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ISLAMIC MEDICAL EDUCATION RESOURCES 04

0011-CRIMES, (AHKAAM AL JINAYAAT)

Lecture for 3rd year Medical Students on 11th November 2000 by Professor Omar Hasan Kasule, Sr.

A. CRIMES AGAINST RELIGION

APOSTASY, riddat

Apostasy arises when persons who are outwardly Muslim are unbelievers in their hearts, istibtaan al kufr (p. 724 35:61) renounce Islam. In some situations a person may become an unbeliever after having been a believer, al kufr ba’ada al iman (p. 1234 9:74). Apostates, murtadd, are sane Muslim adults who voluntarily leave Islam. They are advised and are asked to repent. If they refuse to return to the fold of Islam after all these attempts, they are convicted of apostasy. Where Islam is both a state and a religion, the act of apostasy is akin to treason against the state. Becoming a Muslim confers rights and imposes social and community obligations. A Muslim citizen is trusted by virtue of being a Muslim and is privy to the strategies of Muslims. Abandoning Islam and joining another creed poses a security risk for the Muslim state.  The death penalty is prescribed on conviction for apostasy (BG 1031, BG 1032).  The penalty is implemented only by the imaam after due processes of the Law. It is a crime for an ordinary citizen to attack or kill an apostate and disciplinary punishment, ta aziir, is imposed in such cases. The analogy in secular European laws is the death penalty given to citizens who have access to security information and work or owe allegiance to another state.

 

There were hypocrites, munafiqiin, in Madina who outwardly professed Islam, al tadhaahur bi al imaan (p124 2:14) but secretly owed allegiance to other religions. Some of their treasonous activities were public like the building of masjid dhiraar (7:107-110). The prophet knew who these people were but did not disclose their names except to one companion Hudhaifat. He did not take any action against them presumably because they did not at that stage constitute a security threat to the state. On the other hand the kind and soft Abubakr had to wage war against the apostates and compel them to return to Islam because the existence, security, and continuation of the Muslim state in Madina was at stake.

 

Discussion of apostasy and its punishment is a current topic of interest because there are many instances of apostasy that do not pose a security threat to the Muslim community. The security threat also does not arise in countries where Islam is not both state and religion. There is no compulsion for anyone to become a Muslim. Freedom of choice of religion is guaranteed for all people. Thus a person who converts to Islam and subsequently decides to apostate is exercising the freedom of choice. The act of apostasy poses a problem only when there is a threat to the security of the Muslim community.

 

BREAKING VOWS and OATHS, nudhuur & aymaan

Vows, nudhuur: A vow is made to affirm that a certain action will be taken. It is a more serious level of a promise or undertaking. The prophet forbade vows because they are associated with bad consequences (BG 1180). Humans should be aware of their limitations and should not make promises or undertakings lightly. The expiation of a vow is the same as that of the oath: feeding or clothing 10 indigents, masakiin, or fasting three days. Sometimes the person making a vow includes its expiation in the vow. In that case the expiation is what was specific (BG 1181). A vow that involves disobedience of Allah, breaking a relationship or doing something over which a human has no control need not be fulfilled (BG 1181, BG 1184). A vow to undertake an act of ibadat can be expiated if the act cannot be carried out (BG 1182). A vow by a deceased can be fulfilled after death on their behalf (BG 1183). Vows before Islam are recognized as valid and have to be fulfilled (BG 1187).

 

Oaths, aymaan: An oath is taken to affirm that the oath-taker is speaking the truth. Making a false oath is a major sin (BG 1176). Oaths are made in the name of Allah only (BG 1171). It is forbidden to swear by anything else such as parents. The oath is interpreted according to the intention of the oath maker (BG 1170). Using the formula 'inshallah' nullifies accountability in an oath (BG 1174). It is prohibited to stick to an oath after finding out the truth. It is better to break the oath and make atonement (BG 1173). The atonement is feeding or clothing 10 indigents, masaakiin, or fasting three days. There is no atonement for unintended oaths (BG 1177).

