Contemporary societies are culturally diverse. This diversity can be the result of different historical and social processes and might affect the uniformity and efficiency of criminal justice systems. Colonization of indigenous populations that started in the 15th century later European colonization of Africa and migration flows following the Second World War have contributed to this diversity in different ways. The growing importance acquired by culture in the criminal law domain went hand in hand with the attention received by it both in the human rights field (especially linked to minority rights) and in the field of sociological and criminological theories.
Nowadays, crimes such as female genital mutilation, forced marriages, and other behaviors grounded in “culture or tradition” form the object of several international human rights instruments and media reports. The way in which criminal justice systems deal with such cases, and more in general with cultural factors, varies greatly. Different instruments have been proposed to allow the consideration of cultural elements within criminal proceedings among which (in common law countries) is the formalization of an autonomous “cultural defense.” However, international human rights instruments, especially those protecting the rights of vulnerable subjects such as women and children, have repeatedly discouraged states to take into account “culture, religion, and tradition” as grounds for justification (see, e.g., the Istanbul Convention).
Criminal proceedings are not the only setting to deal with culture and crime. More recently, the development of alternative dispute resolution mechanisms and restorative justice both within formal and informal (community) settings have given an additional option to take culture into account in the resolution of disputes (in terms of procedures used and normativities in play). Concerns exist with regard to the substantive and procedural rights of participants to these programs. However, these alternatives could represent a way to allow a certain degree of legal pluralism and facilitate access to justice for minority groups.
Mark S. Fleisher
Radical culture change instigated by conflict among diverse cultural groups has had adverse social and psychological effects witnessed by the rise of youth gangs. A close look at the processes of gang formation in Chicago, Los Angeles, and New York City illustrates that rapid changes in core cultural systems had a chilling effect on ethnic groups’ core cultural practices, such as adolescents’ rites of passage to adulthood. In the absence of culturally prescribed, ritual activities, adolescents have not been prepared to assume their culture’s prescribed adult roles. That radical loss in a core cultural tradition has adversely affected adolescents’ behavior. Research in the early decades of the 20th century in Chicago reported that adolescent gang members experienced depression, anxiety, personality disorders, and addictions as consequents of violence clashes between Chicago’s native white population and European immigrants and black migrants. Over the decades of gang research in America and Europe, sociologists and anthropologists have come to agree on cultural elements in theories of gang formation: American and European youth gangs are derivative of cultural clashes, which engender racism and fundamental antagonistic changes in cultural systems’ economic production and social control. Effects of hostile culture change include social discord, unemployment, gang, and violence.
Social network research on adolescent gangs has shown that gangs are not closed social groups limiting gang members’ interpersonal contact to co-group members. Gang and non-group adolescents differ in attributes (sex, age, education), but structural measures of adolescent gang groups and non-groups are similar. Network research has carefully examined gang and non-gang adolescents’ personal networks. A personal network of male and female gang members includes people they know who know them. A personal network’s composition can include a few friends, close friends, and best friends, and numerous others inside a gang group as well as members of other gangs and non-gang members. Personal network relations connect gang adolescents to their families, friends, and neighborhoods, despite gang membership. Gang ethnography describing youth gang members and their families has shown that gang youth have been victims of domestic and intimate partner violence, experience periods of episodic homelessness away their natal and extended kin, as well as fictive families, and suffer adverse mental health consequences.