The Punishment of Sodomy
By: Shaheed Ayatullah Abdul Husain Dastghaib Shirazi
Since sodomy is a greater crime than adultery and its evils are worse, the punishment for sodomy is also more severe than that of adultery according to the Islamic law. Islam prescribes capital punishment for the active as well as the passive partner in the crime. If both are major and sane, both of them have to be killed. The active partner is beheaded with the sword or killed by stoning or burnt alive or thrown from a height with the hands and the legs tied. These are the ways prescribed for punishing the criminal, but it is at the discretion of the Judge to determine the method. Similarly, the method adopted for the death of the passive partner is also determined by the Qazi.
According to Amir ul-Mu’minīn ‘Ali (a.s.), a person who has committed this sin must also be burnt after being killed.
As in the case of adultery, the guilt of sodomy is also proved in one of two ways. The first is that both the participants, or one of them confesses four times before a Judge. If he confesses less than four times the legal penalty cannot be issued. He is only warned and severely rebuked so that he may never repeat it. Some Mujtahids believe that the four confessions should be on four different occasions. It is also required that the accused be major, sane, free and independent. Even if he confesses four times, a minor person can only be reprimanded for the act so that he never does it again. The same applies for the slave and the insane person. Apart from this, if someone is forced into such a crime and is unable to avoid it, there is no penalty for him.
The second method of proving the crime of sodomy is that four just witnesses see it being committed with their own eyes and testify in consonance. If the witnesses are less than four, the testimony is not accepted and the penalty for sodomy is withheld. If less than four people have seen this act, they should not testify. If they do so, they shall themselves become liable for the penalty of “qazaf”. This clause shall be elaborated later. If the guilty repents before the four witnesses testify, the penalty is not imposed and he is not killed. The confession or the testimony should be with regard to the penetration of the anus with the penis, only then the capital punishment is carried out. But if the two men cause ejaculation without penetrating the anus (by pressing the sexual organ between the thighs of another man or by rubbing with the buttocks), then the punishment is a hundred lashes for them.
Why is Sodomy Punishable with Death?
People, who have abandoned shame and decency so as to commit such a revolting and loathsome act of sexual perversion in the presence of other people, are like cancer for the society. If they are left alive, they will spread their shamelessness till it engulfs the entire society. This was the fate of the people of Lut (a.s.). First, Satan led one person to commit this indecency and later he invited others to the same evil. Finally, the crime reached such a gigantic proportion that among the people of Lut (a.s.), it was common to see a man mount upon another and perform sodomy right before the eyes of the onlookers. Women also had sexual relations among themselves. Allah (S.w.T.) cursed these people and destroyed them.
Homosexuality is such a hideous crime that if one does not repent and pray for forgiveness, he becomes like the one who has disbelieved in Allah (S.w.T.). He becomes liable for eternal punishment like the Kafirs. Hence, there is no better way than to kill this person and burn the corpse.
We have already noted in the chapter on adultery that punishment in Islam for acts of indecency are severe but tempered with Allah (S.w.T.)’s Mercy and Compassion. We have also discussed that Islam has formulated strict laws not just to punish the wrong doers but rather to act as a detriment for the negligent. Although capital punishment is prescribed for sodomy, it can only be administered after four just witnesses have testified to the sin being committed in their presence. The extreme degree of leniency in Islamic laws is apparent here. If an individual shows just enough decency as not to commit a filthy act in public and that too for fear of being put to death, Islam does not allow his fellow-beings to punish him. Further, if the sinner repents before the four witnesses have testified, he cannot be put to death. But if the testimony is complete, penalty cannot be reduced and the guilty has to be killed.
As far as confession of the crime is concerned, the same regulations hold as in the case of adultery. The guilty must confess four times. He must confess in clear unambiguous words and must not speak in an elusive way. The Judge must make sure that the person is sane. Also, that he is not joking and confessing to something he has not really done. All these stipulations and concessions are given to the guilty by the Almighty so that the sinner has an opportunity to save himself. If, finally the guilty is found deserving a death sentence, his death will be a lesson for others. The aim of Islam in designing these laws is not merely to punish the offenders but to reform society. Islam aims at creating a sound environment for us where we can get the best of the world and the hereafter.
