Mitigation
So, like the pope with his fond references to hell and eternal punishment, that German judge made some things clear.
[T]he case brought before Frankfurt’s family court was that of a 26-year-old German woman of Moroccan origin who was terrified of her violent Moroccan husband, a man who had continued to threaten her despite having been ordered to stay away by the authorities. He had beaten his wife and he had allegedly threatened to kill her…According to the judge, there was no evidence of “an unreasonable hardship” that would make it necessary to dissolve the marriage immediately. Instead, the judge argued, the woman should have “expected” that her husband, who had grown up in a country influenced by Islamic tradition, would exercise the “right to use corporal punishment” his religion grants him. The judge even went so far as to quote the Koran in the grounds for her decision.
The woman should have expected it, therefore there was no rush about getting a divorce. That’s an interesting idea. You would think she’d married a grizzly bear, not an adult human being. And if she had married a grizzly bear who kept devouring pieces of her, would a judge say she should have expected it and that there was no rush about getting a divorce?
Germany’s only minister of integration at the state level…sees the Frankfurt ruling as the “last link, for the time being, in a chain of horrific rulings handed down by German courts” – rulings in which, for example, so-called honor killings have been treated as manslaughter and not murder. This, says Berlin family attorney and prominent women’s rights activist Seyran Ates, is part of the reason one should “be almost thankful that (judge Datz-Winter) made such a clear reference to the Koran. All she did was bring to the surface an undercurrent that already exists in our courts.” Out of a sense of misguided tolerance, says Ates, judges treat the values of Muslim subcultures as a mitigating circumstance and, in doing so, are helping pave the way for a gradual encroachment of fundamentalist Islam in Germany’s parallel Muslim world. It’s an issue Ates often runs up against in her cases.
It started awhile ago.
a few years earlier, an Islamic legal opinion dubbed the “camel fatwa” had been added to the professional literature. Amir Zaidan, the then chairman of the Islamic Religious Community in the state of Hesse, wrote the opinion. He argued that a Muslim woman could travel no more than 81 kilometers (50 miles) from the home of her husband or parents without being accompanied by a male blood relative. The opinion came to be known as the “camel fatwa,” because this was the distance a camel caravan could travel within 24 hours in the days of the Prophet Mohammed. Zaidan even defended this position at a 2001 conference of Germany’s protestant churches in Frankfurt. His argument was that a woman who traveled farther would run the risk of being raped.
Well that’s quite a good argument. Clearly a woman who travels 80 kilometers from home runs no risk of being raped, because there is a magic energy-zone around her which disintegrates when she crosses the 81st kilometer. Also clearly it is up to the law to imprison women to prevent them from running any risks. Also clearly it is up to men to decide what risks women can be allowed to take. Und so weiter.
It is by no means unusual for people put on trial for honor killings in Germany to be convicted on the lesser charge of manslaughter in the end. In 2003 the Frankfurt District Court handed down a mild sentence against a Turkish-born man who had stabbed his German-born wife to death. She had disobeyed him and was even insolent enough to demand a divorce. The court argued that one could not automatically assume that the man’s motives were contemptible. He had, after all, acted “out of an excessive rage and sense of outrage against his wife” — who he had regularly beaten in the past — “based on his foreign socio-cultural moral concepts.” According to the court’s decision, the divorce would have violated “his family and male honor derived from his Anatolian moral concepts.”
And yet – one hears often that no one ever says that honour killing is acceptable because it’s ‘their culture.’ Well, yes, someone ever does say that, and throngs of other people don’t say that but are mysteriously and profoundly silent about such things – except when they summon up the energy to say that no one ever says that honour killing is acceptable because it’s ‘their culture.’ It is not the case that there are no well-meaning people out there who make this mistake.
Oh, absolutely. Nothing unreasonably difficult about being beaten and threatened with death. Agh. I never have anything useful to say about this sort of thing; I just want to pound my head. Or better yet, somebody else’s.
That’s a mighty sloppy-looking use of the word “right” for a judge, isn’t it? I wonder how it plays in the original. In a court of law, I would think that religion should not be handing out rights. But apparently in this case the judge disagrees.
It’s an absorbing article.
It would appear that the outrage in Germany about this is right across the political spectrum.
Hopefully, once the outrage has passed, the government will get around to issuing better guidelines and changing the rules, so this sort of oppression is really not allowed – as German Law actually says.
