Women have an Islamic right to exemption from criminalization or punishment for consensual adult intercourse.
Asra Nomani, “Islamic Bill of Rights for Women in the Bedroom,” 20051
The woman who commits zina and the man who commits zina,
lash each of them one hundred lashes.
Do not let pity deter you in a matter ordered by God,
if you believe in God and the Last Day
Qur’an, Surah 24, verse 2
Sex is, paradoxically, both the most private, intimate act humans can undertake and a profoundly social activity. All societies and cultures regulate sexual activity among their members. Certain pairings are permissible, while others are not; some acts are approved, while others are disallowed. Muslims are not alone in making distinctions between what is lawful and unlawful, what is proper and improper. Nor have Muslim societies historically been unique (or uniform) in imposing consequences, including physical chastisement, on those who break the rules. However, although the particular configuration of licit and illicit sexual activities developed by classical Muslim thinkers from prescriptions in the Qur’an and sunnah shares certain elements with other cultures and traditions, it differs in crucial ways – in particular, in punishing men and women equally for failure to heed the limits.
The Qur’an speaks in scathing terms of sex outside lawful bounds – with a spouse or with what one’s “right hands possess” – as corruption and sin, and repeatedly refers to chastity (literally, protecting one’s genitals) as a virtue for both males and females.2 Zina, sex between a man and a woman who is neither his wife nor his slave, was the most serious of the sexual trangressions described in the Qur’an and treated in the Prophet’s sunnah. One critical component of zina as elaborated by Muslim thinkers is its consensual nature, although some thinkers categorized regular zina along with “zina by force” (bi’l-jabr). The free consent of two individuals to engage in sexual relations was not sufficient or even necessarily relevant to whether sex between them was licit and socially acceptable. Like ancient Near Eastern and Mediterranean codes, Muslim source texts and developed Islamic law held the view that the individual status of and legal relationship between two parties determined whether sex was licit. Were the individuals free or enslaved; married, previously married, or never married; were they male or female?
The particular configuration of lawful and unlawful acts formulated by premodern Muslim jurists does not match current laws or practices in Muslim-majority societies or among Muslims living in the West. That classical scheme, in keeping with common practice in the region at the time, accepted (non-consensual) sex with enslaved females, as well as the marriage (without consent) of male and female minors by fathers; laws today forbid both slavery and marriage of minors (although the definition of minority varies greatly).3 The view “that consent makes a difference to whether some sexual activity is seen as immoral or not”4 is widely shared. Most Muslims who espouse the view that consent matters do not phrase their views as categorically as American Muslim writer Asra Nomani does in stating that “consensual adult sex” should not be punishable. Rather, consent is often seen as necessary but not sufficient for sex to be lawful. Classical Muslim views about consent and its relationship, or lack thereof, to lawfulness were unremarkable in the context of broader Near Eastern and Mediterranean late antiquity, where even free women could be treated as sexual property in some sense, and familial participation in the marital arrangements of family members, especially girls, was expected. At the same time, a variety of semi-marital arrangements, including slave concubinage and temporary liaisons, were sometimes permissible, allowing some more fluid unions.
Over a thousand years later, legal concubinage no longer exists in the Muslim world, polygamy has been legally restricted in many places, and nation-state bureaucracies have become involved in marriage licensing and registration. At the same time, alternate marriage and marriage-like practices are emerging or re-emerging in various places in the Muslim-majority world. These include mut‘a, a form of time-limited marriage approved by Shi‘i law but occasionally engaged in by Sunnis in the West; zawaj al-misyar, “marriage in transit,” a type of union which conveys more limited spousal claims than usual and has found approval from some Saudi muftis; and zawaj ‘urfi, “customary marriage,” as practiced particularly in Egypt. This last, a religious marriage not registered in accordance with civil law, is similar in numerous respects to the practice common in some European immigrant and African-American communities of marrying in only religious ceremonies without seeking civil recognition. The rise in these informal marriage practices, as well as what is likely to be a rising incidence of sex outside of marriage, is attributable in part to a large and increasing gap between sexual maturity, beginning at puberty, and social maturity, the age at which it is socially reasonable to get married. This does not mean that illicit sex (premarital intercourse, extramarital liaisons, etc.) was unknown in the past or is not practiced in Muslim majority societies today, often without discovery or punishment.5
The rising age of marriage for both male and female Muslims in numerous societies means that alternate forms of sexual liaisons are gaining ground de facto, notwithstanding the continuing importance of female virginity in many communities. Yet there is a general unwillingness on the part of many Muslims to confront the existence of sex outside of marriage. This reluctance is due in part to a well-integrated principle of comportment that forbids broadcasting one’s own sins and requires covering up sins of others. It does not allow for serious consideration of how Muslims’ sexual practices have shifted, how modern notions about the importance of consent makes a flat prohibition on all non-marital sex seem less sure to some Western Muslims, and how practical matters such as the intersections between religious and civil marriage are to be addressed in modern nation-states, especially those where Muslims are a minority.
