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. 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....
The judge found from his review of the evidence that plaintiff had proven by a preponderance of the evidence that defendant had engaged in harassment, pursuant to N.J.S.A. 2C:33-4b and c, and assault. He found that plaintiff had not proven criminal restraint, sexual assault or criminal sexual contact. In finding assault to have occurred, the judge credited, as essentially uncontradicted, plaintiff’s testimony regarding the events of November 1, 16 and 22, 2008. The judge based his findings of harassment on plaintiff’s “clear proof” of the nonconsensual sex occurring during the three days in November and on the events of the night of January 15 to 16. He did not credit plaintiff’s testimony of sexual assaults thereafter, since there was no corroboration in plaintiff’s complaints to the police. [Footnote: In response to an objection by plaintiff’s counsel, the judge later recognized that the police report upon which he relied in finding no corroboration for plaintiff’s claims had not been admitted in evidence because of its hearsay nature. However, he declined to modify his ruling.]
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, writing (among other things):
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.
The appellate court remanded for entry of a restraining order. Note that the woman was pregnant with the couple’s child at the time of the initial hearing, so that despite the divorce it seemed likely that the man and the woman would remain in contact; this is legally relevant because restraining orders are designed to prevent future harm, not to punish for past misbehavior. The opinion is quite detailed both in its summary of the factual allegations and as to the legal analysis; those who are especially interested in the case may want to read it closely.
rob says:
This appears to be a case of mistake of law is not a defense. Even if he thought he was allowed to have sex with her without her consent, he intentionally had sex with her without her consent (or whatever the precise elements are), and thus he intentionally raped her.
Related, I seem to recall from crim law a case where a man unsuccesfully argued that he didn’t understand the criminality of his conduct, and thus he fell under the M’Naughten insanity defense, because his religion taught that he was justified, and indeed obligated, to kill an unfaithful spouse. rob(Quote)
ruuffles says:
Is this what we’re calling rape now? Non-consensual sex? Oh the PC!
(A search of the opinion shows one hit for “rape”) ruuffles(Quote)
MCM says:
Sigh. Whatever happened to freedom of contract? MCM(Quote)
John Jenkins says:
It’s not “rape” in New Jersey. It’s “sexual assault” (12 times). Rape only appears in a narrative description of the Imam’s testimony. John Jenkins(Quote)
Steve says:
I think Rob has it right. I remember in Crim Law discussing various theories of the crime (does an honest and reasonable belief in consent vitiate mens rea? How about an honest but unreasonable belief in consent?) and I don’t really know the law on this in every jurisdiction. But here, the defendant didn’t believe the victim had consented, he simply believed he had the right to proceed without her consent. Ignorance of the law is no excuse, guilty as charged. Steve(Quote)
Chris Travers says:
I’m much more interested in the possible intersection in this case of cultural expectations of marriage and family law. Does NJ recognize a doctrine of constructive abandonment? If so, is sexual activity, grudgingly taken in an attempt to forestall an at-fault divorce proceeding non-consentual? I notice that “contrary wishes” is used to mean “not consentual” in this opinion and wondering how this would impact other areas.
Moreover I have to ask, what does NJ case law say about the intersection of cultural expectations and constructive abandonment? Since the plaintiff apparently told numerous people (including witnesses from both sides) that she really did not want a divorce, would it seem plausible that a variation of this defence might have been more successful, namely that given the cultural climate of the marriage, she consented DESPITE her contrary wishes? Chris Travers(Quote)
tvk says:
Agree with Rob. Why is this even a close case? Or is the take home that we have some really dumb trial judges out there who failed 1L criminal law? tvk(Quote)
Chris Travers says:
(I.e. if “you will have sex with me any time I ask” is seen culturally as a basic marriage obligation and hence part of the mutual expectations of the marriage contract in its inception, does refusal to have sex become constructive abandonment?) Chris Travers(Quote)
Chris Travers says:
This wasn’t criminal law? Or at least this case had a “plaintiff.” Chris Travers(Quote)
Gordon Langston says:
We need accountants so bad we’re giving work visas to Moroccans? Gordon Langston(Quote)
ReaderY says:
A difficulty is that the Supreme Court has struck down spousal consent laws before where they implicated histories and traditions of choice in reproductive health freedom.
If the State cannot require spousal consent as a hook to get itself involved in citizens’ private decisions regarding the historical and traditional freedom of choice about terminating a pregnancy, what justification is there to require spousal consent to interfere with historical and traditional freedoms of choice regarding the equally private decision to inititiate one?
If we look to 19th century practices to determine whether the state can today place limits on freedom of choice in privacy matters, as the Court did for the termination decision, there can be one and only one answer on the constitutionality of state interference in the pregnancy initiation privacy component of reproductive health freedom. ReaderY(Quote)
ReaderY says:
After all, if Roe v. Wade means anything, it means that just because a state chooses to label a private matter “violence” doesn’t make it so. Whether it is or isn’t has to be regarded through the lens of this Nation’s history and tradition of privacy. ReaderY(Quote)
Chris Travers says:
So you think constructive abandonment doctrine is unconstitutional everywhere it is recognized? Furthermore, can adultery be grounds for an at-fault divorce? Chris Travers(Quote)
rob says:
There can be constructive abandonment creating fault for divorce without simultaneously eliminating the need for concurrent consent for sexual relations.
Think of it as this –> she breached the promise to consent to sex that she made when she got married, but the remedy for such a breach is a divorce or separation action and not self help.
Re this not being criminal law, that is right, but I don’t think that should change the analysis for his intent to commit a sexual assault. Even if we use a tortious battery standard, he still intentionally touched her in a way he knew she would find offensive. rob(Quote)
Jatinder says:
The trial judge got it right. A restraining order is not a punishment for past behavior, but designed to prevent future behavior. Since Defendant believed that in his religion he has the right to rape his wife, he did not violate his religious beliefs by doing so. However, now that he is divorced, it would violate his religious beliefs. Thus, the judge found that past conduct pre-divorce is not an indicator of future behavior.
I do not support rape on religious or other grounds. But the trial judge’s ruling did not say that a man can rape his wife if his religion allows it. The judge merely considered the Defendant’s religious beliefs in trying to predict future behavior to decide whether a restraining order is necessary. Jatinder(Quote)
Laura Victoria says:
Yes, the takehome is that this judge is an illiterate and illogical moron, and dependng on where you practice, a huge percentage of the morons you deal with are that way. I’m not a believer in the “all’s well that ends well on appeal” school. That second highlighted quote about what this scumbag thought or didn’t think he was doing is not even coherent. The “forgetting” that the police report wasn’t in evidece, but still not changing his ruling is another classic that reminds me of my own favorite county court dumbo in the Colorado Rockies.
Anybody who thinks people worried about encroachment of Sharia law are a bunch of yahoos, better think again. Trial court is the end of the road in the vast majority of cases. That this idiotic judge even considered this defense is scary. Send this loser back for sex on the Marrakech Express, and buy a ticket for the Judge. Laura Victoria(Quote)
Chris Travers says:
There’s another element in terms of the criminal law angle here and that has to do with the fact that this was a badly crafted defence of a possibly more interesting issue.
The witnesses on both sides discussed the plaintiff’s desire to make the marriage work (the mother-in-law said she said she’d do anything to avoid the divorce). Certainly “this is acceptable in my culture” is no defence but “she’s expected to consent in our culture and therefore she did despite contrary wishes because she knew I’d divorce her if she didn’t” would seem to me quite possibly in bounds but IANAL.
I guess the question is, how would the law work if someone in a marriage felt unable culturally and/or religiously to actively withold sexual consent? Are contrary wishes enough? Or does it require some sort of clear and objective lines? Chris Travers(Quote)
whit says:
in my state, it is NOT illegal for a spouse to engage in sexual intercourse with the other spouse WITHOUT consent
this distinguishes from sexual encounters between those who are not married where sex w/o consent is (technically ) illegal
an example would be where one partner was too drunk to legally consent. if the parties were not married, this would technically be sex w/o consent and thus illegal
if they were married, the sexual contact must be AGAINST consent not merely w.o it. iow, it’s implied, like in intoxicated cases between married people . if you aren’t married to your partner, and they are too drunk to consent, boom — it’s illegal. again, TECHNICALLY whit(Quote)
Chris Travers says:
1) I was looking at the opinion as such (it discusses nonconsensual sex)
2) Presumptions of consent might be different for spouses.
But the court doesn’t ask if she later consented to the sex or the opinion doesn’t mention it. So it’s hard ot know if it was fully against consent. “I’ll call the imam and divorce you then” might induce a withdrawal of the refusal to consent. Chris Travers(Quote)
Chris Travers says:
Also worth noting that he divorced her under acceptable religious practices, so there is no question as to whether the marriage is still religiously in force in his eyes. Chris Travers(Quote)
Chris Travers says:
I’m interested by your use of “technically.” Does this mean that’s not really enforcible? Or that it’s not generally enforced? Chris Travers(Quote)
whit says:
well first of all, complaints aren’t that commonly made. realistically speaking, a very high percentage of “couplings” involve one or both of the parties being legally intoxicated. it’s viewed very differently when it appears that one party intentionally drugged the other party without their knowledge or had sex with an unconscious person, but the reality is people who are drunk as hell (and in that case if both people are drunk, NEITHER can consent to the act... technically) frequently engage in sex.
another problem is that if the person WAS legally intoxicated, then their account of the incident IF they sought prosecution would often be pretty spotty, their recollection would be pretty poor, and a defense attorney would be able to rip em pretty good
IF your claim is that you were too intoxicated to consent, then your judgment, perception, memory, etc. are all impaired also. that’s how intoxication works.
i mean, seriously, i would bet that on any given saturday night in the city of seattle, there are scores, if not hundreds of people who are engaging in sex with people they just met, while intoxicated to the point that they could not consent.
i am in no way saying that it is ok for somebody to take advantage of somebody else who is intoxicated.
whit(Quote)
Laura(southernxyl) says:
Chris, did you really find the MIL to be believable?
I think we have to realize that other cultures may be unimaginably different from ours. Remember that 13-year-old girl in Yemen whose husband raped her to death. Her mother pressured her to have sex with him b/c otherwise she would shame the family. Does the fact that she stayed with him b/c of pressure from her family and having nowhere else to go mean that that was consensual? Can coerced sex not be rape, ever?
The plaintiff in this case went into an arranged marriage at age 17 with a man she did not know. If we do believe that she would do anything to make the marriage work, I think we have to remember that her culture is very different from ours — we don’t do that to our teenage daughters — and it could be that life as a divorced pregnant woman in her culture is worse than being raped every day. If he forces her, in the face of that, I don’t think her staying with him implies consent.
It’s one of the lessons we ought to be learning from all the multiculturalism that gets crammed down our throats, and ironically it’s one that seems to escape us too often. You can’t look through the lens of middle-class America at everybody in the whole world, and judge their behavior by what seems reasonable to you. Well, some things you can. I’ll bet even many Moroccan men would say the defendent here was totally out of bounds. He raped her because he wanted to. The fact that he is no longer married to her doesn’t mean he’s no longer a rapist. Laura(southernxyl)(Quote)
Cornellian says:
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.
What, no Religious Freedom Restoration Act argument? Cornellian(Quote)
Infidel says:
This (marital rape) is specifically condoned by the Quran (2:223):
Infidel(Quote)
whit says:
imo, the overriding point is this. when you enter a country, you are bound by THEIR laws. i don’t care WHAT your culture, or your former nation’s laws say.
in mexico, for example, last i checked, it’s legal to possess personal amounts of cocaine (recently legalized). in the US it isn’t.
if you come to the US, you obey OUR laws, and if i go to mexico, i obey THEIR laws. whit(Quote)
Laura(southernxyl) says:
I agree, Whit, but I think Chris is arguing that what happened between them might have been consensual, because her MIL and some other people said she didn’t want a divorce.
You can either have cut-and-dried, if she says “no” it’s rape, period.
Or you can have “why did she stay with him, if she wasn’t consenting”.
If you pick door number 2, then you are obligated to fully answer the question, not just throw it out there as a rhetorical argument supporting the man’s right to do whatever. Laura(southernxyl)(Quote)
Chris Travers says:
Certainly if all that is there is “no” that’s clearly rape (which quite frankly he was never charged with afaics but rather a lesser offence).
Well, if she says “no” but later after he says “ok, I’ll call the Imam and we’ll get divorced” she says “oh I guess we can have sex, but I’m not happy about it” that strikes me as consent while at the same time expressing desires to the contrary.
All I’m saying is that the description of the court documents don’t necessarily show it’s without consent. She could have given in but in a passive aggressive sort of way. All manner of things could have happened. Simply expressing desires to the contrary is too vague to tell yet this is repeatedly used as a way of expressing a lack of consent.
Furthermore, consider this. If he threatened to sue her for divorce on constructive abandonment grounds, i.e. they both agreed that it was fundamental to the marriage that he could demand sex from her whenever and then she refused, and if the court accepted this theory, then that would put her at fault, possibly ending up with quite a bit less spousal support, a smaller share of property, etc. Yet to my knowledge merely threatening to go to court and have the court decide if this is constructive abandonment is not the sort of intimidation that would abate consent.
If the court had said “the trial court found that all these issues were not consensual” then that would be different.
On the whole, IN THIS SPECIFIC CASE, I don’t think there is much doubt that there’s a lack of consent. The other assaults I think largely establish that. However, could culture questions play into this question in big ways in the future? I think it could. Chris Travers(Quote)
tvk says:
Chris Travers,
Re the “not criminal case” point, the opinion says that “the judge did not find sexual assault or criminal sexual conduct to have been proven.” So although the case itself is not a criminal one, the criminal law definitions still seem to have been invoked. We are basically talking about what constitutes “consent” and “intent” for rape, and those are studied in 1L criminal law.
You raise a much more plausible way in which the husband could have spun the facts. Sure, if the husband had intimidated the wife into giving consent by non-violent threats such as threatening divorce, social ruin or even eternal damnation, our basic legal framework would ask whether the purported consent was vitiated by duress–which under the narrow understanding of duress in current law would return an answer of “no.” But that is not how the story got framed to the trial judge, and it does not seem to be how the trial judge analyzed it, even implicitly. tvk(Quote)
Randy says:
“They were wed in Morocco in an arranged marriage on July 31, 2008, when plaintiff was seventeen years old. The parties did not know each other prior to the marriage.”
Thank goodness we have NOM and the various religions fighting to preserve this type of traditional marriage. Randy(Quote)
whit says:
fwiw, i have known/read many a feminist who make this argument, that being “pressured” etc. into sex is and should be “rape”. personally, i think that’s ridiculous.
Boyfriend: “i’m tired of third base, if you don’t have sex with me, i’m leaving you”
Gf: “ok”
oh noes! rape!
i don’t think that the ‘powers of persuasion’ vitiates consent. whit(Quote)
Chris Travers says:
This was my point. The issue is that if the physical assaults were taken at face value (no pun intended), it’s pretty clear that it was at least arguably non-consensual (for reasons of physical intimidation more than anything else). Again, my question was raised to the larger issue of cultural defences and beyond the case at hand. It seems to me that the appeals court, in the context of larger questions of NJ family law, has not foreclosed such defences at all but rather simply rejected one extreme form of such a defence. It seems to me that subtler versions of the same defence, “she ultimately consented because she realized it was her religious and marital duty according to our culture even if she expressed contrary wishes and she wanted to keep the marriage together and knew I’d divorce her otherwise” would seem to put things into a very different place. Chris Travers(Quote)
Chris Travers says:
Completely ridiculous. I wonder if people who propose that have actually thought through the issues. Chris Travers(Quote)
whit says:
it’s also behind a lot of the bogus statistics you read about “sexual assault” and dating violence. some surveys actually had the question (im quoting from memory here) “did you ever get pressured into sex and end up having sex against your wishes”? if that answer was yes, that was counted as “dating violence” etc.
i think a guy who pressures a girl into sex is probably a jerk. but it’s not a crime, it’s not ‘dating violence’ or any such rubbish.
unless we are willing to say that car salesmen should be arrested for car sales violence. whit(Quote)
Anatid says:
Depends how we define duress.
“If you don’t have sex with me, I’ll leave you.”
“If you don’t have sex with me, I’ll leave you, and kick you out of the apartment, because it’s in my name.”
“If you don’t have sex with me, I’ll leave you, and kick you out of the apartment, and keep the entire contents of our joint bank account.”
“If you don’t have sex with me, I’ll leave you, kick you out of the house, keep the entire contents of our bank account, and refuse to pay for the kids’ tuition.”
“If you don’t have sex with me, I’ll kick you out, take all your stuff, and tell everyone in our highly judgmental community that it’s because you were having an affair.”
“If you don’t have sex with me, I’ll nag you every single night for hours, keeping you systematically sleep-deprived for months on end.”
“If you don’t have sex with me, I’ll beat you.” Whether or not the laws in all states reflect it, emotional pain and the pain suffered from being ostracized by a loved one or community are just as painful as physical pain. The brain doesn’t differentiate between them.
