Free Law Essays - England's Booming Immigrant Population Brings With It The Question Of Assimilation
England's booming immigrant population brings with it the question of assimilation: to what extent does one remain culpable for the dictates of his or her native culture? Moreover, to what extent should England enforce its own laws and traditions? On one hand, the argument exists contending that immigrants ought to assimilate into English society immediately. Conversely, an equally feasible argument exists that while immigrants ought to take part in and abide by certain English laws and traditions, it is morally wrong for them to completely cede their native identity and beliefs. To better ascertain the proper measures that need to be taken in combating this new and terrible immigrant phenomenon, it is first necessary to understand the origin and causes of honor killings. After examining the centuries-old tradition, the appropriate English litigatory reactions to honor killings become more discernible and are put in a new context. Finally, the future of English legal action and the defense of provocation loophole will reveal that honor killings are to be taken in the same context as other domestic violence; the solution therefore is one that should be multi-faceted, involving the local community as well as the immigrant population.
THE ORIGINS OF HONOR KILLINGS
Modern honor killings most commonly occur in the Middle East and South Asia. Though a problem in many majority-Muslim nations, honor killings predate Islam, Christianity, and Judaism. Honor killing has many forms, be it ritual immolation upon the funeral pyre of a spouse (the controversial Hindu sati) or two men drawing swords over insults traded. As a matter of fact, today's honor killings are not unlike the duels that occurred until late in the 19th century; they were committed in order to justify slander or what was perceived as an insult. Male honor killing, exemplified in Japanese Bushido (hara kiri), focuses around the physical act of dying, the honor being earned in the male's death. In this form of honor killing, a man commits ritual suicide with what is known as a second. The second stands by, prepared to kill the man attempting suicide should he falter and compromise his honor. This unique form of honor killing shares the preservation of honor with others, though a second honor killing is to preserve honor by carrying out what the individual practicing Bushido could not. Most honor killings inside England, however, involve female victims who are accused of modernization, sexual infidelity, or sexual activity outside of wedlock.
Though a formerly common practice among Eastern European and South American immigrants, England's honor killings are committed predominantly by Muslim families of Arab and South Asian origin. Unlike Bushido, which focuses around death, honor killings in Arab and South Asian families serves as an act of retribution, not a goal to be achieved. Sometimes, though not often, members of one family may sanction an honor killing for the actions of another outside their clan or bloodline. For example, if one man kills another, the aggrieved family of the victim may ask that his own family (as an act of apology) kill the man guilty of murder. In Judeo-Christian-Islamic tradition, such an honor killing is reminiscent of sin and retribution, the calculus of which is very simple. If one group is caused pain or suffering, the other group must suffer no less. The group whose member causes the pain must take an extra step to make amends, usually through monetary compensation or an alternative arrangement. In the more brutal traditions of South Asia, there are honor rapes, which are tied to honor killing. Often, the tribulations of one family will be compensated by the group raping of a girl from one family by members of another. By compromising her sexual purity, the victimized family has not regained their honor. But their rape lowered the honor of the other family to a level inferior to their own. Often, the raped girl's family will later kill her to purge themselves of her dishonor (ironically forced on her by her own family).
Honor killings involving females, however, are completely unlike the honor killings involving ritual suicide. Unlike sati or hara kiri, honor killings are never at the behest of the person sacrificed. Instead of the second, who in Japanese tradition stands by in order to fulfill the wishes of the man practicing ritual suicide, honor killings are committed by a family member, usually a father or brother. Uma Narayan's Dislocating Cultures describes honor killing as a practice justified by male family members in order to make docile erstwhile sexually empowered women (Narayan 1997, p. 23). When a woman's family cites modernization, or Westernization, it usually connotes that woman's desire to leave her family, convert to another religion other than Islam, or marry a non-Muslim. When sexual fidelity is concerned, most Arab tribal repercussions have actually made their way into mainstream society, with countries like Jordan, Saudi Arabia, and Morocco sometimes directly condoning honor killing as a natural panacea for unruly female family members. Misconstrued by many in Europe, honor killings are not an inherently Muslim tradition; on the contrary, Islam requires four witnesses to the act in question (in this case, marital infidelity), and prescribes forty public lashings for unwed women engaging in sexual congress, and unfortunately death by stoning for married women engaging in extramarital affairs.
