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Open Access Publications from the University of California

The Cultural Defense in Intimate Violence Against Women: Criticizing Liberalism from a Mixed Approach

  • Author(s): del Valle Bustos, Silvana Andrea
  • et al.
Creative Commons 'BY-NC-SA' version 3.0 license

In the last decades, many Western countries have recognized minority groups’ traditions and self-determination as a part of the Human Rights ideal they are committed to enact. For a time in the U.S., the argument that culture should be always respected, on the grounds of the freedom of association and conscience, held sway. As a result, U.S. courts accepted cultural arguments that justified violent conduct against women and family members as a defense even in cases of murder, reframing them as voluntary manslaughter, in light of the perpetrator’s culture. Reacting to the excesses of this multicultural approach, liberals proposed to reject any cultural argument that condones women’s rights violation. Their reactions echoed Rawls’ philosophical position according to what arguments not based in reason or not formulated in reasonable-secular terms should not be accepted in the public discussion. Courts, then, began to reject cultural arguments in murder cases. Consequently, a third argument has become popular, favoring a mixture between multicultural and liberal approaches. The author proposes that this alternative is better. For analyzing it, the paper focuses on the situations of non-physical or less grave physical violence, as well as submission to the group’s decisions (such as in clothing and priesthood) and polygamy. She asserts that these borderline cases present a challenge in the balance between the acceptance of multiculturalism and the rejection of violence, and then a better arena where to trace a line. The reasons the author has for supporting the mixed view include a criticism of it, mainly because mixed approaches usually tend to lean more toward liberal positions. First, unmixed approached do not take care sufficiently of women’s interests. In particular, if we accept Rawlsian rules we should also exclude feminist arguments not expressed under secular terms or linear reasoning, contradicting feminists who argue that reason is no the only human decision-making capacity. Second, liberal positions tend to confuse the treatment of equality and life integrity, no taking then sufficiently into account the dynamics of violence and focusing too much on consent under liberal terms. That is linear reasoning, which provokes a tendency to overestimate culture as exclusionary of choice, and not to see that the mainstream society is also cultural. This actually reveals that liberal society has biases against minority groups and a non well-developed engagement with women’s rights. Finally, because of psychological aspects of decision-making, Western societies should allow liberal (secular and reason based) and illiberal (religious and non-reason based) arguments to have a conversation. If we do so, both sides will see better what the opposite and their own side really believes, and they may realize that their values might be closer than they think. This will enhance a bigger commitment of all citizens to women’s rights, including the right to belong to a minority group and the right to be free from violence.

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