Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
As I noted in a comment yesterday, the one big example of Sharia law allegedly coming to the United States that all the wingnuts talk about -- the case in New Jersey where a state judge refused to grant a PPO for an abusive Muslim husband because his religion gave him the right to beat his wife -- has been overturned by the appeals court. There are a couple of important things to note here.
First, this really had nothing to do with Sharia law. The judge did not attempt to apply any such law. It was a very narrow finding on the question of intent, with the judge concluding that because the husband had the expectation that it was okay to beat his wife and force her to have sex, he lacked any specific criminal intent. That's a horrible, horrible ruling -- but it isn't an application of Sharia law.
Second, the problem of marital rape is hardly one unique to Islam. In this country, it was not at all unusual for marital rape to be excused by the courts. Until 1975, rape laws in the United States specifically precluded charges against a spouse. The last state to make it a crime at some level? North Carolina in 1993. And to this day, 2/3 of our states treat marital rape as less serious than rape by strangers.
In the British common law, marital rape was non-existent. From at least the early 1700s, the common law rule was that the husband "cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract." And for centuries in the West, this was largely based upon the Biblical notion that a wife must obey her husband at all times.
One study found that victims of marital rape found religious figures of the least help in reporting and surviving the effects of marital rape because such attitudes are still pervasive:
In a study of battered women, Bowker (1983) found that they ranked clergy members as the least helpful of those to whom they had turned for assistance. The emphasis of some religious institutions on wives' responsibility "to obey their husbands" and the sinfulness of women's refusal to have sexual intercourse with their husbands, perpetuate the problem of marital rape.
As recently as 2006, Phyllis Schlafly was ranting about "malicious feminists who have lobbied for laws that punish spousal rape just like stranger rape." As recently as last year, a law in the Bahamas outlawing marital rape was hugely controversial in that country -- and opposition was based on the Bible, not the Quran.
The bill, which is designed to outlaw marital rape, was tabled in the House of Assembly last month.However, many Bahamian men, like taxi driver Pemmie Sutherland, say the bill is "simply unnecessary."
"It is ridiculous for them to try to make that a law, because I don't think a man can rape his own wife. After two people get married, the Bible says that they become one - one flesh. How is it possible to rape what is yours?" asked Mr. Sutherland.
Elvis Russell told the Journal that he does not support the bill either because there is no such thing as rape within a marriage.
"Even if a woman says no to her husband it still can't be considered rape because she is his wife. He already paid his dues at the church and she already said 'I do,' so from then on, even if [a man] forces sex on his wife, it isn't rape," he said.
So let's stop the pretense that this is a problem unique to Islam; Christianity has historically had the same problem and still does in certain subsets.
Lastly, let's recognize that this horrible ruling was overturned by the appeals court, which concluded that the lower court judge had abused his power. And it was not a close call. So the notion that this case means that "Sharia law is already here," as claimed by the AFA's Bryan Fischer, is simply idiotic (and even more so coming from Fischer, who wants gays to be thrown in jail and forced to undergo anti-gay reparation "therapy" -- which is close enough to Sharia law that it makes him a fellow traveler).
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A very good, thorough, and sensible post on the subject. It says everything that needs to be said. But will it do a damn bit of good?
Posted by: CJColucci | July 28, 2010 10:42 AM
Thanks for writing about this, Ed. After I saw the comments yesterday, I almost looked it up. Then I said to myself, "Nah, Ed will tell me all about it soon."
Posted by: James Hanley | July 28, 2010 10:52 AM
"A very good, thorough, and sensible post on the subject. It says everything that needs to be said."
And an excellent example of why I always recommend this blog to all my friends.
Posted by: Blondin | July 28, 2010 10:54 AM
Has Phyllis Schlafly ever said anything that wasn't completely insane? I can't even imagine her ordering breakfast without making a statement I would consider barking mad.
"I'll have the French toast please, with a side of bacon. Every country that has experimented with women in actual combat has abandoned the idea, and the notion that Israel uses women in combat is a feminist myth."
Posted by: Captain Mike | July 28, 2010 10:55 AM
For the sake of accuracy, Phyllis Schlafly would never order French Toast. She would order Freedom Toast.
Posted by: Equisetum | July 28, 2010 11:06 AM
Been reading Time Traveler's Guide to England by Ian Mortimer, which is a fantastic illustration of life in medieval England.
I have to say, it's horrifying that modern Christianity has possibly moved *back* a step from Christianity in 14th century England, where the church would intervene if a woman was being beat or raped by her husband, and was one of the few recourses outside of vigilante justice any woman had against rape.
Posted by: LtStorm | July 28, 2010 11:14 AM
@ Equisetum: LOL. I realized that right after I posted, and gave myself a mild smack for not thinking of it earlier.
Posted by: Captain Mike | July 28, 2010 11:20 AM
Spousal rape is depressing. This thread is now about how Phyllis Schlafly orders breakfast.
"Eggs over easy, please. It has been scientifically proven that holding feminist ideals causes anxiety and frigidity in women, as well as elevated estrogen levels in men. That is why Muslims currently have a higher birthrate than Americans."
Posted by: rob | July 28, 2010 11:30 AM
Thanks for posting this, Ed.
Do you know what the legal landscape looks like in countries that lack strong Christian or Islamic influences (such as Japan, as I understand it)?
