Cultural Competence in Forensic Mental Health

A Guide for Psychiatrists, Psychologists, and Attorneys

Wen-Shing Tseng, Daryl Matthews, Todd S. Elwyn

• Publisher: Routledge
• Year: 2004
• ISBN:
  9781135936266
• Edition: 1
• Topic: Law
• Subtopic: Forensic Science
• Index: Law

As culturally relevant psychiatry becomes common practice, the need for competent and culturally relevant forensic psychiatry comes to the forefront. This volume, written by one expert in cultural psychiatry and another in forensic psychiatry addresses that need. By combining their expertise in these areas, they are able to develop and create a new body of knowledge and experiences addressing the issue of the cultural aspects of forensic psychiatry. Beginning with an introduction to cultural and ethnic aspects of forensic psychiatry, this volume will address basic issues of the practice, as well as more detailed areas ranging from the various psychiatric disorders to intensive analysis and discussion of how to perform forensic psychiatric practice in a culturally relevant and competent way. Also the book suggests methods for continued awareness and sensitivity to issues of cultural and ethnic diversity in the field.

1
Introduction: Culture and Forensic Psychiatry

Forensic psychiatry has only recently developed insight into the importance of providing culturally competent forensic mental health services. Cultural competence has become a requirement of our modern society, as it is in any advanced society that emphasizes basic human rights and gears itself toward meeting the needs of an ethnically and culturally diverse people. The United States, like many other nations, is becoming increasingly multiethnic and polycultural. Providing culturally relevant and effective forensic services has become a fundamental expectation and an essential professional task. Examining the cultural dimensions of the mind and behavior will enable us to understand the nature of actions and the motives for them in a more comprehensive way This, in turn, will assist us in providing more suitable and meaningful opinions to be used in the making of legal decisions.

One accessible source of information concerning how culture interacts with law comes from the various world legal systems. However, as astutely pointed out by Appelbaum (2002, p. 462), forensic psychiatry to date has been sadly bereft of cross-cultural perspectives. In part, this neglect may relate to a perception that the differences among legal systems make the study of forensic issues in other countries—much less other cultures—unlikely to yield practical benefits. Such solipsism tends to blind us to the reality that there are other, different, and sometimes better ways of responding to the issues that form the core of forensic practice from what we use every day. Expanding forensic psychiatric practice to include such cultural considerations is a new professional challenge.

WHAT IS CULTURE?

Culture, Race, Ethnicity, and Minority

To explore the subject of cultural competency in forensic psychiatry, we must first clarify the concept of culture. Also, we must distinguish several related terms that are used to describe sociocultural issues, such as race, ethnicity, and minority.

Culture. The term culture (kultur, in German) was originally coined by a German scholar in the late 18th century to refer to the achievements of civilization. Later, British scholars used the English word culture to define it as the complex whole that includes knowledge, beliefs, art, laws, morals, customs, and any other capabilities and habits acquired by man as a member of society.

Since then, scholars of behavioral science have defined culture in various ways (Kottak, 1999). After analyzing several hundred definitions and statements about culture made by anthropologists and others, U.S. anthropologists Kroeber and Kluckhohn (1952) summarized the formulated concept often used by contemporary behavioral scientists as follows: “Culture consists of patterns, explicit and implicit, of and for behavior acquired and transmitted by symbols, constituting the distinctive achievement of human groups, including their embodiments in artifacts; the essential core of culture consists of traditional ideas and especially their attached values; culture systems may, on the one hand, be considered as products of action, on the other as conditioning elements of further action.”

In simpler words, Barnouw (1963) stated, “A culture is the way of life of a group of people, the configuration of all of the more or less stereotyped patterns of learned behavior which are handed down from one generation to the next through the means of language and imitation.”

Race. The term race means something quite different from culture. In the past, race has been used to refer to a group of people that is characterized by certain common physical features, such as color of skin, eyes, and hair; facial or body features; or physical size. On the basis of these attributes researchers distinguish one group from other groups.
Anthropologists have used the term geographic race to indicate a human population that has inhabited a continental landmass or an island chain sufficiently long enough to have developed its own distinctive genetic composition as compared with those of other geographic populations (Hoebel, 1972). However, with improvements in genetic study, analysis of DNA among members of different races has shown that there are greater variations within racial groups than between them. Thus, races are socially and culturally constructed categories that may have little to do with actual biological differences. They are the products of historical and contemporary social, economic, educational, and political circumstances (American Anthropological Association, 1999).

