New defence of cultural ignorance?

The Weatherston case made many question the legal system, as did the Bain retrial. After stabbing a person more than 200 times, could the defence of provocation really be used to reduce the charge to manslaughter? And after a jury has already found a man guilty of killing his family, can he then be released despite what seemed to many to be overwhelming evidence showing his guilt?

Now NZ has a new case to puzzle over: the killing of Janet Moses by members of her family.

In 2007, the 22 year old died during a Makutu-lifting ceremony performed by five members of her family. It is reported that up to 30 members of her family watched as water was forced in to her eyes and mouth in an attempt to lift the curse, and grazes and scratches were inflicted upon her body.

The five family members involved have not received jail terms, but community sentencing instead, as

 “the guidelines for sentencing in manslaughter cases were not as strict as for other charges. It was within the sentencing discretion available to the court to give the community sentences and therefore the Crown would not be appealing”.

This decision has drawn criticism from the public and also Sensible Sentencing Trust, who believe this may set a dangerous precedent for other cases.

Bloggers (as they do) are also putting their strong opinions forward. One commenter on Cactus Kate’s blog says:

It’s worse than that, Kate … Francis J has just authorised the use of water-boarding (you know, the “harsh interrogation technique” which even the fucking CIA aren’t allowed to use any more), provided it’s for a “spiritual” reason and you have brown skin. What a disgrace.

Labour MP Trevor Mallard is now facing criticism himself for comments he made on the Labour blog, suggesting the only reason they were given such a lenient sentence is due to their Maori ethnicity. The comments below his post are also an interesting read, with one person saying:

 ” Good intentions or not the prison sentence needs to reflect the absolutely horrific nature of the crime.”

Mallard has been criticised by members of parliament, with PM John Key saying “it is generally bad practice for politicians to comment on sentencing.” 

Justice Minister Simon Power said he does not comment on sentences out of respect for the separation of the judiciary and the executive. He advised other MPs to do the same.

Key has also said he supports the judge’s decision.

If the judge really believed that they didn’t go in there with the intent to kill, if they went in there because they truly in their hearts believed the person was possessed, then I’m not sure locking them up would achieve a lot.

 Justice Simon France says in his judgment notes:

In setting out these facts I intend to take more time than would normally be the case on sentencing. I do so because I cannot do fairness to the situation, nor assist people to understand the sentencing response, unless a reasonably full context is provided.

Those involved have all been ordered to take some sort of cultural course as part of their sentence, with many, including the judge, saying that they did not have a proper understanding of their own culture and what they were attempting to do.

Rawinia Higgins from Victoria University’s Maori Studies Department, says the condition the offenders must attend a tikanga Maori course or similar cultural programme raises some bigger questions and it is sad some Maori are being forced to learn their culture through a course. Dr Higgins says it appears the judge felt there were inadequacies in the group’s knowledge and understanding of their own culture.

With jail terms being handed out for crimes less serious than a death, one does have to question decisions like this. At the end of the day, a life was taken, and similar crimes as noted by bloggers and other articles have all resulted in jail time.

Another case for NZ this year where the defence and circumstances may become references for future legal defences, in this case, how should culture be considered when that seems to be the reason for the crime?