I apologize for so often writing posts about things that have been known and available for a while. By this time, readers are probably used to it.
Here is one I have been saving up: The Case of the Battered Wife and Sharia
(Strangely, the original link to the appellate ruling from a number of blogs has disappeared. Fortunately, I found another. Perhaps I should download a copy. It makes fairly grim reading, so don't read it if you'd rather not.)
In New Jersey, a Moroccan woman was beaten and repeatedly raped by her husband. On one occasion she ran away from him, escaping from a window. She returned that time briefly but later left him permanently and asked a judge to give her a restraining order against the abusive husband. The judge refused the long-term protective order in part on the grounds that the husband did not have "criminal intent" when he engaged in repeated spousal rape (while his wife cried continuously), because his religious beliefs dictated that he was permitted to do what he did.
Got that?
Some of the commentators at the Volokh Conspiracy don't seem to understand the point, opining that this really isn't about criminal intent, since it was not a criminal trial but rather a hearing on a restraining order. This is nonsense, as the appeals court made clear when it overturned the lower judge's decision. The matter was in fact all about criminal intent. Under New Jersey law, getting a restraining order in a domestic abuse case depends on showing probable cause that something criminal has been done previously (abuse, sexual assault, etc.). So while the standard of proof is lower than it is in a full-blown criminal trial, the issue of criminal intent is relevant and was exactly and expressly what the judge was addressing. Therefore (in case the point isn't clear) this is a pretty important incident, because if the "no criminal intent" argument (if your religion says you can do X, you aren't guilty of criminal intent in doing X) can be upheld in a restraining order case, it could also be used in an outright criminal trial.
And, to repeat, the judge said that if your religion allows you to rape your wife while she cries, you aren't committing a crime if you do so. Which is absurd. The appeals court overturned his ruling.
In this post at Atlas Shrugs we find Attorney Yerushalmi criticizing the ponderous lengths the appeals court goes to in showing that religious freedom precedents do not apply to laws against spousal rape. Yerushalmi thinks that this is a bad sign, as the claim was ludicrous on its face and should have been dismissed out of hand; he worries that the amount of space the appeals court spent indicates deference to the fact that the religion in question was Islam. He's right that any attempt to apply a religious exemption to such a law is ludicrous, not only morally but also legally. We would not allow a jihadi to say that he did not have criminal intent to commit murder since setting off a bomb is not murder according to his religion. Yerushalmi's worry is not unreasonable. But I would rather think that the appeals court was making a dry legal joke by the elephantine style in which it demolished the lower court judge's claim of no criminal intent.
I have one point to add to all that bloggers have already said about this case: It is another case of "we can say it, but you can't." If someone criticizing Islam says that, according to Islam, a man is permitted to rape his wife, that's a liberal no-no. But if the very same claim can be used for purposes of mitigating a husband's act when he abuses his wife, then the statement is permissible. Just how far this double standard and the use of these "cultural defenses" will be allowed to go in the end remains to be seen.
Comments (16)
Tolerance continues to wend it's serpentine path through the weeds of what almost resembles thought.
It's amazing the things that get trampled in the mad rush of some to advertise their moral credentials, repelled by the idea that they may stumble into defending something traditional or heretofore normal. New ground must always be broken, egos to be maintained, buttressed by appropriate insults and a self congratulatory contempt towards lesser beings.
The court decision approving violence is a reflection of this. Hell, anybody could have issued the restraining order, it takes a pioneer to do otherwise.
Posted by johnt | August 20, 2010 10:34 AM
So if a pedophile converts to Islam can he claim that he was just following the prophet's example with Aisha? Can a bunch of gang bangers convert to Islam and raid convoys of big rigs (modern day caravan raiding!)
(Oh, silly me, I forgot that logic and consequences of ideas play no role here, only the artificial boundaries created by libtard judges mean anything.)
Posted by Mike T | August 20, 2010 10:54 AM
One wonders why these obvious questions didn't occur to the judge. I'm still not fully decided as to whether the appellate court did the best thing in going on and on about past precedents and how they don't apply to this case, but maybe it was best to put the nails firmly in the coffin and hope the zombie doesn't come out of the grave.