As a prelude to discussing contemporary Muslim thinking on non-marital sex, this chapter will address the classical definitions of licit and illicit behavior, and the rewards and punishments associated with each. The regulatory attention of the classical jurists was not limited to illicit activities but also encompassed even lawful sexual activity, such as between spouses.6 In notable contrast to the hyper-attention on the imposition of penalties for illicit sex in some Muslim contexts today, where the enforcement of hadd punishments stands as a symbol of Islamic authenticity, the response of premodern jurists to unlawful sex was generally pragmatic regulation rather than dogmatic insistence on punishment for offenders. It is clear from both what is explicit and what remains unarticulated in their texts that various types of unlawful sexual activity have always been practiced in Muslim societies. Jurists and judges accepted hadd punishments in principle, but – at least in part because the rules of evidence made proving a charge of zina no small matter – frequently assumed that instances of illicit sex would go unpunished by human authorities.
Just because zina went unpunished did not mean, though, that there were no earthly legal consequences to intercourse outside of marriage. The effects of zina were regulated as part of the jurists’ broader treatment of Muslims’ sexual behavior, and the legal effects of lawful and unlawful sexual encounters often overlapped. The view that any sexual act merits either “payment or punishment” explains both the requirement of marriage, with dower (or purchase, in the case of a female slave), and the possibility of transmuting punishment by treating an impermissible sexual act as a mistake, for which the woman involved would receive compensation in the amount of her fair dower. Such “mistakes” also allow for the imputation of paternity, which illicit relations do not. The boundary (hadd) between lawful and unlawful remains unchallenged, but in practice, specific acts are not always so neatly categorized.
According to Qur’anic passages, hadith narratives, and the works of jurists and exegetes, lawful sex – that is, approved acts between partners who are legally permitted to one another – is good, healthy, and praiseworthy as a divinely approved form of pleasure. Unlawful sex – where the partners are forbidden to one another or, to a lesser extent, the specific acts engaged in are disapproved7 – is reprehensible, the cause of social chaos and personal sin, and deserving of earthly punishment as well as divinely wrought chastisement in the hereafter. Several hadith, found in Sahih Muslim among other sources, illustrate both the naturalness of sexual desire and the importance of its satisfaction only within licit contexts. Muslim presents these accounts of the Prophet’s words and deeds under the heading “He who sees a woman, and his heart is affected, should come to his wife, and should have intercourse with her.” The accounts, reported by Jabir b. ‘Abdullah, state that Muhammad “saw a woman, and so he came to his wife, Zainab, as she was tanning a leather and had sexual intercourse with her.” In the most detailed report, the Prophet subsequently advises his Companions that “When a woman fascinates any one of you and she captivates his heart, he should go to his wife and have an intercourse with her, for it would repel what he feels.”8
From this account and other similar narrations scholars have deduced that a man is not to blame for becoming aroused by a woman to whom he has no lawful sexual access – provided he does not deliberately seek out such stimulus; another relevant piece of advice attributed to the Prophet states, translated freely, “The first look is free, but the second one will cost you.”9 Seeking satisfaction due to that arousal is not only permissible, but recommended: a man in that situation should follow the Prophet’s example and return home to have intercourse with his wife. The Prophet is also reported to have said that a man will be rewarded by God for acting thus. When questioned by an incredulous companion as to why God would reward him for such a pleasurable activity, the Prophet responded by asking whether God would punish him for satisfying his desire unlawfully. Just as the illicit satisfaction of desire is punishable, Muhammad explained, so the lawful satisfaction of desire is rewarded. Female desire, it must be noted, makes no appearance in these traditions, which presume both the wife’s availability and her acquiescence, not to mention her interchangeability: desire sparked by one woman could be easily satisfied with another.
