Many commenters on Gates of Vienna, 2.0: The Blogmocracy, and elsewhere have commented about the seemingly incomprehensible verdict in the recent trial of Elisabeth Sabaditsch-Wolff. While every nation and every jurisdiction seems to have its own system of jurisprudence, or what passes for such, they are all susceptible to prosecutorial abuse and judicial corruption in the service of political expediency or personal ambitions. Gates of Vienna offers two articles that analyze what happened in this trial and how this lamentable result came to be.
The verdict will be appealed; the story is not over yet!
Originally published on Gates of Vienna – reprinted with permission.
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:
||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.
||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:
||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.
||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.
||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.
||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.
However, this question can be answered with a solid “No”, as the recognition of Islam in Austria is specific for the Hanafi School, a branch of Sunni Islam. Shia Islam, the tradition to which Khomeini belonged, does not enjoy a similar protection. Thus teachings exclusive to Shia Islam should be free to discuss and speak against.
Filing an appeal is obvious
In sane times, it should be an obviously flowed 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 if the word ‘paedophilia’ was applied correctly or not, a citizen in a free society should in any case be able 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 criminal cases opened by the State.
Elisabeth Sabaditsch-Wolff, who declares herself a feminist engaging in the debate about Islam for the sake of her daughter, for obvious reasons rejects 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 to 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 whether or not 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.
Originally published on Gates of Vienna – reprinted with permission.
‘Let the jury consider their verdict,’ the King said, for about the twentieth time that day.
‘No, no!’ said the Queen. ‘Sentence first – verdict afterwards.’
‘Stuff and nonsense!’ said Alice loudly. ‘The idea of having the sentence first!’
‘Hold your tongue!’ said the Queen, turning purple.
‘I won’t!’ said Alice.
‘Off with her head!’ the Queen shouted at the top of her voice. Nobody moved.
‘Who cares for you?’ said Alice, (she had grown to her full size by this time.) ‘You’re nothing but a pack of cards!’
At this the whole pack rose up into the air, and came flying down upon her: she gave a little scream, half of fright and half of anger, and tried to beat them off, and found herself lying on the bank, with her head in the lap of her sister, who was gently brushing away some dead leaves that had fluttered down from the trees upon her face.
‘Wake up, Alice dear!’ said her sister; ‘Why, what a long sleep you’ve had!’
||From Chapter 12 of Alice’s Adventures in Wonderland
by Lewis Carroll
Unlike Alice, Elisabeth Sabaditsch-Wolff does not have the luxury of waking up from the surreal judicial drama into whose rabbit hole she so recently fell.
Like the Queen and the King of Wonderland, the prosecution and the judge in Elisabeth’s case apparently settled on the sentence long before considering a verdict. Elisabeth’s trial was as nonsensical as that of the Knave. Like Alice, hers was the only voice of sanity in a courtroom full of madmen.
But the rabbit hole goes even deeper than that. The judge in the case, Bettina Neubauer, convicted Elisabeth for saying that Mohammed was a pedophile. There’s only one problem: Elisabeth never said any such thing. As the transcript of her seminar demonstrates, Elisabeth in fact said that “Mohammed had a thing for little kids”, the plain facts of which even the judge was forced to accept.
In other words, the judge in Elisabeth’s trial, acting on her own initiative, put words into Elisabeth’s mouth and then convicted her for saying them.
If only The Hon. Neubauer were the Red Queen in a pack of cards!
If only we could all wake up from this feverish nightmare!
* * * * * * * * * * * * * * *
Elisabeth did, however, use the word “pedophilia” in her seminar, but only to describe what Susanne Winter had done to earn her own “hate speech” conviction. Elisabeth sent us a note this morning explaining all of this:
In my seminar I described a conversation with my sister.
It was January 2007, I think, and my sister called me about the scandal Susanne Winter had caused by saying what she said. I told her that it was public knowledge that Mohammed had married a six-year-old and consummated the marriage when she was nine. I then said that if this isn’t pedophilia, then what is?
She said, no, you can’t say it that way, you have to word it differently, more diplomatically.
I said, well tell me how. She was silent — she didn’t know.
What’s important here is that I was recounting a story that happened before Winter had been convicted, and it was the only time on record that I actually used the word.
In all other instances I circumvented the word by saying “Mohammed had a thing for little kids”, knowing that Winter had been convicted for saying what she said.
And still, judge Bettina Neubauer called me a “repeat offender” and fined me heavily.
Here are the exact words I was found guilty for [see also the German transcript above]:
||One of the biggest problems we are facing today is that Mohammed is seen as the ideal man, the perfect human being, the perfect Muslim. It is imperative for a devout Muslim to copy Mohammed. This is not according to today’s standards or our way of life or laws. This is because he was a warlord, had had plenty of women, to put it this way, and he had a things for children. And according to our standards he was not a perfect human. As a result we are faced with huge problems, because Muslims are in conflict with democracy and our value system.
