Oklahoma voters will be voting on a curious and troubling constitutional amendment. Labelled the “Save Our State” amendment, State Question 775 seeks to ban the use of Islamic law in state court. Not any other form of religious or international law, just Islamic law. GOP State Senator Rex Duncan wants to protect the state from the ravages of Islamic law despite the fact that there has not been any record of Islamic law ever being invoked in Oklahoma. Indeed, in 2000, there were only 6,000 Muslims in the entire state.
You may remember Duncan from his objections to free Korans being supplied to legislators in addition to free Bibles.
In his latest anti-Muslim effort, Duncan was acting on the fact that a New Jersey legal case in which a Muslim woman went to a family court asking for a restraining order against her spouse claiming he had raped her repeatedly. The judge found that the man was actually following his religious beliefs in demanding his wife’s “spousal duties.” What is missing in the analysis is that the ruling was promptly reversed in New Jersey.
The ruling reversed in S.D. v. M.J.R. (N.J. Super. Ct. App. Div.) was clearly wrongly decided. The husband testified that he forced his wife to have sex — telling 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.”
The man was accused of abusing his wife — forcing her to strip naked and abusing her private areas. He then raped her. She confronted him the following morning and asked why he had done what he did to her. His wife stated that he told her:
[by] mak[ing] like a list and he would read the list and he started to say, okay, now you don’t know how to cook, but there’s other stuff you’re going to do in the house, around the house. And when I come back from work, I will see — look at the list and see what you did and what you didn’t do. Whatever you didn’t do, I’m going to punish you the same way I punished you for the stuff that you didn’t do before.
On one occasion, he raped her while her mother-in-law and sister-in-law were in the apartment as she screamed out. When she escaped and stayed with another Moroccan women, she was finally persuaded with help of the local imam to reconcile with her husband after she learned she was pregnant. Immediately after the return to their apartment, he allegedly raped her again.
After raping his wife, the man took his wife to buy a ticket to send her back to Morocco and then took her to a local imam where they were verbally divorced. That Imam later testified:
At the conclusion of this testimony, in response to the judge’s questions, the Imam testified regarding Islamic law as it relates to sexual behavior. The Imam confirmed that a wife must comply with her husband’s sexual demands, because the husband is prohibited from obtaining sexual satisfaction elsewhere. However, a husband was forbidden to approach his wife “like any animal.” The Imam did not definitively answer whether, under Islamic law, a husband must stop his advances if his wife said “no.”
The judge found that the defendant had engaged in harassment but that she had not proven criminal restraint, sexual assault or criminal sexual contact. The court held:
This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.
The trial judge referred to the period of the alleged rapes as “a bad patch” in the marriage and not enough to warrant a restraining order since they were now divorced.
The court reversed in this opinion.
The appellate court rejected the “cultural defense” — the claim that the man’s religion should be considered to rebut the element of intent. Ironically, that is the subject of my panel in Paris next week — and part of a series of presentations made to judges and lawyers around the country on validity or role of such cultural defenses in criminal or civil cases.
In the appellate decision, the judges rejected the cultural defense:
The judge’s ruling raises several areas of concern that we regard as warranting reversal and a remand to permit the entry of a final restraining order. We construe the judge’s characterization of the violence that took place as a bad patch in the parties’ marriage and plaintiff’s injuries as not severe as manifesting an unnecessarily dismissive view of defendant’s acts of domestic violence. Although it is true that the November episodes spanned only three weeks, that period constituted approximately one-fourth of the parties’ marriage. Moreover, we find it significant to the issue of whether a final restraining order should have been granted that the violence resumed on the very first night of the parties’ reconciliation, and after defendant had assured the Imam that he would not engage in further such acts. We additionally note plaintiff’s testimony that the significant bruising to her body shown on the photographs taken on November 22 merely represented the remnants of the bruising inflicted on November 1 and 16. In our view, the abuse that took place in this case was far removed from the domestic contretemps found not to constitute abuse in cases such as Kamen v. Egan, 322 N.J. Super. 222, 227-28 (App. Div. 1999); Corrente v. Corrente, 281 N.J. Super. 243, 248-50 (App. Div. 1995); and Peranio v. Peranio, 280 N.J. Super. 47, 54-56 (App. Div. 1995). We are also concerned that the judge’s view of the facts of the matter may have been colored by his perception that, although defendant’s sexual acts violated applicable criminal statutes, they were culturally acceptable and thus not actionable — a view that we have soundly rejected.
Thus the conclusion of the case was the rejection of this type of use of the cultural defense. Yet, that is the basis for Duncan’s resolution with his co-sponsor Republican Anthony Sykes. Sykes insists “[t]he fact that Sharia law was even considered anywhere in the United States is enough for me.”
Religious views can sometimes be relevant to cases on questions of motive or intent. The cultural defense is often used as mitigating evidence in sentence as opposed to a defense on the merits of the charge. It would violate constitutional law to prohibit only Muslims from citing their religious faith as opposed to other faiths. Indeed, other religions have analogous views of the relative rights of husbands and wives.
A reversed case in New Jersey does not mean the Saladin is coming to capture Oklahoma city.