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Archbishop of Canterbury Rowan Williams got into hot water for suggesting that aspects of Sharia law should be accommodated in the British legal system. A recent paper by Robin Fretwell Wilson of Washington and Lee University School of Law argues that deferring to Islamic law in family disputes will likely impose heavy costs on women and children. In her view, the state should not adapt to religious tribunals, but rather continue to protect the vulnerable by insisting on equal rights for all.
Prof Wilson cites several studies of Muslim attitudes toward domestic violence, including one of Arab immigrants to the United States.
A 1999 study by Professors Anahid Kulwicki and June Miller evidences the tacit acceptance of domestic violence by Muslims in the United States. In that survey of Arab American immigrants, nearly all of whom were Muslim, the researchers asked women and men "when it would be appropriate for husbands to slap their wives." Women were more accepting of this practice than men in a number of different circumstances, ranging from when a wife disrespects her husband in the home when no one else is around to when the husband discovers that his wife is cheating. Perhaps most shocking, 18.2% of women in the study said they would "approve" of a husband killing his wife if he discovered adultery. [footnotes omitted]
Similar attitudes were also found in surveys of Muslims in Jordan, West Bank and Gaza, and elsewhere.
This tolerance of family violence stems both from sharply-contested readings of religious texts and from the belief that "the marriage [must] be maintained." The emphasis on family privacy, family reputation, and family solidarity makes maintenance of the marriage and family unit of paramount importance, as a result of which "abusiveness almost becomes invisible."
Beyond tacit acceptance, some religious groups actually discourage women from seeking outside help. Professor [Ruksana] Ayyub explains that the Muslim community "condemns any woman who seeks legal protection from an abusive spouse." Dr. [Muhammad M.] Haj-Yahia notes that an Arab woman who seeks to have her husband removed from the home "may be ostracized by [her] community and blamed for undermining family stability and unity." Preserving the marriage is of such great importance that physical violence is seen by some members as "preferable to divorce." [footnotes omitted]
Other research is cited showing that some Christian communities and leaders believe that abused women should forgive their husbands and continue in the marriage relationship rather than divorce.
Clearly, no religious group is immune from violence. States should weigh carefully the risks to women and children before ceding jurisdiction over family disputes to bodies that may be unwilling or unable to vindicate their rights.
In practice, deference to religious courts in divorce and custody disputes could endanger children.
Under Islamic law, male children over the age of seven are placed in the custody of their fathers upon divorce, as are female children after the onset of puberty. In some Muslim communities in the world, like Western Thrace, a geographic region of Greece, a woman must waive "her right to the custody of the children" before she can receive a divorce. Presently in the U.S., the best interests of the child would control this decision in nearly every jurisdiction, which may or may not result in paternal custody. Imagine the catch-22 that some women may find themselves in if we enforce Muslim understandings about custody. If a father is harshly disciplining his son—–discipline that outside the community might be seen as child abuse—–and we enforce the religious norms about custody against the woman, she then is in a classic bind. If she stays, her child continues to be beaten. Yet if she exits, her child stays with the husband and continues to be beaten. [footnotes omitted]
Finally, as an example of harm done to children by deference to religious doctrine, consider the results of allowing parents to refuse medical care for sick children on religious grounds. A 1998 study looked at US child deaths between 1975 and 1995 in which religious parents denied medical treatment to their children. Of 172 total deaths, 158 (92%) would probably have survived with medical care. Of 98 deaths due to causes other than cancer, 92 would probably have survived. Prof Wilson concludes, “in just this handful of reports, more than 150 children are dead because states prized deference over the child’s welfare”.
The abstract of “The Overlooked Costs of Religious Deference” by Robin Fretwell Wilson is posted here, and the full text may be downloaded here (for free). The article has been accepted for publication in Washington and Lee Law Review.
h/t: Institute for Marriage and Public Policy
Previous related post: Does marriage matter for the nurturing of children?