Islamic definitions of lawful and unlawful sexual activity shared a double-standard governing male and female sexual behavior with other ancient legal systems (Greek, Roman, and biblical). A Muslim male could have more than one licit partner – up to four wives and an unlimited number of slave concubines (and for Shi‘i men, an unlimited number of mut‘a, or temporary, wives) – while a Muslim female could only be sexually lawful to one man at a time, either her husband or, in the case of an unmarried female slave, her master. However, the scope of partners available to men under Islamic law was also restricted in a much more significant way than was the case in these other legal systems. Most obviously, male partners, entirely legal under Greek and Roman (though not biblical) law where the males in question were slaves or social inferiors, were prohibited under Islamic law.10
Muslim rules governing sex between men and women were also more stringent in key respects than those of other ancient societies, which tended to punish men for sexual contact only with virgin or married women whose sexuality was under the control of a father or husband. Under ancient Greek law, “The only officially forbidden fruit was the wife of another citizen.”11 Roman law likewise made a distinction for married men between being unfaithful and committing adultery; the more serious offense of adultery involved another man’s wife.12 Under rabbinic law, moral constraints governed the behavior of divorced or widowed women, but only offenses by or involving virgin, betrothed, or married women were punishable.13 For a Muslim man, by contrast, any consensual sex with a woman who was neither his wife nor his own female slave constituted zina, the form of illicit sexual activity with which the classical Muslim jurists were most concerned. (There seems to have been some early tolerance for the lending of female slaves, but it was ultimately not permitted by the established legal tradition.) Although a Muslim male’s partners may have been numerically unlimited in theory, for non-elite men, without the resources to own slaves or marry a second wife, monogamy would have been the norm rather than the exception.
Despite the double standard with regard to the number of lawful partners men and women could have, as well as how much say they had in the initiation, continuation, and termination of those legal ties, there was no difference with regard to punishment for sex outside those ties. The Qur’an specifies one hundred lashes each for both the male and female participants in zina, if free, with half as many for enslaved offenders.14 According to precedent attributed to the Prophet Muhammad, only enslaved or never-married offenders are to be lashed; free offenders who are or have been married15 are subject to the harsher penalty of lapidation, stoning to death – a biblical punishment for a different sexual offense.16 Islamic law links the more severe punishment of stoning to marital status rather than gender. Thus, if a never-married woman committed zina with a married or previously married man, she would be flogged and he would be stoned. The reverse would be the case if the woman was or had been married and the man was a bachelor. The jurists applied these criteria unfailingly, never suggesting that women should be subjected to harsher punishment than men for the same offense, or that a man’s offense was lessened if the woman he bedded was not someone else’s wife or betrothed.
Though these hadd punishments are clearly spelled out, the imposition of either penalty for zina requires stringent proof, generally either by witnesses or confession. The Qur’an requires the testimony of four eyewitnesses17 whom the jurists specify must be adult, male, Muslim, and able to testify to having seen the actual act of penetration; describing what the testimony must include, they use analogies such as a key going into a lock, or a pen dipping into an inkpot. Harsh punishment is to be meted out to those who accuse a woman of unlawful intercourse but cannot produce three additional witnesses to her crime. Such accusers become themselves guilty of the hadd crime of slander (qadhf) and are liable to flogging – eighty lashes, according to Surah 24, verse 4, almost as severe as what is specified for the crime of zina itself. Confession can also prove a charge of zina. Although the Qur’an does not mention this form of proof, a number of hadith report the Prophet punishing offenders on the basis of their own confessions – which, tradition makes clear, he discouraged them from making.18 For the most part, the tradition literature and the jurists’ writings demonstrate a real aversion to both accusation – at least some of which can be attributed to the Qur’anic punishment for unsupported charges – and confession.