 

ABANDONING OBLIGATORY IBADAT, tark al ibaadaat

It is crime to be neglectful or lazy about the obligatory duties of salat, zakat, saum, and jihad. The situation can be corrected by advice and admonition. Disciplinary punishment, ta aziir, may be necessary in recalcitrant cases. Neglect or abandon of these duties arising out of a belief that they are not obligatory is considered a rejection of Islam. Deliberate, persistent and consistent refusal to perform these obligatory acts of ibadat is apostasy, riddat. Measures described for apostasy, riddat, will then have to be used. Rejection of salat is kufr (p 713 5:58, 30:31, 96:9-18). Refusal to pay zakat is also kufr (p. 533 9:5, 9:7-11, 41:6-7). The establishment of salat and payment of zakat are the foundations of the community and their abandoning indicates abandoning the Muslim community and the protection that is due to members of that community (MB 14).

 

SORCERY and SUPERSTITION, sihr & sha'awadhat

Sorcery, sihr, is a major sin (2:103, 113:4) with severe penalties. Superstition involves pretending to know the unseen. Nobody except Allah knows the unseen (27:65, 7:188, 34:14). Superstitious beliefs can take the following forms: astrology, tanjiim; foretelling, kahanat, and divination, tatayyur. Astrology is not an empirical science and is deception. Believing in foretellers is kufr. Divination with arrows is forbidden (5:4). Believing and acting on omens is forbidden (27:47, 7:31, 36:18, 36:19).

 

SEEKING PROTECTION FROM OTHER THAN ALLAH

Charms and amulets are forbidden. These articles are worn in the false belief that they can protect the wearer from disease and other hazards. Seeking such protection from other than Allah is a form of association Allah with other things, shirk, and is severely prohibited.

 

CHAUVINISM, asabiyyat

Asabiyyat is a special feeling of attachment to the group that a person belongs to. The group may be a family, a clan, a tribe, an ethnic group, a nation, or a profession. In its mild form asabiyyat plays a positive role in strengthening intra-group loyalties and mutual assistance and cooperation. Asabiyyat becomes a crime when it is used as a basis for discriminating, persecuting, or committing other acts of transgression against people who are outside the group. Discrimination on the basis of race, colour, ethnicity, gender and other natural attributes is a transgression, dhulm, and a major sin because it is a denial of Allah's creation of all humans as equal although they may be different. Asabiyyat is condemned severely (4:135, 5:9, 58:22, 7:23).

 

B. CRIMES AGAINST LIFE:

HOMICIDE, qatl

Purely intentional homicide, qatl 'amd: Purely intentional homicide is pre-planned and pre-meditated murder. The perpetrator of the crime sets out with a clear intention to kill a particular individual. The crime of homicide is committed whether the killer was provoked or not. It also does not matter whether he had a motive behind the killing or did not have. Purely intentional homicide is of two types: judicial and criminal. Judicial execution is carried out by the imaam and is allowed in three situations only, la yahillu dam muslim illa min thallathi (KS 281, BG 993, BG 994): death penalty by stoning, rajm, for a convicted adulterer who had previous sexual experience; death penalty for a convicted killer as retaliation, qisaas, and the death penalty for an apostate, murtadd. The penalty of intentional homicide is death. This retaliation, qisaas, is a deterrent punishment needed to preserve life of the community.  Retaliation, qisaas, is obligatory, al nafs bi al nafs (KS 188, KS 448). The law of retaliation applies even if the victim is a servant (BG 996). The family of the deceased has the right of retaliation (KS 447). They can choose to give up this right by forgiving (KS 448) with or without taking the diyat. There is no distinction in the right of retaliation on the basis of age, class, or gender. A man is killed for killing a woman (BG 1009) and a woman is killed for killing a man. Several persons can be executed for killing one person. The penalty of death is executed upon conviction by the imaam. The family of the deceased or any other member of the community is not allowed to execute the punishment. If a person other than the imaam kills a convicted killer he or she is not killed but is given a disciplinary punishment. The following categories of persons are exempted from the death penalty if convicted of homicide but they could at the discretion of the imaam receive disciplinary punishments, ta aziir: children below the age of majority, the insane, and the parents, father or mother (BG 997). The punishment of a pregnant woman is delayed until after delivery and suckling of the baby. The death penalty is not imposed on the person or persons who assisted the killer in committing the crime but they are given disciplinary punishment, ta aziir, such as imprisonment (BG 1005). If the family of the victim drops its right to retaliation, diyat can be paid. Diyat is 100 camels (BG 1009). In addition to the diyat, expiation of the crime is carried out by fasting 2 consecutive months.

