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.

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)!

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

Anatid:
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?

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

Laura(southernxyl):
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.

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.

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.

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.

Proud to be PC: 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.

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).

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.

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?!

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.

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.

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.

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.

it did to criminalize the use of peyote by Native Americans or to attempt prohibit Catholics, during Prohibition, from receiving wine during Communion.

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 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).

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.

Proud to be PC: 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, 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?

Woman Lawyer from NJ: 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.

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.

Woman Lawyer from NJ: 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.

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.

David Schwartz: 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.

Can you identify any jurisdiction in the United States whose current law meets these criteria?

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.

Chuck Hill: 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.

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: What law are you referring to? Apparently not the criminal law of New Jersey that applies to the subject of the post.

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.

Laura: Is consent of both parties not required for marriage?

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.

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.

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.

“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.

David Schwartz: 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.

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.

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.

Anatid: Can you give or withhold consent when you don’t even know what consent is?

Under many circumstances, no. This is why a severely retarded person cannot consent to sex.

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?

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.