[… ] and when we speak about the Al-Bukhari collection of hadith you can be certain that this is recognized by all [Sunni] Muslims. And it is in Al-Bukhari where we can find the information about Aisha and sex with children.
||I remember talking with my sister — and I have recounted this story a few times already — about Susanne Winter’s infamous talk. My sister called me on the phone, saying, “Oh my God, did you tell her that?” “No, it wasn’t me, but you can find it in the books, it’s not a secret.” She: “But you can’t say it that way.” Me: “A 56-year-old and a six-year-old? What do you call that? Give me an example. What do you call it if not pedophilia?” She: “Well, you have to use a circumlocution, be more diplomatic.” My sister is symptomatic. We have heard this so often: “Those were different times.” I say, No, [this behavior] wasn’t OK back then and it is not OK today. Period. And this (old men marrying young girls) is still happening today. This is never to be condoned.
Readers should not go by the fine of €480. What’s crucial here is the fact that I was fined 120 “day rates” of €4, because I am a housewife with no income. If I had income, the actual fine would have been much higher. It’s the “day rates” that make the fine a hefty one.
Susanne Winter was fined €24,000 euros, because she makes 10,000 euros a month.
The letter sent to Elisabeth by her lawyer is also apposite to this discussion. Many thanks to JLH for the translation:
Attorneys at Law
To: Mrs. Elisabeth Sabaditsch-Wolff
February 15, 2011
Elisabeth Sabaditsch-Wolff Trial
112 HV 144/10g, Regional Criminal Court Vienna
Dear Mrs. Sabaditsch-Wolff,
As you know, the main trial in the above-named case took place on February 15, 2011.
After your supplemental interrogation, the requests for evidential interrogation of witnesses Wafa Sultan, Hans Jansen and Robert Spencer — previously not dealt with by the court — were rejected, because the court of first instance perceived their statements to be valuations (“subjective assertions”), to the content of which the requested witnesses could contribute nothing. The request to question Ilse Albrecht was refused because she would only have been able to testify subjectively whether she was upset or angry at your comments on Mohammed.
In conclusion the welcome verdict was announced: You were exonerated of the charge of incitement according to § 283 StGB. The court found your statements on Islam permissible in the sense of Art 10 MRK, since according to this regulation criticism must be made in a provocative manner. Our arguments were agreed to in their entirety.
You were found, however, to have committed the offense of § 188 StGB (denigration of a religion) because of your statements in the seminars of October 15, 2009 and November 12, 2009 about Mohammed and his sexual intercourse with nine year-old Aisha. The judge’s basis for that focused on the circumstance that the offense of § 188 StGB is an abstract criminal threat, and therefore the mere aptness to cause offense was sufficient to qualify as the crime. What was incomprehensible was the judge’s conclusion that Mohammed’s sexual contact with nine-year-old Aisha was not pedophilia, because Mohammed continued his marriage to Aisha until his death.
Punishment was set at 120 per diem payments of €4, in total €480 or an alternative sentence of 60 days imprisonment.
Further, the costs of the trial must be paid.
The verdict does not have the force of law. since we as well as the prosecutor have announced the intention to appeal by reason of invalidity and because of the remarks about culpability and sentencing.
We have four weeks after receipt of the copy of the verdict to execute the appeal.
With warm greetings, I remain
Dr. Michael Rami
Take a deep breath, everyone, and think about the implications of the above material.
Elisabeth Sabaditsch-Wolff was convicted for stating the plain facts: the prophet Mohammed had sex with a nine-year-old-girl. She never used the word pedophilia; she simply described in everyday language the prophet’s… ahem… tastes.
The statements she made are not considered false by observant Muslims. They are written down in Islamic scripture, and are considered correct and authoritative by virtually every Islamic scholar and theologian.
These scriptural passages are not considered offensive to Muslims when they are recited in a mosque or a madrassa. Mohammed was the perfect man, so by definition his actions cannot be offensive. They are in fact exemplary. That is why Muslim men continue to marry little girls to this day.
Elisabeth’s statements are offensive because they were made by a non-Muslim in public, and brought discredit upon Islam in the eyes of other non-believers.
This offense is referred to as “Islamic slander”, and is a grave violation of Islamic law. Under sharia, the penalty is death.
But it is only illegal under sharia.
Monday’s verdict had nothing to do with Austrian law, or European law. It was based solely on the unwritten laws of politically correct Multiculturalism, which absolutely forbids the offending of Muslims.
This entire judicial farce was necessary in order to establish a sharia-based precedent in Austria. Whether Bettina Neubauer realizes it or not, her role in the case was to enforce Islamic law in the country formerly known as Austria.
Welcome to the Caliphate.
Previous posts about the hate speech case against Elisabeth Sabaditsch-Wolff: