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Crime and Mind Lec 9.doc

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Crime and Mind Lecture 9 November 10, 2011 Essays -You don’t have to start with a vacuous opening statement. Avoid them. You don’t have to give the url for online journals. If you are citing the Criminal Code, (s.16 for example) you don’t need to use page numbers. Just put Criminal Code of Canada, s.16 in the in text citation. -If you are citing a website itself, you do give the url. -You can use older sources. But if you are using something about the law or research, be careful. -Remember, you cannot get a top mark by writing an essay in which you read a number of sources and endorse an argument. You need to have an original argument. Ait isn’t the fact that you have an opinion. Ask yourself, what part of the thesis (the part that you are bringing to the table)… Go out on a limb. What part of thr arguments other people make do you not buy. It’s about the way you conduct the argument, it is about the way you conduct the argument. Do not ignore opposing views and make sure to take them on. This isn’t the same as a pros and cons issue. You are arguing for a thesis, which may not be black and white, it may be more nuanced. Having decided what your position is, make a clear argument for it and support it. Take opposing viws and rebut them. -Remember, a thesis statement is the position you are arguing. A thesis argument is we should repeal infanticide law because…. Don’t have mystery pieces in the thesis. Be clear. Part of what you conclude should be summarized in the thesis. -Don’t use rhetorical questions. -Remember to use gender neutral pronouns. Write in the plural. (Except if you are arguing about BWS, you can keep it gendered and she can be the victim and he can be the abuser. Cultural Defence -We will talk about when psychiatry comed into the picture. A cultural defence means when someone from a culturally distant environment has moved to a dfferent jurisdiction. They do something that fits with their own cultural circumstances but not in the new place. -There are broad political arguments for the cultural defence that say it is insultng to another culture to act as if one should already know that a particular act is wrong. This is to suggest that their whole culture has moral wrongs that everyone should know about which is an insult to mutuculturalism. -The other says its dangerous to take multiculturalism in the law and thus it is objected to. -The question of intent is important. Those who believe in a cultural model say just because someone has the requisite intent, and ignorance isn’t an excuse, suppiorters say that the multicultural environment says something about them having a lower blameworthiness. To see them as just as blameworthy as someone who just doesn’t feel guilty when they break the norms of their own culture is misconstruing something about blame and intent. Traditionists say no, ignorance is no xcuse and we should stick with traditional dioctrines and the doctrines say they should be punished. -You find that there isn’t a way of getting to what the court does with legal doctrine alone because it fudges the issue by coming up with a way of giving a lenient sentence, regardess of whether there is a basis for it. The law wouldn’t get you there. We highlighted 2 cases because they exemplify this strange way in which if you use the cultural information with the law, you would get to a conviction or exoneration, buit the sentences didn’t seem to correspond. The guy who put pepper in his kids wounds clearly had the intent to cause the injury that we would regard as unpleasant. He is doing what is approved in his culture and thinks he is doing the right thing. However,he is intending what we view as objectionable. The Ethipopian man with withcraft shows 2 things that can happen if you follow the legal reasoning. One is that the jury should interpret self-defece within his framework. However, this wont fly in jurisdictions that have a narrow standard of self- defence and they intend you to look at the host culture only. The other way is if he says it’s a mistake of facts, he no longer beleved in witchcraft. So you can get to a complete acquittal. But this isn’t what happens. The courts come to a middle ground with a lower sentence or verdict. -In Canada, we have had cases like this that end up with fudging because we have a law that encourages the court to be sympathetic to cultural differences (particularly with Natives) and thus you have a middle ground. However, often they reject the cultural evidence and you get a different verdict. In this context of situations where you claim the relevance of cultural arguments (R. v. Li), where he argues a kind of cultural provocation. We also have R. v. Batiste which is a child abuse case where the Trinadadian parents over punish the kid by Caadian standards, though it is accephrough the traditional routes ted in their culture. But the court rejects it. The courts have been fairly firm that this shouldn’t be taken into account. -Thus there is similarity in Canaa and the US> IF it doesn’t work to get to leniency through the traditional routes… The Rational Actor thinking doesn’t help much because it is about a universal rationalism we all face. This doesn’t get to culture because it means we have certain cultural goals and means and such, -If we ignore psychology that looked at certain people as inferior and look at it now. Psychology is about learning being a basic mechanism that is the same for everyone. However, culture come in to where you learn. -Subjectification approaches ignorre the psychology and look at culture as the frameworks for why people are who they are. -What we learn and internalize shapes who we are and how we think things. The rational theories are wrong because they miss how people are different. The real heart of this comes from the understanding of how deeply we interpret and understand our cultural frames. The understanding of how deep these cultural frames go is what creates the sympathy. This creates a problem in law in that the more we understand the degree to which we think feel and act through internalized cultural frames, the less we have confidence that we can secure our moral and legal judgements. -If we start abandoning the notion that we have figured out the moral norms, we are undercutting the sense to… it all just seems like socialization. 