In 2010, the Superior Court of New Jersey heard the matter of S.D. v. M.J.R., 2 A.3d. 412, 415 N.J.Super. 417. The Hudson County case involves the marriage of Plaintiff S.D. (“Plaintiff”) and Defendant M.J.R. (“Defendant”) and the domestic abuse that Defendant inflicted upon Plaintiff per his rights and privileges within the Islamic faith. Both the trial court and Superior Court in this matter analyzed the relationship between the legal concept of mens rea and Defendant’s state of mind when acting within the scope of his religion.
Plaintiff and Defendant are both Muslims from Morocco. Their marriage was arranged by their respective families in 2008 when Plaintiff was 17 years old. On July 31, 2008, Plaintiff and Defendant were married. After three months of marriage, Defendant asserted “his rights” as a Muslim husband in four separate incidents.
The first incident occurred when Plaintiff was unable to sufficiently cook a meal for Defendant’s friends. Once Defendant’s friends left, Defendant proceeded to inflict a punishment upon Plaintiff for her failure to cook what he believed was an adequate breakfast by pinching her on every part of her body for over an hour. His “punishment” left several bruises which were documented by the local prosecutor’s office weeks later. Defendant indicated to Plaintiff that the violence he was inflicting was to “correct” her behavior.
The second incident occurred when Defendant, knowing Plaintiff was not a skilled cook, asked her to prepare a dinner for friends. Plaintiff informed Defendant that she could not cook the meal he requested to his satisfaction. He then asked his mother to cook the meal instead (Defendant’s mother had moved in with them shortly after they were married). Plaintiff and her mother-in-law had an unpleasant exchange. When Defendant learned of this exchange, he proceeded to again inflict a punishment upon Plaintiff. This time he stripped Plaintiff of her clothes, and pinched her breasts and her vaginal area. Plaintiff tried to flee but Defendant locked the door so she could not escape. Defendant explained to her that she was his wife and she must do whatever he told her. After his punishment, Defendant then forcibly had sex with Plaintiff. This episode lasted several hours.
About a week later the third incident occurred after Plaintiff got into an argument with her mother-in-law. The argument got so heated that Plaintiff locked herself in her bedroom. Defendant removed the latch from the bedroom door, entered the bedroom, and proceeded to engage Plaintiff in nonconsensual sex. Subsequently, after some unrest, Plaintiff attempted to leave the apartment, but Defendant refused to allow her to leave and instead, pulled her back in and physically assaulted her by repeatedly slapping her in the face causing her lip to swell and bleed. Defendant then left the room which allowed Plaintiff time to escape the house through a window. Once outside, Plaintiff encountered a woman who noticed her injuries and called the police. The police took her to the hospital and documented her injuries. A police investigation also established that her bed sheets and pillow cases were stained with what appeared to be blood.
Subsequent to the above three incidents, Plaintiff moved out of the marital home. During this time it was discovered Plaintiff was pregnant with Defendant’s baby. In order to try and reach a remedy to their marital issues the Plaintiff, Defendant, and their Imam had a meeting. At the meeting, Plaintiff and Defendant reconciled on the following conditions: that Defendant would cease mistreating Plaintiff, that they both move back to Morocco, and that they live separate from Defendant’s mother.
On the night of their reconciliation, in January 2009, Defendant again engaged in nonconsensual sex with Plaintiff three times. Defendant continued to do so on subsequent days. During this period, Plaintiff was deprived of food and a telephone.
Defendant explained to her that according to Islamic faith, he can do anything he pleases to his wife and she should submit to him. Defendant eventually became dissatisfied with Plaintiff and performed an Islamic divorce in the presence of the above-mentioned Imam.
Ultimately, a complaint was filed in Superior Court and Plaintiff attempted to secure a restraining order against Defendant. While these domestic matters were proceeding, a parallel criminal matter was also pending. During the litigation of the above matters, the Imam confirmed that according to Islamic law “a wife must comply with her husband’s sexual demandsÉ The Imam did not definitively answer whether under Islamic law, a husband must stop his advances if his wife said Ôno.’”