Proof by witnessing or confession is equally applicable to men and women accused of zina, but one doctrine places women disproportionately in jeopardy of punishment. The dominant opinion of the Maliki school of legal thought is that pregnancy in a woman who is not currently married (or in her waiting period from divorce or widowhood) is prima facie evidence of zina. This view is not shared by the other legal schools, which hold that pregnancy does not provide the necessary degree of certainty that an unlawful act was committed. Even among the Malikis, the impact of the view that pregnancy is proof of zina was muted by the acceptance of a lengthy gestation period, up to four or five years, during which a pregnancy could be attributed to a previous husband. In fact, jurists and judges in premodern Muslim societies used a variety of legal maneuvers and excuses to thwart application of hadd penalties, even where the parties acknowledged having intercourse outside of a valid marriage. Because of the seriousness of hadd crimes and the severity of the penalties, it became an important legal principle that in cases of doubt, hadd punishments were to be dropped in favor of milder discretionary punishments. Two statements attributed to the Prophet favor this dropping of the hadd:“Avoid punishments so long as there is room for avoiding them” and “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.”19
The jurists’ strict attention to seemingly unattainable evidentiary standards also firmly placed responsibility for judgment and punishment for zina squarely in the hands of the public authority, rather than making it a matter for private retribution.20 Numerous hadith found in both Bukhari and Muslim make clear that even if a man were to find his wife with another man, he could not take the law into his own hands, but rather would have to bring three additional witnesses to her act before the public authority could judge her offense. What about the case of a husband who witnesses his wife’s adultery but cannot substantiate his claim with the necessary additional witnesses? In such a situation, the most he can do is deny paternity of a child his wife is carrying or has delivered, by proceeding with a series of mutual oaths, set forth in the verses directly following those on punishment for zina.21 In the Qur’anic procedure known as li‘an, he can disavow the paternity of his wife’s child without being subject to the usual, nearly impossible to satisfy, requirements of proof for zina. However, she can defend herself against his accusations by taking four oaths that she is not guilty; then, their marriage will be dissolved and she will not be liable to punishment, but she will have sole care of the child – just as if it had been born from zina. Although a child born of zina is not himself or herself guilty of any wrongdoing, the existence of such a child is threatening to the stability of the system governing kinship and social interaction.
Marital intercourse is the paradigmatic sexual act in Islamic law. Its lawful nature does not exempt it from legal scrutiny; if anything, the opposite is the case. Sex within marriage has a variety of financial, social, and ritual consequences that require jurisprudential regulation. The first act of sexual intercourse in marriage obliges the husband to pay the wife her full dower, removes her opportunity to have the marriage dissolved on the basis of his impotence, creates kin prohibitions – that is, barriers which prevent each spouse from marrying certain close relatives of the other in the future, and obliges the wife to observe a waiting period if she is widowed or divorced. Every act of marital intercourse in which penetration occurs requires each spouse to complete a major ablution (ghusl) to re-establish ritual purity before he or she can pray. This list does not exhaust the legal consequences of marital sex, but it provides a starting point for considering how illicit sex compares in its legal effects.22
Zina differs in two crucial ways from lawful marital intercourse, aside from the issue of punishment. First, an obligation to pay dower never results from consensual unions outside of marriage. Second, any offspring of zina have no legal father. These twin issues of dower and paternal affiliation are the primary consequences of lawful sex between married partners (and exist, in modified form, in liaisons between owners and their concubines as well). There is one area, on the other hand, where it is uniformly agreed that zina does not differ from lawful marital sex: intercourse between forbidden partners makes ablutions necessary just as it does between spouses. When it comes to determining the other legal consequences of zina, however, the jurists disagree among themselves. Yet despite this disagreement, it is striking that they attend primarily to determining where and whether parallels between zina and marital intercourse exist, debating extensively over whether, for example, kin prohibitions are created by an illicit sexual encounter as they would be by marriage.
