Sexuality and Law, Homosexuality
Islamic legal discourse has historically revolved around acts rather than internal states and desires. Classical Muslim jurists have hence focused their attention specifically on male-male anal intercourse since anything short of that is considered to be merely repugnant behavior subject to taʿzīr (discretionary punishment by the judge). Such behavior falls under the same category as, for example, an unmarried man and woman engaging in sexual acts short of intercourse.
The most commonly used Arabic terms in classical Islamic jurisprudential texts in reference to male-male anal intercourse and female-female sexual “intercourse” are liwāṭ (literally, “joining”) and siḥāq (literally, “rubbing”), respectively. Classical jurists viewed liwāṭ and siḥāq as reprehensible acts. However, various jurists defined and punished each of these acts differently.
The juristic legal treatment of these two issues was, first and foremost, rooted in the Qurʾān and the ḥadīth. There are ḥadīth that specifically ordain punishments for liwāṭ. For example, “If you come across two men in the act of the people of Lot [sodomy], kill the one in the active sexual role (al-fāʿil) and the one in the passive sexual role (al-mafʿūl bihi),” found in the canonical Sunnī collections of Sijistānī, Abū Dāʿūd al- and al-Tirmidhī. However, explicit mention, definition, and punishment of these two acts are completely absent from the Qurʾānic verses pertaining to the people of Lot (e.g., 7:81, 26:165–66, 27:55, 29: 28–29). Extra-scriptural factors thus contributed to the juristic determination of punishing those who engaged in each act.
The overarching paradigm guiding the punishment of liwāṭ and siḥāq was the punishment of zinā, or illicit sex between a man and a woman (i.e., adultery or fornication). Two legal and competing positions concerning zinā are relevant to the legal rulings on liwāṭ and siḥāq. Some jurists defined zinā exclusively as the act of unlawful vaginal penetration and hence categorized and punished anal penetration as a different act. Other jurists included both vaginal and anal penetration within the definition of zinā and hence were able to extend the punishment of one act to the other.
Those who defined zinā exclusively as unlawful vaginal penetration were few, and include Abū Ḥanīfah (d. 150/767) and Ibn Ḥazm (d. 456/1064). Based on the semantic difference between zinā and liwāṭ, both concluded that a male's penetration of an anus is not zinā and no ḥadd punishment is required for it. Instead, they argued that those who engage in liwāṭ should be punished through taʿzīr. Abū Ḥanīfah added that they should also be jailed until they repent.
Conversely, the majority of jurists, including successors like Saʿīd b. al-Musayyab (d. 93 or 95/ 711 or 713) and al-Ḥasan al-Baṣrī (d. 110/728) as well as later scholars like al-Awzāʿī (d. 157/774), al-Shāfiʿī (d. 204/820), the Ḥanbalī Ibn Qudāmah (d. 620/1223), and the Mālikī Khalīl b. Isḥāq (d. 767/1365), include liwāṭ within the larger definition of zinā, and hence prescribe the ḥadd punishment for it. Some early jurists argue that the unmarried woman should be flogged and banished while the muḥṣān (free adult male/female Muslim who has consummated a valid marriage) should be stoned to death because this act is a type of zinā. Mālikī jurists, such as al-Khalīl, argue that those who engage in liwāṭ are subject to stoning. There are two forms of the ḥadd punishment among both Ḥanbalī and Shāfiʿī jurists: some argue that the punishment for liwāṭ is the same as that for zinā (i.e., stoning for a muḥṣan), while others argue that both the active partner (fāʿil) and the passive partner (mafʿūl bihi) must be killed, regardless of whether either partner is muḥṣan. These disagreements extended not only to the nature of punishment but also to its implementation. For instance, the Shāfiʿī al-Nawawī (d. 676/1277) suggests that a wall should be collapsed over those who engage in liwāṭ, while al-Shīrāzī (d. 476/1083), another Shāfiʿī jurist, recommends burning (based on the opinion of ʿAlī b. Abī ṭālib (d. 40/661).
Unlike liwāṭ, siḥāq is scarcely discussed in the juridical literature. The Qurʾān does not mention it, although some exegetes have interpreted al-fāḥisha in QURAN 4:15–16 as a reference to siḥāq, and there are a very limited number of ḥadīth (considered by ḥadīth scholars to be unreliable) that refer to the act (e.g., “The siḥāq of women is zinā amongst them”). Hence, in lieu of explicit scriptural texts, many jurists present different arguments for addressing siḥāq. Ibn Ḥazm, for example, posits that those who engage in siḥāq are transgressing God's divine command to protect one's private parts (QURAN 33:50). Since no punishment is specified for siḥāq in the Qurʾān and Ibn Ḥazm does not believe in applying ḥadd purely based on analogy (qiyās), he does not consider siḥāq an act punishable by ḥadd; instead it is punishable by taʿzīr. Most Sunnī jurists, however, offer an argument based on the absence of phallic penetration in the act of siḥāq as the basis for punishing the transgressors with taʿzīr instead of ḥadd.
Furthermore, jurists viewed sexual intercourse as possible only for an individual who possesses a phallus. Hence, the definition of sexual intercourse relies on the entry of as little as the corona of the phallus into a partner's orifice. Since women do not possess a phallus and cannot have intercourse with one another, they are physically incapable of committing zinā and cannot be punished with ḥadd. Hence, for most Sunnī jurists (like Ibn Qudāmah and Khalīl), the definition of zinā excludes siḥāq.
