Before Homosexuality in the Arab-Islamic World, 1500-1800 (55 page)
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Authors: Khaled El-Rouayheb
BOOK: Before Homosexuality in the Arab-Islamic World, 1500-1800
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120
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120
Ordinary, nontechnical usage was, as has been seen in the first chapter, not as strict. Juridically, however, a person who accused another of being a
lu
ti
on the grounds that he had kissed, caressed, or had intercrural intercourse with a boy would be liable to eighty lashes for false accusation of unlawful intercourse. According to the Ḥanafi
, Sha
fiʿi
and Ḥanbali
schools, anal intercourse between a man and a woman (other than a wife or concubine) and anal intercourse between two men were instances of the same type of transgression, and merited the same punishment. By contrast, sexual intercourse between women
(siḥa
q)
was considered an independent transgression and was not assimilated terminologically, or in terms of punishment, to anal intercourse between men.
lu
tion the grounds that he had kissed, caressed, or had intercrural intercourse with a boy would be liable to eighty lashes for false accusation of unlawful intercourse. According to the Ḥanafi, Shafiʿiand Ḥanbalischools, anal intercourse between a man and a woman (other than a wife or concubine) and anal intercourse between two men were instances of the same type of transgression, and merited the same punishment. By contrast, sexual intercourse between women(siḥa
q)was considered an independent transgression and was not assimilated terminologically, or in terms of punishment, to anal intercourse between men.
In assessing the gravity of a sexual sin, the mode of intercourse was more important than the genders of the partners. Illicit vaginal intercourse between a man and a woman was a graver sin, and was punished more severely, than kissing, caressing, or intercrural intercourse between men, or sexual intercourse between women. The latter acts, which did not involve phallic penetration of the vagina or anus, were apparently not considered by Sunni
jurists to be “major sins”
(kaba
ʾir)
at all.
121
The Egyptian Sha
fiʿi
jurist Sulayman al-Bujayrimi
(d. 1806), after expounding the rulings of his school on
zina
and
liwa
ṭ,
added that nonpenetrative sexual intercourse such as “intercrural intercourse
(mufa
khadhah)
or hugging or kissing” were not major sins unless done repeatedly, and should be punished by discretionary chastisement, which ought to be milder than the least severe
ḥadd
punishment.
122
The Sha
fiʿi
jurist Muhammad al-Khaṭi
b al-Shirbi
ni
(d. 1570) likewise stated that discretionary chastisement, and not
hadd,
applied to cases of intercrural intercourse, inserting the penis in orifices other than the anus or vagina such as the navel [
sic!
], the “preliminaries” of intercourse (which in light of the preceding presumably refers to kissing and fondling), or intercourse between two women.
123
Even the otherwise severe Ibn Hajar al-Haytami
jurists to be “major sins”(kaba
ʾir)at all.
121
The Egyptian Sha
fiʿijurist Sulayman al-Bujayrimi(d. 1806), after expounding the rulings of his school onzina
andliwa
ṭ,added that nonpenetrative sexual intercourse such as “intercrural intercourse
(mufa
khadhah)or hugging or kissing” were not major sins unless done repeatedly, and should be punished by discretionary chastisement, which ought to be milder than the least severe
ḥadd
punishment.
122
The Sha
fiʿijurist Muhammad al-Khaṭib al-Shirbini(d. 1570) likewise stated that discretionary chastisement, and nothadd,
applied to cases of intercrural intercourse, inserting the penis in orifices other than the anus or vagina such as the navel [
sic!
], the “preliminaries” of intercourse (which in light of the preceding presumably refers to kissing and fondling), or intercourse between two women.
123
Even the otherwise severe Ibn Hajar al-Haytami
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