Legal Commentary

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

By Eugene Volokh

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. [FN1] 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....

[Long discussion of the wife?s allegations of abuse, which included several instances of nonconsensual sex as well as other abuse, omitted for space reasons. ?EV]

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 c[an] do anything to you. The woman, she should submit and do anything I ask her to do.

After having sex, defendant took plaintiff to a travel agency to buy a ticket for her return to Morocco. However the ticket was not purchased, and the couple returned to the apartment. Once there, defendant threatened divorce, but nonetheless again engaged in nonconsensual sex while plaintiff cried. Later that day, defendant and his mother took plaintiff to the home of the Imam and, in the presence of the Imam, his wife, and defendant?s mother, defendant verbally divorced plaintiff.... 

The judge found from his review of the evidence that plaintiff had proven by a preponderance of the evidence that defendant had engaged in harassment, pursuant to N.J.S.A. 2C:33-4b and c, and assault. He found that plaintiff had not proven criminal restraint, sexual assault or criminal sexual contact. In finding assault to have occurred, the judge credited, as essentially uncontradicted, plaintiff?s testimony regarding the events of November 1, 16 and 22, 2008. The judge based his findings of harassment on plaintiff?s ?clear proof? of the nonconsensual sex occurring during the three days in November and on the events of the night of January 15 to 16. He did not credit plaintiff?s testimony of sexual assaults thereafter, since there was no corroboration in plaintiff?s complaints to the police. [Footnote: In response to an objection by plaintiff?s counsel, the judge later recognized that the police report upon which he relied in finding no corroboration for plaintiff?s claims had not been admitted in evidence because of its hearsay nature. However, he declined to modify his ruling.]

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....

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.

The appellate court remanded for entry of a restraining order. Note that the woman was pregnant with the couple?s child at the time of the initial hearing, so that despite the divorce it seemed likely that the man and the woman would remain in contact; this is legally relevant because restraining orders are designed to prevent future harm, not to punish for past misbehavior. 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.

Full post as published by The Volokh Conspiracy on July 23, 2010 (boomark / email).