Friday, 22 May 2015

The Islamic Punishment For Sodomy, Bestiality And Child Abuse

Some of the opponents of Tashayyu have attacked the followers of Ahlulbayt (a.s) with the argument that their scholars allow, endorse and even promotes bestiality. Originally we simply intended to expose this fallacy but instead decided to use their own argument against them.

In this article we present some more problematic ethics that are found in both the traditions and in the interpretations of their renowned scholars. On the most part, we will focus on the issue of unnatural sexual activity, in particular the question on homosexuality and on bestiality.

We begin by examining a particular narration with the commentary regarding it. The particular tradition that we will be quoting here is from Saheeh Muslim. The scholarly interpretation that will be provide comes from Al-Nawawi. For those who are not aware his qualifications as a scholar and commentator of Saheeh Muslim is second only to Ibn Hajar's commentary of Saheeh Al-Bukhari.

Al-Nawawi:

Aboo Huraira reported: The Apostle of Allah (saw) said: If one sits between a woman’s fours and then fatigues her, bathing becomes obligatory for him. In the hadeeth of Matar the words are: Even if there is no orgasm. Zuhair has narrated it with a minor alteration of words.

The saying of the prophet (saw) ‘If one sits between a woman’s fours and then fatigues her’

In another narration the word ‘Ashu’biha’ is used. The scholars have disagreed about the intended meaning of ‘shu’biha Al-arba’ (the fours) for some said that it means the arms and the legs, while others have said that it refers to the legs and thighs, and other said it means the legs and the edge of the pubic area. Al-Qazi Ayad chose the meaning of the four areas surrounding the vagina. The word (Shu’b) means areas, its singular form being (Shu’bah). As for those who say (Ashba’iha) that is the plural of the word (Shu’b).

The word Aj-hada-ha (fatigue her) means to plow her, which was also stated by Al-Khatabi. Others have said it means to make her reach exhaustion as in the phrase ‘she made him toil and labor till he was exhausted’. Al-Qadi Ayad said ‘Primarily, the word (Jahada’ha) means that the man exerted his effort working in a woman, where the word (Juh’d) means energy and refers to motion by describing the type of work. This is similar to his (the prophet) saying ‘he who plowed her’ meaning he who penetrated her by his motion. Otherwise, what other fatigue could a man experience because of her, and Allah knows best.

The meaning of the hadeeth is that the necessity to wash is not limited to when semen is ejaculated, rater it is when the penile head (Hash-fa, lit. "the head of the male member," i.e. head of the penis) penetrates the vagina, then it is necessary for the man and the woman to wash. There is no disagreement on this today, even though there was disagreement on this by some of the early companions and others later. However, an agreement was later reached and this is what we have shown and presented previously.

Our companions have said that if the penile head has penetrated A WOMAN’S ANUS, or A MAN’S ANUS, or AN ANIMAL’S VAGINA or ITS ANUS then it is necessary to wash whether the one being penetrated is alive OR DEAD, YOUNG OR OLD, whether it was done intentionally or absentmindedly, whether it was done willfully or forcefully. This also applies if the woman places the male member inside her while the man is asleep, whether the penis is erect or not, whether the penis is circumcised or uncircumcised. 

All these situations require that the person committing the act and the one the act is committed on must wash themselves, unless the person committing the act or the person the act is committed on is a young male or female. In that case it cannot be said that the person must wash, for they do not have the responsibility, rather it is said that this person is in a state of impurity. 

If that person can discern (the sexual act) then his guardian can command him to wash just as he commands him to perform the ablution washing for prayers. For if he prays without washing, his prayer has not been performed correctly; likewise if he doesn’t wash after he reaches puberty he must be forced to wash. If he washed as a youth and then reaches puberty, then he does not have to repeat the washing.

Our companions have said that intercourse occurs when a healthy male’s penile head completely penetrates (an orifice), as has been unanimously agreed. Thus, when the penile head has completely disappeared (inside the orifice), then all the regulations concerning washing apply. It is unanimously agreed that it is not necessary that the entire penile shaft penetrate to apply the regulations of washing. If part of the penile head penetrates, then the regulations of washing are not imposed as is agreed, except by an odd few of our companions who said that even in this case all the regulations of washing apply. However, this opinion is wrong, rejected and abandoned.

If the male member was severed and what remained was less than the length of the penile head, then none of the washing regulations apply. If the part remaining was equal in length to the penile head length then that part must completely penetrate for the regulation of washing to apply. If the part remaining was greater in length to the penile head length then there are two famous opinions for our companions. The most correct is that if the portion that penetrates is equal to the length of the penile head, then the regulations for washing apply. The other opinion is that none of the regulations for washing apply until the entire remaining length of the penile shaft completely penetrates and Allah knows best.