I’m not arguing one way or the other, but considering that duress is tricky and “free will” is malleable ... Chris Travers and whit, can you each offer some examples of cases that you would and would not consider to be duress in that grey area? Anatid(Quote)
whit says:
i’m not versed enough in the concept of duress to give you an informed answer. and god knows, i would NEVER give an uninformed one :)
i will say that the last example is criminal. if you tell somebody you will assault them if they don’t have sex with you, that’s a crime. (assuming it wasn’t obviously a joke, etc.)
so, while i can’t speak to the legal concept of duress, i can tell you the last one is criminal.
the other ones would be good cause to divorce the guy/gal if you are married to him/her, or walk the hell out if you are not.
i’m not even going to get into your claim that the brain doesn’t differentiate between physical and emotional pain. that’s kind of ridiculous. i’ve had gallstones, and i’ve had my heart broken. my brain had no problem telling the difference. do you mean they result in similar brain patterns, or what exactly? anyways, it’s largely irrelevant imo whit(Quote)
Anatid says:
The insula, the region of the brain associated with the abstract experience of pain, will activate for all kinds of pain. Associated emotions and their substrates, like the low oxytocin levels of loneliness or the release of substance P upon visceral pain, as well as the perceptual filters each individual experiences, interact with this but are their own phenomena.
“Doesn’t differentiate” was a poor word choice on my part, I apologize. Perhaps a better way to phrase is are that both are legitimately painful. Anatid(Quote)
Charles Jannace says:
Call me naive or old school but I have a couple of thoughts on the facts of this matter. I cannot fathom “having sex” with someone, stranger or otherwise, with someone who is crying. Where is the pleasure to the one not crying in that? It seems to me to be a priori rape in every instance. Indeed, I surmise that the entire “marriage” was one continuous rape from beginning to end. The juvenile “wife”, irrespective of whatever verbal preparation she received from her family and Imam (the majority of whom have likely engaged in this generational practice) before the marriage ceremony (often performed by proxy) had her first sexual encounter with a total stranger. I bet that was a thriller. I suppose that she should have been thankful that it did not occur under a boardwalk or behind the bushes. The whole concept of marriage in that culture is a sham perpetrated on unwitting image bearers of God perceived by the “husbands” as chattel. Animals treat each other better than this. Charles Jannace(Quote)
geokstr says:
Please. Those on the left don’t even think it’s illegal to illegally enter this country, probably because they will then become reliable Democratic voters.
I really can’t believe that those same leftists are taking the side of this guy. Before the dinosaur feminists all became Lewinskys and had to issue the “one-grope” proclamation (for Democrats only), they would have called for a perpetual sexual moratorium over something like this. But, since it’s just Muslims, it’s OK now. We’ll soon see the “less than 100 Muslim non-consensual sex acts is not rape-rape” rule. geokstr(Quote)
Woman Lawyer from NJ says:
No means no, people. If an American Christian or Buddhist did what this guy did, you’d have no problem calling it rape. This isn’t about accommodating Islam. These men need to learn to adjust to our values, and one can only hope that there will be no accommodating rapists in the US. Woman Lawyer from NJ(Quote)
Laura(southernxyl) says:
Chris, do you realize that you are talking about a seventeen-year-old girl, raised in a Muslim household in Morocco, living in a foreign-to-her country, in an arranged marriage? You’re talking about her options like she’s a 30-year-old American.
Have you sincerely tried to put yourself in her place and imagine being that 17-year-old girl before you make these pronouncements? How well do you think you did? Laura(southernxyl)(Quote)
Laura(southernxyl) says:
Also, if the law allows for “consent while expressing desires to the contrary” for the purposes of determining whether rape has happened then the law is an ass. Laura(southernxyl)(Quote)
David Schwartz says:
If you want to argue that she was raised in a way that rendered her unable to withdraw consent, that supports his position. She was unable to actually refuse consent because she had no idea she could and he was unable to recognize any attempt at withdrawing consent because he understood the marriage to be consent only revocable through divorce. Married people are generally entitled to presume their partners consent. David Schwartz(Quote)
Bob says:
How about another defense: that by becoming and/or remaining Muslim, the wife was already consenting to what would otherwise be involuntary intercourse? Then it’s like a case of bondage fetish, where renouncing Islam is the equivalent of the “safe” word. Bob(Quote)
Laura(southernxyl) says:
This is an excuse for rape? She was unable to say “no” so whatever he did could not have been rape?
In an arranged marriage? Entered into by a person we would consider to be a minor?
I’m going to ask you something, David, in all seriousness.
Here are some possible rape scenarios.
Scenario 1: A modestly dressed virgin is walking down a public sidewalk in broad daylight when a stranger knocks her in the head, drags her behind the bushes, and penetrates her while she is unconscious.
Scenario 2: ...Do you acknowledge the possible existence of a scenario 2? Even if a man pulls a knife on a woman and says consent or I kill you, she can always say “no”, right? Laura(southernxyl)(Quote)
Sharia in New Jersey: Muslim husband rapes wife, judge sees no sexual assault because Islam forbids wives to refuse sex « Dangers of Allah says:
Arthur Kirkland says:
One of the larger faults among many or even most organized religions is their treatment of women. The American issuance of an exemption from societal standards for conduct claimed to be religiously motivated compounds some of the problems, for courts and for victims. Arthur Kirkland(Quote)
Ken Arromdee says:
I think the answer has to be “yes”, because if it wasn’t true, then we wouldn’t even consider the arranged marriage to be a valid marriage at all. Once we decide, as a society, that we will accept such marriages as being real marriages, we really don’t have much choice but to treat them like other marriages.
If the power imbalance in such marriages makes it impossible for the woman to consent, then why are we even considering it a marriage at all? Why don’t we refuse to let anyone get a marriage license or have a foreign marriage recognized unless we determine that consent is possible in the marriage? And “is the marriage arranged?” and “would the woman be without family and friends if she left the marriage?” would of course score points towards not being voluntary.
There’s something to be said for doing that, but I don’t see how it could work, in most cases. Ken Arromdee(Quote)
Ricardo says:
Hmm. Legally, I don’t think New Jersey has a basis for distinguishing between arranged and non-arranged marriages. Since the marriage was entered into abroad and it legal according to Morocco law, New Jersey probably does not have much choice but to treat it the same way it would treat a domestic, in-state marriage. The age of consent in NJ is 16 so that can’t play a role either.
That said and without having read the opinion, it seems reasonable to me to impose community standards. The girl resisted and was crying: to a reasonable person, that means she did not give consent. Consent can be a tricky issue sometimes but not here. Ricardo(Quote)
Laura(southernxyl) says:
Please remember that
was originally stated in the same paragraph as, and therefore presumably the context of,
I’m going to go way out on a limb here and say that in a situation where consent CANNOT be withdrawn, all sex should be considered rape unless consent is actively proven. That’s how we have statutory rape laws in this country, and we even leave out the “unless” part. Laura(southernxyl)(Quote)
Laura(southernxyl) says:
Thank you for saying that. I find the fact that there are people right here actively arguing otherwise appalling. Laura(southernxyl)(Quote)
Bama 1L says:
Please consider where you have placed yourself. At common law it was held that the wife consented, by entering the marriage, to vaginal intercourse with her husband and could never revoke that consent. So was all sex within marriage presumptively rape when marital rape was not legally recognized?
And we can quote the Bible and Christian authorities for the proposition that the wife owes the husband sex, and fails in her duty as a wife if she refuses it. (And vice-versa; the marital debt is owed both ways.) That doesn’t mean the husband can rape the wife, but what exactly does that statement mean?
How can we consider this occurrence so barbarous, inconceivable, and determined by an unfathomably alien culture when it is exactly what “our” (American, Christian, common-law) courts would have upheld in many of our own lifetimes? Bama 1L(Quote)
Bob says:
Maybe in Islam you’re supposed to cry and appear to resist. Bob(Quote)
Laura(southernxyl) says:
Bob, I don’t think so. I’ve read, and continue to read, blogs written by devout Muslim women. They love and are occasionally irritated with their husbands but they never suggest that they think their husbands are supposed to rape them, or that they think they’re supposed to pretend to be raped. Laura(southernxyl)(Quote)
Laura(southernxyl) says:
Bama, I don’t think it’s ever been the case that a person in a marriage could NEVER say “no” to sex. The biblical thing you’re talking about doesn’t mean the man gets sex every single time he wants it, regardless of whether his wife is sick, injured, exhausted, has just given birth, etc. Do you think Jesus would have said he ought to even consider asking her under those circumstances? Laura(southernxyl)(Quote)
Chris Travers says:
Ok, to be clear....
I think in context with the domestic violence, one can argue about whether there was physical intimidation.
However, let me ask you about such a dialog. Tell me if this is rape or not:
Husband: “I want to have sex tonight.”
Wife: “Not tonight.”
Husband: “Ok. I’m taking the kids to my parents. You’ll get served with divorce papers in the morning.”
Wife: “please don’t do that! Ok, I’ll have sex with you, but I’m really not happy about this.”
So they have sex.
Is that consent? Does it matter what the perceived power differences or ramifications of a divorce would be?
I didn’t see in the opinion any discussion of resistance other than trying to sleep on the other side of the bed before her husband said that under Islamic views, she had to have sex with him. Now, what he said could have been interpreted as a physical threat, in which case, whether she assented to the suggestion could have been irrelevant.
In any event the trial court held that sexual assault was not proven and the appeals court did not reverse that part.
Outside of physical intimidation or threats of otherwise illegal retribution, I think you run into fundamental vagueness issues. In some of those cases, they may be threats of otherwise illegal retribution or maybe not. However the reason I asked the constructive abandonment question is because one could very possibly say,
“If you won’t have sex with me tonight, I’ll divorce you for constructive abandonment, and hopefully I can show you are at fault for the divorce and I’ll gain most of our shared property and full custody of the kids.”
I don’t know any rational person who would even consider saying no to that. In many ways that is quite a bit more severe duress than any of your examples except for the beating one. But should it ever be illegal? Keep in mind that even where sex on demand isn’t seen as fundamental to a specific marriage contract, constructive abandonment doctrines generally do have the effect of allowing a spouse to sue the other spouse for sex or in the alternative an at-fault divorce where the non-sexually-consenting spouse loses significant benefits.
Also did I read wrong or is constructive abandonment the most common cause for divorce in New York courts? Chris Travers(Quote)
Laura(southernxyl) says:
YES. DUH.
Chris, are you trying to be funny about this? You’re still saying this wasn’t rape? Laura(southernxyl)(Quote)
Chris Travers says:
Ummmm.... What I said here was that 1) We don’t know how she reacted towards that last statement (she could have grudgingly consented) but 2) what he said could have been taken in that context as physical intimidation and hence rendering that first issue irrelevant. The trial court found that it was not proven that it was sexual assault at least for the civil dispute, and the appeals court didn’t reverse on that part (the only issue where the appeals court reversed was regarding a final injunction). The obvious defence is “after hearing me cite religious/cultural/marital duties, she grudgingly consented meaning her previous actions didn’t make it forced.”
Now, I have to ask: If it couldn’t be proven in civil trial, how does one expect to prove it in criminal trial to a much higher burden of proof?
So you really think that threatening to go to court to sue one’s spouse for divorce if he/she won’t have sex abates consent? Does that mean that every time a court sides with one party in a constructive abandonment claim (arising from lack of sexual consent) that the court is condoning rape? Chris Travers(Quote)
Chris Travers says:
The issue is that in many states, one does NOT have a fundamental right to refuse sexual relations with one’s spouse. The issue is not that the spouse is allowed to rape him/her, but rather a question of remedy as was pointed out. In other words, the spouse still has to respect rules of consent to some extent (though again, there may be different presumptions based on marital status) but may pressure the other spouse, through legal action, to engage in sex. If that would be rape, then the courts of New York State have very unclean hands.
In these states, the spurned spouse can sue his/her spouse for sex with the provision that if this is not provided, the spurning spouse will be found to be at fault in divorce, possibly lose custody of kids, lose spousal support, property, etc.
But constructive abandonment doesn’t end there. It can also involve whatever are considered by the parties at time of marriage to be breaches of fundamental duties to the marriage contract. Here’s where I see cultural issues coming in. If there’s a cultural expectation of sex-on-demand, then refusal to have sex when demanded might well subject a woman to immediate at-fault divorce proceedings along with possibilities of additional damages in terms of custody, support, property, etc. Chris Travers(Quote)
Laura(southernxyl) says:
So after he pinched her so that she was swollen and bruised, and she tried to leave but he had locked the door, and she tried to move away from him on the bed and he wouldn’t let her, maybe she consented?
Just stop now. Laura(southernxyl)(Quote)
Chris Travers says:
Laura:
My comments were more in relation to more general cultural questions and the fact that the trial court and the appeals court used, IMO, the wrong questions for assessing consent.
Yes, I think that the assault immediately previous abates consent even if it were grudgingly given because it adds a question of physical intimidation. However, this doesn’t answer the larger questions which is how spousal consent and culture interact. In particular, if there had been no physical assault, and if he had just threatened to leave her penniless, then I would reach a different conclusion.
Hence this does not necessarily apply to the OTHER alleged sexual assaults.
You haven’t answered my questions about the idea that in some states one spouse can use legal pressure to try to obtain sexual relations from the other. In the future, I think that’s where the cultural issues are going to really come into play. Chris Travers(Quote)
Ken Arromdee says:
She certainly could have consented at this point if given threats that are not physical. He could have threatened her with divorce, for instance, and this threat might have been enough to convince her to consent even though she was bruised. Consenting under the threat of divorce is not rape. Ken Arromdee(Quote)
Chris Travers says:
The only question is whether “I want to hurt your flesh” would be taken as a physical threat in the context of the assault that had just happened. That’s probably where I think that’s what’s in the record that would allow me to support at least to the preponderance of evidence that one specific count. The others seem to be far more questionable esp. the one where they had sex after he said he wanted a divorce. Chris Travers(Quote)
Nick Reynolds says:
They probably work for CAIR or some other “peace” organization. Nick Reynolds(Quote)
Ben says:
Marriage vows should be considered consent, especially when divorce is readily available. If marriage isn’t a decisive defense against charges of rape, then no one is ever safe from rape charges . So-called “consent” can be granted and withdrawn on a second-by-second basis. And a sex act will be considered both consensual and non-consensual because it took more than 2 minutes and consent changed briefly between the second and third minute.
The government has made a poor choice putting the police in between husbands and wives. If our culture agrees with the government here, our culture has gone in the wrong direction and forgotten what rape really is.
The husband in this case seems like a bad guy. File assault and domestic violence charges against him. Reserve rape charges for rapists, not husbands. Ben(Quote)
Brian Macker says:
If someone invents a religion (like Islam) where rape is allowed of any female non-member, then under this judges ruling they could go around raping women at will if they honestly believe in the religion. What rapist wouldn’t believe in such a religion? It’s a stupid ruling to say the least and I’m glad it was overturned. Brian Macker(Quote)
Elizabeth Bartley says:
Note that the (seventeen-year-old) wife found the sex physically
painful because the area was abraded. Do I understand correctly
that some of you are proposing that she shouldn’t be able to
withhold consent until she heals?
If the husband had an STD, and the wife doesn’t, should she be
allowed to withhold consent until he’s cured?
Note that the girl had no local contacts and no way to get home. Elizabeth Bartley(Quote)
Mark Well says:
Forest, trees... Do you want to live in an America where Muslim men can force sex upon their wives? If so, pity the Defendant. If not, use the law to put his sorry butt where it belongs, in jail. By the way, if this rapist has a valid defense, then that is the single cogent argument I have ever heard in favor of converting to Islam. Shame on the trial judge. Mark Well(Quote)
Chris Travers says:
It’s worth noting here that the major catalysts for recognizing spousal rape were rather violent cases. I think those cases, rape prosecutions make a great deal of sense. There are still other questions but in terms of a general police power, violent rape (as is at least arguable in one of the sexual assaults in this case) of a spouse should probably be subject to prosecution.
The original sense of the word was closer to “bridal kidnapping” and consent was not a defence because the injured parties were the woman’s parents and they most certainly didn’t consent (there’s a lot of evidence that in the ancient world a LOT of bridal kidnapping was done in cases where the bride consented and wanted to marry someone her parents objected to– I can provide cites if you like). When we talk, for example, of the Rape of the Sabines, we’re not talking about forced sex (although the initial kidnapping there was not consensual).
Obviously if people have a right to marry who they want anyway, then bridal kidnapping no longer is a good thing. In cultures where marriages are usually arranged, however, I see no problem with it (it’s still recognized in India, I think, though I think bridal consent is a factor in how well it is respected).
The point is that cultures change over time, and hence law must change as well.
I think that the issue of withdrawn consent can be be best handled via a scienter requirement which, given the mind-altering effects of being engaged in a sex act, would have to allow for some leeway. Chris Travers(Quote)
Ben says:
She should be able to “withhold consent”. She shouldn’t be able to bring the police, and the government, and the courts into it as if it were “rape” and not some sort of routine domestic violence matter.
Rape is a gravely serious offense (isn’t it?). You really want this guy in prison for 5 to 10 years for some weird cultural misunderstanding and/or as some sort of gender politics trophy? How is that justice?
Justice would be something like 30–60 days (maximum) for mistreating his wife and probation with a prohibition on contact with this woman. Ben(Quote)
Chris Travers says:
Obviously she should be able to. The question I’m asking though is different: how does one determine if she did, in fact, withhold consent in each of these cases? Is it enough to express “wishes to the contrary?” Can one consent and still express wishes to the contrary?
I’m sure that spousal rape is probably impossible to prove nearly all the time (outside of the violent cases which prompted it’s recognition to begin with, such as where doors were bashed in, etc), esp. if the defence is “she consented.” But the bar here sounds dangerously low. I would have preferred more attention paid to the case where there was a physical altercation immediately before and whether the combination of his remarks and the immediately prior assault was an issue of physical intimidation. Chris Travers(Quote)
Chris Travers says:
So question: If someone in the same situation consented because the spouse threatened divorce, would you say that was rape? After all, that would put the girl in a very bad situation.
