Criminal Unaccountability for Cultural Diversity on Article 15 of the Criminal Code

Abstract

In this paper, the author analyzes article 15 of the Peruvian Penal Code, which establishes a case of criminal unaccountability for cultural diversity. Following Zaffaroni’s argument, the author claims that in the error of culturally conditioned understanding, the subject knows the prohibitive norm; however, due to cultural reasons, he or she cannot internalize it; that is, he or she lacks the capacity to understand and behave according to that understanding. In that sense, the author questions that the doctrine and the jurisprudence understand that this article refers to a supposed ignorance of the illicit act, when in fact it is a lack of understanding of the criminal nature of the act, because the agent belongs to a different culture than the one that underlies the legal system. Under this understanding, criminal unaccountability for cultural diversity represents a more democratic and less discriminatory normative assessment, as it focuses on evaluating the inability to understand the illicit act or behave according to that understanding, leaving aside a discriminatory treatment that disqualifies the indigenous person as an inferior subject, in most cases. Finally, the author also analyzes whether the commented article is necessary or if it can be reconducted to another case, besides that, he explores the legal consequences of criminal unaccountability for cultural diversity and makes some suggestions on this matter.