Ethnicity. Ethnicity refers to social groups that distinguish themselves from other groups by a common historical path, their behavior norms, and their own group identities.
The members of an ethnic group are affiliated and may share a common language, religion, culture, racial background, or other characteristics that make them identifiable within their own group. Thus, culture refers to manifested characteristic behavior patterns and value systems whereas ethnicity refers to a group of people that shares a common cultural feature or root culture.

Minority. A minority is a relatively smaller group that is identified against the majority group in the society. Strictly speaking, minority groups may not necessarily suffer from social disadvantages. In fact, some minorities have more privileges and enjoy more social achievements than the majority. However, in most cases, minority peoples encounter mistreatment by the majority and suffer from discrimination and social disadvantage.
Thus, minority peoples often hold resentment toward the majority, whether openly expressed or unspoken. As we already mentioned, the concept of “minority” is a social one, often related to economic or occupational factors that may or may not be related to matters of ethnicity or culture. The term should be used differently and precisely and not be confused with the term or concept of culture.

Implications of Culture in the Legal System

Moving beyond conceptual clarification, we must next recognize the significant clinical implications and applications of culture (Tseng, 2001, p. 26). Several issues in the practice of forensic psychiatry require special attention with regard to culture. They are as follows:

1. Culture refers to the unique behavioral patterns and lifestyles shared by a group of people, which distinguishes that group from others.
2. Culture is characterized by a set of views, beliefs, values, and attitudes toward things in life. Culture may be expressed in various ways that regulate life—through rituals, customs, etiquette, taboos, or laws. It is manifested in daily life and reflected in cultural products, such as common sayings, legends, drama, art, philosophical thought, religions, and political and legal systems.
3. In practice the identification and determination of the cultural background of an individual can be problematic, because the impact of culture can be conscious or unconscious (in other words the person or his or her family may or may not be aware of it) culture is abstract and can be amorphous, culture is not static over time and is often in flux (i.e., subject to cultural change over time and through different generations), and culture’s impact on subgroups of people (even those living within the same society) may vary greatly with subcultures.
4. Conceptually, the anthropological term culture is different from the socially defined terms race, ethnicity, and minority. However, for the sake of convenience, a cultural system is often identified by socially related terms (nation, ethnic or racial group, or geographic area), referring to an identified cultural group (such as Japanese culture, Latino culture, European culture, etc.).
5. Language is one of the instruments through which culture is transmitted and expressed. Through language, culture communicates not only semantic meanings but also underlying conceptions, values, and attitudes, which can be very different among different cultural systems. Comprehending another person’s culture through his or her language can therefore be quite challenging, particularly when that language is very different from our own.
6. Culture exists as a recognizable social or institutional pattern at the macroscopic level and as individual behavior and reactions at the microscopic level. The individual may be consciously aware of it, or it may be operating at an unconscious level. Culture includes concepts, attitudes, and judgments related to right or wrong.
7. Although an individual may have trouble explicitly recognizing and identifying his or her own cultural system, most people do identify with their own ethnic or racial groups. Ethnic or racial identity refers to the psychological way in which a person identifies with his or her own ethnic or racial background, as well as how one feels about his or her own ethnicity or race. People tend to develop certain views and attitudes about the ethnicity or race of other people. This is called “ethnic or racial transference” because it is derived from a projected view about others, which may be stereotyped or biased.
8. Culture is an organized system of knowledge and beliefe that allows a group to structure its experiences and choose among alternatives. Culture guides and motivates behavior and largely determines the course of our lives. As an extension of this, culture defines good or bad and the punishment that is deserved for wrong behavior.
9. Each society, based on its history, social background, and cultural system, develops certain regulations, including particular etiquette, customs, ethics, rules, and a political administration to regulate people’s lives. A legal system is among these social regulatory systems and is developed primarily to judge wrong from right and to decide the nature and severity of punishment for wrongful doings. In other words the legal system is a part of the larger sociocultural system.
10. All the persons involved in the legal process, including the judge, prosecutor, attorney, experts and other witnesses, jury, and parties in the case, as human beings, will be influenced by their own perceptions, attitudes, beliefs, and value systems (the elements of culture) in their thinking, interacting with others, and making decisions. This includes the transcultural understanding of others, the phenomena of ethnic or racial bias and transference (i.e., the displacement of projected cognitive and emotional bias or ignorance of other people’s ethnic or racial backgrounds). The legal process operates within a legal culture as a whole. The legal culture is based on certain assumptions and beliefs about how legal procedures should proceed, with particular rules and a distinctive spirit. At the same time, the legal process is significantly, whether explicitly or inexplicitly, influenced by the cultural backgrounds of the parties involved.

