home Opinion Blurred Lines: Crime and Culture The Issue of the Cultural Defence

Blurred Lines: Crime and Culture The Issue of the Cultural Defence

In the afternoon of the 29th of January 1985, Fumiko Kimura waded into the frigid waves of the Pacific Ocean from a Santa Monica beach with her two children, Kazutaka and Yuri. Hours later, doctors in a nearby hospital would fail to revive four-year-old Kazutaka and six-month-old Yuri, their mother, however, would live on to face two charges of first-degree murder.


Kimura had attempted to commit a Japanese custom known as oyako-shinju or parent-child-suicide, citing her husband’s infidelity as the primary reason for her actions. In Japan, oyako-shinju is, in fact, illegal, but still lingers in the culture and is considered to be an understandable way of escaping intolerable situations. Because of this, it generally carries a lighter sentence than murder. In Japanese culture, suicide is seen as an honourable response to shame, Kimura was responding to the shame of what she perceived to be her failure as a wife. Professor of sociology at California State University, Mamoru Iga, explains that in Japan, children are not seen as individuals but as extensions of their parent’s being or as parental possessions. As well as this, it is considered more merciful to kill a child than to leave it without parental protection. Iga explains that a mother who commits suicide without taking her child with her is labelled as an oni no yo na hito or a demon-like person. Kimura, although she had been living in America for over 13 years, could not be said to have been well integrated into American society; she spent much of her time at home and did not have a car. Her attempt at oyako-shinju came mere days after she discovered her husband had been keeping a mistress for three years and the Japanese community in California petitioned for her to be treated leniently in the courtroom on account of her culture.


An increasing number of cases over the years have considered the issue of a “cultural defence.” This is a defence that serves to acquit or lessen a punishment, acting on the grounds that those who commit a crime under some sort of cultural imperative should be considered to be less culpable for that crime than those acting without such an imperative. As you can imagine, the cultural defence is quite controversial and has broken the hearts of lawyers and academics alike for many years now. I struggle with the concept myself: I have always readily acknowledged that true equality does not mean simply treating everyone the same way, that certain minority groups have distinct needs that need to be catered for first, in order for equality to be achieved. But equality under the law is such an integral part of what the law and indeed, justice, is. I mean, if we don’t apply the same standard to everyone, what is the point of the law at all?


Kimura had reacted to her personal struggles in the only way she understood how. Had she committed her crimes in her native Japan, it would have been perceived as an understandable, almost unavoidable course of action and she would have been treated leniently. As children are considered extensions of the self, their destinies were interwoven with their mother’s. The cultural motive is clear but for me it doesn’t take away from the fact that Kimura committed a gruesome and highly illegal act. The autopsy report carried out on the four-year-old Kazutaka revealed “external traumatic lesions” indicating the child had been forcibly held under the water and had bitterly fought for his life. I find it impossible to reconcile this in my mind. In what culture would this be understandable?


An issue that comes to my mind in relation to the cultural defence is that it can be used as proof of a guilty mind. Quick crash course in criminal law: for a crime to be committed, there needs to be two elements present: a guilty act (the actus reus) and a guilty mind (the mens rea). You must have intended to commit the crime, otherwise there is no crime. To say that Kimura only committed this odious act on account of her culture is to say that she intended to commit it. The lesions on Kazutaka’s body, confirm, at least to me, an element of premeditation. She knew what she was doing regardless of whether it was culturally fuelled, it satisfies the basic requirements for murder.


Culture has been raised as a ground for defence in many cases. A Nigerian man living in Houston was accused of child abuse and received only probation after he argued that putting pepper in the open wounds of a child was acceptable discipline in his native Nigeria. In Fresno, also in the US, a Salvadoran man who believed his friend was close to death after he suffered a severe beating, slit that friend’s throat in an act of mercy. He received a reduced sentence after the judge paid heed to the man’s cultural understanding of his actions. Despite the fact that what the man did resulted in the death of his friend, substantive equality called for him to be treated differently to a US citizen in his position.


In the early 2000s culture clashes occurred in Europe and North America where Rastafarians were brought before the courts in drug cases. They argued that marijuana was an integral part of their religious ceremonies. Similarly, individuals coming from Somalia, Kenya and Yemen were prosecuted for chewing khat (a hallucinogenic substance), even though it was a widely used substance in their countries of origin and could not be linked to any harm. In 2006, the US Supreme Court in taking account of the religion and culture of the Brazilian UDV church, carved out a cultural and religious exemption for the church, in preserving their right to drink the hallucinogenic hoasca tea.


