Cultural defense
Cultural defense refers to a legal argument used by defendants who claim their actions were influenced by their cultural backgrounds, often in the context of criminal trials. This concept arises from the increasing cultural diversity in societies like the United States, where courts grapple with balancing the principles of justice and the recognition of cultural differences. While American courts have historically been hesitant to formally acknowledge cultural defenses during trial proceedings, they may consider cultural factors during charging and sentencing phases, reflecting a more nuanced approach to justice.
The cultural defense is often invoked by recent immigrants who may have acted in ways that align with their native customs but clash with American laws, such as certain practices deemed unacceptable in the U.S. Critics argue that formalizing this defense could undermine victim protections and the deterrent effect of the law, potentially compromising social order. Conversely, proponents advocate for its recognition as a way to honor cultural pluralism and the principle of individualized justice, arguing that it provides a fairer evaluation of cases involving individuals unfamiliar with American legal norms. If accepted, cultural defense could join other specialized defenses aimed at addressing circumstances where conviction might be unjust.
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Cultural defense
SIGNIFICANCE: The principle of cultural defense creates conflicts between the American commitment to justice for the individual and the establishment of common values among all members of society.
As the cultural diversity of the United States has grown, courtrooms have encountered increasingly frequent problems in addressing the rights of immigrants and members of minorities. American courts have historically been reluctant to allow defendants to use their different cultural backgrounds as independent and substantive defenses in criminal trials. On the other hand, cultural factors are often considered during the charging and sentencing phases in criminal processing, when prosecutors and judges are permitted to exercise more discretion than they are during the trial proceedings. Although courts are permitted to consider cultural factors in criminal cases, the legal framework of American courts during the early twenty-first century does not include a formal cultural defense.
The theory behind the cultural defense is that defendants—who are typically recent immigrants—have acted appropriately according to the dictates of their native cultures and thus deserve to be found not guilty of the crimes with which they are charged or to be treated with greater leniency. A common example of a case in which a cultural defense is evoked is the charging of Asian immigrants with cruelty to animals for cooking and eating pet dogs or cats—practices that are both legal and socially acceptable in the immigrants’ home countries. Attorneys have also attempted to use the cultural defense in cases involving so-called honor killings and female genital mutilation.
The cultural defense is considered an excuse defense. Although the behavior at issue may be deemed criminal, some peculiarity of the offender or the situation reduces the offender’s moral blameworthiness. By explaining the criminal conduct on cultural grounds, the defendant seeks to receive some benefit from the court or prosecutor, including lessened punishment, reduced charges, or a dismissal of the charges.
The prospect of formalizing cultural defense generates criticism. Some opponents of the cultural defense maintain that the protection of victims, principally women and children, might be compromised. Others suggest that the deterrent effect of the law might be undermined by a defense of this kind, thus jeopardizing the preservation of social order.
Advocates of the cultural defense insist that its acceptance recognizes and respects the American commitment to cultural pluralism. Additionally, such a defense vindicates the principles of fairness and equality that underlie the American system of individualized justice. Further, treating those raised in foreign cultures differently is not deemed favoritism. The cultural defense is considered necessary because recently arrived immigrants have not had the same opportunities to absorb, through exposure to important socializing institutions, the norms upon which American society’s laws are based.
If formalized, the cultural defense would join a growing group of new criminal defenses including the battered spouse defense and the Vietnam veterans’ defense. Such defenses have been created to address those situations in which conviction would be unfair, but traditional defenses of insanity or self-defense would prove inappropriate.
Bibliography
Kahn, Paul. The Cultural Study of Law: Reconstructing Legal Scholarship. Chicago: University of Chicago Press, 1999.
Renteln, Alison D. The Cultural Defense. New York: Oxford University Press, 2004.
Van Bavel, Hannelore. "Is Anti-FGM Legislation Cultural Imperialism? Interrogating Kenya's Prohibition of Female Genital Mutilation Act." Social & Legal Studies, vol. 32, no. 3, 2023, pp. 378-398. DOI: 10.1177/09646639221118. Accessed 25 June 2024.
Wang, Jinghui Vivien. "Cultural Defense as a Shield for Violence." American University Journal of Gender, Social Policy & the Law Blog, jgspl.org/cultural-defense-shield-violence/. Accessed 25 June 2024.