In countries such as Saudi Arabia, the government sanctions honor killings. For example, rape cases involve a death sentence. The man (or men) involved in the rape will be executed if found guilty by Islamic tribunal, but so will the female victim. Honor is something that can be compromised by a family member, costing the whole family disgrace; this antiquated system attributes shame or loss of honor to individuals. Honor killing, then, is a cathartic ritual that disassociates the family or group in question from the individual committing a transgression. In the case of the rapist, his family's honor would be compromised as he raped a woman from another family, causing the second family shame. Ironically, the rape victim would be perceived as costing her family honor in two ways: 1) speculation of her sexually enticing behavior, and 2) the shame of having her sexual purity ruined before marriage. If the woman is perceived as having acted in a sexually inviting manner, she will be killed for her harlotry. And even if she never invited the rapist, that her virginity is compromised is a shame her family will not often be willing to bear (Narayan 1997, p. 24). The terms for which honor killing is prescribed a necessary course of action are determined solely by the male members of the family. Though Quranic verses require four witnesses to the act in question, four male members will attest that the female was guilty without having born witness to the aforementioned incident. In any event, the helplessness of the female victim of an honor killing is apparent in the Saudi example; no matter what her actions or circumstances, a female rape victim is perceived by her family and society as having consecrated the purity of her family's honor. Because Muslim laws forbid a family to completely disown a living female member, honor killing becomes the only logical and religiously justifiable means for the family to purge themselves of their perceived shame. The impetus of preserving honor comes naturally in South Asian and Arab families as the familial unit is regarded as the foremost aspect of society. With sexual deviance, the family unit is compromised, as is a pure racial or religious lineage. The bias lies in the nature of sexual deviance. With women engaging in sex out of wedlock, the risk of pregnancy ensues, not to mention the shadow of doubt subsequently cast over the status of existing children as members of their father's bloodline.
DISCUSSING ENGLAND'S PRESENT DEALING WITH HONOR KILLINGS
England has dealt with honor killings in much the same way as they would normal murders. With the exception of defense of provocation rulings, England has sentenced many men to prison terms, most notably in the recent case of Abdullah Yones, a Kurdish man who in 2003 murdered his daughter for having a Christian boyfriend and becoming Westernized (BBC 2003). He has since been sentenced to life imprisonment, a punishment Yones oddly deemed incomplete. Yones himself has pleaded guilty and during the course of his trial sought capital punishment. In fact, Yones had slit his own throat shortly after killing his daughter, a unique instance in honor killing. While the parents of Palestinian suicide bombers have been seen ripping out their hair and cutting themselves out of sorrow, their lamentations are based on their failures as parents. Yones, who killed his daughter out of retribution, may very well have felt the same way. However, his regret at the action suggests outside pressure, most likely stemming from fellow Kurds in Yones' community.
Though the nature of the Yones case was one of cultural imposition, the courts rightfully took the stance of applying English law to a universal grade. Today, the crime of honor killing is treated as such: it is a crime, and the impetus of foreign cultural traditions are not taken into consideration when levying due punishment. Honor killings are approached by English courts in the same manner as spousal homicide, and rightly so. The same approach is taken with honor maiming; the English courts regard such as issues of domestic abuse. Very rarely, however, are measures taken to delve into the root of the cause, which is the concealment of such measures among communities themselves. Where the courts are stinted in law enforcement is in making examples of honor killing perpetrators.
Immigrant families that engage in these practices, whether South Asian, Arab or Eastern European, keep to their own communities and take extraordinary measures to police themselves (or maintain a lack of outside authority). Yones himself was only caught when he attempted suicide, leaping off a balcony after slitting his own throat. Because of the social exclusivity of such communities, the only people who would notice a missing girl would be those who interacted with her on a regular basis. Those same people would rarely take the initiative to report honor killings; as a result, speculation leads to the existence of the possibility of dozens more such cases going on uninvestigated.
The protection of women has not been taken into heavy consideration with English courts. Domestic abuse has been increasingly scrutinized among the majority of the English populous, and public service announcements can be found in all forms of media. The extent of these announcements has not permeated the block between immigrant societies and the mainstream. The power of the courts is limited, however, to the measure of integration needed to reach immigrant communities and educate them. The Yones case may not have been one of ignorance; established communities like the Kurdish communities, exiled by the Hussein regime in Iraq, have existed in Great Britain since the early 1980s. Other communities such as the South Asian and Arab communities have existed for nearly fifty years, which begs the question not of ignorance but of selective neglect. The greater issue at hand is the defiance of immigrant communities to accept English law as the law of the land. The more concessions the British government provides in immigrant autonomy, the more basic laws such as those regarding rape and murder will be ignored. These people are fully aware of the law, but choose instead to adhere to the laws of their native cultures.
