Reader Steve called my attention to an article in the online Toronto Star about an overly lenient legal judgment that was based on cultural relativism, but a judgment that was rectified when the Canadian courts came to their senses.
The story: an Iranian immigrant who moved to Canada was convicted of long-standing and violent physical abuse of his wife. The description:
The convicted man, whose identity is protected by a publication ban [JAC: Why is there a ban? He’s no longer living with his family. Why would Canada hide the identity of a criminal who was not a juvenile?], moved to Canada with his family in 2009. The judges found he sexually assaulted his wife three to four times a month, forcing her to “have sex with him by hitting her, pulling her hair, pinching her and forcefully removing her clothes.”
“The sex was painful. She cried out quietly so the children would not hear,” the judges wrote.
He also violently abused her and their two sons, slapping, kicking and punching them and hitting them with a belt.
“On one occasion he locked them outside on a snowy winter day while they were wearing nothing but shorts and T-shirts. They waited barefoot for 40 minutes until their mother arrived home,” the judges wrote.
The assaults, which began in Iran, continued in Canada and came to light when the youngest son confided in a teacher at his school.
The man was given 18 months in jail, serving only six before he was released. During his trial, he did NOT use ignorance of the law or of Canadian customs as an excuse; as the Star said, “he denied the violence entirely.”
William Gorewich, a judge in Newmarket, gave the accused a sentence much lighter than usual for his abuse because Gorewich decided that the man’s actions “[suggest] a significant cultural gap between what is not accepted in this country, and what is accepted in her native country.” The judge also said this in his decision:
“In my considerations, I ask how much weight [should] the cultural impact of moving from Iran to Canada be given. [The respondent’s wife] testified in Iran if she complained about any abuse she would be ignored. It is a different culture, it is a different society. As far as I’m able to ascertain from the evidence, those cultural differences moved with them from Iran to Canada,” Gorewich wrote in his judgment.”
An appeals court ordered the man rearrested to serve a longer sentence. I’m not sure how this works in Canada, but unless someone who’s served his time already is found guilty of a new crime, they can’t be re-arrested in the U.S. and put back in jail for the original crime. But the appeals court gave the man another 2.5 years (in the interim, he’d moved in with another woman):
“This was not a sentence that was slightly outside of the appropriate range. It was far outside the range,” wrote Justices Mary Lou Benotto, Alexandra Hoy and David Doherty.
“Cultural norms that condone or tolerate conduct contrary to Canadian criminal law must not be considered a mitigating factor on sentencing,” the judges ruled, adding two and a half years to his sentence.
Thank Ceiling Cat the appeals court rectified the unwarranted “cultural mitigation found by judge Gorewich:
The Court of Appeal ruled that Gorewich erred by finding that the wife and children had “no injuries,” the man was at no risk of reoffending, and the sentences should be concurrent. But the judges reserved a page and a half of their 14-page ruling for refuting his use of cultural considerations in sentencing.
“Cultural differences do not excuse or mitigate criminal conduct. To hold otherwise undermines the equality of all individuals before and under the law, a crucial Charter value. It would also create a second class of person in our society — those who fall victim to offenders who import such practices,” they wrote.
“This is of particular significance in the context of domestic violence. All women in Canada are entitled to the same level of protection from abusers. The need to strongly denounce domestic violence is in no way diminished when that conduct is the product of cultural beliefs that render women acceptable targets of male violence.
“If anything, cultural beliefs may be an aggravating factor enhancing the need for specific deterrence in cases where the sentencing judge is satisfied that the offender continues to maintain those views at the time of sentencing.”
I’m sorry to say that Gorewich’s sentence may be what happens when, imbued with the racism of low expectations, a judge lets someone off lightly because reprehensible behavior is more common in their native land. That won’t stand in any enlightened country, for “ignorance of the law is no excuse.” Actually, I’m surprised, for I thought immigrants to Canada underwent a stringent acculturation process to acquaint them with Canadian laws and customs.
If the law in Canada is the same as the UK then his identity would be withheld because it could lead to his wife being identified and as a victim of a sexual assault she has anonymity.
And the children, who in UK would have absolute protection
Same here in NZ – it could be to protect the children from people knowing about what they suffered.