Again, to be clear, the cases where there was a physical attack immediately prior combined with statements which could have been taken as implicit threats, I think there might be a case though a very difficult one to prove. In the other cases, merely saying it’s not consensual doesn’t make it so, and certainly that’s when you have to prove it beyond a reasonable doubt. Chris Travers(Quote)
Vinny B. says:
It is amazing to me how courts can discriminate against Muslims so blatantly. Courts should not be judging the validity of cultures and deciding whether their values and customs should be respected. I thought with the election of Obama, who was raised in a Muslim country, Americans had rejected Bush’s 8 years of telling people to hate Muslims. Guess it is going to take a lot longer than I thought. Vinny B.(Quote)
Ben says:
In other words, if you haven’t passed the Bar exam, there’s no way to know whether anything you do might cause you to end up in prison. Next time you have sex with your wife, you better have an attorney present and also videotape it. Ben(Quote)
jjo8 says:
If this had been a case concerning a Christian couple this thread would be about the impending takeover of America by right-wing Bible-thumpin’ fundamentalist “Christianists”. Apparently rape in the name of Allah is cool.
It would seem that Vinny B. hopes to turn the clock back to the 7th century. Non-Muslims have been convicted on evidence far weaker than this. jjo8(Quote)
Neo says:
It is amazing to me how courts can discriminate against Muslims so blatantly, just the same way they discriminate against those poor Mormon polygamists, even when it’s all consensual. Neo(Quote)
Ali says:
How are we concluding that the girl consented to sex? Just because she didn’t successfully escape? She says she tried to escape and that she expressed her wishes not to have sex with him. She said no. He didn’t care. He had sex with her against her wishes while physically preventing her from escaping the room. There is absolutely no way to read that, as far as I can see, as this girl participating in a consensual way. Ali(Quote)
Bama 1L says:
You are indicating the former state of affairs, in which the law regulated all sexual conduct. Any intercourse within marriage was legal, period. Any intercourse outside marriage was a crime. The only question was whether the woman resisted. If she resisted, she was legally blameless (though likely ruined) and the man was guilty of rape. If she did not, she must have consented, and the crime was fornication or adultery. Fornication might be cured by the prompt marriage of the parties. Kinds of sex the law did not like were punished as sodomy, and again resistance was the only defense.
As can be seen, at common law, the most important factor in the law’s treatment of sex was the relationship of the parties. We have replaced this, in the last fifty years or so, with a focus on consent to the exclusion of everything else. For what it’s worth, I applaud the change; the cause of liberty has been advanced. But the law has difficulty. The old relationship test was much easier to administer. And it reflected some ideas about men, women, marriage, and sex that are still with us to a great degree
The point I am trying to make is that I was born (and maybe you were, too) in an America where all men could force sex upon their wives without any possibility of going to jail for rape. That was not some sort of foreign idea brought here by Muslims. Bama 1L(Quote)
Ben says:
Now, every time a husband and wife have sex, it’s an opportunity for the police and the government to get involved and second-guess the way things were handled from moment-to-moment, with a 5-year prison term if they don’t approve.
That’s not what “liberty” means to me. Ben(Quote)
willis says:
Yes, when you need bad accountants you recruit where they are the worst. willis(Quote)
Chris Travers says:
It’s a matter of what needs to be proven.
If someone changes his/her mind, that shouldn’t by itself remove consent. If someone changes his/her mind, communicates that clearly and unambiguously, and the other person compels the person to continue, that’s rape in most states I know of and for good reason. Didn’t want to consent doesn’t mean didn’t consent. As long as that line is held, I really don’t see the danger. Chris Travers(Quote)
vic5 says:
In my limited experience– the NOt-dumb, not –arrogant not –bully not– obnoxious jerk trial judge is the exception rather than the rule.
And why should that surprise– They have authority and power that is not subject to question or comment — why would this lead to anything other than unbridled moral and ethical corruption and just plain dumb ( it is so because i say it is so) behaviour.
vic5(Quote)
Chris Travers says:
That’s a massive oversimplification. And in many places the law didn’t regulate all sexual conduct. For example, in early Ireland, bridal kidnapping was considered a valid marriage as long as the woman did not even attempt an escape AND her husband had been killed by her kidnapper. The same set of laws provided for one-night stands (legal but with possible child support obligations), taking advantage of a woman’s drunkenness (criminal but also involving one-night-stand type issues, I assume if a woman took advantage of a man’s drunkenness, she’d concede all child support claims).
Similarly, when you look at early Indian law, multiple types of marriages were recognized which largely follow on the same basic premises. These, like the Irish marriage laws range from criminal marriages (seducing women while intoxicated or purchasing a bride), to bridal kidnapping (valid with bride’s consent), to more traditional forms including arranged marriages and elopements.
No, I don’t think the laws in the ancient world even came close in many places to regulating all areas of sexual activity. It was probably true in Semitic cultures (but technically many of these didn’t recognize such a thing as premarital sex— whoever you had sex with first you were married to), but probably not true in Indo-European ones, except in terms of adultery, child support, and the like which are even today common issues of family law. Social concerns would have lead to other restrictions on it but strictly speaking they wouldn’t have been LEGAL restrictions (wrongful seduction being the only possible exception).
In a lot of ways, we’ve evolved back to where we were a long time ago. I agree, it’s a great thing for liberty. Now, if we can only complete the pattern and reverse the ceding of the pater familias powers to the state.....
Comparative ancient law is a fascinating topic but one that’s probably not important to go into here too much. Chris Travers(Quote)
Ben says:
The danger it that every sex act, including the sex between a husband and wife now, is a matter for government judgement with hairsplitting about who consented to what, when the consent took place, if it was withdrawn, when it was withdrawn, whether there was ambiguity, whether the wife had two glasses of wine or 4 glasses, and whether the prosecutor is going to run for higher office next year.
And 5+ years in prison is the penalty for a husband misinterpreting his wife’s signals or disagreeing on whether there was ambiguity. (Or not understanding that the US has gone off the deep end on the subject and changed the basic rules that governed marriage in every society throughout human history.)
Society has no interest in protecting a wife from sex with her husband. Society has an interest in wives escaping violent husbands and husbands learning they are not allowed to be violent with their wives. Governments and police should prosecute the violence. Governments and police should not interfere in marital sex. It is an unneeded and unjust intrusion.
Rape should be taken seriously and should be unquestionably wrong. If someone can make a simple mistake and suddenly be guilty of rape, then rape is not a serious offense. Society definitely has an interest in these lines not being blurred. (After all, if it’s all a gray area, then maybe a guy would be smart to stop worrying about whether he has done the right thing and just focus on getting away with whatever he’s interested in doing.) Ben(Quote)
Dave says:
I’m tired of the multiculturalism. It should be more in this country as General Napier said of the Indian custom of suttee, where a recently widowed woman would either voluntarily or by use of force and coercion immolate herself on her husband’s funeral pyre. He commented during the British occupation of India: “You say that it is your custom to burn widows. Very well. We also have a custom: when men burn a woman alive, we tie a rope around their necks and we hang them. Build your funeral pyre; beside it, my carpenters will build a gallows. You may follow your custom. And then we will follow ours.”
Nonconsensual sex in any part of the United States is defined as an illegal act, and any person doing so, should be punished. Simple as that. We are a nation of laws, not religion. Dave(Quote)
Jack says:
One man: According to my religion, it is okay to keep slaves; and beat them and rape them as much as I like. The state has no right to interfere with my free exercise of religion.
Another man: According to my religion, I am obligated to force anyone who does not believe in my religion to join it. According to my religion, I am obligated to require everyone in the world to live in compliance with my religion, whether they want to or not. I am allowed to kill those who resist. The state has no right to interfere with my free exercise of religion. Jack(Quote)
Ali says:
And yet, this case does not seem to me to be all that confusing. She was crying, she was trying to run away, and she tried everything she could do short of getting herself beaten or killed in order to escape sex with this man. He told her that he could do anything he wanted to her, and she had to submit to whatever he wanted to do. Our laws don’t allow us to treat other people that way. Ali(Quote)
michael reinhard says:
As yes, the sweet smell of multi-culturalism. So raping a woman is ok if you don’t think that you are raping a woman but acting under what your culture (the culture of the country you came from), you think you are just exercising your rights. Of course, not all cultures are according this privilege of super ceding the law of the land. Whoopi nods, it wasn’t “rape” rape. It is not rape if the 14 year old’s family wants the money and connections that come from selling their daughter off in marriage or letting your daughter be ravaged by a Hollywood producer if you think they are going to have a shot at getting a part in a big movie. michael reinhard(Quote)
Becky says:
Agree Ben. Come hither, you SOB, and later I can cry about how awful it all was in front of a sympathetic judge and jury.
I agree that it is likely that the woman did not have consensual sex with her husband. But many on this board seem to be basking in the smug-self-righeousness-do-goodism by framing this as cultural/religious beliefs v/s the law. She could have filed a restraining order if she didn’t want to have sex. To follow the logic, the fact that she wasn’t familiar enough with the law to do so, shouldn’t matter. Becky(Quote)
ImADad says:
The matter before the trial judge was a hearing to decide whether to issue a final restraining order against the man. The woman asked for the restraining order because of her claim that there had been non-consentual sex. Under NJ domestic violence law, the woman already had been issued a temporary restraining order on the basis of her complaint (without any defense on the man’s part) by a judge. The hearing is to determine whether the TRO becomes a FRO. This is the way the law works.
There are a number of reasons why the FRO would not be issued. Since the TRO is issued on the basis of the woman’s claim alone, the absence of any criminal complaint against the man might be a factor. The judge might feel that he can’t grant a restraining order against a man on the basis of a crime he’s not been charged with. In this case, the judge noted that when the alleged non-consentual acts had taken place, the man was under the belief that he had conjugal rights to sex with the woman in keeping with the tenants of their shared religion. Since those rights (whether they exist under civil law or not) cease (in that shared religion) at the point that the marriage is terminated, and the man clearly believed this, the judge had no reason to issue an order constraining him in the future for such acts.
Restraining orders are not punitive. They are issued on the basis of the threat of future action, based on past action AND current circumstances. ImADad(Quote)
Chris Travers says:
As whit explained, in Washington State, how much one’s spouse has had to drink is irrelevant to the inquiry. I dunno what it’s like in other states. However, if there’s a general presumption towards consent in a marriage, is that enough to answer to your concerns? Chris Travers(Quote)
Chris Travers says:
In several cases she was crying, but does that by itself mean there was no consent? Can someone consent over his/her own objections?
I agree with you on the one count (assuming there is sufficient evidence to back this up in criminal court) following the alleged assault, that if we take all of that at face value, that would be rape. But as to the other eleven counts, I haven’t seen enough evidence to say so, and the court’s standard seems very low and quite dangerous (merely communicating contrary desires does NOT mean there’s no consent).
I guess I’m primarily concerned about burdens of proof and levels of evidence required. Chris Travers(Quote)
Ben says:
I agree. Our laws should protect wives from violence. I simply disagree that it is rape.
She consented to sex in her marriage vows and never withdrew that consent by filing for divorce. I don’t think the government should be second-guessing ordinary marriage vows.
Prohibitions on domestic violence are sufficient to handle cases like this justly. Ben(Quote)
Ben says:
No. No man should ever have to worry about being prosecuted for rape for having sex with his wife. Period. It cheapens rape, it cheapens marriage, and it invites government intrusion into the smallest details of marital sexual relations. And it solves exactly zero unsolved problems.
Answer this: What is the benefit to society of spousal rape laws? Are innocent victims protected in addition to the protections they already receive from domestic violence laws? How is society improved by long prison terms for this behavior rather than a simple divorce?
Is the injury to the wife the same as the injury in an actual rape? Is she a victim in exactly the same way? If not, then why pretend they are the same? How is it just to treat them the same? Ben(Quote)
Mark M. says:
Too many wanna-be lawyers with a dose of misogyny thrown in: (Maybe they should run for a judgeship in NJ)
The court established repeated acts of what it should have determined was non-consensual rape in open court. That is a matter for criminal prosecution and it is unconscionable that it was not referred to the D.A. for follow up prosecution. I wouldn’t be surprised if the guy admitted it in the affidavits or open court.
How we get there:
Well, if the moron trial judge went to law school (probably elected as opposed to appointed) the first thing he would have heard after the explanation of intent was the twin saws: For public policy reasons, “ignorance of the law is no defense” followed by “mistake of fact might be”.
The crying and resisting meets the reasonable standard for non-consent. Not a reasonable dirty savage’s standard, or a reasonable R.O.P. standard, but the reasonable American’s standard.
There’s your Mens Rea. Intent to break the law is irrelevant. Intent to perform the act that breaks the law is all that is relevant.
Boom. Rape.
Why nobody threw the book at this dirty little savage and assigned him to the nearest PHITAP (Pound Him In The Ass) Prison just shows the weakness that P.C. has infused into our society. Mark M.(Quote)
KCrary says:
Why is the name of the judge not revealed in the opinion? Are family court judges anonymous in New Jersey? KCrary(Quote)
BarbaraS says:
You people seem to agree the couple are divorced. How can that be? They came to this country to live and work. They are required to abide by our laws. The law in this country does allow a couple to go before an iman, a preacher or a pastor and say I divorce you three times. That is sharia law and We don’t acknowledge sharia law. This guy has to go through our divorce courts or go back to Morocco and divorce her there. I, for one, do not want even a tiny step taken in the direction of sharia law.
As for her being raped, when you force someone unwilling that is rape. Some states may ignore the pain and suffering of a woman who has been raped but it doesn’t change the fact that it is rape. A restraining order should hve been issued. I seriously doubt a divorce would stop this guy from doing it again. This is the problem with allowing people with different religious cultures to come to this country. Their religious laws and our rule of law do not mesh and it only brings confusiion. BarbaraS(Quote)
Laura(southernxyl) says:
And it doesn’t matter if she was coerced into making those vows.
And reserved for that previously mentioned modestly-dressed virgin assaulted by a stranger. Anything else isn’t rape-rape.
Oh, those weren’t tears of joy? My bad. Laura(southernxyl)(Quote)
Becky says:
Imadad, point taken. But I just see irony in the positions taken by people on this board. It seems that they are bringing up the cultural aspect: Ie: Religious brute enters into culturally accepted arranged marraige. She moves to USA and wife realizes she’s not bound by culture and doesn’t want to have sex with him and yet still submits out of fear of divorce or not wanting being returned home. Cue the black hatted villian and the damsel in distress boos and hisses. Yet if we are going to frame this as being simply the law v/s culture, should not the woman have made herself as aware of the law as he was? Should she not have been aware she could have filed for divorce and moved into a local shelter rather than submit to unwanted sex? Why is she more of a victim than he is? Indeed, the question becomes interesting re: the final restraining order and expectations due to the fact she is pregnant. But I have to agree with Ben that normal domestic violence laws would serve us better than pretending that anyone woman who was forced into an arranged marriage can come here and suddenly cry rape because she never wanted to have sex in the first place. I’m not condoning non-consensual sex, just saying I don’t really see how culture fits into this picture. It’s either domestic violence or it isn’t. Becky(Quote)
David Schwartz says:
Fine, you can say that’s what the law should be. But that’s not what the law is (at least in most jurisdictions). It is not rape if a woman wakes up her husband by performing oral sex on him. She is entitled to presume he consents even though he cannot withdraw that consent when she starts.
By the way, I don’t buy the “he threatened her and used force, then he threatened her in a lawful way, and she consented”. A jury could still reasonably find that she consented because she was afraid her failure to do so would result in a continued escalation and more physical force. As soon as he uses force and she later “consents”, whether the force vitiated the subsequent “consent” is a question for a jury. David Schwartz(Quote)
bobby b says:
If you’re going to claim that a religious compulsion overrides a legal prohibition, you ought to have to call your deity (God, Allah, mushrooms, whatever) to testify that he/she/it does indeed compel such behavior.
Otherwise, the claim of such compulsion rests entirely on hearsay, and thus should be excluded from the defense. bobby b(Quote)
Chris Travers says:
Hmm.. I misread the opinion which stated that divorce proceedings were ongoing in Morocco at the time the trial judge issued the ruling.
Or maybe not. The original ruling said:
Chris Travers(Quote)
Chris Travers says:
But would that necessarily be knowing on his part for sex acts which were not immediately following assaults (i.e. all except for one listed in this case)? I mean doesn’t one have to show scienter at least? Or is consent just a state of mind? Chris Travers(Quote)
Laura(southernxyl) says:
David, a married woman can withdraw consent at any time in this country, by walking out the door. She can go to a shelter, she can go home to Daddy, she can use her own money if she has a job, and so forth. So she is not in the position of not being able to withdraw consent. Unless her husband locks her in a room so that she cannot leave, and forces her. That’s rape, buddy.
My argument above was with the person who said that it was not possible for what this man did to be rape because due to her culture and upbringing, she could not withhold consent. I think that is exactly backwards: if she can’t withhold it, then she can’t give it. Laura(southernxyl)(Quote)
Chris Travers says:
Do you disagree that a woman who hides in the room and has her husband bash down the door and force her to have sex with him by force of threats should be protected less than an unmarried woman in the same situation?
I just think the issue can be solved by providing far greater presumptions of consent (which can be rebutted, etc) for married couples. That means that for married couples, consent exists until it is proven beyond a reasonable doubt that it does not.
