Man's beating of his wife justified in the Koran according to Judge Watch

Agamemnon
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I should just point out that the Frankfurt court promptly removed the Judge from the case, however the episode still raises concerns.

Germany Cites Koran in Rejecting Divorce

By MARK LANDLER, New York Times
Published: March 22, 2007

FRANKFURT, March 22 — A German judge has stirred a storm of protest here by citing the Koran in turning down a German Muslim woman’s request for a fast-track divorce on the ground that her husband beat her.

In a remarkable ruling that underlines the tension between Muslim customs and European laws, the judge, Christa Datz-Winter, said that the couple came from a Moroccan cultural milieu, in which she said it was common for husbands to beat their wives. The Koran, she wrote, sanctions such physical abuse.

News of the ruling brought swift and sharp condemnation from politicians, legal experts, and Muslim leaders in Germany, many of whom said they were confounded that a German judge would put 7th-century Islamic religious teaching ahead of modern German law in deciding a case involving domestic violence.

The woman’s lawyer, Barbara Becker-Rojczyk, said she decided to publicize the ruling, which was issued in January, after the court refused her request for a new judge. On Wednesday, the court in Frankfurt abruptly removed Judge Datz-Winter from the case, saying it could not justify her reasoning.

“It was terrible for my client,” Ms. Becker-Rojczyk said of the ruling. “This man beat her seriously from the beginning of their marriage. After they separated, he called her and threatened to kill her.”

While legal experts said the ruling was a judicial misstep rather than evidence of a broader trend, it comes at a time of rising tension in Germany and elsewhere in Europe, as authorities in many fields struggle to reconcile Western values with their countries’ burgeoning Muslim minorities.

Last fall, a Berlin opera house canceled performances of a Mozart opera because of security fears. The opera includes a scene that depicts the severed head of the Prophet Muhammad. Stung by charges that it had surrendered its artistic freedom, the opera house staged the opera three months later without incident.

To some here, the divorce court ruling reflects a similar compromise of basic values in the name of cultural sensitivity.

“A judge in Germany has to refer to the constitutional law, which says that human rights are not to be violated,” said Günter Meyer, director of the Center for Research on the Arab World at the University of Mainz. “It’s not her task to interpret the Koran,” Mr. Meyer said of Judge Datz-Winter. “It was an attempt at multi-cultural understanding, but in completely the wrong context.”

Reaction to the decision has been almost as sulfurous as it was to the cancellation of the opera.

“When the Koran is put above the German constitution, I can only say, ‘Good night, Germany,’ ” Ronald Pofalla, general secretary of the main conservative party in the country, the Christian Democratic Union, said to the mass-market paper Bild.

Dieter Wiefelspütz, a member of Parliament from the more liberal Social Democratic Party, said in an interview that he could not recall any court ruling in years that had aroused so much indignation.

Muslim leaders agreed that Muslims living here must be judged by the German legal code. But they were just as offended by what they characterized as the judge’s misinterpretation of a much-debated passage in the Koran governing relations between husbands and wives.

While the verse cited by Judge Datz-Winter does say husbands may beat their wives for disobedience — an interpretation embraced by Wahhabi and other fundamentalist Islamic groups — most mainstream Muslims have long rejected wife-beating as a relic of the medieval age.

“Our prophet never struck a woman, and he is our example,” Ayyub Axel Köhler, the head of the Central Council of Muslims in Germany, said in an interview.

The 26-year-old woman in this case, whose name has not been disclosed, was not so fortunate. Born in Germany to a Moroccan family, the woman was married in Morocco in 2001, according to her lawyer, Ms. Becker-Rojczyk. The couple settled in Germany and had two children.

In May 2006, the police were summoned to the couple’s home after a particularly violent incident. At that time, Judge Datz-Winter ordered the husband to move out and stay at least 50 meters (164 feet) away from the home. In the months that followed, her lawyer said, the man threatened to kill his wife.

Terrified, the woman filed for divorce in October, and requested that it be granted without waiting for the usual year of separation, since her husband’s threats and beatings constituted an “unreasonable hardship,” the requirement for waiving the delay.

“We worried that he might think he had the right to kill her because she is still his wife,” Ms. Becker-Rojczyk said.

A lawyer for the husband, Gisela Hammes, did not reply to e-mail messages or a telephone message left at her office in Mainz.

In January, the judge turned down the wife’s request for a speedy divorce, saying that the husband’s behavior was not an unreasonable hardship because they were both Moroccan. “In this cultural background,” she wrote, “it is not unusual that the husband uses physical punishment against the wife.”

Ms. Becker-Rojczyk filed a request to remove the judge from the case, contending that she had not been neutral.

In a statement defending her ruling, Judge Datz-Winter noted that she had ordered the man to move out and had imposed a restraining order on him. But she also cited the verse in the Koran that speaks of a husband’s prerogatives in disciplining his wife. And she suggested that the wife’s Western lifestyle would give her husband grounds to claim that his honor had been compromised.

