Sunday, July 25, 2010
Bullet dodged: The "cultural defense" to rape falls in New Jersey
In a rare moment of sanity, a New Jersey appellate court has rejected the "cultural defense" for rape.
A New Jersey trial court had exculpated a Muslim man from charges of sexually assaulting his wife on account of his putative religious belief that "the woman should submit and do anything I ask her to do." Volokh runs down the case here, with excerpts from the opinion. If the trial court's first decision does not run shivers down your spine, check your humanity. The trial court's decision was so asinine we need to raze it to the ground and salt the earth where it stood, lest any other American judge try to rebuild it.
The trial court found that the defendant did not form criminal intent because his disgusting opinion was founded in religious practices. In keeping with our long tradition of asking the questions that others will not ask, is this a "mainstream" attitude among American Muslims? If so, then we need to have a serious national discussion before there are any more American Muslims. If not, then how is the defense "cultural" rather than aberrational nuttiness masquerading as cultural with a costume supplied by a smart lawyer? Is there a third possibility that eludes me?
Next up: If "religion" -- and I use the word advisedly in this case -- were a defense to rape, then why isn't it a defense to consensual bigamy? How does the trial court decision square with Reynolds v. United States, which held explicitly that religious duty was not a suitable defense to a criminal indictment?
Among the politically correct and cultural sensitive, you can take pretty much any disgusting opinion or practice and if some imam or ayatollah cites a justifying sura we are all supposed to give it a pass. Opinions and practices that would result in your rejection by polite society and termination from your job or earn you a long beating with a tire iron suddenly become excusable and even quaint if you dress them in the garb of a religion. Unless, of course, it is a Judeo-Christian religion.
How about a new rule: Religion is a subset of opinion, and it is entitled to exactly the same protections as other opinions, no more and no less. People should be entitled to say prayers and express other such opinions in school and post offices and anywhere else the secularists would like to ban religious people, but we should be free -- legally and socially -- to disrespect religious opinions as freely as we do political and aesthetic opinions.
And under no circumstances should an opinion -- religious other otherwise -- be a defense to rape.
19 Comments:
By 
Unknown, at
Sun Jul 25, 09:20:00 AM:
Amen. People's rights don't change because of their religion.
By 
, at
Sun Jul 25, 10:00:00 AM:
As a matter of criminal law theory, rape presents difficult issues. Serious crimes require proof of criminal intent on the part of the perpetrator -- mens rea. The perpetrator has to have a "guilty mind."
In rape cases this has shifted to assessing the state of mind of the victim -- did she consent?
I actually think Mike Tyson was innocent of rape. I think William Kennedy Smith was guilty of soemething, if not rape.
By Christopher Chambers, at
Sun Jul 25, 11:00:00 AM:
Well, this your Garden State--the one that doesn't seem to mind that "Snooky" of "Jersey Shore," and not men like Corey Booker, are heroes. Thus the initial "muddling" doesn't surprise me...
By Unknown, at
Sun Jul 25, 11:07:00 AM:
I am trying to understand anonymous' post. In order to be guilty of rape, the perpetrator has to have a "guilty mind". So if the perp feels entitled to force a woman into unconsensual sex, it is not rape?
It seems to me that someone who forces someone into having sex has a "guilty mind".
If a spouse does not want to have sex with their partner ever that would be grounds for divorce.
By , at
Sun Jul 25, 11:20:00 AM:
What Anonymous wrote "Serious crimes require proof of criminal intent on the part of the perpetrator -- mens rea. The perpetrator has to have a "guilty mind."
I can see why this is criminal law "theory". Lots of people think they have the right to just take what belongs to other people and redistribute it and they feel no guilt. I would think that actions speak louder than what they are thinking.
By , at
Sun Jul 25, 11:45:00 AM:
If she says no, it's rape.
If she says yes, it's not rape.
But what if she doesn't say anything? ... or it's ambiguous?
Is the standard what's in his head: "I didn't hear her say no." Or is the standard what's in her head: "I didn't say yes."
Who knows what actually happened in Mike Tyson's hotel room? Her testimony is that Iron Mike made sexual advances in the limo, but she still went up alone with him to his hotel room. I'm not saying that's a yes. But it raises reasonable doubt. Tyson's lawyer didn't think he'd get the benefit, and put him on the stand.
Who knows what happened in Kobe Bryant's hotel room? Her testimony is literally that she said a little yes at the beginning, but gave a strenous no before she got the full monte with chokehold and facial. (Quite graphic I know, but that's what the case was about).
Tyson's victim was a beauty queen, and his career was behind him. Lots of witnesses came out of the woodwork with hearsay to smear Bryant's victim. What people will do for tickets at the Forum.
By , at
Sun Jul 25, 12:06:00 PM:
But we can reasonably sure of what happened in the case of William Kennedy Smith. He got her to say yes by pretending to be a nice guy. Once done, his inner cad came out. Not a crime.