Here in the US, we have similar protection for the identities of sex-offense victims, in that the courts and counsel are prohibited from releasing their names (although if the media nonetheless learn their identities, they have the discretion to publish them, under the mantle of our First Amendment).
Sex offense victims yes, but the offender? He gets protection from identity? How does that work?
If the victims were the man’s wife or children, you can’t identify him without identifying them too.
As others have said his name is not being released so as to protect the victims, however he is now a registered sex offender so you can find his name if you want.
I’d go farther and ask what purpose Jerry thinks would be served by identifying the husband. On the determinist view frequently put forward here, the abuser is himself a victim of “genes and environment” who therefore does not deserve to be publicly shamed or demonized.
Yes, I ran into the cultural difference wall hard here.
My understanding was that it was purely for commercial, morally problematic reasons US media regularly identifies a perpetrator. It is not (supposed to be) done here in Sweden unless it is in the interest of the public. (Say, serial offenders.) I think there is a press ethic system that regulates here.
I did not know it was the wish of a majority of US citizens to know criminal identities!?
As I understand crime statistics, most are one time offenders. Their legal and baseline social status is, I think, considered “reset” after punishment here in Sweden. (Though of course with a record, in case of further offences.)
I am also confounded by the US appeal system. If not appeal can be done at any time – possibly deducting punishment time, possibly adding it – if a discovery of jurisdictional error or fresh evidence comes in, how can the consequences be considered fair? Mind, I note that in Sweden appeal conditions are strictly regulated. (And that the 3d instance of High Court only has to accept cases that sets precedence, so most cases tend to be adjudicated at the 1st or possibly 2nd level courts.)
Public identification of the criminal/breakers of law has always been done in the U.S. It is kind of a freedom of press thing. But at the local level, state level and federal level the criminals are identified. The court room is open to the press – this is pretty standard here. The people’s right to know….
“The people’s right to know” is question-begging. Why should the people have such a right? Whence does it derive? What social good does it serve?
I think Torbjörn is right, and “the people’s right to know” is an invention of profit-seeking news agencies trying to put a positive spin on their ghoulish exploitation of other people’s misfortune.
Well, everyone has a right to their opinion on this – I’m just telling you how it works in the states. Even in small towns they will regularly publish in the paper, the weekly crime business. They will publish who goes to court and for what and what was the penalty. They print who got stopped and nailed for DUI. Every criminal makes the news.
Not at all related to freedom of the press. Rather a principle of law adopted from English law prior to US Independence.
Secret arrest, secret courts and secret prisons are the very antitheses of democracy.
Publicizing the offender’s name offers notice to his potential future victims and promotes a deterrent effect among future potential offenders.
That (not shame or demonization) is the theory behind sex-offender registry requirements in the US.
Except there is no such thing as a deterrent effect. Criminality does not work that way – people don’t think “Hey if I punch this guy I will get my name in the paper, I better not”. They think “That F’in a-hole!”
The publication of names is simply shaming. Nothing more.
Agreed.
cr
The “deterrent effect” is primarily aimed not at the defendant, but at similarly situated people who might be given pause to think “I don’t want to commit a crime like that for fear of going to prison.” (Do you deny that people’s conduct can be modified through a system of rewards and punishments?)
In the US, the 6th Amendment to the Constitution guarantees that criminal trials will be “public.” Among other things, this means that (with a few carefully circumscribed exceptions) judicial proceedings are to take place as transparently as possible, with all participants — judges, prosecutors, defense counsel, jurors, witnesses, and defendants — clearly identified on the record for the public to see and the press to report. This guarantee serves the interest not only of the public and press, but of defendants as well, by keeping the system honest and promoting the equal protection of law for all.
The point about transparency is a good one.
The argument from deterrence seems less plausible. If a potential offender is not deterred by knowing that other unnamed offenders have been caught and punished, it seems unlikely that knowing the names of those other offenders will make a difference.
I don’t think Jerry ever said something quite like that – Most traits require multiple genes operating in a complex interplay. Moreover environment affects the activation or inactivation of genes. Its an interplay of genes and environment in the great majority of cases
Gregory is not making a point about genetic determinism, that’s a different sense of determinism. The extent to which the man’s actions are attributable to genes or environment doesn’t matter – both are physically deterministic processes. The point is that in a deterministic no-free-will model, punishment solely for the purpose of retribution is not justified.