I see where you are coming from. In general, I think that strong autonomous families are far superior to state police and paternal mechanisms at protecting members from eachother. I just think there are (rare) cases where prosecution makes sense. I think presumption of consent can fix this problem by making it very difficult to prosecute spousal rape cases except where there is quite a bit more evidence than would exist in other rape cases. Chris Travers(Quote)
Chris Travers says:
I don’t think our Constitution allows a statute which would allow one to be thrown in jail for accidently raping one’s spouse. My wife is not generally comfortable withholding consent within the marriage either. I’d hope you wouldn’t suggest that this would mean every sex act since we got married was rape. Chris Travers(Quote)
Mark M. says:
@Becky:
Because ignorance of the law is no defense for rape. Ignorance of the law does not change the status of the victim.
“She consented to sex in her marriage vows”
It is highly unlikely that her “consent” would hold up under American law. For one thing, it would require HER consent, not her parents. This contrasts with other contract based transactions: A minor can’t even give consent for a standard contract, such as buying a car, but the law recognizes special exemptions for both marriage (of any age) and consensual sex (for minors to shield their partners from statutory rape charges) where the consent of the minor (or unwilling marriage partner) is the only consideration. Marriage is not subject to contract law analysis under American law, this is why contracts to Marry in exchange for consideration are unenforceable.
@David:
The presumption of consent disappears when you have he had in front of her. This is not a case of “wakey, wakey”. Mark M.(Quote)
Laura(southernxyl) says:
Chris, if you don’t consider this case to be withdrawal of consent, might a person ask what in the hell you would? Laura(southernxyl)(Quote)
Laura(southernxyl) says:
Chris, but she could. Are you telling me that you have convinced your wife that she CANNOT withhold consent? Not that she should not, but that she cannot? Laura(southernxyl)(Quote)
Laura(southernxyl) says:
And what’s with this “accidental” thing?
He accidentally pinched her genitals so that they were swollen and painful? He accidentally locked the door and didn’t notice her tugging on it? He accidentally screwed her as she cried? What the hell? Laura(southernxyl)(Quote)
bobby b says:
(Part 2 — I submitted Part 1 too quickly)
(Much like the wife did in this case, I guess.))
“Now, every time a husband and wife have sex, it’s an opportunity for the police and the government to get involved and second-guess the way things were handled from moment-to-moment, with a 5-year prison term if they don’t approve.
That’s not what “liberty” means to me.”
Funny — that’s what it means to me, because it’s the only interpretation that lets your wife enjoy the same freedoms that you enjoy.
Yes, in the real world, you can be accused of a crime virtually every second of every day. It doesn’t generally happen, because the burden of proving that you’ve acted criminally is fairly high. “Beyond a reasonable doubt” is a tough standard, and, as a matter of fact, absent videotape, witnesses, or disfiguring injuries that match the husband’s Super Bowl ring, a wife claiming rape is fighting an uphill battle. In a “he says, she says” situation, it’s tough to convince a jury beyond a reasonable doubt that a crime was committed.
But, make no mistake: if your wife refuses, and you then force her to have sex with you, you are a rapist. You have raped her, no matter your marriage relationship with her. Rape, like any other U.S. criminal offense, is defined by the words used in the pertinent statute, and, if you have acted in a way that fits those words, then it matters not whether you’ve taken marriage vows together, whether you’ve purchased her from her father for an adequate quantity of livestock, or whether you’ve both slept together in the Holy Sleeping Bag of Joy under the Holy Blessed Tree Of Matrimony and Foot Hygiene the requisite 37 nights straight — unless that statute lists such factors as being significant.
Besides — if you’re really worried about your wife crying “rape!”, you probably ought not to be having sex with her anyway. At that point in the relationship, who knows who else she’s been sleeping with, and what loathsome diseases they might have? bobby b(Quote)
Laura(southernxyl) says:
Thanks, Bobby. Laura(southernxyl)(Quote)
M. Simon says:
NOM is: The National Organization for Marriage (NOM) is a nonprofit organization with a mission to protect marriage and the faith communities that sustain it.
http://www.nationformarriage.org/site/c.omL2KeN0LzH/b.3479573/k.E2D0/About_NOM.htm M. Simon(Quote)
Becky says:
Did I miss something. Did she indeed prove that she submitted out of fear of escalting violence? Anyone? Is no additional proof on her part necessary? It seems to me that the there is an assumption by many in this discussion that we should simply assume that because he is a “savage” Muslim, as noted above, that escalating violence by this man is a given. Such ugly bigotry is unbecoming. Why should there be any less burden of proof on her part simply because he is a Muslim? Becky(Quote)
Chris Travers says:
No. Her cultural upbringing just makes that excessively difficult for her. This has lead to more than a few awkward moments. It’s not usually an issue, and it’s not as much of an issue as it used to be. But for a while, she’d tell me if I made an unwanted advance that she was mad at me, didn’t want to have sex but didn’t want to feel like anything was owed, and that I’d better not back off. Chris Travers(Quote)
Chris Travers says:
I am saying there have to be clear laws with clear criteria. “Did you express wishes to the contrary” is not a clear criteria. “Did he threaten violence if you didn’t submit” is. On the whole, I’ve said that in this specific case, one of the incidents is documented by the court enough that I could get behind a conviction if it was sufficiently proven at trial. But that leaves 11 (eleven!) other counts where that’s in doubt. Chris Travers(Quote)
Becky says:
Chris says, “No. Her cultural upbringing just makes that excessively difficult for her”. If you are going to accuse him of needing to be aware of the laws and cultural norms of our country, then why do you give her a pass? Becky(Quote)
Laura(southernxyl) says:
Chris so you’re extrapolating from your marriage to the entire realm of male/female relations?
I think you are because I don’t think you ever actually looked at what I said I was reponsding to.
The comment said that the defendent
COULD NOT HAVE
raped the plaintiff
because rape requires withdrawal of consent
and she COULD NOT withdraw consent.
Unless your wife was of the understanding that she COULD NOT withdraw consent, and you knew that and didn’t correct her, your marriage is not relevant here. Laura(southernxyl)(Quote)
Chris Travers says:
I think this is the key. It’s a steep hill to climb, and it’s not as easily fabricated as, say, domestic violence. I really don’t see what Ben’s concern is with spousal rape that isn’t there with DV. Chris Travers(Quote)
Laura(southernxyl) says:
Chris, I’m confused.
If he pinched her genitals so that sex was painful, and locked the room to prevent her leaving, and screwed her as she cried and told him not to, was that rape, or not? Can you just answer that simple question?
I’ve always rolled my eyes at the left-wing feminist thought that men think they’re entitled to women’s bodies and fight anything that restrains their right to stick themselves into anything they can except for the most rigidly defined exceptions. But now I wonder if they’re right. Laura(southernxyl)(Quote)
Chris Travers says:
I’m sorry. I was extrapolating from this case to other cultural conflict defences. I was suggesting that while “sure it was nonconsensual but it’s OK in my culture” isn’t going to fly, “after I reminded her of her religious duties she consented very grudgingly” might.
Do you disagree that grudging consent must be treated as consent? Chris Travers(Quote)
Mark M. says:
@Becky:
What’s unbecoming is repeated acts of rape and claiming that we should excuse the abuse and subjugation of women because tolerance for some barbarous belief system is more important than the law of the land. The prosecutor would have met his burden of proof by simply proving what the ignoramus on the bench found and failed to recognize as a crime (with requisite intent) as the fact finder in a civil matter: That the husband forced himself on her several times without consent. That’s clearcut rape and he’s a scumbag that belongs in prison. Mark M.(Quote)
Laura(southernxyl) says:
It depends on what you mean by “grudging”.
There have been times in my marriage when my husband wanted sex and I was not in the mood, but I accommodated him b/c if he was to have sex it needed to be with me. The way that works, of course, is that once one gets into it one usually discovers that one is in the mood after all. I wouldn’t consider that grudging. Is that what you have in mind?
There have also been times when I spent my entire evening, after a full day at work, doing housework and childcare until I stopped at 11:00 PM not because I was through, but because I was exhausted; while his butt was plunked in front of the TV all evening. Yes, I refused him then. Was I within my right to do that? Or was I not entitled to withdraw consent? (After a few pointed conversations, this situation got corrected; otherwise we would not have just passed our 28th anniversary.) Laura(southernxyl)(Quote)
Laura(southernxyl) says:
OK, so I just extrapolated from my marriage.
I still think you haven’t explored what you mean by “grudging”. Do you mean, “well, OK”? Or what? Laura(southernxyl)(Quote)
Mark M. says:
Ugh– try reading the answer you already got for this question you previously raised. The knowledge (or lack thereof) of the victim does not change whether a crime was committed. That’s totally irrelevant. The perpetrator is held to a different standard because he’s the one that broke the law. Mark M.(Quote)
Chris Travers says:
“Well, OK, but I’m really not happy about this.” Chris Travers(Quote)
Becky says:
Mark, I would agree with you that if the allegations are true, then he is a scumbag worthy of the full force of the law. But unless you can quote otherwise, her allegations seem to be just that...allegations with everyone assuming they are true because the man is a Muslim. That’s bigotry. It is clear that he thought he was entitled to the sex and I agree that, even in marriage, there are clear instances of rape.
But it seems from the discussion that many assume because she is a Muslim who was forced into marriage that it therefore unnecessary for her to prove that he forced her to have sex by tying her up and preventing her from leaving the room — or frighening her with threats of future violence or death. Did she try to escape? Did she call 911? Did she file for divorce or check with a shelter? Everyone points out that ignorance is no excuse with regards to his situation...why does she get a pass?
Other are discussing whether grudging consent between marriage is consent. And that is a valid discussion. But what troubles me is that he is given no benefit of the doubt because he is the big bad Muslim boogeyman who did, what in his culture is acceptable, enter into an arranged marriage with a woman who did not love him and then expect sex whether or not she wanted it. Why should she, simply because she was in an arranged marriage with a Muslim, not have to prove she was indeed raped rather than giving no so happy consent?
As for a restraining order, it seems she does indeed deserve one. Becky(Quote)
Chris Travers says:
Mark M:
When we are looking at whether most of the allegedly unconsentual sex was indeed without consent, I think we have to ask certain questions here. I have said I agree that if this was a criminal conviction that at least the facts articulated by the court would support at least one of the sexual assault allegations (the one immediately following one assault where the room was locked and she was told he could do anything to her he wanted, and that he wanted to hurt her flesh– that sounds like mens rea by any standard to me). But that doesn’t necessarily make it repeated. You say “crying” would seem to be enough to prove non-consent, but that leads to a couple of specific questions:
1) Is grudging consent offered in the face of threats made about actions which her husband would have every legal right to do (divorce her when she has nobody else to support her here) legitimate consent? “Please don’t divorce me! I’ll do anything!” Does crying during the sex act vitiate such consent?
2) If someone says “ok, we can have sex but I’m really not happy about this” is that consent or not?
3) What room is there for cultural pressure (alone) to be used to push her to consent if there wasn’t the initial physical assault at issue? Chris Travers(Quote)
Laura(southernxyl) says:
Chris, if a man pushes himself into a woman while she is saying “I don’t want to do this!” then that is not consent, grudging or any other kind. I don’t care what his rationale is, as to what his rights are. Disagree? Laura(southernxyl)(Quote)
Laura(southernxyl) says:
As to “well, OK, but I’m not happy about this,” I don’t know why a man would want a woman under those circumstances. But as to whether it’s rape, I think the key is, can she actually withhold consent? Would he respect that if she did? If the answer is no, then IMO it’s rape. Laura(southernxyl)(Quote)
Becky says:
Laura, that’s a pretty weak standard. Are you assuming that in no instance a married woman, facing divorce would not lie and say her husband pushed himself on her? Does that really seem fair to men that such a weak standard could land them with the label of a rapist and sex offender?
So all that a woman needs to do is cry rape and the deed is done, is that what you are saying? Becky(Quote)
Elizabeth Bartley says:
I think you’re confusing what constitutes rape with standards of proof here. Elizabeth Bartley(Quote)
Bama 1L says:
I should have realized I would need to specify that I was talking about common law. Yes, the law in Ireland was different; the English said the Irish were barbarians because their brehons had no gallows. Bama 1L(Quote)
Laura(southernxyl) says:
Can you please point out what I have said that causes you to think I assume that? Laura(southernxyl)(Quote)
Becky says:
My point is that there doesn’t seem to be much of a standard of proof here, other than she was in an arranged Marriage with a Muslim who expected sex whether she wanted it or not. Is that good enough these days? Becky(Quote)
Laura(southernxyl) says:
Becky, did you click on the link? Laura(southernxyl)(Quote)
Bama 1L says:
You really need to read some marital rape cases if you think this is the sort of thing that gets prosecuted. The fact pattern is usually that of “real” held-down-and-screaming, threatened-with-a-knife, bruised-all-over rape. The only wrinkle is that the husband has this weird idea (which was the law until pretty recently) that the wife had to let him do it to her.
There is a strange marital rape case from England in the 1960s. Husband hates Wife so hatches this plan. He tells her that she is going to have sex with his Buddy or else he is going to hurt her. Meanwhile, Husband tells Buddy that Wife is hot for him and likes it rough. Buddy goes upstairs and has sex with wife, who is not a willing partner. This seems like the perfect crime, because husband thinks he can’t be convicted of raping Wife (law did not recognize marital rape) and Buddy is so dumb he believes he’s not raping Wife. If anything, Buddy will do time but Husband won’t.
Result? Both are convicted at trial–not the perfect crime, it turns out! The appellate court eventually throws out Buddy’s conviction, because his mistake as to Wife’s consent, though unreasonable (What a crazy story! Why did you think she wanted this!), is honest, and that’s the law when the appeal is heard. Bad result but that’s the law; in most jurisdictions the defendant must honestly and reasonably believe that consent was given. The appellate court then bends the law to convict Husband. Husband knew Wife did not consent to sex with Buddy, and Husband’s marital defense is newly held only to apply to his own person; he can’t use it to a defense where the act of rape was committed by someone else.
Anyway, Husband is the kind of evil person that gets convicted of raping his wife. Bama 1L(Quote)
Becky says:
yes, and I see clear evidence of domestic abuse and ample reason for the judge to issue a final restraining order — as I have said previously. But I dont’ see evidence of rape other than her testimony. The nurse didn’t verify it and stated she wanted to stay with her husband and verified abuse not rape. No talk of bruising or blleding around her vaginal area, unless I missed it. I don’t have time to read it again, so if I missed it, then I’ll back off. It’s not hard to believe that he raped her, but is that good enough? I think that in a marriage, arranged or not, the woman should be have to prove that he pushed herself on him while she said no. Sure, no one cares about this guy cause he’s mean. But is that a fair standard for all men? Becky(Quote)
Chris Travers says:
Generally agreed, though with some exceptions.
“I REALLY object to having sex, but I’d rather have sex than have you divorce me so go ahead” includes “I don’t want to do this” but it also includes consent, does it not?
I don’t think that “would have” is a game one should play when looking at long prison sentences. That leads back to the rape-by-fraud issue of “would she have consented if she knew he wasn’t a neurosurgeon?” I really think one has to look at what was said and done, not what would have happened if other things were said or done.
In this case, one of the alleged sexual assault incidents seems to me one that I’d support a possible conviction on with no further information (assuming none of it is impeached in trial). The other 11 would require a lot more if I were in the jury box. Chris Travers(Quote)
whit says:
i think grudging consent is consent, fwiw. these aren’t miranda warnings:
“you have the right not to have sex with me. if you give up that right, and agree to have sex with me, you may tell me to stop at any time, and i must (ambiguity between DON’T STOP!!! and DON’T! STOP! notwithstanding). if you would like to consult with a third party before agreeing to have sex with me, you may. my phone’s over there. if you do have sex with me, you give me the opportunity to brag about it truthfully to my friends, although i could always lie if you say no. if you would like to inspect my “parts” before having sex, you have that right. bearing these rights in mind... do you wish to have sex with me?
Sign here... ______________________
additional waiver : do you have any hot friends who would consent to a threesome? if so, please have them sign a copy of these rights read by you, and then i will do the same, to insure transferability between the three of us” whit(Quote)
Chris Travers says:
Exactly my point. Chris Travers(Quote)
Chris Travers says:
That’s not what I am talking about. I’m talking about cases where sex might be obtained through threat of lawful actions, such as filing for divorce, where someone might give consent grudgingly because it was better than the alternative but still be very unhappy about it. This could even be communicated clearly as I mentioned, something like:
“I really don’t want to have sex right now. But I don’t want to be afraid tomorrow that you will divorce me if I don’t so go ahead, just don’t divorce me after.”
Consent? Not? Seems clearly consent to me. This is where I see cultural issues coming up in the future. Chris Travers(Quote)
Chris Travers says:
Am I correct that it’d be nearly impossible to prove nay other kind? Chris Travers(Quote)
Laura(southernxyl) says:
Depends.
If she doesn’t want him to divorce her b/c she can’t hold up her head with her friends, yes, she consented, and he’s a jackass.
If she doesn’t want him to divorce her because she’ll be abandoned by her family and will starve in the streets if he does, then no, it’s not consent. Nowadays, that’s not likely to happen. Which is why I say that in this culture, a wife can withhold consent.
As to the other, if a man flat-out said “I knew she didn’t want to have sex. She told me she didn’t. I don’t care what she says, she’s my wife and we’ll have sex if I say we will” how far would you have to parse that to say she probably didn’t consent? Laura(southernxyl)(Quote)
Chris Travers says:
Exactly. That’s a stupid defence and any court would do well to deny it. :-)
In fact even by raising the defence, one confesses to the crime.
