THE ROLE OF “CULTURA NORMA” AND “COUSTUME” IN THE EVOLUTION OF CRIMINAL LAW
The term ‘cultural norm’ is derived from Latin word “cultura” and “norma”. A cultural norm codifies acceptable conduct in society; it serves as a guideline for behavior, dress, language. The word ‘custom’ is derived from an old French word “coustume”. Custom is a habitual course of conduct observed uniformly and voluntarily by the people for a long time. Custom occupies an important place in balancing human conduct in almost all the societies. It is one of the oldest sources of law-making. But with progress of the society, custom gradually depreciated, and legislation and judicial precedents become the main source.
Every country is a culturally diverse nation, composed of persons from various nationalities and races. This rich mix of culture and customs has resulted in a "melting pot" of values, many of which have been incorporated into their legal system to reflect society's values.
IMPACT OF CULTURE AND CUSTOMS ON CRIMINAL LAW
In recent years, the courts have encountered a "clash of culture and custom" issues more frequently. Culture and customs affect criminal law in two keyways. First, culture, customs and crime symbiotically define each other. Second, culture explains which courtroom narratives will be successful, and which will not.
Crime helps to shape culture and customs because crime has immense mobilizing force. A community can become quickly galvanized to support an issue or politician as a result of a specific criminal act or a generalized fear of crime. The criminalization of a given form of conduct, for example, the dumping of toxic wastes in the environment, is both a sign of how accepted the prohibition has become within the culture, and a catalyst to further cultural change. The moral wrongness of environmental dumping is exhibited and communicated by the fact of its criminalization.
Another example of the interaction of culture and crime involves the transfiguration that have occurred in rape law since the emergence of the feminist movement. Traditionally, rape was defined as a privileged rights of male suspects over the rights of female victims. Rape laws required female victims to resist their attackers and marital rapes were exempted from prosecution. The feminist movement intervened and succeeded to transform cultural perceptions of rape. The new cultural norms, combined with advocacy from feminist groups, compelled lawmakers to redefine the crime of rape, reducing the force and resistance requirements, and eliminating the marital exemption.
CASES WHERE CULTURAL FACTORS ARE CONSIDERED
People v. Kimura
On January 29, 1985, Fumiko Kimura, a young Japanese woman, took her children on a bus ride to the beach in Santa Monica, California. She walked into the cold water of Santa Monica Bay, carrying her two young children. Ms. Kimura found out that her husband had a mistress. She wanted to get away herself of the shame and humiliation of her husband's affair. Tragically, the children drowned, but Ms. Kimura was rescued from the surf by passersby. She was charged with first degree murder in the deaths of her two children. She attempted ‘oya-ko shinju’, parent-child suicide. Parents who commit oya-ko shinju take their children's lives to save them from future humiliation and disgrace. A mother who commits suicide and leaves her children behind is considered cruel and merciless in Japan.
Almost, 4000 members of the Japanese community signed a petition to the Los Angeles County district attorney, asking the prosecutor to apply "modern Japanese law" to the case. Such an application would lead to a charge of involuntary manslaughter. The prosecutor refrained from applying "modem Japanese law". Ms. Kimura’s defense attorney stated that no cultural defense is recognized by U.S. courts, and argued that Ms. Kimura's behavior was psychological in origin, although it was directed by her culture. Kimura received five years' probation, one year in the county jail, and intensive psychiatric treatment. The district attorney's office agreed to the plea bargain because the psychiatric evidence suggested that Kimura's state of mind at the time of the tragedy was less than that required for a murder conviction. Therefore, Kimura's charge was commuted, based on judgment of her lack of sanity during the commission of the crime, and not on cultural factors.
People v. Moua
Hmong tribesmen in the mountains of Laos practice a form of marriage called zijpoj niam, or marriage-by-capture. Zijpoj niam is like an elopement and is an accepted ritual in Hmong culture. According to this custom, a man has the right to abduct the bride of his choice, although he must inform her parents. On the date chosen for the marriage, the man abducts the woman and takes her to his family's home, where the marriage is consummated, and the woman is considered unmarriageable by other Hmong men.
In one case a Hmong man plead guilty to the misdemeanor of false imprisonment. The criminal complaint was filed by his own wife(victim). He thought that he had received the proper cultural signals from the victim, signifying her agreement to the marriage ritual. The prosecutor and the judge believed that both the defendant, thought the woman wanted to participate in the marriage ritual, but the woman, genuinely did not give a proper consent. However, the prosecutor asserted that the woman had no right to be kidnapped or raped. After considering the evidence and reviewing a doctoral dissertation on Hmong marriage rituals, the judge sentenced the defendant to ninety days in the county jail. The defendant was also fined $1,000.00, with $900.00 allotted to the victim as reparation. It is noted that the court considered the cultural aspects of the defense's argument in determining the sentence.
