“The legal penalty for fornication”

This opinion is based on the Sunni Hanafi system of jurisprudence, and many of the arguments can be used to build a consensus among the umma that stoning is unacceptable or can be avoided. In this opinion, The Shaykh goes into great detail on the extreme burden of proof needed to prove adultery. Several elements are important here:

• On acquittal:  “This (trying to avert a legal punishment) has been explicitly mentioned in one Hadith. Sayyida Aisha (Allah be pleased with her) narrates that the Messenger of Allah (Allah bless him & give him peace) 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.” (Sunan Tirmidhi, no: 1424)
• On confessions: “The punishment of adultery is also proven if the perpetrator him/herself confesses to be guilty of the crime. He/she must be sane, mature (baligh) and must confess four separate times in four separate sessions that the crime was committed. The Imam will try to wave away the punishment as much as possible by saying to the confessor that you may have only touched or kissed and other such statements. The Imam will also inquire about the various details of the incident, and when the confessor explains everything without leaving any doubt or ambiguity, the punishment will be enforced.”
• On testimony/witnesses: “If the four witnesses take back their testimony before the actual punishment is enforced, then the punishment will be abandoned, and they (witnesses) will be punished for the crime of false accusation.”

One does not need to confess or be punished in order to be forgiven: “Finally, one should remember that it is not necessary in order for one’s sin to be forgiven that he/she receives the legal punishment (hadd) for the sin committed. The reason being is that one is not obliged to confess that he/she committed adultery; hence one may keep the sin hidden and not inform the Islamic judge about it. Also the various Islamic legal punishments (hudud) are only carried out in an Islamic state (dar al-Islam) by the Imam, thus repenting to Allah Almighty will be sufficient.