She didn't know it, nor did she even expect it. She had good intentions. Perhaps it was a mistake. In fact, it was most certainly a mistake. The best thing to do would be to wipe the slate clean.
Last week, in the middle of the storm, Christa Datz-Winter, a judge on Frankfurt's family court, was speechless. But Bernhard Olp, a spokesman for the city's municipal court, was quick to jump in. Olp reported that the judge had been under emotional stress stemming from a murder that had been committed in her office 10 years ago, and that she was now planning to take a break to recuperate. He also mentioned that she was "outraged" -- not about herself or her scandalous ruling, but over the reactions the case has triggered.
The reactions were so fierce that one could have been forgiven for mistakenly thinking that Germany's Muslims had won the headscarf dispute and the controversy over the Mohammed cartoons in a single day and, in one fell swoop, had taken a substantial bite out of the legal foundations of Western civilization.
The ensuing media furor came from both sides of the political spectrum. The left-leaning daily Die Tageszeitung ran a story on the case titled: "In the Name of the People: Beating Allowed," while the right-wing tabloid Bild called it "An Outrageous Case!" The same unanimity across party lines prevailed in the political realm. "Unbearable," was conservative Bavarian Interior Minister Günther Beckstein's ruling, while Lale Akgün, a member of parliament of Turkish origin and the Social Democratic Party's representative on Islamic issues, commented that the Frankfurt judge's ruling was "worse than some backyard decision by an Islamist imam." Even the deputy head of the Green Party's parliamentary group, Hans-Christian Ströbele, noted that a German judge is obligated to uphold German law.
The original purpose of the case was not to carry the clash of cultures into the courtroom. Instead, the case brought before Frankfurt's family court was that of a 26-year-old German woman of Moroccan origin who was terrified of her violent Moroccan husband, a man who had continued to threaten her despite having been ordered to stay away by the authorities. He had beaten his wife and he had allegedly threatened to kill her.
But German law requires a one-year separation before a divorce can be completed -- and exceptions for an expedited process are only granted in extreme situations. When the woman's attorney, Barbara Becker-Rojczyk, filed a petition for an expedited divorce, Judge Christa Datz-Winter suddenly became inflexible. According to the judge, there was no evidence of "an unreasonable hardship" that would make it necessary to dissolve the marriage immediately. Instead, the judge argued, the woman should have "expected" that her husband, who had grown up in a country influenced by Islamic tradition, would exercise the "right to use corporal punishment" his religion grants him.
The judge even went so far as to quote the Koran in the grounds for her decision. In Sura 4, verse 34, she wrote, the Koran contains "both the husband's right to use corporal punishment against a disobedient wife and the establishment of the husband's superiority over the wife."
A disturbing pattern of rulings
Put plainly, the judge argued that a woman who marries a Muslim should know what she's getting herself into. In Germany, no less. Leading German feminist Alice Schwarzer argued that this was tantamount to a "softening of our legal system" that is "by no means a coincidence." Germany's only minister of integration at the state level, Armin Laschet, a member of the conservative Christian Democratic Union (CDU) from the state of North Rhine Westphalia, sees the Frankfurt ruling as the "last link, for the time being, in a chain of horrific rulings handed down by German courts" -- rulings in which, for example, so-called honor killings have been treated as manslaughter and not murder.
This, says Berlin family attorney and prominent women's rights activist Seyran Ates, is part of the reason one should "be almost thankful that (judge Datz-Winter) made such a clear reference to the Koran. All she did was bring to the surface an undercurrent that already exists in our courts." Out of a sense of misguided tolerance, says Ates, judges treat the values of Muslim subcultures as a mitigating circumstance and, in doing so, are helping pave the way for a gradual encroachment of fundamentalist Islam in Germany's parallel Muslim world. It's an issue Ates often runs up against in her cases. "In Frankfurt," she says, "someone expressly openly for the first time what many are already thinking."
Does Germany already Have Sharia Law?
Ursula Spuler-Stegemann, an Islam expert from the central German university town of Marburg, has a similar take on the matter. "Do we already have Sharia here?" she asks, adding that the Frankfurt case shows that "things are getting out of hand here."