The Judge in the restraining order matter found that Plaintiff had proven by a preponderance of the evidence that Defendant engaged in harassment and assault. He further found that Plaintiff had not proven criminal restraint, sexual assault, or criminal sexual contact. To that end, the Judge specifically stated that:
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.
Therefore, in the Judge’s view, Defendant did not act with criminal intent. Finally, despite having found acts of domestic violence, the Judge found that issuing a final restraining order was unnecessary as the incidents described above were merely a “bad patch” in their marriage (despite the fact that the incidents occurred only three months into their marriage, and that they never actually ended), Plaintiff’s injuries were not severe, the parties had intentions to divorce and cease living with one another, at least one of them intended to move back to Morocco, and, he assumed, the parallel criminal matter would resolve the outstanding issues. Plaintiff appealed the ruling.
On appeal, the court first looked at the purpose and intent of the New Jersey Prevention of Domestic Violence Act. At the outset, the court found that the legislature elected to pass the Act, even though criminal statutes could also apply, because of the special and unique nature of domestic violence. Further, the court noted that sexual assault can occur when one engages in sex without the consent of one’s spouse. Most importantly, the court noted that neither the sexual assault statute nor the criminal sexual contact statute, applicable to the instant matter, specified what mental state must be demonstrated for an alleged perpetrator of sexual assault and/or criminal sexual contact. The court then clarified that when a state of mind is not specified, it defaults to “knowingly.” In essence, as the court observed, “criminal intent is generally an element of crime, but every man is presumed to intend the necessary and legitimate consequences of what he knowingly does.” (Quoting Reynolds v. United States, 98 US 145 (1878).)
The court then proceeded to provide a brief historical review of situations where religious norms conflicted with the law. Specifically, the court highlighted the Mormon practice of polygamy, the Seventh Day Adventist practice of avoiding work on a Saturday, and the American Indian practice of sacramental ingestion of peyote. In the final analysis, the court affirmed the long-established law as set forth by many decades of United States Supreme Court precedent: “valid, generally applicable, and neutral laws may be applied to religious exercise even in the absence of a compelling governmental interest,” quoting Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990). The court further determined that “[t]he only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections.” (Quoting Smith above.) The court decided that the Smith case appears to control as the laws defining the crime of sexual assault and criminal sexual conduct are neutral laws of general application.
Acknowledging that the legislature recognizes the serious nature of domestic violence, and that Defendant violated neutral laws of general application when he physically and sexually assaulted Plaintiff, the court decided that there was a basis for a finding of domestic violence in the instant matter. The court further acknowledged that the trial judge in the matter also correctly found that Defendant had assaulted and harassed Plaintiff in violation of the Prevention of Domestic Violence Act.
The appellate court rejected the trial judge’s conclusion that Defendant’s intention to act within the norms and expectation of his Islamic faith somehow resulted in Defendant having no mens rea to commit a crime and/or violate the Prevention of Domestic Violence Act. From a practical point of view, the court was greatly distressed by what it believed to be an “unnecessarily dismissive view” of domestic violence on the part of the trial judge. Further, the court was concerned that the trial judge believed Muslim norms were not actionable, simply assumed the criminal court judge would take a certain action without following up to ensure that he did, presumed that the parties’ separation and/or divorce would resolve the abuse, and failed to sufficiently consider the impact the imminent birth of the couple’s child would have on the situation. Based upon all of the above, the court reversed the trial court and remanded the case for entry of such an order.
In the final analysis, the matter of S.D. v. M.J.R., 2 A.3d. 412, 415 N.J.Super. 417 presents attorneys, judges, and, of course, litigants, with the fact that practicing the religious norms of one’s faith cannot undercut the mens rea requirement of a criminal and/or domestic abuse statute. Knowingly committing an act of abuse, as defined by a neutral and generally applicable statute, is enough to hold one liable or guilty of the act regardless of what his religious imperatives are.
This article also appeared in the Philadelphia Bar Association’s “Upon Further Review” on April 13, 2011 and can be found here and on my website here.