In making arguments about this issue, by and large the jurists do not discuss punishment at all, merely the question of whether kin prohibitions are established. To take one hypothetical case: does a man’s wife become forbidden to him because he committed zina with her mother (as she would become if he consummated a marriage with her mother, even accidentally)? Since the man is married and thus, by juristic consensus, liable to be stoned to death for his offense, the issue of whether his wife becomes forbidden to him should be irrelevant. It does not matter if a man sentenced to death may or may not have intercourse with his wife, since carrying out the hadd punishment renders the issue moot. However, the ways in which jurists of all legal schools discussed this issue demonstrates that the hadd penalty was not their primary concern; in fact, the query essentially presupposes that the hadd will not be applied. Only if this is assumed does the question of whether the man may continue a marital relationship with his wife have any importance. This brief example shows that the jurists persisted in applying the traditional legal consequences of marital intercourse to illicit sexual acts as often as possible, in an attempt to encompass them legally, and reduce their power to cause social havoc. Even when they decided that the same consequences did not apply, it was with these ordinary effects of unlawful sex that they largely concerned themselves, rather than with punishing offenders.
It is tempting for someone who wants to minimize the importance of hadd punishments to emphasize the jurists’ matter-of-fact treatment of illicit sexual acts, but their detail-oriented attention to the banal consequences of otherwise forbidden sexual encounters should not be mistaken for tacit approval of those acts. The jurists’ approach to dealing with sexual transgressions does not mean they did not, at other times, condemn them in the strongest possible terms. The pragmatic regulation of sex did not exist only with regard to acts that some liberals might find tolerable today, such as consensual sex between unmarried adults. Rather, the same pragmatic approach extended to acts agreed to be horrific, including rape. The jurists were not giving a wink-and-a-nod approval to rape when they discussed whether a raped female needed to perform ablution after forced intercourse (the rapist, all agreed, had to do so before he could pray).23 While the rape may have been both horrifying and deserving of punishment, the jurists had a particular concern and objective and were not distracted from it. This pragmatic, technical, legalistic approach to the issues in question does, at times, seem to lose sight of the big picture. However, it is also helpful to keep in mind the jurists’ assumption that whatever sexual sin individuals might have committed, they will continue to live, and pray, as Muslims.
A widely cited account set during the Prophet’s lifetime illuminates the continual tension between punishment and regulation as responses to unlawful sexual activity. In this narrative, two different men assert that a particular youth, born to a female slave, is of their own lineage. The son of the slave-woman’s owner affirms that the young man is his brother, “born on his [father’s] bed,” the result of a legitimate union between owner and slave. The man who asserts this is the brother of the Prophet’s wife Sawda, the slave-owner in question was her father. Another man declares that his own brother, since deceased, claimed paternity of the youth, the result of an illicit affair with the slave. The Prophet, so the story goes, attributed paternity to the slave-owner, Sawda’s father, famously stating: “The child belongs to the bed, and the adulterer (‘ahir) is to be stoned.”24 However, apparently noticing a family resemblance between the other claimant and the young man, the Prophet told Sawda to screen herself from the youth.
In part, this anecdote is a reaffirmation of basic legal norms governing sexual morality. Paternity is established by marriage or, in the case of a slave concubine, ownership. By affirming that the slave-owner was indeed the legal father of the youth borne by his female slave, the verdict rendered by the Prophet ensured the stability of this system for attributing paternity and reiterated that sexual transgressions would be severely punished.
