A New Jersey judge sees no evidence that a man committed sexual assault of his wife -- not because he didn't do it, but because he was acting on his religious beliefs (judge also failed to issue a restraining order to protect her from the repeated physical violence):
"He said to me, no, you can not go and
sleep on the side of the bed. You're still
my wife and you must do whatever I tell you
to do. I want to hurt your flesh, I want to
feel and know that you're still my wife."
http://volokh.com/2010/07/23/cultural-defense-accepted-as-to-nonconsensual-sex-in-new-jersey-trial-court-rejected-on-appeal/The plaintiff, S.D., and defendant, M.J.R., are citizens of Morocco and adherents to the Muslim faith. They were wed in Morocco in an arranged marriage on July 31, 2008, when plaintiff was seventeen years old. The parties did not know each other prior to the marriage. On August 29, 2008, they came to New Jersey as the result of defendant’s employment in this country as an accountant....
While recognizing that defendant had engaged in sexual relations with plaintiff against her expressed wishes in November 2008 and on the night of January 15 to 16, 2009, the judge did not find sexual assault or criminal sexual conduct to have been proven. He stated:
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.
After acknowledging that this was a case in which religious custom clashed with the law, and that under the law, plaintiff had a right to refuse defendant’s advances, the judge found that defendant did not act with a criminal intent when he repeatedly insisted upon intercourse, despite plaintiff’s contrary wishes.Having found acts of domestic violence consisting of assault and harassment to have occurred, the judge turned to the issue of whether a final restraining order should be entered. He found such an order unnecessary, vacated the temporary restraints previously entered in the matter and dismissed plaintiff’s domestic violence action....
Luckily, the appellate court overturned this decision:
Defendant’s conduct in engaging in nonconsensual sexual intercourse was unquestionably knowing, regardless of his view that his religion permitted him to act as he did.
As the judge recognized, the case thus presents a conflict between the criminal law and religious precepts. In resolving this conflict, the judge determined to except defendant from the operation of the State’s statutes as the result of his religious beliefs.
In doing so, the judge was mistaken.The opinion is quite detailed both in its summary of the factual allegations and as to the legal analysis; those who are especially interested in the case may want to read it closely.
http://www.judiciary.state.nj.us/opinions/a6107-08.pdf
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