Title

Superstition-Based Injustice in Africa and the United States: The Use of Provocation as a Defense for Killing Witches and Homosexuals

Authors

Jennifer Dumin

Abstract

This Article examines two different instances where strong cultural and religious beliefs suggest that an individual is justified in taking another’s life. Focusing primarily on South Africa and the United States, it argues that the rationale used to defend those who kill suspected witches and those who kill suspected homosexuals is the same – merely because a criminal holds a belief that the victim is evil, the criminal is somehow entitled to a lesser punishment. In the United States, those who readily recognize the absurdity of the witchcraft defense may have some difficulty in recognizing the same level of absurdity in the homosexual provocation defense. Moreover, progressive commentators who advocate in favor of cultural defenses may also favor hate crimes legislation and sentence enhancement for crimes directed at homosexuals, thereby ignoring a homegrown cultural defense. These paradoxical pairings and conflicting positions obscure the essential question: Should individuals who voluntarily kill innocents be entitled to a defense based upon an empirically unfounded superstitious, religious or cultural belief?

Part II of this Article describes the persistent belief in witchcraft, the incidence of witchcraft-related violence, and the legislative response to such violence. Part III charts the development of the witchcraft-provocation defense, beginning with colonial courts. Part IV offers a comparative view of violence against presumed homosexuals, hate crimes, and the homosexual provocation defense. A brief conclusion suggests that although Americans can easily identify cultural ignorance in other peoples, they are not as adept at recognizing it at home. Whereas legal scholars initially dismissed the notion that a reasonable person could believe in witchcraft, some now assert that certain reasonable persons cannot help but believe in witchcraft. Whether we choose to ignore or excuse the cultural belief in witchcraft, we miss the systemic nature of the violence it produces and the horror inflicted on its victims. The same can be said of the homosexual-provocation defense.

Disciplines

Dispute Resolution and Arbitration | Human Rights Law | International Law | Law and Gender | Sexuality and the Law

Date of this Version

January 2006