Cultural considerations assume particular significance when an accused is from a minority culture, as it is the moral values of the majority that are relied on to determine the accused criminal culpability. Occasionally, the accused is in a position of disadvantage as there may be a distinct between the cultural values he or she is operating under and the cultural values relied on by the court in Judging the accused.

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There is a question of fairness that is raised: is it Justifiable to punish a member of a minority culture under laws or norms reflecting those of the majority culture? This question was tested in a series of cases in American courts where defendants from immigrant communities in the United States introduced cultural evidence to argue against criminal liability on the ground that the conduct of the accused was not wrong, indeed in some cases that it was even mandated, according to the cultural norms of the accused community. L] The Judicial and academic responses have covered a wide range of options, from he creation of a separate 'cultural defense' through the modification of existing defenses to accommodate different cultural values, to the use of cultural evidence as mitigating factors in sentencing, to the rejection of cultural arguments. The debate is often emotional as there are political consequences; mainstream or majority cultural groups fear that the established legal order is threatened while minority cultural groups object to having their norms and value systems marginal's.

There is the added complication that culture is seen as pertinent only to immigrants and colored' racial minorities, connoting an inferior standard that has to be accommodated by the grace of the majority: [B]behavior that we might find troubling is more often causally attributed to a group-defined culture when the actor is perceived to 'have' culture. Because we tend to perceive white Americans as 'people without culture'. When white people engage in certain practices we do not associate their behavior with a reclaimed conception of culture, but rather construct other non-cultural explanations.

Under this schema, white people are individual actors; people of color are members of groups. This raises the question of whether a cultural defense should be available to the mainstream or majority culture in a society. [3] On 11 December 2005, thousands of went Australians were models Dye text messages to gather on Scrofula Beach, Sydney and attack members of the Lebanese community. The mob violence was triggered by an assault by some youth of Lebanese origin on two white Australian lifeguards at the beach.

There have been suggestions that one of the reasons for this violent reaction by young, white Australians against the Lebanese community was the 'Australian beach culture'. Young, white Australians felt that their traditional cultural space (the beach) was being threatened; as one media correspondent put it, the attack on the lifeguards who patrolled the beach was to threaten the very fabric of modern Australia and its strongly held traditions. '[4] One of the Australian youths involved in the violence referred to the beach and said, 'This is what we're fighting for,'... Like our fathers, our grandfathers, fought for these beaches and now it's our turn. '[5] There is a real danger of overplaying the culture card in criminal law. [6] It may e more productive to simply reform and enhance the scope of existing defenses by adopting a more culturally inclusive approach to criminal law. This chapter divides itself into two parts; the first provides some general theoretical background and context, the second studies a specific area, namely the defense of provocation.

It is suggested that much can be gained by focusing on the distinction between justification and excuse to develop a politically acceptable and theoretically defensible approach to the accommodation of cultural arguments within the existing framework for criminal defenses. The focus of analysis is the law of provocation, which relies on an objective assessment of culpability based on the reactions of an 'ordinary or 'reasonable' person. [7] The problem is that the persona of this ordinary person is generally drawn from the dominant culture and potentially discrimination against minorities.

Case studies from Australia and India will be used to illustrate some of the arguments and challenges. Part I criminal law and moral blameworthiness Criminal law discourse is deeply rooted in the tension between retributive and utilitarianism. [8] Reacting against the utilitarian theory of crime and punishment, which had dominated criminal law discourse for over a century, criminal law scholars and philosophers in the later part of the twentieth century argued strongly for moral justification of punishment in order to protect the autonomy of individuals against the power of states.

George Fletcher, one of the leading figures in this movement, argued that the utilitarian goal of proportioning social interest had 'overshadowed the more basic inquiry whether the punishment of the accused [was] morally Justified. '[9] This is a concern that is now all the more acute in this age of fear, following the September 11 terrorist attacks. Common sense is sometimes ignored and the danger of punishing innocent individuals is high. 10] Hatchers call to Dalliance state power gallant personal Dirty, made over a quarter AT a century ago, is all the more important today in an era where states, even traditionally liberal ones, driven by fear of terrorism and threats to established order, are enacting increasingly repressive laws and dismantling many civil liberty safeguards. [11] Members of minority groups bear the worst of these changes, as they are often targeted under racial profiling policies. [12] Fletcher advocated an approach that embedded political and moral philosophy in the doctrinal analysis of criminal law.

