Cultural Defense Accepted as to Nonconsensual Sex in New Jersey Trial Court, Rejected on Appeal

[The Straight Story]

Cultural Defense Accepted as to Nonconsensual Sex in New Jersey Trial Court, Rejected on Appeal


From today’s opinion in S.D. v. M.J.R. (N.J. Super. Ct. App. Div.), a domestic restraining order case:

The record reflects that 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....



Upon their return to the apartment, 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 can do anything to you. The woman, she should submit and do anything I ask her to do."

...

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.


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http://volokh.com/2010/07/23/cultural-defense-accepted-as-to-nonconsensual-sex-in-new-jersey-trial-court-rejected-on-appeal/

[BlueIris]

1. Yikers! I'm shocked that a case of marital rape made it to court.

Equally shocked that someone actually tried (and a judge bought) the "but my culture okays it so it must be okay" defense.

Insane.

[rocktivity]

5. DING DING DING! BlueIris, you're our grand prize winner!

I'm...equally shocked that someone actually tried (and a judge bought) the "but my culture okays it so it must be okay" defense.

Seeing that I learned this concept in FIFTH GRADE, imagine how shocked I'M feeling!

In our lesson on the Bill of Rights, an example was given of a New York man who stabbed his estranged wife to death, claiming that his religion gave him the right. He was convicted of murder on the grounds that Constitutional law trumped religious doctrine--and rightfully so!

:headbang:
rocktivity

[jberryhill]

8. Do you see the words "plaintiff" and "defendant" - this was not a criminal proceeding

The guy was busted separately in the criminal trial.

You are being misled.

[BlueIris]

10. Yikers! Wow, I so deserve this condescending rebuke.

I am so much more edumacated now--thank you!!

Welcome to Ignore. (And you enjoy this December, mkay?)

[jberryhill]

11. Right wing memes deserve condescending rebukes

If you choose to believe incomplete information, and ignore more complete information, that's of course your choice.

[DeSwiss]

2. K&R

The appellate court reversed, writing (among other things):

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.

- Sanity prevails. This time.

[ProgressiveProfessor]

3. The trial judge erred when he determined there was no "motive"

yep...he did.

[rocktivity]

7. I don't think motive or intent enters into it at all

Forcing himself on her on religious grounds is quite unconstitutional enough.

:headbang:
rocktivity

[get the red out]

4. How about....

the next time a man murders his wife it can just be part of his "custom" and be ok? Or many other crimes. I'm sorry, but if I were in another country I would have to obey their laws, it should be no different here.

[jberryhill]

6. The context here is widely misunderstood

This was a civil case involving a restraining order.

There was an entirely separate criminal prosecution of the guy going on.

One of the reasons the initial judge did not issue the restraining order was because he believed it would conflict with a no contact order that was already issued by the criminal court.

But, feel free to believe whatever wrongness you want.

[hayu_lol]

9. Deport HIM back to ...

Merry Morocco. He apparently is a non-citizen. Plus is that it opens up a job for an American accountant.