By Gary Rosen, at
Sun Jul 25, 02:52:00 PM:
Just like his failing hero BO, sissy Chrissy plays the race card because that's all he's got. Did you get your annual hard-on when your idol Louie F demanded reparations from da Jooooos, sis?
By Christopher Chambers, at
Sun Jul 25, 09:41:00 PM:
Gary,
Please take your dad's penis out of your mouth for a moment and read my post again. Where's the race stuff there? It was a sarcastic dig at NJ, not white people...you do consider Snooky white, don't you?
Ya sknow...that was uncalled for. Apologies to your dad. I'm sure you give terrible head...
By daniel noe, at
Sun Jul 25, 10:26:00 PM:
Do you suppose I can get out of paying my taxes by claiming its against my religion?
By Georg Felis, at
Mon Jul 26, 12:38:00 AM:
"The trial court found that the defendant did not form criminal intent because his disgusting opinion was founded in religious practices. "
Hm. Does that mean I can join the First Aztec Church of the New World (reformed) in order to deal with my neighbor who lets his dog over into our yard to do his "business"?
Somehow I don't think that would go over very well...
By Gary Rosen, at
Mon Jul 26, 12:53:00 AM:
"Please take your dad's penis out of your mouth"
When the Palestinian "freedom fighters" you idolize kill an Israeli male they typically cut off his penis and stuff it in his mouth. I guess the apple doesn't fall far from the tree, except when you're celebrating Daniel Pearl's death, I mean life.
"It was a sarcastic dig at NJ, not white people"
No Italians to see here, move along now.
"I'm sure you give terrible head"
Spoken like a true connoisseur..
By Gary Rosen, at
Mon Jul 26, 12:56:00 AM:
"Apologies to your dad"
If I saw that in a second post, I might believe that you sent the first one off in haste and anger. But it was in the same post, you knew what you were sending and TH has preview. IOW your "apology" is 100% cynical, phony and insincere. Gee, whoda thunk it coming from Chrissy?
By Don Cox, at
Mon Jul 26, 06:06:00 AM:
The belief that a man has the right to have sex with his wife whether she wants to or not is not confined to Muslims. It was common among Christians in the 19C. Galsworthy's novel "The Man of Property" (early 20C) hinges on this problem: the man believes that his wife is a part of his property.
The problem we have now is the most Muslims are still living in the 19C, and we are demanding (rightly) that they should modernise.
Clearly cannibalism, suttee, or human sacrifice can all be defended as religious customs. People who believe in various religions worry that their religions are being attacked, and if they lose their religion they will be eternally damned.
By , at
Mon Jul 26, 06:13:00 AM:
To Mr Chris Chambers,
I've invited you in the past to substantively discuss affirmative action, etc, here, but you haven't responded. Let me try again with two recent posts that I'd like to bring to your attention.
Re: Democrat for Virginia Senator James Webb
Is Webb right? Isn't it time for government to move on from race-conscious affirmative action?
Re: using gerrymandering to create Black seats in Congress
Am I right? Isn't it time for government to move on from using race-conscious Rorschach ink blot voting districts?
Your lack of response will once again suggest that you're not a serious person.
By Jim MIller, at
Mon Jul 26, 10:33:00 AM:
We can see what's needed, but no one seems to have touched on it. How do you remove a judge in New Jersey? Or is it practically impossible, as it is in many states?
By Gary Rosen, at
Tue Jul 27, 02:48:00 AM:
"I've invited you in the past to substantively discuss affirmative action, etc"
Don't hold your breath, Ig. Godot will step out of his limo and buy a round of drinks for the house before Chrissy engages in any discourse more substantive than "douchebag".
By MainStreet, at
Tue Jul 27, 12:53:00 PM:
Agree with the final verdict. Many of the laws we have today were based on Judeo-Christian beliefs, so we should be happy America was not founded by Muslims. What we have been brought up to believe as being cruel, Muslims accept as a matter of faith. We must protect our heritage and prevent Shari-ah law from ever gaining a foothold in the USA.
By , at
Fri Jul 30, 06:28:00 PM:
One error is in requiring criminal intent. It is more useful for sentencing than in determining guilt or innocence.
Suppose I think TV is evil and I hide someone's television set. But my motive is to discourage the owner from watching TV. I do not want the TV for myself, I merely hope he will do something else with his time.
Did I have criminal intent? I probably committed a criminal act.
Separate intent from act. Belief from act. That may, but cannot always, clarify.
The establishment clause in the Constitution is IMO really about freedom of belief. It does not mean an act must be tolerated because some religious authority or reference says it is OK.
And at heart everyone realizes that. Otherwise Neo-Druids could build bonfires in Times Square and others could burn live puppies in the flames.
KTWO
