Does Filming a Man and Woman Committing Zina Take the Place of Four Witnesses?

“And those who accuse chaste women and then do not produce four witnesses, lash them with eighty lashes and never accept their testimony thereafter. And those are the defiantly disobedient.”

And He سبحانه said regarding the incident of the slander:

“Why did they not produce four witnesses for it? Since they failed to produce witnesses, they are indeed liars in the sight of Allah.”

These texts explicitly establish the requirement of four witnesses when zina is to be established through testimony. Ibn Rushd رحمه الله transmitted the agreement of the scholars that the hadd punishment for zina is not carried out on the testimony of fewer than four upright male witnesses who directly witnessed the act itself.

“Had it not been for what has already been ordained in the Book of Allah, I would have dealt with her differently.”

In the authentic narrations concerning the incident of li'an, the Prophet ﷺ did not carry out the hadd punishment for zina against her merely on the basis of the apparent circumstantial evidence. This indicates that circumstantial evidence, even when strong, is not the legally recognized evidence by which the hadd punishment for zina is established. For this reason, the scholars used the incident of li'an as evidence that hudud are not established merely through circumstantial evidence that is open to other possibilities, and that the Shariah has been particularly strict concerning the proof required to establish zina.

“Does a photograph establish proof against the person who committed zina?” He رحمه الله answered that this does not take the place of the legally required evidence, and he cited the statement of Allah تعالى: “Then they do not produce four witnesses.”

He also explained that photographs may be subject to manipulation and falsehood. The meaning of his words was that an image of a person may be produced in a way that gives the impression that something occurred when it did not actually occur. This fatwa is among the clearest answers to the questioner’s question because it specifically addresses photographic evidence and using it to establish zina.

“The basic principle is that if someone accuses another person of zina, he is told: ‘Produce the evidence, otherwise we will lash you eighty times,’ because people’s honor is inviolable. If a person says to another, ‘You are a fornicator,’ or, ‘O fornicator,’ or something similar, we say: ‘Produce the evidence; otherwise, there are eighty lashes upon your back.’ “If he says, ‘I saw him with my own eyes committing zina,’ we say to him: ‘If you do not bring the witnesses, then you are a liar in the sight of Allah.’ For this reason Allah تعالى says: ‘Since they failed to produce witnesses, they are indeed liars in the sight of Allah.’ “He did not say that they are necessarily liars in the reality of the matter; rather, they are liars in the sight of Allah, meaning that according to His ruling and His Shariah they are regarded as liars, even if what they said corresponds to what actually occurred.” Ash-Sharh al-Mumti (13/284).

The Prophet ﷺ said: “Produce the evidence, otherwise there will be a hadd punishment upon your back.” He said: “O Messenger of Allah, if one of us sees a man upon his wife, is he supposed to go and search for evidence?” The Prophet ﷺ continued saying: “Produce the evidence, otherwise there will be a hadd punishment upon your back.” Hilal said: “By the One Who sent you with the truth, I am certainly truthful, and Allah will surely reveal concerning my affair that which will free my back from the hadd punishment.” Then Jibril عليه السلام descended and revealed to him: “And those who accuse their wives...” He recited until he reached: “And the fifth oath that the wrath of Allah be upon her if he is truthful.” The Prophet ﷺ then left and sent for both of them. Hilal came and gave his testimony, while the Prophet ﷺ was saying: “Allah knows that one of you is lying. Will either of you repent?” Then she stood and gave her testimony. When she reached the fifth testimony, they stopped her and said: “It will make the punishment binding.” Ibn Abbas رضي الله عنهما said: “She hesitated and drew back, until we thought that she would retract her statement. Then she said, ‘I will not disgrace my people for the rest of the day.’”

“Do modern recording devices take the place of witnesses in establishing zina?” He answered that photographs and recordings are not regarded as establishing the hadd punishment, nor are they evidence that takes the place of witnesses. Among the reasons he mentioned were the possibility of resemblance between people, manipulation, coercion, and other possible explanations. He then cited the incident of li'an as evidence that the Shariah has designated specific evidence for establishing the hadd punishment.

Zina is not established, nor is its occurrence proven, through photographic and recording devices. Dar al-Ifta al-Misriyyah issued a fatwa to this effect, and Ibn Uthaymeen رحمه الله explicitly stated it as well.

“Modern developments and advanced scientific means which have appeared and which may be used as forms of evidence in this matter... such as visual recordings and audio recordings, do not go beyond being mere circumstantial evidence and do not reach the level of being independently sufficient as proof in this matter, concerning which the Shariah has imposed strict evidentiary requirements.”

“We used to say in the past that it was permissible to act upon a photograph taken of the two people committing zina. However, it became clear to us that even a photograph cannot be acted upon, because it can be manipulated, and this is easy. Now that knowledge and technology in these matters have advanced, everything has become possible...” Ash-Sharh al-Mumti (14/271).

Concerning a man entering upon a woman in suspicious circumstances, neither the man nor the woman is judged to have committed zina merely because of the accusation. Rather, there must be a confession or four witnesses who testify to the actual act of intercourse. As for accusations and matters that fall short of establishing the hadd punishment, the matter of discretionary punishment concerning them is referred to the Shariah judiciary.

“It is referred to the judge.”

Therefore, it is not permissible for a person to see a recorded video and then personally judge the person shown in it, carry out a punishment against him, or publicly expose him.