November 12, 2010

That Pesky New Jersey Sharia Case

Hatched by Dafydd

In our previous post, They Call the Win Sharia, we included a quotation from a source that referred to a case in New Jersey in which sharia law may have crept into a legal decision. A woman sought a permanent restraining order against her (current or ex-, it's not clear) husband on grounds of abuse; in particular, she alleged -- and the judge agreed -- that the husband had forced unwanted sex upon his wife on at least two occasions.

Here is what our quoted source wrote:

An equally troubling, but domestic, case of Sharia law superseding a domestic civil law, is the case of a New Jersey Muslim woman filing for a restraining order from her abusive husband. The judge denied the restraining order on the grounds that her husband “was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.”

Plainly put, the judge ruled that the woman could be raped and tortured because the rapist was her husband and his religious beliefs give him the right to rape and abuse. Sadly, this woman had to live in this torment for more than one year before the case was overturned.

The only quibble I can find with the conclusion is that the judge actually ruled that the husband's belief that sharia law authorized him to rape and abuse his wife meant he had no criminal intent, no "mens rea," when he raped and abused his wife. But that is a difference that makes no difference; the judge still held that the defendant's religion excused him from the laws against rape and assault that apply to everybody else.

However, some doubt has been raised about the accuracy of this New Jersey example, both by lefties hoping to overturn the wildly popular Oklahoma constitutional amendment, just passed, that seeks to prevent international law and sharia law from becoming authoritative in Oklahoma jurisprudence -- and also by conservatives who simply want to make sure that all of our examples and arguments are indeed accurate and factually correct, so that they don't blow up in our faces.

The point is well taken; I hunted around a bit to find out more about this case, and I stumbled into this piece from Eugene Volokh's the Volokh Conspiracy, which I consider to be one of the most authoritative legal blogs in the blogosphere. Volokh led me to the actual appellate-court decision, S.D. v. M.J.R. (N.J. Super. Ct. App. Div.).

First the facts, as the appellate court recounts them [emphasis added]:

While recognizing that defendant had engaged in sexual relations with plaintiff against her expressed wishes in November 2008 and on the night of January 15 to 16, 2009, the judge did not find sexual assault or criminal sexual conduct to have been proven. He stated:

This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.

After acknowledging that this was a case in which religious custom clashed with the law, and that under the law, plaintiff had a right to refuse defendant’s advances, the judge found that defendant did not act with a criminal intent when he repeatedly insisted upon intercourse, despite plaintiff’s contrary wishes.

The judge rejected the permanent restraining order and dismissed all of the temporary restraining orders. Some time later, the appellate court finally ruled on the appeal, overturning the judge's decision [emphasis added]:

Defendant’s conduct in engaging in nonconsensual sexual intercourse was unquestionably knowing, regardless of his view that his religion permitted him to act as he did.

As the judge recognized, the case thus presents a conflict between the criminal law and religious precepts. In resolving this conflict, the judge determined to except defendant from the operation of the State’s statutes as the result of his religious beliefs. In doing so, the judge was mistaken....

We are also concerned that the judge's view of the facts of the matter may have been colored by his perception that, although defendant's sexual acts violated applicable criminal statutes, they were culturally acceptable and thus not actionable -- a view that we have soundly rejected.

That is quite accurately described as allowing sharia law to intrude upon an American legal case -- not simply to be raised, but actually to have determined the outcome of the trial. Simply put, the trial judge held that the husband's belief that his religion gave him the right to repeatedly rape his wife trumped his wife's right not to be raped. That is sharia law and could have issued from any sharia court in the world. But it issued from an ordinary family-law court in the United States of America.

I consider the appellate court's take to be dispositive, as far as my own understanding of the initial judicial horror and subsequent appellate slapdown are concerned. I find the example to be quite appropriate, accurate -- and appalling.

Hatched by Dafydd on this day, November 12, 2010, at the time of 1:24 PM

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