Australian courts face difficulties in dealing with honour killing crimes and forced marriage cases, Chief Justice of the NSW Supreme Court James Spigelman says. Speaking at the University of New South Wales in Sydney on Thursday night, Justice Spigelman said there is a “fundamental conflict” between tolerance of cultural traditions and human rights when it comes to such cases. Unlike in Britain, where forced marriage has been outlawed, Australia lacks the laws to deal with them. “There is a fundamental conflict between a human rights approach to these matters, on the one hand, and the tolerance of cultural traditions, based on the assumption of an equality between cultures on the other hand,” Justice Spigelman said.
“There is no way of avoiding the dilemma arising from this conflict of values.” Justice Spigelman cited the case of a Jordanian man accused of attempting to hire a person to kill his niece, who had ended her forced marriage and started a relationship with another man.The sentencing posed “acute issues” as to how much the cultural sense of disgrace experienced by the man should be taken into account.
“These are difficult issues calling for judgment based on experience,” Justice Spigelman said.”However, that experience must also be informed by the broader social context, including the emphasis now being given to preventing violence against women, even if motivated by cultural considerations.”
See: Honour killings coming to our courts: top judge; Joel Gibson; 16/4/10; http://www.theage.com.au/national/honour-killings-coming-to-our-courts-top-judge-20100416-shx0.html
When laws clash with culture
James Spigelman; April 16, 2010
Sexism in the European cultural tradition has been attacked on a broad front, including violence against women. However, there are important racial, ethnic and religious minorities in Australia who come from nations with sexist traditions which, in some respects, are even more pervasive than those of the West.Violence against women is significantly greater in some social groups, whether or not it is based on cultural tradition. This may well involve conflicts between values that are difficult to resolve. Clearly, on the criminalisation of physical violence the majority culture is not able to compromise. However, questions arise about enforcement and sentencing. It is difficult to know where to draw the line in cases where policies underlying these laws conflict with other policies recognising the respect that should be given to minority cultures.
See: http://www.theage.com.au/opinion/society-and-culture/when-laws-clash-with-culture-20100415-shfy.html; http://www.smh.com.au/national/sexist-migrants-create-legal-problem-20100415-shs6.html