Henrik Ræder Clausen has compiled a lucid and thorough analysis of the case against Elisabeth Sabaditsch-Wolff, and the questionable — dare I say ludicrous? — legal sleight-of-hand which was used to convict her.
Convicted for calling Muhammad a ‘paedophile’
by Henrik Ræder Clausen
In Austria, calling Muhammad a ‘paedophile’ constitutes illegal denigration of “religious teachings”. This is what Elisabeth Sabaditsch-Wolff was found guilty of in an Austrian court. Read on for an analysis of the puzzling verdict.
Acquitted and convicted
There is now a conviction against Austrian citizen Elisabeth Sabaditsch-Wolff (ESW), who stood trial on a charge of “incitement to hatred” at a series of seminars educating about political Islam and the challenges we face. The case was closed on February 15th 2011 by judge Bettina Neubauer, who gave the following verdict to ESW, who was also convicted of being a “Repeat offender”, in spite of this conviction being her first:
- Acquitted on the charge of incitement to hatred
- Convicted for denigration of the teachings of a legally recognized religion.
- Punishment: 120 day fines for a total of 480 euros.
This verdict deserves analysis and scrutiny.
The original charges
Acquittal first: The charge of incitement to hatred was originally the main point of the case. The defence has countered that charge in two different ways:
First by going through factual details of the lectures, documenting that everything said there was firmly based on Islamic source material, for instance Reliance of the Traveller from the Al-Azhar University in Cairo. The defence even shouldered the cost of an authorized translation of relevant passages into German, so that they might be accepted by the court. The judge took the documentation into the case, and the public prosecutor did not challenge the validity of it.
Second, the defence had recordings from the seminars played in court, demonstrating that they had been held in a peaceful tone, going through the substance of the material taught, letting the audience ask about detail they had not understood immediately.
Playing the recordings made another important point, namely that some of the quotes used by the prosecution as being from Elisabeth Sabaditsch-Wolff were in reality from members of the audience, and that quotes from the lectures had been mixed with out-of-context comments from small-talk in the coffee breaks.
The public prosecutor, who had made no statements or comments since his initial statement in the first hearing, did not challenge this interpretation.
During the first hearing, the defence had made the prosecutor admit that he had not gone through the primary evidence in the case (the audio recordings), but had instead relied on a transcript provided by the journalist from the Austrian magazine NEWS.at, who filed the original police report.
The expected acquittal
After having gone through this material at the first two hearings, the audience of the case had a clear expectation that ESW would be acquitted of the charges and have her name cleared. But at the end of the second hearing, the judge added an unexpected twist to the case:
She inquired of ESW about her comments that the actions of Muhammad would today be considered ‘paedophilia’. While ensuring a nod of approval from the prosecutor, she then extended the charges to also encompass “Denigrating the teachings of a legally recognized religion”.
The defence attorney requested time to work on this additional charge, as he had not prepared defending his client from this point of view.
An inheritance from the Austrian-Hungarian Empire
It might sound odd that the judge can extend the charges in a trial as she sees fit, but that is actually possible under Austrian law. The charge was specifically for denigrating the teachings of a religion recognized by the Austrian state.
This recognition was granted in 1912 through the law Islamgesetz, which had as its primary purpose to integrate Bosnia-Herzegovina more fully into the Empire, and Bosnian soldiers more effectively into the Imperial army. Since Bosnia-Herzegovina was lost to the Empire after World War One, the original purpose of the law was gone. However, it remained on the books, and for that reason Islam and its teachings enjoy special protection under Austrian law.
Understanding ‘paedophilia’ correctly
Having a legal ban on denigrating the teachings of Islam can be problematic, for many unpleasant points are made in the Quran, including those concerning Jews, the position of women, ‘hypocrites’ who call themselves Muslims but refuse to go to war for the Cause of Allah, and not least statements against ‘infidels’, who do not consider Muhammad a prophet or Allah worthy of their devotion.
But in spite of the extensive references made to unpleasant Quranic passages in the lectures held by ESW, this was not the point of the charges.
Instead, they focused on what had earlier earned Susanne Winter a conviction, to wit: That according to modern standards, Muhammad would be considered a paedophile. It was well thought-out by the judge to first confirm from ESW that she had mentioned the subject before extending the charges, and it was this specific point that led to the conviction.