The question is what is the better defence that gets given next time. Chris Travers(Quote)
whit says:
lighten up, francis. it was a joke.
in reference to your above question, yes it’s consent. it’s persuasion. persuasion is consent.
as long as by persuasion, you are not threatening violence towards the person. that’s a criminal threat, not “persuasion” whit(Quote)
Laura(southernxyl) says:
Okay, well, we’ve made some progress.
I’m reading the case and I see this:
I don’t understand the need to find vaginal bruises, or whatever, to establish sexual assault here. Or are we splitting hairs and saying, yes, it was sexual assault, but it wasn’t rape? Laura(southernxyl)(Quote)
bobby b says:
““I really don’t want to have sex right now. But I don’t want to be afraid tomorrow that you will divorce me if I don’t so go ahead, just don’t divorce me after.”
Consent? Not? Seems clearly consent to me. This is where I see cultural issues coming up in the future.”
How does this differ from “I really don’t want to have sex right now, but I don’t want to have to paint the hallway and living room myself, so (sigh) okay, go ahead . . .”, or “I really don’t want to have sex right now, but I understand that my refusals have become a rather huge issue that may well be pushing us into a divorce very soon.”? Clearly, as you think, this would be consensual.
“If she doesn’t want him to divorce her because she’ll be abandoned by her family and will starve in the streets if he does, then no, it’s not consent.”
Sure it is. If she fears some illegal action directly by him and immediately against her, (he’ll beat her, say), then, if you can convince a jury that a reasonable person would understand that her immediate fear was reasonably held, that jury may well find a lack of consent. But, some threat that isn’t immediate, or isn’t unlawful, wouldn’t be enough.
I can say to my wife “have sex with me right now or I’ll be putting my paychecks into my own account from now on and you can go find a food shelf”, and, if she then has sex with me, it’s not rape, as withholding my check from her isn’t a crime, nor does it have immediate impact. bobby b(Quote)
Laura(southernxyl) says:
Bobby, I meant “starve in the streets” literally. If you withheld your paycheck from your wife, she would not starve in the streets. Laura(southernxyl)(Quote)
Becky says:
If she doesn’t want him to divorce her because she’ll be abandoned by her family and will starve in the streets if he does, then no, it’s not consent. Nowadays, that’s not likely to happen. Which is why I say that in this culture, a wife can withhold consent.
So is your point that because she was from a different culture, she has special rights that allow her to withhold consent that differ from other citizens? Becky(Quote)
Laura(southernxyl) says:
However, I hope she would leave you and then you could complain bitterly about how men get shafted in family court. Laura(southernxyl)(Quote)
Laura(southernxyl) says:
No, Becky. I was — for the fouteenth time — responding to the person who said that because she could not withold consent, then it was not possible that her husband raped her. Laura(southernxyl)(Quote)
Chris Travers says:
This gets back to my first post on this.
Suppose instead of assaulting her and then more or less admitting to continuing the assault in a sexual way, suppose instead he simply said:
“According to our religion and culture it is a basic obligation of marriage that you submit to all my sexual demands. Now, either you continue to do this or else I sue you in court for an at-fault divorce on the grounds of constructive abandonment. I will ask the court to give me nearly all our joint property and not to have to give you any support at all.”
Now, consensual or not? Moreover if he did take that to trial instead of beating up his wife and then forcing himself on her, and the court holds that the cultural context is relevant to the constructive abandonment claim then what? Chris Travers(Quote)
Chris Travers says:
You’re misrepresenting what I said. I’m saying if someone is deeply uncomfortable withholding consent, then consent may be present even where it might not normally be. Chris Travers(Quote)
Laura(southernxyl) says:
Well, it’s damn coercive, Chris. Are you defending this, really?
If he’s telling her that he can leave her destitute, and she doesn’t know what her rights are b/c she’s a 17-yr-old girl from another country, then it is NOT consensual. NOT. Laura(southernxyl)(Quote)
Laura(southernxyl) says:
Chirs, my original statement was not in response to you. It was in response to the man who said that if I argued that the girl might not have been able to withdraw consent, then that was an argument against what happened being rape. I said that in the absense of the ability to withhold consent, then consent can’t really be given. all this time that you have been arguing with me, I assumed you were agreeing with that man. Here:
Laura(southernxyl)(Quote)
Becky says:
so then tell me Laura, what exactly is the difference between a woman who is badly beaten by her husband and a woman who is beaten by her husband and claims rape but has no evidence of rape in her vaginal area? Should we just assume because she is a woman that she wouldn’t lie? Becky(Quote)
whit says:
you don’t NEED to vaginal bruises, etc. but it is evidence (note: not proof) of forcible compulsion/penetration etc.
can you have a rape w/o bruises? sure
can you have a consensual encounter with them? sure whit(Quote)
whit says:
fwiw, based on my 20+ yrs of conducting investigations, i don’t ASSUME anybody is lying or telling the truth.
that has served me well. whit(Quote)
Laura(southernxyl) says:
Okay, because it seemed to me that Becky was saying that you can’t prove sexual assault without vaginal bruises.
Becky, I make no assumptions about either men or women lying or telling the truth all the time. Why do you think I do? Laura(southernxyl)(Quote)
whit says:
here’s the thing. GENERALLY speaking, in penile-vaginal forcible rape (not the only kind obviously), if the man FORCES himself on the woman and into her, there will be bruising. that’s because if her sexual response cycle has not “geared her vagina ” up for penetration, penetration will often result in bruising.
but that’s only GENERALLY speaking. it is POSSIBLE for her not to be “ready” physically, and there still to be no bruising. POSSIBLE. not likely. more possible with lubrication
if she IS all “lubed up” , but she simply doesn’t want to consent to penile vaginal sex, but is still aroused, bruising in the vagina is less likely.
if they are in the midst of penile vaginal sex and she changes her mind and says “STOP PULL OUT NOW” and he doesn’t. that’s still rape. unlikely to be bruising whit(Quote)
Becky says:
quite honestly I have no idea what your point is laura. If you are saying that the judge should have issued the restraining order, then we agree. If you are saying we should all jump to the conclusion the woman was raped based on the evidence at hand then we disagree, because there just isn’t enough evidence to meet the burden of proof. If you think that she deserved special consideration because she’s 17 and from a different culture, then I can only wonder why you wouldn’t also allow that he should be allowed some special consideration as well.
Whatever. I’m not sure why you seem to care so much that we all agree that this woman was a victim of non-consensual sex. Probably she was, but it’s a weak case and I see no reason why she should not have to meet the burden of proof just cause she’s a poor maiden in distress and he wears the Muslim boogey-man black hat. Becky(Quote)
rrr says:
Thank goodness we have NOM and the various religions fighting to preserve this type of traditional marriage.
No, thank goodness we have Randy, who’s omnisience makes him able to know what the “various religions” are fighting to preserve. How has the human race survived w/o his insight? rrr(Quote)
Laura(southernxyl) says:
“quite honestly I have no idea what your point is laura.” You have made that abundantly clear. Laura(southernxyl)(Quote)
Becky says:
Thanks for sharing that you are in touch with your inner bitc#. So I guess I was right in assuming your argument is little more than a male bashing rant. Becky(Quote)
Ben says:
I disagree that it is rape. I disagree that it should be treated as rape.
Certainly she should be protected from the violence though. What’s the benefit of calling it rape? Ben(Quote)
Ben says:
I guess no one ought to ever have sex with anyone, lest the marriage bed cops find evidence of tears on the pillows. Ben(Quote)
whit says:
people frequently get into these semantical wanks
my state’s penal code doesn’t call (to borrow a whoopie goldberg’ism) “rape rape rape”
think about it
it’s called sexual assault
with different degrees
a slap in the cheek, and a bullet to the chest are both assault, but obviously VERY different in severity
yet, we call both of them assault whit(Quote)
bobby b says:
“However, I hope she would leave you and then you could complain bitterly about how men get shafted in family court.”
Two statements backed by numerous years handling divorces/custody fights/restraining orders (until I wised up and began representing entities which never wake you with a 3:30am phone call crying or re-arguing a motion hearing):
1. Men do get shafted in family court.
2. Generally, this is because the men in question have worked very hard to deserve to be shafted in family court.
Two more statements backed by the same, plus my experience-driven cynicism:
1. This conversation has drifted enough so that the enormous differences between (a) [the burden of proving criminal charges v. the burden of proving the need for a civil restraining order], and (b) [the elements of a crime v. proving factually that those elements are present] have become muddled. Most of you have been correct about what you’ve been arguing, but most of you have been arguing about different things. Laura___ has been, I think, trying to gather everything into a coherent point, but watching the process has reminded me of the great cat-herders I have known.
2. As this was a simple request for a restraining order and not a rape trial, there’s probably more here that makes sense than first blush might indicate. She’s pregnant, and so I’m sure some sort of custody/support/visitation fight is imminent. I didn’t see anything indicating that she reported a rape to the police. (Correct me if I missed it.) The average judge handling piles of these motions knows that many many such cases (not all, but many) are brought as bargaining chips for the next phase. If Mom here is 18 or 19 and poor and adrift, while Dad is financially secure and educated and stable, then the usual custody rule (“Mom gets the kids 85% of the time unless she is an active ax murderer who has actually targeted children with her ax”) may not be automatically applied — Dad may have a shot at primary custody.
(No, don’t get bent at that statement — generally, it really IS in the best interests of the kids for the mom to have primary custody. Generally, it’s Mom who buys the kids’ clothes, gets them on the bus to school dressed and fed and conscious, brings them to the doc when they’re sick, prepares most meals, buys appropriate foods for them, gets their hair cut, arranges for rides to and from friends’ houses, nags about school, gets them up in the morning, handles their birthday parties, washes their soiled underwear . . . while most Dads sort of watch all of this benignly from the sidelines, bring home money to finance it all, and play catch with the kids every year or so.)
So of course, in most such situations, Dad doesn’t really WANT the kids 85% of the time once he really thinks it over, but he feels that he may now bargain a bit tougher over support and maintenance (a/k/a alimony) dollars.
But if a claim of rape can be made, and a restraining order procured which makes it problematic for Dad to be a regular frequent parent while the fight is ongoing (hard to pick up the kid if he can’t go within five miles of Mom, plus the judge is less likely to push for Dad’s involvement), Dad’s apparent $$ advantage goes away somewhat, plus Dad’s fear of being publicly accused of the rape provides some more inducement to him to back off and pay more.
One thing the judge would consider in a claim of rape would be, did she act in a manner consistent with someone who has been raped? If she didn’t call the police, but waited for weeks and then asked for the restraining order, this could be a factor that makes the judge (who is the fact-finder in these motions, which is what a jury would be doing in a criminal case) decide that no rape has been credibly alleged. And, since there aren’t criminal charges here, it’s not like he would be releasing a dangerous rapist onto the street — a hearing for a restraining order cannot result in a criminal rape conviction for Dad. So, the judge’s denial of the RO makes more sense than you might think. He just wrote it up wrong.
(See why I now represent corporations?) bobby b(Quote)
bobby b says:
“I guess no one ought to ever have sex with anyone, lest the marriage bed cops find evidence of tears on the pillows.”
Oh, great. Like they need ANOTHER reason to not have sex with me. Thanks. Thanks a lot.
“What’s the benefit of calling it rape?”
Accuracy and honesty?
Look, the whole “we’re married” thing only means that a jury in a rape trial starts with a presumption that there is consent, because it would be normal and reasonable that the husband would presume there was consent in the normal course of things. However, once an explicit “No!” has been communicated, that consent has been revoked, and the marriage relationship no longer has any meaning in the discussion. The presumption of consent in a marriage relationship just gives you a starting point — testimony that consent was revoked obviates the presumption. In the situation involving non-marrieds, there may be a slightly lower burden on the alleged victim to prove non-consent, as she won’t have to prove a “no” as explicitly and clearly as might be needed when the starting presumption is “yes”. (It’s a shorter trip from “huh?” to “No!” then from “yes” to “No!”) bobby b(Quote)
whit says:
that is EXACTLY it! very well stated whit(Quote)
Ben says:
The legal codes are full of unjust laws passed to satisfy one special interest or another. I’d guess the vast majority of laws fit that description. Selective prosecution doesn’t change the basic injustice of the coercion in the law itself.
(I’m not a lawyer, but the government lost the Citizens United case making a very similar argument to yours. Sure, the law said they could imprison people for publishing a book, but trust us, we’d never do that. The court declined to trust them. The argument was unpersuasive.)
I’m pretty sure assault with a knife or a severe beating is illegal in a number of different ways. That should be sufficient to protect the victims, without criminalizing the marital sex act itself.
No one has offered any rationale for why society benefits from considering this behavior rape. Society shouldn’t just randomly criminalize stuff or decide things are or aren’t rape without coming up with a rationale. (Restating or paraphrasing what the law says or what courts have held in a few cases isn’t a rationale.) Ben(Quote)
Ben says:
You miss the point. The wording isn’t the point.
The point is that it is not rape, and not “xyz-crime” that your state calls rape. Rape is a lot more serious and injurious offense than the acts we’re talking about.
The “non-consensual” sex between a husband and wife is none of the government’s business. It ought not be a crime. Consider it valid grounds for divorce at most. If there’s violence, the violence is the government’s business.
You people sure seem enamored with the idea of policing the marriage bed for some reason. Ben(Quote)
whit says:
and what you say proves my point, since it is definitional about rape
it’s a semantical wank
actually, regardless of what i said earlier, i was wrong about my state’s laws (i was actually remembering my previous state’s statutes)
in our state, it is called rape
but IF you are married, for it to be RAPE, there must be more than against consent. there must be forcible compulsion.
rape 3 cannot be committed against a spouse.
rape 2 requires forcible compulsion
so, you would probably like WA
cause it essentially agrees with your point
my bad whit(Quote)
whit says:
oh, and forcible compulsion is defined in the RCW: “Forcible compulsion” means physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.
so, for a spouse to rape a spouse, the spouse must have used PHYSICAL force which overcomes resistance (hence, there must be resistance that can be overcome by physical force. i would presume lying motionless would not be considered “resistance”)
Or a threat (of death of bodily injury or kidnapping essentially) whit(Quote)
bobby b says:
“That should be sufficient to protect the victims, without criminalizing the marital sex act itself.”
The “marital sex act” is a consensual act of sex between a husband and a wife.
Once she says “no”, and you pin her down on the floor and punch her and penetrate her, there’s no “marital sex act.” There’s an act of rape.
Let’s be clear, though. I’m talking about the legal definitions and principles. If you’ve merely described your own beliefs and make no claim that your beliefs match the law in all of the states in this country, then we really have no argument at all.
Unless, of course, you object to my finding your beliefs on this to be disgusting and morally abhorrent. You have no legal right to make use of your wife’s vagina over her objection. Neither your marriage vows nor your peculiar ideas about how your all-loving gawd made her your sex slave nor, even, her confusion about what you are entitled to demand from her confers this right on you. You may be doing this, and she may not be calling the police, but if you want to continue, you’d better keep her chained right there in the basement where she is now, because the only enabling factor that you have here is secrecy.
(You don’t own any sheep, do you?) bobby b(Quote)
Ben says:
Exactly. Marriage vows are so meaningless that they can be turned on and off with a word. That’s where this has led. That’s the price for this spousal rape interpretation. Ben(Quote)
whit says:
i’m sorry. i am pretty sure my marriage vows did not include the obligation/authority to rape my wife by forcible compulsion
or am misunderstanding you? whit(Quote)
Ben says:
Nope, you’ve missed the point again. I’m not going to repeat it again though. I will say it’s not semantics in any way. Whether you can (or choose to) understand that or not is up to you. Ben(Quote)
whit says:
it IS semantical. you are saying RAPE IS A LOT MORE SERIOUS THAN... and i am saying IT DEPENDS ON HOW YOU DEFINE “RAPE”
you can certainly argue it’s “defining deviancy up” which is my point that domestic violence law (and this is a form of domestic violence) does, frequently, and i;m against it fwiw, generall speaking whit(Quote)
EK says:
i’m sorry. i am pretty sure my marriage vows did not include the obligation/authority to rape my wife by forcible compulsion
or am misunderstanding you?
Horrifying as it is, I don’t think you’re misunderstanding him... Only he wouldn’t call it rape. He would call it a consensual marital sex act carried out by forcible compulsion. A tricky oxymoron, but whatever. Just don’t call it rape! Oh, and if there’s injury as a result of that consensual marital act, then the government can swoop in to respond to the violence (though how that wouldn’t constitute interference with marital relations and the marriage vow, I’m not sure...) EK(Quote)
whit says:
consensual marital act DOES NOT COMPUTE with forcible compulsion, of course
heck, you can have lack of consent or even AGAINST consent and not have forcible compulsion.
you can punch me in the face and call it a kiss, but it still hurts whit(Quote)
EK says:
consensual marital act DOES NOT COMPUTE with forcible compulsion, of course
If you’re like some commenters here then it does compute, most certainly!... because the forcible compulsion is treated as a separate category of violence removed from the sex act itself... even though it took place as part of the sex act...