SHOULD A FORMAL CULTURAL DEFENSE BE RECOGNIZED
Courts have refused to accept cultural differences, as an excuse for ignorance of the law. Considering a formal cultural defense to a criminal charge would create an exception to the "ignorance of the law is no excuse" maxim of criminal law. Moreover, such a defense would be available only to a special segment of the population. However, some recognition of cultural factors in criminal charges and sentencing is undertaken by the courts, although it is unclear as to what role the cultural factors play in criminal adjudications.
Reasons for Recognizing a Formal Cultural Defense
In determining appropriate sanctions against a defendant, the court must focus on the defendant's culpability for a crime. Every crime requires actus reus, as well as mens rea. The cultural defense goes to the culpability of the defendant's state of mind in committing the forbidden act. The cultural defense would operate formally as an excuse for an otherwise criminal act because the act would be recognized as wrongful, but the actor would be excused because he or she lacked the requisite mental culpability for the crime.
Also, a defendant who is law-abider within his or her own native culture may have committed a criminal act because his or her values compelled him or her to do so. Laws are more effective when individuals internalize the moral values behind the laws. A just legal system should consider the moral dimension of an individual defendant's act.
A legal system that prosecutes an individual for following the dictates of his or her culture and custom means that the individual's culture is inferior. For a community to deny their original culture and custom would affect their self-esteem and identity. It must be noted that, recognition of cultural values must be balanced against the maintenance of social order in enforcing the laws. However, the principles of individualized justice and cultural pluralism require an assessment of the cultural values behind a prohibited act.
Reasons Against Recognizing a Formal Cultural Defense
Even though non- recognition of a cultural defense may seem unfair to a community, recognition of a cultural defense would be unfair to most of the community to whom the defense would be unavailable. Other traditional defenses are available, and courts must incorporate cultural factors into these theories.
The law considers society's present values and moral understanding, and functions as a medium of social instruction. No custom may excuse a criminal act where the effect is unpleasant to the foundational principles of the law itself. Until a custom is accepted by most of the people in a society, and is given effect as law, that custom must yield to the criminal laws of the jurisdiction.
A cultural defense would thus discriminate against the rest of society by giving preferential treatment to a particular community. Thus, subjective beliefs would be considered inhibitive of an individual's ability to know or appreciate the consequences of his or her conduct and would result in putting the cultural belief on trial, rather than the individual. Blame for a criminal act would then be focused on the culture, rather than on the defendant's state of mind.
INDIAN CULTURE AND CUSTOMS v. STATE COMMITMENTS
Indian society remains is mainly rural, and relationships are still rooted in culture, religion, genre, caste, and traditional local customs. One of the major issues in India is caste. On one hand, Parliament enacted the Scheduled Castes and Tribes Prevention of Atrocities Act in 1989, which criminalizes any discrimination against castes of low rank. On the other hand, today caste discrimination remains very much an issue today. While marriages are usually conducted by the families within the same caste, and over the last few years cross-caste marriages have led to a large number of honor killings. Furthermore, there are ample number of exploitative relationships such as bonded labor or sexual harassment which are present in caste relations.
Another example is domestic violence against women. Since the 1960s there have been many acts forbidding dowry practices; this does not prevent the practice from being extended even to castes that did not respect it in the past. Therefore, murders are regularly committed because of the inability to respond to dowry demands. On a case registered under Section 498A, where due to dowry pressure a woman had committed suicide after killing her young daughter, the SC judges described the facts as "another case of two young lives sacrificed and nipped at bud for the demonic culture of demand of dowry."
By establishing these legal acts, the state aims to eradicate these social practices and relationships that are deeply entrenched in local society. Though legal acts do not circulate outside the circle of legal professionals, villagers may become aware of these laws through police activities, media, or by their involvement as a witness in a court case. However, the local practices and relationships of power that have been criminalized by these laws may still be perceived by villagers as part of their "culture", and this may also be used to legitimate caste- or gender-associated relationships of domination. The victims of such abuse must be encouraged to file a case against their oppressors through a local lawyer or through women's rights or caste activists.
A few other brutal practices which still exist today are: -
Female Genital Mutilation (FGM)
It is a partial or total removal of the external female genital using a razor of a blade, with or more often without the use of anesthesia. This ritual is done in the name of controlling a woman's sexuality, which is considered as an essential part of raising their daughters properly, in a way preparing her for adulthood and marriage. It is done to refrain the girls from illicit sexual acts, pre-marital sex, and masturbation. It is also believed to ensure marital fidelity. Persons undertaking FGM will be prosecuted under laws such as POSCO, IPC and CrPC.
“Honor crimes are acts of violence, usually murder, mostly committed by male family members predominantly against female [relatives], who are perceived to have brought dishonor upon the family. A woman can be targeted by individuals within her family for a variety of reasons, including refusing to contract an arranged marriage, being the victim of a sexual assault, seeking a divorce even from an abusive husband, or committing adultery.” Honor killings is not only restricted to female members but is also directed against any member of the family who is presumed to have brought dishonor to the family by his actions. Honour killing is a crime under section 294 to 304, 307,308,120A, 120B, 107 to 116, 35 and 36 of IPC.
