Abstract
This article examines the debate on whether to analyse ‘honour crimes’ as gender-based violence, or as cultural tradition, and the effects of either stance on protection from and prevention of these crimes. In particular, the article argues that the categorisation of honour-related violence as primarily cultural ignores its position within the wider spectrum of gender violence, and may result in a number of unfortunate side-effects, including lesser protection of the rights of women within minority communities, and the stigmatisation of those communities. At the same time it is problematic to completely dismiss any cultural aspects of violence against women, and a nuanced approach is required which carefully balances the benefits and detriments of taking cultural factors into account. The article examines the issues within the context of the legal response to cases involving honour-related violence, arguing that although the judiciary has in a number of cases inclined towards viewing ‘honour’ as primarily cultural rather than patriarchal, in some cases they have begun to take a more gender-based or ‘mature multiculturalism’ approach.
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Notes
I use quotation marks around the term ‘honour’ in order to convey the fact that I am in agreement with an increasing number of activists and academics critical of its overall utility in distinguishing between types of gender violence. See Welchman and Hossain (2005) for in-depth analysis of this point.
A summary of responses to the consultation exercise on the proposed criminalisation of forced marriage is available at http://www.fco.gov.uk/en/fco-in-action/nationals/forced-marriage-unit/fmconsultation.
The Forced Marriage (Civil Protection) Act 2007, which received assent in July 2007 and is to be implemented in Autumn 2008, provides for the making of Forced Marriage Protection Orders (with an attached power of arrest) by the family courts.
I would also theorise rape as a type of ‘honour crime’, since it is used as an enforcement mechanism to control behaviour or punish transgressions of ‘honour’ codes, and may also lead to other forms of violence, such as ‘honour killing’ or forced marriage, to remove the perceived stain to male or family ‘honour’. However, the scope of this essay permits only examination of ‘honour killings’ and forced marriage in more detail. See Welchman and Hossain (2005) for a detailed analysis of the issues surrounding the definition of ‘honour crimes’.
Mahmud v Mahmud [1994] SLT 599. There have also been a number of cases of ‘honour killing’ of male victims reported in the press, one example being the 2004 case of Zafar Iqbal in Bradford, who was murdered by his wife’s relatives after they married without their approval (see Grattage 2004).
Other factors relevant to this aspect of the discussion, which cannot be explored in detail here, are the role of female perpetrators and the intergenerational nature of much honour-related violence. However, the writing of Kandiyoti (1988) on ‘patriarchal bargaining’ is potentially of great help in analysing both of these aspects of honour-related violence.
See Safra Project (2002) for a more detailed analysis of how ‘honour’ affects Muslim lesbian, bisexual and transgender women in accessing social and legal services in the UK.
Whilst I am unaware of reported cases of ‘honour killings’ on the basis of sexual orientation to date in the UK, the recently reported murder of young gay man Ahmet Yildiz in Turkey is suspected to have been an ‘honour killing’ motivated by the victim’s outspoken work as a gay rights activis (see Birch 2008).
As An-Na’im (2005, pp. 67–68) argues, all societies regulate sexuality to some extent, and attempts to argue that families and communities should have no right to do so may be counterproductive, since this may result in increased risks to victims as attempts are made to ensure even tighter regulation of sexuality. Thus, it is not the regulation of sexuality in itself which is problematic, but rather the excessive or discriminatory regulation of sexuality.
Council of Europe Parliamentary Assembly, Resolution 1327: So-called ‘honour crimes’ (4 April 2003).
See also Razack (2004) for detailed discussion of these points in the Norwegian context, in relation to policy on immigration and forced marriages. .
See Phillips (2007) for a detailed and convincing argument that multiculturalism can be reconciled with gender equality if it moves beyond essentialist notions of culture.
For this reason the ‘balancing’ or ‘proportionality’ principle in human rights law is not strictly relevant here, since in the UK there is no direct claim being made by perpetrators of honour-related violence that they should have a ‘right’ to commit ‘honour killings’, for example, in response to a perceived transgression by the victim. Rather, it is that for a number of reasons they are unwilling to accept that where they do so, the state should be able to take action to punish them, and the severity of that punishment.
Since this discussion is restricted to the UK context, I do not engage with the broader debate around universalism and cultural relativism. However, see Coomaraswamy (2005b), Afkhami (1999), Steiner and Alston (1996, Chap. 4), Rao (1995) and Bunting (1993) for exploration of the international human rights dimensions of the debate.
