Andrew Bartlett makes a very good argument about the (reported) proposal by the Commonwealth not just to eliminate Indigenous cultural law as a ground for mitigation in sentencing but to prohibit the “cultural beliefs of all ethnic minorities” from factoring in to sentencing decisions. It’s very difficult to see how they could in any way effect the sentencing practices of State criminal courts, but this is not the only question raised:
All of this sounds lovely until one gives even half a second’s thought about what it would have to mean in practice if you tried to codify it in law. It either assumes the ‘law’ reflects no culture or belief system at all, or that there is some universally agreed set of pre-existing principles that get priority over everybody else’s.
Dog whistling at its most skilful – it will be interesting to see if they push on with this or just let the dogs yap on for a while.
Elsewhere: More debate on this issue in comments at Troppo.
Ruddock may find it a rather big challenge in codifying his desires to judicial functions (of taking mitigation pleas into account ) when Judges apply all the State’s laws and common law in the “defence of provocation.”
Great article here on culture as a defence in provocation:
McHugh J was scratching the surface with this in Green v The Queen (1997) 191 CLR 334:
The “mitigation plea” I referred to is not exclusively a pre-sentencing plea but the actual trial defence of provocation on cultural grounds which could for example reduce murder to manslaughter. If so, the sentencing process could then re-consider provocation at (c) below. Note (j) “disability” which could encompass “cultural” factors as well.
CRIMES (SENTENCING PROCEDURE) ACT 1999 NSW – SECT 21A
3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the injury, emotional harm, loss or damage caused by the offence was not substantial,
(b) the offence was not part of a planned or organised criminal activity,
(c) the offender was provoked by the victim,
(d) the offender was acting under duress,
(e) the offender does not have any record (or any significant record) of previous convictions,
(f) the offender was a person of good character,
(g) the offender is unlikely to re-offend,
(h) the offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise,
(i) the offender has shown remorse for the offence by making reparation for any injury, loss or damage or in any other manner,
(j) the offender was not fully aware of the consequences of his or her actions because of the offender’s age or any disability,
(k) a plea of guilty by the offender (as provided by section 22),
(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),
(m) assistance by the offender to law enforcement authorities (as provided by section 23).
As I said over at Troppo, I’m not in support of substitution of “payback” for sentencing, or reduction of sentences for “payback”. I do think however that defendants’ rights to plead whatever they choose in mitigation ought to be protected, since the purpose of sentencing hearings is surely to go to the motives and state of mind of the offender. However, I think the judiciary ought not to give too much credence, for instance, to claims that rape is justified by customary law.
The proposed extension of provisions Andrew’s talking about surely is just dog-whistling.
Exactly, in a similiar context, as the NSW Court of Criminal Appeal case of R v MAK; MSK; MMK disclosed, para 61:
How can you phsyically separate/”…prohibit the “cultural beliefs of all ethnic minorities” from factoring in to sentencing decisions” if cultural law remains?
I’m not sure I understand the question.
“I’m not sure I understand the question.”
one possible problem with this may also be the jurors? Or do defences automatically weed out minorities who they perceive may be biased?
Andrew and Mark are confusing “dog-whistling” ie sotto voce playing to the bigots with “whistleblowing” ie exposing infamous and disgraceful practices associated with government licensing of cultural identity politics over the past generation. That kind of ethnic diversity is how “actual and existing” multiculturalism works for indigenes and foreigners alike.
For the umpteenth time: ethics is not identical to ethnics or economics. For some reason Cultural Wets are susceptible to the former fallacy and Economic Dries are always blundering into the latter one. Good policy must be grounded in ethical values: Constructing and conserving institutional process to empower individual progress.
Its great that the government is moving towards a more ethical policy of bigger sticks (civil lawfare) and ear-marked carrots (conditional welfare) in the management of indigenous affairs. A generation and thousands of deaths and grievous bodily harms too late. But better that than never.
Apparently Mark has not spent much time on Aboriginal settlements outback. I have. I can tell him some stories that would make their hair stand on end.
My sister spent a decade working on these settlements. She started out life as a fairly stock-standard nner city latte Wet. But experience has turned her into a pragmatic conservative who hates political correctness.
The Wets (as typified by Andrew and Mark) would prefer to present a stolid defence of the “cultural sensitivity” policy, implicitly giving a free-pass to the brutalities of gangs of ethnic Alpha-males, rather than admit they were wrong. Objectively speaking, their maniacal committment to multiculturalism and indigenous cultural sensitivity at all costs kills and maims innocent women and children. Whatever their subjective sentiments. (Save them for the self-justifying memoirs guys.)
And they call GW Bush pig-headed about his defence of militarism in the Terror War. He looks like the soul of reason compared to the average Wet’s blind defence of constructivism in the Culture War.
No, Jack, all I want is for defendants to have rights.
Geez, Mark, I thought you had a point, when all along you were just trying to give a free-pass to the brutalities of gangs of ethnic Alpha-males. Why can’t you just admit you’re wrong?
Please consult the straw-Mark, Anna. You can email him via Jack Strocchi.
Peter, I’m going to call you on your post citing the Crimes (Sentencing Procedures) Act, particularly your comment that ‘diabilities’ under s21A(3)(j) encompasses cultural factors. That’s just wrong, isn’t it?
umm … ‘disabilities’ …
While I’m here, I’m going to call Mark on the whole of the original post:
1) Hasn’t this been raised in the context of the heads of Government meeting called by Mal Brough? If so, obviously the Commonwealth will be asking the States and Territories to harmonise their laws in this respect.
