That Obscure Object of Concern: Selective Feminism and the Rise of Anti-Sharia Laws
posted by Mary Anne Franks
“Evil resides (also) in the innocent gaze which perceives Evil all around.”
Rep. Louie Gohmert (R-TX) is worried about women. Specifically, he is worried about their equal rights under U.S. law, and is baffled that women are not up in arms about the sinister force that poses the greatest threat to them in our time. Is it the distressingly high rates of sexual violence in this country? Domestic abuse? Unequal working conditions? Recurring waves of legislation aimed at undermining women’s bodily integrity? None of these, according to Rep. Gohmert: the true threat is “creeping sharia law.”
Rep. Gohmert recently added his voice to the call for Congressional hearings on sharia’s supposed infiltration of U.S. society. During an interview on Frank Gaffney’s radio show, Gohmert said, “The biggest shock out of all of this is that the women’s liberation groups have not just gone berserk over this creep into our society that diminishes women as it does. … it does diminish the Constitution when you bring any law in that doesn’t allow women to be full equal citizens of the United States.” Gohmert’s rhetorical move here is perversely clever: he highlights a legitimate harm (here, the unequal treatment of women), attributes it exclusively to a foreign source (sharia law), and insinuates that those who fail to do the same are complacent and/or hypocritical (why aren’t “women’s liberation groups” more upset about this horrible threat?). This is a not a new tactic (anti-feminists like Christina Hoff Sommers have been doing it for years), but it is falling on particularly receptive ears.
At least thirteen states have recently introduced bills aimed at keeping sharia law out of U.S. courts. Oklahoma’s dramatically-named “Save Our State Amendment,” which explicitly listed sharia law as a forbidden source of authority, was recently held by a federal judge to violate the Establishment clause. The sponsors of many of the newer bills have learned to be less specific in their language, but most are quite comfortable admitting that sharia is their real target. Georgia Rep. Mike Jacobs (R-Atlanta), who introduced “The American Laws for Georgia Courts Act” (House Bill 45, which states that “it will be the public policy of this state to protect its citizens from the application of foreign laws when the application … will result in the violation of a right guaranteed by the Constitution of this state or of the United States”), told the Fulton County Daily Report that the bill would “ban the use of Sharia law in Georgia courts.” Admitting that he did not know of a single instance of any Georgia court ever being asked to apply sharia law, Rep. Jacobs expressed the belief that it had happened elsewhere: “We’re seeing more of a feeling that Sharia law should be applied in domestic cases.”
Advocates of anti-sharia measures frequently point to a lone New Jersey case – a case that did not, in fact, take sharia law as a source of legal authority, and that was overturned on appeal – as proof of the danger that sharia poses to U.S. courts. In that terrible case, a man beat and raped his wife, telling her that “this is according to our religion. You are my wife, I c[an] do anything to you. The woman, she should submit and do anything I ask her to do.” The woman sought a restraining order against the man, whereupon the judge, while finding that the defendant had sex with his wife against her wishes, 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.” This opinion, while plainly stupid and wrong, did not look to Islamic law as a legitimate source of authority. The court indicated that it was allowing a form of “cultural defense” with regard to criminal intent – that is, it took into account the defendant’s particular cultural beliefs to assess whether he had the requisite intent to commit a crime. It is worth noting, however, that the court failed to apply its own controversial analysis correctly. The defendant’s cultural beliefs should only have been relevant insofar that they prevented him from forming the intent required to be guilty of the crime of sexual assault – namely, from recognizing that his wife did not consent to sexual contact. Here, the court found that husband was fully aware that his wife did not consent, which meant he did in fact have the requisite mens rea, in contrast to the famous “reasonable Hmong” case, in which the defendant’s cultural beliefs supposedly led him to mistake a woman’s protests for consent. The court seems to have been confused about the distinction between “cultural defense” (sometimes valid) and “mistake of law defense” (rarely valid).