The question, then, is whether identifying the man is justified for reasons other than retribution. Such reasons might be – to keep other members of society safe; deterrence of the perpetrator or others.
I’m surprised, for I thought immigrants to Canada underwent a stringent acculturation process to acquaint them with Canadian laws and customs.
Perhaps he did, but this guy is obviously disturbed. My take is people who chronically engage in physical violence don’t think about the consequences while enraged.
Disturbed, or the “victim” of an extremely patriarchal religion/culture where women are second class citizens who should always obey their husband or father (“or else”) and whose testimony in court is worth only half that of a man.
I’m not saying this behaviour is “normal” in Iran. But it might be as “normal” as child abuse in the Catholic church.
“Actually, I’m surprised, for I thought immigrants to Canada underwent a stringent acculturation process to acquaint them with Canadian laws and customs.”
Of course, that will hardly erase a lifetime of upbringing in a totally different culture and centuries of cultural-religious baggage.
Some people are just like that or predisposed genetically, and most people are predisposed by cultural expectations. There are still many cultures today that teach children from a young age that certain violent or abusive behaviour is entitled to certain groups as a matter of course across the entire culture and many countries. But it has become only acceptable to point this out in cases of white racism –
e.g. Legislator asserts each time a wife denies her husband sex it is the same as physical abuse, and denying men the right to marry more than one wife is abuse
http://www.bbc.com/news/world-asia-40737360
Violent behaviour is partly environmental and partly genetic. Apparently our ability to empathise is due to the development of a spindle of neurones between the amygdala and the seat of feelings and other areas in the prefrontal cortex. These develop around age four – but may not in adverse conditions. Likewise psychopathic traits can run in families.
The publication ban is to protect the victims. Victims of sexual assault in Canada cannot be identified unless they personally waive the right.
I am guessing that he was out on parole when he was re-arrested. It said he received an 18 month sentence but only served 6 months, which means he was out in the community on parole for a year following his release.
That’s my reading of it too. If you’re let out early, you’re actually “on licence”, and subject to recall to prison at any time in the remaining part of your sentence. For someone given a “life sentence” (mandatory for murders) but who only serves 5-8 years (about average for a murderer), then for the rest of their life, they remain subject to recall to prison at any time, on the orders of magistrate/ Sheriff. Which isn’t common, but does happen.
Still, that would only explain adding on another year, not another 2.5 years, methinks.
“I thought immigrants to Canada underwent a stringent acculturation process”. Well, I am one of them and there’s not such a thing as acculturation process. You don’t even need to speak the languages passably. You are forced to memorize some facts about Canada to acquire the citizenship, which you forget completely in a few days. And then the CBC relentessly encourages you to hate the Great Evil: Western culture.
Fernando is right. I am also an immigrant to Canada, and I can tell you there is no attempt to make you follow the mainstream uses of the country. Just the opposite, as the constant celebration of “multiculturalism” on the media encourages immigrants to hold to their cultures of origin, and to form enclaves inside the Canadian society.
Errors in sentencing [whether too short or too long] can be corrected under US law without triggering the principle of double jeopardy. One example was the Hammond case in eastern Oregon, where two ranchers were ordered to return to Federal prison to serve out a longer sentence. [This was the purported cause de guerre for the Malheur Refuge occupation.] The review court ruled that the trial judge had erred by not following a minimum sentence law.
Other legal systems may have very different concepts of double jeopardy — we saw Oscar Pistorius returned to prison on appeal, the trial judges were ruled to have misapplied the law and [IIRC] inappropriate in applying extenuating circumstances.
I do not understand Jerry’s position on this at all. As an incompatibilist he has endlessly argued that we are the causal products of our genes and culture alone and bear no free will to alter matters. This chap came from a very repressive male dominated culture – all the more reason for the incompatibilist to not blame him for his actions. As he will in all probability end up separated from wife and children in future there is no incompatibilists reason to remove him from society. And retribution? Never!!
I cannot understand the tone of this post, it reeks of compatibilist logic.
I believe you confuse and conflate two issues here. Being an incompatibilist that would want penalties changed or reduced does not conflict with wanting respectable sentences for crimes maintained. If the person in this case simply stoned his wife because that was the culture he was from – do you want to let that one go as well. His actions in this country must be met with the laws and penalties in this country as they stand.