It's easy to look at Christian and Islamic traditions and point out how poorly women fare in them, but I wonder sometimes if that doesn't lead us to overlook serious problems in other parts of the world.
Posted by: Jay | July 28, 2010 11:38 AM
Some of the analysis of the case I read over at Volokh pointed out the complexity in the original ruling, a good bit of it arising when you actually bother to read the details of the case. These details also made it clear that the original ruling wasn't quite as insane as it seemed to be at first, though the judge still had to ignore some key facts in order to get where he'd gotten.
Specifically, an OoP is apparently meant to be given only when there is concern of future misbehavior, not as a punishment for prior misconduct; since the two were divorced--under the same Islamic code that led the man to believe he had a marital right to sex-on-demand in the first place--the trial judge felt that he was no longer a threat to his ex-wife, since he could not claim to be acting as her husband any longer.
Obviously, the ruling was still flawed, but I can at least follow the trial judge's thought-process--which would, as you noted, Ed, also be possible to apply to a fundie Christian couple in the same circumstance.
Posted by: Freemage | July 28, 2010 11:39 AM
This is Christianity speaking. In Jewish law, marriage is in essence a contract, with the husband obligated to provide for his wife's needs. And sex is one of her needs, not his. The upshot is that the wife pretty much rules the kitchen and the bedroom, and the husband pretty much everything else.
The wife is expected to reciprocate to some extent though, but the penalty for withholding sex (or for burning dinner) is that the husband can seek a divorce.
This is all a gross oversimplification, but the bottom line is that marital rape has been forbidden under Jewish law for millennia. It is explicitly prohibited in the Talmud (Eruvin 100b). An interesting aspect of this is Israeli law, which lacking a constitution, is a sometimes bizarre mishmash of Turkish, British, and Jewish law. In a famous 1980 case, Cohen v State of Israel, the Israeli Supreme Court decided that Jewish tradition trumped British common law. See here for a summary.
Posted by: william e emba | July 28, 2010 11:40 AM
"Spousal rape is depressing."
Rape is horrifying. Full stop.
Posted by: Captain Mike | July 28, 2010 11:42 AM
That's actually (unsurprisingly) very close to medieval England's stance on it. I'm guessing the "modern" rules for marital rape got their start from the Puritan demographic, and kept growing up through the Victorian Era to the Modern Era.
Posted by: LtStorm | July 28, 2010 11:56 AM
Using coercion is still rape, especially during the times when women were financially dependent on their husbands.
Posted by: catgirl | July 28, 2010 12:06 PM
The practice of redefining "rape" and "coercion" to mean just about anything involving less-than-perfect-sex has got to be one of the most repulsive aspects of modern feminism.
Posted by: william e emba | July 28, 2010 12:21 PM
Way to convict an entire movement of a sentiment that wasn't even expressed in the post to which you were responding, William.
Posted by: Gretchen | July 28, 2010 12:26 PM
It's good to know that when I marry my hypothetical husband, he and I will be considered one flesh. That way, when I murder him, they can only charge me with attempted suicide.
Posted by: Bethistopheles | July 28, 2010 12:29 PM
I was privileged to attend a lecture yesterday by my favorite historian, Gordon S. Wood. He's doing a five-day lecture series in beautiful Petoskey, Michigan on his recently published Oxford American History volume Empire of Liberty, which covers 1789 - 1815.
He noted that the 1790s was a time of enormous societal upheaval. Two illimunative items he mentioned was that alcohol consumption and family violence both spiked very high in the U.S. at that time; 5 gals of ? per capita per year (not sure if what was measured was alcohol or some diluted form, like whiskey). In particular he noted that the roots of the temperance movement originated in this time given the increase of violence against women that decade.
Posted by: Michael Heath | July 28, 2010 12:30 PM
Rape is making someone have sex when that person does not want to have sex. The means by which that is acheived does not make it more or less rape. Rape is repulsive. If someone doesn't want to have sex with you right now, then just accept it and don't have sex with that person.
Posted by: catgirl | July 28, 2010 12:38 PM
Rape is making someone have sex when that person does not want to have sex. The means by which that is acheived does not make it more or less rape. Rape is repulsive. If someone doesn't want to have sex with you right now, then just accept it and don't have sex with that person.
While this is basically correct, the sorts of people catgirl is responding to could easily mis-read it. I have had sex when my wife really wanted it and I, left to my own devices (insert obvious joke here), would rather get another 5 minutes (yes, that's a joke) of sleep. I'm sure my wife has made similar accommodations, probably even to me. (that had better be a joke) The kind of moron catgirl is responding to seems to think that "modern feminism" holds that the sequence: "No", "Aw, come on", and "Oh, all right" is rape.
Posted by: CJColucci | July 28, 2010 12:49 PM
I once argued with someone who told a story of a woman who was "raped" by her husband, who used the following method of "coercion:" he would try to initiate sex. She would refuse. He would turn the stereo up too loud.
I maintain that this is not rape. This is choosing to have sex rather than listen to loud music. I'm not saying the guy wasn't an asshole or that what he did was perfectly alright, just that calling it rape seems to diminish both rape and coercion significantly. It seems to suggest that rape is less horrifying than not getting a good night's sleep. A mere inconvenience rather than something violent and violating.
