Sharia (Islamic) Law in New Jersey Court: Muslim husband rapes, beats, sexually abuses wife, judge sees no sexual assault because Islam forbids wives to refuse sex

More here.

Further, I wanted Atlas readers to get David Yerushalmi's take. David is my outstanding lawyer in my Detroit free speech case and a leading expert on sharia law. Here are his observations:

OK, the court didn’t actually say Shariah, but “his culture” and “his
perception of his religion”. Here’s the story in a nutshell (the lengthy appeals
court decision is attached and I’ve excerpted it below):

Young Moroccan couple wed in arranged marriage (remember
Morocco is supposed to be super modern with super reformed Islam with super
benevolent western educated king
[http://en.wikipedia.org/wiki/Mohammed_VI_of_Morocco]). Almost immediately, the
young couple come to America where husband (H) is accountant. Apparently his
doting mother is here already or comes with the young couple (if you read the
opinion, you’ll see this is one classy mother-in-law who was very much a part of
the abuse). H immediately begins “punishing” his wife (W) and sexually
assaulting her during intercourse. In effect, he sexually assaults her (the term
for raping your wife) because she refused to be abused during relations and said
“no”. 

During the sexual assaults and beatings, W is given refuge by
Pakistani nurse from hospital where she was treated. The nurse subsequently
initiated a reconciliation between W and H through the couples’ imam when she
learns of W’s pregnancy. The very day W reconciles and returns to H, the
beatings continue and imam takes in W. At that time, but all within a few
weeks—the marriage lasted only a few months, H tires of W and “divorces” his
wife per Shariah via witnesses [DY: H had earlier that day divorced W via oral
declaration alone but this type of Shariah divorce must wait until the now
pregnant W gives birth; thus, divorce is redone with witnesses w/the imam to
have it take effect immediately].

While criminal complaint is pending, W brings action in civil
court per NJ statute protecting women from domestic violence and seeks
restraining order. Evidentiary hearing is held.

Trial
court finds: [1] man sexually assaulted wife but [2] court will issue no
restraining order because man did it thinking he could abuse his wife if she
misbehaved and refused his sexually demands per Islamic
law.

In other words, the court held that man’s religious beliefs
were sufficient to avoid the effects of NJ law to protect battered women. Nice,
huh?

The kicker: during the trial, H’s attorney apparently called
the Imam as H’s witness (what would you expect, an Imam to testify for this
beaten/raped woman?) but apparently the trial judge was not happy with W’s
attorney’s cross examination and asked a few of his own questions. Here is how
the appellate court describes the Imam’s testimony to the judge’s
queries:

 

At
the conclusion of this testimony, in response to the judge's questions, the Imam
testified regarding Islamic law as it relates to sexual behavior. The Imam
confirmed that a wife must comply with her husband's sexual demands, because the
husband is prohibited from obtaining sexual satisfaction elsewhere. However, a
husband was forbidden to approach his wife "like any animal." The Imam did not
definitively answer whether, under Islamic law, a husband must stop his advances
if his wife said "no."

[Note: I am willing to bet W’s
attorney knew nothing about Shariah and was afraid to penetrate this line of
questioning or to provide any expert of his own.]

Now, I
believe I know why per Shariah the imam equivocated if you assume he was not
just hiding the ball from the court (a big assumption I grant you but I’m
feeling charitable this evening). Thus, giving the imam the benefit of the
doubt, per Shariah a women is obligated to satisfy her husband’s sexual demands:
“It is obligatory for a wife to obey her husband as is customary in allowing him
full lawful [DY: there are times when Shariah prohibits marital sex—e.g.,
relating to menstrual cycle] sexual enjoyment of her person.”  (See,
e.g., Reliance of the Traveller, Marriage, m10.12 and commentary from
Jordanian Mufti, Sheikh Nuh ali Salman, at N(3).)