According to those commenters, if you take the extreme and horrifying example of the 13 year old child bride from Yemen who bled to death after her genitals were torn apart by the repeated forced insertion of her husband’s penis... then what she experienced wasn’t rape. The sex was consensual by virtue of the fact that it took place within marriage. The violence and fatal injury need to be considered separately from the sex act, even though they are inextricably a part of the sex act... EK(Quote)
EK says:
Just to be very clear... I don’t agree with those commenters! EK(Quote)
sadstateofaffairs says:
“you can punch me in the face and call it a kiss, but it still hurts”
or ...you can punch me in the face and and get 5/10 .. or you can punch me in the face and I’ll call it an unwanted kiss so that you will get 10/20. sadstateofaffairs(Quote)
Anatid says:
Ben, I know marriage vows are different for every culture, but the ones I’m familiar with as an American are that you and your spouse agree to love, honor, and respect.
Where does physically-forced sex with explicitly-withdrawn consent enter the picture? How is placing your desires above your wife’s, to the point where you are reducing her status to 1900-era chattel, an act of love or honor or respect?
Maybe it’s because I’m young, but I thought marriage in our culture was a joining of equals as lifelong partners, not an agreement to become an unwilling sex slave on demand. Can this go both ways? Can your wife hit you over the head with a cast-iron frying pan, tie you up, and forcibly penetrate you with a strap-on because you’re married and you have no right to withdraw consent? Or does the spousal let’s-not-call-it-rape schtick only go in one direction?
The traditional definition of marriage has changed a great deal since women were legally granted the right to vote, own property, get a credit card, get a no-fault divorce, and get a high-powered job. What was once basically a property transaction has now become a union of equals. Most of us think these changes have been for the better. Anatid(Quote)
Stephen Gash says:
I suppose this judge also accepts that four witnesses are necessary for a successful rape prosecution to proceed as is the case under sharia law? Stephen Gash(Quote)
YK says:
EK says:
“According to those commenters, if you take the extreme and horrifying example of the 13 year old child bride from Yemen who bled to death after her genitals were torn apart by the repeated forced insertion of her husband’s penis... then what she experienced wasn’t rape. The sex was consensual by virtue of the fact that it took place within marriage. The violence and fatal injury need to be considered separately from the sex act, even though they are inextricably a part of the sex act...”
I am not taking any position about the moral and legal issues that have been discussed so far in this string; the former, because I have not given them adequate thought, and the latter, because I have not given them adequate thought, and am also not qualified.
I would just like to point out what seems to me to be a relevant distinction. It seems to me that even if we were to accept Ben’s argument that a husband that, for example, beats his wife and has sex with her at knifepoint has not raped her, but ought to be held criminally responsible for the beating and the threat of stabbing, EK’s point does not follow.
This is because, however horrifying the beating and the threatened stabbing, and however much they enabled the objected-to act of sex, they are not the act of sex itself, nor a consequence of it. By contrast, the injuries and death of the Yemenite girl in the (I hope, theoretical) story that EK spoke about
were the direct consequences of the actual physical sex act. YK(Quote)
YK says:
After writing the above post, it occured to me that I wasn’t as clear as I might be.
I mean to say that we might say that marriage inherently involves consent for non-violent sex, and that violence surrounding the sex does not convert the sex into rape; it’s a separate, and non-sexual, crime of violence. (This appears to me to be Ben’s position.) It does not follow that marriage inherently involves consent for violent sex; if it does not, then such sex would be rape, in the absence of proven consent. YK(Quote)
Woman Lawyer from NJ says:
I am dismayed and disappointed to read so many posts in defense of what this man did to his wife. As a lifelong NJ resident, almost 60 years of age, I hope the men arguing for this man don’t live here and never move here. Those people in my age range were shocked by this appointed judge’s ruling. Many of you, like that judge, are willing to apply a different standard simply because this man is Muslim. It’s 2010, not the days of Old England, Ireland. You young people really have to decide what kind of country you want to live in. It saddens me to read so many of you are choosing to accommodate violence against women. I have never been a hard-core feminist, but then again, until reading your posts here, I didn’t think I had to be one either. What an eye-opener this thread has been. Woman Lawyer from NJ(Quote)
Laura(southernxyl) says:
YK, sadly, no, that story is not theoretical.
Woman Lawyer I know the feeling. Sometimes I think that I was very sheltered before the days of the internet. You lose your ability to say “oh, nobody really thinks that”. Laura(southernxyl)(Quote)
EK says:
By contrast, the injuries and death of the Yemenite girl in the (I hope, theoretical) story that EK spoke about
were the direct consequences of the actual physical sex act.
The story unfortunately is not theoretical; here is just one news outlet that reported it:
http://www.reuters.com/article/idUSTRE63752Z20100408
I mean to say that we might say that marriage inherently involves consent for non-violent sex, and that violence surrounding the sex does not convert the sex into rape
When you say “surrounding the sex”, how far does it go? Does sexual violence in marriage only have to be the direct result of injuries inflicted by the penis? If he held a knife to her throat during sex, in order to get her to keep having sex, then the violence is still part of the sexual act — he’s using the knife to facilitate the forced penetration. It’s different than using a knife to cut her when they’re both making sandwiches in the kitchen — that I agree is not rape.
(Also let’s look at things from the complete flipside — if a man caresses his wife’s face/throat/breasts while they’re having sex, it has nothing to do with his penis, but it’s still considered part of the sex/love-making — not a disembodied gesture removed from the current circumstances). EK(Quote)
Woman Lawyer from NJ says:
Laura, you have been a bright spot!
Some here will accept anything from another culture while they forget we have one of our own — a culture I thought disapproved of rape. (My whole class in law school gasped when the professor called rape a “transaction.” Some here would not gasp.) I wonder what this young woman victim thought when the ruling came down. Here she was in the United States where it is supposed to be different and she learned just the opposite. Some here really have to stop thinking up “tricky oxymorons” and deal with the world as adults, or, in the alternative, sign a pledge that you will never accept a judgeship. Woman Lawyer from NJ(Quote)
Bianca (Netherlands) says:
Islam is a Retarded evil religion that should be destroyed. Islam discriminates against women, Gay people, Christians, Jews and everybody who thinks different. Hell is filled with Muslimmen. Bianca (Netherlands)(Quote)
Laura(southernxyl) says:
Bianca, are you speaking out of experiences that you personally have had? Laura(southernxyl)(Quote)
yankee says:
Right, that’s why the traditional marriage vows go “for better or for worse, for richer, for poorer, in sickness and in health, to love, to cherish, and to fuck on demand, no exceptions; until death do us part.”
A woman granting a blanket, irrevocable “consent” to sex whenever a man wants it isn’t a loving partnership, it’s a form of sex slavery. It’s reflective of the days when a married woman’s property was exclusively controlled by her husband.
A refusal to ever have sex would violate at least the spirit of the marriage vows, but your spouse is absolutely not entitled to sex under any specific circumstances. yankee(Quote)
Becky says:
oh give me a break. The discussion was only about fu** on demand only if you were only reading your own posts. I’m a woman. I have a husband who understands that marriage today is a contract between equals. I would be willing to work towards assuring that Sharia law is not implemented in this country.
So give me a break. Yes, What was done to this woman was horrible and she deserves the full force of the law. I would assume that if her husband was willing to beat her as reported then he was probably willing to rape her too. But apparently some of you are so high on your WOMAN HEAR ME ROAR high horse that you want to shuck the burden of proof and allow women the ability to just claim they were raped, after the fact with no actual evidence. No questions asked.
The laws against violence were adequate to help this woman get out of this terrible situation. So it is not the woman you care about, but your own weak point that anytime a married woman claims rape, we must believe her, no questions asked.
That doesn’t help women in the long run. It hurts them. Becky(Quote)
Dirt says:
Religious beliefs are not a defense when rape or any other crime is involved, Islam allows for lawful sexual relationship with animals and children but we still prosecute men who partake of Beastiality and Pedophilia. The judge’s ruling horrifies me, we are not a Sharia Law nation and factoring in his religious beliefs is assinine and irrelevant he raped the woman and used his religion as an excuse. This is not some babbling idiot living in a cave, if he can live and work in the west he is well aware that sexual relationships have to be consentual.
Negating her rights whilst pandering to his fanatical religious beliefs sickening, what’s next excluding honour killings from the criminal code because Islam doesn’t reconize them as crimes? Dirt(Quote)
Ken Arromdee says:
You’ve just stated that if a man tells his wife “have sex with me or I will divorce you”, that may be rape.
I hope you’ll think twice about this. Ken Arromdee(Quote)
Laura(southernxyl) says:
Ken, go back and read my comment that you quoted carefully, word by word. Don’t skip that whole clause that begins with the word “if”. Then perhaps you’ll tell me what you want me to think twice about. Hint: It can’t be “if a man tells his wife ‘have sex with me or I will divorce you’,” that’s always rape under every circumstance or even the circumstance that 99.999% of American women might find themselves in. Laura(southernxyl)(Quote)
Tonetel says:
If you think what’s happening in Europe can’t happen here, just talk to Ben and the judge in this case...
You people scare the shit out of me. Tonetel(Quote)
Ken Arromdee says:
And don’t skip that word “may” either. I didn’t say that your reasoning would always make it rape, I said it may make it rape.
If the man says “I want you to do your share of the laundry, or I divorce you” (or more realistically, is frustrated with a number of things of which never doing the laundry is only the last straw), and she can’t survive without him, is that slavery?
Can he ever legitimately say “do X or I divorce you” at all, or are those all assaults, slavery, rape, or whatever since she can’t survive alone? Ken Arromdee(Quote)
Laura(southernxyl) says:
Ken, this may be one of those inevitable male/female divides. I can’t put “have sex with me” in anywhere near the same category as “do your share of the laundry”. Maybe it’s impossible for you to understand what sex is to a woman, or me, to understand what it is to a man.
If a woman is in the position of having to choose between placating a man or literally not surviving, and he takes advantage of that fact by forcing her to have sex with him as a condition of her survival, that’s rape. I don’t care whether they’re married or not. Laura(southernxyl)(Quote)
Laura(southernxyl) says:
Look at this for instance. I view what’s described here as rape. I suppose that it would be possible to describe it as a series of mutually consensual transactions. And that is where we may have to agree to disagree and part company. Laura(southernxyl)(Quote)
skai says:
Ali says,” Our laws don’t allow us to treat other people that way” Are you kidding? http://www.thereligionofpeace.com http://www.faithfreedom.org .I can’t understand why are we all arguing about the rape or no rape,commited by this Morrocan man against his wife.From Muslim’s Quran Sura 2:223″ Your wives are a tilth unto you, so approach your tilth WHEN or HOW you will,but do some good act for your souls beforehand,and fear Allah.And know that ye are to meet Him[in the hereafter]and give[these]good tidingd to those who beileve” So you see according to Quran every Muslim has the right to have sex or rape his wife any time any where he wants.Period. skai(Quote)
skai says:
I agree with you wholeheartedly, not until we understand Islam’s EVIL full that we can start fighting back.There are still naive Westerners who think Islam is peaceful religion and we have no fear of it.www.bilp.tv/file/1382254 http://www.islam-watch.org Time to WAKE the sleepy ones.I suggest get a Book by Bat Ye’or “The Decline Of Eastern Christianity Under Islam” and read it. skai(Quote)
David Schwartz says:
Inside a marriage, consent can be presumed unless refused. A person who does not know they can refuse consent to their spouse cannot be a victim of marital rape. Nothing they say or do can evidence a withdrawal of consent unless they in fact intend to withdraw consent by those actions which they cannot intend if they honestly did not realize that they could.
A person cannot intend to do something he believes he cannot do. He can intend to attempt to do it and fail. He can intend to convince others he wishes he could do it. But he cannot intend to do something he believes it is not possible for him to do.
I agree that a person who cannot refuse consent cannot give consent. But because this was inside a legally-recognized marriage, consent need not be given. It must be affirmatively refused to constitute spousal rape. David Schwartz(Quote)
Laura(southernxyl) says:
David, I don’t know whether you and I are from Mars and Venus, or Saturn and Neptune, but we definitely don’t share the same planet. Laura(southernxyl)(Quote)
Automatic Caution Door says:
The defendant’s quote is transcribed as such:
Anyone have a clue what in the world the “c[an]” is standing in for here? I understand when these sorts of parentheticals are used to clarify a speaker’s unintended misstatement, or to provide a reader with some otherwise unconveyed context. But I can’t for the life of me figure out what other “c”-word could have been spoken in this simple sentence, demanding such clarification.
I’m really curious, almost to the point of being bugged about it. Automatic Caution Door(Quote)
Becky says:
rapist, like racist are two words that are accusation that are easy to make and difficult to prove. Because of that, both are words that are frequently abused and cheapend by those who wish to find unfair advantage.
It is tempting in this case, since the husband was a horribly abusive man, to say to oneself, “screw the guy, he’s a pig, throw the book at him.” NO one would care. But if you read the complaint, the evidence of abuse is overwhelming. The EVIDENCE of rape is almost nonexistent.
The irony to me is that those of you tut-tutting at others and claiming to be the champions of women are actually hurting women by making this a case about non-consensual sex rather than focusing on the abuse. Did he push himself on her. Who would doubt it? Did her rape her? Who would doubt that either? The guy did all kinds of bad things. If she comes back tomorrow and says he also lit a match to her hair, should we charge him with arson? I certainly wouldn’t doubt he’d be capable of that either. Hey, there’s as much evidence for that as there is the rape, so why not?
If someone can show me one tiny shred of real evidence of rape from the complaint, I’ll change my mind. Maybe I missed it. The law protected her from the abuse. It worked.
Women do not benefit when the word rape becomes watered down to point where all a woman has to do is point her finger and say rape and the suspect is simply presumed guilty. It in fact hurts women because the accusation becomes as meaningless as the word racist is today. That’s not to say that racism doesn’t exist, it is to say the accusation no longer holds sway due to excessive abuse of the term. Spousal rape should have no less a burden of proof than any other kind of rape. Becky(Quote)
David Schwartz says:
So, do you believe a person can intend to do something they believe it is not possible for them to do? Or do you believe a person can withdraw consent without intending to withdraw consent? Or do you believe a man must recognize his spouse is withdrawing consent even if she does not intend to do so?
I’d like to understand your position, but I can’t figure out what it is. David Schwartz(Quote)
John Herbison says:
For those who would minimize the seriousness of what happened to this eighteen year old woman, consider that with the history reported in the appellate opinion, if the wife had killed the husband under circumstances where she reasonably believed that an assault was imminent and was charged with murder, she would have been entitled to a jury instruction on self-defense, and she would have had a decent chance of acquittal.
(I once assisted in the defense of an abused wife who shot her husband in the back and was charged with first degree murder in rural West Tennessee. The history of abuse related at trial was substantial, including prior vaginal and anal rapes with broomsticks. At the time of the fatal incident, the husband had his back to the wife, but he was holding two broomsticks. The wife’s testimony is that, if he had been facing her, she would have been unable to shoot. She had not resisted the prior attacks, but this time she was pregnant and feared that the fetus would be harmed. The first jury were unable to reach a verdict, and upon retrial she was found guilty of voluntary manslaughter. The judge sentenced her to three years probation; she performed her community service work at a battered women’s shelter.)
Some commenters have suggested that here there was no criminal charge against the husband. The appellate opinion indicates to the contrary. There was a separate criminal proceeding pending at the time of the hearing on the restraining order. The appellate opinion does not include the disposition of the criminal charge. I hope the SOB did prison time. John Herbison(Quote)
John Herbison says:
And BTW, I hope that Ben and David Schwartz are unmarried and will always remain so. Just my opinion.
(I know, opinions are like assholes–everyone has (at least) one, and neither one’s opinion nor one’s asshole should be offered casually.) John Herbison(Quote)
EK says:
So, do you believe a person can intend to do something they believe it is not possible for them to do?
What I find hilarious about your post, is that you’re speaking about consent as this kind of abstract entity divorced from actual circumstances. A person who says “no, stop, you’re hurting me” is being pretty clear on whether she wants to have sex or not, regardless of whether she feels that she’ll have any power to stop it — or regardless of whether she even knows how to define consent. All around the world there are children married off to older spouses (usually men); these children often don’t know the first damn thing about their legal rights (usually they don’t have much of any) or about what consent is, and yet even people in their own culture often acknowledge that when you’re locking the kid in a room, or strapping them to a bed and forcing sex on them in spite of pain and protest, it’s marital rape.
I’m pretty sure if the genders were reversed — a 17 year old boy married to an older woman who dominates him and forces him to have sex and suffer anal penetration although he’s crying, asking her to stop, and telling her that he’s suffering pain — you’d probably quit acting so puzzled about the meaning of consent. But who knows, maybe not. EK(Quote)
Woman Lawyer from NJ says:
The man is here in the United States of America. He comes under our laws, not Sharia, and we don’t believe in spousal rape. This religious defense is offensive, and none of you would advance it if he were a Christian or a Buddhist or a Hindu from another country. These Muslim men know things are different here, but you give them a free pass. That’s frightening. Woman Lawyer from NJ(Quote)
David Schwartz says:
That’s simply not true. For example, a man and his wife could agree that the woman will act like she’s resisting but if she actually wants to withdraw consent, she’ll say the word “potato”. In that case, “no, stop, you’re hurting me” would not indicate a withdrawal of consent.
You are also conflating “power to stop it” with “withdrawal of permission for it to continue”. Certainly a person who is forced to have sex is not consenting merely by failing to stop it. What a person must do, in the marital case, is revoke permission. In the non-marital case, failure to give permission is sufficient.
If the woman genuinely believed she could not withdraw her consent, then her protestations are analogous to the role-playing case. She knows that her words will not revoke consent and does not intend them to revoke consent. She intends them to convince her husband not to have sex, not to withdraw her permission for him to have sex.
