How Contract Law Can Hold Abusers Accountable

By: Danya Shakfeh, Esq.

For years, the Muslim community has suffered at the hands of those who abuse their religious position.  Unfortunately, legal recourse (or any recourse for that matter) has been rare because there was no standard of conduct and no legal means to hold them accountable.  After spending nearly a decade on working with our community and hearing your concerns, we have written, and now providing, the most comprehensive ethical guide for Muslim scholars.  This document clearly sets the minimum standard of ethical conduct that Muslim scholars should be held and creates a legal mechanism of enforcement through contract law.

The reason why contract law is important and applicable is that law does not always address unethical behavior.  You have heard the refrain “Just because it is legal, it does not mean it is ethical.” The law, for varying reasons, has its limits. Although we associate the law with justice and morality, the law and justice and morality are not always interchangeable and can even be at odds with each other.  Ultimately, specifically in a secular society, the law is a set man-made rules and sometimes those rules are arbitrary and actually unfair. For example, there is a class of laws called “strict liability” laws. These laws make a defendant liable even if the person committed the offense on accident.  One example of a strict liability law is selling alcohol to a minor. In some states, even if the person tried to confirm the minor’s legal age, the seller could still be held liable of the offense. On the flip-side, there are is a lack of anti-bullying laws on the books in the United States. This allows employers to cause serious emotional damage to employees, yet the employer can get away with such offensive behavior.  Accordingly, the law does not always protect nor is it always “just.”

This is one the reasons that victims of spiritual abuse have had little success in having their claims addressed at a legal level.  Because abuses are not legally recognized as such, there is often no associated remedy. For example, when a woman enters into a secret second marriage only to find that the husband is not giving all her Islamic legal rights, that woman’s recourse is very limited because the law does not recognize this as an abuse and does not even recognize the marriage.  Further, if a victim of spiritual abuse is abused due to religious manipulation, unless the abuser engaged in a stand-alone crime or civil claim, the victim also has no legal recourse. For example, if a religious scholar exploits a congregant’s vulnerabilities in order to convince the congregant to turn over large amounts of money and the congregant later learns that the Islamic scholar did not really need the money, he or she may have no legal recourse.  This is because manipulation (as long as there is no fraud) is not illegal and depending on how clever the religious scholar was, the congregant would have no legal recourse. Our way of solving this problem is by using contract law to set and enforce the standard for ethical behavior.

Whether people realize it or not, institutional handbooks are a type of contract. Though an attorney should be consulted in order to ensure that they these documents are binding, policies do not necessarily need to be signed by every party nor do they need to be called a “contract” in order to be legally binding.  By creating institutional handbooks and employment policies that relate to common issues of spiritual abuse, we can finally provide guidelines and remedies. When an employee at an institution violates the institution’s policies, this is a “breach of contract” that can result in firing an abuser or even monetary damages. In other words, the policy is that document that victims and institutions can use to back their cases when there are allegations involving abuse.  Policies can also hold institutions themselves liable for not enforcing the policy and remedies as to victims’ abuse. Policies also serve the purpose putting the community and their beneficiaries and patrons on notice as to what is expected of them.

This is the gold standard of created ethical guidelines for Muslims leaders and institutions and we believe it will provide remedies to victims that would otherwise not be available through other legal means.  By binding the parties to a contract, victims and institutions can take these contracts, along with the abusers, to court and use the contract to fill in the gap for appropriate behavior that the law otherwise does not fill.