibrahim Magazu for zina. The court should follow the majority opinion among the four schools of law that four witnesses or her confession is the only means of proving this crime. Therefore, any conviction based upon her pregnancy should be overturned.

Even if the court adopts the minority view allowing pregnancy as proof of zina, the proof is rebuttable by evidence that the woman did not consent to the intercourse.

Even the minority Maliki position that allows pregnancy as proof of zina does acknowledge the possibility that pregnancy can result from an unwilling sexual encounter. Thus, the Maliki school allows a woman to rebut a pregnancy-based zina prosecution with evidence of coercion. (See Malik, al-Muwatta, Sec. 41:4, p. 392.) This can come in the form of evidence of physical resistance (bruises, crying out, etc.), or of immediate "sudden response" assertions that the intercourse was coerced. (See ash-Sharh as-Saghir, vol. 4 p. 454.)

In the case at hand, evidence of coercion exists in Bariya's claim that she was compelled to have intercourse as payment for her father's debt to three men. Should she be able to prove this assertion, even the Maliki school would not allow zina punishment. Moreover, the court should not require only eyewitness testimonial evidence in support of a coercion defense, because (as established above), the Maliki school admits circumstantial evidence in hadd cases. It would be self-contradictory to allow circumstantial evidence of pregnancy but deny circumstantial evidence of coercion in the same case.

In the case at hand, the fact of coercion would be inherent in any evidence indicating that Bariya was compelled to have sexual relations as payment for her father's debt. Also, any indications of her resistance to the men themselves would provide further proof of coercion negating a zina conviction.

Even if the court adopts the minority view allowing pregnancy as proof of zina and Bariya cannot prove coercion, the punishment cannot be carried out against her if there is any element of shubh (doubt) in the case.

All schools of Islamic law agree that the punishment for a hadd crime is not to be carried out where there exists any element of doubt. This is based upon the fundamental shar'i principle that doubt suspends hadd punishments. (See Tirmidhi hadith "idra'u al hududa bi' shubha" ("drop the hadd punishments in cases of doubt"), "al-hudud tusqat bil shubha" ("hadd punishments are suspended in doubtful cases"), Ibn Rushd, Bidayat al-Mujtahid, Vol. 6, p. 113.) Examples of doubt in zina cases include (as mentioned above) evidence that the defendant was asleep, or mistaken about her or his marital status with the other party, or that she or he was coerced. Ibn Farhun holds that evidence of foreplay (by which semen might have been ejaculated even without intercourse) creates doubt. Abu Hanifa has stated that where there is any financial arrangement connected to the act of intercourse, it is doubtful as zina, (see ash-Sharh as-Saghir, Vol. 4, p. 448) as is arranging for someone to have sex with your slave (see Bidayat al-Mujtahid, Vol. 6, p. 113) -- an example somewhat comparable to Bariya's claim that her intercourse was arranged by her father.

Moreover, Islamic jurisprudence also strongly discourages hadd punishment where there is anything mitigating against it ("yurahat takfif"), such as the health of the defendant, or their family's dependence upon them. (See Tirmidhi hadith "Avoid punishments so long as there is room for avoiding them," "Keep the Muslims away from punishments wherever possible. If there is any way out for an offender to escape punishment, acquit him. It is better for a judge to err in acquittal than in conviction.") In this case, there are several mitigating factors: Bariya is very young and apparently a victim of serious adversity and possible abuse by her father and society, and she presumably has no previous deviant record Thus, even if she is not able to prove coercion, there is surely enough mitigating evidence to suspend the zina hadd punishment against her.

To be enforceable by the state, a hadd crime must be part of a fully-formed shari'a legal system; if shari'a is applied piecemeal then the state perpetuates injustice in the name of Islam.

The crime of zina is only one of many hadd crimes specified in the shari'a, and a very small part of Islamic jurisprudence as a whole. Each element of the law articulated by the classical Islamic scholars is done with this in mind, such that many elements rely upon the existence of other parts of the whole. For example, Caliph Umar ibn al-Khattab established that the hadd punishment for theft would be suspended where the state had not fulfilled its Islamic obligation of public welfare in a time of famine. This principle applies also to a failure by the state to respond to all potential hadd criminal activity. For example, rape is established under the hadd of hiraba by classical Islamic jurists. (See Quraishi, Her Honour, p. 20), but modern enactments of shari'a today rarely include the hiraba of rape among their criminal codes. In this case, the prosecution of Bariya for zina is unjust if there is no simultaneous avenue for her to legitimately assert a shar'i rape charge. (Moreover, any failure by her to complain of the rape immediately after the event would be perfectly understandable in such a situation, and should not be used against her as evidence that the intercourse must have in fact been consensual.)

In conclusion, the zina punishment should not be carried out against Bariya Ibrahim Magazu. Her conviction cannot stand only upon the fact of her unmarried pregnancy and even if this evidence is admissible, it is rebutted by her evidence that the intercourse was coerced. Finally, the court should be especially reluctant to carry out a zina punishment against Bariya in light of all the mitigating evidence in this case.