Wednesday, January 22, 2003

Women and Muslim minorities in Europe

Two news stories today about women's rights and immigration to European countries. From the NYT, continued coverage of the Muslim dissident woman running for Parliament in the Netherlands. Via Best of the Web, this story from Norway about an immigrant's sentence for the rape of a mentally handicapped woman being reduced to a fine (from an initial, whopping, sixty days in prison) "on the grounds that he had only lived 12 years in Norway and so had difficulty understanding the victim's condition."

The Norwegian case is pretty dismaying, though that doesn't make it easy.

The accused, a 22-year-old taxi driver originally from the Middle East,
explained that he found nothing odd about the woman's appearance or
behavior. The woman used a 'TT-card' - a transport sponsorship arrangement
for the handicapped - when paying for the ride.

The accused also argued that cab drivers often talked about easy sex offers
from female passengers, especially late on weekends. He also believed that
it was easy to sleep with Norwegian girls one had just met.

The court ruled unanimously that the accused should not serve jail time, but
was ordered to pay the woman NOK 25,000 in damages and to replace her
ruined coat.

The court found that the man's comprehension of the Norwegian language was
worse than that expected of someone resident since 1990 and could not rule
out that his age, cultural background and immaturity could have contributed to the assault.

The thing is that-- as conservatives are eager to remind us in the case of allegations of date rape on college campuses and so on-- mens rea and intent are relevant to our thinking about rape. Someone' s failure to understand someone else's incapacity to give consent-- or someone's genuine misunderstanding about whether someone else has given consent-- matter. How, and how much, such things matter are vexed questions in both law and philosophy. But if and to the degree that they matter, then the courts shouldn't rule out considerations of culture in sorting them out. It's pretty dismaying if some Middle Eastern men in Norway are so isolated from Norwegian society that they believe women are likely to have sex with their taxi drivers at the drop of a hat. And it's pretty dismaying if immigrants are so isolated that twelve years isn't enough time to allow the courts to assume that an immigrant has basically figured such things out. (And, frankly, it's pretty dismaying that, in the absence of such extenuating circumstances, the trial court only handed down a sixty-day sentence.) But if those things are true, then it seems to me they do affect mens rea and intent. Cases such as this are different from pure cases of what's referred to as the "cultural defense," in which a violent act is actively defended as being a genuinely appropriate cultural tradition-- Hmong betrothal-by-capture-and-rape, female genital mutilation, the killing of unfaithful spouses, kidnapping and beatings as part of initiation rites into an Indian tribe. In those cases, the defense isn't "I didn't understand that my victim didn't consent" but "I deny that the court's standards of consent are relevant, because the practice in question has a cultural justification that doesn't depend on consent." I think that defenses of the latter sort can't be accepted, but that defenses of the former sort are at least sometimes relevant to any system that in general considers intent as part of the criminal law.

I've written on such matters further in The Multiculturalism of Fear, especially chapter 2.

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