كرامة : جمعية المحاميات المسلمات من أجل حقوق الإنسان

President Clinton and the Concept of Privacy in Islam

By Azizah Y. al-Hibri
September 22, 1998

After attending the Prayer Breakfast, at which the President of the United States declared his repentance and asked the nation for forgiveness, I was asked by many concerned Muslims about the proper religious response to the current situation. While I prefer not to address such matters, the Qur’an enjoins those with knowledge not to hide that knowledge from others <1> Given the numerous inquiries I have received, I have no choice but to share my ijtihad (jurisprudential interpretation) on the current situation <2> So, here it is:

IN THE NAME OF GOD THE COMPASSIONATE, THE MERCIFUL,

First, a clarification is in order. As every Muslim knows, the central authority in Islam is the Qur’an, the revealed word of God. The sunnah (example) of the Prophet helps us understand the Qur’an. These sources are available to all Muslims, and hence no single Muslim can claim to have special access to "the" correct answer. The most anyone of us can do, is to offer our best ijtihad, That ijtihad must be inspired by piety, firmly rooted in the Qur’an, the sunnah, and informed about the views of other jurists. For this reason, citing our sources will help other Muslims evaluate the quality of our arguments. As to the truth or falsehood of our conclusions, I can only join classical jurists in saying: "wallahu ‘alam" (God knows best).

Second, I begin by addressing the statement of the Taliban that our President is an adulterer who must be severely punished. In my view, this statement is not properly rooted in Islamic law.

Islamic law has strict and demanding requirements for charging a person (male or female)with adultery. It also imposes strict punishment on those who accuse others of adultery but do not succeed in proving it. <3> Absent an adequate proof, the call for punishment is at best premature, and at worst itself punishable.

Adultery must be proven by either (a) a voluntary confession by the guilty party,<4> or (b) the testimony of four credible witnesses who saw the very and same instance of the act of sexual penetration, and at no time recanted or changed their story.<5> No circumstantial evidence is allowed except in very rare circumstances (such as pregnancy), and even then some jurists have rejected it if the woman denies the accusation.<6>

It is often argued that, absent a confession, the requirements for proving adultery are almost impossible to meet. This is the whole point. Only those who become defiant or reckless in their behavior will suffer. Others, who commit a ma’ssiyah (sin) in private will face God on Judgment Day. Their sins are between them and their God. Society intervenes only when their actions become public, thus threatening public morality.<7>

This is then the proper distinction between "public" and "private" behavior in Islam. While the Qur’an cites the home as a primary locus of privacy,<8> it introduces other concepts of privacy which are functional and not location-bound. A major Islamic concern about sinning (whether it is adultery or otherwise) is its effect on the public. Once a sin becomes common place, through public transmission and debate, the society as a whole feels the damage. Children are especially affected. As it turns out, the moral impact on children has been a major concern of our American nation in the last few weeks.

It is therefore clear that, in an Islamic system of justice, absent a voluntary confession by the President, and the existence of the required number of credible witnesses, those who accused him of adultery would be punished for committing the crime of qathf (accusation of adultery without proof).

Third, it is equally clear that the President has engaged in morally reprehensible sexual behavior. In evaluating that behavior, Muslims must focus first on basic principles of Islamic jurisprudence that guarantee justice and fairness to all those accused, and even to the guilty. The Qur’an clearly prohibits spying in society.<9> The sunnah of the Prophet enjoins Muslims who become inadvertently aware of the sin of another to shield the sin from public view while trying to rectify the situation through counseling and advice.<10> This applies to major sins, including adultery!<11>

These Islamic principles were grossly violated when the present scandal unfolded. Neither the President nor Ms. Lewinsky wanted to publicize their sins. Indeed, they tried hard to shield them from public view. The information became public, however, as a result of the taping by Ms. Tripp, which was unauthorized by either of the concerned parties. As a result of this wrongful act of "spying," the Independent Counsel interrogated the parties about their private behavior, and Congress released the material to the international public. Consequently, the interrogation, transcripts and video are all "fruits of the poisonous tree," Ms. Tripp’s unauthorized tapes. They all carry the original taint.

The impact of this release on public morality, especially that of children, is significant. But it is not the President who went public with his behavior. Those who publicized the information or thrived on it are themselves sinful. Thus, most of our nation has paid a high spiritual price for this scandal.