There is another level to this tale, though, found in the Prophet’s order to his wife Sawda to screen herself from the youth, despite his own verdict declaring the youth legally her brother, and therefore among those relatives in front of whom she could appear. The Prophet’s command represents an acknowledgement that this particular attribution of paternity was a legal fiction. The appearance of this story in works of jurisprudence represents an acknowledgement by the jurists that their regulations also at times create legal fictions that attempt to normalize illicit sexual activity.25
The issue of legal fictions surrounding paternity remains a complicated issue in the present day and age, as a recent Egyptian case demonstrates. Hind al-Hinawwy bore a child, claiming that Ahmed al-Fishawy was the father and that he had married her in a widespread but largely clandestine phenomenon known as zawaj ‘urfi, or customary marriage. Zawaj ‘urfi is usually kept secret from parents, and remains completely outside the bureaucratic channels of the Egyptian nation-state. Nonetheless, if there are sufficient witnesses, some scholars accept that it meets the minimal requirements for a valid marriage under those interpretations of Islamic law where a bride is not required to be represented by a guardian. Al-Hinawwy’s putative husband, a well-known actor, denied the marriage and rejected paternity of the child. The mother’s request for DNA testing to allow her to press her claim of paternity raises a crucial question with implications far beyond her individual case: if she cannot prove the marriage, is there valid paternity even if the test results point to the man she claims sired the child? In classical jurisprudence, there is no necessary relationship between biological paternity and legal paternity.26 If a child were to be from zina, no acknowledgement from either mother or biological father can establish legal paternity for the child involved. What is at stake here is not whether or not the woman could be punished for zina – Egypt does not prosecute zina, and even if it did, whether or not the man’s claim that there was no valid marriage is accepted, there are certainly grounds for a claim of mistake (shubha) on her part which would prevent conviction for zina. Rather, the issue was whether the child’s alleged father could be forced to take paternal responsibility for the child, as the mother demanded.
This case would, for a variety of reasons, likely be treated as shubha, a mistake, which conveys paternal affiliation. But the use of DNA testing to link legal paternity with biological father-hood raises a number of difficult questions that women who have hailed this case as a step for sexual parity must address. In some respects, DNA as proof of paternity is analogous to physiognomy used in early Muslim communities to differentiate among various claimants (in cases of women who remarried before observing proper waiting periods, etc.). However, as the case of Sawda’s half-brother shows, evidence gathered in that fashion was insufficient to override a legal claim or to establish a legal tie where none existed. Does the shift in technology with the ready availability of DNA testing alter this dynamic? And if so, is it a good thing?
One consideration is that if paternity testing becomes a standard practice in cases of dispute, it would substantially alter the existing legal dynamics that set a very high bar for accusing women of being unfaithful.27 In the time of the Prophet and subsequent centuries, jealous and suspicious husbands had few avenues to pursue without irremediable consequences. Men who called into question their wives’ chastity, by imputing illegitimacy to children they bore, either had to disavow such children formally through the virtually defunct mechanism of mutual cursing (li‘an), thus permanently ending their marriages, or to withhold any accusations and refrain from any defamatory speculation. If a man could order DNA testing on his child without automatically dissolving his marriage, it would change the balance of rights and duties in unexpected ways.
The notion of checking for compliance with paternity would fundamentally violate the “don’t ask, don’t tell” principle that is deeply influential in Muslim ethical discussions and social practice, sometimes for better, sometimes for worse. Ebrahim Moosa, writing about the offspring of zina, makes a point that is more broadly valid:“juristic ethics discourages any such probing that may produce incriminating evidence that delegitimizes the child.”28 Despite the discouraging of this probing, could a woman be prosecuted for zina if found to have borne a child to a man other than her husband? What about an unmarried woman? Would DNA evidence count in place of the usually required witnesses to the sexual act? Answers to these questions must reflect the entire range of consequences to tinkering with some portion of the system. If DNA were considered proof, then one could argue that in cases where a woman is prosecuted for zina on the basis of pregnancy, any man she names should be tested as well, and prosecuted if DNA results show his paternity. If evidence of the result, rather than the act, is all that is required, then the man is just as liable to prosecution. It could be that the acceptance of DNA evidence would be of benefit, but the full range of consequences must be considered, lest the unintended effects prove far worse for women than the status quo.
The debate around this Egyptian case raises compelling issues beyond that of DNA testing. First, of course, is the complicated situation that arises from a mixed system, where classical legal models and doctrines both converge and conflict with a civil judiciary. Second is the social double-standard that ascribes far more severe consequences to females than to males for breaches of chastity norms, even when the legal strictures governing their sexual contact outside of marriage are exactly the same. Third, although the dynamics of zawaj ‘urfi are specific to Egypt, it is but one of several flourishing types of quasi-marriage through which couples seek to legitimize their sexual unions religiously while avoiding the full burden of mutual obligations – social, financial, legal, and sometimes familial – that come with fully recognized, civilly registered marriages.
