NJ rape case - Is this a harbinger of things to come?

[AZhitman]

http://volokh.com/2010/07/23/cultural-d ... on-appeal/

Thank goodness a sane judge overturned this absurd lower-court judge's ruling.... But what the hell was he even thinking?

Discuss.

[szh]

Easy. Non-consensual sex is rape. Regardless of any other "mitigating" factors!

Courts have held this view for years!

Z

[themadscientist]

Religious freedom stops where breaking secular laws begin. Ask Warren Jeffs. I do not buy this concern that respecting religion and obeying the law are somehow divergent. Practice your religion within the letter of the law. Religious freedom does not cover criminal behavior. The guy's lucky he didn't get jail time. In there your "husband" demands sex too.

[IBCoupe]

Is this the same one Stebo posted about about a month ago?
sharia-law-in-america-t504313.html

Here's what I wrote in response last time, after reading the article posted by Stebo:

I'm going to try and tip-toe around the religious issue and focus strictly on the legal perspective. A few years ago, there was some news about Christian Scientists refusing to take their children to hospitals, inaction that could be seen to have resulted in the death of their children. They opted for prayer, in lieu of medicine. Some argued that it was child abuse. I don't recall how that turned out, but it's still a contentious issue.

It seems to me that the Judge wasn't making a comment specifically about Islam; he was trying to play the same balancing act that has come up repeatedly in American history. Where the right, protected by the First Amendment, to practice your religion as you please comes up against a mens rea element of a criminal act, what gives?

I don't have the answer, but I'm just trying to temper the potentially knee-jerk cries of the "islamification" of America. The Judge was not trying to apply Sharia law, he was examining the mental state of the defendant - something that's done in every case. It just so happens that every once in a while, one's religious beliefs become a part of that mental state, and we get a fuzzier issue than normal.

[IBCoupe]

And when Stebo replied quite correctly that one's right to swing one's fist ends at another's face, I elaborated further:

I absolutely agree, and I can't help but wonder if the Judge's objections came from the specific charge. Not only did this involve religious beliefs and mens rea requirements, but it was also a spousal rape case. Rape remains an odd legal subject, and spousal rape even more so.

Had they gone with something like assault, they might have had an easier time with it. That said, I don't know what the prosecutors charged him with. It could be that it wasn't only spousal rape, and that means I'm talking at least a little bit out of my butt.

There were a few issues at play in this case. It's often difficult to prove a thing was not consensual at the time, even more so when we're talking about one incident in an apparently consensual relationship.

[stebo0728]

Ya sounds like the same case, and really all I can say without arguing the details of the original finding, is that Im glad it was overturned, and I could see a strong case for removing this judge from his post due to such a finding. This would discourage similar findings in the future.

[IBCoupe]

If the judge is an elected official, I'll concede that "removing" him the next time he's up for reelection is fine, and how the system's designed to work.

But judges aren't always elected (and that's on purpose) and I'm really resistant to the idea of removing a judge for a single ruling that we didn't like. If the judge is wrong on a single ruling, well, that's what most (if not all) States have set up Appellate Courts for.

[stebo0728]

Ya you may be right, but I would like to see a policy where ANY ruling that referencing ANYTHING besides the UNITED STATES constitution to make a ruling would result in immediate castration and disbarring, possibly even exile to Los Angeles. I mean ANY ruling, even supreme court. It makes my blood boil when the supremes reference international law to make rulings.

EDIT - I suppose their State Constitution and local mandates could apply to

[IBCoupe]

There are only really a few reasons that a court will point to international law:

First, the court may be asked to rule on an international contract, in which two parties may have elected to follow some law other than the United States' or, in the case of a State court, that particular State's. It's very common for a Massachusetts federal court, for example, to be forced to interpret Delaware law, which can be seen as "foreign" to Massachusetts. I used Delaware specifically as an example because most of our corporations incorporate there (though very often do not primarily do business there), due to a favorable statutory layout. If you go on a cruise, I'd suggest that you read the fine print on the back of the ticket - by taking the cruise, they've stipulated that you're going to agree to follow Florida law (very favorable to cruise lines) in the event of a dispute.

Second, the court may be asked to rule on a point of law not adequately addressed (or addressed at all) by American laws. Our legal system is still developing, and not every aspect of every law has been established. Occasionally, you'll see lawyers pointing to Canadian legal decisions for precedent because it's there, and there may not be much American precedent available. The weight and credibility of that precedent is tempered by its consistency with American legal reasoning, the applicable Canadian Statutes, and Canadian court procedure.

I feel like there might be another reason, but it escapes me after writing out the first two.

There are many places in the world where legal principles overlap, and if you can be sufficiently convincing by pointing to an area of overlap, go for it. In the event that the foreign reasoning holds sway, it's probably because A) there was no American reasoning to be had or B) what little American reasoning there was, it wasn't terribly inconsistent.

[stebo0728]

I cant see anything immediately wrong with what you say, but I will say that if we reference any kind of foreign law, it should only apply when American precedence is non-existent, and the precedent in reference does not conflict with our Constitution.