Criminal law is a species of political and moral philosophy. Its central question is justifying the use of the state's coercive power against free and autonomous persons. The link with moral philosophy derives from one's answer to the problem of Justifying the use of state power. If the rationale or a limiting condition of criminal punishment is personal desert, then legal theory invariably interweaves with philosophical claims about wrongdoing, culpability, Justifying circumstances and excuses. [13]

Many scholars share this preference for a moral Justification for punishment based on the retributive theory;[14] academics supporting a cultural defense are particularly staunch supporters. [15] Utilitarianism and retributive both have much to offer criminal law Jurisprudence, but in different spheres. It is suggested that utilitarianism should be concerned with theories of crystallization, while retributive should be concerned with theories of punishment. Utilitarianism, with its instrumentalist outlook, provides sound reasons and Justification for crystallization of certain conduct or activities.

It Justifies restricting the freedom of the individual to engage in certain conduct because of its potential harm to others or to public order. Where punishment is imposed for violation of a restriction, then such punishment can only be Justified if it is deserved, ii if the individual is morally blameworthy. A distinction should be drawn between Justifying the institution of punishment, which is relevant to the process of crystallization and the Justification of punishment in individual cases, which raises more poignant questions of individual rights and liberties. 16] Utilitarianism remains relevant to the former; attributives focuses on the latter. The utilitarian argument that punishment of individuals is Justified because it has a deterrent value may be challenged on both philosophical and empirical grounds. If one subscribes to the Kantian philosophy of human dignity as a categorical imperative,[17] the instrumentalist approach of utilitarianism becomes unacceptable. Empirically, it has been argued that punishment may be less of a deterrent than the belief of people that crime is wrong; [18] hence, even under an instrumentalist approach, the utilitarian Justification of punishment flounders.

Further, if a person is punished when he or she is not morally blameworthy, respect for law is weakened and individuals are less likely to abide by laws that they believe to be unjust. [19] Modern retrievals Is oases on ten Just deserts tenure AT punishment, AT wanly there are two aspects. The first looks at moral blame, ii whether punishment is warranted at all. The second looks at the degree of harm and thence the degree of punishment that is required.

This second aspect - the Alex tailbones principle - has overshadowed the first and has undermined the retributive theory. 20] It is important that the two aspects be kept separate as each raises different questions. [21] The question: "Is punishment Justified? " is quite separate from the question: "How much punishment is Justified? " The first question is relevant to the imposition of punishment, the second, to the quantum of punishment. [22] The imposition of punishment can only be Justified if the individual deserves it, ii if the individual is morally blameworthy.

As the positivist philosopher, Hart put it: If a person whose action, Judged ABA extra, has offended against moral rules or reminisces, succeeds in establishing that he did this unintentionally and in spite of every precaution that it was possible for him to take, he is excused from moral responsibility, and to blame him in these circumstances would itself be considered morally objectionable. A legal system would be open to serious moral condemnation if this were not so. [23] culture and criminal law The analysis of culture and criminal culpability may be divided into two categories.

One concerns the legitimacy of the creation of a cultural offense by the dominant legal culture. The other focuses on the use of culture in the presentation of criminal fences by an individual from a minority culture. [24] Cultural Offence A useful description of a cultural offense is an act by a member of a minority culture, which is considered an offense by the legal system of the dominant culture. That same act is nevertheless, within the cultural group of the offender, condoned, accepted as normal behavior and approved or even endorsed and promoted in the given situation. 25] The classic example is the wearing of the scarf by Muslim women and the banning of it in schools in certain non-Muslim countries, thus creating a cultural offense. 26] The situation is not limited to immigrants; in many cases, indigenous populations have become minorities in their own homelands. When their cultural norms clash with the dominant cultural norms of the legal system, their customary practices become crimes. [27] A third, and more complex situation, concerns former colonies where the dominant cultural values of the legal system reflect those of the erstwhile colonial masters.

The local ruling elite in many cases retained these cultural values In ten legal system even thong majority of the population. [28] n tense values were no s AR An Australian example of a cultural offense, which found both Judicial and political solutions, is seen in the context of traditional hunting and fishing rights of indigenous communities. In Walden v Handles,[29] the accused was an Aboriginal elder who, with the permission of the land owner went hunting and killed a bush turkey for food. His son captured a turkey chick and took it home as a pet.

