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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