Does the unspeakable decision by a single Frankfurt family court judge truly mark a new stage in the German judiciary's unspoken policy of appeasement toward aggressive Muslims? Or is the collective outcry so loud and nonpartisan this time because the case is so clear? Is it because everyone believed that the debate, raging for years and still unresolved, over the issue of how much immigration the Germans should tolerate and how much assimilation they can expect was finally coming to an end? And because this particular case was about violence, the lowest common denominator on which everyone from left-leaning feminists to neoconservatives could agree?
And now that the danger has been recognized, is it being addressed quickly? Not exactly.
An abuse of the liberal state
Frankfurt family court judge Datz-Winter was removed from the case and the courts proved themselves capable of acting responsibly. In many other cases in Germany, however, the liberal nature of the constitutional state has been misused -- and a misguided approach to tolerance has been turned into self-sacrifice. But isn't it the court's job to protect the liberalism that has taken Germans so long and so much effort to achieve -- and with zero tolerance for intolerance, if need be?
The questions this raises in the context of social reality are agonizingly difficult, even insulting to many, and they lead us into a web of taboos that has developed over time. Those who move within this web often cannot help but rub someone the wrong way.
The debate that Judge Christa Datz-Winter has now revived once again seems to afflict Germans like bouts of fever. It revolves around the question of how much assimilation the constitutional state can or must demand from immigrants. Will the Germans accept the sometimes outmoded customs of other cultural groups? In other words, will they permit groups to not just live in a society that parallels German society, but to also live their lives in an entirely different age and at a completely different pace? Is Germany not obligated to integrate those who are foreign to its society and bring them into the present?
Just as battles are often waged around flags, social conflicts tend to erupt around symbols -- the headscarves worn by female teachers, the minarets that are changing the appearance of some towns, the severed head of the Prophet Mohammed in the Berlin production of the opera "Idomeneo," and the harmless Danish cartoons depicting Mohammed, triggering an outcry that led to the torching of Western flags and embassies worldwide in 2005. But social conflicts also arise over seemingly minor issues. For example, if churches can ring their bells, why shouldn't the muezzin be allowed to call the Muslim faithful to prayer -- at 5:45 in the morning?
Because Germany became a country open to immigration some time ago, it now urgently needs guidelines on how rigidly it should enforce its standards and how it should treat its new arrivals -- as well as how the country expects them to behave.
As this debate becomes more and more urgent, Germans ought to be thankful to the Frankfurt judge for naively stepping into the web of taboos. The problem Germany faces with its deeply religious Muslim immigrants is not unlike the challenge modern Israeli society faces in dealing with orthodox Jews. Fundamentalists -- including Muslims in Germany --- tend to produce large families, so that the men and women of the past could very well lay claim to a substantial share of the future. According to a study by the University of Tübingen, the number of fundamentalist Muslims in the country will have more than doubled by 2030.
Violating the Principles of Equal Treatment
For far too long, Germany's muslim immigrants were not asked to put much effort into integrating. For decades, German judges essentially paved the way for Islamic fundamentalists to form a parallel society. They raised little opposition to the strategy employed by Islamic groups to demand their supposed religious freedom in court until they got it. But the judges must have known, argues Johannes Kandel, that "giving preferential treatment to groups violates the principle of equal treatment in a secular legal system." Kandel heads the intercultural dialogue group at the political academy of the Friedrich Ebert Foundation, which is closely alligned with the center-left Social Democrats.
Citing the freedom of religious expression guaranteed under the German constitution, judges in Germany permitted Muslims to withdraw their children from swimming lessons or to forbid them from taking part in school celebrations or school trips. This allowed outdated concepts of chastity from places like Turkey's highly traditional eastern Anatolia region to survive in an otherwise enlightened Europe. But religious freedom, says Udo Di Fabio, a judge on Germany's Federal Constitutional Court, the country's highest judicial institution, is no "basic right deluxe," but rather one of many constitutional rights -- and one that constantly has to be weighed against other rights.