 

Purely accidental homicide, qatl khata: Purely accidental homicide is defined as death ensuing due to an honest mistake (KS 188). It can occur in two ways. The act that resulted into death may be intended but not for the victim for example throwing a stone and it accidentally kills a person. The victim may be intended but the act was not intended to kill for example in accidental iatrogenic death during medical treatment. Diyat is imposed for purely accidental homicide (BG 1004). When the victim was a patient who died because of mistakes of an ignorant physician diyat is due (BG 1014). Expiation is carried out by fasting 2 consecutive months in addition to the diyat

 

Accidental homicide with prior malicious intention: Accidental homicide with prior malicious intent occurs when the killer had the intention of causing non-lethal hurt to the victim but the victim dies. This occurs when a person is hit with a light weapon in a non-vital part of the body and death ensues. The penalty for accidental homicide with prior malicious intent in diyat. Expiation is carried out by fasting 2 consecutive months in addition to the diyat

 

GENOCIDE

Genocide is deliberate killing of a specific group of people on the basis of race, ethnicity, religion, and political beliefs. It is a severe form of qatl ‘amd. All involved including the chain of command and the decision-makers are guilty and are punishable under the Law.

 

FETICIDE

A fetus is a living human whose death due to deliberate human action leads to a legal penalty. Feticide may result from actions that were not intended to cause death. Diyat is paid when the fetus is killed as a result of a fight with a pregnant woman (MB 1979). Death of the fetus due to negligent medical procedures may be grounds for a penalty of diyat against the physician concerned. Feticide may result from deliberate action such as taking measures to cause abortion of a living fetus. In such cases the laws of homicide will apply because a fetus has full legal personality, dhimmat, protected by the Law.

 

SUICIDE

Suicide is condemned (4:29, MB 1982). Life does not belong to the human but to Allah. It is Allah alone who gives and takes away life. A human who attempts suicide is committing a major crime of trying to arrogate to himself or herself power and privileges that are in the preserve of Allah alone. The imaam may impose a disciplinary punishment for a person who attempts suicide and fails.

 

BODY INJURY

Injuries to the body can be produced in many ways: mechanical, electrical, chemical, and mental or psychological. Like homicide, body injury can be classified as purely intentional, purely accidental, and accidental with prior malicious intent. Diyat is imposed in cases of accidental body injury. Retaliation is ordained in cases of purely intentional body injury. The same injury should be inflicted on the perpetrator (BG 999, BG 1003, BG 448). It is preferred to wait for injuries to heal to assess the full extent of the injury so that appropriate retaliation can be done (BG 1001). In many cases retaliation is not possible because more than the original injury will be produced. For example retaliation for a penetrating abdominal injury may produce more internal damage even death. In such cases diyat is imposed. Diyat is also imposed when the victim chooses not to retaliate. For some injuries, a diyat equivalent to that of homicide is set. For others less than the full diyat is set. Full diyat is paid for cutting off or destruction of the following organs: the nose, the eye, the tongue, the lips, the penis, the testicles (BG 1009). The diyat for cutting off one foot is half the full diyat (BG 1009). Ijtihad is made for injuries to other organs. The computation of the diyat involved is complicated and requires new ijtihad. The classical Law manuals various amounts of diyat in terms of camels or other objects for different types of injury. Not all possible injuries were covered. Modern medical knowledge enables us to describe injuries in a more precise way. We are also better able to describe and assess functional disability resulting from the injuries. A study is also needed to clarify the distinction between punitive and compensatory awards for body injuries.

 

C. SEXUAL CRIMES

ADULTERY, zina

Prevention: The Law prescribes several measures to prevent adultery: prohibition of seclusion of a man with a marriageable female, khalwat; prohibition of looking with desire, al nadhar bi shahwat; prohibition of looking at nakedness of another person, awrat; and prohibition of display of beauty and ornamentation, tabarruj. The primary objective of the Law of adultery is to protect public morals from the commitment of illegal sexual activity in public where everybody including children can see the crime. Its strict conditions on evidence needed for conviction make it impossible to convict mutually consenting adults engaging in discreet illegal sexual activity. Islam relies on the family, the community, and tarbiyat to prevent such situations. The Law of adultery remains a final deterrent in situations in which immorality becomes so widespread that it is done openly in the public.