According to Islam, what the President did, while morally reprehensible, is between him and God. The fact that his actions became public through a violation of his privacy, as we understand that concept in Islam, should incline us to refrain from reading the material that became public improperly. Absent overriding considerations, we should refuse to participate in stripping our President of his privacy, and thus his dignity. Otherwise, we would be party to the violation of his rights. In short, since the President did not flaunt his behavior publicly, and since the information came to the public without due process and in violation of his privacy rights, as we understand these concepts from an Islamic perspective, we ought not to participate in this spectacle. We ought to avert our gaze from it.

Fourth, I have been asked by many, Muslim and non-Muslim Americans, about the punishment our President deserves for his behavior. The answer from my perspective is simple: Nothing on this earth. He did not publicize his actions, so we should not even know about them. Others who violated his privacy and broadcast his behavior are guilty and, if not repentant, are punishable. Society, through its judicial system, would determine their appropriate punishment (ta’zir).

Some Muslims may argue that while the President is not guilty of publicizing his sexual behavior, now that it has become public, he should be subject to punishment. Otherwise, these Muslims would argue, we may be sending our children the wrong message. If we follow this line of reasoning, then the President would be subject to a ta’zir punishment only, i.e., one determined by society. This is the debate we are presently involved in this country. Has the President suffered enough humiliation, or should society mete out more?

A persistent question remains. What would the President’s punishment be, had he been a Muslim living in a truly Muslim country, and had the information about him reached us properly? The critical factor in this case is the assumption that the information has reached us properly. The President can still repent. That is exactly what the President did at the Prayer Breakfast. In Islam, repentance, even for an act of adultery, is possible.<12> Remember that God is Compassionate, all-Merciful and Forgiving (Ghafouron rahim). Still, many have asked me whether I thought that the repentance of the President was genuine. Although I think it was, only God can truly tell. So, again, it is between the President and God.

But repentance in matters such as those involving our President does not replace worldly punishment unless it is experienced prior to the sinful act reaching the court.<13> In other words, late repentance would help with God, but does not avoid worldly punishment. The punishment in the case of belated repentance would be one of ta’zir. It is also possible that the President be granted a pardon, if public interest so demands.<14>

Finally, it is often stated that the charges about the President are not about sex, but about law. In this statement I have attempted to give my best response to those who wanted an Islamic point of view about the moral aspects of the situation. There is however one possible legal corollary. It appears from unavoidable television reporting that the President made an effort not to commit adultery with Ms. Lewinsky. Adultery requires sexual intercourse, which in turn requires penetration. Fondling, oral sex and other acts of sexual intimacy do not rise to the level of adultery.<15> Coming from a religious background, the President may have understood the religious significance of penetration and hence avoided it. Consequently, it is quite possible that when he argued that he did not have sexual relations (i.e. commit adultery) with Ms. Lewinsky, he really meant it. In fact, he may have been expressing the same belief that may have governed his own behavior with Ms. Lewinsky previously. The difference between adultery and oral sex may not seem significant to the general public, but from a religious point of view, it does make a lot of difference.

More generally, the President has been accused by the Independent Counsel of perjury. The President, however, has denied perjuring himself. Perjury involves lying under oath, a most serious sin in Islam.<16> But, again, before judging the President’s testimony, we need to examine its circumstances. It appears that the President was being asked detailed questions about his sexual activities. Many Americans who heard of this situation immediately pointed out that had they been asked under oath about their private sexual activity, they would have lied. These Americans seem to have an intuitive sense of the importance of privacy in such matters, despite the gravity of the crime of perjury. In other words, a serious tension exists under our law between two interests: privacy and truth-telling.

For this reason, it appears that the President chose his answers very carefully, balancing these two important interests. Whether he succeeded in that balancing is a matter for Congress to decide. Had the President been testifying in an Islamic court, he would not have been placed in this terrible predicament in the first instance. It is understood by Muslim jurists that a human being who commits a ma’ssiyah (sin), is entitled to shield it from public view.<17> This is somewhat analogous to the Fifth Amendment protection under the American Constitution, but our Amendment is limited to criminal matters only. Perhaps we need to rethink the scope of the existing protection in light of this tragic situation.

This concludes my religious analysis and opinion of the current situation. These are however based upon, and hence limited to, the facts known at this time. Additional facts may change the analysis and conclusion.

May God help us all against temptation, and fill our heart with fairness, mercy and forgiveness. Also, given that many of us have contributed in various ways and degrees to this unfortunate situation, may God inspire us all to embark on the path of national repentance, reconciliation and moral renewal.

Wallahu ‘alam.

End Notes

* The views expressed in this statement are based solely on religious analysis. No political considerations have played any part in this analysis. The author thanks Sheikh Muhammad al-Hanouti, Imam of Dar al-Hijrah Mosque, in Virginia, Sheikh Bassam Estwani, Chairman, Board of Trustees of Dar al-Hijrah, Abdul Rahman Alamoudi, President, American Muslim Foundation, Subhi Ghandour, Executive Director, Al-Hewar Center, and Asifa Quraishi, Director and Vice President, Karamah, for their valuable comments on earlier drafts of this statement.