"We were far too negligent for much too long," says Andreas Jacobs, the coordinator for Middle East policy and Islamic countries at the Konrad Adenauer Foundation, which is aligned with the conservative Christian Democrats. Wolfgang Bosbach, the deputy chairman of the CDU's parliamentary group says he sees the ruling as an indication "that we are gradually putting our own concepts of the law and values up for grabs." But Jacobs believes it is instead a kind of aftershock of the naïve multicultural illusions of recent decades.
A much-delayed wake-up call
"Finally the reactions to this nonsense are showing that sensitivity has become much greater than it was in the past," he says. The murder of Dutch filmmaker Theo van Gogh, he believes, served as a much-delayed wakeup call for most German judges and politicians.
In the autumn of 2004 Mohamed Bouyeri, the son of Moroccan immigrants who was born in Amsterdam and attended school there, slit van Gogh's throat as if he were slaughtering an animal on an Amsterdam street. He felt that van Gogh's film "Submission," about the oppression of women in Islam, was offensive to him and his religion. Van Gogh had shot the film together with Ayaan Hirsi Ali, a Somali-born Dutch who is one of the most prominent critics of Islam. The murder set the Netherlands into a deep state of shock. Suddenly the country was faced with the wreckage of its much-touted tolerance. Before long mosques and Koran schools were going up in flames, followed by retaliatory acts against churches.
The clash of cultures in the neighboring Netherlands also drew Germany's attention to conditions that many had preferred to play down as "cultural diversity." Suddenly Germans were waking up to the creeping Islamicization on the fringes of their society, and to the existence of parallel worlds in German cities. Ironically, until only a few years ago all of this was happening with the enthusiastic support of the constitutional state and its servants.
German judges were accommodating to Muslims in many minor rulings, and often with good reason. In 2002, the state labor court in the northern city of Hamm ruled that prayer breaks are permissible during working hours, but must be coordinated with the employer. The case had come to the fore after a company reprimanded a Muslim worker who wanted to pray several times a day. The worker demanded his rights, citing religious freedom.
In a number of cases dealing with halal butchering, German courts were forced to grant exceptions to Muslim butchers similar to those applied to butchers who adhere to Jewish kosher butchering rituals. In 2002, the Federal Constitutional Court issued a landmark decision allowing butchering according to Muslim ritual, after Rüstem Altinküpe, a butcher in the eastern city of Wetzlar, had filed a lawsuit.
Giving the Muezzin Free Reign
Muslims can also often count on the support of German courts when it comes to building mosques. As far back as 1992, the Federal Administrative Court ruled that neighbors must "fundamentally accept" being woken before sunup.
The muezzin, who calls the faithful to prayer from the minaret in traditional mosques, can also usually look to German judges to support his cause. Attempts by cities to appeal decisions favoring mosques have rarely succeeded.
In Dillenburg, a town in the state of Hesse, a rural district office attempted to use the highway code to silence the local muezzin, arguing that his devout calls to prayer could irritate drivers. The Giessen Administration Court overturned the decision.
In theory, the Muslim call to prayer could be enforced in court in all German communities, the logic being that where Christians can sing their hymns the Muslims must be allowed to call the faithful to prayer.
As the courts saw it, the principle of equal treatment also applied to those with little interest in equality. But most mosques voluntarily waive this right to equal treatment.
Muslims can also often depend on courts that deal with the laws governing the press. The outcome of a legal dispute last May between the former imam of Berlin's Mevlana mosque, Yakub Tasci, and the ZDF public television network before the district court in Potsdam outside Berlin was especially absurd. Judge Klaus Feldmann barred the network from referring to the imam as a "hate preacher" on its Web site. And yet Tasci, according to an investigative piece in the magazine Frontal21, had characterized Germans during his sermons as the equivalent of stinking infidels. According to the court, Tasci had not been referring to Germans in particular but atheists in general, and had only preached about Germans' alleged lack of hygiene and apparent body odor outside of the mosque.