[IBCoupe]

Well, with the exception that it's used in areas where there's very minimal American law, I'd say that you don't have to worry about it.

[stebo0728]

Graham -vs- Florida
http://www.openmarket.org/2010/05/17/su ... l-opinion/

Good example of what Im talking about.

[IBCoupe]

Actually, the court relied on a number of things, international opinion among them. And the Court, in its opinion, wrote:

There is support for our conclusion in the fact that, in continuing to impose life without parole sentences on juveniles who did not commit homicide, the United States adheres to a sentencing practice rejected the world over. This observation does not control our decision. The judgments of other nations and the international community are not dispositive as to the meaning of the Eighth Amendment. But “ ‘[t]he climate of international opinion concerning the acceptability of a particular punishment’ ” is also “ ‘not irrelevant.’ ” Enmund, 458 U.S., at 796, n. 22, 102 S.Ct. 3368. The Court has looked beyond our Nation's borders for support for its independent conclusion that a particular punishment is cruel and unusual.

In other words, "If we look at the rest of the world, our rule is screwed up. This confirms what looking at ourselves tells us, but wouldn't be enough to make us change the rule by itself."

To interpret the 8th Amendment, legal precedent dictates that the Court must look beyond historical conceptions to "the evolving standards of decency that mark the progress of an evolving society." In the end, the Court's decision wasn't based on international standards, but on the 8th Amendment, and a modern look at how society judges what is moral.

[IBCoupe]

What's nifty about the tools we use in law school (and in the legal profession) is that we're often provided with a point by point summary of what the Court used in its reasoning when looking at a case on a legal website.

1. To determine whether a punishment is cruel and unusual, in violation of the Eighth Amendment, courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society.

2. The Eighth Amendment's standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment; the standard itself remains the same, but its applicability must change as the basic mores of society change.

3. The Cruel and Unusual Punishments Clause prohibits the imposition of inherently barbaric punishments under all circumstances.

4. Punishments of torture are forbidden under the Cruel and Unusual Punishments Clause.

5. Under the Eighth Amendment, the State must respect the human attributes even of those who have committed serious crimes.

6. The concept of proportionality is central to the Eighth Amendment.

7. Embodied in the Constitution's ban on cruel and unusual punishments is the precept of justice that punishment for crime should be graduated and proportioned to the offense.

8. On an Eighth Amendment challenge to the length of a term-of-years sentence, the Court considers all of the circumstances of the case to determine whether the sentence is unconstitutionally excessive.

9. Under categorical approach for defining Eighth Amendment standards, the Supreme Court first considers objective indicia of society's standards, as expressed in legislative enactments and state practice to determine whether there is a national consensus against the sentencing practice at issue, and then, guided by the standards elaborated by controlling precedents and by the Court's own understanding and interpretation of the Eighth Amendment's text, history, meaning, and purpose, the Court must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution.

[And on and on...]

There are 25 such points identified, and only one of them deals with international opinion/law.

[stebo0728]

Thats all well and good in a case like the one I just posted, I even hazard to say I agree that life without parole for minors is a bit steep. BUT - what happens when the rest of the worlds morals start to conflict with our own? Just to further the original post, lets say Islam and Sharia continues to grow and spread in the rest of the world. (Not a stretch of the imagination considering how vastly they are out-babying other groups) and lets say Sharia becomes the most popularly accepted form of morality internationally, yet it conflicts with our Constitution. Must we begin to conform to this as well?

[IBCoupe]

Like I said, international opinion found a very small role in that case, and that's typical in the rare cases where it happens. There's no way for international opinion to supercede an actual Constitutional provision, where they are in conflict. This is about interpretation, not application - that's pretty much all that ever happens at the appellate level and above.

Were it a matter of arguing something that is antithetical to the Constitution, that wouldn't get very far where the Court's task is to interpret the Constitution.

[stebo0728]

True, but I would argue that leaving the Constitution to interpretation leaves in as a bowl of playdough, that can be sculpted to be whatever you want at the time.

[IBCoupe]

I'm going to disagree, on the basis that the Constitution isn't a Madlibs book. It has words that mean things, and those meanings are escribed in years of recorded precedence.

It just so happens that you've stumbled upon a case where the precedence dictates that, within certain confines, "the meanings of these words are what society currently says they are," because what constitutes "cruel and unusual" punishment is a wicked subjective thing.

[dusred]

Religious freedom stops where breaking secular laws begin. Ask Warren Jeffs. I do not buy this concern that respecting religion and obeying the law are somehow divergent.

Warren Jeffs has had all charges brought against him dropped and will soon be a free man so bad example.

[themadscientist]

Jeffs got off, snap! Gotta start walling off my compound and rounding up disciples with hot daughters.

[dusred]

He's an innocent man and that's why he got off. The case was so screwed up by the lower Utah courts that the Supreme Court smacked it down in short order. He was an accomplice to a rape that never happened. Yeah. Still to this day the "rapist" hasn't been charged. Strange hu?

[IBCoupe]

I wonder how they found out about the "rape." I've seen enough mob movies to know why a key player doesn't face charges...