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Threat to democracy from sharia law real -and growing

by CULLY STIMSON THE HERITAGE FOUNDATION | June 5, 2011 at 4:25 a.m.

— Does sharia law allow a husband to rape his wife, even in America? A New Jersey trial judge thought so. In a recently overturned case, a “trial judge found as a fact that defendant committed conduct that constituted a sexual assault” but did not hold the defendant liable because the defendant believed he was exercising his rights over the victim. Fortunately, a New Jersey appellate court reversed the trial judge. But make no mistake about it: this is no isolated incident. We will see more cases here in the United States where others attempt to impose sharia law, under the guise of First Amendment protections, as a defense against crimes and other civil violations.

In S.D. v. M.J.R., the plaintiff, a Moroccan Muslim woman, lived with her Moroccan Muslim husband in New Jersey. She was repeatedly beaten and raped by her husband over the course of several weeks. While the plaintiff was being treated for her injuries at a hospital, a police detective interviewed her and took photographs of her injuries. Those photographs depicted injuries to the plaintiff’s breasts, thighs and arm, bruised lips, eyes and right check. Further investigation established there were blood stains on the pillow and sheets of the plaintiff’s bed.

The wife sought a permanent restraining order, and a New Jersey trial judge held a hearing in order to decide whether to issue the order. Evidence at trial established, among other things, that the husband told his wife, “You must do whatever I tell you to do. I want to hurt your flesh” and “this is according to our religion. You are my wife, I [can] do anything to you.” The police detective testified about her findings, and some of the photographs were entered into evidence.

The defendant’s imam testified that a wife must comply with her husband’s sexual demands and he refused to answer whether, under Islamic law, a husband must stop his sexual advances on his wife if she says “no.”

The trial judge found that most of the criminal acts were indeed proved, but nonetheless denied the permanent retraining order. This judge held that the defendant could not be held responsible for the violent sexual assaults of his wife because he did not have the specific intent to sexually assault his wife, and because his actions were “consistent with his [religious] practices.” In other words, the judge refused to issue the permanent restraining order because under sharia law, this Muslim husband had a “right” to rape his wife.

Besides the fact that the ruling is wrong as a legal matter, and offensive beyond words, it goes to the heart of the controversy about the insidious spread of sharia law—the goal of radical Islamic extremists. Fortunately, the New Jersey appellate court refused to tolerate the trial judge’s “mistaken” and unsustainable decision. The appellate court chastised the trial judge’s ruling, holding among other things that he held an “unnecessarily dismissive view of defendant’s acts of domestic violence,” and that his views of the facts in the case “may have been colored by his perception that . . . they were culturally acceptable and thus not actionable—a view we soundly reject.” Although appellate courts typically defer to findings of fact by trial judges, under the circumstances, this appellate court correctly refused to do so, and reversed the trial court and ordered the permanent restraining order to be issued.

The truth is that imposition of sharia law in the United States, especially when mixed with a perverted sense of political correctness, poses a danger to civil society. Just last year, a Muslim man in Buffalo, New York beheaded his wife in what appeared to be an honor killing, again using his faith to justify his actions. It is doubtful that the domestic violence and rape in this recently overturned case will be the last Americans see of sharia being impermissibly used to justify brutal acts on our soil. As former Assistant Secretary of Defense Frank Gaffney wrote recently:

Sharia is no less toxic when it comes to the sorts of democratic government and civil liberties guaranteed by the U.S. Constitution. According to this legal code of Saudi Arabia and Iran, only Allah can make laws, and only a theocrat can properly administer them, ultimately on a global basis.

The trial opinion in this case shows that, indeed, the global reach of sharia law is expanding. The trial court allowed the testimony of an imam to be entered so that his account of sharia’s standards could supersede the standards set by the New Jersey legislature. This is not just about cultural defenses, which by themselves are not proper under United States law, but about giving up control of the law to a religious code citizens of this country have no control over, a theocratic code world-famous for its antidemocratic, sexist nature and its human rights abuses.

So-called “cultural defenses” have existed in other contexts for a long while and, for the most part, such defenses have been rejected. As a domestic violence prosecutor in San Diego, I ran across a case where the accused was charged with assault for punching his girlfriend, and the defense wanted to introduce an expert in Latin cultures. The expert was to testify that in Latin culture, it is acceptable for a man to strike “his woman” as punishment as long as it doesn’t cause serious lasting injury. This was rejected outright by the court, as it should have been. These attempts are not uncommon, but the cultural relativism they espouse is different from the more dangerous trend here.

In S.D. v. M.J.R., the husband’s defense for sexually assaulting his wife was not just another attempt to erode the protection of our own social mores. The specific threat that comes from attempting to establish sharia law in the United States is that justification for doing so has been couched in the protections of the First Amendment. As noted by the appeals court in its decision overturning what amounted to the replacement of New Jersey’s rape law with sharia, “the judge determined to except [the] defendant from the operation of the State’s statutes as the result of his religious beliefs.”

Doing so was contrary to several Supreme Court decisions, which hold that an individual’s responsibility to obey generally applicable law—particularly those that regulate socially harmful conduct—cannot be made contingent up on his or her religious beliefs.

The U.S. Constitution cannot and should not be used to subvert legislatures and allow brutes such as the husband in this case to harm others simply because their actions are legal under sharia law. It was impermissible for the trial court to act as it did in this case, and the appellate judges correctly overturned the ruling below. This is not the last we will hear of such attempts, however, as sharia loving extremists are determined to establish an Islamic caliphate around the world, especially in America. As Andy McCarthy has written, “Our enemies are those who want sharia to supplant American law and Western culture.” We cannot allow that to happen.

Charles “Cully” Stimson is with the Heritage Foundation’s Center for Legal and Judicial Studies. Reprinted with permission from The Foundry, the Heritage Foundation blog (blog. heritage.org)

Perspective, Pages 73 on 06/05/2011

Print Headline: Threat to democracy from sharia law real -and growing

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