SHARIAH LAW UPHELD IN NEW JERSEY: PAMELA GELLER
Sharia (Islamic) Law in New Jersey Court: Muslim husband rapes, beats, sexually abuses wife, judge sees no sexual assault because Islam forbids wives to refuse sex
Here. Now. Sharia law in New Jersey. When Obama went to Al Azhar University to speak to the ummah (worldwide Muslim community) last June and made the outrageous statement that “the struggle for women’s equality continues in many aspects of American life,” little did we know what a warning it was. How prescient. It’s here, the degradation and subjugation of women under the sharia. Foreign law, the most vile, in our nation’s courts.
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):
Robert posted this:
Sharia in New Jersey: Muslim husband rapes wife, judge sees no sexual assault because Islam forbids wives to refuse sex 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.”
More here.
Further, I wanted Atlas readers to get David Yerushalmi’s take. David is my outstanding lawyer in my Detroit free speech case and a leading expert on sharia law. Here are his observations:
OK, the court didn’t actually say Shariah, but “his culture†and “his perception of his religionâ€. Here’s the story in a nutshell (the lengthy appeals court decision is attached and I’ve excerpted it below):
Young Moroccan couple wed in arranged marriage (remember Morocco is supposed to be super modern with super reformed Islam with super benevolent western educated king [http://en.wikipedia.org/wiki/Mohammed_VI_of_Morocco]). Almost immediately, the young couple come to America where husband (H) is accountant. Apparently his doting mother is here already or comes with the young couple (if you read the opinion, you’ll see this is one classy mother-in-law who was very much a part of the abuse). H immediately begins “punishing†his wife (W) and sexually assaulting her during intercourse. In effect, he sexually assaults her (the term for raping your wife) because she refused to be abused during relations and said “noâ€.
During the sexual assaults and beatings, W is given refuge by Pakistani nurse from hospital where she was treated. The nurse subsequently initiated a reconciliation between W and H through the couples’ imam when she learns of W’s pregnancy. The very day W reconciles and returns to H, the beatings continue and imam takes in W. At that time, but all within a few weeks—the marriage lasted only a few months, H tires of W and “divorces†his wife per Shariah via witnesses [DY: H had earlier that day divorced W via oral declaration alone but this type of Shariah divorce must wait until the now pregnant W gives birth; thus, divorce is redone with witnesses w/the imam to have it take effect immediately].
While criminal complaint is pending, W brings action in civil court per NJ statute protecting women from domestic violence and seeks restraining order. Evidentiary hearing is held.
Trial court finds: [1] man sexually assaulted wife but [2] court will issue no restraining order because man did it thinking he could abuse his wife if she misbehaved and refused his sexually demands per Islamic law.
In other words, the court held that man’s religious beliefs were sufficient to avoid the effects of NJ law to protect battered women. Nice, huh?
The kicker: during the trial, H’s attorney apparently called the Imam as H’s witness (what would you expect, an Imam to testify for this beaten/raped woman?) but apparently the trial judge was not happy with W’s attorney’s cross examination and asked a few of his own questions. Here is how the appellate court describes the Imam’s testimony to the judge’s queries:
At the conclusion of this testimony, in response to the judge’s questions, the Imam testified regarding Islamic law as it relates to sexual behavior. The Imam confirmed that a wife must comply with her husband’s sexual demands, because the husband is prohibited from obtaining sexual satisfaction elsewhere. However, a husband was forbidden to approach his wife “like any animal.” The Imam did not definitively answer whether, under Islamic law, a husband must stop his advances if his wife said “no.”
[Note: I am willing to bet W’s attorney knew nothing about Shariah and was afraid to penetrate this line of questioning or to provide any expert of his own.]
Now, I believe I know why per Shariah the imam equivocated if you assume he was not just hiding the ball from the court (a big assumption I grant you but I’m feeling charitable this evening). Thus, giving the imam the benefit of the doubt, per Shariah a women is obligated to satisfy her husband’s sexual demands: “It is obligatory for a wife to obey her husband as is customary in allowing him full lawful [DY: there are times when Shariah prohibits marital sex—e.g., relating to menstrual cycle] sexual enjoyment of her person.â€Â (See, e.g., Reliance of the Traveller, Marriage, m10.12 and commentary from Jordanian Mufti, Sheikh Nuh ali Salman, at N(3).)