I don't believe this is the position of most "modern feminists." In the thread in which the argument was had, there were many people of both sexes agreeing with either side, and I imagine the majority of us would self-identify as feminists. However, it is not the only time that I have encountered this attitude that rape requires only that a woman be slightly inconvenienced if she doesn't have sex.
Posted by: rob | July 28, 2010 1:10 PM
I'm not sure how we got from threatening divorce to playing loud music, but this is a straw man fallacy if I ever saw one.
Posted by: catgirl | July 28, 2010 1:27 PM
Schlafly: "I'll have spam, sausage, spam, spam, bacon, spam, tomato and spam.
Also, you are such a pretty girl. You should meet my son Andy. He's a good, pure boy of 40, and he runs the most interesting web site. Right now he's working on this whole rewriting the Bible thing, so Jesus doesn't come across like a total fag.
Oh, and by the way, you know who else believed in evolution? Hitler!"
Posted by: Fifth Dentist | July 28, 2010 1:38 PM
Nope, it happened. I had the argument. I'm sure the blog post and its comment section still exist if I cared to dig them up and prove it.
It's not so much a strawman argument as it is an over-generalization. Some people have some ideas about rape that harken back to the old days when women's virtue must be protected at all cost, and William E Emba misattributes them to the feminist movement rather than to the individuals who hold those positions.
Rape is a horrible crime but there are legitimate complexities of human interaction involved, just as there are always are when something that people might engage in willingly can, under other circumstances, be a violent assault. Defining rape either too narrowly or too broadly oversimplifies it, and in one case results in people who need protection from the law not getting and in the other results in people who are no threat to anybody being punished too severely. It's the latter Emba is complaining about.
I don't know what the fallacy is when you take the position of a small subset of a group and attribute it to the group as a whole, but that is what he is guilty of here.
Posted by: rob | July 28, 2010 1:49 PM
But it didn't happen here and I certainly never made that argument. It's disingenous to imply that that ridiculous argument is the same as the argument that I actually made. That's still a straw man fallacy, even if other people have made that claim because I haven't made it.
Posted by: catgirl | July 28, 2010 1:59 PM
There is nothing complex about rape,if she says no it is rape.In fact the only thing about the subject which is complex are the bogus excuses invented to justify this crime.
Posted by: Paen | July 28, 2010 2:10 PM
Hasty generalization, or simple stereotyping. Sure, there are some feminists who have ridiculous standards for rape, but they by no means represent "modern feminism" as a whole. When the pendulum swings back, for some people it inevitably swings too far.
Posted by: Gretchen | July 28, 2010 2:10 PM
Fallacy of composition.
Posted by: James Hanley | July 28, 2010 2:11 PM
That's a sufficient but not necessary condition. A strong piece of tape is a good way of preventing someone from saying no, as are certain drugs, threats against a person or people she cares about, etc.
Posted by: Gretchen | July 28, 2010 2:16 PM
I'm hesitant to ask this question, but I will risk putting my foot in it and go right ahead (fools rush in and all that).
Beginning with the assumption that a husband forcing his wife to have sex is in fact rape, is it a rape that ought to be punished as forcibly as rape by a non-spouse? My reason for asking is that we generally say that a more severe harm should result in a more severe punishment and vice versa. And while the specific violation of rape is a violation of an individual's right to control her body, the harm we primarily focus on--I think--is the mental harm caused by the act. So the real underlying question is, is rape by a husband as mentally harmful to a woman as rape by someone else? And if it is not, should it be a lesser crime than rape by a non-spouse?*
___________________
*Please note that this is not an effort to downplay it, and sneak in the suggestion that husbands should only get a slap on the wrist. I don't think rape is normally punished severely enough, so perhaps an affirmative answer to my question might be, "Yes, husbands should get the normal punishment meted out now, and non-spouses should get double that" or something along those lines.
Posted by: James Hanley | July 28, 2010 2:17 PM
Absolutely. It's no less traumatic (and may be even moreso) when the criminal is your own husband, especially if the victim felt like she should be able to trust her husband.
Posted by: catgirl | July 28, 2010 2:22 PM
Nobody said you did. You said:
Which some people will feel is a reasonable definition of coercion and others will feel is not. Emba replied:
Implying that he feels that you have overbroadened the meaning of coercion in the manner of nameless feminists in order to portray what some may consider a perfectly reasonable and legitimate social contract (husbands and wives should take of each other's needs, sexual or otherwise) as an act of sexual violence.
You responded:
Which further broadened the definition of rape to include tactics that would not, in other situations where an act or service is elicited when a person does not strictly-speaking "want" to perform that act, be considered coercion. An example might be prostitution (although I think there are legitimate arguments that prostitution in most forms could be considered a form of rape, that is not the common interpretation and that is not the way it is treated in our justice system).
CJColucci offered some examples of how such broad language could be misinterpreted by somebody like Emba who was viewing it through the lens of an anti-feminist agenda.
I was merely attempting to offer a possible misinterpretation from the other side – from the lens of a person who intends only to protect women yet whose position most of us would consider untenable. This claim that turning up the music too loud in order to elicit sex is the equivalent of rape fits both your definition and also manifests Emba's complaint that unnamed "feminists" broaden the definition of rape and coercion until they become useless.
