Published August 05, 2010
A New Jersey family court judge's decision not to grant a restraining order to a woman who was sexually abused by her Moroccan husband and forced repeatedly to have sex with him is sounding the alarm for advocates of laws designed to ban Shariah in America.
Judge Joseph Charles, in denying the restraining order to the woman after her divorce, ruled that her ex-husband felt he had behaved according to his Muslim beliefs -- and that he did not have "criminal desire to or intent to sexually assault" his wife.
According to the court record, the man's wife -- a Moroccan woman who had recently immigrated to the U.S. at the time of the attacks -- alleged:
"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."
In considering the woman's plea for a restraining order after the couple divorced, Charles ruled in June 2009 that a preponderance of the evidence showed the defendant had harassed and assaulted her, but "The court believes that [defendant] was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited."
Charles' ruling was overturned last month by New Jersey's Appellate Court, which ruled that the husband's religious beliefs were irrelevant and that the judge, in taking them into consideration, "was mistaken."
The woman's lawyer, Jennifer Donnelly of New Jersey Legal Services, told FoxNews.com that Charles' ruling should add to the case for a proposed Oklahoma law, which will be on the ballot in November, which would ban judges from considering "international law or Shariah Law" in their rulings.
"Those who don't want the bill to pass say, 'there's really no need for it because why would a judge walk down that road of religion?'" Donnelly said.
"Clearly here, this judge did walk down that road. He may not have said 'Shariah law.' But I think it's indicative that, in trying to be respectful of religion, judges venture into a very slippery slope."
Donnelly said she was surprised when Charles refused to issue a restraining order, adding that the only tipoffs that it might happen were questions he put to the husband's imam when he testified in the case.
The Appeals Court ruling notes, "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.' ... he acknowledged that New Jersey law considered coerced sex between married people to be rape."
Charles, a former New Jersey state senator, declined to comment on his ruling. The husband, who represented himself in court, remains unnamed, as does his ex-wife.
While the judge in the case did not specifically mention Islamic or Shariah law, Robert Spencer, director of JihadWatch.com, said he might as well have.
"This is a ruling that is strictly in line with Islamic law, which does indeed declare that a wife may not refuse her husband sex under virtually any circumstances," Spencer said. "The only legal framework that would not consider marital rape to be sexual assault is Shariah."
But Ibrahim Hooper, national communications director for the Council for American Islamic Relations, said claims about Shariah law in the U.S. play into irrational fears about Muslims.
"It fits into the whole extremist Muslim-basher theme that Muslims are somehow trying to replace the Constitution with Islamic law," he said.
"That is absolute fantasy, and hateful. Islamic beliefs don't permit rape of any kind," he said, speaking of the New Jersey case.
Asked whether the imam's testimony contradicted that, Hooper replied, "It's just clear that a Muslim husband shouldn't do anything of this sort to his wife. It's just common sense. You don't need a religious figure to tell you that's wrong."
First Amendment expert Eugene Volokh, a professor at UCLA, said, "The Shariah law debate is a total distraction," and he noted that in the U.S., two people may sign a contract and give an Islamic court the power to determine if the contract is breached. In a 2003 case, for instance, a Texas district court ruled that the private "Texas Islamic Court" should decide the amount a husband owed his wife in a divorce proceeding -- because when they got married, they had signed a contract specifying that was what they wanted.
But assault is illegal, regardless of any contract, Volokh said, and the Appellate Court in New Jersey ruled correctly.
"The claimed religious practice of non-consensual sex involved in this case is so heinous that almost everybody thinks that you shouldn't have the right to do that, no matter what your religious beliefs are."
The husband in the case has been indicted on criminal charges and is expected to face trial in the fall.
Donnelly said that, as far as she knew, her client had not had trouble with her ex-husband since they divorced. She added that she hoped the Appeals Court ruling for her client would set a precedent.
"This ruling will really help people coming behind her," she said.