I’m not saying that’s the case in this particular case. I’m saying the argument that nothing she said was intended to revoke consent is a reasonable argument in the context of marital rape laws. And the physical force not incidental to sex, of course, is a separate issue. (I’m not aware of any law that says marriage includes presumed consent to being pinched or subjected to physical pain.) Another argument that can be made in this case is that the use of physical force to prevent her from withdrawing consent vitiates the implied consent. David Schwartz(Quote)
Ben says:
Entitled? No. A husband should always honor his wife.
A matter for police involvement when violence hasn’t occurred? Also no.
Everyone taking the contrary position (to mine) on this topic wants the police and the courts involved in second-guessing marital sexual consent. I oppose that. In cases without violence, marital sex is not a government concern. In cases with violence, the violence is a government concern but the marital sex is not. No government involvement in marital sexual relationships. Just no.
I can only guess that some people want government and police involvement in every facet of everyone’s life. Or the reasoning ability of some of the commenters here is so simplistic that they can’t make the connection between “illegal” and government and police involvement. Or they just hate men. Or some combination.
(A few seem to want the government to enforce these laws selectively, regardless of how they are written. So the police and prosecutors have the option to investigate anyone’s marriage and we should trust them. Because trusting governments with extra, unneeded powers is a really good idea.)
Anyway, not a single person seems to be able make a single argument why the government has an interest in marital sex. Nor has anyone come up with a single societal benefit for spousal rape laws. Ben(Quote)
EK says:
For example, a man and his wife could agree that the woman will act like she’s resisting but if she actually wants to withdraw consent, she’ll say the word “potato”. In that case, “no, stop, you’re hurting me” would not indicate a withdrawal of consent.
Of course in that case it wouldn’t, because they’d already worked out the terms of their ‘role play’ beforehand; if no such discussion ever took place, then the words ‘no, stop, you’re hurting me’ would be considered an actual plea to stop by the vast majority of people who hear those words, especially when repeatedly stated and accompanied by sobbing. So yes, these things are rooted in context. In this particular case, there’s no evidence to suggest that the wife was play-acting resistance based on something they’d worked out before.
Another argument that can be made in this case is that the use of physical force to prevent her from withdrawing consent vitiates the implied consent.
As another commenter pointed out earlier, marital rape laws in the US are brought to bear particularly in cases involving the use of force, physical compulsion, and threats of death and bodily harm. EK(Quote)
David Schwartz says:
If the husband and wife had a mutual agreement that the wife could not withdraw consent and they both believed that this agreement was in force, then they were play-acting resistance based on something they’d worked out before. It may or may not apply in this case (and I gave some reasons why it wouldn’t above) but it’s a legitimate argument. David Schwartz(Quote)
Anatid says:
You’re using ambiguous language here, and there’s the problem.
Should these women have the ability to claim they were raped? Absolutely.
Should, in cases like this one, we believe them? Probably. Laura and I say yes. You say no. Let us have our differing opinions.
Should, in cases like this one, the aggressor be prosecuted to the full extent of criminal law and convicted without a shadow of evidence? Probably not. Evidence is good.
The simple fact that rape is hard to prove and some people are often unwilling to even so much as as consider entertaining the victim without loads of hard evidence is one of the reasons why rape goes underreported. Why open that can o’ worms if it’s only going to be emotionally painful? Even if we’re not going to relax our legal criteria for prosecution (let nine guilty men walk free...) we can still relax the social stigma against reporting rape.
The single biggest controllable factor (the fact of the rape itself, and the genetic/developmental factors, aren’t really controllable) in determining whether a rape victim will develop PTSD is whether or not they have social support. Do their friends and family and community come together to support the person through their time of crisis, or is the person ostracized and accused of being a liar and isolated from the people best-equipped to help them?
We need burden of proof to send a man to jail. We don’t need burden of proof to give a crying person a hug.
... [c]ould?
The government does not have a camera in your bedroom, recording at all times, ready to prosecute you with rape the moment you physically force your wife into having explicitly nonconsensual sex with you.
The only way the government will prosecute you with rape is if you wife goes to the police, files a report that you have raped her, and gathers sufficient evidence that the DA sees fit to press charges and take the case to trial. If you wife is doing this, then presumably you had a breakdown of good marital communication a long, long time ago.
Don’t marry anyone that you’re going to have such drastic communication problems with.
Also, you haven’t answered: does this mean your wife has the right to beat you, tie you up, and have nonconsensual anal sex with you?
Because rape hurts people. There’s a reason why rape is considered a crime apart from simple assault or battery. Although we consider factors other than simply the impact on the victim, the fact that there is such an impact is the reason rape is still a crime today. Having someone physically overwhelm you, take away your power to command your own body, treat you like a sub-human object, and violate you in the most intimate possible way is traumatizing for most folks. It’s often even worse when that violation is coming from someone you thought you could trust, like a friend or a family member.
Should a wife be able to trust her husband? Anatid(Quote)
David Schwartz says:
And just to clarify why it may not apply in this case, it’s because of his use of physical force and threats.
If a guy meets a woman at a bar and they go back to his place and he asks her to consent to sex and she says yes, the situation is substantially similar to the couple — she has to withdraw consent or it’s not rape. Now suppose he says, “good, because if you had said or do say no, I’d beat your face in.”
This clearly excuses her from having to communicate that she has withdrawn consent if she believes he would actually cause her physical harm. It also excuses her from having to intend to withdraw consent — if she reasons “I’d rather have sex than have my face beat in”, it is still rape.
In this case, he used force to cause her pain. Her failure to revoke consent, or even to intend to withdraw consent, is therefore similarly excusable. It can still be rape.
And, of course, the force is a crime in itself. David Schwartz(Quote)
Laura(southernxyl) says:
Yes, David, if the woman doesn’t think she has the right to say “no” but she says “stop you’re hurting me” then yes, she is withdrawing consent whether she thinks she is or not.
I don’t know why you are glossing over the fact that this young woman was in an arranged marriage to a man she had never met. Why are you assuming that she consented to the marriage? Or are you going to tell me that since she probably couldn’t refuse the marriage, that implies that she consented to that and all the sex her husband wanted after?
You and I agree that if consent can’t be withdrawn, it probably can’t be given. How you get from that, to it’s not possible for a man to rape his wife if she can’t withdraw consent, is utterly beyond me.
Finally, I think it’s really weird that sex for a man is so damn important that he’ll curl up and die if he doesn’t get it, while simultaneously being no big deal for the woman and she should just give in, already. Wow. Laura(southernxyl)(Quote)
Laura(southernxyl) says:
I’m not so sure I am saying yes so much as that we should just entertain the possibility that the girl was raped. The altenatives are that (a) even if we accept that she said “stop you’re hurting me,” that doesn’t mean she didn’t consent (Chris), and that (b) men can do whatever sexual things they want to their wives, it can’t be rape and the gov’t needs to stay the hell out (Ben), and (c) if a woman can’t withdraw consent then q.e.d. if her husband forces her it can’t be rape (David). And that if a man forces a woman to have sex as a condition of pure survival, that’s not rape (several people). Becky morphed me arguing with these things, to me asserting that women always tell the truth. ???? Laura(southernxyl)(Quote)
Anatid says:
Yeah, that’s a better way to put it. Anatid(Quote)
Incognito says:
I hope you are not being serious when you make this comment, because the definition of rape is “any act of sexual intercourse that is forced upon a person.” So yes, non-consensual sex would and should be considered rape. If you were being serious, I assume you are one of those who believes that “no” means “yes”. Incognito(Quote)
David Schwartz says:
Even if the two of them agreed that her saying “stop you’re hurting me” would not constitute withdrawing consent? So you would prohibit role playing inside a marriage? If “no” genuinely doesn’t mean no because the woman doesn’t intend it to and the man knows this, consent has still been withdrawn?
Either they’re married or they’re not. If the legitimacy of their marriage is in question, then he loses the ability to presume consent. Then it’s rape. So far as I know, there is no legal basis for different kinds of marriage.
Because inside a marriage, the partners are legally entitled to presume consent. Just as a woman who is too drunk to give consent can be raped even if she says “yes”, a married woman who is unable to withdraw consent cannot be raped even if she says “no”. (Though she can be assaulted.)
Nobody is saying that. We’re simply analyzing the giving or withdrawal of consent and the consequences. The situation is precisely the same if the gender roles are reversed. David Schwartz(Quote)
Nifter says:
I suppose this was a male judge that made this decision. Sure as hell sounds like it. Nifter(Quote)
Anatid says:
You missed a crucial phrase: if the woman doesn’t think she has the right to say no. I cannot conceive of any relationship in which a married woman would not know that she has any right to give or withhold consent, and simultaneously be engaging in roleplaying where terms of giving and withhold consent have been explicitly agreed-upon by both partners beforehand. They seem mutually exclusive. Anatid(Quote)
Michael says:
Ben, did you lose a bet?
That’s the only way I can rationalize your posts here. Michael(Quote)
Laura(southernxyl) says:
David, just to be clear, you are saying that if a woman is pushed into a marriage without her consent, then all sex within the marriage is assumed to be consensual.
That looks like the most head-exploding example of male entitlement to women’s bodies that I have ever seen in my life. I have to give it to those left-wing feminists — when it comes to your particular subset of the male species, they are spot-on.
The very idea that you would suggest that a woman in those circumstances might seriously thought to be consensually playing “rape” when she says “stop it hurts” is the probably the most appalling thing I’ve seen recently. Laura(southernxyl)(Quote)
ShelbyC says:
Er, I believe the comment was an objection to the fact that the activity in question was not being called, “rape”. ShelbyC(Quote)
JJ says:
We would not be talking about this if it was a white man. The laws of this country are the same for all forget race (or supposed to be). This is stupid and the people that are trying to make some kind of legal argument are idiots. Just one of you white wannabe lawyers try this with your wife and see what happens in a court of law. JJ(Quote)
yankee says:
The societal benefit from criminalizing marital rape is the same as the societal benefit from criminalizing nonmarital rape: it deters potential rapists and punishes rapists who are not deterred. yankee(Quote)
David Schwartz says:
Yes, assuming the marriage is recognized by the law.
I didn’t write the law. The law says consent can be presumed in marriage and the law doesn’t provide for different categories of marriage.
If that is in fact what happened, then that is in fact what happened. If her words were intended to convince him not to want to have sex with her and were not intended to revoke consent, then they were essentially engaging in mutually-agreed upon role playing.
If they both believed she had no right to revoke consent, then she was trying to convince him not to have sex with her and not to revoke consent. And he correctly understood that she was not withdrawing consent. This is akin to a form of roleplaying where “stop” means “I want you to not want to have sex with me while still understanding that you have my consent”.
(Again, though, in this particular fact pattern, the force he used prior may vitiate the consent.) David Schwartz(Quote)
InfidelHere says:
Islam means “peace” IF…and this is a HUGE “IF” when one “submits and surrenders to allah and THEIR way (sharia) of life”. Otherwise…all bets are off and those that follow this madness as founded by their terrorist/pedophile prophet are simply doing what the koran and hadith instruct them to do.
Case in point, the koran even instructs muslim men how to BEAT THEIR WIVE(S)!?! (4:34)
The koran to these people is ABSOLUTE and hence, the reason why this madness has ALWAYS taken place since muhammad wandered out of his cave proclaiming he spoke to allah.
Freedom and Islam do not and have never gone together. History is clear on this. InfidelHere(Quote)
Anatid says:
As I understand it, she had no concept of consent. There is no sex outside of marriage, whether she likes it or not, and there is sex within marriage, whether she likes it or not. I get the impression that her thought process was not “Well, I fully understand the American definition of consent, and I understand that I am not able to withdraw consent due to cultural but not legal constraints, so I choose not to withdraw consent because I am adhering to my cultural beliefs.”
We take it for granted that we share an individualistic culture, in which each person is (theoretically) equal, and each adult may make their own decisions. Free will means something very, very different when your culture holds none of these to be true. Just like Americans have trouble understanding concepts like hasham or amae because they are so alien to our culture, I suspect she has trouble understanding our notion of consent.
Can you give or withhold consent when you don’t even know what consent is? That the idea that you are allowed to dictate what happens to your person is completely unknown to you? Perhaps in these instances, we should err on the side of caution? Anatid(Quote)
David Schwartz says:
Under many circumstances, no. This is why a severely retarded person cannot consent to sex.
In some cases, we may err on the side of caution and let a rapist go free. If we are in a case where we have to make a decision and there is a possibility of error, it’s only because there are cases on one side and cases on the other side and we don’t know which case this is.
In the case where neither the woman nor the man know that she can withdraw consent and the man is permitted to assume consent, then words that otherwise would indicate withdrawal of consent are likely to actually mean that, though the woman consents, she’d prefer her husband not have sex with her. If that’s what she meant and that’s how he took it, it’s not spousal rape.
She was essentially saying may have been “I will have sex with you if you insist, but I’d prefer you not insist”. That is not a withdrawal of consent which is what the law requires for spousal rape to exist. David Schwartz(Quote)
Laura(southernxyl) says:
Is consent of both parties not required for marriage?
And I don’t care what is legal in other countries. If in another country, people can marry their children or animals, that would not transfer here.
It looks to me like David is putting together a chimera — using a bit of law here and a bit there to put together a framework in which rape is legal. Laura(southernxyl)(Quote)
John Herbison says:
What law are you referring to? Apparently not the criminal law of New Jersey that applies to the subject of the post.
See, State v. Smith, 85 N.J. 193, 426 A.2d 38 (1981). The discussion of spousal rape by the Supreme Court of New Jersey, including the common law antecedents, is thorough and quite informative. John Herbison(Quote)
Laura(southernxyl) says:
Also, this:
“In some cases, we may err on the side of caution and let a rapist go free.”
My preference would be that we err, if err we must, on the side of common sense, and send an SOB that would “have sex with” a sobbing 17-year-old to prison. Maybe somebody will explain to me the tragedy there, even if he is not a “rapist” by David’s very exclusive standards.
Also, because I had started skipping Ben’s nauseating posts, I missed this:
“Anyway, not a single person seems to be able make a single argument why the government has an interest in marital sex.”
Here’s an argument. The government’s sole reason for existence is not to make sure every married man can rape his wife with impunity. It actually is there to protect women too. Government of the people, by the people, for the people, is not government of the women, by the men, for the men. Laura(southernxyl)(Quote)
Chuck Hill says:
There is a lot of discussion here treating this as a contractual question of her consent to this alleged religious right. There are, however, two words that have been scarcely mentioned, but which should dispel any notion of consent: arranged marriage. Chuck Hill(Quote)
David Schwartz says:
I am talking about any legal system that both recognizes the marriage and whose spousal rape law presumes consent. I was not addressing, nor attempting to address, New Jersey law specifically. And as I made clear, for at least the reason that force was used, my argument doesn’t apply to this particular fact pattern.
I would hope no State recognizes a marriage obtained without the consent of both parties. However, I think the idea that we would recognize different types of marriages as having different legal statuses is probably a bad one. This is actually a fairly interesting problem.
The better solution is to educate women about their rights. Just as it’s reasonable to expect a guy who comes to the United States to learn that he can’t force his wife to have sex with him here, so it’s reasonable to expect a woman to learn that she has the right to say no, obtain a divorce, and so on.
In California, a woman can wake her husband up by performing oral sex on him. She need not obtain his consent. If he doesn’t want the sexual contact, I would argue that it’s rape (or at least sexual assault) since he has no opportunity to consent or not.
This is, in fact, legal. It is simply not possible to criminalize all acts that could reasonably by considered rape. Similarly, there are legal ways to kill people, steal from people, and so on. I’m not sure why you’re blaming this on me though. David Schwartz(Quote)
John Herbison says:
A couple of comments about the “contract” theory of consent. The marriage was arranged before the parties came to the United States. I surmise that that may have been lawful in Morocco or wherever the “arrangements” were made. Assuming arguendo that the marriage was validly contracted where it was arranged, (and that the wife’s “consent” to unwanted sex was part of the consideration,) a court in this country may decline to enforce a contract where enforcement thereof would contravene public policy. Since New Jersey law did not distinguish between sexual assault perpetrated by one spouse upon the other and sexual assault of anyone else, enforcement on a contract theory would contravene public policy and would have been properly denied. John Herbison(Quote)
John Pack Lambert says:
I think the relevant precedent to this case is Reynolds v US and other polygamy cases, although they of course are criminal and none that went to the supreme court have involved allegations of rape.
In Reynolds v US the Supreme Court ruled that a religious duty to do something did not exempt someone from being punished by a law that was passed specifically because the religion of the person being prosecuted considered this action a religious duty.
This case fails that high threshold even. First, the New Jersey law was not passed to punish Muslims. There were probably no practicing Muslims in New Jersey when the law was passed. Secondly while the man alleges that it is his religious belief that he has a right to have sex with his wife whenever he wants, that is not the same as a duty to have sex whenever he wants.
Just because your religion does not condemn beating your wife does not mean you can not be prosecuted for doing so. Just because your religion tolerates use of heroin or cocaine, does not mean that exempts you from punishments for such.
There is no real first admendment issue here. The guy is not claiming that he had a religious obligation to have sex. He is just claiming that he came from a background where such was allowed. Well, it may be allowed in Morocco, but not in New Jersey. Something is a crime whether or not you realize such.