An obligation or wajib is the highest order or rubric of affirmative Shariah dictate (there are the less affirmative duties, which fall under the category of ‘praiseworthy’ and the Shariah-neutral rubric of ‘permissive’ as well as the prohibitive rubrics of ‘forbidden’ and ‘disliked/abhorred’). Insofar as the woman has a wajib/obligation to satisfy her husband, the resulting ruling follows per Shariah’s fiqh (jurisprudential rules): a wife is “rebellious†if she refuses her husband’s sexual demands (because she refuses to comply with a wajib) if she if physically able and there are no Shariah-based impediments. The next step in the Shariah rulings also flows logically from the antecedent ruling that a wife must obey her husband even to the point that a wife may leave the home only with the husband’s permission (Reliance, Marriage, m.10.3-10.4). Finally, Shariah’s fiqh combines the two concepts (the wife’s wajib and the man’s control over her) into one by providing a husband some leeway if not encouragement to beat his “rebellious wife†to bring her into compliance (note that neither the husband nor court may force a wife to “service†her husband through cooking and cleaning; only sex is obligatory). (Reliance, Marriage, m.10.12 (commentary N [Jordanian Mufti Nuh] (4)(c)))
Again, granting the imam a sizable benefit of the doubt, his equivocation on the question whether the husband is allowed to force himself on his wife I believe stems from the fact that there is no explicit source in Shariah for “permitting†a husband to force sex on his wife (at least not one I can find—although there are some individual fatawa [Shariah rulings from individual imams] that permit it—but there is nothing approaching ijma or consensus so these fatawa are just individual rulings that the Shariah faithful can accept or not). However, it is clear that there is no penalty for it which of course is the source of authority for the fatawa I have seen permitting marital rape. You can see the same equivocation more clearly in the form of misdirection represented here in this IOL response to the straightforward question posed whether Shariah recognizes marital rape or sexual assault. http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid=1119503545650 Bottom line: no, there is no penalty for marital rape. (The IOL answer is presented as a “good Shariah marriage should never come to this†but in truth the answer remains, no. A man cannot be punished for raping or otherwise sexually assaulting his wife as long as it is “permissible sex†under Shariah [e.g., not during menses].)
On the policy/legal aspects. Note for those of you who know of my firm’s work on drafting state laws we call Void as Against Public Policy which make explicit that courts cannot rely on foreign laws that violate fundamental federal or state constitutional liberties, this case would have been easier for the appellate court had our draft legislation been law in NJ (at the very least Shariah’s permission for a husband to rape his wife is an Equal Protection violation if not a violation of her own Free Exercise liberty). I am pleased to say our draft legislation has become law in Tennessee and Louisiana. I am hopeful soon in Florida and other states. However, let me be very clear. Our draft legislation would not be necessary under any serious analysis of the First Amendment. The NJ trial court erred grotesquely and the appellate court, while reaching the correct result, also erred in even suggesting this Free Exercise argument (i.e., the state may not punish Ahmed for raping his wife because he was acting w/in the dictates of his religious law, Shariah) was of any merit whatsoever.
Thus, …
On the appellate court’s constitutional analysis: I think the court’s analysis of First Amendment Free Exercise law, while technically correct, was absurd and wholly out of place. It takes all of five seconds to analyze whether a free exercise claim would prevent the state (through the court) from imposing a restraining order on a violent husband. This is not akin to a polygamy or peyote free exercise claim where there is no third party victim (in polygamy cases of old there was typically no claim by an earlier wife of harm—all parties were practicing Mormons). This would be akin to a court analyzing whether our good friend and champion Andy McCarthy’s prosecution of the Blind Sheikh violated the imam’s free exercise rights because the Sheikh was religiously obligated to do what he did. Absurd. (State imposed criminal punishments and civilly imposed restraining orders would pass muster even under the so-called Strict Scrutiny analysis: a compelling state interest and a narrowly tailored law to achieve the state interest.) I assume this court felt it necessary to go through this absurd exercise because it was ruling against Shariah and Muslim custom and wanted to liken it to Mormons and polygamy and American Indians and peyote, another sign of the PC gymnastics we as a defensive society/nation go through to impose our own mores/values (assuming they exist any longer in concrete form). Thankfully, the appellate court reached the right result.
