The Cultural Defence in Criminal Law: A Critical Examination, By Ian Wilson LL.B
The recent case of Sadeq Nikzad, an Afghani asylum seeker convicted of raping a 15-year-old girl in the UK, has reignited debates about the use of cultural defences in criminal law. Nikzad, who entered the UK illegally and was sentenced to nine years in prison followed by deportation, saw his defence counsel argue that his actions were influenced by a lack of education about "cultural differences" between Afghanistan and the UK. This argument, however, was met with scepticism and outrage, prompting a deeper examination of whether cultural differences can legitimately mitigate criminal responsibility, and whether such defences could be extended to other serious crimes like murder.
Sadeq Nikzad's crime was a heinous act of violence against a vulnerable teenager. In October 2023, he approached the girl in Falkirk town centre, made sexual remarks, and led her to the rear of a pub where he raped her. The victim, frozen in fear during the assault, was later found in a daze by a witness who noted her distress and her repeated statements that she had told Nikzad she was only 15. Despite these facts, Nikzad's defence counsel, Janice Green, argued that his lack of understanding of cultural differences should be considered. She suggested that language difficulties and the victim's failure to explicitly say "No" meant the offense was "not a typical stranger rape."
This defence was roundly rejected by the court, and Nikzad was sentenced to a 12-year extended term, including nine years in custody and three years on license, with mandatory registration on the sex offenders list and eventual deportation. The judge, John Morris, KC, emphasised the severity of the crime, stating that only a substantial custodial sentence was appropriate. Nikzad's reaction, shouting "liar" and gesticulating wildly as he was led away, underscored the disconnect between his perception of the trial and the reality of his actions.
The cultural defence, as presented in Nikzad's case, posits that a defendant's actions should be understood within the context of their cultural background, potentially reducing their culpability. This argument is not new and has been invoked in various legal systems, particularly in cases involving immigrants or asylum seekers. Proponents argue that cultural norms and values can influence behaviour, and ignorance of the host country's laws and customs should be considered a mitigating factor.
However, this defence raises significant ethical and legal concerns. Rape is a universal crime, condemned across cultures and legal systems. The idea that Nikzad was unaware of the wrongfulness of his actions due to cultural differences is dubious at best. Sexual violence against minors is not culturally condoned in Afghanistan, despite any differences in social norms or legal frameworks. Moreover, the victim's clear distress and repeated assertions of her age should have been sufficient to deter any reasonable person, regardless of cultural background.
The cultural defence, in this instance, risks excusing criminal behaviour under the guise of cultural relativism. It suggests that certain actions are acceptable within one cultural context but not another, which can lead to a dangerous precedent. If cultural differences can mitigate responsibility for rape, what other crimes might be similarly excused? This question leads us to consider the broader implications of such defences.
The extension of the cultural defense to other serious crimes, such as murder, is a logical next step in this discussion. Historically, there have been cases where cultural defences have been considered in homicide trials, particularly in contexts involving honour killings or other culturally motivated violence. For example, in some jurisdictions, defendants have argued that their actions were provoked by cultural norms that place a premium on family honor, reducing murder charges to manslaughter.
However, the application of cultural defences to murder is fraught with the same ethical and legal challenges as in rape cases. Murder, like rape, is a grave offense that transcends cultural boundaries. The deliberate taking of a human life is not excusable simply because it aligns with certain cultural practices or beliefs. To accept such a defence would undermine the universal principle that all human life is sacred and that the law must protect it equally, regardless of cultural context.
Consider a hypothetical scenario where a defendant argues that a murder was committed because, in their culture, it is acceptable to kill someone who has dishonoured the family. While this might reflect certain cultural norms, it does not negate the fact that the act is a crime under the laws of the host country. The cultural defence, in such cases, risks prioritising cultural relativism over universal human rights and legal standards.
The danger of the cultural defence lies in its potential to create a slippery slope where any crime can be justified by cultural differences. If ignorance of cultural norms can mitigate responsibility for rape, why not for theft, assault, or even terrorism? This line of reasoning dilutes the accountability of individuals for their actions and erodes the rule of law. It also places an undue burden on victims, who may feel that their suffering is being minimised because of the perpetrator's cultural background.
Moreover, the cultural defence often overlooks the agency of the defendant. Nikzad, for instance, was not a child, but a 29-year-old man who had lived in the UK for two years. During that time, he had opportunities to learn about the legal and social norms of his host country. His defence that he was unaware of cultural differences is unconvincing, given the universal condemnation of rape and the clear distress of his victim.
The rejection of the cultural defence in Nikzad's case is a reaffirmation of universal legal standards. Rape, murder, and other serious crimes are not excused by cultural differences but are condemned outright. This stance is crucial for maintaining the integrity of the legal system and protecting the rights of victims. It also sends a clear message to perpetrators that ignorance of the law is not a defence, regardless of cultural background.
For societies grappling with immigration and cultural diversity, the challenge is to balance respect for different cultures with the enforcement of universal legal norms. This balance requires education, integration, and a firm commitment to human rights. It also necessitates a critical examination of cultural defences, ensuring that they do not become a loophole for excusing criminal behavior.
The case of Sadeq Nikzad highlights the complexities and dangers of the cultural defence in criminal law. While cultural differences can influence behaviour, they do not justify or excuse serious crimes like rape. The extension of such defences to other offenses, such as murder, is equally problematic, as it undermines the universal principles of justice and human rights. As societies become increasingly multicultural, the legal system must remain steadfast in its commitment to universal standards, ensuring that all individuals are held accountable for their actions, regardless of cultural background. The cultural defence, when misused, risks excusing the inexcusable and must be approached with caution and critical scrutiny.
"An Afghani asylum seeker who entered the UK illegally on a small boat kicked off in court after he was caged for raping a 15-year-old schoolgirl.
Sadeq Nikzad, 29, who claimed he'd not been educated on 'cultural differences' repeatedly shouted 'liar' at judge John Morris, KC, after he was handed a 12-year extended sentence at Livingston High Court.
The judge hurriedly left the bench as the accused, screaming and gesticulating wildly, was handcuffed by security guards before being led to the cells.
Nikzad will serve nine years in custody followed by three years on licence, go on the sex offenders register and at the end of his sentence, be deported.
The court heard that Nikzad entered the UK illegally two years ago, before subjecting the vulnerable teenager to the terrifying opportunistic sex attack in Falkirk town centre in October 2023.
He was convicted of rape at the High Court in Edinburgh earlier this year after a jury heard how he approached the girl and asked for her phone number and if she had a boyfriend.
He then made sexual remarks towards the underage youngster before leading her to the rear of The Courtyard pub where he attacked and raped her.
The girl said that she froze during the assault while a woman who came across the victim shortly after said she had been 'in a daze'.
The witness said: 'She looked stunned. I knew something had gone wrong. She came to me for comfort. She said she kept telling the guy she was only 15.'
Nikzad's defence counsel Janice Green told an earlier hearing that her client had not been educated about the significant cultural differences between the UK and Afghanistan.
Ms Green also said that the schoolgirl's evidence about language difficulties between them and the fact she had not told the accused 'No' meant the offence was 'not a typical stranger rape'.
She added: 'There are no issues raised by him in relation to fear of persecution and the ultimate result is that he'll be deported at the conclusion of his sentence.'
Passing sentence, judge Morris told the accused through an interpreter: 'You've been convicted of an extremely serious sexual offence against a child, and I know your counsel has now explained to you that in those circumstances only a substantial custodial sentence is appropriate.'
As he informed Nikzad that his name would also be placed on the sex offenders register, he lost his temper and started waving his arms in the air and shouting at his interpreter and the judge.
After sentencing, Katrina Parkes, Procurator Fiscal for High Court Sexual Offences, said: 'This was an appalling, opportunistic attack on a young girl who should have been safe going about her daily business.'
She added: 'I hope this prosecution sends a clear message to men who commit serious acts of sexual violence against women and children.'
Detective Inspector Forbes Wilson, from the Forth Valley Public Protection Unit, said: 'Nikzad's heinous actions had a profound effect on his young victim and I would like to commend her strength throughout this ordeal.'"
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