Chapter: A Comprehensive Survey of the ḥudūd for Illicit Intercourse
If the person against whom the charge of fornication is established—whether by testimony or by his own confession—or the one upon whom flogging is due is ill; or if the offender is a pregnant woman, the punishment is postponed. One waits for the sick person to recover, and for the woman to deliver her child; some have even said until she has weaned it. We have explained this point in al-Tamhīd. The distilled opinion of Mālik is that, in her case, if the penalty is stoning it is deferred until she gives birth, whereas if it is flogging it is deferred until she has finished her post-partum bleeding.
Should retributive execution (qiṣāṣ) be due upon her, she is not put to death until she has delivered. If she merely claims to be pregnant, the matter is delayed until she menstruates or the pregnancy becomes apparent.
The ḥadd for slaves is fifty lashes, with no banishment.
The prescribed punishment for those who commit the act of the people of Lot is stoning, whether they have previously been married or not; both the active and the passive partner are stoned. If the passive partner is a minor boy, the ḥadd is waived for the child, while the adult partner is disciplined with a painful chastisement of no fewer than one hundred lashes. The evidentiary requirements for this offence are exactly the same as for fornication—either the requisite witnesses or an unretracted confession.
If two women are proven to have practised lesbian intimacy (siḥāq), they are given a painful beating and dispersed.
Non-Muslim citizens (ahl al-dhimma) who fall into fornication are referred to the judgement of their own religion. If, however, they choose to have our judge decide between them, he may, if he wishes, apply the ruling of Islam.
When a Christian forces himself upon a Muslim woman, he must pay her a bridal-gift commensurate with her peers. If he then embraces Islam, the matter ends; if not, he is executed for violating the covenant. Should she have consented to him, she receives the ḥadd for fornication, while he is punished with a painful chastisement, and if the judge deems him deserving of the full ḥadd he may impose it.
Any Muslim who rapes a Muslim woman must pay her a bridal-gift equal to that of her peers and suffers the ḥadd: stoning if he is previously married, flogging if he is unmarried—regardless of whether the victim is a virgin or previously married, young or old, unmarried or wed.