While rituals such as marriage and divorce can be left to the communities, they are civil rituals and not entirely regulated by the government. The English courts are not rigid enough to regulate immigrant communities, most likely out of trepidation and the question of human rights such as those regarding freedom of worship and cultural preservation. In the case of Islamic communities and honor killings, however, proper contextual observations have not been made. Muslim countries that enforce honor killings do so in written law; it is not Quranic in nature to administer such brutal measures without the consent of a court. In the case of British Muslims, the upholding of such traditions should remain reliant on English court rulings to be carried out. For example, a Muslim murderer should be tried in an English court, and if the community so desires to execute said murderer, they should go through the courts to gain the right to do so. The government may uphold honor killings in Arab countries, but they are almost always examined under a court of law, no matter the traditional ritual. If these communities insist on honor killings, should they not first consult the government?
The English court stance has always been to eradicate honor killings, and it is apparent that immigrant communities will counter with claims that the courts are trying to fully integrate them into English culture, therein eliminating their own. However, when immigrants get married, do they not also file for the appropriate licenses in the rest of Europe? The community may carry out the rituals, but they are not recognized as lawful unions until the proper licenses have been completed and filed. The courts have failed to maintain the legal ambiguity necessary to both pacify immigrant communities as well as enforce the law.
Though approaching honor killings in the same manner has successfully shown various immigrant communities that such actions will not be tolerated, relegating them to the status of homicides glazes over the larger issue at hand. Honor killings ultimately should be given different status and different treatment than spousal homicide because of the nature of the crime. While it is admirable that the English courts have approached immigrants as part of the English population, the motives behind honor killing are not the same as homicides, whether those homicides are of passion or not. The Yones case may have involved a crime of passion, as he has claimed insanity (BBC 2003) in pursuit of lesser sentences following his indictment. Citing cultural rituals such as honor killing does not change the act, unlike defense of provocation. It is a homicide, and like other homicides, has varying degrees. English courts treat manslaughter in a different manner than they approach murder in the first degree or even murder in the second. Premeditated murder carries with it a greater weight than a crime of passion. At present, honor killings are treated as premeditated murder, a step towards controlling the alarming increase of honor killings. As the English stance on all murder is to stop it as well as contain it, should a similar approach not be employed with honor killings as well?
As a premeditated murder of a varying degree, honor killings should not be treated as homicides. Appeals can be made, but murder is murder in England, no matter the perpetrator. As residents of the United Kingdom, immigrant groups have to respect the different culture into which they have migrated, accepting that there are differences in England and certain laws by which they must abide. Examples must be made of the community that would opt to conceal these killings as well; if honor killings are to be approached by the English government as homicides, then surely members of the community who directly aid in the act by concealing the perpetrators in question should be indicted as conspirators or as accessories to homicide.
THE INCREASE IN HONOR KILLINGS AND DEFENSE OF PROVOCATION
English courts must instate stricter penalties for those commit and those who remain accessories to the act of honor killing. Assuming first that the intent of the English courts is to fully bring honor violence, both murder and domestic abuse to a halt, proper steps need to be taken in applying just and lawful punishment. Eradicating honor killing means taking a pro-active stance with the immigrant community in terms of outreach and education. With such a program, the applicable unassimilated ethnic group can no longer remain, therein effectively disabling the contention of ignorance or justifiable cultural indifference of English law. In order for the implementation of a sound, efficient, legal process to take place, the question regarding priority of laws, foreign or English, cannot exist. In remanding those involved, the next task that lies on the courts is to first define the nature of the crime (whether it is a crime of passion or a premeditated murder, and whether it will be treated as murder, manslaughter, or voluntary manslaughter), and then to determine the participants both directly and indirectly involved. In regards to the ambiguous defense of provocation, the prosecution needs to establish firmly the points opposing it; in essence, the prosecution has to be able to try defendants with specific crimes in recognizable terms. Juries unfamiliar with the history of honor killings cannot rely on the assumed ambiguities of a foreign culture. A crime in England is still subject first to English laws, and as long as the aforementioned is made clear, the prosecution can continue in their case against honor killing perpetrators. Summarily, if defense of provocation is used, there are various methods available to circumvent such an argument as the histories of honor killing and provocation share factors in common but are ultimately two very different concepts.