An
obligation or wajib is the highest order or rubric of affirmative Shariah
dictate (there are the less affirmative
duties, which fall under the category of ‘praiseworthy’ and the Shariah-neutral
rubric of ‘permissive’ as well as the prohibitive rubrics of ‘forbidden’ and ‘disliked/abhorred’).  Insofar as
the woman has a wajib/obligation to satisfy her husband, the resulting
ruling follows per Shariah’s fiqh (jurisprudential rules): a wife is
“rebellious” if she refuses her husband’s sexual demands (because she refuses to
comply with a wajib) if she if physically able and there are no
Shariah-based impediments. The next step in the Shariah rulings also flows
logically from the antecedent ruling that a wife must obey her husband even to
the point that a wife may leave the home only with the husband’s permission
(Reliance, Marriage, m.10.3-10.4). Finally, Shariah’s fiqh combines the
two concepts (the wife’s wajib and the man’s control over her) into one
by providing a husband some leeway if not encouragement to beat his “rebellious
wife” to bring her into compliance (note that neither the husband nor court may
force a wife to “service” her husband through cooking and cleaning; only sex is
obligatory). (Reliance, Marriage, m.10.12 (commentary N [Jordanian Mufti Nuh]
(4)(c)))

 

Again,
granting the imam a sizable benefit of the doubt, his equivocation on the
question whether the husband is allowed to force himself on his wife I believe
stems from the fact that there is no explicit source in Shariah for “permitting”
a husband to force sex on his wife (at least not one I can find—although there
are some individual fatawa [Shariah rulings from individual imams] that
permit it—but there is nothing approaching ijma or consensus so these
fatawa are just individual rulings that the Shariah faithful can accept
or not).  However, it is clear that there is no penalty for it which of course
is the source of authority for the fatawa I have seen permitting marital
rape. You can see the same equivocation more clearly in the form of misdirection
represented here in this IOL response to the straightforward question posed
whether Shariah recognizes marital rape or sexual assault. http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid=1119503545650
Bottom line: no, there is no penalty for marital rape. (The IOL answer is
presented as a “good Shariah marriage should never come to this” but in truth
the answer remains, no. A man cannot be punished for raping or otherwise
sexually assaulting his wife as long as it is “permissible sex” under Shariah
[e.g., not during menses].)

On
the appellate court’s constitutional analysis: I think
the court’s analysis of First Amendment Free Exercise law, while technically
correct, was absurd and wholly out of place. It takes all of five seconds to
analyze whether a free exercise claim would prevent the state (through the
court) from imposing a restraining order on a violent husband. This is not akin
to a polygamy or peyote free exercise claim where there is no third party victim
(in polygamy cases of old there was typically no claim by an earlier wife of
harm—all parties were practicing Mormons). This would be akin to a court
analyzing whether our good friend and champion Andy McCarthy’s prosecution of
the Blind Sheikh violated the imam’s free exercise rights because the Sheikh was
religiously obligated to do what he did. Absurd. (State imposed criminal
punishments and civilly imposed restraining orders would pass muster even under
the so-called Strict Scrutiny analysis: a compelling state interest and a
narrowly tailored law to achieve the state interest.) I assume this court felt
it necessary to go through this absurd exercise because it was ruling against
Shariah and Muslim custom and wanted to liken it to Mormons and polygamy and
American Indians and peyote, another sign of the PC gymnastics we as a defensive
society/nation go through to impose our own mores/values (assuming they exist
any longer in concrete form). Thankfully, the appellate court reached the right
result.

 

On
a lengthy note bene in the form of a short comparative law analysis: it
should be stressed that this is another classic example where Islam/Shariah
departs radically from the Judeo Christian tradition. Now, I cannot speak
directly to Catholic canon on this subject or Christian Ecclesiastical law
(although we do know that English common law, carried to the US, has long had a
spousal rape exception—that is, husbands cannot be charged with raping their
wives), but at least the Judeo portion of the Judeo Christian tradition is
absolutely clear.

 

According
to Jewish law, any form of coerced sexual relations between married couples is
absolutely forbidden. (Talmud Bavli, Eruvin 100b: Rami b. Hama citing R. Assi
further ruled: “A man is forbidden to compel his wife to the [marital]
obligation, since it is said in Scripture: ‘Without consent the soul is not
good; and he that hurries with his feet sins’” (Prov. 19:2).  (Ba’ailei
ha-Nefesh, Sha’ar ha-Kedushah; Code of Jewish Law, Hil. De’ot 5:4;
Even ha-Ezer 25:2.)

