The Volokh Conspiracy

The Daily Mail (UK) reports:

A muslim who raped [in the sense of statutory rape -EV] a 13-year-old girl he groomed on Facebook has been spared a prison sentence after a judge heard he went to an Islamic faith school where he was taught that women are worthless.

Adil Rashid, 18, claimed he was not aware that it was illegal for him to have sex with the girl because his education left him ignorant of British law.

Yesterday Judge Michael Stokes handed Rashid a suspended sentence, saying: ‘Although chronologically 18, it is quite clear from the reports that you are very naive and immature when it comes to sexual matters.’

Earlier Nottingham Crown Court heard that such crimes usually result in a four to seven-year prison sentence.

But the judge said that because Rashid was ‘passive’ and ‘lacking assertiveness’, sending him to jail might cause him ‘more damage than good’.

Earlier the court heard how Rashid had ‘little experience of women’ due to his education at an Islamic school in the UK, which cannot be named for legal reasons....

In ... interviews with psychologists, Rashid claimed he had been taught in his school that ‘women are no more worthy than a lollipop that has been dropped on the ground’. ...

[The sentencing judge] said that Rashid knew what he was doing was wrong.

‘It was made clear to you at the school you attended that having sexual relations with a woman before marriage was contrary to the precepts of Islam,’ he said....

My quick thoughts:

1. In the abstract, while ignorance of the law is generally not a defense to a crime (an oversimplification, but one that’s apt here), it might sometimes play a proper role in sentencing. For instance, to the extent that one is sentencing a person to incapacitate him from committing future crimes, or to specifically deter him from committing future crimes, one might treat differently (A) someone who did the act knowing it was a crime from (B) someone who didn’t know the act was a crime. Person B, under the right circumstances, might be quite willing to change his ways simply because he learns that the conduct is illegal; one can’t say the same about person A.

One can see that especially clearly as to minor offenses that vary from place to place or are just not widely known, whether we’re talking about sentencing or just law enforcement discretion. If you’re busted for turning right on red in a place where that’s forbidden, and the police officer sees from your license that you’re from a place where it’s allowed, it might make sense for the officer to give you a break. You can imagine the same as to sentencing for regulatory offenses where the defendant seems otherwise law-abiding, and seems likely to abide by this law as well, now that he knows it.

2. This having been said, when the legal system sees the offense as serious enough — and inherently serious — there ought to be some substantial punishment just as a matter of retribution, and not just incapacitation or special deterrence of this particular offender.

3. This is especially so when there aren’t separate indications that this is an otherwise highly law-abiding person who has just made an error, or when the person’s own defense suggests a propensity for serious misbehavior (as the “women are no more worthy than a lollipop that has been dropped on the ground”); there, punishment for incapacitation or special deterrence might be quite useful. To be sure, we don’t deliberately treat people as guilty just because they hold reprehensible moral beliefs, or lack evidence of being generally law-abiding. But if a person is guilty of the crime, and seeks lenient treatment on the grounds that a harsh sentence isn’t really needed, then looking at his broader character is relevant to evaluating just how dangerous he is, and how much of a lesson he needs.

4. Finally, when the claim is “I didn’t know because I was raised in an insular community,” there is reason for punishment precisely to send a message to members of insular communities (and leaders of those communities) that they need to work harder to learn the important commands of the legal system. Conversely, cutting slack to people who don’t know the law because they grew up in an insular community — or to people who claim not to know the law for this reason — reinforces the tendency of many in insular communities to focus more on following the norms of their community than trying to learn and abide by the norms of society.

If you want a look at pure cultural defenses that do set up a separate legal rule for people who belong to a particular group, check out Rhode Island General Laws § 15-1-4:

The provisions of §§ 15-1-1 – 15-1-3 shall not extend to, or in any way affect, any marriage which shall be solemnized among the Jewish people, within the degrees of affinity or consanguinity allowed by their religion.

The Rhode Island law dates back to the colonial period. In a similar vein, Colorado and Minnesota follow the Uniform Marriage and Divorce Act in exempting uncle-niece marriages that are “permitted by the established customs of aboriginal cultures.” The Commissioners’ note to the Act says that “The intent is to save those special customs of Indian tribes, of Alaskan natives of various ethnic origins, and of Polynesians, which may not accord with the incest taboos of Western culture.”