Emba is conflating this overbroad definition of rape with your position. In fact, he may even believe that your position has already overbroadened the definition, and I think there are fair arguments either way. I was simply trying to show that somewhere along this vector, you can reach a position that most of us can agree on: a claim of rape that probably should not be considered rape because even if one partner did not "want" to have sex, their assent was elicited in a manner that could not fairly be considered "coercive," yet which somebody, somewhere, self-identifying as a feminist, will nevertheless insist was an act of sexual violence.
As CJColucci pointed out, saying "Aw, c'mon!" (or, the most common one in my household, "It's not that muggy out, really") to your spouse should not be considered rape. But nobody, as far as I know, ever claimed it was. So I offered a situation where somebody has claimed rape for the purposes of discussion.
The man in my example was clearly guilty of being an asshole. He was in the wrong. He obviously should not be using loud music to pressure his wife into doing something that should be pleasurable and fulfilling for both of them. But was he really guilty of rape? By your definition, he could be. Unless you can amend it with more specific words than "make" and "want," you're only supporting Emba's claim.
Posted by: rob | July 28, 2010 2:33 PM
If we're going to continue in the vein of more or less traditional weddings, we very much need to take the phrase "for better or worse, 'til death do you part" out of the standard nuptial vows. No one should be bound by contract to suffer with the violence and harm that the "worse" bit all too often entails.
Posted by: Bethistopheles | July 28, 2010 2:37 PM
James,
By your use of the word "ought" I assume that you are asking for personal opinions. It shouldn't be assumed that a rape by a husband is less mentally harmful than one by a casual acquaintance or stranger-- it might be more traumatic, actually, depending on the context. It could, for example, take place within a long period of emotional abuse, which would exacerbate the pain of the rape. So no, I would not say we should draw any automatic distinction between spousal rape and other kinds based on that.
Posted by: Gretchen | July 28, 2010 2:40 PM
Gretchen and catgirl,
So if I read you both correctly, you'd say my very question rests on a flawed assumption. That could be. I'm not really in a position to know, so I can't provide any defense for it.
Posted by: James Hanley | July 28, 2010 2:58 PM
I'm glad they're defending marriage against us homos. Ya wouldn't want to ruin a gig like this.
Posted by: Owen | July 28, 2010 3:08 PM
Well, this is coercion.
What if he had used something worse than loud music? Like threatening to get her fired from her job? Or threatening to physically beat her? What if the loud music prevented her from sleeping, thus endangering her ability to perform at work and so was more than a mere nuisance but a serious problem? Would it not have been rape if she had chosen sex over a physical beating?
I don't know how bad the situation was for her, but it's very easy for me to see how even something as normally harmless as loud music could become a real problem. They use loud music and sleep deprivation as "extreme questioning techniques" (or whatever we're calling it now) for a reason. It could be more than a mere nuisance and I don't know if it's fair to assume that it wasn't a serious problem for her that resulted in her making the choice under duress. I could see this being rape, but without knowing the details it's impossible to say that it was.
Posted by: Leni | July 28, 2010 3:14 PM
Bethistopheles @17
IIRC a wife murdering her husband was considered petty treason and more serious than ordinary murder (and with a more gruesome penalty).
Posted by: Erp | July 28, 2010 3:15 PM
I don't think anybody would claim that it isn't rape if he threatened to get her fired or physically beat her. Suggesting that playing loud music is rape because it would also be rape if he physically beat her is the height of dishonesty. I was hoping to describe a situation that, by most people's standards, demonstrated both Emba's complaint about overbroadening definitions and Catgirl's definition of rape as "Making somebody have sex who doesn't want to by any means at all." You're assuming facts not in evidence in order to dodge the issue.
The use loud music and sleep deprivation as torture techniques in situations where a person cannot simply get up and leave. Or hell, unplug the stereo and throw it out the window.
We don't expect people to assume responsibility for (most of) their actions in situations where they are threatened with physical violence or ruination. That makes sense.
Do we really not expect people to take responsibility for their decisions when threatened with loud music?
If a guy walked in to a bank and declared that if the teller did not give him all the money, he would turn his boombox up real loud, is that an armed robbery?
If your roommate plays music really loud, can you shoot him in self-defense?
In the situation in question there was absolutely no intimation that the husband was physically abusive, or that the woman feared for her safety at any time. The husband was just a childish jerk who would sulk if he didn't get what he wanted, and take it out on his poor wife by playing his music too loud.
Every day, I deal with petulant assholes who make my life more difficult than it ought to be. They're losers, but they're not criminals. If my wife ever acted like that, I'd call her out on it and we would have a fight. I wouldn't give in to her demands and then bring her up on extortion charges later.
Posted by: rob | July 28, 2010 3:37 PM
From The Maxx:
Julie’s statement notwithstanding, it always amazes me how wide the grey area between coaxing and coercion can be. It feels like it should be easy to define, a bright line that anyone with a scrap of decency should be able to see. I mean we’re talking about the difference between consensual sex, one of the most loving and beautiful experiences people can share, and rape, something up there with murder and torture on the list of horrible things we can do to each other. Yet I’ve had this discussion dozens of times with dozens of people and it always seems to come down to an "I know it when I see it" sort of thing.
