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LHMP #382 Omar 2012 From Semantics to Normative Law

Full citation: 

Omar, Sara. 2012. “From Semantics to Normative Law: Perceptions of Liwat (Sodomy) and Sihaq (Tribadism) in Islamic Jurisprudence (8th - 15th Century CE)” in Islamic Law and Society 19. pp.222-256

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This paper looks at the structure of legal arguments in medieval Islamic law that covers male and female homosexual acts. The author examines how different schools of law structured their analysis regarding categorization and punishment either through analogy to illicit heterosexual sex or with regard to the social roles of those involved in the sex act. This is not an analysis of how same-sex sexuality is treated in literature or poetry but specifically within the genre of legal argumentation. The analysis also looks at why and how jurist came to different conclusions about the appropriate punishments for male and female homosexuality. The historical literature is far more concerned with male activity than that of women, and there has been less scholarly interest in exploring the treatment of female homosexuality.

Legal argumentation focused around several general topics. One is analogy to the concept of zina, the label for illicit sex between a man and a woman. Another is the definition of sexual intercourse as being specifically an act of penetration by a male organ. The third factor is the relevance of the social status of the individuals involved in their relationship to each other. Within the commentary on these legal concepts there are also discussions regarding whether the technical legal terms involved or being used literally in their formal sense or metaphorically in a non-binding sense.

There are relatively few legal judgments and opinions relating to sex between women. The three hadith that appear to touch on the subject include one that refers to sihaq (“rubbing”) between women as being zina. Another indicates that skin to skin contact between two women lying next to each other is forbidden that they must be wearing clothing for fear the contact would excite them. The third hadith is related to cross-dressing and forbids men who dress like women and women who dress like men but that’s not specifically touch on sex.

Another key element of the legal reasoning is the assignment of offenses and therefore of punishments to two different levels of severity, those that are specifically forbidden in the Qur’an which are punished more severely, and those that are not mentioned in the Qur’an where the punishment is at the judge’s discretion.

One key question in determining the appropriate approach to unlawful sex is whether it is categorized as zina, which in its narrowest interpretation refers to the vaginal penetration by a man of a woman he does not have legal rights to. Appropriate punishment for zina also depended on the context of the act with regard to the age, social status, marital status, and mental competence of the participants. as well as a very technical definition of what constituted penetration.

When the participants in an illicit sex act were a man and a woman there were clear definitions of how to apply these rules. Where legal approaches differed was in whether those rules applied by analogy to same-sex acts and if so how they applied. One school of thought argued that because different words existed for zina and liwat, where the latter indicated anal penetration, regardless of the sex of the participants, that they could not be treated the same under law because what is named differently cannot be identical. By this reasoning, because liwat was not forbidden in the Qur’an, any punishment was at the judge’s discretion. Another school of thought viewed liwat as being a subcategory of zina and therefore subject to the more severe punishments. However, both categories were defined in terms of penetration and therefore were viewed as something that only a man could perform. This meant that for both types of acts punishment was determined with regard to the individual status and relationship of the participants, but sexual acts between women were entirely excluded from consideration.

The word sihaq does not appear in the Qur’an. Some have interpreted a word in a Qur’anic passage non-specifically meaning “lewdness” as referring to sex between women, but this interpretation is note generally accepted. Therefore, those who viewed erotic activity between women as criminal needed to use a different rationale. This was available in general prohibitions against immodesty, or improper contact between people who did not have a relationship that licensed such contact. The offense was transgressing against the requirement to protect your genitals. This was categorized as a sin, but not as a crime. And, in essence, the punishment treated both women as having transgressed by being the passive partner in an illicit sex act.

This inability to define sex between women as something that fell within the most forbidden categories of sexual crimes did not mean that sex between women was considered acceptable or meaningless but it did protect those who engaged in it from the most dire consequences, by virtue of the social assumptions that sexual crimes required the illicit use of a penis.

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