The woman, her lawyer said, does not wear a headscarf. She has been a German citizen for eight years.

Judge Datz-Winter declined to comment for this article. But a spokesman for the court, Bernhard Olp, said the judge did not intend to suggest that violence in a marriage is acceptable or that the Koran supersedes German law. “The ruling is not justifiable, but the judge herself cannot explain it at this moment,” he said.

Judge Datz-Winter narrowly avoided being killed 10 years ago in a case involving a man and woman whose relationship had come apart. The man emptied a gun in her courtroom — killing his former partner and wounding her lawyer. The judge survived by diving under her desk.

German newspapers have speculated that the ordeal may have affected her judgment in this case, a suggestion that the court spokesman denied.

A new judge will be assigned to the case, but Ms. Becker-Rojczyk said her client would probably nonetheless have to wait until May for her divorce, since the paperwork for a fast-track divorce would take several months in any event.

For some, the greatest damage done by this episode is to other Muslim women suffering from domestic abuse. Many are already afraid of going to court against their spouses. There have been a string of so-called honor killings here, in which Turkish Muslim men have murdered women.

“For Muslim men, this is like putting oil on water, that a German judge thinks it is O.K. for them to hit their wives,” said Michaela Sulaika Kaiser, the head of a group that counsels Muslim women.

http://www.nytimes.com/2007/03/22/wo...b5f036&ei=5070

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Agent Smith
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In the light of this I think the Qur'an could probably be classed, technically, as Grundgesetzwidrich - that is, contrary to the Consitution. After all, its use here was clearly in direct opposition to German law; so it's a question of whether an attack on the laws constitutes (sorry) an attack on the Constitution as a whole. Not sure whether this would legalistically be the case...

But no court in its right mind would make such an inflammatory and frankly stupid ruling, because the same thing can be said of innumerable other books, holy and otherwise, and the only books modern Germans are happy to ban are Nazi ones.

My personal opinion? Cultural backgrounds be damned. Beating one's wife (a practice whose legitimacy is not agreed upon even among Islamic scholars) is illegal under the laws of the German State, of which both defendant and prosecutor were full citizens; and in my view immoral anywhere in the world.
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Consie
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Reichsfeinde!!!
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Artemidoros.
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Das ist völlig schrecklich!
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SuperhansFavouriteAlsatian
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(Original post by Agent Smith)
In the light of this I think the Qur'an could probably be classed, technically, as Grundgesetzwidrich - that is, contrary to the Consitution. After all, its use here was clearly in direct opposition to German law; so it's a question of whether an attack on the laws constitutes (sorry) an attack on the Constitution as a whole. Not sure whether this would legalistically be the case...

But no court in its right mind would make such an inflammatory and frankly stupid ruling, because the same thing can be said of innumerable other books, holy and otherwise, and the only books modern Germans are happy to ban are Nazi ones.

My personal opinion? Cultural backgrounds be damned. Beating one's wife (a practice whose legitimacy is not agreed upon even among Islamic scholars) is illegal under the laws of the German State, of which both defendant and prosecutor were full citizens; and in my view immoral anywhere in the world.
Whilst I agree entirely, allow me to play devils advocate.

If you are the wife of a Morman, could you ask for a divorce on the grounds that your partner cheated on you, despite knowing full well before hand that he was a Morman and thus going to do so? I mean, surely that becomes part of the agreement? Else you wouldn't have gotten married in the first place.

If the woman was aware that her husband has an interpretation of the Quaran that allows a husband to beat his wife, whilst it's certainly grounds for arrest, is it in contravention of their maritual agreement and thus grounds for divorce?
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Gilliwoo
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German Law's weird. It has this "metaphysicality" that most legal systems don't have. I'd be surprised if there wasn't a sound legal reason for this. I can't excuse the morality of it nevertheless.
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cottonmouth
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More likely done on purpose to provocate more tension. The moron judge probably had a way out, but chose to further add to the picture painting Islam as a terrible religion.
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Dionysus
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Judge sounds like a complete idiot. All this will do is spread the popularity of Islamophobia, and make people actually believe that Islam sanctions this kind of thing.
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Chumbaniya
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I fail to see how a responsible judge could claim that any sort of legal justification can be found in a book which is in no way related to legal system of the country. She clearly doesn't understand how the law works - either that or german law has some bizarre quality which causes it to apply different laws depending on a person's nationality and religion (which defeats the whole idea of law in the first place).

It may or may not be the case that the Qu'ran justifies wife-beating, but that's old news; I'm far past the point of believing Islam to be simply a harmless faith in which only the misguided are violent.
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Gilliwoo
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(Original post by Chumbaniya)
I fail to see how a responsible judge could claim that any sort of legal justification can be found in a book which is in no way related to legal system of the country. She clearly doesn't understand how the law works - either that or german law has some bizarre quality which causes it to apply different laws depending on a person's nationality and religion (which defeats the whole idea of law in the first place).