FACTORS TO BE CONSIDERED BY JUDGES WHILE DECIDING THE ROLE OF CULTURE OR CUSTOM IN A CRIMINAL CASE
Purpose of the cultural practice
If the purpose of the practice is to subordinate a particular group, such as women, the danger of cultural preemption increases. The prevalence of a particular practice alone does not constitute an acceptable means of proving a "cultural" practice." In many cases, evidence that a particular practice or custom is prevalent, combined with the exoticization of another society, results in mis-categorizing a practice as a valid cultural one, rather than as a means of domination.
Moral culpability associated with the cultural practice.
In Kimura, for example, the purpose of parent-child suicide is to save the child from societal ostracization. In many cases, the moral culpability of the cultural practice is different and depends upon how the purpose of the cultural practice is characterized. Judges should balance the harmfulness of the practice with its purported benefit.
Deterrence/educational value of prohibiting the cultural evidence.
In determining the deterrence/educational value of prohibiting cultural evidence, the judge should evaluate and consider different approaches that promote both the criminal justice system's deterrence and individualized justice objectives. The guilty verdict would give a clear and clean message to the defendant's community that the cultural practice is not valid and acceptable.
Alternative forms of sentencing
Instead of sending an accused to prison, the accused could be sentenced to community service, educating other members of his or her community that the cultural practice at issue is criminal. The increased awareness within the accused's community would reduce the likelihood of commission of such illegal cultural practices in future.
Customs and cultural defense are most widely used to explain a defendant's state of mind or lack of intention to commit a crime, thus mitigating charges or sentences. It is not used to acquit or excuse a defendant from violating a law. Prosecutors may take into consideration the cultural factors in plea bargaining for charging a criminal defendant. Judges may take account of cultural factors in sentencing. Thus, cultural factors may mitigate the punishment for a crime, without analyzing the defendant completely for his or her offense.
Criminal law should be interpreted objectively, and not subjectively, as a cultural defense would allow. The cultural factors of a defendant's criminal behavior must be carefully considered by the prosecutor and the court. However, prosecutors and the bench should be educated about cultural differences, and their effect on a defendant's state of mind, to assure that some consideration is given to a culturally diverse defendant's mental culpability for a crime. It is my hope that these tools will help legal practitioner and juries as they seek to improve our system of criminal justice through their investigations of culture and customs.
See Kenneth B. Nunn, The Trial as Text: Allegory, Myth and Symbol in the Adversarial Criminal Process - A Critique of the Role of the Public Defender and a Proposalfor Reform, 32 AM. CRIM. L. REv. 743, 761-64 (1995)
Kenneth B. Nunn, Race, Crime and the Pool of Surplus Criminality: Or Why the "War on Drugs" Was a "War on Blacks," 6 J. GENDER RACE & JUST. 381, 428-29 (2002).
Kenneth B. Nunn, New Explorations in Culture and Crime: Definitions, Theory, Method, 17 U. Fla. J.L. & Pub. Pol'y [vii] (2006), available at http://scholarship.law.ufl.edu/facultypub/105.
Patricia Wencelblat, Boys Will Be Boys? An Analysis of Male-On-Male Heterosexual Sexual Violence, COLUM. J.L. & Soc. PROBS. 37, 40-44 (2004)
People v. Kimura, No. A-091133 (L.A. Super. Ct. 1985).
People v. Moua, No. 315972 (Fresno Super. Ct. 1985)
Sams, The Availability of the "Cultural Defense" As an Excuse for Criminal Behavior, 16 GA. J. INT'L & COMP. L. 335 (1986)
Sheybani, One Person's Culture is Another's Crime, 9 Loy. L.A. INT'L & COMP. L.J. 751, 762 (1987).
The Cultural Defense in the Criminal Law, 99 HARV. L. REV. 1293, 1294 (1986).
Cultural Defense: Viable Doctrine or Wishful Thinking? 9 CRIM. JUST. J. 87, 88 (1986) at. 102
B.N. Vijayakumar And Ors. vs State Of Karnataka By Dsp, I (2006) DMC 365, ILR 2005 KAR 4690, 2006 (5) KarLJ 16
Ambika Pandit “No new laws for now, it is POSCO and IPC to curb female genital mutilation”. https://timesofindia.indiatimes.com/india/no-new-law-for-now-it-is-pocso-and-ipc-to-curb-female-genital-mutilation/articleshow/65203182.cms
Sanjana, “Cultural Crimes: The Law It Is and The Law It Ought To Be” Legal Service India, http://www.legalservicesindia.com/article/704/Cultural-Crimes.html.
Parul Chaturvedi, “ Honour Killing in India and the need for urgent reforms “ I Pleaders, https://blog.ipleaders.in/honour-killings-india-need-urgent-reforms-new-laws/#Penalties_under_IPC_Indian_Penal_Code
Name: - STEFY MARIA SEBASTIAN
College: - St. Joseph’s College of Law, Bangalore, Karnataka
Class: - 8th Sem, 4th year BA. LLB