Cultural (In)Sensitivity: The Dangers of a Simplistic Approach to Culture in the Courtroom

Abstract

This article investigates how courtrooms and legal processes recognize, react to and thereby create 'cultural' information. Drawing on contemporary Canadian examples and the US experience with 'cultural defences' to criminal charges, the author considers not so much how courts should react to cultural practices but rather the problems with the way we identify these practices in the first place. This 'identification' process is often a form of cultural racism and is sometimes masked as an effort at cultural sensitivity. Not only is cultural information incompletely collected and imperfectly understood, it also tends to be considered only against the unarticulated, unexamined norm of North American mainstream culture. Legal institutions produce distorted views of 'Other' cultures as well as an intriguing shadow picture of mainstream culture-both of which reveal a deeply held belief in the mainstream tradition's superiority. This process can be particularly harmful for women from non-mainstream cultures. Not only does it construct their own cultural traditions as being dangerously misogynist, it also refuses to recognize those elements of mainstream culture that subordinate and endanger women. The conclusion considers the range and complexity of the challenges that judges, litigators, litigants, and communities face in trying to avoid a simplistic approach to culture, stressing the need for more careful approaches to cultural sensitivity training in judicial education and litigation strategy.

Keywords: Cultural sensitivity, law

JEL Classification: K10, K19