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11 Jul, 2017 16:16

'Cultural incompetence': Legal defense for woman-beating migrant boggles the mind

'Cultural incompetence': Legal defense for woman-beating migrant boggles the mind

The New Hampshire Union Leader reported a story that has this writer, a former prosecutor and licensed trial lawyer, sufficiently befuddled and of significantly boggled mind.

It requires rereading with a constant reference to the masthead to ensure that it is in fact not The Onion or the fake news du jour. It’s that unbelievable. So much so that it has inspired other serious accusations and a resignation as a result. It takes the time-honored craft of creative defense lawyering to new levels and is sure to enrage a public already in the throes of the most vocal debate of what constitutes perceived preferential treatment of immigrants.

But first, the facts.

It seems that a Congolese immigrant, Augustin Bahati, 33, escaped a Manchester, New Hampshire, prosecution on six domestic violence charges when his lawyer successfully convinced a city prosecutor his client lacked the “cultural competency” to effectively participate in our American justice system, according to court and public records reviewed by the Union Leader.

You read correctly: He lacked cultural competency.

As the case was reviewed at various levels after a series of complaints were lodged and leveled, the ostensible basis for the dismissal of all charges was provided for thusly: "The six domestic violence charges against this defendant were dismissed because Attorney (Manchester prosecutor Andrea) Muller did not challenge the finding of the forensic examiner that Bahati, who is of Congolese origin, had 'cultural incompetence' with regard to the United States system of justice and was consequently not restorable," wrote New Hampshire Associate Attorney General Jane Young on June 12.

It is particularly worth noting that the term “not restorable” is usually used as part of the usual psychiatric or sanity aspect of competency, i.e. being restored to mental competency within 12 months. This seems to suggest that even with the most targeted and comprehensive programming available, Mr. Bahati suffers from such a cultural incompetence that no restoration or introduction of cultural competency and coherence is available. Imagine that.

"This finding simply does not comport with the legal requirements for a finding of incompetency to stand trial and should have been aggressively litigated," wrote Associate Attorney General Jane Young, obviously not buying the argument either.

It’s axiomatic that generally ignorance of the law is no defense or excuse (Ignorantia juris non excusat). Ignorance can present itself in varying shades and textures of which, I’m sure, the case for cultural nescience (or competency) can be advanced, whatever that means. Mistake of fact can in some cases be used as an affirmative defense when a reasonable mistake serves to vitiate the specific intent of a crime. But not being conversant or familiar with our cultural ways may, in fact, apply to some factual bases ... but certainly not “striking, pushing, grabbing, kicking and pulling out the hair of a woman who was 27 weeks pregnant at the time,” as this, er, gentleman was reportedly charged. Battery knows no cultural nuance or international worldview.

Now, let us refer to what is known in the juridical word as the brass tacks. This case is absurd. To think this man is not able to grasp the notion or acquaint himself with the reality that, and I repeat, “striking, pushing, grabbing, kicking and pulling out the hair of a woman who was 27 weeks pregnant at the time,” is verboten is to abandon and/or reject anything vaguely resembling rational thought.

On a personal and professional note, as a former prosecutor, I have been scrupulous in reminding audiences that it’s easy to second-guess a case without reference to the workload of a prosecutor’s office or the unique facts that are all too often omitted in newspaper and media accounts. I recognize and call on the reader to remember that prosecution is discretionary and that there is no right per se to your having a case filed or a suspect charged.

That being said, to elevate or relegate (depending on one’s vantage) psychiatric competence via sanity to that of the ability of a suspect to conform to and comprehend the subtle cultural nuances of our unique antipathy toward physical battery, offensive striking and abuse of an innocent victim strains credulity and decency. It is irrational and intellectually disingenuous and does nothing more than fuel anti-immigrant ideology and the rejection of assimilation. Not to mention breeding, even more, contempt for the criminal justice system.

Let’s be clear. Cultural fluency has its role and place in prosecutorial consideration and discretion. I have seen firsthand cases where religious observation and language barriers might lead to misunderstanding or confusion, but not where civilian safety is at stake.

Domestic violence is not alien to the Granite State. The New Hampshire Coalition Against Domestic and Sexual Violence (NHCADSV) estimates that 33.4 percent of women and 24 percent of men in New Hampshire have experienced a physical assault by an intimate partner. It’s become an epidemic nationwide, and citizens demand that it be prosecuted vigorously.

This decision is now enjoying a multi-jurisdiction review, and criminal law experts are determining whether charges can be reinstated with double jeopardy protections satisfied.
There are too many cases where mental competence is too often overlooked and not even considered. And then there’s this case, which all sentient human beings pray is the exception.

But something tells me that’s not the case.

The statements, views and opinions expressed in this column are solely those of the author and do not necessarily represent those of RT.