It may or may not be the case that the Qu'ran justifies wife-beating, but that's old news; I'm far past the point of believing Islam to be simply a harmless faith in which only the misguided are violent.
I don't know a great deal about specific German Laws, but what I do know of German jurisprudence is that it tends to apply very odd metaphysical concepts to adjudication. It's replete with pretty vague conceptual notions like "Uber-Unterordnungs-Verhaltnis" (relative inferiority against superiority of legal subjects in a particular transaction) and "Abstraktionsprinzip" (the principle of abstraction of legal requirements). German law tends to make reference to various extra-legal factors in deciding cases. I wonder if one of those kinds of concepts may not have been applied here.
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Henri Lloyd
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The judge Christa Datz-Winter recieved fierce criticism for the citation of the Qu'ran in this context by both, the judge of the relevant superiour court as well as by Islamic groups and various politicians.

The ruling did obviously neither stand any further, nor was it an appropriate interpretation of the German law from her side.

@ Consie: Careful with that word.
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If your religion sanctions you to beat your wife (or kill people), your religion is evil. Twisting laws because Islam says differently is worrying. States in the west need to stick to their principles badly. That isn't islamophobic. Thats the same rules applying to everyone, regardless of religion.
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I think the judge sitting on this particular case was seeking early retirement or something. What a fool! lol
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Gilliwoo
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(Original post by dddd)
If your religion sanctions you to beat your wife (or kill people), your religion is evil. Twisting laws because Islam says differently is worrying. States in the west need to stick to their principles badly. That isn't islamophobic. Thats the same rules applying to everyone, regardless of religion.
You're right, that isn't Islamophobic. But I don't know that the judge arbitrarily decided to use the Qur'an just to placate anyone. My understanding of this leads me to think she was using it as a source of the facts not th elaw itself, and thus relevant to her legal reasoning. I nonetheless find it a barbourous finding anyway - it's rare that judges can't find a way out where one ruling is too unpalatable to find. Her use of the Qur'an here seems to have been to determine the facts of the case itself, not to determine the law, and her fellow jurists seem to have found it bad reasoning on legal grounds rather than on its merits.
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Agent Smith
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(Original post by Gilliwoo)
I don't know a great deal about specific German Laws, but what I do know of German jurisprudence is that it tends to apply very odd metaphysical concepts to adjudication. It's replete with pretty vague conceptual notions like "Uber-Unterordnungs-Verhaltnis" (relative inferiority against superiority of legal subjects in a particular transaction) and "Abstraktionsprinzip" (the principle of abstraction of legal requirements). German law tends to make reference to various extra-legal factors in deciding cases. I wonder if one of those kinds of concepts may not have been applied here.
Is abstraction of law necessarily a bad thing? It's all very well to require that the law be flexible according to circumstances, but if one takes that principle too far it results in silliness such as this - so in fact I think this is a result of too "pragmatic" an approach, not too detached.
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Agent Smith
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(Original post by DanGrover)
Whilst I agree entirely, allow me to play devils advocate.

If you are the wife of a Morman, could you ask for a divorce on the grounds that your partner cheated on you, despite knowing full well before hand that he was a Morman and thus going to do so? I mean, surely that becomes part of the agreement? Else you wouldn't have gotten married in the first place.
Unless you lived in a Mormon country, of which there are precisely none, or a country where some legal matters were "delegated" to other types of court*, I really don't think you'd have a case under the law. And at least in terms of conventional courts, I think that's just as well.

*Ironically enough, I think Britain has, or is considering, something along these lines for marital issues between Muslims, requiring only consent from all parties to submit to the judgement of a third and resembling in some ways an unorthodox form of out-of-court settlement.
If the woman was aware that her husband has an interpretation of the Quaran that allows a husband to beat his wife, whilst it's certainly grounds for arrest, is it in contravention of their maritual agreement and thus grounds for divorce?
I'd say yes - because the marriage is part of the law of the country they live in, not part of the religion or customs to which they adhere.
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Gilliwoo
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(Original post by Agent Smith)
Is abstraction of law necessarily a bad thing? It's all very well to require that the law be flexible according to circumstances, but if one takes that principle too far it results in silliness such as this - so in fact I think this is a result of too "pragmatic" an approach, not too detached.
Yes agreed. I was just pointing out that German Law isn't always as "logical" as Common law or French Law appear.
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Gilliwoo
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(Original post by Agent Smith)
Unless you lived in a Mormon country, of which there are precisely none, or a country where some legal matters were "delegated" to other types of court*, I really don't think you'd have a case under the law. And at least in terms of conventional courts, I think that's just as well.
I sat in on a case not so long ago in which there was a dispute relating to whether a woman was considered betrothed or not in Indian custom (our barrister also recounted, during recess, the most bizarre case in which it had to be established whether a gentleman he was representing was married under some African tribal law or not, as this was apparently relevant to the claim being made!) Conflict of Laws is immensely interesting, but I think common sense must prevail sometimes. The lack of it is an increasing complaint among jurists and scholars today. People, not text books, are the proper point of law.
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