have his prescribed punishment vary except according to his own circumstances, not those of the woman with whom he commits unlawful intercourse.

Section

The unlawful intercourse that, by consensus, entails the prescribed punishment for a sane adult Muslim is intercourse with a living human female with whom intercourse is physically possible, over whom he has no semblance of ownership, and who is not a woman of an enemy people in enemy territory. He must act voluntarily, without coercion, and know that the act is forbidden.

We specify a human female because intercourse with an animal does not entail a prescribed punishment, except according to a statement in Ibn Shaʿbān’s book that it does. This is an implausible position. We exclude a woman of an enemy people in enemy territory because Ashhab says that a man who commits unlawful intercourse with such a woman in enemy territory is not subject to the prescribed punishment.

We stipulate that he have no semblance of ownership over her because a man who has intercourse with his child’s female slave, or with a female slave whom he owns jointly with someone else, is not subject to the prescribed punishment. We specify that she be alive because Ibn Shaʿbān says that a man who has intercourse with a dead woman is not subject to the prescribed punishment. This is also the position of Muhammad ibn ʿAbd al-Hakam, as reported by Ibn Hārith. We stipulate that intercourse with her be physically possible because it is reported from Mālik that a man who has intercourse with a girl too young for intercourse is not subject to the prescribed punishment.

We stipulate that he act voluntarily, without coercion, because there is disagreement over whether someone compelled to commit unlawful intercourse is subject to the prescribed punishment. One view is that he is not, because coercion removes culpability before Allah Most High from the person coerced. If the woman herself compels him to have unlawful intercourse with her, he bears no culpability for the act at all. If someone else compels him to have unlawful intercourse with her, he incurs no sin except for the wrong done to her, and he must receive disciplinary punishment on that account, just as the person who compelled him must.

Another view is that he is subject to the prescribed punishment because he can attain an erection and have intercourse only by his own choice and will. This is incorrect: he did not choose the act willingly and with approval. Rather, he chose it as an alternative to being killed, compelled to do so while abhorring it and not consenting to it.

We stipulate that he know the act is forbidden because Asbagh, one of our scholars, considers ignorance of the prohibition of unlawful intercourse a ground of doubt that averts the prescribed punishment. This has also been reported from ʿUmar ibn al-Khattāb and a number of the early generations. It is the correct position when the ignorance is genuine. Success comes only through Allah.

Section

The prescribed punishment for unlawful intercourse may be imposed only on the basis of a confession, an evident pregnancy, or four upright witnesses who testify to having witnessed the act itself, like a kohl applicator entering its container.