Difference between revisions of "Cultural Defense"
| Line 10: | Line 10: | ||
= Country Specific Applications = | = Country Specific Applications = | ||
| + | |||
| + | ==Australia== | ||
| + | '''R v. Dincer, (1983) I V.R. 461''' - In this case an Australian Justice reduced a Turkish Muslim immigrant’s charge from murder to manslaughter. The homicide was triggered by the father learning of his daughter’s alleged extramarital conduct. The judge concluding that because of his cultural differences, and the tradition of honor killing in his culture, a defense of provocation was allowed. | ||
| + | |||
| + | ==Germany== | ||
| + | |||
| + | ''' Case ''' - In 1994, the Federal Court of Justice of Germany (Bundesgerichtshof, BGH) changed longstanding case law that permitted the cultural defense to be used to reduce murder to manslaughter.<ref>Kroslak, Daniel, Honor Killings and Cultural Defense (with a Special Focus on Germany) (June 19, 2009). Míľniky Práva v Stredoeurópskom Priestore, 2009 ; Islamic Law and Law of the Muslim World Paper No. 09-71. Available at SSRN: http://ssrn.com/abstract=1422503</ref> | ||
==United States== | ==United States== | ||
'''People v. Kimura''' - In People v. Kimura, the Japanese mother of two children attempted to commit suicide after learning of her husband’s infidenlity. She tried to drown herself and her two children. Her children died, but she survived. She was charged with double murder. The prosecutor was inundated with letters from Japanese Americans explaining that in Japanese cultural it was considered a much graver crime to commit suicide and leave two children abandoned and without a mother. The Attorney General reached a plea bargain with Kimura in which she was sentenced to one year in prison and five years supervision. | '''People v. Kimura''' - In People v. Kimura, the Japanese mother of two children attempted to commit suicide after learning of her husband’s infidenlity. She tried to drown herself and her two children. Her children died, but she survived. She was charged with double murder. The prosecutor was inundated with letters from Japanese Americans explaining that in Japanese cultural it was considered a much graver crime to commit suicide and leave two children abandoned and without a mother. The Attorney General reached a plea bargain with Kimura in which she was sentenced to one year in prison and five years supervision. | ||
| − | = | + | =Notes= |
| − | + | <referenes/> | |
Revision as of 00:28, 3 November 2010
Contents
Background
Some courts have recognized that a defendant’s responsibility for a criminal act may be diminished because of cultural differences. This so called “Cultural Defense” is usually argued when the defendant is in a minority group that holds normative values that conflict with society at large. The controversial defense is generally raised in countries with immigrant populations.
The cultural defense is typically presented in one of two ways. First, it may be used to demonstrate that the defendant failed to have the requisite mental state required for the crime or that a mental state existed which would mitigated the crime. For instance, the cultural defense may be applied as partial defense to homicide by demonstrating that an act of provocation reduces a crime from murder to manslaughter.
The cultural defense may also be presented by arguing that because of the defendant's cultural differences, they made a mistake of law, were mentally incapable of commiting the crime or believed the act was required in self-defense.
Even where the cultural defense is inadmissible as an affirmative defense to a crime, it may be argued as a mitigation of sentencing.
Country Specific Applications
Australia
R v. Dincer, (1983) I V.R. 461 - In this case an Australian Justice reduced a Turkish Muslim immigrant’s charge from murder to manslaughter. The homicide was triggered by the father learning of his daughter’s alleged extramarital conduct. The judge concluding that because of his cultural differences, and the tradition of honor killing in his culture, a defense of provocation was allowed.
Germany
Case - In 1994, the Federal Court of Justice of Germany (Bundesgerichtshof, BGH) changed longstanding case law that permitted the cultural defense to be used to reduce murder to manslaughter.[1]
United States
People v. Kimura - In People v. Kimura, the Japanese mother of two children attempted to commit suicide after learning of her husband’s infidenlity. She tried to drown herself and her two children. Her children died, but she survived. She was charged with double murder. The prosecutor was inundated with letters from Japanese Americans explaining that in Japanese cultural it was considered a much graver crime to commit suicide and leave two children abandoned and without a mother. The Attorney General reached a plea bargain with Kimura in which she was sentenced to one year in prison and five years supervision.
Notes
<referenes/>
- ↑ Kroslak, Daniel, Honor Killings and Cultural Defense (with a Special Focus on Germany) (June 19, 2009). Míľniky Práva v Stredoeurópskom Priestore, 2009 ; Islamic Law and Law of the Muslim World Paper No. 09-71. Available at SSRN: http://ssrn.com/abstract=1422503
