What, in a homicide case, is a detriment to a victim? Do you actually wish to argue that the victim of a homicide has an interest in what happens to the killer? I think you mean, to those who survive the victim and are inclined to identify the ends of justice with their own psychic needs. This identification is theoretically uncertain, though it makes good politics, and in the case of defenses based on cultural differences (which it is perfectly possible to confront on neutralist grounds) the argument from victims' "rights" contains a cultural awareness recursion (from which cultural perspective should victims' rights be viewed?)

Considering the inequitable consequences that can result, and the need for equal protection under the law, the cultural defense should not be allowed as a defense in violent crimes, and should be severely limited and viewed skeptically by courts as a mitigating factor in non-violent crimes.

Yes, I think this is the correct argument, but it has nothing to do with the state of affairs around the world: it requires only that we decide that we strive for Equal Justice Under Law, and have made neutral law for the purpose.

By allowing a man to claim that his culture made him more inclined to provocation or violence, the legal system detracts from the seriousness of the behavior and creates a dangerous precedent that one can “get away with murder” by claiming to be a product of a certain culture.

Yes, that would be a poor argument. But you haven't dealt with the argument actually made, which isn't that one. Here a lawyer has presented a particular legal claim, and you should confront it. The lawyer has said that the human being who killed could not form the requisite intent to kill, because the world in which his mind was formed caused him to short-circuit his thinking process and act in the heat of emotion without forming an intent to kill.

Your position has to be either that in situations where someone culturally is predisposed not to think before acting but the harm is severe, we should relax the requirement for actual intent, or that we are dispensing equal justice and must apply to the State the same restraints in the execution of its will regardless of persons. In that case, the State must always show the presence of intent in order to convict of homicide. Whether the State did or did not have evidence of intent to kill then becomes crucial, and however defense counsel choose to raise the issue of the completeness of proof, the burden remains with the State. The defense didn't prove that Chinese men suspecting adultery can't form an intent to kill their wives; instead, the State failed to prove that Chen Dong-lu (he has a name too, after all) possessed such an intent at the relevant time.

You don't give a citation to any opinion in the case, and I cannot confirm that you have even described its outcome correctly. You say Chen Dong-lu was convicted of involuntary manslaughter, but that doesn't fit the facts and isn't confirmed by the sources I can find, which quote a record I cannot see as indicating that Chen Dong-lu was convicted of manslaughter in the second degree, NY Penal Law 125.15, which for these purposes means reckless life-taking. It appears that this conviction occurred in a bench trial, which would seem to indicate that the prosecution's proof broke down at trial. The defense presented unrebutted evidence of Chen's cultural inability to form an intent to kill in the presence of the "hot blood" caused by a verified suspicion of adultery. The prosecution apparently chose to ignore all this evidence and produced no positive evidence of intent beyond the circumstances of the crime. On that state of the evidence, the judge convicted of the lesser included offense the evidence would support, which under New York law is classified as a non-violent class C felony, thus explaining the "short" sentence (equivalent to what Chen Dong-lu would have received if he had been found guilty of manslaughter in the first degree, that is, killing in the heat of passion, in cultures that believe in less savage sentencing). I would have cautioned you against relying too heavily on a case whose basic procedural facts you cannot see or make it possible for your reader to see. But you should also have considered why so many publications continue to rely on a single instance in which, according to the source you cite, the record has been lost from the courthouse. If people are still writing about this case in which the sources are lost, that must mean there are no cases with readily accessible sources that make the same point for the intellectuals looking on. This suggests that the extent of the social problem you are all geared up to rectify is not very great.

Instead, our justice system should address the power asymmetry between men and women and the fact that violence is often used as a form of control over a woman’s behavior. Conduct that harms and subordinates women in any culture should be challenged and punished rather than excused or veiled behind a respect for different cultural values. A man should never be allowed to claim his ‘culture made him do it’ or made his conduct more reasonable in the case of honor killings, wife beating, or bride capture.

Neutrality of application should be sufficient to achieve the purpose disclosed in your last sentence, which is in tension with everything else you say, which appears to make it a worse crime to hurt a woman for reasons of familial or patriarchal "honor" than to hurt a man, for example, in the honor killing among Turks of gay sons. (A problem that generated a very notorious trial in Istanbul last year.) But if we are willing to punish people who kill women more severely than people who kill men, then what's wrong with the situation disclosed in McCleskey v. Kemp?

