In New Jersey, a 17 year-old girl had an arranged marriage with an accountant whom she had never met before the wedding. There was no factual dispute that he repeatedly raped and beat her. His defense was that he was simply acting out his rights as an Islamic husband……“the judge determined to except defendant from the operation of the State’s statutes as the result of his religious beliefs”

The National Council of Juvenile and Family Court Judges wants the nation’s judges to determine if there is “a culturally-based explanation” when deciding whether or not a child needs to be removed from the home because of abuse or neglect.

The NCJFCJ wants judges to use the Council’s “benchcard” as a legal tool and checklist on abuse and neglect cases. If this checklist becomes widely used as a guideline in abuse and neglect hearings, it seems fairly obvious that our children would be endangered and our core principle of equal justice would be violated.

For example, under the benchcard’s heading “LEGAL THRESHOLD FOR REMOVAL” is the inquiry: “Have the family’s cultural background, customs and traditions been taken into account in evaluating the event and circumstances that led to the removal? Have the parent(s) cultural or tribal liaison/relevant other(s) been asked if there is a culturally-based explanation for the allegations in the petition?”

In some jurisdictions, the terms of Sharia or Islamic law are already being offered as a defense for criminal abuse and forced marriages of minors.

In New Jersey, a 17 year-old girl had an arranged marriage with an accountant whom she had never met before the wedding. There was no factual dispute that he repeatedly raped and beat her. His defense was that he was simply acting out his rights as an Islamic husband.

The trial court judge asked the husband’s Imam some questions, and “the Imam testified regarding Islamic Law as it relates to sexual behavior. The Imam confirmed that a wife must comply with her husband’s sexual demands,” said the appellate court opinion in S.D. v. M.J.R., 2 A.3d 412 (N.J. Super., 2010). On that cultural basis, “the judge determined to except defendant from the operation of the State’s statutes as the result of his religious beliefs”, even though the girl testified extensively about her abuse and “Four of the photographs of plaintiff’s body, introduced as exhibits at trial… depict bruising to both of plaintiff’s breasts and to both of her thighs, as well as her swollen, bruised and abraded lips.”

Fortunately, the New Superior Court reversed the trial court, and said that the trial court should not have made an exception to criminal law based on Islamic religious creeds, “In doing so, the judge was mistaken.”

In Nebraska, a 13 year-old girl was given in marriage by her father to 34 year-old Al-Hussaini. They had an Islamic wedding ceremony and, says the appellate court opinion: “After the ceremony, the victim was taken to her new home with Al-Hussaini where intercourse immediately took place. The victim stated she did not consent to intercourse with Al-Hussaini. The victim’s sister, age 14, was also ‘married’ on the same day to another Iraqi man…. Al-Hussaini stated that he is not angry at the girl and feels that he did not do anything wrong, as arranged marriages with young girls are customary in his religion.”

The Nebraska Court of Appeals rejected Al-Hussaini’s culturally-based explanation for the crime and upheld his conviction for first degree sexual assault on a child. (State v. Al-Hussaini, 579 N.W.2d 561, (Neb. App., 1998))

An action or condition is either dangerous for children or it is not. It is either illegal or it is not. Inviting “a culturally-based explanation for the allegations” would put our children at risk and make an equal disposition of the law practically impossible.

Mike Sharman, a resident of Foothills of Faith Farm in Madison County, Virginia, has served as an attorney and guardian for children for more than two decades. Mike writes a weekly editorial column published by the Culpeper Star-Exponent and others. You may contact him at [email protected]