The accused was charged under the Fauna Conservation Act 1974 (SLD) sis(1), which made it an offense to take or keep protected fauna, which included bush turkey. The accused argued that he was acting according to Aboriginal customary hunting raciest. He did not know that bush turkeys were now protected fauna and that it was illegal to take or keep such fauna. [30] His defense was based on sis of the Criminal Code 1899 (SLD), which provided for the claim of right defense with respect to any property offense.

By a 3-2 majority, the High Court of Australia rejected the accused claim of right defense on the narrow and technical ground that the offense in question was not a 'property offense' and therefore did not attract the claim of right defense. Nevertheless, the High Court of Australia was unanimous in holding hat the accused should be given a complete discharge. [31] Brenna J made this pertinent observation: Nevertheless, the appellant was convicted, fined $100 and ordered to pay $260 by way of royalty, $30. 50 court costs and $529 professional costs.

It was ordered that, in default of payment, he be imprisoned for one month. All this for gathering food from his own country for his own family - as he and his people had been entitled to do and had done since before white settlement, and as he had never been stopped from doing and they had sometimes been encouraged to do by white authority. A imprison between the moral innocence of the appellant's conduct in gathering food for his family and the heavy financial burden of $919. 50 which was imposed on him for doing so makes a mockery of Justice. When that occurs, either the law or its application, or both, must be at fault.

Justice cannot be mocked by a Just law, justly applied. It would not have been surprising if a question had been raised by the appellant as to whether and how it came about in law that Aboriginal people had their traditional entitlement to gather food from their own country taken away, but that question was not raised. 32] The question alluded to by Brenna J was answered five years later when the High Court of Australia decided Mambo & Ores v Queensland (No) where it rejected the terra annulus doctrine and held that native title had survived European settlement. 34] One consequence of this has been that traditional fishing rights have been re-legitimated. In Yawner v Eaton,[35] the accused, a member of an Aboriginal community in Queensland, had killed two crocodiles according to traditional custom. He was charged under the same Act used against Walden - the Fauna Conservation Act 1974 (SLD) sis(1). The High Court held that, following the Mambo decision and the subsequent Native Title Act 1993, the traditional hunting and fishing rights of Adoringly people was recognizes. I en Fauna conservation Act 1 extinguish that right and therefore the charges against the accused could not stand, as he had not done anything wrong; he had merely been exercising his legally recognized cultural rights. The recognition of native title rights has been pivotal in providing greater sensitivity to aboriginal cultural rights and practices. This is seen in the hunting and fishing cases and in the ongoing reform activity in this area with various commendations for greater recognition of traditional or customary practices in legislation relating to management of fisheries and fauna in Australia. 37] Generally however, the Australian Law Reform Commission has considered and rejected the creation of a separate cultural (for migrants) or customary (for indigenous Australians) defense. [38] The Commission recommended that cultural factors be taken into account in sentencing to determine if any mitigation was appropriate. [39] Culture and Criminal Defenses A cultural defense The creation - and elimination - of cultural offenses is a matter that is politically insensitive and often requires a political solution.

A cultural defense, on the other hand, can be developed Judicially. However, there are several obstacles to the development of a cultural defense. It risks fragmenting the law and resulting in unequal treatment of individuals. As Coleman warns: While the cultural defense is consistent with 'progressive' criminal defense philosophy which advocates that Justice should be as individualized as possible, it must be balanced against the risks of dangerous balkanization of criminal law, where non-immigrant Americans are subject to one set of laws and immigrant Americans to another. 40] Too much emphasis on a cultural defense threatens the emotional security of members of both the dominant and minority culture by accentuating differences and creating greater alienation and disharmony within society. [41] There is also a risk that it may legitimate discriminatory practices against women and children,[42] who often do not have a say in determining cultural norms. [43] Culture is a dynamic concept, which evolves over time and adapts to different influences from within and without.

However, immigrants or diasporas communities, when asserting their ultra identity, tend to have a point of reference that is fixed to the time of the first wave of emigration or dispersion: The public/private split in Indian diasporas communities has resulted in a version of Indian (often Hindu) culture being maintained that is static and rigid. As Shaming Ads Disgusts NAS argued, ten tattletales AT Inlays long settled In ten us nave Tropez In time, even as India has changed. They tend to stick to the older picture of India. 44] While cultural norms and practices evolve as part of the natural process of modernization in the country of origin, migrant and diasporas communities tragically adopt or reject different aspects of their cultural identity. Practices that are no longer condoned, or have been outlawed in their original homelands, risk being championed in their adoptive countries under the guise of a cultural defense. Proponents of the cultural defense have argued that it may be used as a 'mitigating defense' or partial excuse.