 

Conviction: Only sane, aqil, adults who commit adultery voluntarily are convicted. There is no conviction without 4 adults, sane, Muslim, and reliable witnesses who can describe exactly the penetration of the penis into the vagina (KS 190). Anatomical considerations alone make it difficult for the witnesses to be able to testify in a court of law in clear and unambiguous terms that they saw the penis enter the vagina. This could happen only if the 2 persons engaging in illegal intercourse did not mind or actually wanted others to observe their act. A woman who is coerced into illegal sexual acts is not convicted (KS 190).

 

Punishment: The Law has described the penalty for fornication (KS 190): The convicted are executed if they had prior sexual intercourse (BG 1034, BG 1035, BG 1036, BG 1038, BG 1042, BG 1045). The penalty for those with no previous sexual experience is a hundred strokes of the cane and with 1 year of exile (BG 1034, BG 1035, BG 1036, BG 1038, BG 1042, BG 1045). Punishment of the sick is delayed (KS 190) until recovery. A smaller whip is used for the weak to avoid killing them (BG 1043). Pregnant women are punished only after delivery (BG 1041). The imaam may have to pay the diyat for those who die under punishment. Additional sanctions are imposed in the form of not accepting evidence from an adulterer or allowing him or to marry except fellow adulterers.

 

UN-NATURAL SEXUAL ACTS

Sodomy: The conditions of conviction for sodomy are the same as those of fornication. The penalty for sodomy, hadd al luuti, is death for both partners no distinction being made between the active and the passive partner. (KS 191, BG 1044)

 

Sex with animals: The penalty for conviction of sexual activity with animals, hadd man yaqau ala bahiimat is death (KS 191, BG 1044)

 

Masturbation: Masturbation is offensive and must be avoided. Some jurists permit it in situations of sexual excitement with no means of marriage and fornication is feared (Qaradawi). It is however better to fast in such circumstances.

 

FALSE ACCUSATION OF ADULTERY, qadhf

The Law against false accusation of adultery is for the purposes of protecting the honor of the spouse. In view of the severe disruptive effects of such accusations on the family institution, the Law prescribes very severe penalties (p. 1093 24:4-5, 24:23-25). Conviction is upheld if the person accused of adultery is chaste. There is no conviction if persons accused of adultery are known to be of loose morals without social respectability, muru at.  The conviction is quashed if the accuser cannot produce 4 adult, sane, Muslim, and reliable witnesses who can testify that they witnessed the act of adultery. There is no conviction if the accusation of adultery is generic being directed at a group of persons like drivers, farmers, or hotel workers. Conviction is when a specific person is accused of adultery falsely. The person who makes false accusation of adultery can escape punishment in two ways: (a) if the victim forgives (b) by the process of mutual recrimination, li'aan, in which the accusing spouse swears 4 times that he or she is telling the truth and the accused spouse also swears that he or she is telling the truth. The penalty on conviction for making a false accusation of fornication, hadd al qadhf , is 80 lashes. (KS 191, BG 1049).

 

RAPE

Rape is a severe crime that involves violence and violation of honor and modesty.

 

OTHER SEXUAL CRIMES

Pornography and sexual exhibitionism are a prelude to and an encouragement of more serious sexual crimes. It is prohibited under the rule of the Law that states that whatever leads to the prohibited is itself prohibited.

 

Trans-sexuality: Trans-sexuality in all its forms is prohibited. Trans-sexuals, mukhanath & murtajil, have to be chased out of homes (KS 190, BG 1046).

 

Marrying a mahram: a person who marries the father's wife is executed (KS190) is prohibited. Incest is a severe crime for which the death penalty is imposed.

 

D. CRIMES RELATED TO PROPERTY

THEFT, sariqat

Conviction for theft is based on various considerations: (a) stealth, no ambiguity, and minimum amount. Stealing must be from a secure closed place and not taking property from a public area. There is no amputation for fruits stolen from an open garden with no fence (BG 1058). There should be no ambiguity, shubhat, about the ownership of the property or the act of taking it. If the alleged thief has some rights in the stolen property he or she is not convicted for theft. If the alleged thief could have taken the property for use with the possibility of return, he or she is not convicted. There is no conviction for forcible seizure of property, snatching and running away, or betraying a trust because there is a possibility of ambiguity that the property owner could have given it to the 'thief' even if involuntarily. Conviction requires that the value of the stolen property be above a prescribed minimum of a quarter of a dinar (BG 1053) or 2.05 grams of gold (KS 189). The penalty for theft, hadd al sariqat, is hand amputation (KS 190). Practical guidelines on conviction and punishment can be learned from the prophet's punishment of the woman from the Makhzumiyyat tribe (KS 190, BG 1063) and Omar's punishment for theft (KS 190). Punishments are not carried out during a journey (KS 190). If a thief is convicted several times for theft, the death sentence can be imposed (KS 190). The thief can, after punishment, make tawbat and be rehabilitated (KS 190). The snather, muntahab; the dishonest, khain; and the embezzler, mukhtalis, are not punished by hand amputation (KS 189, BG 1057).

