It’s a pretty rare thing for a conviction for manslaughter not to lead to some jail time. In the past 28 years, only 69 of 814 convictions haven’t resulted in a custodial sentence*. I would have thought that not getting jail time would be especially rare when the killing was at the more culpable end of the scale (eg involved intentional infliction of harm or danger, not, say, negligence) and when convicted have not acknowledged wrong-doing by pleading guilty.
So, on the face of it the sentences in the Janet Moses case do look awfully light relative to what others get for similar offences. Defence lawyer Barry Hart has said the same.
I think the only conclusion is that the fact the offenders claimed to have been undertaking a traditional Maori exorcism led to the light sentences. And it seems to have been particularly because it was Maori spirituality that was involved (the death during an ‘exorcism’ of a Korean woman by a Korean Christian preacher led to him getting jail time). That’s, of course, the conclusion that most people have drawn, including Trevor Mallard, whose comments on Red Alert were picked up in the HoS today.
Trev might have been playing closer to constitutional convention if he hadn’t commented but in cases that go extremely against public expectations of justice, it is appropriate for MPs to speak out and they have done so in the past. The door is now opened for a needed debate on cultural relativism (a concept now largely discredited in the social sciences). A few of my thoughts on this:
Should a person’s culture come into account when determining a sentence? If ignorance of the law is no excuse, why should ascribing to a different set of values be relevant? That’s not to say we should be blind to the differences in expectations and practices among our various cultures. We should be moving away from the model of imposing an Anglo monoculture. The values of different cultures should go into defining the law in the first place but they cannot be an excuse for not obeying it.
Could it really be argued that the convicted were behaving appropriately within the bounds of Maori culture anyway? Or were they just using culture as a fig-leaf?
At what point is a cultural practice, even if carried out according to the rules of that culture, abhorrent to the values of modern New Zealand? We shouldn’t ban things merely because we don’t like them in our culture (cf the wowserism by the Herald today about the Tongan New Zealander killing his dog humanely and eating it, I don’t see why that should be seen as something that ought be be stopped merely because I don’t wouldn’t do it, anymore than I would want Jews and Muslims trying to stop me being allowed to eat pork) but there are values that transcend cultures and there are things that can’t be excused merely because they are OK in a certain culture.
We don’t say that domestic violence is OK among any culture in New Zealand just because it was traditionally OK within some (or all) cultures, so I don’t see why violently restraining someone and endangering their life leading to their death would be made more acceptable or less deserving of punishment just because it was allegedly traditional practice.