The fact that the question here is not jail but restraining orders and it is not in criminal court actually cuts both ways. Since it is not a criminal case, the burden on the plaintiff is less than the burden on the state, so the defendent should have his personal opinions count even less. John Pack Lambert(Quote)
John Herbison says:
Can you identify any jurisdiction in the United States whose current law meets these criteria? John Herbison(Quote)
Proud to be PC says:
You should stop exercising racial, religious, and class privilege by criticizing the behavior of others. Part of living in multicultural America is not criticizing behavior that one may, in their narrow-mindedness, disapprove of.
Referring to people by their religion is also a sign of narrow-mindedness.
Being the majority group in an area does NOT give you the right to criticize members of other racial, religious, and ethnic groups.
In multicultural America, liberal white values are the past. Get used to it. Proud to be PC(Quote)
Proud to be PC says:
You should stop exercising racial, religious, and class privilege by criticizing the behavior of others. Part of living in multicultural America is not criticizing behavior that one may, in their narrow-mindedness, disapprove of.
Referring to people by their religion is also a sign of narrow-mindedness.
Being the majority group in an area does NOT give you the right to criticize members of other racial, religious, and ethnic groups.
In multicultural America, liberal white values are the past. Get used to it. Proud to be PC(Quote)
John Herbison says:
Proud to be PC, what is your view of whether a state may criminally punish those Christians who, out of sincere religious conviction borne of a literal reading of parts of the New Testament, handle poisonous snakes during worship services, thereby endangering other persons present? John Herbison(Quote)
John Pack Lambert says:
KCrary,
Family Court Judges are probably anonymous in New Jersey.
Contrary to what was alleged above I am almost 100% certain that this judge is appointed.
The family court system has many flaws. Why this case has not been taken to criminal court is a good question. I think because it would turn into a tough attempt to prove the alleged circumstances, and convince the jury that there was not some implied consent on the husband’s side.
There is also the factor that a rape conviction would probably be grounds for revoking his visa and deporting him. New Jersey and New York both have a disturbing tendency to not deal with Muslims they know are breaking the law.
The New York Times wrote an article where it revelaed that there are many Muslim men in New York in their mid-30s who take a second wife from Ivory Coast using a phone marrige. These wives tend to be about 15, come here on tourist visas and quickly become undocumented immigrants.
Marci Hamilton who attacks the Utah Attorney General’s office because it has only prosecuted polygamy cases involving underage marriage and has not gone after other polygamy cases (in part because they have good reason to fear such would lead to the Supreme Court upholding polygamy as legal, and in part because they just don’t have the resources and sending a man with five wives, all above the age of 20 to prison, and leaving 30 children without a father in their lives really does not look good). Marci Hamilton complains about Utah’s only having successfully prosecuted cases involving underaged polygamy, such as Tom Green and Warren Jeffs, but she never complains about New York failing to do any prosecution of multiple cases of underaged polygamy.
Do not get me wrong. I support the building of a Muslim mosque in lower Manhattan and think the opponents of the project are a bunch of bigots who do not understand freedom.
I also think we need to regularize the status of undocumented immigrants who are here, especially those who have no record of arrests, and even more especially those who have child-citizens, jobs and are contributors to society.
However, I think the family court system is flawed. It has been used to restict too many people’s religious freedom, with injunctions against them taking their child to the Church they chose and is too intrusive. With no fault there has become a free for all investigation of everything about a person.
If there are allegations of criminal behavior these should be taken up in criminal court, and not hinted at in family court. I also think the process of removing children from their parents needs to be moved more into criminal court. In family court it can be done with almost no justification, thus creating a system of severe punishments that does not recognize basic civil rights. The amount of abuse that has gone on in foster homes, sometimes in cases where it turned out there was no abuse in the original home, should cause us to pause and wonder if rushing to judgement that children are safer away from their actual parents makes any sense. John Pack Lambert(Quote)
David Schwartz says:
John Herbison: In 13 States, I believe. I haven’t been able to find an updated list though, so things might have changed since 2001 or so. (And the number might be much less now.) David Schwartz(Quote)
Proud to be PC says:
If people choose to attend religious services with poisonous snakes, it is their choice. Just as spectators at baseball (or hockey) games assume the risk of being hit by a ball (or puck), those attending religious ceremonies assume the risk of being bit by a snake.
The government has no more right to interfere with snake-handling at church than it did to criminalize the use of peyote by Native Americans or to attempt prohibit Catholics, during Prohibition, from receiving wine during Communion. (Communion wine retained an exemption, at least at the federal level). Proud to be PC(Quote)
Proud to be PC says:
If people choose to attend religious services with poisonous snakes, it is their choice. Just as spectators at baseball (or hockey) games assume the risk of being hit by a ball (or puck), those attending religious ceremonies assume the risk of being bit by a snake.
The government has no more right to “protect” Christians by interfering with snake-handling at church than it did to “protect” Native Americans by criminalizing their use of peyote as their religious service. Interestingly, during Prohibition, the government sought to “protect” Americans from alcohol, but allowed Catholics to drink Communion wine containing alcohol.
it did to criminalize the use of peyote by Native Americans or to attempt prohibit Catholics, during Prohibition, from receiving wine during Communion. Proud to be PC(Quote)
Proud to be PC says:
John Herbison:
Proud to be PC, what is your view of whether a state may criminally punish those Christians who, out of sincere religious conviction borne of a literal reading of parts of the New Testament, handle poisonous snakes during worship services, thereby endangering other persons present?
If people choose to attend religious services with poisonous snakes, it is their choice. Just as spectators at baseball (or hockey) games assume the risk of being hit by a ball (or puck), those attending religious ceremonies assume the risk of being bit by a snake.
The government has no more right to “protect” Christians by interfering with snake-handling at church than it did to “protect” Native Americans by criminalizing their use of peyote as their religious service. Interestingly, during Prohibition, the government sought to “protect” Americans from alcohol, but allowed Catholics to drink Communion wine containing alcohol. Proud to be PC(Quote)
John Pack Lambert says:
As I understand it the violent or non-violent nature of sexual enconter is not the key to rape. Rape does not mean that the actual sex-act itself is forced, but that the person is given no choice but to consent.
If a women is kidnapped and taken to a dark room and tied up, the fact that her assailant may use physical and sexual stimulation to lessen the violence involved in the sex-act itself does not lessen the fact that the crime is rape.
I guess I had always assumed that when we spoke of forcible sex we were talking about the use of force to compel a person, and not requiring that the force be involved at the deepest level.
I think I also understand some other arguments more as well.
From a legal standpoint the questions are to what extent did penetration occur and to what extent was violence and threats of violence used. The violence does not have to connect to the penetration, and thus in the case of a women who we know has had sexual intercourse with the man in question, disproving rape is not possible with physical evidence.
This is because holding a gun to a women’s head and saying “have sex with me or I shot” constitutes rape, and the process beyond that point is inmaterial to there being a rape. Thus the notion of “physical evidence of rape” in a case where there is no claim that this was the only sexual encounter between the two parties is not a workable argument.
The counter is also true. It is possible to consent to all sorts of unplesant things. Rape is not a crime like cutting off someone’s hand, where the act is irrespective of consent. Inherently at least from a legal perspective rape is a situation that can be consernted to, but has not been.
A poor analogy is, if I give you $200 there is no crime, if you hold a gun to my head and tell me to give you $200 that is theft. That does not get us into marital rape, but it does address the fact that the talk about “lack of physical evidence” is ignoring what rape is and making false assumptions.
I think I do sense what Becky is laiming there is no physical evidence for, but that is not what rape is. John Pack Lambert(Quote)
John Pack Lambert says:
I am not aware of any actual criminal prosecutions connected with religious peyote use. This is one of the egregious parts of Employment Division v Smith. At the time the DEA had a policy of not prosecuting religious use of peyote and the case was not related to a crime.
Essentially from a standpoint of what was actually at stake, the question could have been about someone who lost their job because of not working on their holy day and the state trying to avoid paying unemployment benefits.
Employment Division v Smith was not a criminal case, and Scalia committed a travesty of justice by ruling on it as if it was and pretending that it was a neccesary ruling to uphold the police power of the state.
Proud to be PC, you ignore the fact that multi-culturalism if taken to its extreme destroys all semblance of law.
Beyond this, do you support people based on their understanding of the Bible, or what they want the Bible to say, not taking their chidren for medical treatments? Oregon is in the process of prosecuting some parents for this very thing.
You may say that you support parents having the right to control the raising of their children. However, for it to have any meaning you will have to proactively fight the stance of the state.
The fact of the matter is that we still endorse protection of th general welfare, and that means that use of force and threats of violence to obtain sex is a violation of the law, and an attempt to say that the “culture” of an individual allows them to do so is an egregious ruling. John Pack Lambert(Quote)
scorpio says:
Forget the technicality. What is troublesome is that Sharia Law is a Islam law, which allows muslim men to abuse women in many despicable ways, and the judge diregarded our law and ruled in favor of Sharia Law, which is NOT the law of the land in US.
And, with a risk to be mis-interpreted as racist etc. — is it possible for a devout Muslim to become a good citizen of the United States or any other nation formed and shaped by the Judeo-Christian tradition?! scorpio(Quote)
John Pack Lambert says:
Scorpio,
You are ignoring the fact that Sharia law does not require a man to have sex with his wife if she says that she does not want to.
Thus a man can both be a devout woman and respect his wife’s desire not to have sex.
The problem with many discussions on this and related issues is the assumption that there are absolute conflicts between various positions.
Your whole gripe ignores that a large percentage of American Muslims have convert and not immigrant roots in the faith. I have seen this group put anywhere from 25% to 50% of American Muslims if you count all Muslims who are converts or who are descendants of converts in the US. The question of how you factor in the children of marriages between converts to Islam and Muslim immigrants, especially when the conversion is closely connected with the marriage is an issue that is rarely addressed, but since they do not fit the rubric of Muslims “become a good citizen of the United States” making the whole question utterly bizarre.
There are people who were born and raised in the US and then became Muslims. There is too much press given to the few who take this as a path to oppose the US government, and too little press given to the many who follow this path but still support the US. At one point the highest ranking Muslim in the US military was a convert to Islam.
Both Muslim members of congress are converts to Islam. This makes it all the more ludicrous that one member of congress tried to turn the Qu’ran used in the oath issue into an issue of immigration. It is actually a direct outgrowth of the first admendment. People who claim to believe in the constitution seem so willing to hold to its principals in application. Of course there is much hypocrisy relate to rights and freedom manifested by all sides in political debates. John Pack Lambert(Quote)
John Herbison says:
FWIW, the Supreme Court of Tennessee disagrees with you. State ex rel. Swann v. Pack, 527 S.W.2d 99 (Tenn. 1975) cert. denied 424 U.S. 954 (1976). John Herbison(Quote)
Laura(southernxyl) says:
John’s right here, as far as this goes.
But look at what the judge did: He specifically cited the husband’s supposed custom in saying that since the man thought he was entitled to sex w/o consent, he did not intend to rape and therefore did not rape. Basing all of this, of course, on what the wife said; which, if you’re going to believe her at all, should draw you to conclude that he raped her. The defendant didn’t have to broach this defense at all; the judge did it for him.
Guys, I understand that we have presumption of innocence here, and nobody wants to be convicted of rape who actually isn’t a rapist. But if you want us to get behind this, the laws are going to have to be drawn up in such a way that women are actually protected. If David is right, and the law allows women to be raped by their husbands under any circumstance at all, we aren’t going to be all that compulsive about that whole presumption-of-innocence thing. This is a two-way street. Laura(southernxyl)(Quote)
Anatid says:
I had no idea that intent of the rapist was held under consideration in rape cases. Drunken frat boys who just intend to show their dates a good time, molesting parents who just intend to express their “love” for their child ... Most of the people I’ve met in life who have done wrong had no intention to do wrong, and largely didn’t view their actions as wrong. They were wrong anyway. Anatid(Quote)
Externality says:
Actually, peyote users were prosecuted during the Bush (43) administration, sometimes in conjunction with state prosecutors.
See for example, State v. Mooney, in which Utah authorities prosecuted a Native American church (established in 1918) and some its members for using peyote. The Utah Supreme Court ruled in favor of the defendants, holding that criminalizing religious use of peyote would infringe on the defendants’ First Amendment rights.
http://www.utcourts.gov/opinions/supopin/mooney062204.htm
http://www.cognitiveliberty.org/news/utah_peyote_case.html
The federal government then arrested the individual defendants on federal drug charges. Transcripts of the federal proceedings (e.g., detention hearing) are available online. The defendants ultimately agreed, as part of a plea bargain, to refrain from using peyote until it was legalized for use by Native Americans who belonged to non-federally recognized tribes, regardless of religious affiliation. That the defendants belonged to a church established in 1918 was irrelevant to the government.
http://scofacts.org/Mooney-18-transcript.html
http://scofacts.org/Mooney-71.pdf (ruling from detention hearing)
http://scofacts.org/merkey.html#mooney
http://64.38.12.138/News/2004/004014.asp
As of 2008, the federal government still refused to return their peyote.
http://heraldextra.com/news/local/article_ac30552a-676f-57a5-b547-82dd31e0b4b9.html Externality(Quote)
Laura(southernxyl) says:
Anatid, look at the guys here who have expressed concern that they might “accidentally” rape their wives if the laws are drawn up to actually protect women. Same thing. It’s mind-blowing. Laura(southernxyl)(Quote)
Russ says:
You don’t need proof to give a woman a hug. But even when there’s proof that the man didn’t commit the rape. He is still persecuted by society. In this instance abuse is in evidence however with the opinion I read. Rape was just an accusation. This needs to be proven before a man is publicly accused.
Russ(Quote)
Mandy Australia says:
No means No forget religion excuses or indeed the law. Ayaan Hirsi Ali is in Australia trying to adress this same problem, been a Muslim does not give her husband rights in a country where his beief should not be accepted, another thing that was not taken into consideration its the fact that she was pregnant if she lost the baby would that be murder? Mandy Australia(Quote)
Jo says:
You guys are future lawyers?
God help the women in THIS country.
Human rights — are that — for HUMANS — not just men, regardless of their religous or otherwise rationale for mistreating females.
This discussion thread was a real eye-opener. I pray I never need a lawyer.
“Justice is incidental to law & order” — ain’t that the damn truth Jo(Quote)
Sharia law in NJ says:
New Jersey judge upholds Shira Law defense - TideFans.com says:
Kenyo says:
I am a muslim and I am very sad to know so many people have misperception about Islam. Don’t judge the book from its cover and don’t jump the gun if your knowledge about something is not sufficient enough to make a fair judgment. Most people do not understand the essence of Islam and its teachings yet have made opinion about it full of hatred. If a muslim does bad things doesn’t mean Islam is bad. If he says it’s in the name of Islam, it should be clarified if it is indeed from Islam as religion. Too many people force their own interpretation of its teaching even among muslims, at the end they all lead to misunderstanding jeopardise the inter and intern religion peace and harmony. Never in my religion says one can rape his wife and the wife has no right to express her objection to her husband’s demand. But if not with the wife to whom then the husband should turn to with his needs if this is to carry on to happen, the wife should then understand her duties as a wife. If there’s no way both can perform their duties well in marriage then they can opt to divorce, this is the best option and it is allowed in Islam. No, Islam doesn’t permit violence or allow forced marriage. Please read through our Qoran & Hadiths to understand this. Need to seek the consent from the girl, if it is an arranged marriage. Only then can the marriage be proceeded and both parties should be kind to one another. Forced marriage is not in Islamic teaching. I am a muslim woman and I have never felt I have been mistreated in Islam in any way. Only when you have a better understanding of my belief then you can understand why. Kenyo(Quote)
ManlyStanly says:
Who was the judge that made the initial decision? Why does he get the annonymity yet the Morrocan (moron)husband, and wife names are all over the internet.
Where is the transparency in the courts? For sure I would want to know, if a similar occurance would occur and avoid that judge like the plauge (Sharia)! ManlyStanly(Quote)
Kenyo says:
Many people have this misunderstanding in regards with islamic rules (Sharia). It is meant for muslims. In a secular country as S’pore, Sharia is established to manage muslim’s affairs, run side by side and complement perfectly with the state’s laws. There should not be any worries and confusions for non-muslims as there’s no mix-up and overlapping with the state’s laws.
Most people, among non-muslims and even muslims itselves tend to mix-up religion and tradition. While a tradition is not necessarily islamic, Islam shows its stances to some tradition. I am not wearing an abaya or a burqa but it doesn’t mean I am not a muslim. I cover myself in my own way, following my own custom and yet still keep up with islamic values. As for the tradition of circumcision for male and female that has long been practised when Islam came, Islam regulates them. Islam says “for a man to be the follower of ‘the prophet’, he needs to be circumcised”. And Islam says about female circumcision, “it’s allowed but do it ‘gently’”. The guidance is clear and there should be no misinterpretation in regards with this practise.
And the most misperception people have is about woman in Islam. A woman inherits only a half part of her parents’s inheritance in compare to her male sibling. The reason being in her whole life she is to be supported by the male member of her family. She never has this duty to provide for her family. Her own possessions and earnings are hers solely to keep and spend whatever she wants. The male member of the family should treat in favour for her. And Islam teaches for both man and woman to learn to improve themselves, a long life learning. A woman does have the same rights as a man and to contribute to society. As for a man, he has to support his family and his earnings is meant to sustain the whole family. A woman can find such privilages, protection and shelter in Islam. Islam honour her, give her a special position and treat her as the first class member.
And to put everything in balance, Islam teaches that a woman as a wife should treat her husband as if he is her ‘god’ in this world.
He needs to be a good husband to deserve such extraordinary treatment. Kenyo(Quote)