Posted by Lydia | August 20, 2010 11:31 AM
This is one zombie that won't stop prowling.
It wants company in the grave, and covets more than just special dispensations for islam.
Posted by johnt | August 20, 2010 12:04 PM
What's the legal meaning of "criminal intent"? Does it mean doing something that you know is prohibited by locally applicable law, or does it mean doing something you should nominally be expected to know is morally right or wrong, i.e. is it linked to the definition of legal insanity?
If it's the former, then ignorance of the law is no excuse, and it doesn't matter if shari'a law denies a wife the prerogative to refuse a husband. If, on the other hand, a devout, shari'a-obedient Muslim man honestly believes that all sex he has with his wife is morally licit regardless of her consent or not -- or, to put it another way, that the marriage was that consent in perpetuity, and consent cannot be validly or legally "withdrawn" or "withheld" while the marriage obtains -- then there may be something of a case for him.
Which is not to say I defend that ruling; I don't. But it does seem to me to manifest something I have been afraid of for quite a few years now: That what we are dealing with may be a genuinely irreconcileable clash of utterly incompatible value systems, and that the people on the other side may have realized this first.
Posted by Stephen J. | August 20, 2010 2:52 PM
Briefly, Stephen J. (quoting from a web site here, but it fits with what I was going to say): "Criminal intent means the intent to do something wrong or forbidden by law."
In other words, the inability to form criminal intent has to do with things like a) insanity, where you genuinely do not know what you are doing or think you are doing something else or b) lack of knowledge--for example, if you are attempting to shoot a deer and have no idea that a human being is in the shrubbery.
Absence of criminal intent doesn't mean, "I didn't think it was wrong." Otherwise sociopaths, fanatics of all sorts, etc., or even just people who hate someone and believe that the person deserves to be killed could not be found guilty of crimes.
The intent in the legal definition has to do with the intent to do the act, knowingly committing the act in question. Then the law is what makes the act criminal or not, even if you are ignorant of the law or disagree with the law.
Posted by Lydia | August 20, 2010 3:49 PM
"criminal intent"
Usually refers to the specific intent to comit the act that is prohibited, regardless of whether you knew it was prohibited (e.g., the intent to distribute marijuana, regardless of whether you knew it was illegal to distribute marijuana).
Posted by c matt | August 20, 2010 3:51 PM
Exactly, C. Matt. And a fortiori, if _ignorance_ of the law does not remove criminal intent, neither does coming from a cultural background that causes you to _disagree_ with the law and believe that what the law prohibits is morally permissible.
But of course it is certainly true that Islam _does_ present us with a "value system" incompatible with ours. That's a major problem, isn't it? But to the extent that Muslims live among us, it just makes vigilance and refusal to budge all the more important. What sort of idiot was this judge? Even legally?
Posted by Lydia | August 20, 2010 4:00 PM
the appeals court was making a dry legal joke by the elephantine style in which it demolished the lower court judge's claim of no criminal intent.
And demolish it he did. Maybe the thoroughness of the decision will serve as a standard to which other such cases must rise.
Posted by William Luse | August 20, 2010 10:00 PM
I sometimes wonder whether some of these moronic lower court rulings are made on purpose, with the knowledge and intent that they'll be demolished later, so as to result in and thus embed the greater clout of the higher ruling.
Posted by Rob G | August 20, 2010 11:10 PM
I don't think so, Rob. More like "trying it out" to see if they can get away with it.
Posted by Lydia | August 21, 2010 9:34 AM
"I don't think so, Rob. More like "trying it out" to see if they can get away with it."
Probably not. Again we have a non-example regarding "creeping Sharia".
For a start we might want to consider the traditional attitude of Anglo-American law on marital rape.
