Should a female teacher of Turkish descent be allowed to wear a Muslim headscarf in a public school? Is the husband in a German-Moroccan marriage entitled to punish his wife physically?
These are just some examples of problematic cross-cultural cases that German courts have been confronted with in recent years. In particular, criminal proceedings involving so-called "honor killings" have been in the spotlight of public attention.
"Academic studies on culture and criminal law are becoming more and more necessary, but so far there are hardly any," says Brian Valerius. Therefore, the 35-year-old legal scholar decided to address this subject in his professorial thesis, which he has finished recently. The book version of the thesis is expected to come out in 2010. Among other things, the author considers in his study how honor killings and circumcisions are legally handled and to which extent German criminal law applies to transnational crimes, such as publications in the internet.
Taking into account cultural values
How is the criminal liability of an individual for his actions affected by his culturally determined views? Brian Valerius has looked into this question with - as he points out - an "intentionally value-free concept of culture."
In general terms, Valerius reaches the conclusion that social multiculturalism does not entail legal multiculturalism, meaning that the interpretation of criminal law provisions must conform to the uniform standard of the domestic legal community. Nevertheless, cultural values should also be taken into consideration in the application of criminal law.
Killings in the name of family honor
Example: The so-called honor killings usually inflicted on women - for such reasons as losing their virginity, being in a relationship not tolerated by their family or adopting the life style of the Western world. "From a legal perspective, these killings mostly constitute murder, as they have been committed for base motives. This is because in killing a relative in order to restore the family honor, the perpetrators ultimately put their own need for social acceptance above the life of the victims. In doing this, they exhibit a flagrant disregard for the victims' deeply private decisions as free and self-determined individuals," explains Brian Valerius.
The fact that some patriarchal societies rank family honor higher than the life of a woman remains irrelevant. It is true that a certain cultural imprint might be the reason for an "honor killer's" lack of understanding of having done something wrong. "However, in my opinion, this only occurs in rare individual cases. Under such circumstances, the perpetrator would have to be punished for manslaughter under current law," says Valerius.
Circumcisions: boys yes, girls no
Another topic addressed by Brian Valerius in his professorial thesis is the admissibility of circumcisions under criminal law. He considers the circumcision of boys as basically permissible, provided that the parents have consented to it and a certified doctor performs the surgical procedure. Given the current state of the art in medical science, the risk of complications is very low and can be accepted by the parents when exercising their educational authority in religious matters.
This is not the case when girls are concerned: They face severe health risks after such procedures. "Female circumcision represents a physical injury that has to be prosecuted even if the parents have consented to the procedure," explains the Würzburg scholar.
Controversy over cartoons on religious topics
Brian Valerius also discusses political demands that criminal law should be expanded for the protection of cultural values. Such demands have last been raised in the controversy over the Mohammed cartoons that were published in a Danish daily newspaper.
In this context, the German federal state of Bavaria introduced a bill in the Bundesrat (the representation of the 16 German states). It was aimed at the expansion of section 166 of the German criminal code, which deals with the defamation of religious denominations, religious societies and ideological groups. The state of Bavaria wanted that the mere ridicule of religions should be punishable too, but failed in this attempt.
"Criminal law is not specifically suited to bring about a peaceful coexistence of cultures and mutual tolerance," comments Valerius. Rather, the fight against unwelcome opinions is primarily the task of the society and should be fought in the free and open exchange of views.
Controversial section 166
Furthermore, the motivation for the reform efforts focusing on section 166 is open to questions. Even in its current form, the section is controversial because it does not provide religious and ideological minorities with the same protection that is extended to the Protestant and Catholic Churches. If this unequal treatment cannot be rectified, repealing the section altogether should be taken into consideration as a logical consequence.
After his habilitation at the Law School of the University of Würzburg, Brian Valerius is to take the chair for criminal law, including the fields of international criminal law, comparative law and philosophy of law, at the European University Viadrina in Frankfurt (Oder) as an interim professor in the winter semester. Contact information: PD Dr. Brian Valerius, email@example.com
Gunnar Bartsch | idw
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