It’s ambiguous enough to me as to have damaged some of my past relationships. I’ve had lovers get quite upset that I don’t put more pressure on them, saying they wanted to feel pursued, needed, desirable. The power struggle played out in a couple’s back and forth games of resistance and surrender can be great foreplay. Pressure is a natural component of passion, and who doesn’t want that in their lover? Yet, with very little change in the observable circumstances, that pressure can cross the line. Were I ever to cross it I’m not sure I could ever forgive myself. Rape! So I tend to stay way on the safe side. Well, at least until there’s a safe word.
In short, I don’t really have any good insights. But I am extremely interested in the discussion.
Posted by: Abby Normal | July 28, 2010 3:56 PM
Rob, I asked those questions not as dodges but because I genuinely don't know what the difference is.
She could just as easily have left if he'd threatened to beat her. She could have left if he'd threatened to get her fired. She could have taken a sledgehammer to the stereo, The point is that he was causing duress in order to coerce her into sex. That may not be the same thing as sexual battery, but I can see how it could be considered some variety of sexual abuse.
Posted by: Leni | July 28, 2010 3:58 PM
There is a lot of gray area, but if the attempt (for lack of a better word) is abusive in nature and not welcomed by the victim who relents only to stop the abusive behavior, it should be clear that it is not mere coaxing, shouldn't it?
Posted by: Leni | July 28, 2010 4:02 PM
Abby Normal said:
Reminds me of this.
Posted by: Gretchen | July 28, 2010 4:11 PM
Rape is making someone have sex when that person does not want to have sex. The means by which that is acheived does not make it more or less rape.
Normally the word "rape" is understood to mean penetration of a woman against her clearly-known will by direct physical force or credible threat of such force against the victim or someone else close to her. Stretch the word to include other forms of "coercion," and the word starts to lose its meaning and gravity. Seriously, folks, if you're trying to convince people that rape is never excusable, the LAST think you want to do is start conflating brutal force with relatively innocuous acts of mere assholishness or immaturity.
Posted by: Raging Bee | July 28, 2010 4:29 PM
Gretchen, is that link safe for work?
Posted by: Captain Mike | July 28, 2010 4:30 PM
Mike, it is not safe for work, but it is funny as hell.
Posted by: Leni | July 28, 2010 4:34 PM
What if he had used something worse than loud music? Like threatening to get her fired from her job? Or threatening to physically beat her? What if the loud music prevented her from sleeping, thus endangering her ability to perform at work and so was more than a mere nuisance but a serious problem? Would it not have been rape if she had chosen sex over a physical beating?
Why is it so important to have ONE word encompass all such things? Is it really so awful to expand our vocabulary a bit and use different words for visibly different circumstances? Some of the above incidents can be called "sexual harassment," others "menacing," "abuse," or perhaps "mental/emotional cruelty."
Posted by: Raging Bee | July 28, 2010 4:41 PM
LOL@Gretchen. Ha! Great link!
Posted by: Caliban | July 28, 2010 4:42 PM
@Captain Mike, probably not. But if you turn the volume way down you're probably safe. The visual is just a standup comedian.
@Gretchen, lol! Yea, that would be a good example. Though my personal experiences have mostly taken place in long-term relationships, it did sound early familiar.
@Leni, that assumes one can always tell what is and is not welcome.
Posted by: Abby Normal | July 28, 2010 4:44 PM
It's not, Bee. You'll notice I also said that I thought it could very well be construed as some form of sexual abuse even if wasn't the same thing as some of the more extreme kinds of sexual battery.
Posted by: Leni | July 28, 2010 4:44 PM
Er, I mean eerily familiar.
Posted by: Abby Normal | July 28, 2010 4:47 PM
I was thinking about that, too. But like Louis Ck says, it probably isn't wise to rape now and ask questions later.
Posted by: Leni | July 28, 2010 5:04 PM
I quote from Feminist Perspectives on Rape, in the Stanford Encyclopedia of Philosophy:
I neither claimed nor implied that feminism is a monolithic block.
Posted by: william e emba | July 28, 2010 5:30 PM
William E Emba said:
Yes, and that quote does not remotely demonstrate a "practice of redefining 'rape' and 'coercion' to mean just about anything involving less-than-perfect-sex."
You're right; you implied that modern feminism is a monolithic block:
Posted by: Gretchen | July 28, 2010 5:49 PM
I was talking about Jewish law. I gave an oversimplified version, as I stated, and you jumped in with a ridiculous it's-still-rape scenario.
In more detail (but still oversimplified), if the husband has been a perfect husband all along (as in, he 100% provides for her material needs appropriate for his income, he 100% speaks kindly to her, he 100% never embarrasses her in public, or in front of the children even, he is 100% clean and physically pleasing, he is 100% available to her if she wants sex at a frequency dependent on his occupation, etc) then he is entitled to sex at least once a month, at a time and manner of her choosing, and if not, his only "coercion" being the right to seek a divorce which almost certainly will include her getting custody and child support but nothing else.
I would no more call the man in such a situation a rapist than I would call the woman a prostitute. Such broadly expansive language ultimately trivializes, infantilizes, and victimizes women.
Posted by: william e emba | July 28, 2010 5:51 PM
It does not demonstrate, but it's certainly close enough for my purposes. Quite simply, the parts in the SEP quotation that were explicit are examples from a horribly ill-defined slippery slope. And that is what I found in one Google.