What is paedophilia?
First we need to understand what ‘paedophilia’ actually is. From The American Heritage(r) Stedman’s Medical Dictionary:
“The act or fantasy on the part of an adult of engaging in sexual activity with a child or children.”
Paedophilia as a mental state rather than action
It is worth noting that paedophilia is a mental state (being sexually attracted by children), not an actual act (having sexual relations with children). Paedophilia is not punishable in and of itself, although possession and distribution of child pornography is in many countries. Sexual relations with minors, on the other hand, are obviously criminal and punishable.
Another detail was decisive for the result of the case, namely that ‘paedophilia’ has different meanings to the general public as opposed to among specialists. To the general public, a ‘paedophile’ signifies a person who actually engages in sexual activities with minors, that is, child molesters. For good reason, this is what concerns ordinary people, and parents in particular: actual acts that put children at risk. The word is used this way, for example, in this Telegraph report.
Among professionals, however, the word covers the urge to primarily have sexual relations with minors. The urge is what matters, not whether or not that urge has led to actual child molestation.
Judge Neubauer in her verdict pointed out this distinction between paedophilia as a mental attitude as opposed to paedophilia as actual actions, and underscored that in professional circles this label applies to the mental state of having one’s primary sexual attraction directed to prepubescent children.
Mohammad acquitted of paedophilia
On this basis, judge Neubauer found that it was not legally acceptable to apply the label ‘paedophile’ to Muhammad, for two distinct reasons:
|1.||Apart from the marriage to Aisha, which was formalized when she was 6 and consummated at the age of 9, Muhammad had many other women, in wedlock, as mistresses, or as war booty. This documents the fact that Muhammad did not have a primary sexual attraction directed towards minors.|
|2.||The marriage, and thus the sexual relations with Aisha, did not end when she reached puberty, but continued until she was 18 and Muhammad died. This further underscores the fact that Muhammad was not attracted to her primarily due to her being a minor.|
Illegal denigration of Muhammad
For this reason, judge Neubauer found that using the label ‘paedophile’ was unreasonable and constituted an illegal denigration of Muhammad, that Elisabeth Sabaditsch-Wolff had therefore made herself guilty of denigrating the teachings of a legally recognized religion, and was thus convicted to pay 120 “day fines” for a total of €480 for her offence.
The fact that the word ‘paedophile’ has a different meaning to non-professionals, and that ESW is not a certified expert in the field, was not assigned any significance in the verdict.
Did Elisabeth actually call Muhammad a ‘paedophile’?
As a matter of fact, no.
What she did do was something different, namely refer to his ongoing sexual relationship to the prepubescent Aisha, who was 9 years old when the relationship began, stating:
“If this does not constitute paedophilia, what does?”
She was clearly referring to what Muhammad did, according to Islamic scripture, not to himself as a person. This is in line with common usage of the word ‘paedophilia’, is understandable to just about everyone, and by referring to actual acts of having sex with minors, it is about child molestation, not about Muhammad as a person. It now appears that calling sex with minors ‘paedophilia’ is outside the legal limits in Austria.
Conviction, at any cost?
For those who have followed the case closely, it might appear that the judge has actively sought to convict Elisabeth Sabaditsch-Wolff, or that a decision might have been made to get her convicted, no matter the means needed to do so, and at any cost to the system.
The cost just might turn out to be quite significant.
The public prosecutor, since his initial presentation, did not say much during the case, and the charges against ESW were extended at the initiative of the judge.
It is also remarkable that the verdict is based on a possible error in categorizing the sexual preferences of Muhammad as described in the Hadith, rather than on teachings from the Quran, which otherwise is generally considered to constitute the religious teachings of Islam.