 

Thus, even if
the wife is not forced outright, as long as she is not amenable to intercourse,
sexual relations are prohibited. (From authoritative Ashkenazi ruling on the
Code of Jewish Law: Magen Avraham, Orah Hayyim 240, no. 7; from the
leading Jewish mystical source, Kabbalah, Zohar, Bereshit 49b, 148b,
Va-yikra 225b.)  The greatest Jewish legal authority, the
Sephardic Maimonides (known by his Hebrew acronym to Jews as the Rambam), rules, “[Her husband] should not coerce
her [to have relations] when she does not desire to do so. Rather, [they should
engage in intercourse only] when there is mutual desire and pleasure.”
(Maimonides’ Code of Jewish Law, the Mishne Torah, Hil. Ishut [Laws of Women]
15:17.)   Further, even if the wife is ambivalent
about her desire, relations are forbidden. (Masekhet Kallah Rabbati 1:11;
Tur, Orah Hayyim 240 and Even ha-Ezer 25.)  Keep in mind that
Maimonides is from the 11^th-12^th centuries and even the
most recent of these (Code of the Jewish Law) is from the
15^th-16^th centuries.  Old law is not necessarily bad law
and “progressive law” is not necessarily good law.  Shariah is not bad because
it is old. It is bad because it is bad. 

 

[An
important digression: I make this latter point about old vs. new law because we
often hear the criticism of Shariah that it is bad and primitive because it is
“Medieval law” as if that is enough to condemn it. But by implication, the
person who makes this criticism, is in effect embracing the “progressivist” or
Hegelian teaching that Time/History is the one transcendence that saves us from
the nihilism of relativism (all morals are relative except that a new moral is
better than an old one), which allows the Leftist/Elites to clamor on about
“progress” and the latest version of this, “hope and CHANGE”.  And, if you give
it a half-second’s worth of thought, you’ll realize why the progressivism of the
Elite is tyranny [hint: there are no transcendent boundaries only time as a
measure of progress].  It also impacts our constitutional jurisprudence. If old
is bad simply, then granting the Supreme Court the authority (to which
Marbury v Madison effectively opened the door) to “re-interpret”
[read: re-write or amend by judicial fiat] the Constitution to mirror the
“progress” and “change” in society must be a good thing. That kind of hollows
out the originalist/conservative view of the Constitution, no?]

 

One of the most authoritative Jewish legal minds of the
12^th-13^th centuries, also Sephardic, was Nachmanides
(common Hebrew acronym, Ramban), who wrote this stirring “Holy Letter”
(Iggeret HaKodesh) on the question of conjugal relations:

 

When a man has relations [with his wife]
he should not do so against her will and he should not rape her; the Divine
Presence does not abide in such unions in as much as his intentions in
opposition to hers, and she does not consent to his desire. He should not
quarrel with her or strike her concerning marital relations. Behold, the Sages
said ([Talmud Bavli] Pesahim 49b), “Just as a lion tears [his prey] and
devours it and has no shame, so an ‘am ha-‘aretz (ignorant boor) strikes
and cohabits and has no shame.” Instead, he should entice her with kind and
alluring words and other appropriate and reputable things. He should not have
relations with her while she is sleeping because their intentions are not united
and they are not of the same mind. Rather, he should wake her and arouse her
with conversation. The bottom line is this: when a man is sexually aroused he
should make sure that his wife is aroused as well [before having
intercourse].

 

[Note:
I highlight the fact that the two legal and Jewish philosophical giants,
Maimonides and Nachmonides, were Sephardic because they lived among Muslims at a
time when Islam was ascendant and indeed when Islam was undergoing its own
version of “reformation” in large parts of the Muslim world toward a
greater adherence to Shariah. This serves to highlight the fact
that Shariah, as a philosophic and legal matter, is of no kin to Jewish
law/dogma.]

