Control and Sexuality: The Revival of Zina Laws in Muslim Contexts

The Violence is Not Our Culture (VNC) Campaign and the Women Living Under Muslim Laws (WLUML) network recently launched a new publication on zina (illicit sex) laws and their tentative (re)introduction in some predominantly Muslim nations.  “Control and Sexuality – The Revival of Zina Laws in Muslim Contexts,” is an attempt by civil society organizations across various countries to address the historical and present-day cultural, legal and political motives that have led to the reemergence of these controversial laws.

The authors, Ziba Mir Hosseini and Vanja Hamzic, offer a “critique from within,” dissecting zina regulations using classical fiqh (Islamic jurisprudence) and analyzing the sociopolitical circumstances leading to its reemergence.  The book is structured to be a reference tool for those particularly interested in country-specific case studies on the use of zina laws. Each of the countries selected (Indonesia, Iran, Nigeria, Pakistan and Turkey) is meant to illustrate and substantiate the astonishing diversity of national contexts in which zina has reemerged. The country-specific case studies are further divided into the following subsections: (1) introductory remarks; (2) historical background; (3) domestic legal system; (4) state responsibility; (5) existing civil society activism for change; and (6) conclusion, thereby providing a requisite balance and evidence to the authors’ thesis on the criminalization of women’s sexuality.

While there are differences between Islamic legal schools* on the conditions necessary to ascertain hadd (crime) of zina, “there is consensus in fiqh on the definition and rulings.” Zina is the Islamic jurisprudential term denoting illicit sexual relations, particularly adultery and fornication outside marriage.  Four “righteous” male witnesses must have seen the act of penetration and must concur in their accounts to establish zina.  Punishment for zina is the same for men and woman: stoning to death for a case of adultery and 100 lashes for premarital sex.  According to the authors, the latter has a Qur’anic basis, while the former is based on Sunnah (saying and practices of the Prophet Muhammad).

The book cites age-old patriarchal motive (including patriarchal readings and interpretations of the Qur’an and Sunnah) as prevalent reasons behind the reintroduction of zina legislation.  The almost evangelical refocus on Islam as a political and spiritual force in the late 20^th century (and more recently, post-9/11) has also unfortunately led to the revival of zina laws in the newly Islamized criminal justice systems in countries like Nigeria, Pakistan and Iran.  The book cites a number of other reasons for the reemergence of zina laws, including “protracted socio-economic crises; covert ambitions of political, military and religious elites; post colonial and post nationalist anxieties and theopolitics, i.e., politics based on misuse of religion.”

The book is considered an important contribution to emerging Islamic feminist scholarship and has fairly dismantled politics of zina with these case studies, which make up the bulk of the volume.  The “critique from within” is brief in comparison, primarily focusing on zina in classical fiqh and providing a literature review on various scholarly interpretations.  The authors also confirm that preventing a conviction was topmost on the minds of classical jurists, as zina laws also served to protect women from slander (from the community and or their husbands), particularly since women were liable to carry evidence of the affair in the form of a pregnancy.  So much so that the Qur’anic punishment for an unsubstantiated accusation of zina is 80 lashes.

The critique is followed by sections on nikah (marriage) and hijab (covering) in relation to zina laws, which interestingly enough appear to shift more towards the “feminist” end of the scholarship spectrum rather than the “Islamic” one.  Understandably, the authors felt the need to include marriage in their discussion because a charge of zina is handed out when sex occurs outside marriage or when it violates marriage, making the nikah effectually central to socially accepted relations between men and women in Islam.

The discussion alludes to marriage as the act of selling women’s sexuality and how the “logic of women’s sexuality as property and its sale on marriage” justified polygyny and defined rules for the termination of marriage, wherein a man benefits both from entering into the marriage state and its possible termination.  While the authors make a valid point, reference should have been made to the circumstances leading to the introduction of polygyny in Islam – like divorce, polygyny is only considered an option when all alternative methods of reconciliation and amendment between the partners have been exhausted.  The context in which of the verse was revealed was to protect and safeguard the virtue of numerous women who had been widowed or lacked guardians after the Battle of Uhud.

On the whole, the book is a well-researched critique of emerging zina laws in predominantly Muslim contexts, earning additional credibility by debating key points of classical fiqh to underscore the violation of women’s rights that occur with such laws.  Since the discussion takes its cues from a human rights perspective, the book also offers insight into “appropriate concepts and strategies for the campaigns to decriminalize consensual sex,” an approach which may not curry favor with all Muslims.

Resistance movements and organizations are joining forces (as is the case of this scholarly contribution) and have employed several strategies to counteract the revival of zina legislation, most of which include educating and informing the public on the politics of zina.  But as long as political motivations of a select few trap women’s rights in their respective national machineries, the removal of zina laws and other coercive customs which have found their way into Islamic communities by virtue of their supposed “Islamic-ness” will continue to challenge women’s place in society.

*There are two main denominations within Islam (Sunni & Shia), each with their own schools of law or religious jurisprudence (fiqh).  The Sunnis comprise of Hanfi, Maliki, Shafii and Hanbali schools of thought while the Shia have the Jafari.