On a lengthy note bene in the form of a short comparative law analysis: it should be stressed that this is another classic example where Islam/Shariah departs radically from the Judeo Christian tradition. Now, I cannot speak directly to Catholic canon on this subject or Christian Ecclesiastical law (although we do know that English common law, carried to the US, has long had a spousal rape exception—that is, husbands cannot be charged with raping their wives), but at least the Judeo portion of the Judeo Christian tradition is absolutely clear.
According to Jewish law, any form of coerced sexual relations between married couples is absolutely forbidden. (Talmud Bavli, Eruvin 100b: Rami b. Hama citing R. Assi further ruled: “A man is forbidden to compel his wife to the [marital] obligation, since it is said in Scripture: ‘Without consent the soul is not good; and he that hurries with his feet sins’†(Prov. 19:2). (Ba’ailei ha-Nefesh, Sha’ar ha-Kedushah; Code of Jewish Law, Hil. De’ot 5:4; Even ha-Ezer 25:2.)
Thus, even if the wife is not forced outright, as long as she is not amenable to intercourse, sexual relations are prohibited. (From authoritative Ashkenazi ruling on the Code of Jewish Law: Magen Avraham, Orah Hayyim 240, no. 7; from the leading Jewish mystical source, Kabbalah, Zohar, Bereshit 49b, 148b, Va-yikra 225b.)  The greatest Jewish legal authority, the Sephardic Maimonides (known by his Hebrew acronym to Jews as the Rambam), rules, “[Her husband] should not coerce her [to have relations] when she does not desire to do so. Rather, [they should engage in intercourse only] when there is mutual desire and pleasure.†(Maimonides’ Code of Jewish Law, the Mishne Torah, Hil. Ishut [Laws of Women] 15:17.)   Further, even if the wife is ambivalent about her desire, relations are forbidden. (Masekhet Kallah Rabbati 1:11; Tur, Orah Hayyim 240 and Even ha-Ezer 25.) Keep in mind that Maimonides is from the 11th-12th centuries and even the most recent of these (Code of the Jewish Law) is from the 15th-16th centuries. Old law is not necessarily bad law and “progressive law†is not necessarily good law. Shariah is not bad because it is old. It is bad because it is bad.
[An important digression: I make this latter point about old vs. new law because we often hear the criticism of Shariah that it is bad and primitive because it is “Medieval law†as if that is enough to condemn it. But by implication, the person who makes this criticism, is in effect embracing the “progressivist†or Hegelian teaching that Time/History is the one transcendence that saves us from the nihilism of relativism (all morals are relative except that a new moral is better than an old one), which allows the Leftist/Elites to clamor on about “progress†and the latest version of this, “hope and CHANGEâ€. And, if you give it a half-second’s worth of thought, you’ll realize why the progressivism of the Elite is tyranny [hint: there are no transcendent boundaries only time as a measure of progress]. It also impacts our constitutional jurisprudence. If old is bad simply, then granting the Supreme Court the authority (to which Marbury v Madison effectively opened the door) to “re-interpret†[read: re-write or amend by judicial fiat] the Constitution to mirror the “progress†and “change†in society must be a good thing. That kind of hollows out the originalist/conservative view of the Constitution, no?]
One of the most authoritative Jewish legal minds of the 12th-13th centuries, also Sephardic, was Nachmanides (common Hebrew acronym, Ramban), who wrote this stirring “Holy Letter†(Iggeret HaKodesh) on the question of conjugal relations:
When a man has relations [with his wife] he should not do so against her will and he should not rape her; the Divine Presence does not abide in such unions in as much as his intentions in opposition to hers, and she does not consent to his desire. He should not quarrel with her or strike her concerning marital relations. Behold, the Sages said ([Talmud Bavli] Pesahim 49b), “Just as a lion tears [his prey] and devours it and has no shame, so an ‘am ha-‘aretz (ignorant boor) strikes and cohabits and has no shame.†Instead, he should entice her with kind and alluring words and other appropriate and reputable things. He should not have relations with her while she is sleeping because their intentions are not united and they are not of the same mind. Rather, he should wake her and arouse her with conversation. The bottom line is this: when a man is sexually aroused he should make sure that his wife is aroused as well [before having intercourse].