1	Qur’an 2:159. Sunan Ibn Majah (henceforth "Sunan"), vol.1, p. 97 (Dar al-Kutub al-‘Ilmiyah, Beirut, reprint, n.d.) (quoting the Prophet as saying that if individuals are asked about matters they are knowledgeable about and their knowledge is useful to others, but they nevertheless decide to hide that knowledge, they shall be restrained on judgment day with bridles of fire).

2	For the purpose of this press release, I shall footnote my statements, where appropriate, to assist the American Muslim public in assessing my reasoning. I shall footnote most statements to the Qur’an and to a multi-volume work by Dr. Abdul Karim Zaidan, entitled Al-Mufassal fi Ahkam al-Mar’ah wa al-Bayt al-Muslim [The Detailed in Laws Relating to Women and the Muslim Home] (Mu’assassat al-Risalah, Beirut, 1994) [henceforth, Al-Mufassal, all references are to volume 5]. I have chosen this scholarly work as my secondary reference because of its reliability, conciseness and clarity (as compared to other works). It quotes the sunnah of the Prophet extensively, and is at the same time a modern compendium of classical juristic views. A few years ago, this multi-volume work received the King Faisal Award from the Kingdom of Saudi Arabia. Occasionally, I shall refer to other works where a saying by the Prophet is not quoted by Al-Mufassal.

3	Al-Mufassal, 100 (relating a story where Khalifah Omar punished some witnesses of adultery when their number was less than the required number of four).

4	Al-Mufassal, 79. The person confessing must be, among other things, sober, sane and uncoerced. Furthermore, the confession itself must meet certain criteria for its validity, such as clarity, detail and repetitiveness. Id., 79-82. A person may retract his or her confession at any time prior to or even during punishment. Id., 83.

5	Al-Mufassal, 89, 91-100. See also, id, 91 (arguing that shielding another’s privacy is preferable to bearing witness against him or her).

6	This is based on the principle "dar’ al-hudud bi al shubuhat," [uncertainty wards off punishment for major sins]. Al-Mufassal, 62. If a pregnant single woman does not admit to adultery, she will be left alone under most schools of thought. Al-Mufassal, 114-5.

7	There are of course important exceptions to this rule. For example, a man who rapes or injures a woman privately will still be punishable once the woman lodges her complaint with the state. The complaint properly brings public authorities into the situation. In the case at hand, Ms. Lewinsky not only did not lodge a complaint, but was forced to testify about her private affair with the President.

8	See, for example, Qur’an 24:27-28 which states: "O ye who believe! Enter not houses other than your own until you have asked permission and greeted those in them. That is best for you, perhaps you will remember. If you find no one in these houses, then do not enter until permission is given to you. And if you are told to go back, then go back. That is a purer course of action for you, and God knows what you are doing."

9	Qur’an 49:12. "O ye who believe, avoid suspicion (as much as possible): for suspicion in some cases is a sin: and spy not on each other, nor speak ill of each other behind each other’s backs. Would any of you like to eat the flesh of his dead brother? Nay, you would abhor it....And (so) fear God, for God is all-forgiving and merciful." In fact, spying is a crime punishable by ta’zir (punishment determined by court). Al-Mufassal, 454.

10	Al-Mufassal, 91 (quoting the Prophet as saying that a person who shields the privacy of another in this world will have his privacy shielded by God in this world and in the afterlife. Also stating that classical jurists have argued that shielding a crime of adultery from exposure is preferable to bearing witness against the adulterer).

11	Al-Mufassal, 91.

12	Al-Mufassal, 78. Also, arguing that a person who shields his privacy is likely to experience a true act of repentance.

13	Al-Mufassal, 471.

14	Al-Mufassal, 471.

15	Adultery (Zina) in Islam is a much more serious sin than extra-marital oral sex, since penetration does not occur in the latter. Punishment for the first sin is mandated by God (short of repentance and forgiveness). Punishment for the second sin falls under the category of ta’zir, and is usually determined by society through its courts. Al-Mufassal, 450, 457.

16	Sunan, vol. 2, p. 794 (quoting the Prophet saying that a perjurer will end up in Hell.)

17	Al-Mufassal, 77 (quoting the Prophet’s saying: "Let a person among you, who engages in any of these dirty deeds, shield himself with God’s shield (of privacy), but if he does not, he will be punished."