Any type of physical relationship outside of marriage is prohibited because it harms the family system which, in turn, harms society. Also, falsely accusing someone of adultery or fornication is the worst type of slander and destroys families and harms society. For that reason, Allah has put a strict penalty of eighty lashes for false accusations of adultery or fornication. In order to prove the claim, four eyewitnesses must testify. So the punishment of one hundred lashes for fornication and the death penalty for adultery can only occur if four witnesses testify that they witnessed the act, otherwise each person who makes a claim will be whipped eighty times. Having four witnesses testify is almost impossible and has never happened in history. Therefore, the ‘punishment’ for adultery and fornication is more of a hypothetical deterrent which is virtually impossible to occur. It rather seems that the ‘punishment’ or deterrent is not actually for adultery or fornication, but rather for false accusations of such an act.
What the Qur’an and Sunnah Say
Allah says, “Do not come (even) near to adultery, for it is a shameful (deed) and an evil, opening the road to other evils.” (Qur’an, al-Israa, 32)
Allah says: “As for those who accuse chaste women of fornication, and then fail to provide four witnesses, lash them eighty times, and reject their testimony ever afterwards: they are the rebellious.” (Qur’an 24:4)
The Messenger of Allah said: “Keep the Muslims away from punishments as much as possible. If there is any way out for an offender to escape punishment, acquit him. It is better for a judge to make an error in acquittal than in conviction.” (Tirmidhi #1424)
What the Scholars Said
Imam Al-Mawsili explains: “(The punishment for fornication and adultery) is established through evidence or confession. Evidence is that four people testify against a man and woman that they committed fornication. When they testify (in court), the judge will inquire from the witnesses about the particulars and details of what took place, the place of incident, the time of incident, and the identity of the woman involved…and that they testify the observing of sexual intercourse taking place like they saw a Kohl needle entering the Kohl bottle (i.e. penetration), and the four witnesses are considered upright both privately and publicly, then the judge will give the order for the legal punishment to be enforced upon the perpetrators.” (Al-Ikhtiyar 2:312-313)
Only a legitimate authority figure in a true Islamic State may enforce this penalty. This cannot be done by individual Muslims. So don’t be fooled into thinking that a few individuals can apply these rules.
Deterrents like this are similar to speed cameras in countries where there are clear signs that people should slow their cars down since there are speed cameras in the area. The goal is not to punish the people by catching them speeding, but serves as a warning to get them to slow down. Often times the cameras are not even functioning but the signs still play an important role.
The only way that the punishment has ever occurred was through confession. However, Muslim scholars clarified that it is not necessary, or even encouraged, for a guilty person to confess if they committed the act. It is not a prerequisite for being forgiven by Allah.
Shaykh Mustafa Umar