"Aspect" is an ambiguous word, and I did not notice until now, while wondering how on earth anyone could read the above as such an implication. "Aspect" can refer to the overall appearance (implying monolithism) or to one side, corner, angle of appearance (denying monolithism).
This is a blunder on my part, entirely unintentional. I apologize for giving offense here.
Posted by: william e emba | July 28, 2010 6:15 PM
There are people who claim to speak for modern "feminism" who would argue that the sequence "mmm, I want you..." "I noticed. Mmm, I want you too..." [*lip smacking and "purring"*] is rape when a male and a female are involved since the female cannot meaningfully give consent in the context of a patriarchal culture blah blah blah blah blah. There may even be as many as three of them. I wish they'd go away because they're an occasional distraction and a ready made strawman for the dumbshits who want to undermine actual feminism*.
*(the philosophy I have outlined implicitly, but categorically, denies female agency, or at least female sexual agency, and if that isn't anti-feminist I'm not sure what it).
Posted by: Azkyroth | July 29, 2010 2:05 AM
There were, once upon a time, many more than three of them. In fact, it was a significant part of the "date rape" issue back in the 80s.
First, there was the genuine "date rape" issue. The police and courts tended to think of dating as pretty much a legal form of contractual prostitution, wherein the fellow paid the way and she was then obligated to provide him sex. If it was a little bit violent along the way, it wasn't really rape. "No" means "no" has taken a lot of work to sink in, and certainly needs more work.
But there was a ridiculous "date rape" issue that went along, where a lot of young college women themselves believed that dating was pretty much a legal form of contractual prostitution. Apparently everyone believed that at college. And there was feminist re-education movements on numerous campuses, which frequently included claims that sex under those circumstances was "date rape". That's the "yes" means "no" school of thought.
It's completely vile, and numerous colleges bought into to some extent, including some ridiculous protect-the-women codes of conduct, since obviously undergraduate women were incapable of deciding for themselves. I thought it was a PC-fad restricted to the 80s and assumed that it had faded out into forgotten extremist overreaction. I was quite jolted to see Catgirl bring it up, just so she could equate Jewish laws against marital rape that she knew absolutely nothing about were really as vile as those Christian/Islamic views that claim wives are nothing more than their husbands' property.
Posted by: william e emba | July 29, 2010 9:52 AM
Exactly! But that doesn't really help define the line. As erring too far on safe side has caused me problems in the past, I'd be interested in how to narrow the grey area.
Posted by: Abby Normal | July 29, 2010 10:17 AM
Ed, I do not believe you did your homework and that you carefully read the appellate decision.
It talked about the religious beliefs of the defendant (Sharia) all over the place, and how it was inappropriate for the trial judge to take those (Sharia) beliefs into consideration for the judge's legal decision.
While the opinion did not use the word "Sharia," the religious beliefs of the defendant are Sharia.
The opinion is not subtle -- it says this many time in short sentences. Anyone reading the opinion should see it.
For example, in CAPITAL letters, on page 2, the appellate judges found:
THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT DEFENDANT LACKED THE REQUISITE INTENT TO COMMIT SEXUAL ASSAULT AND CRIMINAL SEXUAL CONTACT BASED UPON HIS RELIGION. (Emphasis mine.)
Less than 30 words, all of 3 syllables or less. Not a complicated sentence to parse and understand. "... based upon his religion."
Come now, I don't know how it could be more clear.
Lot's of other examples throughout the opinion.
You can spin it how you like, but it does not change simple reality.
The trial judge based a legal decision on the defendant's religion.
However, I do give you credit for having the courage to address this from the liberal/left perspective. Almost all liberal/left bloggers have ignored this incident (perhaps because they don't have a rational answer to it, or perhaps they hope by ignoring the problem it will go away).
Posted by: Libby | July 29, 2010 11:49 AM
Libby, what's your point? Ed's analysis is reasonable.
The US judge did not apply Sharia. That is the issue that Ed is refuting. The judge ruled according to US law, which required a determination of likely mental state of the defendant.
You as might as well claim that a judge ruling that painting a swastika on a synagogue meets hate crime criteria is problematic because it takes into account religion. Well, it does, but so what?
Posted by: william e emba | July 29, 2010 12:46 PM
Lot's of other examples throughout the opinion.
Not one of which you cite. And the one example you DO cite, was already explained by Ed long before you showed up. Agree or disagree with the decision as you wish, but either way, it was not an application of "Sharia" anything.
Posted by: Raging Bee | July 29, 2010 1:04 PM
@Libby #60:
Nope. The introduction to the passage you quote reads:
"Plaintiff, S.D., appeals from the denial of a final
restraining order following a finding of domestic violence. On appeal, she raises the following issues:"
They are simply stating the issues she raises.
The Appeals Court said that "The trial judge found as a fact that defendant committed conduct that constituted a sexual assault and criminal sexual contact, but that defendant did not have the requisite criminal intent in doing so. His conclusion in this respect cannot be
sustained." It could not be sustained because the criminal intent was merely knowingly engaging in the conduct; his religious belief that he was entitled to act as he did were as irrelevant as a Mormon's views on polygamy, or a Jehovah's Witness's views on blood transfusion.
The decision was appalling, but as bad as it was it did not seek to apply Shari'ah; it simply (mis)applied USA law.
As with Torah, Shari'ah is not a religion;
The problem, insofar as there was one, has gone away; the decision has been overturned on appeal.
