Muhammad said: “If a husband calls his wife to his bed [i.e. to have sexual relation] and she refuses and causes him to sleep in anger, the angels will curse her till morning” (Bukhari 4.54.460).
He also said: “By him in Whose Hand lies my life, a woman can not carry out the right of her Lord, till she carries out the right of her husband. And if he asks her to surrender herself [to him for sexual intercourse] she should not refuse him even if she is on a camel’s saddle” (Ibn Majah 1854).
And now a New Jersey judge sees no evidence that a Muslim committed sexual assault of his wife — not because he didn’t do it, but because he was acting on his Islamic beliefs: “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.”
Luckily, the appellate court overturned this decision, and a Sharia ruling by an American court has not been allowed to stand. This time.
“Cultural Defense Accepted as to Nonconsensual Sex in New Jersey Trial Court, Rejected on Appeal,” by Eugene Volokh in The Volokh Conspiracy, July 23 (thanks to CameoRed):
From today’s opinion in S.D. v. M.J.R. (N.J. Super. Ct. App. Div.), a domestic restraining order case:
The record reflects that plaintiff, S.D., and defendant, M.J.R., are citizens of Morocco and adherents to the Muslim faith. They were wed in Morocco in an arranged marriage on July 31, 2008, when plaintiff was seventeen years old. [FN1] The parties did not know each other prior to the marriage. On August 29, 2008, they came to New Jersey as the result of defendant’s employment in this country as an accountant….
[Long discussion of the wife’s allegations of abuse, which included several instances of nonconsensual sex as well as other abuse, omitted for space reasons. -EV]
Upon their return to the apartment, defendant forced plaintiff to have sex with him while she cried. Plaintiff testified that defendant always told her
this is according to our religion. You are my wife, I c[an] do anything to you. The woman, she should submit and do anything I ask her to do.
After having sex, defendant took plaintiff to a travel agency to buy a ticket for her return to Morocco. However the ticket was not purchased, and the couple returned to the apartment. Once there, defendant threatened divorce, but nonetheless again engaged in nonconsensual sex while plaintiff cried. Later that day, defendant and his mother took plaintiff to the home of the Imam and, in the presence of the Imam, his wife, and defendant’s mother, defendant verbally divorced plaintiff….[…]
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.
Having found acts of domestic violence consisting of assault and harassment to have occurred, the judge turned to the issue of whether a final restraining order should be entered. He found such an order unnecessary, vacated the temporary restraints previously entered in the matter and dismissed plaintiff’s domestic violence action….
The appellate court reversed this absurd decision, saying:
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.
A close call. But no doubt more of this is to come.