 

Now, what is
interesting, is that there is a concept of a “rebellious wife” in Jewish law.
But once again, like martyrdom, lex talionis, and other subjects I have written
on in the way of comparative law between Shariah and Halachah, the Shariah
authorities turned the earlier extant Jewish legal concept on its head and
distorted it to the point of evil perversion (e.g., a Jewish martyr may
not commit any of the three cardinal sins [idol worship, murder, sexual offense]
and must be willing to die in passive resistance rather than commit one of these
sins—but there is no martyrdom for death in battle or even self-defense—which if
done justly are called heroic (the person is not a martyr but a gibor). 
Thus, the first thing to note is that in Jewish law, unlike in Shariah, there is
a parallel concept of a “rebellious husband”. (See, e.g., Code of Jewish Law,
Even ha-Ezer 77:1.)  The principle at work in the “rebellious
husband/wife” concept is that a marriage includes implied
mutual promises, one of which is a free and loving conjugal relationship. Thus,
according to most Jewish legal authorities, Jewish law empowers a couple
(husband and wife equally) to negotiate almost every aspect of their
relationship and, for example, set as a condition of marriage that they will
have no financial responsibilities or household obligations to each other.
However, they cannot set as a precondition to marriage that they will not engage
in intimate relations. (Talmud Bavli, Ketubot 56a; Code of Jewish Law,
Hil. Ishut 6:10; Even ha-Ezer 38:5 and 69:6. See, however,
authorities that hold that a marriage is valid under some conditions even if
there is an agreement to abstain from conjugal relations; see, Teshuvot
Tashbetz I:94; Ramban to Baba Batra 126b; Havot Ya’ir to Rif,
Baba Mezi’a VII, 54a.)

According to
Maimonides, a woman who tells her husband that she no longer permits him to have
conjugal relations (as a permanent condition) is classified as a “rebellious
wife” (“moredet”).  But now look at the difference between Jewish law and
Shariah. In Shariah, this state of rebelliousness grants the husband the right
to beat his rebellious wife and even to rape her with impunity. In Jewish law,
according to Maimonides:

 

If a woman prevents her husband from
having sexual relations with her, she is called a rebellious wife. [The court]
inquires of her as to why she rebelled. If she said, “I am repelled by him and
cohabitation with him is impossible for me,” [the court] forces him to divorce
her [if she demands a divorce] because a wife is not a prisoner who must consort
with a person whom she despises.

Mishne
Torah, Hil. Ishut 14:8.
 Cf., Code of Jewish Law, Even ha-Ezer 77:2 (where the Jewish
court attempts first to effect a reconciliation and then grants a
divorce).

In no case is
the woman who refuses to have conjugal relations with her husband forced to do
so. Maimonides’ view in this matter is controlling. Thus, R. Moshe b. Yosef of
Trani, known as Mabit, states that a woman cannot be compelled to submit
to her husband because “she is unlike a captive woman who can be compelled to
submit to sexual relations with a man she does not desire.” He compares her
conjugal rights to those of food and clothing which her husband is also
obligated to provide, and which she can also reject. He also points out that the
Torah speaks of “her conjugal rights” (Bible, Book of Ex. 21:10) and not
simply of “conjugal rights;” those rights are hers and not her husband’s. 
(Kiryat Sefer
to Hil. Ishut
14.)

Finally, rape
in Jewish law is clearly defined as a crime of violence and not one of the
sexual crimes, as we now in “modern society” recognize it to be; specifically,
ḥabalah (assault ).  (Teshuvot Divrei Yeziv, Even ha-Ezer no. 77;
see also Talmud Bavli, Sanhedrin 74a (where rape is analogized to
murder.))  The civil penalties imposed for
assault include damages for actual damages, pain, healing, lost wages, and
shame.  (Talmud Bavli, Baba Kama 83b) The various penalties imposed by
Jewish law for assault do not exempt a husband who assaults his wife. While
Shariah appears to permit a husband to beat his wife and even to rape her with
impunity, and while the English common law might exempt a husband from rape,
Jewish law does not.