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< | The Cultural Defense Defined? | >
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< | 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 | >
> | The Cultural Defense Defined | | | | |
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< | -- By SuzanneSciarra - 26 Feb 2010 | >
> | 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. | | | | |
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< | 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 | The area of law concerning the cultural defense is still evolving, and many cases involving its use are unpublished.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. | | | | |
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< | The Cultural Defense Defined | >
> | Using the Cultural Defense with Regard to Intent | | | | |
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< | 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. | >
> | 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. | | | | |
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< | 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?) | >
> | 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. | | | | |
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< | 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. | >
> | 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 | |
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< | 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.
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. | >
> | 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. | | | | |
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< | 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? | >
> | 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 | |
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< | 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. | >
> | 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. | | | | |
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< | 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. | >
> | 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. | | | | |
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< | 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.
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.
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.) | >
> | 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. | | | Conclusion | |
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< | 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.
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?
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> | 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. | | | \ No newline at end of file |
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