Chesler Chronicles

Is Marital Rape a Crime in America or Is It a Muslim Religious Right?

Moroccan Marriage on Trial in New Jersey

This week, I wrote about a recent New Jersey appellate decision which reversed a lower court ruling which had refused to grant a battered and maritally raped woman a “final restraining order.” This kind of decision — and worse — is made every day in the American court system, and it exposes battered women and abused children to horrific suffering, terrible danger, even death.

On Tuesday, I focused on the main thrust of the decision, which was about granting a restraining order in a case in which domestic violence had occurred — violence which included but was not limited to criminal sexual violence.

That was Tuesday.

On Wednesday, I want to look at the issue of marital rape and of rape in general. We presumably live in a world of “he-said-she-said,” a world in which women sometimes lie about being raped (or battered) — but a world in which rape is beyond epidemic, is still rarely prosecuted, and in which most rapists are never brought to justice.

In 1971, I delivered a keynote speech in New York City at the world’s first-ever radical feminist Speakout on rape. Within a decade, academic studies, popular books, rape crisis centers, rape counseling, a new understanding of what rape is about (power, sadism, not lust or love) and what rape does (it is a specific form of torturous warfare from which victims, like battlefield soldiers, may recover but from which they may permanently suffer), new police procedures and evolving legislation followed. Thereafter, within a quarter-century, further laws (e.g., “rape shield laws”) were passed. Popular television series featured or even specialized in such sex crimes.

Theoretically, rape victims were no longer allowed to be portrayed as “whores” based on their previous sexual and gynecological histories — and “raped” again on the stand. DNA evidence, if it existed, could now determine guilt in certain cases. Mental health professionals, law enforcement, judges and lawyers began to understand that, except in war-zones, rape is more common among those who know each other: husbands and wives, boyfriends and girlfriends, schoolmates, neighbors; that comparatively, stranger-rape is rare; that date rape is all-too-common; that men are also raped, but mainly by other men, certainly in prison but also when they are perceived to be homosexuals; that drugs can be administered so that rape victims will not be able to “remember” what happened; that repeated, public gang-rape is also a weapon of war, no longer a mere spoil of war.

In this regard, rape was declared a crime against humanity by the International Criminal Tribunal for the former Yugoslavia. I was tentatively supposed to testify about Rape Trauma Syndrome in the case in The Hague, but there was no funding to either protect or relocate the women who were prepared to testify, and thus, these trials were canceled.

Interestingly, in Woman’s Inhumanity to Woman, I discuss the extent to which female jurors choose to disbelieve female rape victims as well as battered women who kill their batterers in self-defense. Female jurors tend to have more compassion for the accused man than for the woman whom they tend to mistrust and dislike, and whom they are afraid to believe. (If it could happen to her, it could happen to them; it is safer, psychologically, to disbelieve her.) District attorneys try to keep women off juries in such cases. In Womans’ Inhumanity to Woman I explain why this happens.

This New Jersey case, above, is of interest for several reasons. Since the couple were Muslim immigrants from Morocco, the details also confirm what passes for “normal” marital relationships among many families within the non-western world and among Muslim (but not Hindu or Sikh) immigrants to the West — details which are usually hotly denied or rejected outright as proof that anyone who exposes such details is “Islamophobic” or a racist.

In studying honor killings and what I call Islamic gender apartheid, I have documented the normalized super-control and punishment mechanisms that honor-killing families exert over their daughters, sisters, female cousins, wives and even mothers. They patrol their every move, stalk them, spy on them, accompany them everywhere, punish consistently, extremely, and repeatedly for a slipped headscarf, a brief conversation with a boy at school, a possible friendship with a non-Muslim girl.

In the case of S.D. v. M.J.R., we learn that the marriage was arranged when the bride was seventeen; that the husband was an educated professional (an accountant); that the bride was expected to live with both her husband and her decidedly unfriendly mother-in-law; and that she was expected to serve her husband hand-and-foot and that if she failed in any way, she could expect to be literally tortured for hours in punishment sessions. And, if she protested in the slightest way, if she ran away or called the police — if a neighbor or the police took her to a hospital — she could expect an imam to “counsel” her to reconcile, and would find herself thereafter subjected to further punishment by both her husband and mother-in-law — and then summarily divorced.

This poor young Muslim woman could expect to be sexually tortured even while she was pregnant and divorced even though she was pregnant.

What she did not expect was to find a judge in America who absolutely refused to continue her restraining order even though it was clear that she had proved “egregious acts of domestic violence” and that the divorced “couple were about to have a child in common” and would thus be further communicating. In addition, the appellate court found that the marital sexual violence had amounted to “criminal sexual contact” and could not be dismissed as an Islamic “religious right,” which the lower court had done. They reversed the lower-court decision and sent the case back to trial.

Courtesy of the Appellate Division, perhaps this young Muslim woman has a chance, although I truly doubt it.

I have before me the most tragic, haunting details of another case, one in which a New Jersey judge refused to allow supervised visitation for three children; their father was an exceptionally violent and sadistic Egyptian Muslim. (Yes, I know, violent husbands and violent fathers exist in all classes and among all races and ethnicities — and yet there is also a consistent pattern of uber-violence, of sudden uber-violence for the smallest infraction, a pattern of rule-by-sadistic-tyranny among many, certainly not among all, Muslim immigrants in the West.

Thus, another New Jersey judge (could it be the same judge? One can only wonder since the names of the lower-court trial judges remain hidden) refused to protect the three abused children or their battered mother. In fact, the judge mandated visits between these frightened and traumatized children and their violent father. What happened? In 2005, the oldest boy, 12-year-old Islam Elkaryoney, hung himself. He chose death rather than be exposed to his father’s torture sessions.

What is going on in New Jersey? Why would a lower court judge in 2009 refuse to protect an obviously endangered pregnant woman who was being beaten and sexually tortured?

In 1978, a husband was criminally charged with marital rape in the state of Oregon. At the time, Oregon was only one of three states in which marital rape could be prosecuted. The decision of eight female and four male jurors led the judge to give John Rideout a nine month (suspended) sentence for breaking into his wife’s separate home; the jury did not charge him with rape for lack of evidence. He did, eventually, spend three months in jail for another charge of “criminal trespass.”

However, other American women began to come forward with cases of marital rape. Within a year, Massachusetts convicted a husband for marital rape; in three years, Minnesota changed its legislation to acknowledge marital rape as a crime.

Again, I must ask: What is going on in New Jersey? Do the lower court judges not even know their state’s own case law? I ask because in 1978, the first-ever marital rape case in the United States was heard in New Jersey. Daniel Morrison, who was estranged from his wife, was found guilty and sentenced to four to twelve years for this crime.

Maybe that New Jersey judge should return to law school. He or she certainly didn’t learn anything the first time round.

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