2) The proposition is very simple – cultural practices that condone assault, wounding or rape cannot be pleaded in mitigation. This is actually about the rights of victims to give or withhold their consent – not the defendant’s perceived right to override consent on cultural grounds.
So, in fact, there is “some universally agreed set of pre-existing principles that get priority over everybody else’s.” It’s called the principle of the inviolability of the individual. It is precisely the same principle that criminalised rape in marriage over any cultural objections.
It is not dog-whistling, it’s about taking rights seriously. Frankly, I would have expected better here.
Bismarck, re: ‘diabilities’ [sic]under s21A(3)(j) encompasses cultural factors. That’s just wrong, isn’t it?
How about a migrant who can’t speak English?
Peter, the subsection applies to the situation where the offender is not fully aware of the consequences of his action by reason of age or disability. This is the well-known scenario of diminished responsibility by reason of age or mental impairment where the offender cannot properly judge his own actions: for example what happens if I hit someone across the head with a skillet or throw a concrete block from a highway overpass.
It does not apply to an ignorance of the law, which sounds like the best your scenario could come up with. It is about real consequences of actions, not the legal ramifications of your actions.
Bismarck, on reflection it is a difficult fit.
Doli incapax, senility would be “mental” impairments, but yes, ignorance of the law is my best case scenario, which could perhaps best be argued for example with a subsection (g) guilty.
Ostrowski v Palmer [2004] HCA 30: Gleeson CJ, Kirby J. para 2:
“Ignorance of the law” if extraneous to s.21A, as well as cultural considerations I believe are still arguable as s.21A doesn’t explicitly say “only these factors.”
Graciously conceded, Peter.
I think the time is ripe for judges to reinforce a few basic cultural norms, which are created not for the purpose of subjugating minority cultures, but to ensure that everyone is accorded a decent measure of personal security. If a defendant says “rape isn’t a big deal where I come from”, the response should not be “obviously you get a lighter sentence in those circumstances” but “I guess we’d better make an example of you then.”
Bismarck, re:
This appears to be what happened in R v MAK, MSK and MMK, although I have an idea one or more sentences may have been reduced on appeal.
Re what McHugh said (not in Green but a case called Masciantonio,–I misquoted an article on Green)
I see no reason why the corollary should not be applied. If a certain culture recognised a particular crime as being more heinous than in Anglo culture, why shouldn’t a prosecutor be able to reverse the cultural argument for the prosecution?
On the other hand, looking at rape in marriage chronologically, until 1976 in South Australia, (1991 in the UK) the common law said there was no such thing. Now if someone from the UK ran a mitigation in South Australia in 1976, based on this difference, I don’t think such a submission would be rejected in the same way that the R v MAK case was. In other words, as a question of degree, I don’t think “cultural” mitigations in rape cases are always absolutely null and void, they may well be most of the time, but not always.
In the murder case of Green, officially sanctioned “cultural homophobia” with the homosexual advance defence (HAD) now established, is a classical example in my opinion of equally bad provocation defence allowed in that case by the dominant culture.
Yeah, the provocation issue is interesting Peter, but I’m not sure how far it gets us. I think that it is only reasonable to take someone’s cultural background into account when considering the provocation necessary to cause someone to lose their self-control. For what it’s worth, I think the homosexual advance defence is dangerous and the circumstances in which it should be available should be very limited.
Provocation however, is on the margins of this debate. There is no place for provocation in rape, for example.
I’m not sure I understand your argument in relation to prosecutors being able to apply the standards of another culture as a circumstance of aggravation. Surely the basis of the criminal law is that offending conduct should be proscribed with precision? It’s an appalling idea that prosecutors should be able to cherry-pick cultural traditions in order to worsen an offence. I hope you’re joking because I for one don’t want to see criminal sanctions for blasphemy or adultery.
Provocation I think shouldn’t be separated from mitigation because cultural factors can be equally argued in both, ie “HAD” and Green with the former and “cultural time bomb” with R v MAK in the latter. Both can reduce sentences, albeit less directly with provocation when murder is reduced to manslaughter.
While in principle I agree there should be no provocation in rape, I’d suggest there might be a situation, if somebody said “You can’t do it you feeble needle-dick wimp–I dare you” –that could be regarded possibly as consent, but possibly provocation.
Re the prosecution and ‘cherry picking cultural traditions’ I’m thinking along the lines of the same s. 21A but “Aggravating factors”
In a case of a newly arrived migrant from Srebrenica who knocked off one of Milosovitch’s sympathisers for example, it would be hard for the prosecution not to cherry pick that “cultural tradition” of emnity, (or by implication, merely by mentioning the defendant/victims origins) I would suggest, if propensity evidence didn’t have a look-in.
On the subject of adultery or blasphemy, the Italians for example had in the past an effective “common law” of exculpatory “crim passionelle”–since abolished. That and our changed “no rape in marriage” reinforces the criminological approach: “Crime is a social construct.”
“Crime is a social construct.� What else could it be? Law is the social construct non-pareil.
One thing that has puzzled me for a long time is what people mean they say this. Does the fact of something being a social construct make it less real, or less valid?