I apologize for so often writing posts about things that have been known and available for a while. By this time, readers are probably used to it.
Here is one I have been saving up: The Case of the Battered Wife and Sharia
(Strangely, the original link to the appellate ruling from a number of blogs has disappeared. Fortunately, I found another. Perhaps I should download a copy. It makes fairly grim reading, so don't read it if you'd rather not.)
In New Jersey, a Moroccan woman was beaten and repeatedly raped by her husband. On one occasion she ran away from him, escaping from a window. She returned that time briefly but later left him permanently and asked a judge to give her a restraining order against the abusive husband. The judge refused the long-term protective order in part on the grounds that the husband did not have "criminal intent" when he engaged in repeated spousal rape (while his wife cried continuously), because his religious beliefs dictated that he was permitted to do what he did.
Some of the commentators at the Volokh Conspiracy don't seem to understand the point, opining that this really isn't about criminal intent, since it was not a criminal trial but rather a hearing on a restraining order. This is nonsense, as the appeals court made clear when it overturned the lower judge's decision. The matter was in fact all about criminal intent. Under New Jersey law, getting a restraining order in a domestic abuse case depends on showing probable cause that something criminal has been done previously (abuse, sexual assault, etc.). So while the standard of proof is lower than it is in a full-blown criminal trial, the issue of criminal intent is relevant and was exactly and expressly what the judge was addressing. Therefore (in case the point isn't clear) this is a pretty important incident, because if the "no criminal intent" argument (if your religion says you can do X, you aren't guilty of criminal intent in doing X) can be upheld in a restraining order case, it could also be used in an outright criminal trial.
And, to repeat, the judge said that if your religion allows you to rape your wife while she cries, you aren't committing a crime if you do so. Which is absurd. The appeals court overturned his ruling.
In this post at Atlas Shrugs we find Attorney Yerushalmi criticizing the ponderous lengths the appeals court goes to in showing that religious freedom precedents do not apply to laws against spousal rape. Yerushalmi thinks that this is a bad sign, as the claim was ludicrous on its face and should have been dismissed out of hand; he worries that the amount of space the appeals court spent indicates deference to the fact that the religion in question was Islam. He's right that any attempt to apply a religious exemption to such a law is ludicrous, not only morally but also legally. We would not allow a jihadi to say that he did not have criminal intent to commit murder since setting off a bomb is not murder according to his religion. Yerushalmi's worry is not unreasonable. But I would rather think that the appeals court was making a dry legal joke by the elephantine style in which it demolished the lower court judge's claim of no criminal intent.
I have one point to add to all that bloggers have already said about this case: It is another case of "we can say it, but you can't." If someone criticizing Islam says that, according to Islam, a man is permitted to rape his wife, that's a liberal no-no. But if the very same claim can be used for purposes of mitigating a husband's act when he abuses his wife, then the statement is permissible. Just how far this double standard and the use of these "cultural defenses" will be allowed to go in the end remains to be seen.