"Perhaps the most basic challenge that feminists have posed to traditional views of rape lies in the recognition of rape as a crime against the victim herself. For much of recorded history women were the property of men, with their value as property measured largely by their sexual “purity.” In this context, rape was regarded as a property crime against a woman's husband or father (Burgess-Jackson 1996, 44-49). A raped woman or girl was less valuable as property, and penalties for rape often involved fines or other compensation paid to her husband or father (Burgess-Jackson 1996, 68). The marital rape exemption in law, which survived in the U.S. into the 1990's, is clearly a remnant of this approach, assuming as it does that no crime is committed when a man forces intercourse upon his wife, since she is his own property; the property status of enslaved African-American women was also thought to entitle their owners to the women's unrestricted sexual use. A further corollary of this view was that women who were not the private property of any individual man—for instance, prostitutes—were unrapeable, or at least that no one important was harmed by their rape (Dworkin 1997, 196–202, Burgess-Jackson 1996, 46-47, 69). Given this entrenched historical and cultural legacy, feminists' redefinition of ‘rape’ as a crime against the woman herself is nothing short of revolutionary."
http://plato.stanford.edu/entries/feminism-rape/
"Marital rape" as a criminal concept didn't exist in the United States until recently. As I recall, there was some conservative opposition to changing the laws on rape to include the notion based on its "radical feminist" origins.
Referring to the trial judges decision as "liberal" is baseless; the prevailing opinion on Volokh seems to be "the judge is a moron" and no persuasion is free from that category. Liberal judges and conservative judges make stupid decisions.
One thing I noticed is that both a Pakistani nurse and the Imam sheltered the woman. We have two Muslims who considered the husband's actions problematic. Notice how Atlas glosses over our own legal history and segues into a lengthy discourse on Jewish Law re: spousal rape which is interesting but irrelevant to the issue at hand.
I go with the judge being some variety of moron. Too often and irrespective of religion courts are indifferent to domestic threats until we have a body.
Posted by al | August 21, 2010 2:30 PM
The Pakistani nurse tried to get the woman back with her husband. An imam (the same one?) shuffled his feet in testifying regarding Muslim laws on the question of marital rape. And the Muslim mother-in-law was complicit in the domestic abuse.
Who cares what some feminist site says about the history of marital rape laws? That's just a distraction. The point is, the law exists _now_ in New Jersey, and the judge _expressly_ cited _Islam_ (not pre-1990's American conservatism) in claiming that the man lacked criminal intent.
A moron the judge is and presumably a moron he will remain. The fact is, however, that his moronic ruling in this case took the form _expressly_ of making an exception to existing, statutory, American marital rape law based on Muslim beliefs and rules. How this can be a "non-example" of the wrongful influence of Muslim law on American law is known only to you, Al. It's a _straightforward_ example.
Posted by Lydia | August 21, 2010 3:08 PM
Lydia, you know how we do things: follow this link, and delete this comment.
Posted by The 27th Comrade | August 21, 2010 5:43 PM
It's a non-example because:
Trial court decisions are indicative of nothing but the thinking of one judge and the indifference of some judges to abused women is not unknown even in cases that have nothing to do with different cultures.
Violence against women is common in many cultures including those that have nothing to do with Islam. Unless you can demonstrate that the judge made allowances in this case because of Sharia that he wouldn't of had the man come from a non-Sharia cultural tradition that sanctioned similar violence you haven't a case even with this individual judge.
I mentioned the law change because a little humility is is order. You are well aware of how i consider traditional societies and cultural conservatives especially when women, minors, and gays are the targets so I'm not cutting conservative Muslims any slack be their appeal to tradition or Sharia or whatever. My point is that we aren't that far in time from where the husband and his benighted culture are at present and we aren't where we are now because of actions from our own cultural conservatives and religious fundamentalists.
Our laws changed because of energy from the left which is where progress has always come from in this country. Assigning "liberal" to some moronic, sexist, off-the-wall ruling only calls into question your knowledge of what the term means.
I mentioned the nurse and the Imam because I detected a little cultural relativism here. Recall that in a thread just south of here I was admonished for not considering the possibility that malefactors can shed tears of repentance. Had the all the parties been fundamentalist Christians and the nurse and pastor tried to effect a reconciliation, perhaps you would be more understanding.
Posted by al | August 23, 2010 4:30 PM
No, actually, I wouldn't be more understanding. Not given what the man had actually done to her and what he had told her.
Posted by Lydia | August 23, 2010 4:51 PM