Instead, the punishment for two women who engage in siḥāq is taʿzīr, or disciplining. The specification of the taʿzīr punishment is flexible. The Mālikī qāḍī Abū Bakr Ibn al-ʿArabī (d. 543/1148) includes three different opinions: (1) each woman should receive fifty lashes; (2) each woman should receive one hundred lashes; or (3) the punishment should be left to the judge's discretion.
The terms liwāṭ and siḥāq were used in classical legal texts to refer to specific and well-defined acts and actors and should not be equated with the post-nineteenth-century concept of homosexuality, linked to sexual orientation, identity, forms of expression, and political and social rights. Currently sodomy is punished by death in a number of Muslim states, including Saudi Arabia and Yemen, and in Nigeria's Shariah courts. Other Muslim countries with civil law codes prosecute “homosexuality” (usually associated with sodomy) under the rubric of obscene behavior. For example, in Egypt in 2001, fifty-two men were arrested on charges of homosexuality during a raid on the Queen Boat, a floating nightclub in the Nile; twenty-two were found guilty of “habitual debauchery” and one of “contempt for religion.” The most famous sodomy prosecution in the Muslim world is the protracted political case (1998–) against the opposition leader Anwar Ibrahim in Malaysia. Ibrahim has been tried on an antisodomy law found in Malaysia's Shariah enactments, but his trial has been held in the state's common-law courts. Malaysia's sodomy laws originate in the 1860 British Penal Code imported from India.
[See also ZINā.]
- al-Bayhaqī, (d. 458/1066). Al-Sunan al-Kubrā, edited by Muḥammad ʿAbd al-Qādir ʿAtā, vol. 8, pp. 403, 406. Beirut: Dār al-Kutub al-ʿIlmīya, 1993–1994.
- Ḥaṭṭāb al-Ruʿaynī, al-. Mawāhib al-Jalīl li Sharḥ Mukhtaṣar Khalīl, edited by Zakarīyā ʿUmayrāt, vol. 8, p. 397. Beirut: Dār al-Kutub al-ʿilmīya, 1995.
- Ibn al-ʿArabī al-Maʿāfirī. Al-Masālik fī Sharḥ Muwaṭṭaʾ Mālik, edited by Muḥammad b. al-Ḥusayn al-Sulaymānī and ʿĀʾisha bint al-Ḥusayn al-Sulaymānī, vol. 7, p. 116. Beirut: Dār al-Gharb al-Islāmī, 2007.
- Ibn Ḥazm. Al-Muḥallā, edited by Aḥmad Muḥammad Shākir, vol. 11, p. 501. Cairo: Maktabat Dār al-Turāth, 1426/2005.
- Ibn Māza al-Bukhārī. Al-Muḥīt al-Burhānī fī al-Fiqh al-Nuʿmānī, edited by ʿAbd al-Karīm Sāmī al-Jundī, vol. 4, p. 443. Beirut, Lebanon: Dār al-Kutub al-ʿIlmīya, 2004.
- Ibn Qudāmā. Al-Mughnī, edited by ʿAbd Allāh b. ʿAbd al-Muḥsin al-Turkī and ʿAbd al-Fattāḥ Muḥammad al-Ḥulw, vol. 12, p. 317. Riyadh: Dār ʿĀlam al-Kutub li'l ṭibāʿa wa'l-Nashr wa'l-Tawzīʿ, 2005.
- al-Jazīrī. Kitāb al-Fiqh ʿalā al-Madhāhib al-Arbaʿa, vol. 5, p. 104. Cairo: Muʾasasat al-Mukhtār, 2001.
- al-Nawāwī. Rawḍat al-ṭālibīn wa-ʿUmdat al-Muftīyn, edited by Zuhayr al-Shāwīsh and ʿAbd al-Karīm b. Muḥmmad Rāfiʿī, vol. 10, p. 90. Beirut: Al-Maktab al-Islāmī, 1991.
- al-Nawāwī. Takmilat al-Majmūʿ Sharḥ al-Muhadhdhab li Ibn Isḥāq al-Shīrāzī, edited by ʿAbd al-Mawjūd et al., vol. 25, p. 258. Beirut: Dār al-Kutub al-ʿIlmīya, 2002.
- al-Shīrāzī. Al-Muhadhdhab fī Fiqh al-Imām al-Shāfiʿī, edited by Muḥammad al-Zuḥaylī, vol. 5, p. 384. Damascus: Dār al-Qalam; Beirut: Al-Dār al-Shāmīya, 1992–1996.
- Adang, Camilla. “Ibn Ḥazm on Homosexuality: A Case Study of Ẓāhirī Legal Methodology,” al-Qanṭara, 24, no. 1 (2003): 5–31.
- El-Rouayheb, Khaled. Before Homosexuality in the Arab-Islamic World, 1500–1800. Chicago and London, University of Chicago Press, 2005.
- Mezziane, Mohammad. “Sodomie et masculinité chez les juristes musulmans du IXe au XIe siècle.” Arabica 55 (2008): 276–306.
- Omar, Sara. “From Semantics to Normative Law: Perceptions of Liwāṭ (Sodomy) and Siḥāq (Tribadism) in Islamic Jurisprudence (8th–15th Century CE).” Islamic Law and Society 19 (2012): 2.
- Rowson, Everett. “The Categorization of Gender and Sexual Irregularity in Medieval Arabic Vice Lists,” in Body Guards: The Cultural Politics of Gender Ambiguity, edited by Julia Epstein and Kristina Straub. New York and London: Routledge, 1991, pp. 50–79.
- Schmitt, Arno. “Liwāṭ im Fiqh: Männliche Homosexualität?” Journal of Arabic and Islamic Studies 4 (2001–2002): 49–110.