The fact that a single, overturned opinion that did not actually apply sharia law is used as evidence of sharia law’s deadly influence is troubling enough in itself. It is made all the more troubling by the fact that the actual harm at work in the overturned New Jersey opinion – the law’s indulgent treatment of male violence – needs no exotic diagnosis. If this case had come up in this country before 1976, the husband would have been found not guilty of rape based not on some exotic religious law, but on the laws of every state in the U.S. Before 1976, a husband could rape his wife with impunity in all fifty U.S. states. Until 1996, more than half of all U.S. states maintained some form of the marital rape exemption. Even today, thirty-three states treat marital rape as a less serious crime than rape of a non-spouse. And with regard to specious and offensive “cultural defenses” more generally, the leniency given to men who claim “provocation” as a defense to murders of their intimate partners is both tragically common and thoroughly homegrown. The notion that men may be driven to kill merely by actual or perceived infidelity, or by the attempts of their partners to leave, has deep roots in American soil. As I discussed in a previous post, Jacobs’ fellow Representative, Bobby Franklin, is trying to change Georgia laws so that individuals (mostly women) who report being raped, beaten by their partners, or stalked must be called “accusers” instead of “victims,” while those reporting other crimes may maintain their “victim” status. A long history of unjust rape laws, asymmetrically applied provocation defenses, and measures that make it even more difficult for victims of rape, domestic violence, and stalking to come forward arguably “diminish women” and undermine their ability to “be full equal citizens of the United States.”
A professed concern for women’s rights that focuses exclusively on “foreign” or external threats is deeply suspect. If Gohmert and Jacobs et al are genuinely concerned about the rights of U.S. women, the many troubling laws and practices of this very country would seem a better object – or at the very least, an object - for their concern.
February 16, 2011 at 4:05 am
Posted in: Criminal Law, Current Events, Feminism and Gender, Politics
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Responses (2)
Patrick S. O'Donnell - February 16, 2011 at 8:53 am
Indeed, this is (among other things) another variation on the well-worn trope of paranoia in American politics, and has its contemporary European counterpart the efforts to “ban veiling” among Muslim women. “Essentialist” discourse looms large here as well, as there is no one thing we might readily identify as Sharī‘ah, in fact, that aspect of Islamic law which is here the ostensible focus of concern for not a few pundits and politicians in this country, namely that said to govern mu‘āmalāt (civil transactions) rather than ‘ibādāt (devotional matters), varies considerably, both historically and geographically, and is thus more accurately or precisely identified as fiqh, which refers specifically to the corpus juris “developed by the legal schools (madhhabs), individual jurists and judges by recourse to legal reasoning (ijtihād) and issuing of legal verdict (fatwā),” and which evolves (or is capable of evolving) according to the exigencies of time and place (hence the considerable differences, say, between Saudi Arabia and Turkey, or between Libya and Indonesia, when assessed according to democratic desiderata).
It is certainly true, as Mohammad Hashim Kamali has explained, that traditional fiqh in the areas of principles of government (al-ahkām al-sultāniyyah) and Sharī‘ah-oriented public policy (siyāsah shar‘iyyah) “has fallen short of reflecting the Qur’ān’s comprehensive conception of justice in the sphere of rights and liberties” (and about which Kamali has written extensively), but that would be beside the point were it not for some dim-witted legislators having some vague and inchoate knowledge of this historical shortcoming, a shortcoming that is not intrinsic to the Islamic worldview as such with regard to universal rights and liberties and democracy generally. Alas, the fact that the rhetoric of ideological paranoia is able to exploit one genre of Islamic discourse in this manner is in part a by-product of untoward and modern developments in the Islamic world as a result of the resistance to and reaction against European colonialism, especially in the Middle and Near East, developments which, perversely, led to a “legalization” Islamic religion and spirituality (as Kamali has emphasized, ‘Islam is a faith [īmān] and moral code first and foremost; it stands on its own five pillars, and following a legal code is relative and subsidiary to the original call and message of Islam’).
Related to this is the fact that most Muslims around the globe do not share the avowed goal of some Islamists and self-described jihadists to institutionalize “Sharī‘ah” through constitutional law practices common to modern nation-states (in any case, by any adequate conceptual rendering of Sharī‘ah sensitive to its metaphysical origins as ‘God’s will’ and its corresponding ineluctably abstract character, will understand that divine law can never be sufficiently or wholly ‘institutionalized’ any more than the moral principles and precepts that traditionally fall within the ambit of Natural Law philosophy; it is this that makes for a logical, conceptual and practical difference between Sharī‘ah and fiqh, a difference often ignored or elided by both Orientalists and Muslims alike).
AnthroAnon - February 16, 2011 at 12:34 pm
May I recommend legal anthropologist Laura Nader’s classic and still timely article on exactly this issue: “Orientalism, Occidentalism and the Control of Women.” Cultural Dynamics July 1989 (2): 323-355.
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