Note that the Rhode Island law is not a standard religious accommodation for religiously mandated or motivated behavior; I don’t believe that Jews of the era saw themselves as having a religious command or suggestion to marry their nieces, and of course many didn’t. Rather, Jews thought such behavior was permissible — since the Leviticus 18 incest prohibitions don’t include uncle-niece relationships — and for social reasons thought it was sometimes useful. (I’ve heard as explanations the desireto keep family wealth in the family, and the small number of prospective eligible mates stemming from the small size of the community.) And I assume that the Rhode Island legislators thought the law sensible because they saw the incest ban as primarily a religious purity rule, rather than an attempt to prevent secular harm, and because they thought Jews’ contrary religious understanding deserved respect (perhaps precisely because that understanding was based on the Old Testament).

Nor are the aboriginal culture exceptions like the various special rules relating to Indian tribes, which have been justified on the grounds that the tribes have separate political existence. The exceptions apply regardless of whether the person is a member of a tribe.

So these strike me as truly separate rules for what are seen as separate cultures. I think they’re a bad idea, and probably a violation of the Equal Protection Clause, especially to the extent that “the Jewish people” and “aboriginal cultures” are understood as ethnic categories, or closely linked to ethnic categories. But if you want to see (rare) examples of true cultural defenses under American law, here they are.

UPDATE: Some commenters came to this post expecting to see more on incest generally; you can see that in the post about how the law should treat incest, and, indirectly, in the law and morality post. This post is part of a series on cultural defenses generally, not limited to incest.

Here’s another case showing how American law applies to people with different cultural assumptions from our own, State v. Al-Hussaini, 579 N.W.2d 561 (Neb. Ct. App. 1998); I think the result is correct. Note that in the de minimis case and the mistake of fact hypothetical, the defendant’s claim was that the defendant’s culture was relevant to showing that he lacked the legally required knowledge or purpose (assuming, in the de minimis case, that absence of a sexual purpose did indeed render the conduct not harmful for purposes of the Maine de minimis statute). I don’t think the same reasoning would apply here.

In any case, here’s the case:

Latif Al-Hussaini was convicted of first degree sexual assault on a child, in violation of Neb.Rev.Stat. § 28-319 (Reissue 1995). He was sentenced to an indeterminate sentence of 4 to 6 years’ imprisonment, with credit for 13 days spent in custody. The sole issue on appeal is whether or not the sentence imposed is excessive....

Al-Hussaini is a native of Iraq who escaped from his country during the Gulf War and has lived in the United States since 1995. He speaks virtually no English. On November 9, 1996, Al-Hussaini, age 34, participated in an Islamic ceremony in which he was “married” to a 13-year-old girl. There is no dispute that the victim was given away in marriage by her father. After the ceremony, the victim was taken to her new home with Al-Hussaini where intercourse immediately took place. The victim stated she did not consent to intercourse with Al-Hussaini. The victim’s sister, age 14, was also “married” on the same day to another Iraqi man.

Continue reading ‘“Cultural Defenses” and Underage Marriage’ »

In light of the discussion on the cultural defense / de minimis statute thread, it might be helpful to think of another area where culture is relevant under existing law: mistakes of fact.

Consider an example. Theft is often defined as taking another’s property, knowing that it is another’s property. If you take an umbrella from an umbrella stand thinking that it’s yours, and it turns out that it’s not, you’re not guilty of theft (though you might become guilty if you learn that it’s not yours and don’t properly return it, assuming the original owner could be found). Likewise, if you take property think that it’s abandoned, and it turns out that it’s not abandoned, you’re not guilty of theft. It doesn’t matter whether your belief was reasonable or not, so long as it was sincere (or, to be precise, so long as the jury thinks it was sincere, or has a reasonable doubt about the prosecution’s claim that you knew the property was someone else’s). A sincere mistake of fact thus means that you’re not guilty.

Now let’s say that someone picks up a bunch of lumber from the side of the road, and when arrested for theft says “I thought it was abandoned.” It may well be that in our culture this might be an implausible story (let’s assume that this is so), so that the jury would think he’s lying. But say he’s a recent immigrant from a country (let’s call it Afghanistan) in which leaving lumber by the side of the road was a way to signal that anyone is free to take it, much like leaving an old couch or old refrigerator by the side of the road is in our culture often a signal that anyone is free to take it. That would be pretty strong evidence that he may well be telling the truth when he claims that he thought the lumber was abandoned.

Note that the principle that honest mistake of fact precludes liability for theft does not include any “cultural defense” as such. Nor is the claim that people from Afghanistan are entitled to some special legal rule to which native-born Americans (or Russians) are not. Nor is the claim that all people from Afghanistan necessarily believe that lumber left by the side of the road in America is abandoned. (Some might know the American custom.) Rather, the claim is simply that a person’s culture is relevant evidence in determining what he believed, and that this is relevant when the person’s belief is an element of the legal rule.