This is all very well, but you're arguing against a legal privilege, which is quite irrelevant. The State must prove actual existence of an actual intent, and the equality with which we hold the State to that requirement is crucial to all of us. If someone doesn't possess the relevant intent, for any reason including different cultural conditioning, neurological disease or injury, temporary mental incapacitation, etc., conviction of an offense requiring that intent is a due process violation that endangers everyone. This is the argument you have to encounter, and you're not doing that.

Almost got to grips with the real argument now, and already you are conceding before you get to it. This is the antechamber to the argument, and so long as it's a "factor" among "factors," you're beginning to run out of steam.

The invocation of a culturally relative standard would not demand that judges and juries acquit defendants in all circumstances, but instead ask that, when warranted, they consider reducing the charges or mitigate sentences.

Step away again. You didn't come to grips with the cultural specificity of facts, most importantly facts about intent.

There may be situations when a foreigner’s conduct, when viewed through the lens of American cultural standards, is interpreted very differently than how it was intended. Such was the case of Nary Chao, who was arrested for sexual assault of a minor after kissing her young child’s genitals in a show of affection that was quite acceptable in her native Cambodia. Mrs. Chao’s conduct was not harmful to her ‘victim,’ but was outside the scope of what the American legal system generally finds acceptable. It should be stressed, however, that while there may be acceptable uses of the cultural defense in a limited context, with respect to serious and violent crimes in which there is real harm done to the victim, the risks associated with its use outweigh the benefits and thus the defense should only be allowed in very specific, narrow circumstances.

No. This is the place where you could have undertaken the analysis of intent, documented the American cultural insensitivity to issues of intent concerning adult seductive behavior with children, and considered the actual legal context of this prosecution, which you don't describe. The arrest of Mrs. Chao's husband for an alleged sexual assault upon the daughter of a neighbor having triggered a child protective services investigation of the conditions inside the Chao household, any disclosure by the children was likely to meet a particularly swift reaction, and the prosecutor's "special victims unit" would have been involved, including in pressuring the family to get a guilty plea out of the father, in a fashion that would not ordinarily be expected even in American Bible Land, let alone in Las Vegas. Once again, you've picked a case for which we have no formal sources, and left important details out of account. The most important, of course, being that Mrs Chao pled guilty to a small misdemeanor, helping the prosecution on its main task of convicting her husband, no doubt, after the sort of heavy intimidating overcharging in the course of investigation that is beloved of all aggressive prosecutors, bad and good alike. (See under Fitzgerald, Pat, the perfect federal prosecutor.)

All defenses are used as a shield for serious criminal conduct. That's what defenses are for. Concluding that they shouldn't be used that way is demagogic or obtuse.

You gave no basis at any time for holding a distinction between violent and non-violent offenses, except presumably that you dislike violence more.

You rely entirely on non-professional reports of legal activity, and your treatment even of those materials is unduly selective, of uncertain accuracy.

You don't ever come fully to grips with the best argument on the other side. You treat the "cultural defense" you are writing about as the affirmative defense of "not being from around here." But the defense is not affirmative, it's purely about raising doubt as to intent, on which the prosecution always has the full weight of the burden. No law is being changed in any way when the defense is asserted, from the formal point of view: a fact is being denied which it is the prosecution's unquestioned duty to prove beyond a reasonable doubt. So?

The Cultural Defense Defined?

The Effect of The Cultural Defense on Violent Crimes Against Women?

Equal Protection?

Potential Benefits of the Defense in a Limited Context?

Conclusion?

The Cultural Defense

-- By SuzanneSciarra - 26 Feb 2010

Mrs. Jian Wan Chen was five foot three and weighed ninety-nine pounds. She had immigrated to the United States from China and lived in Brooklyn with her husband and three children. When her husband demanded to have sex, and she refused, he became suspicious that she was having an affair. When her teenage son found her, she was dead, with lacerations on her head, and contusions and abrasions across her arms and back. Mr. Chen, covered in a blood soaked shirt, admitted to holding his wife down on their bed and striking her repeatedly with a claw hammer. Mr. Chen defended himself on the grounds that he was a product of his culture and therefore lacked the requisite state of mind for murder or voluntary manslaughter. His charge was reduced to involuntary manslaughter and he was given five years probation.