Issues of fundamental importance
While these cases may seem trivial, the matter becomes more sensitive when cases revolve around issues of fundamental importance. In some cases German courts choose to do little more than dabble, as with the headscarf dispute. In 2003, Fereshda Ludin, a teacher in the southern state of Baden-Württemberg, sued for the right to wear the headscarf in the classroom. Her case was referred to the Federal Constitutional Court, which ruled that schools are the business of the states. In other words, it would be up to the states to enact the appropriate legislation if they wanted to ban teachers from wearing the headscarf. This hasn't happened yet in many German states, and the debate continues.
In some cases German courts are even more accommodating to Muslims than those in secular Turkey. In 1984, the Wiesbaden Administrative Court upheld a Muslim woman's demand that she be allowed to wear her headscarf on photos for official identification documents. In the grounds for its decision, the court wrote: "The Islamic faith requires the plaintiff to cover her head in public." Even though the ruling is not legally binding, Muslims have used it to support their arguments.
Experts view a 1993 decision by the Federal Administrative Court as one of the most blatant mistakes on the road to establishing a legal framework to protect Islamic parallel words. The judges decided to allow a 13-year-old Turkish girl to be excused from physical education and swimming instruction if it could not be offered in a way that kept boys and girls strictly separated. The girl's family had argued that the headscarf could very well slip off during these activities.
The court was not even swayed by the school district's objection -- which now seems downright prophetic -- that granting special rights would make it increasingly difficult for schools to offer class trips, sex education classes and outings to the theater. The judges ruled that it was "unreasonable" to require pupils to take part in physical education classes. They decided in favor of the parents' religious freedom and against the development opportunities and rights of personal liberty of the child -- and of many other children.
In a similar case, a judge argued that whether the Koran does in fact require certain behaviors is immaterial, and that a perceived precept is already sufficient. In fact, the judge continued, it could not be argued that these religious rules "are, according to Western standards, one-sided and do not favor adolescent women."
The Camel Fatwa and other Letters from Absurdistan
This was an attitude that still prevailed in the minds of German judges one year after the Sept. 11, 2001 terror attacks.
At the time, the higher administrative court in the state of North Rhine-Westphalia ruled that a female Muslim student in the 10th grade should be permitted not to take part in a school trip. The family had argued that Islam prohibits allowing girls to go on such trips without being accompanied by a male family member. The family also insisted that the girl was constantly worried about losing her headscarf. The judges found that such fears were "comparable with the situation of a partially mentally impaired person who, because of her disability, can only travel with a companion." This assessment was devastating because it accepted the rules of a camel drivers' society in the modern age -- literally, because a few years earlier, an Islamic legal opinion dubbed the "camel fatwa" had been added to the professional literature.
Amir Zaidan, the then chairman of the Islamic Religious Community in the state of Hesse, wrote the opinion. He argued that a Muslim woman could travel no more than 81 kilometers (50 miles) from the home of her husband or parents without being accompanied by a male blood relative. The opinion came to be known as the "camel fatwa," because this was the distance a camel caravan could travel within 24 hours in the days of the Prophet Mohammed.
Zaidan even defended this position at a 2001 conference of Germany's protestant churches in Frankfurt. His argument was that a woman who traveled farther would run the risk of being raped. Apparently one could spout such nonsense to the good church people who had gathered in Frankfurt without running the risk of being run off the premises for committing rape against religious freedom.
A bonus for polygamists
In another letter from Absurdistan, the Federal Ministry for Social Affairs issued the following announcement to German health insurance agencies in the summer of 2004: "Polygamous marriages must be recognized if they are legal under the laws of the native country of the individuals in question."
What the policy statement boiled down to was this: In certain cases Muslim men from countries where polygamy is legal -- like Morocco, Algeria and Saudi Arabia -- could add a second wife to their government health insurance policies without having to pay an additional premium.
Such excesses are rare today. Judges are increasingly accepting the responsibility that legal expert and Islam scholar Mathias Rohe demands of them: to use the law "to signal to a society what is allowed and what is not."
For example, in 2005 a Düsseldorf judge ordered that a Muslim boy could be required to attend school swimming sessions together with girls. In his grounds, the judge argued that in Germany Muslims are "confronted with more liberal values, which they must be able to handle. The same applies to required swimming instruction."
But this change of heart within the judiciary has not brought about fundamental social change. On the contrary, the genie that the courts once let out of the bottle continues to shape social reality. "More and more girls are not taking part in swimming instruction or are not going on class trips," says Christa Stolle of Terre des Femmes, a women's rights group. "Or they are simply taken out of school." The wearing of headscarves has also increased tremendously, says Stolle, who is convinced that "it's getting more difficult for girls."
"Integration Has Failed Here"
Experiences in urban German schools show just how much integration has suffered as a result of the decisions of timorous judges in past years. At the Carlo Mierendorff School in Preungesheim, a Frankfurt neighborhood, about one-third of students in the upper grades are permitted to not attend class trips for religious reasons, says Alexander Zabler, the school's principal. To prevent their daughters from traveling with schoolmates, many Muslim parents have either called the girls in sick or simply ordered them not to show up. Zabler tried many approaches, including talking to the parents, visiting them at home, offering special meals for Muslims during travel -- but all to no avail. Finally he turned to the government and asked the local school board for help -- also to no avail. He has since resigned.
Last month parents, teachers and students at the Carlo Mierendorff School decided to cancel future class trips altogether if more than 10 percent of students could not attend. "On this issue integration has failed here," complains Zabler.
That failure is at least partly attributable to the activities of people like Yavuz and Gürhan Özoguz, two brothers who offer sample letters for parents seeking to exempt their children from swimming instruction on their Web site, Muslim-Market.de. The parents then use the letters to demand special rights for their children from teachers and principals.
"Doing their best to survive"
If the parents' strict faith expresses itself as an extreme form of modesty in girls, then it often leads to rowdiness in Muslim boys. Paul Reiter, 47, an English and French teacher at a school in the western city of Bochum, constantly experiences the results of self-imposed, aggressive exclusion in the classroom. Reiter says he knows many "poor students with gold chains" who routinely use anti-American, anti-Semitic and sexist language, often addressing German women as "whores." Reiter says female teachers "are doing their best to survive" in some classes.
Marie-Luise Bock, the principal of Martin Luther Middle School in Herten, a city in the industrial Ruhr region, says her efforts to integrate Muslim girls are torpedoed from two sides: "arch-conservative" Muslim parents and "macho brothers." About one-third of female Muslim students wear headscarves, "and one in two are unhappy about it," says Bock, who has occasionally reserved spots in a women's shelter for some of her former female students. "It deeply upsets me that we can do so little for these girls," she says.
Ursula Spuler-Stegemann, the Islam scholar, also has stories to tell about desperate teachers. "Many have no idea where they are allowed to draw the line when it comes to Muslims," she says. More dangerous, says Spuler-Stegemann, is a "dramatic development that is currently unfolding in the education sector, practically unnoticed by the general public: There are groups that truly want to establish a separate world."
She is referring to organizations like the Association of Islamic Cultural Centers, which operates a number of children's centers throughout Germany. Critics say the children, who often have no exposure to the outside world, are subjected to religious indoctrination -- an allegation the association's leadership denies. Milli Görüs and the Islamic Community of Germany -- two groups that are under observation by Federal Office for the Protection of the Constitution, Germany's domestic intelligence agency -- are also heavily involved in working with youth. Muslim organizations in Germany, Interior Minister Wolfgang Schäuble warns, must behave in a way "that indicates partnership with us" -- at least if they hope to steer clear of investigators and the courts.
Muslim organizations are also beginning to establish their own schools, arguing that Christian nuns teach at some German schools. The Muslims tout their concepts as being integrative, and education officials believe them and approve the schools. But then, far from being integrated, the schools end up attracting only Muslims.
Domestic intelligence kept a close watch on the King Fahd Academy in Bonn for years. The mosque and associated school were criticized because some of the schoolbooks they used glorified jihad. But even the ordinary Koran schools, which exist at practically every German mosque, often forcefully draw their roughly 70,000 children and adolescents back into the world of their grandfathers.
