In 1985, a Hmong man living in the town of Fresno went to the work of a woman with whom he intended to marry her and kidnapped her, taking her to her cousin’s house.
The man’s intention was to promote “kidnapping,” a tradition in his ethnicity where a man could kidnap a woman he used to flirt with in order to “consummate” the marriage.
However, although the abducted woman was also of the Hmong ethnic group, she called the police and the man was accused of kidnapping and rape.
Today’s context is part of the theme of culturally motivated offenses, which have relevance in particular in two contexts.
The first of these is the relationship between the Indians and the Western society that occupied their territories.
The second context in which this theme stands out is the one related to the interaction between immigrants and the society that welcomes them.
In both contexts, there is a minority culture (in the cases cited, the indigenous culture and the culture of the immigrants) that may eventually conflict with the majority culture.
In such cases, a behavior tolerated or encouraged by the minority culture may be considered a crime in the legal system adopted by the majority culture, a situation in which culturally motivated crimes (or culturally conditioned crimes) are configured.
Therefore, culturally motivated crimes are the result of a conflict of values between a minority culture and a dominant culture.
The big question on “culturally motivated crimes” (or culturally conditioned crimes) is whether indigenous or immigrant punishment is legitimate, for example, by engaging in conduct that, while permitted or encouraged by their customs, is considered a crime in the dominant culture in which they are inserted.
Then enter the figure of “cultural defense” (cultural defense), which is the theoretical possibility of the crime not be attributed to the defendant because it is conduct permitted or encouraged by their culture.
Cultural defense , therefore, is a defensive thesis that seeks the acquittal or mitigation of the penalty of one who has committed a culturally motivated crime.
Therefore, the following should be discussed: Should the practice of a culturally motivated crime be punished in accordance with the current legal system or is the interposition of a “cultural defense” capable of somehow distancing or at least mitigating punishment?
Putting the question in examples, should the practices rooted in African cultures be encouraged to promote clitoral excision? Should the use of violence in the name of honor, common in some cultures, be distressed in Brazil?
This theme is currently relevant in the face of the increase in the immigration flow experienced by the West in recent years, which has led to the existence of diverse cultures in the same territorial base, a phenomenon known as multiculturalism.
Multiculturalism is fertile ground for the emergence of culturally motivated crimes, especially if multiculturalism develops without the concomitant development of interculturalism (a process of understanding between distinct cultures that seeks respect for difference, combating discrimination and treatment between cultures).
Well, before discussing how Brazilian criminal law deals with culturally motivated crime, let us see three famous cases of this crime, so that the matter is properly illustrated.
In the case of Kimura ( People v. Kimura ), in January 1985, a Japanese woman living in the United States, on learning of her husband’s extramarital relationship, practiced Oyako-shinju , which consists of the suicide of parents and children. In practice, the suicide of the children is a homicide, because the father or mother, in front of children too small to decide for the suicide, decide for them and they kill them.
Oyako-shinju is accepted by Japanese culture, because it is considered that this type of death is a more adequate option than dishonor or humiliation.
The Kimura affair, then, concerned a mother (Fumiko Kimura) who, replacing the will of the small children, decided by their “suicide” (in fact, there was murder) and then committed suicide because of the unbearable humiliation of have been betrayed by her husband.
Fumiko Kimura, carrying her 6-month-old daughter in her arms and taking her 4-year-old son by the hands, walked inland on Santa Monica Beach (Los Angeles), with water at a house temperature of 14 o C.
The three were rescued by passers-by and, although the children have not resisted, Fumiko Kimura survived (see news here).
The heart of this case is that for the American criminal justice system, Fumiko Kimura had committed two homicides, while for her and the Japanese culture it was a failed suicide attempt.
At trial, although the “cultural defense” (cultural defense) has not been admitted, the court considered that Fumiko Kimura did not enjoy full mental health, which in the end led to similar results, ie, a lower penalty.
Initially, Fumiko Kimuro was at risk of being sentenced to death, but after a plea agreement she was sentenced to 1 year in prison and 5 years probation .
Another culturally conditioned crime that American law had to deal with was the Hmong abduction marriage, called zij poj niam (just the case quoted in today’s context).
The Hmong are a nomadic ethnic group from isolated Laotian mountains and have a habit of sequestering marriage.