This suggests a kind of compromise position, which, while superficially attractive, is not altogether desirable. The mitigating factor in partial excuses is generally a type of character weakness or flaw, as seen in partial excuses like provocation and diminished responsibility. The former is based on loss of control, generally due to emotions of anger or passion; it is recognition of 'human frailty. [45] The latter is based on a deficient mental state and is recognition that the accused is not 'normal' or fully capable of being held personally responsible. It has been referred to as the 'half bad, half mad'[46] defense.

To treat the cultural defense as a partial defense risks degrading the culture of the accused; it likens the culture to a human weakness or deficiency, suggesting that the culture of the accused is inferior to the culture of the majority. A preferable approach is to encourage a culturally sensitive interpretation and application of existing defenses. The experience with the development of the 'battered woman syndrome' defense by feminist scholars provides some valuable lessons. [47] Historically, women who killed their abusive partners and claimed self defense rarely succeeded in their defense.

One of the reasons was because the law required the killing in self defense to be a reasonable response and in most cases involving abused women who killed their partners, courts found the response to be unreasonable. Feminist scholars argued that courts were using a male standard of reasonableness for aggression, which did not encompass a battered woman's response. When evidence of 'battered woman syndrome' was admitted, Judges and juries were able to evaluate the response from an alternative perspective and in some cases were able to hold that such response was reasonable. 48] 'Battered woman syndrome' was not proffered as a separate defense, but was instead used to educate Judges and Juries of alternative realities in order to allow the existing doctrines to be applied fairly to battered women who kill. 49] As leading Australian scholars in the area explained: BBS, and other expert evidence concerning battering and its effects, were originally developed in order to extend traditional legal doctrine to the kinds of life experiences likely to be faced by women. It was not, as we have indicated above, intended to develop a special defense or pleading for battered women.

It is to be hoped that there will come a time when community and Judicial understandings of domestic violence as a phenomenon are sufficiently informed and sophisticated that expert testimony Is not necessary Tort ten Taller AT Tact to realistically undersea n which women's defensive force might take place. [50] Theorizing about criminal defenses and culture no ten context The dominant theoretical framework for the analysis of criminal defenses is found in the distinction between Justification and excuse.

While this distinction was critical even two centuries it is in the last thirty years that it has come to the forefront of criminal law discourse. [52] This distinction provides a principled method of accommodating cultural contexts in criminal defenses, without distorting general norms or threatening established legal and political order. A separate issue that arrant some theoretical discussion relates to the 'reasonable person' test. This is often the benchmark for Judging the criminal culpability, and even civil liability, of individuals as it sets an objective standard that society expects of individuals.

The problem is that what is objective and what is reasonable are largely determined by our cultural filters, and therefore it is critical that the reasonable person be sufficiently attuned to different cultural perspectives and norms. Justification and Excuse A Justificatory defense arises where the conduct of the accused is sanctioned by society and the legal system. The classic example is self-defense. A person who kills another in self-defense is Justified in doing so.

The killing in self-defense is not viewed as a wrongdoing by society; a Justificatory defense thus negatives wrongdoing. The accused escapes liability because he or she has done no wrong. An accusatory defense arises where the accused has committed a wrongdoing, but under such circumstances that no blameworthiness can fairly be attributed to the accused. The classic example is mistake. A person who mistakenly believes he or she is shooting at an animal, but instead kills a human is not guilty of murder. [53]

The killing is viewed as a wrongdoing by society, but the accused escapes criminal liability because no blameworthiness can fairly be attributed. There are several theories of excuse, variously based on character,[54] capacity, [55] motive;[57] common to all is the underpinning of the retributive theory. The question should be whether or not the cultural factors paint a picture of the accused - visa-¤-visa the wrongdoing - that shows a person with a character that deserves punishment, or a person who did not freely choose to commit a crime or whose motive explained his or her conduct.

By placing cultural defenses within excuses, a balance can be maintained between preserving the established norms of society and treating individuals from different cultures fairly. It avoids the pitfalls of the 'balkanization'[58] of the criminal law, as excuses do not modify existing norms nor create precedents, in the sense that Justificatory detentes 00. 1 J It snows respect Tort Monolinguals Ana toner cultural norms Dye recognizing that adherence to or guidance by one's cultural values is not a stain on one's character.

