Asma LAMRABET

In Islam, like in other monotheistic traditions and in compliance with all universal norms of morality, adultery is condemned.

The Qur’an firmly forbids adultery in this verse: "Those who commit adultery, men or women, give each of them a hundred lashes" Qur'an 24: 2.

It is noteworthy that the Qur’an does not stipulate stoning as punishment but rather “ a hundred lashes” that remains an exclusively dissuasive sanction.

It should be equally noted that both men and women are penalized for adultery, unlike what is generally assumed, namely that only women are blamed and responsible for adultery.

Notably, there is no verse that talks about stoning either men or women or for committing adultery.

The Qur'anic sanction prescribed for adultery - for both men and women - is the "flogging," a measure introduced as a corporal deterring punishment to replace the practice of stoning. Stoning was actually an inherent custom in the Mosaic law of Jewish communities living in the Medina at that time.

This measure of flogging - a hundred lashes - came to replace that most tragic measure of stoning to death, which was very common at that time.

It is true that the practice of stoning, which was originally a Jewish tradition, has long survived in the Arabian lands and resisted all attempts of reform, despite its evident absence in the sacred text.

The concept of stoning is maintained in the Muslim law, and its practice is justified later by virtue of a controversial interpretation of a hadith related to some cases where the adulterers voluntarily confessed their sin in front of the Prophet during the Medina period.

It should be clarified here that the Qur'an has voluntarily repealed the practice of stoning and replaced it with the corporal punishment of one hundred lashes, which reflected the universally recognized judicial system at that time.

This type of corporal punishment was the only penalty known and used at that time to ensure compliance with the law, which stems from all religious traditions.

It is therefore important to mention that in the first cases of accused women of adultery, the Qur’an issued a binding law that consists of "confining" women accused of adultery to their homes until further notice.

The verse says: "Those who commit unlawful sexual intercourse of your women - bring against them four [witnesses] from among you. And if they testify, confine the guilty women to houses until death takes them or Allah ordains for them [another] way."(Qur’an 4:15). We can notice in this verse that the Qur'an primarily requires the testimony of four witnesses, which is certainly not likely to happen.

"Keeping" women in their homes can be considered a means of protecting them from becoming victims of popular opprobrium, which is in itself, a temporary means of avoiding abuses based on rigid mosaic legislations of that time[i].

This measure of "confinement," however, remains unimplemented because, according to a quasi-consensual view, it will be abrogated by another verse that precisely delineates the legal standards of this issue.

The following verse marks the second phase in the Qur’anic reform: "And those who accuse chaste women and then do not produce four witnesses - lash them with eighty lashes and do not accept from them testimony ever after. And those are the defiantly disobedient” ; Qur’an 24; 4

The Qur’anic abolition of stoning - lethal corporal punishment - and its substitution by the sentence of one hundred lashes, was a first step towards the alleviation of the penalty. However, it is even more important that the Qur’an requires providing irrefutable evidence of the adultery.

This Qur'anic measure makes accusation extremely difficult, if not impossible. The proof of adultery requires the presence of four eyewitnesses who, according to the Muslim law, must have witnessed the sexual act and relate the same descriptions,^[ii]which is virtually impossible.

The new measure remains extremely difficult to implement since it is conditioned by the testimony of four people of good faith to validate the accusation of adultery. The obligation to provide four eyewitnesses is a drastic measure, which makes proving the adulterous act very improbable.  The Quran is very strict regarding false testimonies and punishes those who present false testimonies with the same penalty as that of adulterers: flogging along with the loss of all of their civil rights.^[iii]

Given the delay in revealing legal principles concerning adultery and, the legal gap regarding this issue, the prophet was often forced to apply punitive sanctions under the pressure of the population, mainly Jewish scholars who were very stern in regard to this requirement of stoning.

Many Ahadith show the extreme tolerance and compassion of the Prophet towards those who came to him to confess their "sins". He tried repeatedly to consider the facts in context, postpone the deadline, and to sometimes pretend that he did not assimilate the facts presented before giving the perpetrators the chance to retract their confession at any time. In this regard, it is noteworthy that the doctrine of "doubt" or "ambiguity" (shubha) developed in the Muslim law that may cancel the conviction for adultery at any time, is based on the Ahadith of the Prophet.

The Qur'an therefore attempts to establish a very reformist vision in order to change the social norms of the time by invalidating the Hebrew law of stoning and educating Muslims to respect the private life of individuals.

Moreover, some commentators of the Qur’an relate that after the revelation of this second verse, which stipulates the presence of witnesses, some companions of the Prophet in the Medina explicitly showed their disapproval of such measures. The mentality of the people at that time was not yet ready to understand or assimilate such measures.

The exegesis Ibn Kathir reports that at the revelation of the verse 24 in Surat 4, many companions were outraged and denounced the fact that the perpetrators cannot be judged in the case of such serious misconduct, adultery, before being able to provide four witnesses.

The dismay of the Arabs at that time can be justified and understood as they were known for being proud of and fiercely defending the values of honor and social reputation, which usually created conflicts often resolved through revenge by personal interventions^[iv].

One can only remain puzzled by the gap between the "reasoned" and advancing attitude of the Qur’an, on the one hand, and the legislations in some Muslim countries, on the other. Since the colonization period, these countries hardly gave importance to this Qur’anic concept and made laws in favor of what is commonly known in the Napoleon code as "honor killings".

One only has to see how the old crimes of honor killings qualified as such in the European legislations are replaced today with the milder concept of "crime of passion" taking into account that Europe has gone through a process of modernizing their laws and customs.^[v]

 Asma Lamrabet

November 2016