In that ethnicity, kidnapping marriage is a legitimate form of marriage in which a man flirts with a woman and, if she allows the courtship, he kidnaps her into his family’s home and consummates the union. In this custom, the woman is supposed to protest against the abduction, otherwise, she is not considered fit to marry (see here a report on this subject)
It occurs that after the Vietnam War, a substantial number of Hmongs migrated to California in the United States.
In the People v. Moua , the family of a Hmong woman, told authorities that she had been abducted and raped after a Hmong man named Moua had practiced marrying for kidnapping on US soil.
Moua was accused of rape and abduction and, in his defense, alleged that the victim gave signs that he would annihilate with the custom of the marriage by abduction.
However, the judge and the prosecutor considered that although Moua had imagined that the woman would consent to the custom of the marriage by abduction, she did not actually consent. Following a procedural agreement, the prosecution was disqualified for “false imprisonment,” and Moua was sentenced to 90 days in prison.
Unlike the Kimura case, after the sentence, the prosecutor acknowledged that, to a certain extent, cultural defense was taken into account (see article on this case and the previous case).
Female genital mutilation consists of the ritualistic removal of part or all of the female external sexual organs, especially the clitoris.
It is a common cultural practice in countries of sub-Saharan Africa and Northeast Africa (Mali, Somalia, Sudan, Central African Republic and Côte d’Ivoire among others) and represents a ritual of passage, from which the girl acquires the identity of woman, is empowered to exercise certain functions in the society of which she is part and starts to integrate with the social group.
Currently, more than 200 million women worldwide have undergone clitoral excision (see here).
The above examples indicate that there is some degree of influence of an individual’s culture on his actions.
In an article on the subject, the Portuguese author Augusto Silva Dias points out that, on the one hand, “individuals [are] not cultural puppets that passively and uncritically assimilate inherited traditions, customs and practices”, on the other, “although in varying degrees … traditions, customs and cultural practices influence individual decisions and actions “(see article).
Considering, therefore, that there are culturally motivated crimes, one must move on to a next question: how can one check that the practice of criminal conduct constitutes a culturally motivated crime?
The answer to this question is offered by Alison Dundes Renteln, who points out 3 questions to be answered in these cases (see the article here):
From there, proven that a certain conduct is a culturally motivated crime, it is necessary to discuss the criminal procedural solution to be given for this case.
Augusto Silva Dias, in an article discussing female genital mutilation (see here), points out that the question, objectively, consists in the criminal relevance of custom against legem. That is, could the custom against legem be valid before the criminal legal system?
Regarding this, the dogmatica penal is unanimous: the custom against legem does not have validity before the penal law and one does not have to consider of revocation of criminal law by custom contrary to her.
That said, Augusto Silva Dias, in the cited article, points out that, although the custom underlying culturally conditioned crimes does not repeal criminal law, it has profound consequences for guilt. For the author, the problem of culturally motivated crime is not a source of law (ie, custom versus law), but rather an analytical concept of crime.
That is, one must discuss the reflexes of such conduct in typicality, antijuridicity and guilt.
As to typicality, the Portuguese author makes it clear that such conduct is typical and that it is not necessary to consider material atypicality by incidence of the principle of social adequacy. According to him, among other arguments, “it can not be considered as socially useful or appropriate an action that results in a serious injury of physical integrity”. Although the author refers to clitoral excision, note that such a conclusion extends to much of what is considered a culturally motivated crime (such as the Japanese Oyako-shinju , for example).
As for antijuridicity, Augusto Silva Dias, again commenting on genital mutilation, mentions that, as such act affects children, there is no supralegal cause of exclusion by consent of the victim. In addition to the ability to consent, the consent of the offended person as a supralegal cause of exclusion of the antijuridicity also does not affect those cases in which the legal good is unavailable (in the case of physical integrity, availability occurs only for minor injuries – for example, tattooing) .
Regarding anti-justice, Augusto Silva Dias also dismisses the regular exercise of the right (right of manifestation of popular cultures) as excluding illicitness in culturally motivated crimes. For the author, “the right to one’s own culture is not an absolute right that gives it precedence over all the rights that conflict with it,” and must yield, for example, to the right to physical integrity and to free sexuality. case of clitoral ablation).
Therefore, Augusto Silva Dias excludes the relevance of cultural defense from the plan of exclusion from the typicality and exclusion of illegality and points the relevance in the plane of guilt.
Within the guilt, the Portuguese author, analyzing the clitoridian excision, points out that in most cases it is an error of prohibition (for example, in the case of newcomers to a certain country and who have not yet had the opportunity to know the culture and local laws).
