Then those below that rank are instead subjected to flogging. They are graded according to the nature of the lapse, both in the number of lashes and—in accordance with their rank—in the degree of humiliation or dignified restraint shown toward them. The maximum number of lashes in taʿzīr is determined by the offense.
If the offense consists of indirectly insinuating fornication, the precise nature of the act is taken into consideration. If he goes so far as to have sexual intercourse with her without vaginal penetration, he is flogged ninety-nine lashes if he is free, and forty-nine if he is a slave, so that the punishment remains below the highest of the fixed punishments. The same applies to a co-owner having intercourse with a jointly owned slave girl; to a father having intercourse with his son’s slave girl; to a man having intercourse with his own slave girl after marrying her off; and to a man having intercourse with his wife’s slave girl after she has permitted him to do so. This was explicitly stated in the narrations of Abū al-Ḥārith, Abū Ṭālib, and al-Maymūnī, concerning a man who has intercourse with a slave girl jointly owned by him and his partner: “He is flogged with all but one lash.” This is also what Saʿīd ibn al-Musayyab said.
According to a narration from Ibn Nakhtān, he said concerning a man who committed sexual immorality with another man short of penetration: “He is flogged one hundred times, for ʿAlī was brought a man who had been found with a woman under her blanket, and he flogged him one hundred times.” According to the narrations of Isḥāq ibn Ibrāhīm and Ṣāliḥ, he said: “If he has intercourse with his wife’s slave girl after she has permitted her to him, he is stoned.”
If the two are found in a single garment with no barrier between them, engaging in intimate contact but not intercourse; or if they are found without engaging in intimate contact; or if they are found in a house, naked and unclothed but not engaging in intimate contact; or if they are found gesturing to one another without speaking; or if he is found following her, without anything more having been established—then the flogging is based on the lowest of the fixed punishments. If we say that the lower of the two is eighty, as in the fixed punishment for drinking, then he is flogged ninety-nine lashes if he is free and thirty-nine if he is a slave, so that it falls short of the lowest fixed punishment.
In the narration of Ibn Manṣūr, concerning a man found with a woman under her blanket, he said that ʿAlī had said: “He is flogged one hundred times.” According to our school, however, he is not flogged in this manner; rather, he is subject to taʿzīr, and taʿzīr is fewer than ten lashes.
Likewise, in the narration of Aḥmad ibn Saʿīd ibn ʿAbd al-Khāliq, he said concerning the sodomite: “If he penetrates and engages in intercourse, stone him, whether he is muḥṣan (one who has been validly married) or not. If he is merely found on his back or with another man, he is disciplined as one is disciplined when found with a woman.”
In the narration of Abū al-Ṣaqr, he said: “If a man says, ‘O usurer, O wine-drinker, O enemy of Allah, O traitor, O wrongdoer, O liar,’ he is subject to discipline for all of this, and the discipline ranges from three to ten lashes.” Likewise, in the narration of Ṣāliḥ, he said: “I follow the report of ʿAlī: he flogged al-Najāshī twenty lashes for breaking the fast in Ramadan, after having flogged him eighty lashes.”