When laws clash with culture
JAMES SPIGELMAN
April 16, 2010

Sexism in the European cultural tradition has been attacked on a broad front, including violence against women. However, there are important racial, ethnic and religious minorities in Australia who come from nations with sexist traditions which, in some respects, are even more pervasive than those of the West.

Violence against women is significantly greater in some social groups, whether or not it is based on cultural tradition. This may well involve conflicts between values that are difficult to resolve.

Clearly, on the criminalisation of physical violence the majority culture is not able to compromise. However, questions arise about enforcement and sentencing. It is difficult to know where to draw the line in cases where policies underlying these laws conflict with other policies recognising the respect that should be given to minority cultures.

This has become most acute in the Australian context in terms of the indigenous community, most clearly in the Northern Territory intervention triggered by revelations of physical abuse of women and children, mainly girls.

I take heart from the observations of Mick Dodson when he said: ''We have no cultural traditions based on humiliation, degradation and violation . . . Most of the violence, if not all, that our brittle communities are experiencing today [is] not part of Aboriginal tradition or culture.''

Throughout Europe significant issues have arisen, particularly for Islamic and south Asian communities, extending to honour crimes and forced marriages. As we have significant communities from the Middle East and south Asia in Australia, we are unlikely to avoid similar issues.

There is now an extensive literature on crimes of honour, not only focusing on Islamic communities. Research has been conducted in Jordan, Palestine, Lebanon, Pakistan, Egypt and Iraq, but similar crimes of honour occur in Italy and in various jurisdictions of Latin America.

The entire idea of ''honour'' in this context is generally based on a historical legacy of women as, in substance, the property of their male relatives.

I first came across this issue in Australia in the Court of Criminal Appeal. A man attempted to engage a person to murder his niece. She had entered into an unhappy and forced marriage in Jordan. She formed a relationship with a man of whom the family did not approve, left her family home and moved to a refuge, taking out an apprehended violence order against her father, mother and husband.

The accused and his family were Jordanian Orthodox Christians. The issues were cultural rather than religious. Indeed, the man with whom the niece had a relationship was Muslim. The uncle asked a private investigation firm how much it would cost to have his niece killed.

The sentencing task posed acute issues as to the extent to which the family's cultural sense of disgrace should be taken into account in the sentencing discretion. The proposed victim gave evidence in support of her uncle's case.

Motive is significant in sentencing, as are personal and general deterrence, and these are difficult issues calling for judgment based on experience. However, this must also be informed by the broader social context, including the emphasis now given to preventing violence against women, even if motivated by cultural considerations.

In another Australian case, a young Sicilian girl had been abducted and kept by force in Italy. The dishonour to her family was such that custom would have obliged her father to kill her if she did not marry her kidnapper. The judge annulled the Italian marriage on the ground of duress.

There is no way of avoiding the dilemma arising from this conflict of values. The recognition that certain rights are fundamental will play an important role in establishing the basis for resolving the issues. This will occur in migration, family law and criminal justice, including whether provocation based on cultural or religious factors downgrades a charge of murder to manslaughter.

In a case where a Turkish Muslim was accused of killing his daughter over her alleged sexual relationship with her boyfriend, an Australian judge left provocation to the jury.

The NSW law of provocation distinguishes two matters: first, the gravity and effect of the provocation and, secondly, the response of the accused by a loss of self-control. It has been held cultural background is relevant to the first limb, but not the second. While in most honour killings evidence of deliberation and planning is inconsistent with the loss of self-control, some argue that approach is contrary to the principle of equality before the law.

Such considerations have not been accepted as satisfying the loss of self-control limb of the test of provocation. Nevertheless, there is tension between gender bias considerations and cultural respect considerations in determining what the overriding value of equality before the law requires in a particular case. It is a very real challenge to balance the objective of cultural equality and diversity against the protection of women from gender-based violence.

The difficulties involved have been highlighted in the continuing debate about violence in Aboriginal communities, but similar issues could arise for a number of ethnic and religious groups in our society.

pt 1

Gee mozz, I'd have thought you'd have jumped right in on this one...

Well it looks like the writer has been coping a bit of flak over his ideas and opinions...  thank God the government saw the light of the ridiculous Bill OF Rights they were pushing.

Who on earth would believe that Aboriginals weren't violent? Given how they tend to behave now, it isn't difficult to assume that things haven't changed that dramatically just because of their recent contact with the white man. Tribal, hunter-gatherer societies have never been exempt from the crimes of humanity. On a per-capita basis, many have been even more violent than some of the most bellicose human civilizations during their most violent periods.

Alcohol sure hasn't helped them though...