17:00. Thus we end up in an unresolvable dilemma. It doesn’t matter whether you get there through subjectification, or psychology or whatnot. Mental Disorder -We will look at Kimura and Chang. Kimura -She was a Japanese woman. She attempted to drown herself and kids when she found out her husband has a mistress. She succeeded in killing the kids but not herself. At this time, the practice of killing the kids and yourself in these circumstances isn’t nknown in Japan. It isn’t approved, but it is seen as something that people do in an understandable way. It is seen as something part of the culture in an extreme circumstances. IT is seen as a mentally abborant reaction but one that makes sense to them. It is called Heiakonjunshi. Part of what makes it understandable is that it would be seen as cruel to leave your kids without a mother. What happens in Japan, is that she wouldn’t escape a charge, but would be treated leniently. Japan adopted elements of Amrican law. She would be convicted of involuntary manslaughter. In this case she entered a ple of voluntary manslaughter, so she pled up. The prosecution was concerned that she would succeed in temporary insanity thus the allowed the plea. It is tempting to believe that Westerm psychological, legal, and political concepts would help us understand what is going on here. However, this isn’t true. You have to understand this from a cultural frame as a mental disturbance which shoud be understood as a distinctly Japanese phenomenon. They argued it should be seen as psychological but directed by culture. Chen -He discovered his waif was being unfailful, and beats her to death. He is Cantonese. This is very controversial cultural defence case. Chen’s lawyers made the argument that having a wife being unfaithful is an especially disparaging thing. In China, he wouldn’t have reacted this way because he would have cultural and family support. However, because he is here, he doesn’t have the cultural and family support, thus, he reacted this way. If this was in China, his wife would have been ostracized. In his case, it is kind of straight forward because the defence isn’t claiming a psychological distress to explain the actions. They are really just arguing a cultural stress that led to it. Whereas in Kimora, you have to understand it in a cultural frame to understand the whole action. This created a huge outcry from women and victims groups. They say what about the women in the culture who are already vulnerable. Because of this crucial aspect that the ictims in the Chen case is an especially vulnerable member of the marginalized community, you see an alliance of women, victims, and such groups against this finding sentence. -If you are thinking about the psychology and psychiatry part, you can argue that it doesn’t challenge a western psychiatrist in the case. They may be able to testify about this. However, in the case of Kimura, a western psychiatrist or psychologist cant understand this koshenju, and this is a particular kind of disturbance. You can push away at how far the western concepts are relevant to understanding her action. -Next we will talk about different ways in which the relationship between mental disorder and culture and psychiatry can be conceived of. -There is literature that talks about the risk of misdiagnosis of people from other cultures. You have to understand their behavior within a cultural frame or you can risk makig a wrong diagnosis. They may do things that are culturally normal, but that seem like they are disordered and thus there is a possibility of overdiagnosing people. Certain groups are often misdiagnosed (black, native, and latinos). There are behaviors that can be focused on: 1. Grieving behavior- if you come from a cultur where grieving is limited in expression (Britain) and other cultures express it more, a culture clash can exist. Is the grieving behavior sign of a depression, or is it a normal expression. 2. Religious behavior- for instance, in certain parts of the world, Christian religious experiences are expressed in very close experiences with God (speaking back and hearing him talk) and other parts of the world don’t see this. This behavior can often be seen as similar to psychosis. Thus, when dealing with patients in these environments, there is a tendency to misdiagnose. -Thus psychiatrists and psychologists have to built up cultural knowledge. They don’t have to change their view of mental illnesses but they have to understand these cultures. -Thise mistakes can be relevant to the law because if you overdiagnose, you may diagnose someone with a mental disorder because you don’t understand their behavior in the cultural context. The reverse can happen and people can underdiagnose. -In Canada, Aboriginal Canadians are important and lots of talk has surrounded around whether we overdiagnose them. Clare Brant wrote about Aboriginal misdiagnoses and he said we have to understand their cultural norms in order to pr
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