Week 5: Cultural defence Flashcards
Sarah song On the cultural defence
Sarah song. Believes if we push this too far we undermine democracy.
She also has clear ideas as to why we should look at this critically. And negative assumptions about gender.
What is the cultural defence?
- A cultural defence maintains at a person socialized of a foreign culture who regularly conducts themselves as their norm culture.
- These individuals should not be held fully accountable for the conformance to the law then this person is except so long as their actions are aligned with their cultures.
- Its all about law, not cultural norms like carrying religious symbols.
Objections to cultural defence:
- Law should be applied in a culturally neutral matter as it treats the defendants as more than equal and it diminishes the rights of the victims.
- It will diminish the deterrent value of existing laws and lend legitimacy to the most brutal kinds of acts.
- Okin says it would further entrench domination of women in patriarchal minority cultures
- can lead to opportunistic defences
- discourages immigrant integration which is essential for social stability and being integrated is about be equal and having equal opportunities.
Alison Renteln on the cultural defence
-It is necessary if we want to remain true to treating people equally before the law.
-Ignoring cultural socialization is not equal treatment, as Canadians are tried based on Canadian socialization
-to obtain a conviction you must prove an act was committed and it must be committed and the state of mind.
-The cultural defence focuses on mens rea (possession of a guilty mind). Their mental capacity, how they were socialized, outside influences can all be used to mitigate punishment.
- It is discriminatory to exclude cultural shit. It is denying the right to a fair trial.
- People have the right to culture under international law
Right to a fair trial – what influenced their behaviour - Mens rea and actus reas need to be taken into account.
