A Muslim woman was denied a restraining order against her husband. He had beaten and raped her and all of it was medically documented. The judge had agreed with the crimes committed, but claimed that under Sharia law he could not issue the order because it was the man's religious right to beat and rape his wife. And this was AFTER they got divorced.
"The court believes that [defendant] 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."
That's not really an accurate summation. EDIT: And it's absolutely false that the judge said that "under Sharia law he could not issue the order because it was the man's religious right to beat and rape his wife". The original judge's ruling had
nothing whatsoever to do with sharia, but with how the judge felt that the statutes as written by the legislature should be applied.
As noted in the appellate court decision, the original judge felt that the sexual assault statues required "criminal intent", and ruled that the defendant's religious beliefs meant that such intent was not present. He didn't say the Muslim man had the "right" to rape and beat his wife, but that his religious beliefs meant that his actions were
assault, but not
sexual assault under the strict definitions of the law (as that particular judge interpreted the sexual assault law, at least).
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.
The appellate court pointed out that such an interpretation was
massively incorrect, of course, when they overturned his decision.
The trial judge found as a fact that defendant committed conduct that constituted a sexual assault and criminal sexual contact, but that defendant did not have the requisite criminal intent in doing so. His conclusion in this respect cannot be sustained. N.J.S.A. 2C:2-2c(3) establishes the principle that criminal statutes that do not designate a specific culpability requirement should be construed as requiring knowing conduct.
"A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist . . . . [N.J.S.A. 2C:2-2b(2).]"
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.
...
Because it is doubtlessly true that the laws defining the crimes of sexual assault and criminal sexual contact are neutral laws of general application, and because defendant knowingly engaged in conduct that violated those laws, the judge erred when he refused to recognize those violations as a basis for a determination that defendant had committed acts of domestic violence.
In this context, we note, as well, the Legislature's recognition of the serious nature of domestic violence, the responsibility of the courts to protect victims of such violence and its directive that the remedies of the PDVA be broadly applied. See N.J.S.A. 2C:25-18, quoted at length earlier in this opinion. The Legislature's findings and declaration provide an additional basis for the rejection of the judge's view of defendant's acts as excused by his religious beliefs, and for a recognition of those acts as violative of New Jersey's laws.
In addition, that reasoning, legally (and morally) flawed as it was, was only why the
domestic violence part of the suit was dismissed. The judge's stated reasoning for denying the protective order had nothing to do with the defendant's religious beliefs.
In this particular case, this court does not believe that a final restraining order is necessary under the circumstances. There's no need for the parties to be associated with one another. They are divorced now. They don't live together. They don't have to be together. . . .
[T]his was a situation of a short-term marriage, a very brief period of physical assault by the defendant against the plaintiff and it's now a situation where the parties don't live together, won't be living together and won't have a need to be in contact with one another.
Under those circumstances, the court finds that a final restraining order is not necessary to prevent another act of domestic violence. The Court will not enter a final restraining order.
The appellate court smacked down the judge for that fallacious reasoning as well, saying:
The judge's ruling raises several areas of concern that we regard as warranting reversal and a remand to permit the entry of a final restraining order. We construe the judge's characterization of the violence that took place as a bad patch in the parties' marriage and plaintiff's injuries as not severe as manifesting an unnecessarily dismissive view of defendant's acts of domestic violence. Although it is true that the November episodes spanned only three weeks, that period constituted approximately one-fourth of the parties' marriage. Moreover, we find it significant to the issue of whether a final restraining order should have been granted that the violence resumed on the very first night of the parties' reconciliation, and after defendant had assured the Imam that he would not engage in further such acts. We additionally note plaintiff's testimony that the significant bruising to her body shown on the photographs taken on November 22 merely represented the remnants of the bruising inflicted on November 1 and 16. In our view, the abuse that took place in this case was far removed from the domestic contretemps found not to constitute abuse in cases such as Kamen v. Egan, 322 N.J. Super. 222, 227-28 (App. Div. 1999); Corrente v. Corrente, 281 N.J. Super. 243, 248-50 (App. Div. 1995); and Peranio v. Peranio, 280 N.J. Super. 47, 54-56 (App. Div. 1995). 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.
Note especially the last sentence (EDIT: the appellate court, I should add, did have concerns that the judge's view that the defendant's actions were "culturally acceptable" colored his perceptions, despite the fact that the judge didn't actually say so in his denial of the protective order).
Luckily an appeals court overturned the ruling.
Absolutely. The original judge made a horrifically dumb series of rulings all around, and they were justly, firmly, and rather definitively smacked down by the appeals court.
So, as an example of the dangers of encroaching Islamization of the West, this particular case seems rather lacking.
we are sooooo doooomed.