07.08.10 10:57 PM ET
The Gory Truth About Stoning
News that Iran has suspended the stoning of a 43-year-old mother of two, Sakineh Mohammadi Ashtiani, for the crime of adultery certainly came as a relief. But the case has once again focused international attention on a barbaric and draconian form of punishment that, in some Muslim states, has become an effective and horrific tool of misogyny.
Stoning is a brutally precise punishment with a host of specific procedures and regulations. The convicted person is wrapped in a shroud, placed into a pit, and buried either to the waist if a man or the chest if a woman. If the adultery was proven in court by confession, the judge has the responsibility of throwing the first stone. But if the case was proven through witnesses, they start first, followed by the judge, and then by any others who are present, the number of which cannot be less than three. The stones are then hurled one by one until the accused is killed. And if the person manages to wriggle out of the pit, she or he is set free (which explains why these pits are so often little more than loosely packed holes in the ground).
The punishment for adultery in the Quran is lashes, not stoning. In fact, nowhere in the whole of the Quran is stoning prescribed for any crime.
The Iranian Penal Code is chillingly explicit regarding the proper stones to use. Section 119 states: “The stones for stoning to death shall not be so big that one or two of them shall kill the convict, nor shall they be so small that they may not be called ‘stones.’”
Islamic law considers adultery, or zina, to be one of six Quran-mandated offenses whose punishment is prescribed by God (the other five are false accusations of adultery, theft, robbery with violence, apostasy, and drunkenness). These are essentially a random collection of crimes whose only connection is that their punishment is mentioned somewhere in the Quran. Consequently, these “crimes” receive special treatment in Islamic law.
But the punishment for adultery in the Quran is lashes, not stoning. In fact, nowhere in the whole of the Quran is stoning prescribed for any crime—though this is a point of endless debate for legal and religious scholars.
Although zina literally means adultery, in practice it refers to any unlawful sexual act, whether adultery (illicit sex between married persons), fornication (sex between unmarried persons), sodomy, rape, or incest. However, even the simplest definition of zina can become hopelessly entangled in the complexities of Muslim sexual ethics. For instance, some legal scholars suggest that zina should not be applied in instances in which a married person is unable to enjoy his or her spouse due to legally acceptable conditions, such as prolonged travel or life imprisonment. Then there is the problematic relationship between adultery and rape in some Islamic penal codes. Rape victims can themselves be charged with adultery if they are unable to definitively prove sexual coercion. Indeed, there have been some cases in which the victims of rape, rather than the rapists, are convicted of zina and stoned to death for adultery.
The trailer for The Stoning of Soraya M., based on a true story.
Adding to all of this confusion is the fact it is nearly impossible to legally convict someone of zina in Islamic law. Without exception, zina must be proven in a court of law either by four clear and unambiguous confessions made in four separate meetings with a qualified judge, or by the attestation of four men of “blameless integrity” who must all profess to be direct eyewitnesses to the crime. (If four men are not available, three men and two women will suffice.) Where one finds four blameless men who happen to have simultaneously witnessed the very private act of sexual intercourse between two people is another matter.
It is for this reason that even those countries that still have stoning in their penal codes go to such lengths to work around the punishment. After Zia al-Haq instituted the Islamic Penal Code in Pakistan, over 95 percent of adultery convictions between 1980 and 1987 were overturned on legal technicalities. In Iran—a country that, to this day, applies a strict interpretation of Islamic law—a temporary moratorium was placed on the practice of stoning a decade ago, due in part to a vigorous debate in the courts over the legality of the punishment.
Nevertheless, despite its illegitimacy as a Quran-mandated punishment and regardless of the many legal impediments embedded in Islamic law to deter its use—especially when the accuser himself can be punished if the accused is found innocent—the practice of stoning adulterers continues in a number of conservative Muslim countries. The vast majority of these stoning cases are undocumented because they occur in the most rural, poorest, and least-educated regions of the countries (though often with the tacit approval of the government).
Consequently, those like Ms. Ashtiani, who have been charged and “tried” by their village elders, are often totally unaware of their rights under Islamic law; indeed, the judges themselves are sometimes ignorant of the complexities of the law and the burden of proof required for conviction. Too often, this ignorance allows the zeal of the community to dictate guilt or innocence, which is why zina laws are so often used as a means of exploiting women (men are rarely convicted of adultery even though the crime, by definition, requires two people to commit). Jealous husbands have used the zina laws to punish their wives, while angry fathers have used the laws to castigate their daughters.
And while global support and outrage seems to have stopped the Iranian government from stoning the mother of two to death this time, there are too many women who can’t garner that sort of attention. Women you will probably never hear about until it is too late.
Reza Aslan is author of the international bestseller No god but God and How to Win a Cosmic War (published in paperback as Beyond Fundamentalism: Confronting Religious Extremism in a Globalized World). Follow him on Twitter and Facebook.