You’ve probably already read about the European Court of Human Rights ruling this week that the right to free expression does not include the right to defame the Prophet Mohammed. The story has been reported in most national newspapers, and has provoked outrage on social media, with many people suggesting that the ruling effectively outlaws blasphemy – and, of course, demanding to know why yet again, Islam appears to be the only religion which cannot be criticised.
I have no desire to rehash arguments that have already been made as to why this ruling is such a regressive step. But I would like to discuss the one element of the case which, for whatever reason, no other commentators appear to be discussing.
A brief background for those who may have missed this story. The case involves an Austrian woman, found guilty in 2011 of incitement to religious hatred, for ‘defaming’ the Prophet Mohammed by referring to him as a paedophile. She appealed the case to the high court in Austria and, after losing that appeal, referred it to the ECHR on the grounds that her conviction violated her right to free expression under section 10 of the Convention. The ECHR, earlier this week, found in favour of the Austrian government.
But let’s look a bit more closely at the logic underlying her original conviction – which was reiterated in the recent ECHR judgement. The charge of ‘defamation’ is generally understood in law to apply to statements that are untrue – so in order to find her guilty of defamation, the Austrian court had to maintain that her statement, that Mohammed was a paedophile, was untrue.
This they did. But it’s the logic they used in order to make this finding, that is so preposterous – and deeply alarming. For they accepted without question the evidence of the Islamic hadiths which stated that Mohammed married his wife Aisha when she was six years old and consummated the marriage when she was nine. So there was no question whatsoever as to the veracity of the claim that he had sex with a nine year-old.
No – it turns out the court’s opinion was that a person can only be called a paedophile if their primary sexual interest is in children. Mohammed, the court ruled, could not be proven to have been primarily interested in Aisha because of her tender age – particularly as the marriage continued into her adult years. Moreover, the court ruled, as Mohammed had many wives, most of whom were adults and one of whom was even older than him, it simply could not be said that he was a paedophile. The court further ruled that “even though criticizing child marriages was justifiable….. child marriages were not the same as paedophilia”. It was on the basis of these arguments that the woman was found guilty.
She appealed to the Vienna Court of Appeal, specifically arguing against the contention that somebody who marries a child and maintains the marriage beyond the age at which the child reaches consent, cannot be called a paedophile. The Court of Appeal upheld the regional court’s judgement. And now, so has the ECHR.
So there we have it. Under European law, it seems a paedophile can escape censure by simply marrying his victim and maintaining the marriage until the child reaches puberty. Furthermore, many of the men who have recently been convicted of grooming and raping underage girls in towns and cities across the UK, cannot be called paedophiles as most of them have adult wives – therefore it cannot be said that their primary sexual interest is in children.
This is unbelievably regressive. There are still many countries in the world where ‘Marry Your Rapist’ laws exist – in other words, laws in these countries allow rapists to escape prosecution by marrying their victims. The inevitable result of such laws is that rape victims often find themselves pressurised into marriage with the man who has raped them. Campaigns have been fought – and are still being fought – in all of these countries to try to get these regressive laws repealed. Yet the Austrian courts appear to be paving the way for the introduction of such laws, and the ECHR – the one body that should be most vigilant about such moves – is simply turning a blind eye.
I will admit to knowing very little about the ECHR’s jurisdiction in individual cases. It may be that because the ECHR was asked to adjudicate specifically on the question of the applicant’s rights to free expression, it was forced to consider only this matter, and was not able to comment on the rights or wrongs of the wider case. I truly hope that is the case, and that somewhere behind the scenes, somebody in the European Court is having a quiet word with the Austrian courts about their original ruling. But sadly, I very much doubt it.