Fortunately law is logical, and thus one can rightfully deduce some consequences from the verdict:
|1.||It can constitute a criminal offence to use a label wrongly, even if that usage is in line with how it is applied by the general public.|
|2.||The judge takes it as proven that Muhammad had a lasting sexual relationship with a minor. Strangely, she considers it an illegal denigration to apply the label ‘paedophilia’ to this behaviour.|
|3.||As the law is only concerned with “Religious teachings”, rather than “Founders of religion”, “Behaviour of religious persons” or similar things, this verdict must imply that the life and conduct of Muhammad — including his sexual conduct — constitute an integral part of the “Religious teachings” in Islam. This interpretation is in line with Quran 33:21 and fundamentalist readings of Islam.|
|4.||Under Austrian law, Islam has a remarkable degree of protection from criticism, and this verdict extents this protection to Muhammad, who is now protected from criticism. Other religions, say Buddhism, do not enjoy a similar protection of their teachings or founders.|
Since the life of Muhammad, as chronicled in detail in Islamic scripture (Sirat, hadith, and to a lesser degree the Quran), is to be considered an integral part of Islamic teachings, it may become legally problematic to criticize persons, norms or actions justified by his example. That would include the lack of women’s rights in Islam, denigration of Jews and ‘infidels’, incitement to violence and murder of critics and opponents, and other troublesome examples from the hadith.
Denigrating the conduct of Muhammad outlawed?
At the time of Muhammad, child marriages were seemingly an accepted tradition on the Arabian Peninsula, these marriages often being parts of political alliances. This is also the case with the marriage to Aisha, whose father Abu Bakr later became the successor to Muhammad, the first caliph.
Her age (6 at the time of marriage, 9 at the time of its consummation) is documented in a long list of hadith stories, in particular from Bukhari, who according to Islamic tradition is considered flawless in his ability to select which stories about the life and conduct were genuine.
Al-Tabari in vol. 7 page 7 of his 39-volume chronicle mentions that of all the women Muhammad had, only sleeping with Aisha would inspire him to Quranic revelations. Under Austrian legal precedent it would now be punishable to express a negative opinion about this.
That the example of Muhammad is used to justify child marriages even today is a fact that seems to have escaped the attention of the judge. Reports about child brides and their aged husbands now routinely appear in the Western press, but even though we hear these stories over and over, few seem willing to stand up for the rights of these minor girls. Even the sheikhs, the persons learned in Islamic law, do not take action or in any way use their authority to stop child marriages.
That the life and example of Muhammad in its entirety should constitute “Religious teachings”, protected from criticism under Austrian law, is a notion so absurd that it cannot be permitted to stand.
Denigration of Khomeini’s book should be permissible
One might then wonder if the book by Ayatollah Khomeini, Tahrir-ol-vasyleh, which also endorses sexual relations with minors, would as well be protected from criticism under Austrian law.
Initially, the answer would be ‘No’, for the Austrian law explicitly recognized the Hanifi school of Sunni Islam, not teachings of Shia Islam, to which Ayatollah Khomeini belonged. But in 1988, the law was changed [pdf] to include the teachings of all Islamic schools, and thus it would appear that denigrating teachings like this would also be punishable under Austrian law. And, as above, Khomeini does seem to know the life story of Muhammad, and is in line with a fundamentalist reading of it as being an unconditional example for Muslims and all mankind to follow.
Filing an appeal is obvious
In sane times, it should be an obviously flawed case for the Austrian state to punish its citizens for speaking out against having sex with minors. However, common sense appears to have been on holiday in this case, which thus far has produced a verdict based on a quite narrow interpretation of a word otherwise commonly used as ESW did, whether that word was correctly applied or not.
Then, regardless whether the word ‘paedophilia’ was applied correctly or not, a citizen in a free society should in any case to express himself as he sees fit, including having the right to make the occasional mistake, without having to fear being dragged to a court in expensive and exhausting lawsuits opened by the State.
Elisabeth Sabaditsch-Wolff, who declares herself a feminist engaging in the debate about Islam for the sake of her daughter, is for obvious reasons rejecting the verdict and the stain on her criminal record it would imply. The verdict was appealed on the spot, so the case will now be brought before an appeal court. In the hearings before this court, we will probably be going through somewhat embarrassing details from the life of Muhammad in order to establish if these can rightfully be considered religious teachings.
The developments in this case are best followed at english.savefreespeech.org. This is also where it is possible to support Elisabeth Sabaditsch-Wolff economically. This is urgently needed, for in contrast to the prosecution, which is funded by the state, she has to foot all her expenses personally.
Previous posts about the hate speech case against Elisabeth Sabaditsch-Wolff: