Intimate Femicide, Cultural Defences, and the Law of Provocation
by Caroline Dick
The prospect of raising cultural arguments in criminal cases has drawn criticism from a diverse group of scholars. While many feminists argue that the greatest danger of using culture in the courtroom is that it will result in judicial outcomes that put “race before gender,” critical race scholars maintain that minority cultural communities will be victimized by the colonial discourses that are certain to emerge when courts engage with cultural arguments. Liberal critics, on the other hand, argue that the move violates the principle of equal treatment before the law by providing cultural defences to some citizens but not to others and succumbing to cultural relativism.
This article tests these hypotheses by examining the small, but important, body of case law where cultural arguments were raised in sexual provocation cases where the claimed provocative act was a woman’s infidelity or romantic rejection. This jurisprudence is an apt candidate for testing the competing propositions both because provocation is a gendered defence and because recent changes to the law have opened up space for cultural argumentation. The results of this examination are mixed. The liberal contention that refusing to take the culture of the accused into account will result in the equal application of the law is not borne out, nor is the feminist contention that introducing culture into the courtroom will place race before gender. Instead, the Canadian jurisprudence is better represented by a different ordering principle—that of colonialism before patriarchy.