Law 121 Lecture 26

Homosexuality and criminal law

 Decriminalization through liberty (‘no harm’) and equality before the
law (since 1980s)
 Asking the right question: should the State have the power (or ‘right’)
to interfere with private sphere?
 General importance of shifting the paradigm (e.g. from “why?” to
“why not?”)
 Any differences that might exist are on the same level as differences
culturally
 Argument of everyone is equal in the eyes of the law
 Same things need to be treated in the same way
 But different things need to be treated in a different way
Cultural defenses
 Defense available for cultural diversity
 Defense on the grounds that where I come from it is not considered a
crime
 We all need our common space and we need our law to accommodate
for our cultural diversity
 It takes a while for a foreigner to get used to kiwi life
 Some times these clashes are of a legal matter
 Cultural mechanisms in place to ensure a fair outcome
Discussion
 Minhinnick
 Colour of right (Claim of right/belief of being right)
 Charged with theft of the Victorian cross
 Minhinnick took it to his ancestral land because it belonged to his
ancestors
  His defense was that he honestly believed that because it was his
ancestors that he didn’t commit a crime
 S2 Crimes Act
 A belief that the act is lawful, although that belief may be based on
ignorance or mistake of fact or of any matter of law other than the
enactment against which the offence is allege to have been
committed
Kimura
 Lives in California, discovered her husband was unfaithful
 In Japanese culture this can be seen as a huge shame for the woman
 The practice is for the wife and children to then commit suicide to
walk away from the shame
 The thought that the children are better off not living and live with the
shame
 She then tries to drown herself and her children
 What is her defense?
 The American court accepted the plea that she committed
manslaughter and not murder based on cultural defense
Moua
 Also in the States, Moua form the Hmong tribe (Laos)
 Went to college and took her from the college in her station wagon
and took her to his cousin’s house and raped her
 Defense was marriage by capture
 The male demonstrates his dominance and woman demonstrates her
chastity by surrendering herself to the male
 And if they have intercourse it would be base on consent
 The woman agreed to the marriage at first but later changed her mind
 His conduct was not criminal at all and therefore should not be
convicted
 His conduct was criminal but should be excused because of a full
unqualified cultural defense

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  His conduct was not criminal and should be excused based on the fact
they both were part of a different culture where that practice would
be acceptable
 Key part is to determine intent
What is meant by a cultural defense?
 An affirmative defense based on cultural background
 A defence involving a claim that D is less or not culpable because he or
she was acting in accordance with their cultural traditions
 C.F. “cultural factors” or “cultural evidence”
 By supporting cultural defence are you then supporting violence?
 By in large Cultural defence is based on courts determining intent
When does it arise?
 “freestanding” cultural defence
 Acceptance of cultural factors or evidence in relation to existing
criminal law defences
 Could mean that a society like NZ might actually go too far into
cultural defence
 The risk is you are tolerating a certain behavior that is seen as highly
disruptive by other members of society
Pros and cons
 Individualized concept of justice
 Fairness to migrants
 Cultural pluralism
 Comes at a cost of social order
 Should be able to live in safety and security
 Who is eligible?
 Misuse of the law
 Equality before the law
 Vulnerable groups

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Should we focus more on law protecting core values such as life? Or should
it be more tolerable assuming that new culture brings new aspects of life
 Any culturally diverse country needs pluralism and acknowledge the
diversity
 Interplay between safety and having core values that cannot be
changed ie. Freedom of speech
 People must feel safe
 Should criminal law be applied regardless of who you are?
 Or should it be applied more case by case
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