Without IN THE LEAST defending these verdicts – I do not know enough about them and cannot check the details as I don’t speak German – I have several points to make contra the sentiment in this article. Not being versed in German law though I will discuss this against the background of UK law and assume that the differences are not likely to be fundamental. Finally, this has no bearing on the divorce case – I know nowt about divorce law or what is normal there so cannot comment meaningfully.
First, I would point out that the issue of ‘reducing’ murder charges to manslaughter does not necessarily have quite the implications presumed in the popular mind. Manslaughter is not precisely a ‘lesser’ charge, despite being referred to as such; it is more that murder has a very precise definition (malice aforethought, intent, etc.). In the UK, at least, a further difference (and a very important one) is that manslaughter carries discretionary penalties with a maximum penalty of life imprisonment whereas murder carries an automatic life sentence.
A manslaughter charge does not necessarily mean a minor sentence. Though in practice it often does, this may be more of an artefact of modern sentencing trends (just look at the average time served for murder in the States!). As stated above, in the UK the maximum penalty is life imprisonment.
That brings us to the question of whether a person’s cultural background be allowed to play a part in mitigation. Certainly the law and precedent suggest it should, and this is by no means something reserved for religion: take, for example, the case of R v. Morhall:
“The victim had been criticising the defendant for being addicted to glue-sniffing and the defendant reacted by stabbing him. The House of Lords held that the question of provocation had to be considered by reference to the effect that it would have had on the reasonable person with the characteristic of being addicted to glue-sniffing.” (from a speech by Lord Phillips, Lord Chief Justice)
In case you were wondering, yes, the charge in this case was reduced to manslaughter. A privileged position for glue-sniffers? To me, it looks less like Islam is getting special treatment per se and more like it is being treated as an addition to the social disadvantages (like glue-sniffing) that might make one less than a fully autonomous, responsible human being.
Finally, we should be wary of conflating verdicts in court with ‘Islamic legal opinions’ which are not worth the paper they’re written on.
Incidentally, does anyone know anything about German divorce law? If someone knowingly married a junkie, say, and got treated like shit would their prior knowledge of the junkie lifestyle and its probable implications have an impact on the divorce proceedings? That would seem a fairly analogous situation…
Ah, the “if you could have expected it, you deserved it – and the person that did it to you has done nothing wrong” thing. You see it all over the place. From the infamous “if she is going to wear a skirt like that what can she expect?” to “if he is going to make a film that offends Muslims he could have expected to be stabbed” to “if my professor sets the same test as last year he can expect me to cheat.” It seems to be such a common moral mistake. (Although seeing a judge make it is triply alarming.) Surely it’s been “officially” recognised and documented as an informal fallacy?
Well that’s quite a good argument. Clearly a woman who travels 80 kilometers from home runs no risk of being raped, because there is a magic energy-zone around her which disintegrates when she crosses the 81st kilometer.
I imagine you were merely being flippant, but you could apply the same sort of reasoning to speed limits. (That’s by no means to say I mean to defend this misogynist and his medieval “rules.”)
One might call that the ‘inadequately precautionary’ fallacy, and further point out that it has a counterpart, usually invoked by the plaintiff’s lawyers in civil suits, the ‘why didn’t you design your product to be safe for morons’ plea.
Between the two, the good old common-law principle of ‘reasonableness’ is stretched to breaking-point… But then reasonableness is ineffably culturally bounded, and so was bound to be.
“but you could apply the same sort of reasoning to speed limits.”
You could? There are speed limits that alter the permitted speed according the the distance of the driver from her/his starting point? I thought speed limits varied according to degrees of congestion, crossing roads, pedestrians and the like, and that they were fixed, and tied to specific locations as opposed to being pegged to the ratio between each driver and its ignition point. The latter sounds chaotic.
Dave:
You could be on to something, but I’m not sure those two concepts are necessarily analogous. In the case of trivial civil suits, if someone, for instance, fell and hurt themselves while climbing on their refrigerator door to change a light-bulb, then they’d be suing the refrigerator manufacturer for not warning them the refrigerator wasn’t safe for that use. But in the case of, say, a woman who marries a hard-line Muslim who beats her, no one is claiming that she should have been warned. Instead, they’re saying that the husband beat the wife and so he should be punished. With the refrigerator-climber, there is nothing analogous to the husband. There’s only physics and gravity, which, obviously, aren’t moral agents.
