If you grew up in a household of domestic violence, a culture of ingrained misogyny and a climate where the very air was thick with hostility to homosexuals, you would be a very different person to what you are now. You and your friends would probably be much more sympathetic to what we now recognise as these unpalatable attitudes. While it is always difficult to imagine holding different beliefs to those you actually hold, no one can seriously deny that the environment in which people are brought up exercises tremendous influence on their thinking and behaviour. To insist, therefore, that those inculcated with different maxims and indoctrinated by different holy men must immediately behave the same way as us, is crude and unthinking nonsense. Alas, this is precisely what we are now doing by hammering Middle Eastern migrants with the ‘equality’ of our law, blinded by our own self-righteousness and fear.
“All are equal in the eyes of the law”, we are told. From the Shetlands to Land’s End every person is protected by the law in equal measure; each is equally subject to its constraints. This is, indeed, one of our constitutional axioms; one of which we are usually very proud. In many cases, rightly so, for the essential equality of all people should usually mean equal treatment by the law. Venerated though it is, this principle needs to be radically reconsidered. If ‘equal’ legal treatment means applying the same rules and standards to a vastly diverse nation, then the law should surrender its claim to be delivering real equality. For applying the same rules and standards to everyone is insensitive to their differences. It ignores their circumstances and displays an insouciant disrespect to those on society’s periphery. Now, more than ever, the problem is becoming painfully obvious. Across the welcoming nations of Europe, a swathe of new immigration unsettles the already frothing cultural melting pot. As more migrants commit crimes, governments are implored to strike back with the full force of the law. Unpopular though it might be to say, this is a wholly inadequate response. ‘Warn and educate’, not ‘prosecute and deport’, should be Europe’s policy. And if the latter approach is taken, then we will be ignoring cultural differences and sanctioning a grave inequality.
For clarity’s sake, a few possible misinterpretations need to be disavowed. But for perhaps the very xenophobic, no one (rightly) believes that the vast and diverse areas from which the many migrants hail are deeply immoral, disreputable, or cultural cesspits. On the whole, they are areas degraded by war and tortured by despots, and the people seeking save haven in Europe are, overwhelmingly, grateful for their welcome. They are decent, loving people who deserve our embrace and support.
That said, there is an obvious reason for this discussion. That is, unfortunately, that in the past few weeks there has been a notable spate of attacks, often sexual, made by some refugees against women. In Helsinki, Cologne, Hamburg and other parts of Germany, this has aroused widespread public angst about migrant numbers, and has prompted various anti-immigrant protests. Helsinki’s deputy chief of Police has said that “this phenomenon is new in Finnish sexual crime history”. The assaults in Germany have even forced Angela Merkel to consider qualifying Germany’s tolerance of refugees. Not only have women been subjected to increased sexual violence, but in many refugee shelters in Germany, gay and lesbian migrants have been persecuted and sometimes assaulted because of their sexuality. That homophobic violence is, at least, beginning to be addressed by initiatives like the ‘Love Deserves Respect’ campaign.
Nonetheless, the problem remains. Many migrants have had their behaviour shaped in cultures with aspects we regard as malign. For instance, Abdu Osman Kelifa, a migrant from Eritrea, told the New York Times that in Eritrea “If someone wants a lady, he can just take her and he will not be punished”, and that he was surprised that in Norway (his adopted country) a wife could accuse her husband of sexual assault. And, as Jouanna Hassoun, head of Berlin gay federation’s migrant programme reflected: “Just like everyone else, with the refugees, there are good ones and bad ones, and there are those who are carrying homophobic attitudes from their homelands….[which] won’t be abandoned immediately.”
The crucial issue is how to respond to this behaviour. Sadly, it is all too tempting to hammer the table, declare the law’s equal application, prosecute and even deport the migrant offenders, and ridicule any suggestion of leniency as patronising, discriminatory and facilitative of xenophobia and racism. Indeed, conducting any discussion of this topic seems fraught with political difficulty, and, after the suppression of police reports into the New Year’s Eve attacks in Cologne, that city’s former police chief is well aware of them. But that approach would represent a shameful disregard for the circumstances of many migrants’ lives. It would penalise them for being born in a different country, raised in a different environment, and taught a different morality. It would, in essence, be to hold them accountable for things totally out of their control. It would be flagrantly contradictory to the apparently humane embrace of the West to these refugees. Many would escape persecution at home, only to be faced with prosecution abroad. For these people, it would be out of the frying pan and into the fire.
