Eugene Volokh quotes a New Jersey case in which a Judge Payne of the Superior Court, in the course of rejecting a restraining order against a Moroccan husband, adopted the interesting viewpoint that the husband’s cultural opinions immunized him from the laws of the state of New Jersey, allowing him to inflict non-consensual sex upon his wife.
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 defendantâ€™s advances, the judge found that defendant did not act with a criminal intent when he repeatedly insisted upon intercourse, despite plaintiffâ€™s contrary wishes.
Happily, the Appellate Court reversed, but this judicial incident is undoubtedly only the first of what will become a trend of multicultural rulings from American benches.
You say that it is your custom to burn widows. Very well. We also have a custom: when men burn a woman alive, we tie a rope around their necks and we hang them. Build your funeral pyre; beside it, my carpenters will build a gallows. You may follow your custom. And then we will follow ours.