Adjudicating culture

MULTICULTURAL JURISPRUDENCE: COMPARATIVE PERSPECTIVES ON THE CULTURAL DEFENCE is a collection of essays written by social science and legal scholars from various countries on the normative propriety, meanings, and implications of what is known as "the cultural defence." Although the concept of the cultural defence may appear to be broad and elusive, a clear and limited dilemma figures prominently throughout this book: to what extent should a court in a criminal proceeding take into consideration a defendant's cultural motivation for the purpose of determining criminal culpability, punishment, or both? With the exception of a few cases, the discussion centres on the treatment of the cultural defence by Western legal systems in situations where the person invoking the defence is a non-Western immigrant or a member of an indigenous minority community. The book's contributors consider a variety of culturally motivated crimes, the most prominent being those motivated by so-called family honour (i.e., when individuals inflict harm on, or even commit the murder of, female family members in response to perceived culturally indecent behaviour). There is also another group of cases concerning practices that contradict the acceptable legal norms of the dominant society (or host country), even though the practices are considered harmless, or requisite, according to the cultural norms of the minority community (or country of origin). Examples of such situations include the Sikh who refuses to remove his turban while riding a motorcycle, despite regulations that mandate the use of a helmet; the Muslim imam who faces a charge of criminal discrimination in the Netherlands for stating in a televised interview that homosexuality is a disease; and even cases of adults who are prosecuted for spanking or having sexual relations with children-all in compliance with their own acceptable cultural norms. The interrelationship between culture and the criminal justice system is discussed at length with respect to the cultural practices of certain communities, including the Romani in Spain (i.e., cases of vengeance, the effect of Romani marriages, trespass, et cetera)," the Aborigines in Australia (i.e., the imposition of payback on the wrongdoer and its effect on criminal proceedings)," the Chinese in the United States (i.e., honour-motivated criminal acts related to "loss of face"), as well as cases in South Africa, where the use of witchcraft has led to murders.