Once we have recognised that people are simply a product of genetics and culture, then we are a long way to rejecting the idea that the law should be blind to differences.
In truth, there is no justification for blithely enforcing the law against everyone in precisely the same way. Instead, fairness requires that people are not held accountable for their genetics and the experiences to which they have been subjected. Both are outside their control. Of course, the law does not treat people in precisely the same manner today. The psychiatrically ill are often not legally liable, children are treated differently to adults, people’s behaviour is appraised in its context, and so on. But as sensitive as the law can sometimes be, it does not accept that behaviour is nothing more than the sum of genetic make up and experience. A crime, is, in many respects, simply a crime. Irrelevant that you might have had a terrible upbringing, or shoddy genetics. You decided to behave like that, and you’re accountable for your choice.
Regardless of its philosophical coherence (or incoherence), the idea that the law should be enforced the same against everyone, come what may, causes major hardship. Defenders of this ‘common sense’ view have to squarely face up to these problems. To remain apologists for that legal ‘equality’, those people must be satisfied that it is fair to convict and jail people like Mr Kelifa – even though, as he himself said, in their countries that sort of behaviour is apparently acceptable and not actively discouraged. They must be content to convict, jail and even deport people who have no knowledge of our standards of acceptable behaviour, who have no idea that, for instance, most of us do not regard homosexuality as being contrary to some sort of holy law and so punishable. They must, in short, be prepared to disregard the environments in which people have lived and to say that they are all but irrelevant to culpability. This position, certainly the norm, is a new form of cultural imperialism, so crude and ignorant that even Rhodes would shiver.
Now, of course, it is generally borne of sound motives. Such people are not therefore racists or xenophobes. Indeed, many adopt that position for the very reason that racism or ethnic prejudice might result from legal discrimination between those of different nationalities or circumstances. But sound motives are insufficient to win an argument. We cannot be blind to dramatic differences between people, engineered by factors outside their control and informative of their behaviour. Sensitivity to different cultures means understanding the harmful practices of others, not just the good ones.
Education, education, education
However, that sensitivity cannot collapse into an uncaring and immoral cultural relativism. Understanding why people behave in a certain way and forgiving them does not mean we must accept their behaviour forevermore. Quite the opposite. As the Norwegian government has done, the best method to smooth over the rough edges of migrants’ cultures is education, education, education. We have to insist that many aspects of Western liberal culture are non-negotiable. Gender equality, sexual freedom, religious pluralism and free expression, to name a few. All new arrivees have to become versed in these ways, offender or not. These are not principles to retreat from. For example, there can be no yielding on the rule that “to force someone into sex is not permitted in Norway, even when you are married to that person”, as the course manual to the Norwegian integration programme states. Of course, government funding of such programmes comes at a cost. But if, like Mr Kelifa, some can be persuaded that it is legitimate and noble that “[women] can do any job from prime minister to truck driver and have the right to relax”, then it is hard to argue that the cost is excessive.
But education is not a panacea, and imparting minimum standards of conduct on migrants takes time. The more pressing problem is therefore what to do with those who already committed offences, and those who will in near future. In order for cultural tolerance to be a practice as well as a preaching, the current regime must change immediately. Prosecutorial authorities like the CPS should consider abstaining from prosecuting recent migrants who – say, within a year of their arrival – commit certain criminal offences. Instead, the prosecuting authority should compel that person to attend educational programmes of the Norwegian variety, saving which that individual will be prosecuted.Failing that, newly accepted migrants convicted of certain offences should be spared prison time for all but the gravest offences. Again, they should be forced to attend and complete educational programmes instilling basic, minimum liberal values, in order to minimise the likelihood that they reoffend. Radical as it may be, we cannot simply treat all those who commit crimes as ‘criminals’ and no more.
This regime for dealing with new migrants who break the local law should not, of course, be permanent. It is simply designed to allow new Europeans to settle into their new environment, to learn new customs and to acquire new habits. Otherwise, we will continue to force foreign minds to bend into absolute compliance with our law, immediately on their arrival. Few things could be more culturally insensitive than this.
Unprecedented events often call for unprecedented changes. Sometimes even the most idolised ideas must yield to new events and new thinking. Coupled with the increasing acceptance that people are simply the product of their cultures, the tsunami of immigration is such an event. It is the prompt for us to reconsider the law’s ‘equal’ application; to prevent its transition from maxim to dogma.