Muslims who contract zawaj ‘urfi are generally seeking to engage in sex without the expenses and complications of civil marriage while avoiding the sin of commission of zina. In the Egyptian case, the costs are not related to getting married per se, but rather to the social expectations of what a groom of a certain class will be able to provide for his bride at the time of marriage, the most significant being “key money” – effectively, a substantial down payment for housing. These financial expectations are one factor leading to the delay in marriages, and thus the sense of needing interim sexual outlets. The specific circumstances are different elsewhere, but in many Muslim communities later age at marriage, due in part to the increased importance of post-secondary education, has led to new challenges for Muslims who want to adhere to accepted regulations surrounding sexual conduct while at the same time having difficulties suppressing their sexual drives for a decade or more after puberty. Modern shifts in marriage patterns, however, are not the only significant change. Equally or more important is a broad shift in sensibilities to a view of sex as an activity that is primarily about the mutual consent and individual attachment of the persons involved. This perspective is particularly prevalent among Muslims living as minorities in societies such as the United States.
In her “Islamic Bill of Rights for Women in the Bedroom”(the successor to her widely circulated, and generally well received, “Islamic Bill of Rights for Women in the Mosque”), activist, author, and self-identified single mother Asra Nomani declares, as the eighth of ten items, that “Women have an Islamic right to exemption from criminalization or punishment for consensual adult intercourse.”29 Nomani claims as an “Islamic right” something that contradicts Qur’an, sunnah, and centuries of jurisprudential consensus. Yet her statement is worth considering, rather than rejecting out of hand, as it illustrates important tendencies in contemporary Muslim discourse. Those who are not ‘ulama increasingly make authoritative claims about Islam. Where those who are not necessarily any better trained than Nomani make claims that their audience views as “traditional,” the claims tend to be accepted without the same level of scrutiny. Nomani’s strategic choice to argue on the basis of conformity to Islam is representative of much modern discussion, even if the specific claim she makes is in blatant opposition to scholarly and popular consensus.30 Finally, Nomani’s underlying assumption that the consensual nature of a sexual relationship is relevant to whether it is, or should be, subject to censure would not have been accepted by the classical jurists, but even those modern ‘ulama who would disdain Nomani’s characterization of the “Islamic” position on sex outside of marriage place more stress on consent than their predecessors (even if it is usually consent to marriage they are considering, rather than consent to sex outside its bounds). Nomani’s statement crystallizes a widespread but largely inchoate sentiment among many contemporary Muslims: consent matters.31
Nomani’s view on non-marital intercourse (note that it seems to be irrelevant, from her perspective, whether the parties involved are married to other individuals) reflects a broader social shift. Thus, commenting on an article that appeared on Muslim WakeUp, one self-identified American Muslim wrote:
Many Muslims at the mosque I attend believe that sex outside of marriage is wrong. Many Muslims don’t even date (not in the American way at least) in order to avoid premarital sex. Personally, I wouldn’t be so quick to say sex outside of marriage is wrong, for two reasons. First, other than marriage, there was one other sexual relationship that was allowed in Islamic Law, and that’s slave concubinage. Second, although I, personally, believe that one night stands and casual sex are wrong (not to mention rape), what about sex in committed relationships that aren’t marriages? Is that haram? I’m sure that slave concubinage would disgust a lot of Americans, given that slave owners were allowed to have sex with their slaves with or without their consent. But if this is allowed in Islamic Law, how could sex by mutual consent in committed relationships in which both the man and the woman love and respect each other, but are not married, be haram? That question represents my struggle. I’m not arguing that such a relationship is halal. My honest answer to that question is I don’t know whether it’s halal or haram. But I do suggest not being so quick to call it haram. Perhaps it’s a question that requires a fatwa.32
This statement from a convert reflects a combination of deference to jurisprudence combined with an assessment of how its rules (such as slave concubinage) diverge from his or her personal beliefs. The author accepts the basic validity of concepts such as haram and halal33 and seems to respect legal authority when she suggests that “a fatwa” might be required. At the same time she is unaware that there is a very clear established answer to whether “sex by mutual consent in committed relationships in which both the man and the woman love and respect each other but are not married” is absolutely unlawful. What this author does not do is suggest that, in light of new perspectives (e.g., finding slave concubinage disgusting), the question of lawful and permitted should be re-evaluated.
