Essay On Culpability And Culture
Culture, Crime and Culpability: perspectives on the defence of provocation
Kumaralingam Amirthalingam(
Introduction
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’s criminal culpability. Occasionally, the accused is in a position of disadvantage as there may be a disjunct between the cultural values he or she is operating under and the cultural values relied on by the court in judging the accused. 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’s community.[1]
The judicial and academic responses have covered a wide range of options, from the creation of a separate ‘cultural defence’ through the modification of existing …show more content…
This is seen in the hunting and fishing cases and in the ongoing reform activity in this area with various recommendations 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) defence.[38] The Commission recommended that cultural factors be taken into account in sentencing to determine if any mitigation was
Kumaralingam Amirthalingam(
Introduction
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’s criminal culpability. Occasionally, the accused is in a position of disadvantage as there may be a disjunct between the cultural values he or she is operating under and the cultural values relied on by the court in judging the accused. 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’s community.[1]
The judicial and academic responses have covered a wide range of options, from the creation of a separate ‘cultural defence’ through the modification of existing …show more content…
This is seen in the hunting and fishing cases and in the ongoing reform activity in this area with various recommendations 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) defence.[38] The Commission recommended that cultural factors be taken into account in sentencing to determine if any mitigation was