Cultural Defense

Strictly speaking, there is no such thing as a ‘‘Cultural Defense.’’ Instead, the term refers to all of the ways in which a defendant can use evidence of his cultural background—the ‘‘shared organization of ideas that includes the intellectual, moral, and aesthetic standards’’ prevalent in his community of origin—to argue that his conduct was either not criminal, should be excused, or should be punished less severely.

Courts have traditionally been hostile to Cultural Defenses, viewing them as incompatible with the Rule of Law, the idea that ‘‘to apply a law justly to different cases is simply to take seriously the assertion that what is to be applied in different cases is the same general rule.’’ More recently, however, three different kinds of Cultural Defenses have begun to gain a degree of judicial acceptance.

First, courts have allowed defendants to use cultural evidence to show that they lacked the mental state required by a particular crime. An example is People v. Moua, in which a young Hmong man was accused of raping and kidnapping a young Hmong woman. Prior to trial, the defendant introduced evidence that abducting and having intercourse with an unmarried woman against her will, and despite her protests, was an expected part of the Hmong’s ‘‘marriage by capture’’ tradition. The court dismissed the charges on the ground that the defendant lacked the specific intent required by rape and kidnapping.

Second, courts have allowed defendants to use cultural evidence to establish criminal defenses such as provocation, self-defense, duress, and necessity. In People v. Croy, for example, a jury acquitted a Native American man accused of murdering a police officer after a historian testified that, in light of the U.S. government’s repeated persecution of the defendant’s tribe, the defendant could have reasonably believed he was acting in self-defense.

Third, courts have allowed defendants to use cultural evidence as a mitigating factor during Sentencing. Such evidence is particularly common in child-abuse cases, where the defendant argues that he should be given a lenient sentence because he was simply disciplining his child in accord with his cultural traditions. For example, a Mexican woman was sentenced to probation for beating her son with a spoon and biting him after she introduced evidence that such punishment was standard discipline in Mexico.

There are two basic rationales for recognizing Cultural Defenses. To begin with, such recognition promotes individualized justice, the idea that the defendant’s punishment should match his personal culpability. An individual who commits a criminal act either because his cultural values required him to do so or because he did not know the act was illegal in the United States is not as personally culpable as someone who commits the same criminal act freely and with knowledge of its illegality.

Recognizing Cultural Defenses also promotes cultural pluralism. By judging individuals according to the standards and values of their native cultures, Cultural Defenses help preserve those cultures, maintain a culturally diverse society, and ensure that minority groups are not penalized simply for being different.

KEVIN JON HELLER

References and Further Reading

• Levine, Kay L., Negotiating the Boundaries of Crime and Culture: A Sociolegal Perspective on Cultural Defense Strategies, Law and Social Inquiry 28 (2003): 1:39–86.
• Note: The Cultural Defense in Criminal Law, Harvard Law Review 99 (1986): 6:1293–1311.
• Renteln, Alison Dundes. The Cultural Defense. New York: Oxford University Press, 2004.

Cases and Statutes Cited

• People v. Moua, No. 315972-0 (Cal. Super. Ct. Fresno County Feb. 7, 1985)
• People v. Croy, 710 P.2d 392 (Cal. 1985)