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This article considers the four eyewitness threshold for  zinā’  in Islamic criminal law. In some Muslim-majority countries where  zinā’  remains an offence, judiciaries have by-passed the threshold by accepting singular confessions from male fornicators or, otherwise, inferring fornication from pregnancy outside of marriage. As a result, a disproportionate number of women have been prosecuted, convicted, and even punished for  zinā’ . I assert that the four-eyewitness threshold allows for an alternative way to view  zinā’  that can result in a different set of consequences. If the threshold is taken seriously such that it becomes the only evidentiary basis upon which a  zinā’  conviction can be entered, it will create an effective or  de facto  exemption where alleged perpetrators can never be convicted, except in the rarest cases where four independent eyewitnesses can be corralled. If adopted, this approach would provide a principled basis to reject opportunistic confessions that deflect punishment to accused female fornicators. And as an ‘internal’ solution that arises within the framework of the  sharī’a , a  de facto  exemption approach is more likely to be perceived as legitimate when compared with proposed solutions that find their basis in international human rights legal instruments.

Re-Assessing the Evidentiary Threshold for Zinā’ in Islamic Criminal Law: A De Facto Exemption Proposal