A person who is guilty, he confesses and undergoes the penalty for it in this world, and thus he will have atoned for his sins and will not be subjected to the torture of the hereafter. Even so, it is better if he refrains from revealing his secrets and submits his case only before the Almighty. He should repent, weep and beg for forgiveness from Allah (S.w.T.). Insha’Allah, Allah (S.w.T.) will forgive him. However, a person should not be complacent after seeking forgiveness. While he is hopeful of Allah (S.w.T.)’s Mercy, he should be in dread of Allah (S.w.T.)’s retribution and must continue to implore Allah (S.w.T.) to forgive him. In this way, he will attain a degree of piety and emerge a far better human being than he ever was.
In the end we quote a tradition from Amir ul-Mu’minīn ‘Ali (a.s.): “If anybody deserves to be stoned to death twice, it is the homosexual.”
All the revealed religions are unanimous that sodomy must be dealt with strictly. Not only is the human race inflicted with spiritual degradation and physical illness and disabilities, it also runs the risk of extinction. The boy who is sexually assaulted, loses his manliness. Sodomy takes the society to the depths of depravity. It is therefore incumbent on men and women to marry and satisfy their sexual urge in a healthy manner, the way Nature has designed. This will ensure the continuity and the well-being of the human race.
Fire Did Not Burn the Repentant!
There is a tradition from Imam Ja’far as-Sadiq (a.s.) in the book al-Kāfi (Section on Penal Code), that: One day ‘Ali (a.s.) was sitting with his companions when a man approached and said “O Chief of the Believers, I have committed sodomy with a boy, please purify me (impose legal penalty upon me) ‘Ali (a.s.) told him, “Go home, you may have had some misunderstanding.”
The next day the man returned and repeated his confession and requested for penalty. ‘Ali (a.s.) said, “Go home, you may not be in your sense right now.”
He went away only to return the third time and repeat his confession and again asked for punishment.
At last when he came for the fourth time, ‘Ali (a.s.) said, “The Holy Prophet (S) has prescribed Three methods of dealing with the situation, you may choose any one of the three deaths - by having the arms and feet tied and thrown from the cliff, being beheaded or being burnt alive.”
He said, “O, ‘Ali (a.s.) which is the worst of these methods?” Imam replied, “Burning alive.” “Then I choose this death.” said the man. By permission of ‘Ali (a.s.), he stood and prayed two rakāt prayer and then said, “O Allah ! A sin was committed by me of which You are well aware. Then I had the fear of this sin, I came to the Successor of your Prophet and requested him to purify me. He gave me a choice of three deaths. I chose the most dreadful death. I pray to you to consider this penalty as the expiation of my sin and do not burn me in the fire of Hell which is ignited by you.”
Then he got up weeping and jumped into the pit into which the fire had been lit. He sat in the fire and the fire engulfed him from all the sides. ‘Ali (a.s.) began to weep, upon seeing this condition and the other companions were also in tears.
‘Ali (a.s.) said, “Arise, the one who has caused the angels of the earth and the sky to weep. Allah has certainly accepted your repentance. Get up but never approach the sin that you have committed.”
It so happened that the man came out of the fire unscathed. The fire could not burn the one who repented.
It is commonly agreed by the Mujtahids that if a person confesses four times but repents before the execution of sentence, the Judge has the authority either to impose penalty or cancel it. The above report also indicates that the Imam (a.s.) did not pursue the sentence. However, the sentence cannot be cancelled after the testimony of four just witnesses.
The Mother, Sister and Daughter of the Sodomist
It must be known that if a man commits sodomy with a boy (that he penetrates his anus), the mother, sister and daughter of the boy becomes Harām for this man forever. That is, this man could never lawfully marry the mother, sister or daughter of this boy.