It is obvious that the classical model of Islamic sexual ethics no longer applies in several critical respects. Yet in order to begin to think about how a more viable and equitable ethics of sex might be developed, Muslims must grapple actively with the centrality of sex and sexuality to communal life. In the U.S. and Europe especially, but not exclusively (as the Egyptian zawaj ‘urfi case demonstrates), Muslims are facing a crisis of sexual morality. One alternative is to push for complete adherence to classical normative standards of relating to members of the opposite sex.34 Some communities and families manage to enforce a semblance of segregation, but it is unlikely to succeed on a large scale. Even in the medieval Muslim world, strict observance of gender segregation was practiced exclusively by an elite. Today, in societies such as Saudi Arabia, strict gender segregation is under siege; in the U.S. or the U.K. it exists only on the fringes of the Muslim populace. Gender segregation, of course, does not by itself prohibit all illicit sex, and gender mixing, despite some alarmist projections, does not mean that illicit sex will transpire. More than the shifting practice, it seems to me that there is a divide at the level of ideas and ideals between contemporary conventional wisdom among Muslims, especially those living in the West, and classical formulations of sexual ethics. The fear, of course, is that discarding the established legal rules for conduct will leave Muslims without any guidance. Is there a way to move past patriarchal and sexist limitations of both traditional and contemporary double-standards while acknowledging that there are, and need to be, boundaries to sexual relationships?
One obstacle to frank conversation about shifting behavioral patterns is the insistence on avoiding revealing talk, a point explored further in the next chapter’s treatment of same-sex intimacy. As one scholar notes, “Talk about illicit sex might be as socially destabilizing as its perpetration.”35 This is not a simple matter of prudery; the practice of avoiding potentially incriminating questions, and not sharing information about indiscretions, is woven into the fabric of Islamic legal thought as well as embedded in Muslim social norms. Covering up one’s own faults, or the faults of others, is understood as a vital duty for a believer.36 However, the “don’t ask, don’t tell” model provides a tremendous obstacle to transforming ethical standards: if everyone refuses to publicly discuss the fact that, with the disappearance of early marriage, many Muslims are not waiting for marriage to have sex, the problem continues. And the social double-standard (in the case of virginity, for example) means that the consequences for women are worse than those for men, even where, in legal terms, the issues are the same.
In March 2005, European scholar Tariq Ramadan alluded to this double-standard in his eloquent and persuasive (but controversial) call for a moratorium on hadd punishments for zina. But in nations where “consensual adult sex” is not punished, regardless of its compliance with religious law, there are still very important matters to be discussed.37 The Qur’anic and classical jurisprudential boundaries of what counts as licit and illicit have already been redrawn, for all practical purposes, by Muslim acceptance of the abolition of slavery and, therefore, of slave concubinage. The double-standard that was operative in the past (even if, in practice, it applied only to men wealthy enough to take more than one wife or own concubines) has largely disappeared as a matter of law, with the increase in monogamy and the disappearance of slave concubinage as a legal option. Zina can be redefined for the twenty-first century as sex between partners not married to one another. But what element of marriage legitimizes sex and differentiates it from zina? Do dower payment and a unilateral right by the husband to dissolve the union at his whim (regardless of whether or not this is the usual practice) make marriage moral? Is religious marriage, a voluntary contract without civil registration, sufficient to make sex licit, without consideration of national laws that enforce certain property relationships? Ultimately, where does lawfulness rest? These are not flippant questions, but serious attempts to think about what transforms sex into something licit. What is God’s stake in marriage?