Crime and Mind
November 3, 2011
-This week we are talking about the notion of a cultural defence. Next week we will talk about it in relation to psychiatry.
-Now we will talk about the notion of a cultural defence itself without the notion of a mental disorder.
-Choi talks about important American cases. This isn’t just an issue confined to the US, but imn the context of the US,
their legal dabates tend to produce a kind of clarity you don’t see in other places.
-The two most famoua cultural defence cases (talk about it next week) have notions of mental disability. However, there
are others that don’t.
What is the idea of cultural defence
-Someone who has recently immigrated, who has been socialized in a culturally distant environment, where things are
different, has moved to another cultural jurisdiction. They commit an act that is accepted or encouraged in their home
culture, but falls foul of the law. Should they be offered a defence in this case. Can they talk about how they were raised
somewhere different, and over there they can do this, etc.
-So far, in the common law jurisdictions, they don’t accept this.
-In 1994, the government considered it, but it was rejected.
-In Canada, as in the US and elsewhere, you can’t offer a cultural defence. However, in many cases the ocurt does
accept some cultural evidence. This becomes complicated. Usually, there is a logical way of thinking about the cultural
revebamce of the wvidence for a standard non cultural defence. Sometimes, it can be concluded that if the court accepts
it, it can lead to an acqiottal. Other, times it can be ruled as irrelevant.
-In the US, the courts find some way that is not accepting or rejecting the evidence, it doesn’t accept a cultural defence. It
somehow, (by prosecution changing the charge, jury having a lower verdict, etc) it finds some way of including that the
cultural evidence is relevant. You can argue that this isn’t wrong. They may recognize an important reality, though you
cant get to it in ordinary reasonable analysis.
-So the law finds a way of being sensitive tp this cultural evidence without there being a clear cut lega basis for it.
-When you think about a formal defence, there are arguments for and agaist it. There are arguments for it about abstract
legal and political principles, they argue that without a cultural defence you are undermining our multicultural project. Not
because it is wrong to claim that people with different cultures have to assimilate to the aw in our country. However, there
is something degrading about assuming that someone who has moved here would know what is or is not wrong. The
argument against that is that it would undermind multiculturalism because different peop;e with different bakgroynds will
be treated different, thus everyone isn’t treated fairly. Thus, it would be a threat to multiculturalism.
-Another argument against it is a principle called the administrative supremacy of the law: there’s a doctrine we hold to
that within the sphere of the law, the law is administratively preeminent. If a court decided it has to summons the PM to
appear at a hearing, the PM can only appeal that within the lega system. He could appeal that to the appeals court, but he
can’t make a decision outside the legal system on his own. Thus, the executive or legislature cant trump the law wthin its
sphere. Thus, a mcultural pbject would be claiming a political objective (multiculturalism) over the law. So this is an
-For us, the most interesting arguments are about intent. Those who oppose the cultural defence argue that (traditionalists
who don’t want to change) have a winning argument. They say we have a doctrine that ognorance of the law is no
excuse. The intent requirement is that you intend to do the thing that the law prohibits. You don’t have to feel guilty, or
know that it is illegal. All the law cares about is whether you intended to do it. The law says we will tell you what is
acceptable and its not for you to tell us. Thus, we have a doctrine about what someone has in mind, that solves the
problem and rules out a cultural defence. There are circumstances where people break the law believing that they weren’t
breaking the law or don’t know, and its usually over a regulation or technical matter, etc. But when it comes to assault,
sexual assault, etc. It isn’t normally raised that gnorance of the law isn’t excused. But it is there.
-Those who advocate the defence say that when you go through the things involved in understanding intent law and what
counts as intent, it has been too limited and needs to be expanded because there is something wrong with failing to
understand that someone in a cultural defence situation it less blameworthy.
-If someone is a religious very strict and traditional and believes that they should spank their kid with a strap. They may
not fee; guilty about doing it, but they know it is illegal;. However, If you vome frim a distant place where this isn’t
criminalized and where ist is a appropriate, it is unfair to say they aren’t less blameworthy. It misses something about
blameworthiness. It ought to be part of what we understand about blamewortiness. If someone is here for a long time, you
can expect them to become acclimatized to the law, but when they first get here, they don’t.
-The crimes of these kinds usually happen in the context of interpersonal violence. There are other issues (family honous,
what is seel as necessary self0defence and retaliation) but mostly they are about what is acceptable in terms of the use of
violence with an interpersonal someone.
-In the Choi article, where these are family vilolence, to admit a cultural defence is a problem. On the one hand, you want
to be understanding of their community and such. On the other hand, (critics) you are abandoning the protection of the
most vulnerable members of tat community, often the wives and kids.
-Thus, we have 2 cherished concepts: Understanding the sutiation of marginalized community ,aand protecting the
situation of those in the community that are less powerful.
Cases (with no mental disorder function)
1. * A case of a Nigerian insurance salesman who was accused of child abuse. He chastised his kid physically and
caused abrasions and rubbed pepper in them. He claimed this was accepted in his community. He was given
probation (a very low sentence) for this kind of child abuse.
2. A Vietnamese family (they considered charging them with child abuse) cuz the kid has abrasions. They were
using a folk remedyfor headached, which involved rubbing the head of a serrated coin, which produced abrasions. They had an explanation, so the charges were dropped.
3. A Man from Louse living in California was charged with kidnapping and rape. In his group, marriage is sealed by
a mock abduction andrape and sees as part of a consensual rape. So he has to abduct her, she has resist the
rape, etc. This is part of the marriage process. In this instance, the coirt accepted that both sides are genuine.
They accepted that she was genuinely resisting (which she ws) and he tho