Defense of provocation applies most accurately to those who are found to be of an unassimilated ethnic group, or of an immigrant population new to England. When applied to honor killing, using defense of provocation purports the defendant should be shown leniency because he or she is in a new country with laws either unfamiliar to him or her, or that he or she still prioritizes old country traditions over English laws. Both instances ought to be dismissed outright; an aspiring egalitarian state such as Great Britain cannot give special preference to new residents. If a native Briton fails to claim aspects of his or her income, does that not constitute tax evasion regardless of whether or not said Briton was familiar with the laws? While leniency may be shown, honor killings are not a phenomenon created in the shuffling of papersmurder is a universally understood concept in all societies, regardless of the circumstances surrounding it. This said, the defendant must surely realize that he or she committed the act outside of his or her home country and is subject to its laws first, and native cultural laws second. A natural requisite to any resident of any country is adherence to the law. The same case can be made for countless tourists who are imprisoned abroad for drug possession; while the extradition option remains, the crime was committed on foreign soil and is therefore subject to foreign prosecution. Honor killings are no different; if a British resident kills another British resident (regardless of nation of origin) on British soil, then British laws apply to the prosecution. The application of British law in English courts is of the utmost importance, as an egalitarian society is compelled to treat all trespasses against society equally. That special consideration should be made is a biased assertion without universal application.
Unless the defendant is deemed mentally unsound or too young to understand the concept of murder, then he or she cannot be dismissed using defense of provocation, as a premeditated honor killing is one in which the illegalities of action are understood and undertaken regardless. The only arguments that can be made against realizing the weight of murder and its implications are in those cases deemed to be crimes of passion, or those involving temporary insanity. While these also involve honor killings, the act of an honor killing is done with the crime in mind; the discrepancies separating honor killing from crimes of passion is premeditation. All crimes of passion are those involving personal injury and heightened emotional stress. Defendants of honor killings cite that it is their culture that compels them to murder, but all cultures can compel to murder in the heat of passion. For example, a man who discovers his wife is engaging in an extramarital affair is dishonored in all cultures, even English culture. He may feel aggrieved and strike out in anger, but he is angry because of the culture that brought him up to value marriage and the bonds of matrimony. This is no different than an Arab, Indian, or Pakistani who discovers the same. Arab and South Asian societies do not encourage killing women, but rather make the case that it is an understandable outcome because of the heightened emotional stress that compromises one's rationality. In the case of Yones, his honor killing would be a crime of passion as he also attempted suicide. Therefore, the label honor killing cannot be affixed to the case as honor killings more frequently have to do with two parties: the aggrieved and the aggressor.
W.I. Torry defines the defense of provocation legal citation as one that describes a crime committed by a person who in anger kills someone for gravely insulting him, his family, or his cultural community (Torry 2001, p. 317). Torry continues in his description, stipulating that the defendant must blame his crime on cultural dictates that compel him to take violent offense at the harm his victim caused (Torry 2001, p. 318). The classic application of defense of provocation in a case is one in which dueling results in death. A duel would consist of voluntary manslaughter because two men (one the moral aggressor, the other the morally aggrieved) would take up arms in mutual combat with the intent to mortally wound one another. They are compelled to take up arms because of the cultural importance English society placed on defending one's honor. Both men enter the duel with the full knowledge that they are risking their lives, whereas honor killings of late involve men killing women without the woman's voluntary participation and sometimes knowledge of her death as an honor killing in play. A duel is the very definition of voluntary manslaughter, as there is an implication of self-defense in a duel as well. The Yones case involved no such ramifications, as it was later determined that the daughter was defenseless, being hacked to death in her own home (BBC 2003). A duel has the potential to be labeled a murder because parties enter a duel with the premeditated intent to kill (the aggrieved and aggressor, and later the victim and the perpetrator). As an honor killing, the Yones case was one of passion as the father did not kill with the intent to restore honor to his life (as evidenced by his suicide attempt). Defense of provocation, therefore, cannot be upheld, as it is a crime of passion. Previous applications of defense of provocation were asserted by those applying it to battery or assault, dueling, discovery of adulterous conduct by a spouse, and even non-violent homosexual advances. The aforementioned instances often led to extended detention, but were never capital cases to begin with.