The Cultural Defense Defined

In the United States, a cultural defense is invoked when a defendant, generally an immigrant, claims that because of the strong influence of his or her 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 American citizens. The case cited above is an example of how the cultural defense - the claim that one’s foreign cultural background should serve as a mitigating factor in the charging or sentencing of a crime - can be used to the extreme detriment of victims. Considering the inequitable consequences that can result, and the need for equal protection under the law, the cultural defense should not be allowed as a defense in violent crimes, and should be severely limited and viewed skeptically by courts as a mitigating factor in non-violent crimes.

The Effect of The Cultural Defense on Violent Crimes Against Women

Judicial acceptance of the cultural defense could lead to rendering more vulnerable the very groups of people - minority women and children - who need the most help from the American legal system. In the Chen case, despite brutally beating his wife to death, Mr. Chen received a lenient punishment for his crime. Mr. Chen’s lawyer had introduced evidence that it had been reasonable for Chen to respond violently when faced with his wife’s alleged adultery because of his Chinese culture. The expert at trial testified that while the violent behavior had served as a vehicle to dispel Chen’s shame, it would normally have been prevented by the Chinese community. When the court ruled to reduce the charges, it effectively ‘exoticized’ Chen’s crime instead of confronting the reality that domestic violence is a serious and pervasive problem in every culture around the world.

By allowing a man to claim that his culture made him more inclined to provocation or violence, the legal system detracts from the seriousness of the behavior and creates a dangerous precedent that one can “get away with murder” by claiming to be a product of a certain culture. Instead, our justice system should address the power asymmetry between men and women and the fact that violence is often used as a form of control over a woman’s behavior. Conduct that harms and subordinates women in any culture should be challenged and punished rather than excused or veiled behind a respect for different cultural values. A man should never be allowed to claim his ‘culture made him do it’ or made his conduct more reasonable in the case of honor killings, wife beating, or bride capture.

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. If the law were applied differently to different groups of people, its power to deter would be significantly diminished. This same logic applies to any American who travels or lives abroad; he or she would similarly be held to the standards of that country’s set of laws.

Traditionally, ignorance of the law been held not to be a valid excuse for breaking the law. Certainly American culture is not hegemonic; it is one of many in the world, and other cultures are equally deserving of respect and protection. However, not all cultural values are equally valid, sound or just. It is a fact that many people come to America to escape certain cultural norms, such as female genital mutilation. When cultural values and mores are used as an excuse to crimes, it is imperative to assess their true value, purpose, and place in modern society, including what role they would play as a defense to a serious crime.

Potential Benefits of the Defense in a Limited Context

America 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, non-violent circumstances, 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, similar to gender, age or mental state, to explain why the defendant acted as he or she did, the legal system could promote justice for individuals without the risks associated with an uncritical commitment to pluralism.

The invocation of a culturally relative standard would not demand that judges and juries acquit defendants in all circumstances, but instead ask that, when warranted, they consider reducing the charges or mitigate sentences. There may be situations when a foreigner’s conduct, when viewed through the lens of American cultural standards, is interpreted very differently than how it was intended. Such was the case of Nary Chao, who was arrested for sexual assault of a minor after kissing her young child’s genitals in a show of affection that was quite acceptable in her native Cambodia. Mrs. Chao’s conduct was not harmful to her ‘victim,’ but was outside the scope of what the American legal system generally finds acceptable. It should be stressed, however, that while there may be acceptable uses of the cultural defense in a limited context, with respect to serious and violent crimes in which there is real harm done to the victim, the risks associated with its use outweigh the benefits and thus the defense should only be allowed in very specific, narrow circumstances.

Conclusion

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. While there is logic in using culture as a legitimate basis for differential treatment in certain non-violent crimes, strict limits respecting the extent and type of conduct applicable for the defense should be enforced in order to ensure that it is not abused or used as a shield for what would otherwise be considered serious criminal conduct.

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