I find it easier to accept the notion of a cultural defence when speaking of minor drug use for religious ceremonies or to allow for the Islamic call to prayer. My trouble accepting the defence occurs when it comes to more serious offences such as the murder in the Kimura case. The main worry I have about the cultural defence is that its application is seemingly limitless. Attempts have been made to use culture to defend the practice of female genital mutilation where it occurs in Western Countries. FGM is a cultural practice inconsistent with human rights. This highlights another critical issue with the cultural defence; it serves to protect members of a particular cultural group at the expense of the other members in that same group. When it comes to culturally motivated violent crimes, the perpetrator rarely acts outside their own cultural group. A cultural defence has the potential to leave the other members of the culture vulnerable, especially women.


In the Chen case, Mr.Chen, a Chinese man who bludgeoned his wife to death with a hammer upon learning of her extramarital affair was sentenced to five years’ probation and had his sentence downgraded from murder to second-degree manslaughter when the trial court found that Chinese culture explained Mr. Chen’s actions. In China, a woman’s adultery is taken to be proof of her husband’s weak character and a source of profound shame.


In Hmong culture, a form of marriage called zij poj niam or marriage by capture is practiced. This ritual is accepted in Hmong culture. Prior to the marriage, the couple in question will go on dates and exchange love letters, then on the date chosen for the marriage, the man abducts the woman and takes her to his family home where the marriage is to be consummated. In Hmong tradition the woman must protest to the consummation until the last minute as a sign of her virtuousness, and the man must persist in order to appear strong enough to be her husband. In California where many Hmong have settled, the practice of this ritual has unsurprisingly resulted in a series of kidnapping and rape charges against the men of the community. In one particular case, the defendant avoided substantial jail time on account of his culture. The man genuinely believed the woman had consented and was greatly surprised when she filed a criminal complaint.


In a notorious Canadian case, a sentence of seven days was dealt to three Inuit men who had sexual intercourse with a girl under the age of fourteen. The judge was so lenient because in Inuit culture, a young woman is deemed ready for intercourse upon menstruation. It’s clear to see that the cultural defence can undermine the victim’s rights. When it is argued that it would be fairer not to hold immigrants accountable for their actions on account of their culture, to which immigrants is it fairer? Violent crimes against women are occurring at an alarming rate across the globe, with culture being used as an excuse for it. Francoise Jacobsohn, former president of the New York National Organisation for Women, commented on the Chen case saying that “the sentence declares open season on women with a cultural defence.”


In the end, Kimura did receive leniency from the State but not on any cultural grounds. A psychiatric defence reduced her charge of murder to one of manslaughter. The Japanese American community rallying for Kimura to receive a lesser sentence got what they wanted, just not in the way they wanted it. A cultural defence for oyako-shinju was not acknowledged, but after an early release from prison and some psychiatric help, Fumiko Kimura was free to live her life however she wished. William Wetherall takes a rather cynical stance on it;  “this need to impute an anthropological exoticism to murder-suicide in Japan, but not to identical acts in Western countries, stems from an unpreparedness to recognize that Japanese murder-suicide is really human behaviour costumed in national-character myths that began centuries ago with caricatures of Japan as a land of people who value death more than life.” Although Wetherall does not consider that Kimura got off lightly, “society” he says, “has entrusted Kimura to the open prison of her own conscience.”


For me, there are far too many arguments against recognising a formal cultural defence than arguments in favour. Most worryingly, is that the defence opens a Pandora’s Box of potentially infinite excusable offences on the basis of culture and does not adequately protect the victim. The cultural defence has the potential of putting women and children of certain cultures at risk. Laws are in place for a reason, and while I’d be prepared to recognise a cultural defence for non-violent crimes, society should be able to rely upon the authority of the law, to be protected and defended by the law. I like this quote from the prosecutor in the Kimura case; “people have to abide by our laws or else you have anarchy.” Violence has no part in any culture and to me, the cultural defence comes across as a racist tool, cementing the idea that some cultures are less developed or sophisticated than others by perpetuating the idea that rape, murder and sexual assault are run-of-the-mill activities of certain cultures. I think elements of a person’s culture can be considered in order for them to receive a fair trial, but I would object to the implementation of a formal cultural defence.


What do you think?