Forced Marriages and Servility
Of course, in many families there is no escaping the closeness justified by Muslim traditions and rules. Women are brought up to serve and obey. Boys are alternately spoiled and beaten, as custom requires. According to a study conducted by the Lower Saxony Criminology Research Institute, physical abuse of boys is more than twice as common in Turkish families than German families. And "girls from conservative families say that their fathers and brothers have the right to hit them," reports Judith Gerling-Tamer, an educator at the Elisi Evi Support Center for women and girls in Berlin's heavily Muslim Kreuzberg district.
The authorities are generally aware of little of what happens in families. Nevertheless, laws and court decisions do send signals. If the wrong signals are sent, as was the case in many past court rulings, this also affects families. And lawmakers' failure to enact legislation that is urgently needed can also have devastating effects.
Young women routinely come to support centers after being married off against their will, but such arranged marriages are neither illegal nor regulated in Germany.
According to a 2004 study commissioned by the Federal Ministry for Family Affairs, 17 percent of Turkish women surveyed considered their marriage forced. The Turkish twins Ayse Auth and Hatice Nizam know what it's like to be forced into an arranged marriage in Germany. They were born in the state of Hesse into a large Turkish guest worker family. Both girls did well in school and trained to become hairdressers. But then, the twins say, their parents insisted that it was time for them to marry. Hatice was married at 18, Ayse at 19. The two sisters spent four years trying to separate themselves from their husbands they neither loved nor wanted. When they finally succeeded, the family treated them as outcasts.
Unlike many other girls with similar stories, the girls have now confidently made a life for themselves in Germany. They own two hairdressing salons and both live with their German partners. Arranged marriages, says Hatice Nizam, are "unfortunately still" part of everyday life for many women of Turkish origin in Germany, "and it's incredibly difficult to extract yourself from them."
Ayten Köse, 42, who manages a shelter in the Neukölln Rollberg district, tries to help. She doesn't resemble most of the Muslim women here. Instead of a headscarf, she wears her hair uncovered. Köse knows how difficult it is for Muslim women in Germany to be courageous and rebel. But she is constantly reminding women that the German state will not let them down. "But what should I tell them now, after this Frankfurt ruling?" Köse asks furiously. "That it can happen sometimes?" Trust in the constitution and the hope that it will be enforced, says Köse, is sometimes the only thing Muslim women can rely on for encouragement.
The problem for many women, says Köse, is that they are completely alone, alone against their own family or their husband's family. "And if they haven't attended school in Germany," Köse explains, "they usually don't even know about human rights."
A political system too paralyzed to act
Chances are slim that they can expect much help from the political end anytime soon. German lawmakers have repeatedly considered raising the age at which guest workers are allowed to come to Germany as a way of protecting young girls against forced marriages. Many immigrants are very young when they are forced into arranged marriages. A law outlawing forced marriages still doesn't exist today, although the German criminal code has been updated somewhat to deal with the problem. Even some of the measures other countries established are nonexistent in Germany. In Britain, for example, women who are worried that they could be forced into hastily arranged marriages while on vacation can leave information with the authorities before leaving the country. If they fail to report back by a prearranged date, officials, including those at the British Foreign Office, begin searching for them.
Germany is still a long way off from such well-meaning approaches and the symbolism they convey. In fact, some of the women who contact the women's rights group Terre des Femmes do so because they feel stabbed in the back by the constitutional state. If they are taken to their native countries against their will for forced marriages, the door often slams shut behind them -- permanently. If the brides are unable to extricate themselves and return to Germany within six months, their residency permits automatically expire in most cases.
Europe at a Crossroads
Berlin attorney Seyran Ates says: "We are at a crossroads, everywhere in Europe. Do we allow structures that lead straight into a parallel society, or do we demand assimilation into the democratic constitutional state?"
The answer is clear, at least if one studies the literature of conservative Muslims. For example, in his book "Women in Islam," Imam Mohammed Kamal Mustafa of Spain recommends how women should be beaten. If you beat their hands and feet with "whips that are too thick," he warns, you risk leaving scars. Abdelkader Bouziane, an Algerian imam who calls two women his own, recommends handing out beatings in such a way that the consequences are not apparent to infidels.
