Cross-cultural Issues in Forensic Practice
| Author | Smita Vir Tyagi |
| Pages | 119-154 |
CHAPTER 8
Cross-cultural Issues
in Forensic Practice
Smita Vir Tyagi
I. INTRODUCTION
It is now widely accepted in the eld that mental health services should be provided in a culturally
competent manner. Research, theory, practice in transcultural psychiatry and cross-cultu ral psychology
can be found in abundance. In comparison there is less literature in cross-cultural forensic psychiatry
which has been slower to respond to the needs of the oender population which now includes people
from every culture and background in North American society. However, the eld is slowly beginning to
respond and in doing so faces a number of challenges such as development of theory, models of practice
and training of front-line service providers. e subject is wide ranging in scope and this chapter has
attempted to address only a few key issues in the area. e author hopes to increase readers’ awareness
of what is involved in cross-cultural forensic practice. e author also notes that culture is a term that
can be used broadly in relation to any group or society but for the purposes of this chapter will focus
predominantly on ethnic and racial minorities and marginalized groups including Aboriginal people
and those who are deaf or hard of hearing.
A. Culture, Race, Ethnicity: Concepts, Constructs, and Misnomers
A review of the literature indicates that concepts of culture, race, ethnicity, and colour are oen used inter-
changeably. As learned behaviour, whose transmission occurs naturally from one generation to the next,
culture is the way of life for dierent groups of people. Culture consists of all those things that people have
learned to do, believe, value, and enjoy in their history (Sue & Sue, 1990). It is the totality of ideals, beliefs,
skills, tools, customs, and institutions into which each member of society is born. is notion of culture
can also be applied to customs, practices, or beliefs that come with membership in a group based on any
number of factors; for example, appearance, colour, and race (black people, Aboriginal people), religion
(Jewish culture), membership in a sub-group (culture of poverty, gay culture, corporate culture), etc.
Race has been used specically to refer to a group of people who share common physical characteris-
tics such as skin colour, size, and facial features. e construct, so deeply entrenched in the understand-
ing of dierence has come to signify an independent reality in describing members who belong to that
identiable group. What is observed in terms of skin colour may correlate well with commonly held,
popular beliefs, but correlates only weakly with genetic dierentiations (Sternberg et al., 2005). Genetic
and DNA analysis has demonstrated there are greater variations within so-called racial groups than
between them (American Anthropological Association, 1998). e use of the construct “race” has been
roundly criticized as having poorly operationalized denitions and lacking conceptual clarity in what it
is supposed to represent (Helms et al., 2005; Ota Wang & Sue, 2005). It has also been criticized as provid-
ing the basis for exclusionary and racist practices in medical and psychological research. While still a
contested notion, it has now generally been accepted that race is a socially and culturally constructed cat-
Smita Vir Tyagi
egory; a product of historical, economic, social and political circumstances rather than actual biological
dierences on the basis of morphology.
Ethnicity refers to the markers that social groups rely on to distinguish themselves from other groups
such as common historical paths, behaviours, norms, and group identities. Members of a certain group
may be aliated through sharing of a common language, customs, religion, culture, or other character-
istics that distinguish them as a group (Tseng et al., 2004). Ethnic or racial identity refers to the manner
in which a person identies with his or her own ethnic or racial background. It is important to note
that identities are complex and multidimensional. ey are neither static nor carved in stone. Aspects of
identity can vary in salience with time, place, context, and frame of reference. For example, an individ-
ual may identify himself as a high powered lawyer (at work), a French-Canadian, cultural and linguistic
minority (in Anglo Canada), a musician (in his amateur jazz band), an environmentalist (in his political
opinions), a product of poor working class parents, as well as a member of the white majority (in relation
to black youth for whom he does pro bono work in an inner-city legal clinic).
Identities are also products of relationships. For example, the woman living in Mexico is a female
whose identity is shaped by class, gender, her family’s position in life, whom she marries, her own
notions of herself, and so on. When she comes north to the United States or Canada, a new dimension is
added to her identity; that of a woman of colour because that is who she is in relation to white members
of those societies. Identities are also products of historical relations between groups, places of origin, lan-
guage aliation, ability, and sexual orientation. For many minorities, growing up in racialized environ-
ments, identities are shaped in part by other people’s perceptions of their race, colour, or who they are.
All these dimensions are inter-connected and form an important part of an individual’s identity. Some
of these dimensions are more dominant than others depending on time, place, people, and environment.
Each has a cultural nuance loaded with meanings which together form a complex, whole “self.” With
each added dimension also comes inferences, assumptions, and stereotypes in relation to the individual
or groups that come into contact with each other.