In this regard, Augusto Silva Dias points out that the error of prohibition is not merely the ignorance of the forbidden nature of the fact, but rather the understanding of its devalued meaning.
The prohibition error, according to Brazilian criminal law, if avoidable, may reduce the penalty from 1/6 to 1/3. However, if the error of prohibition is inevitable, there is an absence of potential awareness of illegality and the Penal Code exempts the agent from punishment in this case because there is no guilt.
See the wording of art. 21 of the CP on the subject.
Art. 21. Ignorance of the law is inexcusable. The error about the unlawfulness of the fact, if inevitable, free of penalty; if avoidable, may decrease it by one-sixth to one-third.
Single paragraph. Error is considered avoidable if the agent acts or omits without the awareness of the illicitness of the fact, when it was possible, in the circumstances, to have or reach that consciousness.
Here comes the concept of “culturally conditioned error” coined by Eugenio Raul Zaffaroni. “Culturally conditioned error” is a kind of error-prohibition genre in which the agent, even knowing the illegality of a certain conduct, by cultural issues is unable to understand it and, consequently, to internalize it and to guide its behavior of accordance with the standard.
The Portuguese author Augusto Silva Dias explains that the awareness of illicitness is greater or less insofar as the level of integration of the authors in the civic culture of the host society.
From this, one has the following question: in order to exclude or not guilt in a culturally motivated crime scenario, how to assess whether or not the individual is integrated into the society that received it?
To answer this question, according to Augusto Silva Dias, one must use the “parallel valuation in the sphere of the profane (or layman)”. Parallel valuation in the sphere of the layman is a hermeneutic criterion, developed by Edmund Mezger, which has the purpose of ascertaining, in the concrete case, whether or not there is a prohibition error.
According to the “parallel valuation in the sphere of the layman”, the judge must, within the cultural universe of the agent, verify whether the agent is able or not to know and understand the unlawfulness of certain conduct provided for in the legal system.
Considering this, a potential culturally conditioned crime will be guilty, according to Augusto Silva Dias, when “in view of the factors described, it is possible to conclude that the authors could access the problem of criminal unlawfulness through an effort of reflection or understanding demanded in the case to a ‘reasonable person in your community’ “.
Brazilian jurisprudence has not yet delved into the subject of culturally conditioned crimes to the point of sedimenting the criminal treatment that the Brazilian legal system should dispense with such cases (except in cases of crimes committed by indigenous people, as will be pointed out in another post ) .
Laterally, the Supreme Federal Court (STF) faced the issue when analyzing the practices of the vaquejada (ADI 4983 / CE, Rel. Min. Marco Aurélio, judged on 10/6/2016), of the booty spree. RE 153.531, Rapporteur (a) Min. Marco Aurélio, judged on 06/03/1997) and the Gallic fight (ADI 1856, Rel. Min. Celso de Mello, judged on 05/26/2011).
All of these practices involved the following collision of rights: right to manifestations of popular cultures (art. 215, caput and § 1 of the Federal Constitution – CF) and right to a healthy environment resulting from the prohibition of practices that subject animals to cruelty 225, § 1, VII of the CF). See the wording of the devices.
Paragraph 1. The State shall protect the manifestations of popular, indigenous and Afro-Brazilian cultures and those of other groups participating in the national civilizing process.
Paragraph 1 – To ensure the effectiveness of this right, it is incumbent upon the Public Power:
VII – protect fauna and flora, prohibited by law, practices that endanger their ecological function, cause extinction of species or subject animals to cruelty.
In all cases (vaquejada, booze and rooster fighting), the STF considered that the obligation of the State to guarantee to all the full exercise of cultural rights, encouraging the valorization and the diffusion of the manifestations, does not ignore the norm of item VII of article 225 of the Federal Constitution.
However, on these occasions, as the saying goes, the issue of culturally conditioned crimes was not addressed, since all trials were civil and non-criminal.
In addition, on 07/06/2017, the Constitutional Amendment (EC) was published, which inserted Paragraph 7 to Art. 225 of the SC, which clarifies that, in the context of cultural events, “sporting practices that use animals are not considered cruel.”
The practice of a typical conduct, to fit the concept of culturally conditioned crime depends on the following steps.
In spite of these criteria, to conclude, it should be made clear that jurisprudence of the superior courts did not set up markers in order to guide the criminal treatment that should be given to culturally conditioned crimes practiced in Brazil.
Well, that’s it for today. Good studies!