Posted by: Robin Levett | July 29, 2010 1:16 PM
William,
Granted, the trial judge did not use the word "Sharia," and did not cite an explicit Quranic verse or a hadith. But that is simply perhaps because the trial judge simply didn't know what specifically to cite.
What the trial judge did do was to cite the defendant's religious beliefs and perceptions and the defendant's "culture." And that those beliefs, perceptions, and that culture is Sharia.
BTW, there are plenty of Sharia quotes on the web that people are providing that the trial judge could have used, and that the imam probably could have provided to the trial judge had he asked.
Unfortunately, the trial judge gave an oral opinion (as the few people who have actually read the appellate decision are aware -- and, BTW, this is a state case, and all of the judges are state judges, not US judges), so there is not written primary source to point to -- we have to infer from the appellate opinion.
Also granted, that the trial judge used American law the in sense of trying to determine the defendant's intent -- but the point is that the judge enclosed Sharia within that intent.
Luckily for those of us that value and believe in the separation of church and state, three appellate judges in New Jersey disagree with that analysis. The appellate court spent a lot of money, time, and opinion pages (38 pages!) trying to make this clear!
What's scary is that there is still a sitting judge in New Jersey that came up with the original analysis and made a legal decision based on the defendant's religious beliefs (Sharia).
Will more such judges be appointed?
BTW, Ed's analysis: "the husband had the expectation that it was okay to beat his wife and force her to have sex, he lacked any specific criminal intent. That's a horrible, horrible ruling -- but it isn't an application of Sharia law.
The husband's expectation came from Sharia law. That is Sharia law. The trial judge accepted that expectation. The judge therefore used Sharia law. That expectation can only be attributed to Sharia -- there is no other source that it could have come from.
There was an imam testifying in the case (again -- read the opinion), and that is where the trial judge got the information. The imam was testifying on some of the history of events within the specific case, but then the judge (not even the defense!) started asking the imam religion-based questions to get more information about Sharia.
Sharia. Sharia. Sharia.
Posted by: Libby | July 29, 2010 2:53 PM
Libby, recognizing that the defendant was influenced by Sharia law and Islamic culture is in no way, shape, or form an application of Sharia. The court was required to consider the person's intent. How is a judge to accomplish that while ignoring those major influences?
The courts regularly recognize things like a person's Christian upbringing. This does not suggest a government endorsement of Christianity or mean it is applying Biblical law. Can you explain how this is different in any significant legal context?
Posted by: Abby Normal | July 29, 2010 3:08 PM
Granted, the trial judge did not use the word "Sharia," and did not cite an explicit Quranic verse or a hadith. But that is simply perhaps because the trial judge simply didn't know what specifically to cite.
So how can a judge apply Sharia law if he doesn't even know which bit of Sharia law to cite? the answer is, he wasn't applying Sharia law, he was applying a bit of US law that required him to take account of the defendant's understanding and intent.
BTW, there are plenty of Sharia quotes on the web that people are providing that the trial judge could have used, and that the imam probably could have provided to the trial judge had he asked.
And why were such quotes not requested or provided? Because the judge was not applying Sharia law.
Also granted, that the trial judge used American law the in sense of trying to determine the defendant's intent...
Thank you, you have just "granted" that the core allegation at the heart of this controversy is false. Argument over.
Posted by: Raging Bee | July 29, 2010 3:23 PM
Well, of course. The judge was applying US law and needed information regarding the defendant's intent. The imam gave presumably expert testimony on this matter. Who else?
New Jersey and New York have had laws regarding the status of kosher foods for decades. They are essentially "truth in advertizing" laws. What, exactly, is the big deal?
Posted by: william e emba | July 29, 2010 5:04 PM
Some people just do not WANT to understand.
Let me be crystal clear again: the trail judge used Sharia law in a judicial decision (regardless how he couched it or how anyone tries to spin it).
That, fortunately, is also the conclusion of the appellate court.
Posted by: Libby | July 29, 2010 5:08 PM
That's you, obviously. The judge applied US law. If the US law said consider Sharia, then the judge did the correct thing. What, exactly, is the big deal? How is this any different from the examples involving Judaism that I provided, and which you have pointblank refused to comment on? Your continuing refusal to address these examples is, in my eyes, proof that you're just blithering at random.
Posted by: william e emba | July 29, 2010 5:16 PM
Libby, you are continuing to be wrong, after explicitly admitting that the allegation you were trying to support was wrong. (Remember all those "Granteds" in your last post? It's still there -- go reread it.) The argument is over, and you've been proven wrong. Go to bed.
Posted by: Raging Bee | July 29, 2010 5:25 PM
Libby, #68: Let me be crystal clear again: the trail judge used Sharia law in a judicial decision (regardless how he couched it or how anyone tries to spin it).
Yes, the judge used Sharia...in an indirect way, as a relevant fact for one aspect of the case. But he did not apply Sharia, which is very different, and the issue in question in the original posting.
To apply Sharia law, the judge would have simply state, "According to Sharia, this is the ruling we will make in this matter." Instead, the judge said, "The defendant believe he was acting according to Sharia. Therefore, the defendant did not have criminal intent according to US law. So, according to how US law defines criminal intent, we must make this ruling."
