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Public Homosexual Activities

May 27, 2020

  1. Public homosexual activities ( al-fahsha)
  2. Female homosexuality in public: If any of your women are guilty of lewdness ( al-fahisha), take the evidence of four (reliable) witnesses from amongst you against them. And if they testify confine them to houses until death do claim them, or God ordain for them some (other) way. (Nisa”:15)

The upper limit for punishing homosexual activities between two women in public is their confinement to the house. Their crime is not the homosexual activity as such but the illicit performance of a sexual intercourse in public. The Book is silent about homosexual relationships in people’s private sphere. However, homosexual intercourse in public will be prosecuted, for which the verse demands four (reliable) witnesses ‘from amongst you’ (masculine plural), that is from the general passer-by. No penalty can be inflicted if a witness is from their own kind: the text clearly says minkum, not minhunna (from among the homosexual women).

This implies that, for example, a public ‘coming out’ of a woman who confesses to be lesbian would not count as proper testimony. In any case, since homosexual feelings and desires are not sinful but the public act of intercourse is, lesbian women can enter into a romantic relationship as long as they avoid sexual acts in public. Even if they are caught in public, the verse mentions an alternative punishment to confinement to the house: ‘or God ordain for them some (other) way’. It should be considered that Allah calls here for a much lighter form of punishment. Who are we to think that we can afford to ignore a hint from God for more lenience in such serious matters!

  1. Male homosexuality in public: If two men among you are guilty [of it], punish them both. If they repent and amend leave them alone; for God is oft-returning, most merciful. (Nisa”:16). In the case of homosexual intercourse between two males in public, punishment can be immediately inflicted without the need to call for witnesses. And yet, we should not forget that we can forgive the sinner because God has suggested this possibility in the very same verse.

If, however, the path of forgiveness is blocked (because homosexual activities continue publicly) we should not hesitate to inflict punishments that cause pain. Strictly speaking, all kinds of pain, short of death, are allowed because this constitutes the upper limit of punishment for male homosexual intercourse in public. Homosexual relationships in private are of no concern for Muslim legislators as long as they are based on consensual activities that avoid bestiality, debauchery, and orgy like excesses.

  1. Conjoined upper and lower limits

This third type, conjoined upper and lower limits, is exemplified in the law of inheritance. The main aim will be to demonstrate that Islamic inheritance law does not just prescribe one formula for distributing the inheritance but consists of several different options that depend on the number, sex, and the nature of the relationship between those who survive the deceased, for example, whether one has to consider the existence of parents, grandparents, and grandchildren or not.

It will also be shown that the inheritance law which has been traditionally applied has had enormous repercussions on the manner in which the political system has functioned, basically since the seventh century. A reform of these inheritance procedures will therefore have a direct impact on the way state and government operate in the Arab- Muslim world.

  1. Meeting of upper and lower limits at one point

– Unchasteness (zina):

The woman and the man guilty of adultery or fornication: flog each of them with a hundred stripes; let not compassion move you in their case, in a matter prescribed by God, if you believe in God and the Last Day: and let a party of the believers witness their punishment. (Nur:2) Let no man guilty of adultery or fornication marry but a woman similarly, guilty, or an unbeliever: nor let any but such a man or an unbeliever marry such a woman: to the believers such a thing is forbidden. (Nur:3)

This fourth type refers to injunctions whose punitive measures are unambiguous. They exhibit absolute norms of how to punish for a crime. In the case of zina (illicit sexual relations in either fornication or adultery), for example, to ‘flog each of them with a hundred stripes’ is a fixed penalty that combines both upper and lower limits. It should neither be less nor more than one hundred stripes, and no compassion shall ‘move you in their case’.

. Allah does not, however, impose such extreme penalties unconditionally. We hear in verses 4 to 10 of Surat al-Nur that no less than four witnesses are required to support the allegation of adultery. We also hear that ‘the curse of God’ will be evoked if these allegations turn out to be unfounded: And those who launch a charge against chaste women, and produce not four witnesses (to support  their allegations), flog them with eighty stripes and reject their evidence ever after; for such men are wicked transgressors. Unless they repent thereafter and mend (their conduct); for God is oft-forgiving, most merciful.

And for those who launch a charge against their spouses, and have (in support) no evidence but their own, their solitary evidence (can be received) if they bear witness four times (with an oath) by God that they are solemnly telling the truth. And the fifth (oath) (should be) that they solemnly invoke the curse of God on themselves if they tell a lie. But it would avert the punishment from the wife, if she bears witness four times (with an oath) by God that (her husband) is telling a lie.

And the fifth (oath) should be that she solemnly invokes the wrath of God on herself if (her accuser) is telling the truth. If it were not for God’s grace and mercy on you, and that God is oft-returning, full of wisdom—( you would be ruined indeed). (Nur 24:4–10) It is remarkable to read how strictly Allah regulates the witnessing of unchaste activities. In requiring four truthful witnesses or a sacred oath from either husband or wife, Allah’s sense of justice is supreme: If God had not made it very hard to accuse someone of adultery, we would see hundreds of baseless accusations on a daily basis, Wild insinuations made purely out of menace, jealousy, envy, or feelings of frustration and disappointment by being rejected by the accused.

Without Allah’s binding conditions for any accusation of adultery, men and women would simply be too frightened to be seen together, girls and boys would be too scared to talk and sit with the opposite sex, and the possibility of platonic friendship between men and women would be too risky to even contemplate. In His justice, Allah not only imposed a very harsh penalty, leaving no room for either mitigation or mercy, He also provided a system of ‘double-checks’ that aims at counterbalancing the harshness of the imposed penalties and at preventing abuse by overzealous bigots.

  1. Lower and upper limits remain untouched by curvature

The fifth type contains the movement of curvature between the lower and upper limits by which neither of the two are touched. This movement of curvature is, for example, present in sexual relations between men and women. Beginning with a point above the lower limit, where men and women do not yet have any physical contact, the curvature moves upward in the direction of the upper limit and stops close to committing zina (adultery).

The lower limit (no relationship) and the upper limit (zina) remain untouched by this relationship. If, however, a couple is legally married, it is permitted to cross the upper limit since their (licit) sexual intercourse will not count as zina (here: adultery). Thus, type four will not apply here. In this case, to step over the upper limit is justified, similar to the case of (pardonable) killing in self-defense or manslaughter through culpable negligence.

Types 4 and 5 are therefore interrelated because if, for example, a nonmarried couple is sexually active, their curvature illegitimately touches the upper limit, that is, zina (here: fornication), while the sexual intercourse of a married couple does not count as zina but as a legitimate touching of the upper limit as in type five.