If a man wraps a sheath around his male member and then ejaculates inside a woman’s vagina, then there are three opinions from our companions. The most famous is that the man must wash. The second is that he does not have to wash because he ejaculated inside the sheath. The third is that if the sheath is thick and prevents climax and wetness (in the vagina) then washing is not necessary, otherwise it is necessary and Allah knows best.

If a woman inserts (in her vagina) AN ANIMAL’S PENIS she must wash, and if she inserts A DETACHED PENIS (thakaran maktu-an, lit. "a severed male member"; a marital aid perhaps!?) there are two opinions; the most correct is that she must wash.

Source: Saheeh Muslim Sharh Al-Nawawi. Vol. 5, Pg. # 53 - 56.



Now in order to help our readers better appreciate what has been said we would like to break down the material and highlight certain points.

The hadeeth states Prophet Muhammad (saw) made bathing necessary for the person sitting between a woman’s fours. The expression "a woman’s fours" required an explanation, which Al-Nawawi sought to provide.

In light of the preceding, we have some questions for the so called Ahl Sunnah, and readers in general, to ponder on. Al-Nawawi stated that a person was required to wash in case the penile head made penetration with someone who was young;

"Our companions have said that if the penile head has penetrated a woman’s anus, or a man’s anus, or an animal’s vagina or its anus then it is necessary to wash whether the one being penetrated is alive or dead, YOUNG or old"

The question is, YOUNG means exactly what in the above? And washing is the only advice he gives in that case? What about punishment for the person who abuses children? Just wash yourself and you are acceptable before Allah (swt) again? He continues to say;

… "unless the person committing the act or the person the act is committed on is a young male or female. In that case it cannot be said that the person must wash, for they do not have the responsibility, rather it is said that this person is in a state of impurity. If that person can discern (the sexual act) then his guardian can command him to wash just as he commands him to perform the ablution washing for prayers. For if he prays without washing, his prayer has not been performed correctly; likewise if he doesn’t wash after he reaches puberty he must be forced to wash. If he washed as a youth and then reaches puberty, then he does not have to repeat the washing."

These are rules for what young boys or girls – before they have reached puberty! – have to do after they have been penetrated. It does not prohibit the sexual act with prepubescent children, it only regulates what they have to do in regard to washing. Even worse, the formulation "If that person can discern (the sexual act)" creates two cases, only one of which is then discussed explicitly, but by implication the other one is clear too, i.e. that in the case of a child who is not yet able to discern (the sexual act), it is not necessary that he/she has to wash. Again, such abominable abuse is not forbidden nor is a punishment specified, but it simply prescribes certain washings for such a case, or implies that they are not necessary for the very young.

Again, pay careful attention to this paragraph;

"Our companions have said that if the penile head has penetrated a woman’s anus, or a man’s anus, or an animal’s vagina or its anus then it is necessary to wash whether the one being penetrated is alive or dead, young or old, whether it was done intentionally or absentmindedly, whether it was done willfully or forcefully."

What does this mean? Willfully refers to the case that the act was committed by consent / agreement of the other person – woman or man or animal, dead or alive, or young boy or young girl. Forcefully refers to the case that the act was done to any of the above against their will. In plain words: If you raped a child, you need to wash and you have to command the victim to wash as well, as if the issue at hand is washing and not the disgusting crime itself.

Attesting The Book Al-Hidayah

Haji Khalifah:

It has been narrated that the author of Al-Hidayah wrote the book within thirteen years and he used to fast all that time and did not used to do Iftar at all and he used to try to hide his fasting so that no one finds out about it, due to the blessing of his asceticism and piety, his book was accepted greatly by scholars and that is about which it is said: "Hidayah is like Qur'aan that has abrogated  other books written before it in religion. So keep its laws and follow its guidance it will protect your statements from inclining towards falsehood and lie".

Source: Kashf Al-Dhunoon. Vol. 2, Pg. #  2032.


Al-Marghinani:

Whoever does intercourse with an animal, there is no punishment for him.

Source: Al-Hidaya Sharh Bidayatul Mubtadi. Vol. 4, Pg. # 105.



Al-Marghinani:

If a person fornicates with a woman in the disliked position (i.e in the anus) or does the action of the people of Lot (i.e. with another man), there is no punishment for him according to Aboo Hanifa.

Source: Al-Hidayah Sharh Bidayatul Mubtadi. Vol. 4, Pg. # 104.


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