In forensic practice, clinicians work with oenders who come from many dierent backgrounds.
erefore, it is important to understand the complex notions of identity and self and the assumptions
and stereotypes that accompany them. It is important to see identity and self as complex and multi-
faceted rather than unidimensional. e danger of adopting a position where our understanding of a
person (or group) is reduced to one category is it reduces that individual to a singular quality. Clinicians
need to understand that in seeing a person as having the salient characteristics of a limited dimension
(black oenders, sex oenders, Aboriginal oenders, deaf oenders) “essentia lizes” them to that sing ular
quality which, in turn, can become an enduring label. Such an approach is reductionist, simplistic, and
prevents us from fully understanding individuals in their entirety. It is a process fraught with problems
and, is also not particularly helpful in understanding the individual or group. Further, it is important
also to recognize that regardless of how identity came to be constructed, members of certain groups can
suer discrimination, racism, sexism, or exclusion on account of their membership in a certain class
(religion, colour, background, ethnicity, sexual orientation). Practices of oppression are entrenched in
our social relationships, institutions, and thinking about the world. ey come into play in relationships
between groups and individuals, and clinicians and their clients are no exception. ese are signicant
considerations in developing a better understanding of oenders which also impact on assessment, test-
ing, risk predict ion, and treatment.
Cross-cultural Issues in Forensic Practice
B. Overrepresentation of Minorities, Systemic Racism, and Racial Profiling
in the Justice System
It has become increasingly clear that racial and ethnic minorities frequently experience systematic and
systemic racism within the criminal justice system (Commission on Systemic Racism in the Ontario
Justice System, 1995; Wortley, 1999; Wortley & Tanner, 2003). Minorities are subject to institutionalized
discriminatory practices within the criminal justice system and there is a pressing need to address the
unequal application of justice (Fernandez & Bowman, 2004). Racial and ethnic minority oenders, oen
disadvantaged by a lack of nancial resources to defend themselves in court, end up being dispropor-
tionately represented at every stage in the justice system, including prison.
In Canada, as per the last census, 18.4 percent of Canada’s total population was born outside the
country and 13.4 percent of individuals were identied as visible minorities, the largest groups being
Chinese, South Asians and blacks (Census, 2003). In Canadian federal prisons Asians, who form ap-
proximately 13 percent of the visible minority population, comprise 11 percent of the prison population.
In contrast, black people who are about 2 percent of the population comprise about 6 percent of the
prison population (Trevethan & Rastin, 2004).
Black oenders are oen treated more harshly aer arrest than white oenders, they are more likely
to be detained at the crime scene and once at the station are more likely to be held in custody awaiting a
bail hearing (Wortley & Tanner, 2003). ey are likely to be 4.2 times overrepresented in trac oences,
3.7 times in cocaine oences, and 3 times more likely to be overrepresented in simple possession oences
(Wortley & Tanner, 2003). Black people are much more likely to be caught when they break the law than
white people who engage in similar forms of behaviour (Wortley & Tanner, 2003). Non-white defendants
sent to a psychiatric unit for forensic evaluation are almost three times more likely than whites to be
convicted of an oence (Arboleda-Florez & Crisanti, 1998).
ere is little dispute over the fact that legal factors such as the seriousness of the oence, past crim-
inal history of the individual, and men s rea are important considerations in decision making within the
justice system; however, it is now widely recognized that extralegal factors such as race, gender, ethnicity,
and social class, directly or indirectly inuence decision making in the justice system, frequently with
negative consequences for racial and ethnic minorities. Minority oenders are oen perceived as more
dangerous, threatening, and culpable than white oenders, hence punished more severely than white
defendants (Maxwell et al., 2003; Steensmeier & Demuth, 2000). Steen and colleagues (2005) argued that
while the eects of race are not universal in sentencing decisions, there is substantial evidence to show that
race does, in fact, interact with legal and extralegal factors in aecting sentencing outcomes. ey also
showed that stereotypes and assumptions about minority oenders by legal decision makers render them
at a disadvantage not only in the sentences they receive but at every step of the way in the justice system.
Racial proling is another example of an institutionalized practice of racism directed against min-
orities, most oen targeted toward black people. It refers to the phenomena where members of certain
ethnic or racial groups become subject to greater levels of criminal justice surveilla nce than others. It has
been generally dened as police stop and search practices, customs searches at airports, increased police
patrols in racial minority neighbourhoods, and undercover activities that selectively target particular
ethnic groups. Research shows that black people are (in some cases as many as eight times) more likely to
be stopped and searched by police than white people (Bunyan, 1999; Engel et al., 2002). e term “driv-
ing while black” is an expression that has been used to illustrate the endemic problem of racial proling
of black men in the United States (Zingra et al., 2000). e practice persists in spite of evidence that its
negative impacts far outweigh the benets (Hart et al., 2003).
e issue of overrepresentation is even more salient in the Aboriginal population who constitute less
than 4 percent of Canada’s population but represent 19 percent of the prison population at a provincial
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