Seema Saifee


In an effort to separate the Islamic regulatory scheme with respect to the criminalization of consensual sexual conduct from the caricature espoused by many Western thinkers, this Note provides a comparative analysis of the criminalization of private consensual sexual conduct in Islamic law and U.S. constitutional jurisprudence on the right of privacy. Part I provides a brief background of Islamic and U.S. criminal regulations on consensual sex and outlines the evolution of constitutional privacy jurisprudence in the U.S. Supreme Court. Part II first examines the evidentiary and procedural requirements pertaining to the criminalization of consensual sexual intercourse in Islamic law, explores the consequences of transgressing these evidentiary requirements, and analyzes the theological and privacy-related constraints on initiating suits for engaging in such private conduct. Part II then applies these regulations to the recent case of Amina Lawal in northern Nigeria, and analyzes Islamic regulations governing sexual activity not amounting to intercourse. Finally, Part II examines an alternative reading of the U.S. Supreme Court's current analysis of privacy as articulated in Lawrence v. Texas. Finally, Part III argues that Islamic evidence law and consequences of evidentiary transgression act as a de jure restriction to prosecuting individuals who engage in private consensual sex. Combined with theological and privacy-related regulations, which act as deterrents to such prosecutions, these evidentiary requirements create a zone of privacy that protects private consensual sex from State regulation. Part III then argues that the U.S. Supreme Court has subtly shifted away from recognizing privacy-related rights towards asserting a stance against all morals legislation, and concludes that it is the Court's anti-morals legislation rhetoric, and not the constitutional right of privacy, that determines the holding in Lawrence. Moreover, Part III draws a distinction between the Islamic and American approaches to privacy jurisprudence by examining the significantly distinct consequences of the Islamic guarantee of privacy and the American criticism of morals-based legislation. Exploring the ramifications of the Court's anti-morals legislation posture, Part III concludes that, despite the caricature embraced by the Western world, the real right of privacy resides in Islamic jurisprudence.