I believe you confuse and conflate two issues here. Being an incompatibilist that would want penalties changed or reduced does not conflict with wanting respectable sentences for crimes maintained. If the person in this case simply stoned his wife because that was the culture he was from – do you want to let that one go as well. His actions in this country must be met with the laws and penalties in this country as they stand.
Crap, scatch that second one.
I don’t understand your incompatibilist reasoning at all Randall. Why on earth would an incompatibilist call for so-called “respectable” penalties? These penalties that exist have been created under a system that believes in free will, so how can they be “respectable” in your eyes? The present system allows for an element of retribution – again something anathema to one who rejects moral responsibility. And of course relativism MUST reign supreme to the incompatibilist – for the more one is the victim of influence from one’s own backward culture, the less culpable they must be as agents.
I am amazed that anyone who seeks progress of any sort in penal reform would dare follow incompatibilist reasoning. Their thinking would produce exactly the relativist position that you seem to criticise.
The deterministic model is not that we have free will that is conditioned by culture or genetics; it is that there is no free will at all. So it is not logical (from a deterministic perspective) that a person from one cultural background who commits a crime is any more or less “responsible” for the crime than a person from a different cultural background who commits the same crime.
In any event, the strong implication of no-free-will determinism is that there is no moral justification in punishment solely for retribution. But that does not remotely imply that we should, overall, be “softer” on crime. The reasons OTHER than retribution to punish this man appropriately are surely quite obvious.
Agree.
Some hard-(in-) determinists promote the view that criminal offenses are analogous to dangerous contagious diseases. We quarantine people until they present no danger anymore for public health. We could do the same with criminals.
It would become our responsibility to cure
criminals and when they are cured they are free to join society again.
In this view, there is also no justification to treat criminals miserably, just like quarantined humans are not treated unnecessarily inhumane.
Whatever the merits of this view of criminality as disease, it’s at odds with Jerry’s demand that the perp’s name be published. We don’t publish the names of ill people without their permission; on the contrary, we hold medical records to be highly personal and confidential.
You’re persevering with a straw man here.
No-free-will determinism does not imply that criminality should be dealt with in the same way as illness. It is perfectly consistent with severe punishment of criminals, even to the point of killing them, provided that the purpose of the punishment is justifiable for the protection of society from the criminal, or for the deterrence of future criminals.
The moral implication of no-free-will determinism is that we should not punish criminals SOLELY for retribution.
Both Jerry and Sam Harris have repeatedly defended the view that determinism implies that “we’re all brain-damaged”, “it’s brain tumors all the way down”. That seems pretty explicit to me.
Yes, and the point is to emphasize that criminals are not “responsible” for their crimes in the sense that they “chose” to be evil.
There is no implication that we should not punish criminals for the purpose of deterrence or the protection of society.
No, unfortunately it doesn’t say or imply anything about naming (or shaming) a person.
Finding the best therapy for a person is a scientific question.
Reblogged this on The Logical Place.
I remember being thoroughly disgusted by this case. Cultural relativism is widely accepted here amongst les biens pensants. Thankfully the court shows more sense.
A Human ethical standard should not longer be set aside or obscured by (largely misunderstood) principle of cultural relativism. Can humanity please just grow up and stop playing high school popularity contest? For all his education and intelligence (I assume by his post) the first judge needs more education, more balls, and less relativity. As the question the second judge enlightened: Are all humans equal under the law or under ‘relative ethical beliefs’?
The first ruling is ( beyond culturally relative and over philosophical standards) just plain stupit.
The United States Sentencing Guidelines (which are applicable in federal criminal cases) contain a policy statement providing that factors relating to a defendant’s “national origin” are not relevant to the determination of the defendant’s sentence. The federal courts have generally (albeit not quite uniformly) interpreted this to mean that issues regarding a defendant’s “cultural heritage” are not to be considered at sentencing.
Jerry’s Chicago cat buddy, Seventh Circuit Judge Richard Posner, wrote a widely cited opinion on that issue here.
Thanks for that info.