Although Islamic groups do their best to condemn marital violence, there are clear indications of how ubiquitous beatings are in many Muslim marriages. Experts say that a disproportionately high percentage of women who flee to women's shelters are Muslim. This sort of domestic violence in the family has even ended in death for more than 45 people in Germany in the last decade. According to an analysis by the Federal Office of Criminal Investigation on the "phenomenon of honor killings" in Germany, woman are often slaughtered in the most gruesome of ways for violating archaic concepts of morality. In many cases an entire family council has ruled on the execution of a rebellious female family member.
In 2005, Hatun Sürücü, a young Berlin woman, was killed because she was "living like a German." In her family's opinion, this was a crime only her death could expiate. Her youngest brother executed her by shooting her several times, point blank, at a Berlin bus stop. But because prosecutors were unable to prove that the family council had planned the act, only the killer himself could be tried for murder and, because he was underage, he was given a reduced sentence. The rest of the family left the courtroom in high spirits, and the father rewarded the convicted boy with a watch.
It is by no means unusual for people put on trial for honor killings in Germany to be convicted on the lesser charge of manslaughter in the end. In 2003 the Frankfurt District Court handed down a mild sentence against a Turkish-born man who had stabbed his German-born wife to death. She had disobeyed him and was even insolent enough to demand a divorce.
Muslim moral precepts as mitigating factors
The court argued that one could not automatically assume that the man's motives were contemptible. He had, after all, acted "out of an excessive rage and sense of outrage against his wife" -- who he had regularly beaten in the past -- "based on his foreign socio-cultural moral concepts." According to the court's decision, the divorce would have violated "his family and male honor derived from his Anatolian moral concepts." The Federal Constitutional Court reversed the decision in 2004.
Even though higher courts usually reverse these sorts of rulings, judges are still handing down sentences based on the same logic. For example, the municipal court in the western city of Leverkusen sentenced a Lebanese man to probation in 2005 after he had severely beaten his daughter several times for resisting his efforts to force her into an arranged marriage. He hit her on the head with a stick. When it broke he choked her and threatened to stab her to death. The court argued that the fact that his actions were based on his Muslim moral concepts served as a mitigating factor.
The district court in Essen was equally lenient when, in 2002, it sentenced a Lebanese man who had applied for asylum -- and who routinely beat his children and wife with a belt and also raped his spouse -- to nothing more than probation. The judge cited the man's cultural background as a mitigating circumstance. In commenting on his crimes, the man said: "I am a Muslim, a normal person. I pray, fast and fulfill do my duties."
Both criminal courts and family courts have often gone soft on violent parents whose concepts of honor were more important to them than the well-being of their child. In 2000 the Cologne Higher Regional Court ruled that a couple from Kosovo who had planned to force their 17-year-old daughter into an arranged marriage at home should be denied custody of the girl. This was a reversal of a lower court's decision to send the girl, who had sought protection from the youth welfare office, back to her parents. It was only the higher court that clarified something that should have been obvious: that it is completely irrelevant as to whether "the parents, based on their origin, have different ideas about family obligation and the duty to obey." Family attorneys say that social workers have even been known to turn away girls who have turned to youth welfare officials for fear of being forced into a marriage. The social workers' response to the girls is that that sort of thing is, well, "normal with you people."
Jutta Wagner, a family attorney and president of the German Association of Female Lawyers, says that she is constantly hearing about "attorneys with a migration background" who have studied law in Germany but conclude marriage contracts "in which they attempt to adapt a sort of 'Sharia light.'" According to Wagner the purpose of the contracts, which are barely acceptable for German courts, is to make Islamic law acceptable in small steps.
Christa Datz-Winter, the Frankfurt family court judge, argued as if she had already accepted the basic tenets of Sharia law. In the Koran, she wrote, "the honor of the man, simply put, is tied to the chastity of the woman." Therefore, she continued, "for a man with an Islamic upbringing the fact that a woman is living according to Western cultural rules is already considered a violation of his honor."
Matthias Bartsch, Andrea Brandt, Simone Kaiser, Gunther Latsch, Cordula Meyer and Caroline Schmidt
Translated from the German by Christopher Sultan
© SPIEGEL ONLINE 2007
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