So, I wouldn’t have said there’d be any inconstancy in telling the refrigerator-climber they’re an idiot and to go home while also convicting the wife-beater.
OB:
Well, all I meant was that one could say something like: “Clearly a driver who travels at 70MPH runs no risk of an accident, because there is a magic energy-zone around them which disintegrates when them speed-up to 71MPH.”
Perhaps it was simply pedantry on my part though!
Ed,
Ah, I get it. Fair point! Vagueness problem in speed limits.
Pedantry is a good thing.
(Let’s see…women can go no faster than 30 mph without a male escort. That should solve it.)
Counterpart, not equivalent – one points to the culpability of the defendant, beyond ‘reasonable’ bounds, the other [the former, in the order we approached them], to the ‘negligence’ of the plaintiff/victim, also beyond reasonable bounds….
They’re both daft, that’s why they’re fallacies…
Question for outeast:
Has there ever been an instantiation of a reasonable person who is, nevertheless, addicted to glue sniffing?
Sounds like an oxymoron to me.
An oxymoron? It sounds incoherent to me!
Has there ever been an instantiation of a reasonable person who is, nevertheless, addicted to glue sniffing?
Ha! History, as they say, does not relate. I think the point was that the jury were not asked to consider whether a sober reasonable person would kill anopther over a few jibes but whether that person’s addiction to glue sniffing had affected their sense of proportion. Similarly, a person’s religious convictions might affect their rationality and sense of proportion… which might make a disproportionate response understandable. The fallacy comes in when ‘understandable’ is conflated with ‘excusable’.
I think I get it. The fact that one may express reasons for a peculiar act does not confer reasonableness on the act itself.
Something like that. It’s bound up, I think, with ‘responsibility’: when we say, for instance, ‘x is partly to blame for y’s crime’ we tend to think of this as diminishing y’s culpability. But responsibility is not a zero-sum game, and while x may be deserving of censure or even punishment this does not absolve y of a commensurate amount of blame.
I think this is the problem with many diminished responsibility mitigations. It may be true that (to construct an example) Adam incited Borek to beat Claude, but this should not diminish Borek’s culpability. The law would agree with me here. However, this should be extended to other outside influences: if Dobson would not have murdered Eustace without a glue addiction then it is true that the glue addition is in part to blame, but this does not (or should not, imho) mitigate for Dobson – assuming, that is, he was in a position not to choose to become a glue sniffer in the first place.
But sometimes influence is genuinely mitigating, no? That’s why entrapment is not considered legitimate, isn’t it? Cops and prosecutors aren’t allowed to persuade people to commit crimes and then arrest and prosecute them for those crimes.
In a way Abu Ghraib could be seen as entrapment of the lower ranks who were prosecuted. In fact having read the Zimbardo article I think I do now see it that way, more than I did. Apart from anything else…people in charge of setting up and running prisons really ought to know enough about the subject to be aware of the SPE and its implications. If that’s right it was starkly incompetent and a kind of entrapment to fail to supervise the soldiers properly.
Actually, that’s exactly what I’m rejecting – not that the people setting up and running prisons should not be aware of the psychological impact of such environments (as shown by the SPE), but that such impacts exonerate the abusers of prisoners.
Similarly, entrapment is itself ethically unacceptable but I reject the concept (even though it is enshrined in law) that entrapment exonerates the criminal. I do so for the same reason that I reject the idea that an upbringing in a culture that endorses the abuse of women does not exonerate the abuser.
Basically, free will may be an illusion, but nevertheless it seems incumbent upon us to act as though it is not. Mature and competent individuals must be held fully accountable for their actions. That does not mean that those (say) inciting crime or fostering abuse should not also be held accountable – as I said, this isn’t a zero-sum calculation.
But I said mitigating; I didn’t mention exoneration. I think I was fairly careful not to – because I think I agree with you. I am somewhat ambivalent though. I suppose I think both that people ought to do better and that situations can strongly influence people to do things that they simply would never do in the absence of the situations.
I suppose the point about abuse of women and exoneration is…that the goal isn’t punishment of abusers, it’s the end of abuse. Conceptualizing the abuse of women as a crime seems like one necessary step toward ending abuse, but that could entail reform, rehabilitation, re-education, rather than punishment. Which is not to say that I don’t want abusers to be punished – but it is to say that I don’t see that as a goal in itself (and that I’m probably not right to want to see abusers punished).