Cross-Cultural Justice and the Logic of Reciprocity: When Westerners Run Afoul of the Law in Other Countries
Renteln, Alison Dundes, Judicature
Sudanese protesters hold a newspaper carrying a photo of British teacher Gillian Gibbons during a protest in Khartoum, Sudan. The protestors called for the execution of Gibbons, who was convicted of insulting Islam for letting her students name a teddy bear Muhammad.
The cultural defense is a controversial policy whose validity is often questioned because it may interfere with the assimilation of the newly arrived.1 Those opposed to taking cultural factors into account in legal proceedings usually refer to the adage "When in Rome, do as the Romans do." The gist of the proverb is that one should follow local customs, and a corollary of this saying is the doctrine that ignorance of the law is no excuse, or Ignorantia iuris neminem excusat.2
If legal systems persist in dieir adherence to the monocultural paradigm upon which this proverb relies,5 it is worth considering the logical implications of rejecting the cultural defense for "Westerners" who venture abroad. The basic question is whether individuals who cross borders should always be held fully responsible when their conduct ostensibly violates the law of the country in which they find themselves.
To what extent, if at all, should a legal system allow the cultural defense? For those disinclined to permit the consideration of cultural evidence in the courtroom, it is important to recognize the consequences. If "Westerners" in other countries engage in customs taken for granted as part of dieir lifestyle, they may be surprised either because the action itself is considered a crime or because the offense is associated with much harsher penalties.
Although those who live or travel abroad are generally subject to the laws there, some are beyond the reach of the law for technical reasons. For instance, if they perform diplomatic functions, serve in the military, or have some other governmental role that gives them some form of immunity, courts may not be able to exercise jurisdiction over them. Nevertheless, foreign countries have methods of dealing with violations of local laws. Individuals may be deported, sent home as a persona non grata, or prosecuted if dieir home country waives immunity.
Others will be unable to escape the reach of the law. For them the question of whether judges in other nations will take into account the nature of the legal system in their countries of origin may well be crucial. The situations that involve this sort of dilemma vary with regard to whether the cultural difference relates to the interpretation of the act or the evaluation of its magnitude.
Types of issues
Sometimes the act itself may be socially unacceptable, but the conduct would ordinarily not result in punishment. For example, although there are public decency laws in many countries, what behavior is considered serious enough to warrant prosecution varies in different cultural contexts/ A striking illustration involved a British couple, Michelle Palmer and Vince Acors, who were allegedly inebriated while they engaged in sexual activity on a beach in Dubai. They denied that they were having sex, saying it was only kissing and hugging in public, and they were astonished to be arrested. The case attracted massive media attention with reporters portraying the matter as "a clash between Western permissiveness and Islamic values." A Dubai court found them guilty of "unmarried sex" and could have sentenced them to two years in prison.5 Instead they were sentenced to three mondis in prison, a fine of $272 for drinking alcohol in public, and deportation. Palmer was also fired from her position as a publisher at a Dubai-based company. It was unclear whether the disposition of the case hinged on the court's view of the sex offense or the lesser charge of indecency.
Evidently the case proceeded without the due process protections guaranteed in Anglo-American courts. Palmer said she was questioned without having received any warnings, she was required to sign a written statement in Arabic, and the press was not allowed to follow the proceedings in court. …