 

HIGHWAY ROBBERY

Robbery is use of force in taking property. It may be highway robbery, qatiu al tariq, or may be by forcibly entering dwellings. If homicide or body injury occur the rules of retaliation, qisaas, apply. Robbery is illegal (MB 1123). Dying while fighting to protect property from a robber is martyrdom, shahadat (MB 1129). The penalties for robbery is execution, amputation, and crucifixion

 

FRAUD, FORGERY, AND CHEATING

Obtaining and eating others' property wrongfully is a major crime (p. 1059 2:188, 4:10, 4:29, 4:161, 7:34). Embezzling the orphan's wealth (MB 1260) is singled out as a very severe infraction.

 

ILLEGAL INCOME

Riba is criminal exploitation and not trade (p 215 2:275). Riba is condemned as taking property of others wrongfully (p. 1059 2:278-279, 30:39). The giver, the recipient, the writer, and the witness of riba are equal in crime (BG 695). Riba takes many forms as described below. Getting a gift in return for an intercession is a form of riba (BG 706). Every loan that leads to an extra benefit to the loan-giver is riba (BG 726). Exchange of monetary instruments (gold, silver, paper currency) can be riba unless there is equivalence and the transaction exchange is carried out without any delay (BG 697, BG 699). Barter trade is allowed if the exchange is of articles of the same type eg gold for gold or dry dates for dry dates, wheat for wheat and barley for barley. The exchange must be carried out on the spot. It is forbidden to barter one kind of article for another for example wheat for barley. In such a case the wheat should be sold first and the money used to buy barley (BG 698). It is also forbidden to barter good dates for bad dates. The bad dates should be sold for money and the money is used to buy the good dates (BG 700). It is forbidden to barter dates of unknown weight for dates of known weight (BG 701). Barter of animals is forbidden if payment will be delayed, nasiiat (BG 704).

 

Gambling:

 

Bribery: The giver and the recipient of a bribe are both cursed (BG 707). Bribery in order to redress a wrong is permitted.

 

E. OTHER CRIMES

REBELLION

It is illegal to engage in armed rebellion against the imaam. If such a rebellion is threatened or if it occurs, the imaam should start by redressing the grievance. If the rebellion persists, military action is taken using just enough force to suppress the rebellion and not to destroy life or property. There is no compensation for property destroyed in a rebellion. The wounded and the prisoners are not killed (BG 1025). Fugitives are not pursued (BG 1025).

 

AGGRESSION

Aggression can be against a person or property. Ghasb is forceful appropriation of property. The appropriated property must be restored (BG 756). Land can also be appropriated (BG 757-758). A Muslim is obliged to defend the self, the family, and other persons against potential homicide. He is also obliged to defend property. Minimum force is used. Resort to killing is there is no other way to stop the crime.

 

INTOXICATION

Every intoxicant is khamr and every khamr is haram MB 1933. An intoxicant is defined as what clouds the mind, al khamr ma khaamara al 'aql (BG 1069, BG 1070). Intoxicants can be liquids, solids, or vapors. They can be alcoholic or non-alcoholic. Even small quantities of an intoxicant that do not produce obvious intoxication are forbidden (BG 1071). Conviction is based on taking the intoxicant and not on whether it had an effect. The penalty is 40 lashes. This can be increased by the imaam to 80 (BG 1064). Care is taken to make sure that there is no injury to the face (BG 1066). The imaam will pay diyat if the convict dies during punishment (BG 1078). The following activities associated with khamr are also prohibited: trading in khamr (import, export, retail); manufacturing; transportation; serving; and being in a place where alcohol is sold or is served. It is prohibited to sell grapes that could be used to make alcohol. Khamr cannot be given or received as a gift. Khamr cannot be used as medicine. It is a disease and not a cure (BG 1073, BG 1074).

 

TREASON, khiyanat al ummat

 

ANTI-SOCIAL BEHAVIOR

Professor Omar Hasan Kasule, Sr. November 2000