The HRA implements the European Convention on Human Rights (ECHR) in UK law. ‘Honour crimes’ such as ‘honour killing’ and forced marriage may violate a number of articles of the ECHR, including Article 2 (the right to life), Article 3 (freedom from torture or inhuman or degrading treatment or punishment), Article 5 (the right to liberty and security of the person), Article 8 (the right to respect for private and family life), Article 12 (the right to marry and form a family), and Article 14 (non-discrimination in the enjoyment of the foregoing rights and freedoms).
In effect, this is an ‘indirect horizontal obligation’ dependent on recognising that state authorities have failed in their duties to an individual by not adequately protecting or preventing a violation of their rights by another private individual. See Osman v UK (2000) 29 EHRR 245 and X & Y v Netherlands (1986) 8 EHRR 235 as key cases which establish this principle in European human rights jurisprudence. For more general commentary and case law on this issue, see Emmerson et al. (2007, Chap. 18), Fenwick (2007, p. 249), Stone (2006, p. 38), Starmer et al. (2001, p. 151).
R v Bedder [1954] 1 WLR 1119.
DPP v Camplin [1978] AC 705.
R v Shabir Hussain [1997] EWCA Crim 24.
R v Shabir Hussain, Newcastle Crown Court, 28 July 1998.
R v Faqir Mohammed [2005] EWCA Crim 1880.
R v Smith (Morgan) [2001] 1 AC 1. This case ruled that certain characteristics of the defendant, in this instance depression, could be taken into account in assessing both the gravity of the provocation and the level of self-control expected. However, this was overturned by the Privy Council in Attorney General for Jersey v Holley [2005] 2 AC 580, which returned the test to the earlier, pre-Smith position that characteristics other than age and sex could only be taken into account in relation to the gravity of the provocation and not in relation to the expected level of self-control. The decision in Jersey has since been followed in a number of cases including Faqir Mohammed. See Clarkson et al. (2007, pp. 732–734).
[2005] 2 AC 580.
The government is currently attempting to address critiques of the provocation defence as lacking in gender sensitivity. Under proposed reforms, sexual infidelity would no longer be relevant to establishing provocation, in order to prevent men who kill for this reason taking advantage of the defence. Conversely, fear of serious violence, or words or conduct which leave the defendant feeling justifiably wronged, would be taken into account, allowing women who kill as a result of domestic violence to take better advantage of the defence than is currently the case (see Pallister and Stevenson 2008). However, it is likely that whatever changes are ultimately made to this area of law, there will still be scope for judicial interpretation of the relevance of ‘culture’, and thus, potentially, for continuing problems of the type discussed here.
R v Faqir Mohammed, Manchester Crown Court, 18 February 2002.
R v. Abdulla M. Younes, Central Criminal Court, 29 September 2003. This was the first case the Metropolitan Police labelled as an ‘honour killing’, according to Southall Black Sisters (see Siddiqui 2005, p. 269).
R v Zoora Ghulam Shah, Court of Appeal, Criminal Division, 30 April 1998. See Phillips (2003, p. 524) and Patel (2003, p. 243) for discussion of this case, and of the crucial involvement of Southall Black Sisters in her appeal. Shah had left an abusive husband and was taken in by a drug dealer who proceeded to abuse her and prostitute her to his friends. When he began to show interest in her daughter, she put arsenic powder in his food in an attempt to dampen his libido, culminating in an overdose. At the initial trial Shah did not give evidence on these issues and was found guilty of murder. When she gave evidence of the abuse at her appeal, the court refused to entertain the idea that she had not done so at the initial trial for reasons of ‘honour’ and a fear of shaming herself and her daughters further in the community. In their view, the experiences she described were such that it was not conceivable that she in fact had any ‘honour’ left to salvage.
[1971] 2 All ER 828.
[1983] 4 FLR 232.
[1993] SLT 589.
Sakina Bibi Khan and Mohammed Bashir [1999] 1 Cr App R (S) 329.
Re KR (a child) (abduction: forcible removal by parents) [1999] 4 All ER 954.
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Acknowledgements
The author would like to thank Professor Lynn Welchman, Professor Werner Menski, the editors of Feminist Legal Studies and the anonymous referees for their support and helpful comments on drafts of this article. My thanks also to Professor Anne Phillips for allowing me access to the transcripts referred to in the final section.
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Reddy, R. Gender, Culture and the Law: Approaches to ‘Honour Crimes’ in the UK. Fem Leg Stud 16, 305–321 (2008). https://doi.org/10.1007/s10691-008-9098-x
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DOI: https://doi.org/10.1007/s10691-008-9098-x