LAW IN VARIOUS CULTURES

Differences in Roles and Functions of Law in Society

Law as the Major Force for Social Regulation

From the social and anthropological perspectives, there are various ways by which a society can enforce and maintain social regulation. Customs, etiquette, taboos, and moral principles that define socially emphasized and culturally valued conceptions and practices about “proper human relationships” are some examples; religion, ethics, and law are others. Society may be regulated on a practical level through political power and administrative force. The extent to which different cultures regard law as the major force for maintaining order varies greatly. In many developing societies, particularly in agriculture-oriented ones, collectivism is emphasized. Etiquette, customs, taboos, unspoken social rules, or recognized custombased laws may be more important than a formal (written) legal system. Societal members share a common background so informal mechanisms can be relied on for resolving disputes. Making explicit through law such things as, for example, at what point an agreement constitutes a binding contract may be viewed as less important. In contrast, in most developed urban societies, particularly industrialized societies that emphasize the individual, explicitly defined social rules and laws are the key forces for keeping order. Individuals in such societies often come from different backgrounds with widely varied customs. The law provides a set of rules that persons from various cultures can look to for guidance on how to behave.

Cultural Concepts of “Wrongness”

Perhaps it is human nature to want to believe that right and wrong are apparent, explicit, and easily defined. However, in real life they are not always so easy to distinguish, and there are many gray areas in between. This is true even in the legal system because right and wrong are subject to social and cultural definitions and concepts. Some illustrative examples of topics for which right and wrong are currently debated in society include whether it is wrong to artificially terminate the life of a fetus, to have physician-assisted suicide, or to punish severely wrong behavior with death.

A nation’s legal position on such issues may shift over time and vary in association with changes in culture. For example, in some societies, an intimate relationship between persons of the same gender is still considered wrongful behavior deserving of punishment. In the United States sexual intercourse between homosexual partners was viewed as wrong and criminal in some states but not in others, until recently, when the U.S. Supreme Court ruled that such private matters should not be subject to and punished by law (Lawrence v. Texas, 2003).

Differences in Punishment Practices

The customs and practices of a society that define right from wrong may be codified into law and enforced by legal sanctions or may be handled by informal extralegal methods. Although our primary concern here is the various legal punishments, we should note that the informal means a society uses are also very important and revealing of cultural attitudes and beliefs. Societal changes are often marked by these two approaches coming into conflict. For example, in India we can observe the extralegal practice of “bride burning,” where women with a dowry deemed insufficient by the groom’s family are at risk of being burned by in-laws, persisting despite legal prohibitions against it. At times, social practices and the thinking behind them may change at a slower rate than legal changes, although sometimes the society changes and the law struggles to catch up.

Legal systems establish, in a public way, how wrongful behavior will be penalized. However, legal systems differ in their operating procedures, in how they define right and wrong, and in the choice of punishments that may be administered. The flouting of public morality in Iran, for example, has been punished under Islamic law by public floggings (“Row Over Public Floggings,” 2001). In the case of murder, Islamic jurisprudence offers the interesting solution of allowing the families of victims to decide whether to accept monetary compensation from the perpetrator for the death of a loved one or to demand the perpetrator’s execution (Chaleby, 2001). In the United States the contours of punishment have been shaped by the prohibition against “cruel and unusual punishments” in the Eighth Amendment to the Constitution. Such punishments as emboweling while alive, beheading, public dissecting, burning alive, or drawing and quartering were proscribed from early on (Radin, 1978; Wilkerson v. Utah, 1878, p. 135).

The death penalty illustrates how the severity of punishment for wrongful behavior varies greatly both within and among cultures. In the United States federal law provides for the death penalty, but state laws vary. At present, 12 of the 50 states do not have a death penalty At the international level Neapolitan (2001) examined and cross-tabulated statistics on the application of capital punishment by geographic region. In Arab regions 94.4% of societies have capital punishment, 86.7% in northern Europe (formerly the USSR), 65.4% in Asian regions, 61.9% in sub-Sahara...