By dealing with the Justification of punishment within the criminal law itself, rather than outsourcing it to sentencing discretion, it also enhances the oral standing of the criminal Justice system by being true to itself: To blame a person is to express a moral criticism, and if the person's action does not deserve criticism, blaming him is a kind of falsehood and is, to the extent the person is injured by being blamed, unjust to him.

It is this feature of our everyday moral practices that lies behind the laws excuses. Excuses, then, represent no sentimental compromise with the demands of a moral code; they are, on the contrary, of the essence of a moral code. [60] Reasonable Person The ultimate determination of criminal and civil liability often turns on an objective tankard based on the reasonable person. [61] The reasonable person is based on the notional, reasonable person in society, classically described as the man on the Clamp omnibus. [62] This phrase was originally used at the turn of the nineteenth century when Clamp was a locality populated by the working class, thus making the reasonable person of the law a white, working class, English, Christian male. Even under a more normative approach, where the reasonable person is meant to reflect the community expectation,[63] it is inevitably the Judge's or Jury's own perception of what constitutes reasonableness that applies. 64] The Judge's own cultural background and value assumptions become the default benchmark for the laws standard of reasonableness.

A major problem with using the reasonable person standard is that too much emphasis is put on 'person' rather than 'reasonable'. [65] So debate goes on as to whether the reasonable person should be male or female, culturally neutral or culturally specific, young or old, intelligent or mentally impaired. The man on the Clamp omnibus is one day the young girl on the ETC bus,[66] then the old man on the Wishes MR.,[67] and then the middle aged woman on the Annotation tuck tuck. 68] This focus on the actual make-up of the person - the "anthropomorphism"[69] of the reasonable person - generates unnecessary conflict and tension, diverting attention away from the real question of moral blameworthiness or accountability. This fictitious creature, arbitrarily attributed with some, all, or none of the characteristics peculiar to the actual individual on trial then becomes the 'ideal' by which the actual individual is Judged.

A comparison with this reasonable person is made; if the accused measures up to this reasonable person, he or she is blameless. Instead, it is suggested that the reasonableness of the actual individual's behavior be directly investigated. Has the individual, taking into account personal characteristics, including culture, behaved reasonably? Is his character visa-¤-visa the wrongdoing sun Tanat moral Lamentableness can Tally De attributed Nils Sis judgment that has to be made normatively with Justice to the individual being the focus.

Here, sensitivity to the cultural practices and norms of the individual is critical and Judges should not be captured by the political or mainstream mood of the moment. Cynthia Lee provides a compelling illustration by demonstrating how Americans at one time believed slavery to be reasonable; now, they generally agree that it is unreasonable. [70] Americans in the sass thought it was reasonable to arbitrarily intern Japanese Americans; now most do not share that belief.

Justice and fairness are ideals that should rise higher than the temporal interests of the majority culture or community. A poignant question put by Lee is whether or not future generations will disagree with the current generation's apathy towards the indiscriminate incarceration and human rights violations of Asians and Middle-Easterners following the terrorist attacks of September 11. [71] If we lack cultural sensitivity in our construction of reasonable behavior in matters of criminal liability, it is equally likely that history will Judge us poorly.

PART II Provocation Provocation operates as a partial defense to murder, reducing the charge to manslaughter (Australia) or culpable homicide not amounting to murder Its practical effect is to reduce the punishment imposed on the accused. The rationale behind the defense is that a person who kills as a result of provocation is not as morally blameworthy as a person who kills in cold blood and therefore should to be labeled a murderer nor be subject to the higher penalties for murder. 73] The defense is less significant in Jurisdictions where discretionary sentencing is available for murder, but remains highly relevant in Jurisdictions where there is a mandatory penalty for murder, including death. [74] The law on provocation is roughly the same in the two Jurisdictions under discussion. The essential elements are that the accused must have lost control as a result of the decease's provocation and the provocation must have been so grave that an ordinary person in the position of the accused could also have lost control ND killed.

The defense thus requires examination of loss of control at two levels - one subjective, questioning whether the accused actually lost control; and one objective, determining whether the ordinary person, similarly provoked, could have lost control. The problem is in constructing the ordinary (or reasonable) person for the objective test; how much of the personal characteristics, including the cultural background,