That doesn't make the ruling right or correct. I think it was wrong in a moral sense, and an appellate court ruled it incorrect in a legal sense. It just means that Sharia was not applied in this case.
Maybe the difference is a bit too subtle for some, I dunno.
Posted by: Chiroptera | July 29, 2010 5:54 PM
Libby, maybe I’m misunderstanding. Are you upset that:
A) a judge included the person’s religious beliefs when considering his state of mind?
B) the judge came to the conclusion that a religious belief, from any religion, could be used to show someone did not have intent even though they knew what they were doing was otherwise illegal?
C) that Sharia specifically was the part of the system of beliefs under which the accused operated?
My thoughts on each are that A is not only legal, but sometimes even critical when establishing things like motive. On B I agree with the appeals court, it was a really bad conclusion. Regarding C, I see no reason to treat Sharia any differently than any other religious system. This is supported by the fact that, as the appeals court noted, other religions had tried similar arguments that were likewise found wanting by the courts under existing law. Do we disagree?
Posted by: Abby Normal | July 30, 2010 12:02 AM
Here's my issue: Let's say I'm a man. I'd like to have sex with a woman or women at some point. I'm not especially good looking or talented, so I have to work to get women to want to have sex with me. How am I supposed to know if a woman really consents or only is pressured into consenting because I kept bugging her about it?
Posted by: Ace of Sevens | July 30, 2010 1:59 AM
"
"Using coercion is still rape, especially during the times when women were financially dependent on their husbands."
Good point. Some women and girls still are financially dependent on husbands or other sex partners, which is why they're powerless to protect themselves from HIV and AIDS:
http://www.washingtonpost.com/wp-dyn/articles/A34022-2004Dec3.html
http://www.washingtonpost.com/wp-dyn/articles/A23730-2004Nov30.html
"Well, this is coercion.
"What if he had used something worse than loud music? Like threatening to get her fired from her job? Or threatening to physically beat her? What if the loud music prevented her from sleeping, thus endangering her ability to perform at work and so was more than a mere nuisance but a serious problem? Would it not have been rape if she had chosen sex over a physical beating?..."
Or what if he had used something worse than loud music, like threatening to kick her out of the house after she had no chance to learn non-housewife job skills and no chance to feed herself and her children without being married to him?
That's why it's so important for all children, including girls, to have opportunities to learn trades and professions that don't require having sex.
"There is a lot of gray area, but if the attempt (for lack of a better word) is abusive in nature and not welcomed by the victim who relents only to stop the abusive behavior, it should be clear that it is not mere coaxing, shouldn't it?"
Bingo. What on Earth is wrong with waiting until the other person *does* tell you that she or he is enthusiastically consenting to have sex with her or him? Why make all the excuses for "gray areas"?
"'I quote from Feminist Perspectives on Rape, in the Stanford Encyclopedia of Philosophy:'
"Yes, and that quote does not remotely demonstrate a "practice of redefining 'rape' and 'coercion' to mean just about anything involving less-than-perfect-sex.""
Exactly!
"Here's my issue: Let's say I'm a man. I'd like to have sex with a woman or women at some point. I'm not especially good looking or talented, so I have to work to get women to want to have sex with me. How am I supposed to know if a woman really consents or only is pressured into consenting because I kept bugging her about it?"
Bugging someone to do something or else you'll keep bugging her or him *is* coercive. Since you don't have ESP, you're actually not supposed to know if the woman you're bugging changed her mind and really consents or only is pressured into consenting. You *are* supposed to err on the side of caution.
Also, you don't *have* to keep bugging her about it in the first place. You and I are not supposed to keep bugging someone into having sex with either of us because that's rude behavior and sexual harassment.
How would you like it if a woman or man whom you found sexually unattractive kept bugging *you* into having sex with her or him? Especially if this person was a man who kept bugging you to let him stick his penis up your ass and you're so turned off by him that it would definitely be a painful experience (just like letting a man stick his penis up her vagina is definitely a painful experience when a woman is totally tuned off by him)?
Even if you can't get sex otherwise, sex isn't like air or water or food - you *can survive* without it. Every human being can survive without it. Sure we can't pass on our genes without it, but survival itself doesn't require reproduction (this is also why rape is never an act of self-defense).
Posted by: Leslie | August 10, 2010 1:13 PM
Imam Rauf talks about how to bring Sharia law to the US in his book. Why it is only Christian "theocracy" "bad"?
Posted by: MK | September 13, 2010 3:11 PM
MK, #75: Imam Rauf talks about how to bring Sharia law to the US in his book. Why it is only Christian "theocracy" "bad"?
All theocracy is bad. Is Imam Rauf speaking about imosing a theocracy? Or is he using "Sharia" in the same manner that Christians use "Christian values" or "Biblical values"?
If Rauf is using "Sharia," like some Christians use "Christian values," to mean those universal (one would hopes) values that are held by most people that values each human being -- that is, basic human values that happen to also be held by Rauf's conception of Islam -- then Rauf's statement is completely innocent.
If Rauf is using "Sharia," like some Christians use "Christian values," to refer to a rigid sectarian vision of society that demeans people and restricts their options in life, then Rauf's statement is promoting theocracy.
Without more information on what Rauf means by "Sharia," I can't really make a judgement on his statement.
Posted by: Chiroptera | September 13, 2010 3:19 PM