Absolutely. The offenders behaviour of violence to force sex is like the violent behaviour of male chimps against the females – until they accept sex. Humans of course do not normalise this and it is not normal, but in some cultures it is completely acceptable – what is not acceptable (indeed punishable) is female complaint. (e.g.
Prof Robert Wyman – global problems of population growth – on Open Yale courses)
Those who want to come to cultures that don’t practice the oppressions or have the living standard of their home countries must be expected to accept and be held to basic human rights norms. This is a nice counter to things like Trudeau objecting to calling honour killings “barbaric”. Great to hear that Ontario court has affirmed that cultural norms that excuse violence have no place in Canada
https://twitter.
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Seriously? A domestic abuser is at no risk of re-offending? Judge Gorewich is an idiot.
Cultural baggage immigrants bring to a new country must be discarded if it is in conflict with laws of the land. There can be no excuse for raping or physically abusing a spouse (or any other female or male.) One could just as easily say that it’s all right for Muslim males from the Middle East to rape women dressed normally for their own country (for example, any of the Nordic countries), but in ways that would cause them to be viewed as unchaste women targets (whores) in the Middle East. One could also excuse jihad and religious killings because of cultural differences. No. One must be aware of and respectful of the new country’s laws.
Yes, I agree. One wonders sometimes if the perpetration of unacceptable behaviour based upon the norms of their birth culture just indicates contempt for the laws of the country that they’ve moved to, in cases like this.
sub
In principle there is nothing wrong with cultural relativism, we should look unbiased to the habits and customs of other cultures.
Only when people confuse cultural relativism with moral relativism: the believe that all value systems are equally valid, how different they may be, they go wrong.
Moral relativism leads to absurd logic; because I believe A, it is justified to do B (beating and raping my wife).
In contrast, I’m a moral nihilist: the believe that all value systems are invalid; there exists no believe A that justifies action B.
…and yet, this happened in the UK…
http://www.telegraph.co.uk/news/uknews/crime/8937856/Muslim-women-not-used-to-drinking-walk-free-after-attack-on-woman.html
The judge made allowances for the attackers nt being used to drinking alcohol!!!!
I think in this instance the judge is correct in making some allowance for the physical circumstances of the offenders (i.e. that they were unused to alcohol). He is NOT allowing for their beliefs.
Judges make such allowances all the time. It’s part of the judicial system.
(I’m not debating whether the extent of the allowance he made was correct. The Torygraph’s headline is misleading, they didn’t ‘walk free’, they got suspended sentences and community work).
cr
That’s appalling! Sounds like a most brutal assault.
If you read the article, it seems insults were exchanged and the victim’s boyfriend was trying to defend her (which means he was counter-attacking the Somali women).
So it wasn’t entirely one-sided and – without hearing the full evidence of what happened as seen by the court – I wouldn’t accept the Torygraph’s account as unbiassed.
cr
I did read the full article. I was more struck by the kicking-her-in-the-head-when-she-was-down” bit. But no matter what we read into this incident from a single popular press article, I’m unimpressed by the idea that lack of experience with alcohol excuses physical assault.
Doesn’t excuse it, but it may be a mitigating circumstance. I’m also guessing it may have been a first offence. (This would apply to anyone regardless of religion).
But the relevant point I’m trying to make is, contra what the Torygraph may have been trying to imply, in this instance their religion was not raised or considered as a mitigating circumstance.
cr
I never mentioned religion, this issue and my post referred to cultural backgrounds, and allowances being made for one in the context of another…
If a Westerner goes to a Middle Eastern country, we are expected to adhere to their cultural norms, but when they come to the west, they somehow think we have to bend our norms to accommodate their culture…
It is not a balanced situation…
“I never mentioned religion”
You didn’t, but the Torygraph did, and its bias is fairly well-known.
I generally prefer to assume that the judge (who after all has heard the whole case, and seen the demeanour of the parties in the courtroom, not just those details the paper chooses to report to manufacture indignation) has usually got it about right. I acknowledge that judges do sometimes make mistakes but I’d sooner trust a judge than a reporter.
It would be interesting to know how many cases of assault were dealt with in Britain that week, and in how many mitigating circumstances were allowed to reduce the sentence.
As an aside, making allowances for someone being under the influence of drink is the *opposite* of what Muslim culture might do.
cr
Laws are badly used….sometime