The penis-kissing case discussed in the earlier thread is not a mistake-of-fact case, so I don’t want to claim the two examples are entirely analogous. But they are similar: In the penis-kissing case, the de minimis statute provided a defense when, under the circumstances, the defendant’s conduct didn’t seem likely to be harmful. If I’m right that penis-kissing is harmful chiefly because of an inference about the defendant’s likely sexual intentions, then there too the person’s culture is relevant evidence, since it bear on what the defendant intended.

There too the de minimis statute ought not be seen as including any “cultural defense” as such. Nor would the claim be that people from Afghanistan are entitled to some special legal rule to which native-born Americans (or Russians) are not. Rather, the claim would simply be that a person’s culture is relevant evidence in determining what he intended, and that this is relevant when the person’s belief is an element of the legal rule.

I just reread State v. Kargar, 679 A.2d 81 (Me. 1996), and was reminded how interesting and bloggable the case is (some paragrpah breaks added):

Mohammad Kargar, an Afghani refugee, appeals from the judgments ... convicting him of two counts of gross sexual assault in violation of 17-A M.R.S.A. § 253(1)(B) (Supp.1995) (Class A). [Footnote: “... 1. A person is guilty of gross sexual assault if that person engages in a sexual act with another person and: ... B. The other person, not the actor's spouse, has not in fact attained the age of 14 years.”] Kargar contends on appeal that the court erred in denying his motion to dismiss pursuant to the de minimis statute, 17-A M.R.S.A. § 12 (1983). We agree and vacate the judgments.

On June 25, 1993, Kargar and his family, refugees since approximately 1990, were babysitting a young neighbor. While the neighbor was there, she witnessed Kargar kissing his eighteen-month-old son’s penis. When she was picked up by her mother, the girl told her mother what she had seen. The mother had previously seen a picture of Kargar kissing his son’s penis in the Kargar family photo album. After her daughter told her what she had seen, the mother notified the police.

Peter Wentworth, a sergeant with the Portland Police Department, went to Kargar’s apartment to execute a search warrant. Wentworth was accompanied by two detectives, two Department of Human Services social workers, and an interpreter. Kargar’s family was taken outside by the social workers and the two detectives began searching for a picture or pictures of oral/genital contact. The picture of Kargar kissing his son’s penis was found in the photograph album. Kargar admitted that it was him in the photograph and that he was kissing his son’s penis. Kargar told Wentworth that kissing a young son’s penis is accepted as common practice in his culture. Kargar also said it was very possible that his neighbor had seen him kissing his son’s penis. Kargar was arrested and taken to the police station.

Prior to the jury-waived trial Kargar moved for a dismissal of the case pursuant to the de minimis statute. With the consent of the parties, the court held the trial phase of the proceedings first, followed by a hearing on the de minimis motion.

The de minimis hearing consisted of testimony from many Afghani people who were familiar with the Afghani practice and custom of kissing a young son on all parts of his body. [Footnote: Kargar testified during the de minimis hearing that the practice was acceptable until the child was three, four, or five years old.] Kargar’s witnesses, all relatively recent emigrants from Afghanistan, testified that kissing a son’s penis is common in Afghanistan, that it is done to show love for the child, and that it is the same whether the penis is kissed or entirely put into the mouth because there are no sexual feelings involved. [Footnote: Kargar testified during the de minimis hearing that his culture views the penis of a child as not the holiest or cleanest part of the body because it is from where the child urinates. Kargar testified that kissing his son there shows how much he loves his child precisely because it is not the holiest or cleanest part of the body.] The witnesses also testified that pursuant to Islamic law any sexual activity between an adult and a child results in the death penalty for the adult.

Kargar also submitted statements from Professor Ludwig Adamec of the University of Arizona’s Center for Near Eastern Studies and Saifur Halimi, a religious teacher and Director of the Afghan Mujahideen Information Bureau in New York. Both statements support the testimony of the live witnesses. The State did not present any witnesses during the de minimis hearing. Following the presentation of witnesses the court denied Kargar’s motion and found him guilty of two counts of gross sexual assault.

[I.] Maine’s de minimis statute provides, in pertinent part:

1. The court may dismiss a prosecution if, ... having regard to the nature of the conduct alleged and the nature of the attendant circumstances, it finds the defendant’s conduct:

A. Was within a customary license or tolerance, which was not expressly refused by the person whose interest was infringed and which is not inconsistent with the purpose of the law defining the crime; or

B. Did not actually cause or threaten the harm sought to be prevented by the law defining the crime or did so only to an extent too trivial to warrant the condemnation of conviction; or

C. Presents such other extenuations that it cannot reasonably be regarded as envisaged by the Legislature in defining the crime.

Continue reading ‘“Cultural Defenses,” Crime, and De Minimis Violations’ »