Law in Contemporary Society

The Cultural Defense Defined

In the United States, a cultural defense is invoked when defendants, generally immigrants, ask the court to excuse them from, or reduce their liability for, a crime on the basis of their foreign cultural background. Coinciding with American notions of individualized justice, the defense attorney will ask the court to consider the individual’s personal circumstances with regard to the crime that was committed. The attorney may argue that because of the strong influence of the defendant’s culture, he or she either did not know or intend for his or her conduct to be criminal, or that his or her conduct should be viewed differently from that of an American citizen.

The area of law concerning the cultural defense is still evolving, and many cases involving its use are unpublished. The introduction of cultural norms may, on the one hand, cast doubt on a defendant’s intent, which the State has the burden of proving beyond a reasonable doubt. Formally accepting a cultural defense could insure that defendants are fairly heard on a consistent basis, rather than leaving the introduction of cultural evidence to the discretion of the court. However, on the other hand, for purposes of equal justice and to prevent against abuse, existing standards of objectivity with regard to how a reasonable person would act in any given situation should not be uncritically expanded in order to accommodate different behavior and reactions on the basis of foreign cultures.

Using the Cultural Defense with Regard to Intent

Cultural evidence is relevant in accessing whether or not a defendant had the capacity to form the intent necessary for the commission of his or her crime, given the circumstances that he or she faced. A cultural defense would allow one to argue that his or her crime was triggered by shame or pressure within a different cultural community, causing him or her to react in way that a ‘reasonable’ American might not. This begs the question of whether or not the standard by which we hold defendants to should be modified from that of a reasonable person within the American cultural system, to a more subjective standard of a reasonable person from within the defendant’s culture. While the American legal system purports to exclude motive as a factor when assessing many crimes, this would in effect also introduce motive as a mitigating factor.

Cultural evidence may be particularly relevant in specific intent crimes, such as child abuse, which often requires a touching for the purpose of sexual gratification. Touching a child’s genitals does not carry the same stigma or meaning in some cultures around the world that it does in America. Introduction of cultural evidence would make it harder for prosecutors to prove the requisite intent, whereas exclusion of such evidence coupled with circumstantial evidence that makes the behavior look like child molestation in the dominant US culture, could in certain cases lead to wrongful imprisonment of defendants.

Certain behavior is socially unacceptable in America, and for very good reasons. The law should also be enforced with a degree of neutrality and uniformity. However, cases such as an Afghani man kissing his son’s genitals in a show of affection are not what the legislature had in mind when they enacted sexual assault statutes. Introducing culturally relevant evidence would force the prosecution to truly prove the intent that is required by law before a defendant is convicted of a serious crime, rather than rely on circumstantial evidence. In cases of first-time offenses, when a defendant can prove that his actions are part of an accepted custom in his culture, done for reasons outside sexual gratification and causing no harm to the ‘victim,’ it is more in line with the American ideal of justice for all that the defendant is informed that his conduct will not be tolerated in the United States in the future, rather than immediately incarcerated for it.

The Effect of The Cultural Defense on Violent Crimes Against Women

Despite the potential use for a culturally relevant defense, whether it is incorporated into already-established defenses such as temporary insanity or provocation, or stands on its own, uncritical judicial acceptance of the cultural defense risks rendering more vulnerable the very groups of people - minority women and children - who may need the most help from the American legal system. For example, in the case of honor killings, a defense attorney may argue that the defendant had a psychological, cultural belief that beheading ones wife is an acceptable way to punish her ‘disobedience,’ and that, given his cultural background, he reacted reasonably when violently provoked by his wife’s behavior and thereby was unable to form the requisite intent to kill in the face of his wife’s provocation.

While the prosecution must still produce positive evidence of intent beyond the circumstances of the crime, justifying violence against women as a cultural norm, rather than neutrally accessing the crime committed in the given circumstances, runs the risk of undermining the seriousness of the crime while simultaneously reinforcing stereotypes about other cultures. Labeling a crime as ‘culturally induced,’ rather than describing the problem as one of misogyny, exoticizes the aggression and obscures the reality that domestic violence is a serious and pervasive problem in every culture around the world. In the case of the so-called honor killing, this is not simply business as usual in the “old country,” but rather a violent act against a more vulnerable member of society, and should be viewed through that lens whether the defense argues temporary insanity, provocation, or a culturally relevant defense.

Equal Protection

It is understandable that many immigrants come to America without being able to speak English well and are heavily influenced by the cultural in which they were reared. However, since immigrants do choose to live, work, and raise families in America, they must also be subject to the American legal system. In order to maintain the integrity of the legal system, the law must be applied impartially, particularly in the case of serious crimes. While this does not necessarily mean complete inflexibly when justice calls for flexibility, the requirement for intent and the standard used to judge it should not be relaxed with regard to those who are culturally predisposed to react violently in certain situations.

American culture is not hegemonic; it is one of many in the world, and other cultures are equally deserving of respect and protection. The United States is a pluralistic society and the right to maintain one’s heritage is widely valued as a basic human right. Under the presumption that such a tolerant state is desirable, the use of the cultural defense could, in certain circumscribed situations, recognize and protect the cultures of immigrants and refugees who come to live in the United States without making the victims of their crimes insignificant.

By considering the cultural heritage of a defendant as one of many factors to explain why the defendant acted as he or she did, and still holding the defendant to an objective standard of reasonableness, the legal system could promote justice for individuals without the risks associated with an uncritical commitment to pluralism. While the State must prove the actual existence of intent, it must not dispense with equal justice for all by applying a more lenient standard to those who are culturally conditioned to act a certain way.


The authenticity of the cultural defense and the willingness to hold people to different standards of justice should be viewed through a lens of skepticism. There is a degree of logic in using culture as a legitimate basis for differential treatment in certain specific intent crimes. There may be situations when a foreigner’s conduct, when considered against American cultural standards, is interpreted very differently than how it was intended and as a result falls outside the scope of what the American legal system generally finds acceptable. Nevertheless, culture should not be used uncritically to excuse criminal behavior, and all defendants should be held to the same level of objectivity when arguing for defenses such as provocation or temporary insanity, regardless of cultural background.


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r4 - 13 Jan 2012 - 23:14:29 - IanSullivan
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