Punishment for Homosexuality in Islam
What is the punishment for homosexuality in Islam?

Islamic jurisprudence schools have different opinions about the notion of “zina”.

The Hanafi sect defines “zina” as “vaginal heterosexual intercourse” basing on the literal and terminological meaning of the word, reserving some conditions about the charge and execution of the punishment. Although anal heterosexual or homosexual intercourse are also regarded as crimes, their punishments are considered to be tazir[1], rather than being equivalent of the punishment for zina. The punishment for zina is being stricken 100 times with a stick, as decreed in the Quran, verse al-Noor 24:2.

Sects other than Hanafi, such as Shafii, Maliki, Hanbali, Shi’a and Zaydiyya consider all types of aforementioned relations as zina, and consider the punishment for them to be the same as zina[2].

Hanafi scholars state that punishments should differ by the attribute of the crime. They add that homosexual relation is not through a regular body part of copulation, and that homosexual relation does not constitute a felony regarding the lineage[3]. Hence, the punishment for homosexual relation should be different from the punishment for zina.[4]

Zahiri scholars state that there is no solid evidence to prove homesexual relation to be the equivalent of zina, and therefore consider its punishment as tazir.

On the other hand, the word “al-fahsha = الْفَاحِشَةَ”[5] is used in the Quran to describe the act of zina.  The very same word al-fahsha  is used to refer to the bad deed of Prophet Lot (pbuh)’s community in the Quran[6], which allows homosexual relation to be classified within the scope of zina[7]. The punishment inflicted on the people of Prophet Lot (pbuh)[8] being similar to the stoning punishment (rajm), which is the prescribed punishment for zina in the Torah, also supports this opinion.

Besides, it is possible to consider the notion of “fahsha =  الْفَاحِشَةَ” as an umbrella term which covers both zina and the types of homosexual relations. In this case, we can say that the penal sanctions prescribed for zina and homosexuality are quite similar to each other because they protect the similar judicial and public values. These values were abused by the community of Lot (pbuh). They had adopted a homosexual lifestyle which partially caused extinction of lineages. In a way, it was a genocide, and therefore they deserved the punishment.

All schools of Islamic jurisprudence have consensus that lesbianism is not considered in the scope of zina. Yet, they agree that it is still a crime and requires a tazir type of punishment.

 

 

[1] In Islamic Law, tazir (or ta’zir, Arabic تعزير) refers to punishment for offenses at the discretion of the judge or ruler of the state. It is one of three major types of punishments or sanctions under Sharia Islamic law — hadd, qisas and tazir. The punishments for the hudud offenses are fixed by the Qur’an or Hadith (i.e. “defined by God”), qisas allow equal retaliation in cases of intentional bodily harm, while ta’zir refers to punishments applied to the other offenses for which no punishment is specified in the Qur’an or the Hadith.

[2] Ferra, Kadi Ebû Ya’la Muhammed b Huseyn, thk. Muhammed Hamid el Feyki, Ahkamu’s- sultaniyye, Beyrut, Daru’l-kutubi’l-ilmiyye, 2000, 263; Şirazi, el-Muhezzeb, III, 339;
Ibn Rushd, Bidayetul’-muctehid, II, 433; Ibn Kudame, el-Mughni, XII, 340; Hattab, Ebû Abdullah Muhammed b Muhammed Abdurrahman el-Maghribi er-Ruayni, Mevavibu’l-celil sherh-u Muhtasar-i Halil, I-VIII, nshr. Zekeriyya Umeyrat, Beyrut, Daru’l-kutubi’l-ilmiyye, 1416/1995, VIII, 489; Behûti, Mansur b Yunus b Idris, Keshshafu’l-gina an metni’l-ikna, thk.

Muhammed Emin ed-Zinnavi, I-V, Beyrut, alemu’l-kutub, 1417/1997, V, 75, 88; Derdir, eshŞerhu’s-sagir, IV, 447; asimi, Abdurrahman b Muhammed b Kasim en-Necdi, Hashiyet-u ravdil-murbi’ sherh-i zadi’l-mustekni’, I-VII, y.y. t.y. VII, 311; Bilmen, Hukuk-i Islamiyye, III, 199, 209; Udeh, et-Teshriu’l-cinaiyyil-Islami, II, 349

[3] Merghinani, el-Hidaye, IV, 105; Zeylai, Tebyinu’l-Hakaik, III, 181; Udeh, et-Teshriu’l cinaiyyil-Islami, II, 353

[4] Merghinani, el-Hidaye, IV, 104 vd. ; Ibn Kudame, el-Mughni, XII, 349

[5] The word translated as “sexual offences” in the following verse is “fawahish”. It is in plural form; and in Arabic plural form denotes at least three entities: “Who refrain from the major sins and sexual offences, and forgive whenever they become angry…” (Shura 42:37) That means, there can be three types of sexual offence: Heterosexual regular intercourse, homosexual relation of men and homosexual relation of women.

[6] Araf 7:80; Neml 27:54; Ankabut 29:28

[7] Ibn Kudame, el-Mughni, XII, 340, 349

[8] Al-A’raf 7:84, Hud 11:82, al-Hijr 15:74

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Date: Aug 17, 2017
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