[Note: I highlight the fact that the two legal and Jewish philosophical giants, Maimonides and Nachmonides, were Sephardic because they lived among Muslims at a time when Islam was ascendant and indeed when Islam was undergoing its own version of “reformation†in large parts of the Muslim world toward a greater adherence to Shariah. This serves to highlight the fact that Shariah, as a philosophic and legal matter, is of no kin to Jewish law/dogma.]
Now, what is interesting, is that there is a concept of a “rebellious wife†in Jewish law. But once again, like martyrdom, lex talionis, and other subjects I have written on in the way of comparative law between Shariah and Halachah, the Shariah authorities turned the earlier extant Jewish legal concept on its head and distorted it to the point of evil perversion (e.g., a Jewish martyr may not commit any of the three cardinal sins [idol worship, murder, sexual offense] and must be willing to die in passive resistance rather than commit one of these sins—but there is no martyrdom for death in battle or even self-defense—which if done justly are called heroic (the person is not a martyr but a gibor). Thus, the first thing to note is that in Jewish law, unlike in Shariah, there is a parallel concept of a “rebellious husbandâ€. (See, e.g., Code of Jewish Law, Even ha-Ezer 77:1.)  The principle at work in the “rebellious husband/wife†concept is that a marriage includes implied mutual promises, one of which is a free and loving conjugal relationship. Thus, according to most Jewish legal authorities, Jewish law empowers a couple (husband and wife equally) to negotiate almost every aspect of their relationship and, for example, set as a condition of marriage that they will have no financial responsibilities or household obligations to each other. However, they cannot set as a precondition to marriage that they will not engage in intimate relations. (Talmud Bavli, Ketubot 56a; Code of Jewish Law, Hil. Ishut 6:10; Even ha-Ezer 38:5 and 69:6. See, however, authorities that hold that a marriage is valid under some conditions even if there is an agreement to abstain from conjugal relations; see, Teshuvot Tashbetz I:94; Ramban to Baba Batra 126b; Havot Ya’ir to Rif, Baba Mezi’a VII, 54a.)
According to Maimonides, a woman who tells her husband that she no longer permits him to have conjugal relations (as a permanent condition) is classified as a “rebellious wife†(“moredetâ€). But now look at the difference between Jewish law and Shariah. In Shariah, this state of rebelliousness grants the husband the right to beat his rebellious wife and even to rape her with impunity. In Jewish law, according to Maimonides:
If a woman prevents her husband from having sexual relations with her, she is called a rebellious wife. [The court] inquires of her as to why she rebelled. If she said, “I am repelled by him and cohabitation with him is impossible for me,†[the court] forces him to divorce her [if she demands a divorce] because a wife is not a prisoner who must consort with a person whom she despises.
Mishne Torah, Hil. Ishut 14:8. Â Cf., Code of Jewish Law, Even ha-Ezer 77:2 (where the Jewish court attempts first to effect a reconciliation and then grants a divorce).
In no case is the woman who refuses to have conjugal relations with her husband forced to do so. Maimonides’ view in this matter is controlling. Thus, R. Moshe b. Yosef of Trani, known as Mabit, states that a woman cannot be compelled to submit to her husband because “she is unlike a captive woman who can be compelled to submit to sexual relations with a man she does not desire.†He compares her conjugal rights to those of food and clothing which her husband is also obligated to provide, and which she can also reject. He also points out that the Torah speaks of “her conjugal rights†(Bible, Book of Ex. 21:10) and not simply of “conjugal rights;†those rights are hers and not her husband’s. (Kiryat Sefer to Hil. Ishut 14.)
Finally, rape in Jewish law is clearly defined as a crime of violence and not one of the sexual crimes, as we now in “modern society†recognize it to be; specifically, ḥabalah (assault ). (Teshuvot Divrei Yeziv, Even ha-Ezer no. 77; see also Talmud Bavli, Sanhedrin 74a (where rape is analogized to murder.)) The civil penalties imposed for assault include damages for actual damages, pain, healing, lost wages, and shame. (Talmud Bavli, Baba Kama 83b) The various penalties imposed by Jewish law for assault do not exempt a husband who assaults his wife. While Shariah appears to permit a husband to beat his wife and even to rape her with impunity, and while the English common law might exempt a husband from rape, Jewish law does not.
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