As concluded, a crime of passion should not constitute an honor killing. If it is considered an honor killing, then special consideration cannot be given solely on the basis of the defendant's identity as an immigrant or unassimilated ethnicity status.
Though the strict nature of certain ethnic lifestyles may contribute to the crime as a crime of passion, it is equally plausible that individuals within English society may have stringent living standards. That honor killing has earned a special status is a noble reflection of English society's awareness of other cultures; however, when murder comes into play, the sanctity of cultural exchange can no longer apply as a logical factor to consider. British law is loosely based on Judeo-Christian morals, and while the citizen demographic is shifting, there exists no plausible argument justifying the ginger attitude taken in approaching honor killings. Though defense of provocation shares certain traits in common with the bases used for honor killing, its roots are bound in several types of provocation as several outcomes can be approached. The very nature of honor killing as a single act perpetrated by one person onto another changes the defense of provocation argument. No matter the purpose, honor killing is still a killing of one human being by another.
Defining the honor killing as a murder as opposed to manslaughter raises several issues. Premeditated murder was previously discussed as the only genuine honor killing, as honor killing was established to be the end result of a moral calculus. However horrific, honor killing still serves a purpose. The actual killing in an honor killing is the result of a decision by a man on behalf of his family. The purpose of honor killing is restoring honor by killing those perceived as bringing shame on a family. Yones' intent was to kill his daughter, presumably out of anger judging by the multiple stab wounds inflicted (BBC 2003). The Yones case would be an honor killing if Yones decided his daughter was too shameful to live, and therefore would be premeditated. If the defense concludes that Yones' was a crime of passion, then defense of provocation cannot apply as everyone's moral code spurs him or her to anger or emotional distress.
It is incumbent upon the English court to hold communities responsible for the physical (and sometimes sexual) abuse of individuals. That many honor killings go unreported is a testament to the subversion of authority. The cultural issue at hand is not one surrounding the premise of foreign influence; rather, it is the approach necessary to maintain order in society. In the Yones case, the father murdered the daughter while they were alone in their house. According to Muslim law, the requisite four witnesses would have to attest to the daughter's transgressions, and she would then have to be publicly flogged, but not murdered. If the defense insists on using defense of provocation, they have to adhere to the ramifications of Islamic jurisprudence and prove that Yones had spiritual support from his community. Without clearly defining what constitutes an honor killing, the defense cannot use honor killing and tradition as influential factors in Yones' judgment. The best defense against ambiguity, after all, is articulation. The more honor killing is examined, the simpler it becomes to separate it from crimes of passion such as that of the Yones case.
Honor killings in no way constitute manslaughter; they are still killings. What makes defense of provocation an admissible contention is the nature of provocation and the realm it shares with crimes of passion. Defense of provocation is a clever legal maneuver, but like all other arguments, it has its flaws. It is up to the prosecution to circumvent the ambiguities posed by defense of provocation, and in refuting such a defense, the prosecution needs to elaborate the following points: 1) the difference between honor killings and crimes of passion; 2) the misogyny that exists within a family capable of condoning such behavior; 3) that foreign cultures, no matter how patriarchal, rarely condone the practice legally; 4) the concept of unassimilated cultures is irrelevant to criminal proceedings involving murder; and 5) that perpetrators of honor killings are fully aware of the consequence of their actions and possess a rudimentary knowledge of the basic English laws surrounding murder. Understanding the origin of honor killing is key to debunking the protective veil of defense of provocation; by identifying honor killing and separating it from crimes of passion, most honor killings in England can be tried successfully as murders.
BIBLIOGRAPHY
BBC. (2003) Honour killing father begins sentence. BBC Online, [online] Available at:
http://news.bbc.co.uk/2/hi/uk_news/england/london/3149030.stm.
Narayan, Uma. (1997) Dislocating Cultures: Identities, Traditions, and Third-World Feminism. New York, Routledge.
Torry, W.I. (2001) Social change, crime and culture: The defense of provocation. Crime, Law, and Social Change. Vol. 36, no. 3, pp. 309-325.
Vance, Carol S. (ed.) (1984) Pleasure and Danger: Exploring Female Sexuality. Boston, Routledge & K. Paul.
